Report: February 2019

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Bulging Risks: Hernia Treatment Liability

Introduction

Hernia Liability Risks

More than 20 million hernias are estimated to be repaired every year around the world. Inguinal hernia repair is one of the most common operations in general surgery in the United States. Complications, however, do occur and hernia perioperative complications have resulted in patient death.

 

A significant amount of litigation has occurred from injury involving hernia diagnosis and treatment, some cases resulting in large damage awards. Hernia mesh injury lawsuits have been wending their way through the courts.

 

Strain, stress, lifting, and carrying are significant factors in the development of a hernia. Hernia impacts employees and many others, requiring employers and risk managers to implement programs to prevent hernia occurrence.

 

Attorneys, physicians, insurers, employers, risk managers, hernia mesh manufacturers, and other potential parties to litigation need to understand the types of litigation issues that may arise in connection with the diagnosis or treatment of hernia, such as in hernia repair surgery.


The Perspectives: Improve Your Strategy

Attorneys:

What proof is needed for a malpractice claim involving the medical treatment of hernia, such as hernia repair surgery? And, what is a potential strategy for the attorney to employ?

Physicians:

How can liability for medical malpractice be avoided for an injury related to the treatment of a patient’s hernia? And, what is a potential strategy for the physician to employ?

Insurers:

Can a payout under a medical malpractice liability policy be avoided by proof that the health provider was not negligent in connection with the patient’s hernia repair surgery or there was no coverage for the provider’s actions? And, what is a potential strategy for the insurer to employ?

Employers:

Can an employer be subject to liability for an employee’s hernia? And, what is a potential strategy for the employer to use?

Risk Managers:

Can a risk manager prevent liability or mitigate damages for employee hernias in the workplace? And, what is a potential strategy for the risk manager to use?


Practice the Technique: Checklists

Attorneys:

Check this list of facts and circumstances tending to show a provider’s malpractice liability for treating a hernia.

Physicians:

Presented is a checklist of items a physician must consider when defending against claims of malpractice involving hernia treatment.

Insurers:

The insurer should check these “red flags” and inconsistencies when investigating a claim of malpractice or negligence involving hernia treatment.

Employers:

Presented is a checklist of items an employer must consider when determining if the employee’s injury related to the employee’s hernia is compensable.

Risk Managers:

Use this checklist to determine if the risk manager has identified and implemented all appropriate policies, practices, and procedures to avoid liability or mitigate damages for malpractice or negligence involving hernia treatment and whether all affected parties, such as surgeons and nurses, complied with these policies, practices, and procedures.

Expert Analysis

How are Large Incisional (Ventral) Hernias Treated and Prevented?

Hobart Harris, MD
Professor and Chief, Division of General Surgery; Director, Center for Hernia Repair & Abdominal Wall Reconstruction, UCSF

What Are the Indications for Hiatal Hernia Surgery?

Jeffrey M. Marks, MD
President, Society of American Gastrointestinal and Endoscopic Surgeons


Litigation

Alternative Dispute Resolution

Arbitration or mediation may be required by contract or statute, may be mandated by the court or, in some circumstances, may be the appropriate method for a negotiated resolution.


Reasons to Reach Settlement

The following are reasons why the attorney, physician, insurer, employer, or risk manager would want to reach settlement, and not take the action to trial.


Reasons to Go to Trial

The following are reasons why the attorney, physician, insurer, employer, or risk manager would want to take the action to trial.


Jury Awards and Settlements

How much have juries awarded and what settlements have been reached recently in cases involving hernias?



Medical Examples

Hernias

This section provides detailed medical information on the different types of hernia, diagnosis and testing, treatment, untreated hernia complications, and surgical complications. Also discussed is the patient’s prognosis and ability to work.



Law and Medicine Resources

Law and Medicine Resources

Provided is a listing of law and medical resources for further information on hernias.


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Bulging Risks: Hernia Treatment Liability

Table of Contents
Introduction

Expert Analysis
   Hobart Harris, MD
   Jeffrey M. Marks, MD

The Perspectives: Improve Your Strategy
   Attorneys Perspective
   Physicians and Health Providers Perspective
   Insurers Perspective
   Employers Perspective
   Risk Managers Perspective

Practice the Technique: Checklists
   Attorney Checklist
   Physician Checklist
   Insurer Checklist
   Employer Checklist
   Risk Manager Checklist

Alternative Dispute Resolution

Reasons to Reach Settlement

Reasons to Go to Trial

Jury Awards and Settlements

Hernias

Law and Medicine Resources