Do we need to pay for hospitalization, procedures and meds that were a result of medical negligence?

Medicare has a “secondary payor” requirement.

What it requires is that if there is a future financial settlement for an individual who had their medical care paid by Medicare, medicare can expect a recoup of the costs paid by Medicare from the settlement. My understanding is that a good tort lawyer places funds into an set aside or escrow like account for this. Atty fees and court courts are excluded from the settlement. Some class action settlements have successfully fought having MSP paid; others not.

Runner, thanks for sharing your experience. You did all the right things, and found out, unfortunately, that med mal firms have become more profit oriented, and more discriminating as to what they'll consider taking on.

I recall one situation in which a dental malocclusion was the situation, but a youngist, aggressive attorney said "we're going to MAKE this a malpractice case!"

So someone sues, the medical malpractice carrier for the medical specialist settles the claim for nuisance value, and the medical specialist's premium hikes up.

The attorney you saw advised you of a factor I missed in my original post: the lasting effect of the malpractice. Although there's temporary emotional pain and suffering, the long term effect might mitigate against a malpractice suit. Sadly, but that's the reality of plaintiff attorneys' approach.

MidKid, your practical sense advice is very practical and absolutely right; there's a balance at which a person sometimes chooses a path which could otherwise be pursued, but isn't, for the reasons you stated.

And not to challenge your point that med mal attorneys make a lot of money, some do, and some don't. The ambulance chasers in the "bush league" will take dog bit and slip and fall cases, and perhaps eke out a living.The $1M group (and there used to be a group of attorneys in that "club") fare a lot better, but they're also much better attorneys.

And there is a gamble. If the case is "no caused" (I don't know if that term is still used in medmal cases) or dismissed w/o finding in favor of the plaintiff, the attorney gets nothing, because these cases are (or at least were when I was working) contingency based. The attorneys also front the costs of medical records, review of them, depositions, filing of all pleadings, all court appearances, subpoenaes for witnesses, and of course the extensive trial prep.

During my husbands liver transplant, a sponge was left inside him, resulting in a massive infection about 4 weeks after the initial surgery. Back to the hospital, the Dr pretty much was expecting this (and had we read the surgical notes from the TP we would have caught the sponge miscount)...Dr opened him up and cleaned out the wound---18 days in the hospital....I didn't kick up a stink, since this Dr. had literally saved my husband's life, I wasn't going to sue, but quietly went to the billing dept and worked it all out in advance. We did pay the "admission" fee, but not the 40% balance (our copay) on the bill. So--we were out about $1500 on a $75,000 hospital stay.

Our feeling was, we needed DH to heal. Stressing over a med-mal case, when the man had performed a literal miracle for us, seemed, I don't know, really ungrateful.

Everyone has to do what they feel is right in their case. Be aware that med-mal lawyers make a ton of money and that comes out of your settlement. Also, it's incredibly stressful, but if you can handle the stress--and the hospital will work with you on the bill---maybe it wouldn't be necessary. Had the hospital and Dr not worked with us so well, we would have sued.

Some years later hubby had a terrible motorcycle accident. He should have been killed. Was in and out of an ER in 1 hour. Came home and went immediately lights and sirens to a different hospital--where he was found to have a ruptured artery in his butt, a massive concussion and bleeding into his eye. Needless to say, I made ONE phone call and the initial hospital did not even bill us. No bill, no med mal. (Son is an attorney and REALLY wants to sue somebody someday--but since there was no bill generated, we couldn't sue, and boy, I wanted to!!)

Here is our experience with a similar situation and hope others can learn something from our experience. Husband had a negative pressure wound pump on his leg. A resident changed the dressing ripping the adhesive off my husband's leg and tearing layers of skin off over his shin. I immediately went to get the nurse practitioner on the unit to have her come observe the "botched" dressing change and asked her to write up a patient injury report (which I later learned she didn't do). When he went home two days later on home-based wound care, the skin tear went bad. The home care wound care nurse failed to notify the treating physician. After I sent pictures to his surgeon, I was told to bring him in immediately. He was readmitted for a wound debridement and a skin graft - a 10 day hospital stay. I contacted the patient advocate in the hospital (usually in the risk management dept) and advised that this was an admission due to a hospital-acquired injury. That got us close attention by the best faculty physicians but did not relieve us the financial responsibility for the hospitalization. After discharge the patient advocate said his case was reviewed and the resident did nothing wrong - the consensus was, at his age, his skin is very fragile anyway. Of course - it was an internal review! I was also told that they couldn't write off our financial responsibility because under Medicare rules they would have to write off Medicare's part also. It was over a $100,000 bill. I asked for an external review and I have not heard anything since and it's been a year. I did contact a medical malpractice attorney who acknowledged the hospital-acquired injury but said if there was no lasting effect, there was really no case. At that point, it had taken months to recover but he didn't have any lasting effect from the injury. I suppose if the hospital had continued to pursue payment from us, perhaps we could have legally challenged that. I learned two new things from this experience: 1) If a hospital writes off a Medicare patient's responsibility, they have to write off Medicare's part also, which they are reticent to do, and 2) a patient, like my husband, i.e., retired, will have to have some lasting negative effect from the injury before a medical malpractice claim is viable.

Attorneys cost money - maybe a lot more than the expenses not covered by insurance. If you have documented proof of the infection being caused by ONLY the sponge ask the agency to pay or help with payment.

Grrrr. That is why what is supposed to happen is that disposables, such as sponges and tampons and phials, are counted in and then counted out once the procedure is complete.

You lay out your kit, and you count it. You do whatever you're doing. At the end, you count up what you have used and what remains unused. And if there is a discrepancy between stock numbers Before and After, you do not finish until you have accounted for it.

Nurse working alone, probably in a hurry, didn't do that. If it's any consolation she's probably not sleeping very well and she won't ever make this mistake again.

Spongy material is very hard to detect once it's soaked in mucus and other bodily fluids. And of course because it's spongy it moulds itself inside the cavity and causes no distortion and comparatively little discomfort.

You will still need to prove that the abscesses wouldn't have recurred if the sponge hadn't been left there. But in any case this is a clear balls-up and you should expect redress. Start thinking about what redress you would consider appropriate.

CTTN, thanks for sharing your experience. How you handled the issue is exactly what I'm referring to. Good attorneys experienced in med mal are an absolute requirement for a med mal claim.

I am sorry to learn though that this happened to your family. It's hard enough dealing with a loss, let alone one that was caused by negligence.

Dear Diana,

I am so sorry to hear what happened. I would have to agree with the others and talk with an attorney to get this escalated.

GardenArtist's advice is correct. I don't have experience working on med malpractice cases, but we went through a med malpractice trial (medical negligence caused death). Hiring a good firm is imperative. The firm we hired had a RN initially look over the records, and then a MD, to determine if it was a case they would take on.

I was a home care nurse and worked with the wound vac frequently. We were supposed to document how many sponges were removed when we started the dressing change and then document how many were inserted so the next nurse knew how many pieces to remove & count so episodes like this didn't happen. 
I was just wondering if the vac stopped working & the alarm went off & if the family was taught to remove the dressing and foam and use a saline wet to dry dressing until the nurse came to change it. 

Shane1124
The sponge was found by the attending doctor at the hospital where my dad was admitted after being examined in the Emergency Room, and after having the abscesses drained, and put on powerful antibiotics. The doctor was wondering why the antibiotics weren't working after a couple days, so he decided to explore the wound by hand. Then he fished out this piece of sponge (size of a golfball, which had become infected. Several weeks ago he had even had a full body PET scan and the sponge was not detected.

When you do see an attorney, make sure it's a medical malpractice attorney. Anyone else doesn't have the expertise to deal with this kind of issue. That includes elder law attorneys, who would be out of their skill range with a medmal issue.

I don't know if case law standards have changed since the time I worked for a while in this field, but at that time, malpractice determination was based in part on what the standard of care is for a particular type of medical issue. I.e., would the standard for wound care be double or triple checking )or some other activity) to ensure no sponge or other foreign object remained in the wound?

There are a few ways you can find a good, reputable medmal attorney - check your local county clerk's docket lists for medmal cases and find who's handling a lot of them, who's handling perhaps less but higher value and more complicated cases. Then go to the court clerk's office and ask to review some of the complaints. You might have to explain why you want to do this.

If they're ambulance chasing type complaints, keep researching. Look for the quality complaints, or ones similar to yours. I confess, this is a lot of work, but finding the wrong attorney or one of the ambulance chasers as CM suggests, takes a lot of research.

You can also review med mal firms' websites, check for experience, credentials, whether the attorneys are active in their field by providing seminars, writing articles, etc.

Or search the state bar association directory of lawyers and look for medmal firms. Make a list of questions to ask each one before you see them.

One question to ask is if and what kind of medical specialist they consult with to review records. Some have NPs or RNs on staff for review to determine merit of the case; others order medical records and have them reviewed by physicians in applicable fields.

But let the firm order the records; don't do it yourself.

From what I've seen working at medmal firms, I would think that there is some level of negligence in this situation, especially given the repercussions. But the issue might be the level, and what the wound nurse's specific range of duties were.

It could also just be that the nurse made an innocent mistake, as sometimes these home care nurses are pushed to see many clients and don't always have the luxury of time they'd like to spend with a client.

Another issue is not only the expense of the subsequent care, but the compromise of lifestyle and short or long term results of the issue, and emotional pain and suffering, as well as whether there is long term limitation or compromise of any organs, or of life style.

That's not an excuse, just a possible explanation. I would think the agency would want to address this quietly, as it has a reputation to maintain.

I would also notify the hospital that you're addressing the cost issue with the agency, so the hospital doesn't take action to collect balances due.

Incidentally, how was this home care agency chosen? If it was recommended by a hospital discharge planner, and if the agency won't cooperate in reaching a settlement, I would consider advising that planner as well as the hospital administrator that that agency should NOT be recommended again.

Review the documents signed when this agency was hired to see if medmal or negligence is addressed.

I agree with BB that it is a good idea to make a claim to the nurse's employer and see if you can negotiate a settlement before you leap to sue. And I further agree that you must seek legal advice first.

Was this sponge found during the surgery to treat the second bout of abscesses? Do you have good documentation covering all treatments? And, crucially, what was the original cause of infection? You will need to demonstrate that the overlooked sponge (and I sympathise, I would want to throttle somebody about it) was causal and not incidental to the recurrence.

This is tricky territory so to repeat, get specialist legal advice. From somebody reputable, n.b., and not an ambulance chaser.

How did you come to find the small sponge? If that wound vac alarms at home, were you given instructions on what to do with the vac?

Diana, was negligence reported to you by the wound care nurse's agency, or do you have a medical report from the most recent hospitalization, stating that it was a medical error that caused the new accesses?

I think I would be inclined to send the bills to the administration offices of the Agency with a cover letter detailing the costs incurred and where payment to the hospital should go. I would cc my lawyer on all correspondence.

You might want to consult with a lawyer and ask if this is the correct action.