Technology in Healthcare Can Result in Dangerous Errors

For decades, Paul Whelan (one of SKWC's partners) has represented plaintiffs in tragic cases resulting from the negligence of healthcare providers. Paul has written a number of articles and papers on some of his cases and what he has learned. One fact that he brought to my attention was that medical providers' errors are a leading cause of death and serious injuries at hospitals. This was somewhat of a revelation to me, as I had always thought that hospital deaths were the inevitable outcome of profoundly injured or ill patients.

Now, with more healthcare facilities using technology to keep track of medical records, there is apparently another great source of errors. An article in Kaiser Health News details some of the growing problems with healthcare information technology. A leading critic, Dr. Scot Silverstein of Drexel University, points to poorly designed medical software--among other issues.  

Dr. Silverstein told KHN: "We know it causes harm, and we don't even know the level of magnitude. That statement alone should be the basis for the greatest of caution and slowing down."

A rush to switch gears and use digital technology for medical records has supposedly led to incorrect prescriptions, treatment orders, etc., according to Dr. Silverstein. A data entry mistake led to the death of a baby in Illinois. In a major midwest health system, doctors' orders were logged in the wrong patients' charts. 

Because the government doesn't require healthcare facilities to report these types of problems, only a small percentage of all the errors stemming from digital medical records are likely reported.

Dr. Jeffrey Shuren, J.D., also has voiced such concerns: 

From January 2008 to December 2010, the FDA received approximately 370 reports of adverse events or near misses purportedly associated with different types of HIT, including electronic health records (EHRs). They likely reflect a small percentage of the actual events that do occur.Most of the causes involve the failure to adequately address interoperability with other technologies, user error, inadequate workplace practices, design flaws, failure to properly test the technology prior to distribution, upon installation or during maintenance (such as validation testing), or failure to adequately address human factors, which is the design of a technology to address problems that can arise when people interface with machines.

Check out Dr. Silverstein's blog, Health Care Renewal, for more details and words of caution against healthcare technology.


Inspiring story about Jessie Owen on KOMO News

Jessie Owen serves as an inspiration to all in this news story on KOMO News. Check it out and spread the word about our search for witnesses to the tragic incident.


Owen family searches for witnesses

On December 21, 2012, the Owens family were returning from a family trip. While they traveled on Highway 2 toward Leavenworth, a tree fell onto their SUV. Tim Owens and his wife, Cheryl, did not survive. Jessie, Jaime, and Steven (Jaime's husband) sustained serious injuries, although Jeremy Owen was fortunate to walk away from the accident.!Owens1.jpg

Learn more about the heroism and strength of Jessie Owen and the rest of the Owen family at

If you or someone you know witnessed the incident, please contact Karen Koehler, the attorney for Tim/Cheryl Owens at 

President Obama Signs Bipartisan Medicare Law

Just a few days ago, President Obama signed H.R. 1845 (112th), the bipartisan Strengthening Medicare and Repaying Taxpayers (SMART) Act, which was introduced by Reps. Tim Murphy (R-PA) and Ron Kind (D-WI) in the House and Sens. Ron Wyden (D-OR), Rob Portman (R-OH), Ben Nelson (D-NE) and Richard Burr (R-NC) in the Senate.

The legislation was a bipartisan solution to streamline the Medicare Secondary Payer (MSP) system, to ensure that seniors and persons with disabilities get timely assistance and taxpayers are repaid millions of dollars every year.

The SMART Act is seen as a victory for senior advocates,

We will see how effective SMART is, as the Centers for Medicare and Medicaid Services (CMS) must still work to eliminate confusion and uncertainty by providing clear, efficient and definitive information to seniors.

Medicare Secondary Payer (MSP):

  • The MSP process ensures Medicare is reimbursed for medical bills that are the responsibility of another party – such as an insurer or negligent party.
  • A senior or person with disabilities who has been injured, and later obtains recourse through the legal system, often cannot access their settlement until Medicare is reimbursed for all medical costs.
  • The current MSP system is inefficient and slow to return dollars to the Medicare Trust Fund, which is funded by tax payer money.
  • It can take years for the Centers for Medicare and Medicaid Services (CMS) to report reimbursement amounts to beneficiaries and CMS can seek multiple reimbursement amounts over time, providing further delay and uncertainty.

The SMART Act will:

  • Require CMS to maintain a secure web portal to access claims and reimbursement amounts in a timely fashion.
    • CMS must upload care payments they disperse within 15 days with the required information about the payment.
  • Streamline the process of obtaining reimbursement amounts.
    • Medicare beneficiaries must notify CMS they are anticipating a settlement no more than 120 days beforehand.
    • CMS then has 65 days to ensure the web portal is up-to-date, but may request an additional 30 days, if needed.
    • Reimbursement amounts are reliable if downloaded from the web portal within three days of settlement.
  • Provide a process and timeline for discrepancies and appeals.
    • Medicare beneficiaries can provide documentation for discrepancies on the web portal to CMS.
    • CMS has 11 days to respond to discrepancies.
    • If CMS does not respond in 11 days, the amount calculated by the beneficiary is the correct amount. 
    • An additional appeal process must be established by CMS for reimbursements it attempts to collect from insurance plans.
  • Create a threshold for collecting any payment amounts by CMS that are below the cost it incurs to collect an average claim.
  • Readjust the penalty for reporting errors by insurers based on the violation.
  • Ensure greater privacy for beneficiaries by no longer requiring use of full social security or health id claim numbers.
  • Create a three year limit for CMS to seek any repayments beginning from when they were informed of an anticipated settlement. - #1 in Trial Practice on 2012 ABA Top 100 Blawg List

Thanks to all of you who voted for Karen's blog! Not only is in the 2012 ABA Top 100 Blawgs, it is again (2nd year in a row) #1 in the "Trial Practice" category.!ABA 2012 Vote Blawg 100.jpg

For those of you have not checked out Karen's personal blog, you are missing out on some fascinating tidbits and pieces of practical advice for lawyers.

Congratulations, Karen! Keep up the great blog!

SCOTUS Entertains Oral Argument for Public Justice Case

SupremeCourt1.JPGSubrogation issues are often difficult for me to wrap my head around. But, when I hear or readPaul Stritmatter discuss it, I find it absolutely fascinating. It's also incredibly important for plaintiffs attorneys to understand, as subrogation issues are ever more frequent these days.

That said, Paul and Brad Moore, of SKWC flew out to Washington D.C. earlier this week, to attend the US Airways v McCutchen oral arguments. Here are Paul's thoughts/comment (also posted on his popular blog, 

Everyone can read the transcript and form their own opinions. However, I would like to add some comments because I was there for the argument. Also present were my partner Brad Moore and Mike Nelson who originally brought this issue to Public Justice to litigate in the Rose case. They may want to add comments.

J. Sotomayor showed the most knowledge of the record and so if I am correct, will be assigned the opinion if she has a majority.

  1. CJ. Roberts is well known as a procedural stickler. He always looks for ways to dismiss cases for procedural reasons. (Read The Oath by Jeffrey Toobin. It is about the Obama administration v. the US Supreme court. Very well written and worth the time.Toobin explains how this is the way Roberts approached the defense of cases while in practice, and he does the same thing on the court.)  Roberts wants to dismiss the case on the basis that the Plan language was not before the court, only the filed summary document. I would bet he will file a concurring or dissenting opinion on that basis.  It is complicated factually. I think that since the Plan was suing based on its Plan, it should have filed it with the Complaint. In fact it never provided the Plan despite numerous requests until about 4 months before this argument.
  2. The decision may well come down to the distinction between subrogation and a reimbursement lien. There were many questions on this distinction, and it seemed to form the primary differences between the parties.
  3. Argument for the Plan was by the former Solicitor General, Neal Katyal.  He is very smooth, and very good. Our argument was by Matt Wessler, a staff attorney with Public Justice. He is a brilliant young lawyer, and acquitted himself well. I think he understood the issues better than Katyal, and better than the court.
  4. Most of the questions, and most of the supportive indications, related to the application of the Common Fund Doctrine. This is of course the doctrine that says that the Plan must pay its proportionate share of attorney fees and costs.  To me, this is just another part of the equitable defenses that should be allowed, and you cannot separate it from the equitable defenses argument. However, the Solicitor General took exactly this position, ie. the common fund doctrine applies but equitable defenses do not. It is also consistent with what Judge Martinez did at the trial level in our Rose case.
  5. J. Scalia was aggressive against us from the start. He seemed to take great delight in his questions which he thought made the day for the Plan. As far as he is concerned, the Plan language controls because that is what was agreed to.
  6. My prediction (and remember, I am always an eternal optimist) is that Sotomayor, Breyer, Kennedy and Ginsberg are solidly with us.  Scalia and Roberts are solidly against us.  Both Kagan and Alioto seemed favorable early in the arguments, and then seemed against us later.  I am not sure about either one of them. And then Thomas. Did you read his question?  Did you miss it?  It was very significant. It is on one of the pages I am sure.  Oh wait, that’s right, Thomas hasn’t asked a question in 15 years or more. Who knows what he is thinking.  Since he always follows Scalia. I assume we lose him.
  7. So my prediction is we win 6-3. But I am very concerned that we may only win the common fund argument, and not the equitable defenses argument. While that would certainly be a win for us, the equitable defense argument is the key to our claims, and I will be very, very disappointed if we lose that argument.
  8. There is much more that could be said, but I will leave it at that for now.  

Paul: Thank you for sharing your insights and perspective. Look forward to SCOTUS' opinion, and seeing your predictions come true... 


*For an in-depth discussion in print, read Paul Stritmatter's booklet forthcoming soon as a Kindle publication. Makes 2012 ABA Top 100 Blawg List

This year has flown by, but not without a lot more blogging from our very own Velvet Hammer, Karen Koehler. Trial lawyers across the country go to as a resource. The ABA recognizes the value of her blog, as did voters last year. Now again, the ABA honors Karen's personal blog as a Top 100 ABA Blawg.

!ABA 2012 Vote Blawg 100.jpgLet's see it voted as #1 again in the category of Trial Practice!

Please vote for The Velvet Hammer at so that Karen's blog can be recognized again as the ABA Top Trial Practice Blawg for 2012.

WA Supreme Court Says That Victim's Family Can Sue for Mishandling of 911 Call

When William ("Bill") Munich, a respected inventor and pilot, had found himself in a dispute with Marvin Ballsmider. Ballsmider was a drunk and deranged neighbor, who had routinely emptied his RV's septic tank on Mr. Munich's property.

One night in October 2005, Ballsmider hunted down Munich on Munich's property with a gun. Munich called 911, and stayed put in the only structure on his property.

That structure had three cars with keys in their ignition. But Bill stayed put only because of the 911 dispatcher's reassurances that local law enforcement was on its way. Unbeknownst to Bill, his call was prioritized not as an emergency, but as a "priority 2 weapons call." The dispatched car drove quietly without any sirens and only slightly over the speed limit. 

Hear the chilling 911 call from Bill Munich on this video from KING5 News.

Every minute mattered to Bill Munich, as he eagerly awaited local law enforcement's arrival. However, Ballsmider got to him first, shooting Bill execution style. Moments later, the police arrived. 

SKWC wrongful death attorneys, Kevin Coluccio, Ray Kahler and Paul Whelan, represent Munich's family. They are fighting to hold Skagit County accountable so that when life threatening, emergency calls are made--mishandled calls are not shrugged aside. In Munich's case, Skagit County denies any responsibility for the mishandled 911 call. Instead, the blame Ballsmider entirely.

As the Seattle Times reported, the the trial court and the appeals court declined to dismiss Munich's case, and the Supreme Court affirmed the decision (8-1 majority). When promising that help was on the way, the Court said that the 911 operator created a special relationship with Munich. The County had a duty to fulfill its promise.

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An SKWC Plane Crash Case Shown on Discovery's "Curiosity" Show

The Discovery Channel, on the next episode of Curiosity will take a look at one of Stritmatter Kessler's!HemmerPlane2.jpg recent plane crash cases.

The case of Mike Hemmer's survival of a major plane crash is sure to fascinate viewers: Mr. Hemmer was on board an international flight out of Amsterdam. Minutes after takeoff, the plane crashed.

Suffering major injuries, Mike was whisked to a nearby hospital. Days later, he learned that none of his three Boeing colleagues had survived the crash.

Learn more details about Mike's amazing survival of the plane accident and SKWC's Keith Kessler and Brad Moore's fight for justice, by checking out SKWC's website, and don't forget to check out Discovery's latest episode of Curiosity.

Brad Moore Elected Secretary of Public Justice Foundation

SKWC's Brad J. Moore was recently elected Secretary of Public Justice Foundation, a national non-profit public interest law firm. Since he began his career as an attorney, Brad has spent countless hours as a volunteer for Public Justice. 

Brad is also the Foundation's State Coordinator for Washington State, making presentations about Public Justice's cases and mission. He explains, "Many of our cases don't result in a fee. We take some of the hardest cases where an important legal issue is unclear... We give those people a shot they would likely not get from a private firm."

The Public Justice Foundation challenges arbitration agreements (AT&T Mobility v. Concepcion), such as those hidden in boilerplate fine print on payday loans and credit card agreements with unconscionable interest rates and class action bans. It demands federal-level responsibility on behalf of inmates whose medical treatment is neglected, ignored, or refused by prison officials (Castaneda v. United States). The Foun­dation also aims to protect rights before and after they are violated, fighting against disparate treatment under Title IX (Flood v. Florida Gulf Coast University).

Because of top-notch representation, the Foundation has produced significant results. “The Foundation’s staff attorneys are literally a Who’s Who of civil rights, consumer protection and environmental lawyers from around the country. We have world-class litigators.”

Indeed, Public Justice is fortunate to have a litigator like Brad Moore as its Secretary.