medical malpractice in Virginia
Words Of Wisdom

Did you know THIS about surgical malpractice?

Surgery malpractice

Surgery is one of the most common treatment options, and in some cases, it can be a patient’s only option. In the past, surgery was linked to poor outcomes and high complication rates. But in the last century, with the help of advancements in antibiotic therapy and asepsis, surgery has become a very safe treatment procedure.

However, it is not 100% safe, and every surgery carries the risk of potential complications. Aside from the risks inherent within each procedure, hospital errors and medical malpractice during surgery can have lasting, negative effects on a patient. That is why surgical associations and organizations research and publish guidelines, with the goal of reducing the occurrence of surgical complications and medical malpractice. One of the most detailed guidelines is published by the World Health Organization (WHO Guidelines for Safe Surgery). According to the WHO, it is important to ensure that the following recommendations are followed: prevention of infection of surgical site, anesthesia safety, and surgical team safety. 1

In order to prevent the infection of the surgical wound, the basic principles of asespsis and antisepsis should be followed. The surgeon and all members of surgical team should wash their hands, instruments should be sterilized before the surgery, antibiotics should be administered according to the recommendations before the surgery, the skin around the incision site should be prepared and draped in a sterile manner, the wound should be treated with caution, and surgeons should try to avoid unnecessary trauma to the tissue. Failure to follow any of these recommendations can lead to a wound infection. 1

Anesthesiologist malpractice

Anesthesia is one of the most important parts of every surgery. The anesthetist should be well trained in order to provide a safe anesthesia. The machine should be checked prior to surgery, and the patient’s vitals (blood pressure, heart rate, oxygen saturation, body temperature) should be monitored throughout the entire surgical procedure. 1

And last but not least, a safe surgical team should be well organized and have excellent communication in order to be best prepared for the surgery. The surgical team can reduce hospital error by confirming that they have the correct patient as well as all the correct information for the site and procedure. The patient should sign an informed consent form prior to surgery and confirm any possible allergies. The nurse working at the surgery table should note any missing surgical sponges, gauzes, or instruments in order to prevent retained foreign objects in the body and later complications. 1

If there is a breach of the standard of care, it can lead to severe and sometimes life-threatening consequences. Some of the most devastating instances of medical malpractice occur when a surgical instrument or sponge is inadvertently retained in the wound. It is hard to imagine that a well-trained surgeon could really forget to remove an instrument from the patient’s body, but this kind of surgical error does occur, and when it does, seeking the representation of a medical malpractice attorney may be the only way to ensure you receive the compensation you’re entitled to. Some reports claim that it happens once in every 1000-7000 surgeries. 2 3 4 In the USA alone, over 1500 cases are reported each year. 5

Retained foreign objects

The human body is not used to having a foreign body or material inside it (with the exception of endoprothetic materials, which are compatible). In the presence of a foreign material, the body will react and try to defend itself by initiating an inflammatory reaction. 4 In the event that the foreign material remains inside the body for a longer period of time, it can cause serious complications and even death.

Surgical instruments or sponges are most frequently forgotten during intraabdominal and intrathoracic surgeries. 6

Surgical sponges are retained the most often, followed by needles and instruments. 7

Important factors which contribute to a higher risk of retention of foreign objects are emergency surgeries, unplanned changes made during the surgical procedure, and a high BMI of the patient. 8

The main goal of surgery is to solve the problem patient has. If the surgeon leaves an instrument or sponge inside the body, that object can trigger further symptoms and create even more problems for the patient than they had before they checked into the hospital.

A patient can show symptoms immediately following surgery, or they may only notice something is wrong months or even years later. Often, they may not even connect their new symptoms to the surgery itself.

One study claims that every patient with a retained foreign body had symptoms after the surgery. Of those, the most common were sepsis caused by intestinal obstruction or fistula (tunnel) between the intestines and skin, abdominal pain, and a palpable mass. Even when the foreign object is removed, there is a high chance (18%) that a new surgery will be required in order to solve the remaining problems. 10% of the patients that required a second surgery died. 9

Another study claims that 69% of patients required a revision surgery after the retained instrument or sponge was diagnosed. These patients also have a much higher chance of having an emergency surgery (33% vs 7%). 8

Patients with a foreign body can have symptoms similar to an infection or abscess (puss formation) shortly after surgery or within a few months. 4

Lincourt et al. claim that, patients with retained foreign objects have a higher chance of multiple major surgical procedures. 6 Surgical instruments are usually well visualized using X-rays, while sponges need to be identified using more specific imaging techniques, like a CT or MRI scan. 4 In an operating theatre, the scrub nurse is responsible for counting the sponges and instruments, but he or she does so under the direction of the surgeon. 4

Every nursing organization has recommendations and standards for counting the surgical instruments and sponges in order to prevent inadvertent retention. 10 11 Most of them recommend that the scrub nurse counts sponges and that the circulating nurse performs a recount. Each time, the number of sponges should be documented.

Lately, new systems have been designed to automatically count surgical sponges and prevent possible human error. This system is based on the use of bar-coded sponges instead of regular surgical sponges. It has showed an improvement in detection of surgical sponges. 12

This can lead to significant decrease in the incidence of retained surgical instruments and sponges, though these systems and procedures have not been implemented in most hospitals in the United States. Until they are, this kind of hospital error will continue to cause devasting and unnecessary harm to many patients. If you or your loved ones have suffered from complications, infection, pain, disability, or impairment resulting from surgical errors, you may be entitled to compensation for your pain and suffering, lost wages, reduction in future earning capacity, hospitalization and re-hospitalization expenses, and other types of injuries.

Beau Correll is a medical malpractice attorney who focuses on personal injury, including wrongful death, cases. If you are looking for medical malpractice lawyers in Virginia available for a free consultation to help you determine how to pursue your medical malpractice case and receive the compensation you deserve, reach out to us.  Call us at the number listed at the top of our site for free case evaluation or fill out this quick form (it takes about 30 seconds).

References:

1.    WHO, WHO Guidelines for Safe Surgery 2009, available at http://apps.who.int/iris/bitstream/handle/10665/44185/9789241598552_eng.pdf
2.    Bani-Hani, Kamal E., Kamal A. Gharaibeh, and Rami J. Yagha. “Retained Surgical Sponges (Gossypiboma).” Asian Journal of Surgery 28.2 (2005): 109-115. Web. 20 May 2018.
3.    Egorova NN, et al. “Managing The Prevention Of Retained Surgical Instruments: What Is The Value Of Counting? – Pubmed – NCBI .” Ncbi.nlm.nih.gov. N. p., 2018. Web. 20 May 2018.
4.    Zejnullahu, Valon A. et al. “Retained Surgical Foreign Bodies After Surgery.” Open Access Macedonian Journal of Medical Sciences 5 (2017): n. pag. Web. 20 May 2018.
5.    P, Brisson. “Prevention Of Retained Foreign Objects. – Pubmed – NCBI .” Ncbi.nlm.nih.gov. N. p., 2018. Web. 20 May 2018.
6.    Lincourt, Amy E. et al. “Retained Foreign Bodies After Surgery.” Journal of Surgical Research 138.2 (2007): 170-174. Web. 20 May 2018.
7.    “Retained Surgical Sponges, Needles And Instruments | The Annals Of The Royal College Of Surgeons Of England.” The Annals of The Royal College of Surgeons of England (2018):. Web. 20 May 2018.
8.    Gawande AA, et al. “Risk Factors For Retained Instruments And Sponges After Surgery. – Pubmed – NCBI .” Ncbi.nlm.nih.gov. N. p., 2018. Web. 20 May 2018.
9.    Gonzalez-Ojeda A, et al. “Retained Foreign Bodies Following Intra-Abdominal Surgery. – Pubmed – NCBI .” Ncbi.nlm.nih.gov. N. p., 2018. Web. 20 May 2018.
10.    Nurses, Association. “Guidelines For Perioperative Practice – Clinical Resources – Association Of Perioperative Registered Nurses.” Aorn.org. N. p., 2018. Web. 20 May 2018.
11.    “Australian College Of Perioperative Nurses :: Standards.” Acorn.org.au. N. p., 2018. Web. 20 May 2018.
12.    Greenberg CC, et al. “Bar-Coding Surgical Sponges To Improve Safety: A Randomized Controlled Trial. – Pubmed – NCBI .” Ncbi.nlm.nih.gov. N. p., 2018. Web. 20 May 2018.

Words Of Wisdom

7 Tips For Interacting With Police

NOTE: If you or a loved one are seeking a criminal lawyer in Northern Virginia, send us a quick message and we’ll get back to you shortly.

For the purposes of this post, Northern Virginia includes Fairfax, Loudoun, Frederick, Clarke, Loudoun, Prince William, and Fairfax Counties.  For over a decade, former state prosecutor for the Commonwealth of Virginia and criminal defense attorney Beau Correll has litigated thousands of legal matters through disposition and trial in Virginia General District and Circuit Courts.  He has handled criminal appeals to the state Court of Appeals and Supreme Court.  Today, he shares with you tips in dealing with law enforcement in Virginia:

Running a Northern Virginia law firm with a focus on criminal defense has been one of the most satisfying experiences for a criminal trial lawyer.  It has been an honor to represent so many individuals as a criminal defense lawyer.  We’ve handled a variety of cases from violent crime, major embezzlement allegations, and DUI charges.  The vast majority of clients are simply folks that may be productive members of society that made an error in judgment.  Clients come from all backgrounds, from well-heeled entrepeneurs to indigent parents, trying to scrape by from day-to-day.

Despite all of the places I’ve practiced law and all of the varying types of clients, there are constantly reoccuring themes and situations that constantly reappear in almost every consultation.  In these reoccuring fact-patterns one thing is always true: never be timid about invoking your rights – but do so in a polite and respectful manner.

In no particular order, I want to share with you some tips (and myths) to keep in mind when dealing with law enforcement subject to our sitewide disclaimer:

  1. “They Had To Read Me My ‘Rights.'”  This appears to be a reoccuring misconception fueled by both Hollywood and urban myth.  The “rights” at issue are better known as “Miranda Rights.”  You’re probably reminded of what they are if I were to tell you that you have the right to remain silent…”  One thing to keep in mind is that your Miranda Rights only have to be read in one of type of scenario – “custodial interrogation.”  This, in itself, is also broken down into it’s component parts – “custody” and “interrogation.”  “Custody” has been defined as a situation in which a reasonable person wouldn’t feel free to leave.  Think handcuffs.  “Interrogation” generally consists of questions that are reasonably calculated to elicit an incriminating response.  A clear example of a Miranda Rights violation would be a handcuffed suspect being asked about a crime but not read their Miranda Rights beforehand.  An example where it may not apply is if a person isn’t handcuffed and the police are asking about wrongdoing but the suspect is technically free to leave.  If Miranda Rights are violated by rights not being read, there is a liklihood that an incriminating statement may be “thrown out of court.”  Any criminal lawyer will tell you there are tons of exceptions and exceptions to exceptions but the general rule is that there must be custodial interrogation for your Miranda Rights to be implicated.  For example, even when detained for suspicion of DUI and being questioned about how you may appear intoxicated, the United States Supreme Court held in Berkemer v. McCarty, 468 US 420, (1984) that an officer doesn’t even need to give you a Miranda warning because you aren’t “technically” in custody even though you aren’t free to leave!
  2. “They Were Going To Search Me Anyways.”  Criminal lawyers hear this a lot.  The situation typically occurs during a routine traffic stop for anything from speeding to even a DUI.  An officer, perhaps insistently, asks to search your car.  “We’ll just get a K-9” or “Do you have something to hide?” are frequently combined with the requests.  You have rights enshrined by our Founders in the Constitution – use them!  As a general rule, police either need legal justification or permission to search your person, vehicle, or home.  Sometimes the justification can be them viewing evidence in plain sight – or “plain smell.”  Other times they have a search warrant issued by a Virginia magistrate.  You can’t do much about legal justification.  You can, however, exercise your rights and affirmatively tell them that they do not have permission to search and that you do not wish to talk to them.
  3. “I Said Those Things Because I Didn’t Think I Could Leave…”  There are generally three different types of interactions with law enforcement: consensual encounters, investigative detentions, and arrests.  In a consensual encounter, you are free to leave.  You may not terminate the encounter in either investigative detentions or arrests.  Short of being placed in handcuffs, you should attempt to record the encounter (without interfering with the officer) and always seek to politely, yet firmly, question whether you are free to leave.  If you don’t, months after you are formerly charged and are rapidly approaching a trial date, this can be critical.  If you are under arrest and are being questioned related to the accusation always assert, “I want a lawyer.”  The questioning must then cease.  Courts have generally held that the request must be unequivocal.
  4. “But They Had To Tell Me They Were A Cop, Right?”  There are few myths that have permeated Americans’ view of the criminal justice system than this myth.  No, law enforcement nor confidential informants have to tell you that they are undercover under Supreme Court precedent.  However, I think that there are outer limits to that.  The lies/mistruths that that tend to be allowable are those which are factual in nature.  For example, courts may have a problem with allowing lies based on misstatements of the law or deceptions which cause reliance resulting in unlawful conduct.  The latter is called “entrapment.”
  5. “I Thought That I Had To Answer.”  One prosecutor told me that the government’s conviction rate would drop 70% if no one made incriminating statements to law enforcement.  The moral quandry that people accused of a crime find themselves in is, “Do I lie or just tell them the truth?”  You should never lie to law enforcement.  Not only did your mamma teach you better, but it’s also illegal in Virginia under Va. Code § 18.2-461 and law enforcement may frequently know the answer prior to questioning you. The most reasonable conduct is to invoke your rights and remain silent.  Yes, the interaction may be uncomfortable but if you are free to leave the awkwardness won’t last forever and if you’re not free to leave, see our previous discussion about invoking your right to counsel.
  6. “Do You Know How Fast You Were Going Back There?”  In the words of Admiral Akbar, “It’s a trap!”  There are two ways that your speed can be proven in a speeding or reckless driving (by speed) case – either by scientific means like laser, radar, or pacing results or by your confession.  The equipment may have be faulty, but the judge won’t care and you don’t do yourself any favors by giving the government the rope to hang yourself with by guessing your speed.
  7. Breathalyzers.  In Virginia, there are two main types of breathalyzers – the handheld one that they give you on the side of the road to determine if they should arrest you (PBT) and the one at the jail, called the “Intoxilyzer.”   You should always decline the PBT because if they’re going to arrest you they’re going to do it anyways.  Legally, you can choose to decline the Intoxilyzer but if you do, you may likely get a year of no driver’s license, without eligibility to have a restricted license, and other penalties.  With regard to the PBT, almost every single client that comes to our office from our area has their statutory PBT rights violated.  Under Va. Code § 18.2-267, an officer must advise you that you have a right to refuse, that you can observe the test results, and it cannot be used in a prosecution against you.  None of these requirements are generally carried out when someone is arrested for suspicion of DUI.

Northern Virginia criminal lawyer Beau Correll is a former state prosecutor and experienced criminal defense attorney.  For a confidential consultation about your legal matter, please call our staff at (540) 535-2005 or fill out this form.

Words Of Wisdom

Do You Need Car Insurance MedPay?

What is Car Insurance MedPay?

Medical payment coverage, commonly called “medpay”, is a “no fault” coverage typically provided by your car insurance company to cover medical services rendered by healthcare providers due to a car accident.  As a “no fault” insurance, it will kick-in regardless of who is to blame for an auto accident.  It also can be applied to assist you even if you have high health insurance deductibles or no health insurance at all.

Virginia requires all car insurance companies to offer medpay with your policy.  However, whether you choose to add this optional coverage is up to you.  Under Va. Code § 38.2-2201, medpay covers, within three (3) years from the date of the accident, all “reasonable and necessary expenses for medical, chiropractic, hospital, dental, surgical, prosthetic and rehabilitation services” and ambulance transportation. 

Why Do You Need MedPay?

  1. You can “double-dip” or even “triple-dip” in Virginia.  We at Correll Law Firm, PLC love medpay coverage because it helps our clients maximize recovery.  Say, for example, you get in a car accident that caused you $10,000.00 in medical bills, your health insurance covered $8,000 of the full bill, and you had a $10,000 in medpay coverage.  Virginia is a collateral source state in which you are not penalized for paying for health insurance (great law, by the way) and liabilty carriers generally can’t reduce their liability due to payments by your health insurance company.  Therefore, if we obtain $10,000 for your bills from the liability carrier (bad guy’s insurance company), plus obtaining $10,000 in medpay, and then you realize $8,000 in value from your health insurance carrier, you would have obtained $28,000.  That is almost twice your actual bills!  If applicable, as your car accident attorney, we will also try to obtain lost wages and pain-and-suffering as well as other classes of damages you may be entitled to following a car accident.
  2. They all add up and can be “stacked.”  If you are in a household with multiple vehicles, with each vehicle having their own medpay coverage, you can add up the individual coverages for your one accident.  Of course, you’ll have to look at your specific contract to make sure that “stacking” is allowed for your household.
  3. It’s super cheap.  The coverage is typically only a few dollars more than your usual car insurance payment.  For that small inconvenience, you get a massive convenience: due to the car accident, regardless if you’re ultimately to blame, you get medical expenses paid.
  4. Personal injury lawyers generally don’t take a fee for medpay claims.  As a general rule, does not charge a fee on medpay payments because they are generally “ministerial” acts requiring just simple accounting and submission of claims.  On the other hand, in the event a medpay claim requires the use of legal skills, knowledge, experience and advocacy to assist in a settlement, a fee may need to be discussed.  Some medpay providers are notorious for cherry-picking claims and scrutinizing every bill to meet the “reasonable and necessary” conditions.  This behavior can lead to delays in the final settlement.
  5. Your Passengers Can Get Covered.  Medpay can apply to passengers in your car that were hurt or injured.
  6. No (or limited) hoops to jump though.  Depending on your car insurance company, claims are paid quickly.  There are exceptions to this rule. 

Engaging a qualified injury attorney with established processes for evaluating and submitting medpay claims on your behalf is critical to making sure you are made “whole again” after an auto accident.  We, at Correll Law Firm, PLC, have both experience and know-how in evaluating your claim.

CALL US TODAY AT 540.535.2005 TO SCHEDULE A CASE EVALUATION

Correll Law Firm, PLC, serving Northern Virginia, has a solid familiarity of both the automobile injury claims process, the factors to maximize recovery, and the law related to personal injury claims.  

Words Of Wisdom

Dismissing A Criminal Case

Hey Correll Law Firm followers!

Did you know Virginia is a unique state when it comes to criminal law because it allows certain types of charges to be dismissed by an Accord and Satisfaction?

As long as it’s a misdemeanor, involves an injured party (think: larceny, assault and battery, not DUIs), could typically be a cause of action in a civil suit and a few other conditions do not apply, the charge may (with Court approval) be dismissed by way of this unique agreement between the Defendant and the aggrieved.  It’s actually best described as a civil agreement given recognition in criminal court.

The statute at issue is the codification of the common law doctrine of Retraxit, which is Latin for “he has withdrawn.” However, in the modern sense it means that the complaining witness does not want you prosecuted anymore because you have LEGALLY made things right.

You can view the code section by clicking here.

One word of caution: Correll Law Firm HIGHLY recommends that you engage an attorney to handle these, and determine suitability, because there is a potential you could get into some sort of legal jeopardy if not done properly.

Many people don’t know about this Code section but it’s great for settling matters in a criminal case.  Please SHARE this post on your social media to spread awareness of this law!