Yes, you will. Have to jump.

. . . Through Federal Court hoops.

You have cancer. And you believe you deserve money from the federal government because you got cancer from drinking water at Camp Lejeune. But you will still have to jump through hoops to get all the money you deserve.

What hoops?

The Camp LeJeune Justice Act passed the Senate a few days ago. The President is expected to sign it into law in a few days. This new law gives certain veterans and civilian employees who drank contaminated water at Camp Lejeune (from 1953-1987) the right to collect money damages in Federal Court. But it has to be done like this: Step No. 1: File using the right form (within the time allowed) under federal law 28 USC §2675. Disposition by a federal agency is a prerequisite to going into court. The first place that evidence has to be submitted is not a courthouse. “(a) An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section.” Step 2, filing a lawsuit in Federal Court, comes after that.

What Maine Attorney knows how to help me on this?

I’m writing this because I have experience and like working on cases brought under 28 USC §2675. I’ve filed the necessary claims form to institute an action for clients against the United States for money damages caused by the negligent or wrongful act or omission of an employee of the Government while acting within the scope of his office or employment for the government.

As a Maine attorney, and a member of the Federal Bar Association, (and an RN) I have helped others (including those with cancer) go through the 28 USC §2675 process, meeting deadlines, using the right forms, attaching the right medical evidence and making sure the claim is filed with right agency. The nursing background helps me, as your advocate, understand what you are going through, and the medicine, and where the proof is hidden in your medical records. But it also helps your case that I started out in the law as a federal law clerk, and that I enjoy litigating in federal court just as much as in state court.

Briggs & Wholey, LLC 207-596-1099

Waiting won’t help. Call if you think you have cancer, kidney disease, leukemia or Parkinson’s disease from drinking water at Camp Lejeune before 1987. There’s no charge to speak with me to see if you might qualify to bring a claim. Alison Briggs, Briggs & Wholey, LLC.

                                                                                                  A Maine driver swerves, hits a school bus, and causes injury. What causes this kind of crash?  While waiting for the investigation to be finished, it helps to know the categories on the standard Maine Crash Report that deal with driver distraction. 

According to the State of Maine Traffic Crash Reporting Manual, published by the Maine Department of Public Safety (Maine State Police Traffic Safety Unit) the leading causes of distraction are  electronic 1.Communication devices (cell phones, pagers, etc); 2. Navigation devices, Palm Pilot, entertainment devices, radios and mobile data terminals, etc; 3. Things happening Inside the vehicle (Eating, Reading, Grooming, Smoking, Passengers, etc.); and 4. External Distraction (outside the vehicle) Any person, object, or event outside the vehicle that draws the operators attention (traffic crash in other lane, highway signs, pedestrians, etc).

While none of the children were hurt enough to be hospitalized, the bus crash brings home the importance of minimizing distractions when school buses are out on the road.  The number one thing to avoid distraction that leads to a crash is: turn off devices. Also, restrain pets, and don’t multi-task while driving by trying to eat a meal, discipline children or key in a destination to the nav system.  

(Thanks to WGME for reporting  this Monday, 4/4/11/22 crash. (Photo by Lewis Harry Elliot via WVII))

copyright Briggs & Wholey, LLC 2022

Like all other states, Maine requires doctors and nurses to meet standards of patient care. But what if the standard of care can’t be met because of staffing levels? For example, if a patient in the recovery room is supposed to be checked for level of consciousness, physical status, vital signs and bleeding at the operative site every 15 minutes for the first 30 minutes after surgery, but the nurse has too many patients needing the same level of care, then who is at fault if that doesn’t happen? In Kansas City, Missouri, Dr. Ray Brovont, an ER doctor,  sent a memo to management outlining his ER unit’s fears about needing to be in two places at once. The response: Dr. Brovont was fired six weeks later, in January 2017. And here was his response to the firing: He sued the hospital for wrongful discharge.  And a jury awarded Dr. Brovant $29 million, including $20 million in punitive damages. The core issue is the fact that hospitals need to make a fair profit to survive, but that  fair profit has to be balanced by staffing that permits doctors and nurses to meet the professional standards of care required to practice safely. Dr. Brovant’s verdict puts hospitals on notice that ordinary folks, like the jurors in Missouri, will do the balancing act for hospitals if they don’t do it (properly!) for themselves.

Alison Wholey Briggs, RN, Esq.

This deadly story starts out with a routine hospital test in Tennessee.  (But it could have been Maine, or anywhere else in the USA.)  It’s December 2017. Charlene Murphey is getting better after a Christmas eve stroke, and she is going to have an MRI before discharge home. The hospital doctor prescribes a routine sedative to be given before the MRI.  Completely normal. He prescribes the brand name drug, Versed. Versed is the brand name for a generic name: midazolam. Also completely normal for a patient like Charlene to be medicated with midazolam before an MRI. But, stop right there. That doctor’s choice-to ask the nurse to give brand name Versed, instead of asking the nurse to give midazolam- is where Death takes a seat in the hallway of the Vanderbilt University Medical Center neurosurgery ICU, and waits for a chance to pounce.  

To understand what happened next, the reader needs to know about nurses getting medication from an automated cabinet in a big hospital. Everyone knows that Death stalks the halls of hospitals. Death can come from the disease that brings a patient into the hospital.  But it can also come from medication malpractice if we let that happen.  So as nurses we are trained from the beginning: Only give medication if it’s the right patient, the right medication, the right dose, the right time, the right route. Doctors play their part, too. Doctors have to order the medication by name, dose, timing and route. And in many hospitals, a computerized medication dispenser also gets into the act. The best known medication dispenser, meant to cheat Death by making medication errors less likely, is Pyxis.  Pyxis, however, also allows medication to be dispensed using either the brand name or the generic name. (Think brand name Tylenol and Advil  as generic name acetaminophen and ibuprofen.)

Pyxis is an automated dispensing cabinet that is filled by the hospital pharmacy.  Pyxis allows nurses to avoid the manual recording of drugs dispensed or used by nurses. When a nurse takes a drug from the Pyxis, the Pyxis both dispenses the medication to the nurse, and also automatically records that drug as having been given.  That works great when the patient’s medications are ordered in advance, and are given on a schedule. But sometimes doctors order a medicine to be given one time, and it needs to be done before the pharmacy has time to come to the unit and stock the Pyxis. So Pyxis has some medicines already pre-stocked. That way, when a one-time medicine is ordered for a patient before an imaging study like an MRI, and the medication is not already on the patient’s routine list of medications, Pyxis works something like this: The nurse goes to the Pyxis cabinet and selects a patient by name, selects “Remove” medication, and is able to go to an override list of pre-stocked Pyxis medications, enter in the first  letters of medication (brand or generic name), select the medication from a Pyxis list that pops up, follows any prompts to get the medication drawer to open, wait for the medication drawer to pop open, remove the medication, close the drawer and sign out. See the potential for a brand name/generic name problem? For a one-time medication, like Versed/midazolam, the nurse may type in the first  letters of the medication ordered by the doctor using a brand name (“VE”) , select from a mixed list of medications  that start with the same letters (“VE”), and select the right medication. But sometimes the brand name of a medication starts with the same first letters of the generic name of a different medication. Understand: If you want to give a patient brand name Versed, and type in “VE”, another medication, with a generic name that starts with “VE” can also pop up in a list of medications too. Another medication that starts with “VE” is the generic name medication vecuronium. Vecuronium is not the same as Versed. 

One thing that causes death from medication error is confusion. And when a hospital makes a rule that blocks confusion, patients are safer. So what is it that a hospital could do to block confusion between Versed and vecuronium? Could the hospital make a rule that all doctors order all medications using only the generic name, and never the brand name?  In Charlene Murphey’s case, the doctors were allowed to make the choice whether to order a sedative by brand name (Versed) or by generic name (midazolam). If Nurse Vaught had an order to give midazolam, and was searching Pyxis for midazolam, it seems unlikely that she would have gone all the way down the list and chosen vecuronium.  But the hospital  allowed the doctor to choose to order Versed using the brand name . Could Pyxis, in collaboration with the hospital  be programmed to only allow the use of generic names in its search feature?

Turning back to Charlene Murphey. She was ready for her MRI. Nurse RaDonda Vaught intended to give Charlene the sedative that the doctor ordered. Nurse Vaught goes to the Pyxis. She searches for Pyxis stock medications that start with “VE”. . When vecuronium comes up, Nurse Vaught chooses that. It is a nursing error. She chooses vecuronium instead of Versed.  But vecuronium is not a sedative. It is a medication that paralyzes patients so that they can’t  breathe on their own. Without breathing, the heart stops. Vecuronium is not used to sedate patients for an MRI. Vecuronium is used to achieve paralysis to facilitate mechanical ventilation for appropriately sedated patients. Nurse Vaught gave Charlene vecuronium instead of Versed.  Nurse Vaught has readily admitted she made a nursing error. 

When Nurse Vaught injected Charlene Murphey with vecuronium, she walked away thinking that  Charlene was going to be fine– appropriately relaxed for her MRI.. What happened is that the vecuronium paralyzed Charlene. She stopped breathing long enough for her heart to stop, too. Charlene was found unresponsive after a cardiac arrest by a Vanderbilt hospital staff member approximately 15 minutes after receiving the dose of vecuronium instead of Versed. She suffered such severe damage from lack oxygen that she could not survive. 

An excellent organization, the Institute for Safe Medication Practices, may be able to guide the healthcare industry in creating guidelines to address the questions raised by Charlene Murphey’s death. ISMP is dedicated to the promotion of safe medication practices. Research, education, and advocacy are the foundation of  ISMP, and it has a history of recognizing that punishing individual nurses for medication administration errors isn’t the only way, or even the best way, to approach the problem.. Perhaps a time-out to focus on the safety issues inherent in allowing free interchange of brand name versus generic name in ordering and dispensing hospital medications will  lead to guidelines that will help protect patients in the future from this particular type of medication confusion..

Alison W. Briggs, RN, Esq. 2022

What Is a Patient Advocate-And Why Do I Need One in Maine?
A serious car accident, or being diagnosed with cancer, is like your whole life is under assault. Or maybe your baby was just born- severely premature. Or maybe your parent is needs to go into a nursing home- right now. All of a sudden your head is swimming with information-all of it new-and all of it coming at a time when you’re trying to keep your head above water with your home responsibilities on top of everything else. Different doctors saying different things. Nurses coming in and out of the room with medications you’ve never heard of before. Insurance companies talking co-pays.

 And you’re worried. You’ve heard about medical malpractice, and nursing home neglect, even here in Maine. And it strikes you that the nursing home or hospital’s “Patient Advocate” is being paid by the company or hospital. How, unbiased is she going to be? Who do you or your family turn to? A good place to start is the Reader’s Digest Article “7 Times You Should Hire a Patient Advocate (and When It’s Unnecessary).” What would be most important to you if you suddenly found yourself overwhelmed in a local Maine healthcare setting? Help with insurance forms? Someone to look at your medical records and stand by you when you question your doctor about next steps? Think of it this way: Isn’t having help with healthcare decisions as important as having a mechanic friend come with you when you buy a used car? 

As a trial lawyer and as a registered nurse I’ve seen shocking inaccuracies in medical records-including my own. And here’s why that’s important. First, every medical decision your doctors make about your care is based on your medical history. Let’s say you’re in a crash, and you’re rushed to the ER.  You’re disoriented or unconscious. If the ER doctor gets your electronic medical record, and it contains wrong information, your care is going to based on that–false information. One study found that “More than 40% of medication errors can be traced to inadequate reconciliation in handoffs during admission, transfer, and discharge of patients. Once an error occurs, it is likely to be carried through patient care transitions; therefore, obtaining the most accurate medication history in the emergency department can improve patient safety.” Second, let’s say you are applying for disability insurance, and your medical records contains an MRI report that says you have early signs of multiple sclerosis. If you don’t know that, and if you don’t actually have early MS, you can’t challenge the reading of the MRI, and your ability to obtain insurance will be affected. Third, if you’re injured, and the description of your injury is wrong in your medical record, you could damage your ability to recover lost wages and medical bills for an injury that wasn’t your fault. So step one for all of us is to obtain our medical records. It’s allowed in Maine. Let’s do it.

Why you should care about civil lawsuits: Hint- cars, helmets and cribs. Watch this if you dare.

I did it myself. Maybe you did, too. If you’re still doing it, here’s what you need to know: When you take the car seat off the base and put it on the floor inside the house so you don’t wake the baby, your baby can strangle. The reason is that the car seat base in the car is tilted so that the baby’s airway stays 

open. In research published by the Journal of Pediatrics in 2015, 48% of car seat deaths studied were from “positional asphyxia”. Strap strangulation accounted for 52% of the deaths. The takeaway from the study is this: “Car seats should not be used as sleeping areas outside of the vehicle, and children should never be in a car seat with unbuckled or partially buckled straps.”