Saturday, December 15, 2012

The Importance of Medical Monitoring After Disaster

I am handling a number of lawsuits in Pittsburgh, Pennsylvania where patients, as a result of negligence, medical malpractice, drug diversion, failure to properly guard medications, were needlessly exposed to either unclean medical equipment or the wrong medications. In both instances a situation was created where patients were placed at high risk of contracting or developing a serious disease. In the case of tainted medical equipment patients were exposed to a myriad of blood borne illness including, but not limited to, HIV and Hepatitis, B and C. In the case of wrong medication, patients were placed at risk of developing a variety of conditions from being administered an improper medication.

When these medical nightmares occur in Pennsylvania, medical providers are required to provide a regimen- medical monitoring- to monitor the patients to make sure they do not develop the illnesses and, if they do, to provide prompt treatment thereto. Unfortunately, many health facilities in Pennsylvania are not prepared for drug diversion or dirty medical instrument fiascoes that may occur. As a result, they make a bad situation worse by failing to implement a proper medical monitoring program for the affected patients. When that occurs, it is lawyers that step in and help make sure such a thing does not happen again.

To that end, the Supreme Court of Pennsylvania has held that a plaintiff must prove the following elements to prevail on a common law claim for medical monitoring:

(1) exposure greater than normal background levels;

(2) to a proven hazardous substance;

(3) caused by the defendant's negligence;

(4) as a proximate result of the exposure, plaintiff has a significantly increased risk of contracting a serious latent disease;

(5) a monitoring procedure exists that makes the early detection of the disease possible;

(6) the prescribed monitoring regime is different from that normally recommended in the absence of the exposure; and

(7) the prescribed monitoring regime is reasonably necessary according to contemporary scientific principles. Proof of these elements will naturally require expert testimony.

Redland Soccer Club v. Dep't of the Army, 548 Pa. 178, 195-196 (Pa. 1997)

In a medical context, at least dirty medical instrument cases, this is a more difficult claim to establish than it is in cases of exposure to cancer causing agents like asbestos or other toxic chemicals.  This is because it is often difficult for plaintiffs to prove that they were in fact exposed to a proven hazardous substance like a biohazard.  It is often, in turn, difficult in these cases for plaintiffs to prove that, as a result of the exposure, they are at increased risk of contracting a serious disease.  In many cases, these are subjective arguments that are typically resolved on a case by case basis.

No matter what, it is important for hospitals and patients to know about this legal requirement as it makes us all safer. Share this post :
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