To Litigate or Not to Litigate? Making the Case in Point With Bair Hugger

As an attorney, you’re charged with determining the merits of a docket to determine whether a day in court has the potential to offset the costs in time, money, and human resources that go into building the kind of case that delivers a high-dollar settlement for your client. But while a positive plaintiff outcome for some medical suits may look like a slam-dunk, the odds for bringing home a winning verdict for more difficult litigations aren’t always so clear.

Case in point? The Bair Hugger Surgical Blanket.

Insecurity Blanket

The Bair Hugger Surgical Blanket was designed as a means to keep patients warm during surgical procedures, which has been shown to optimize recovery times and reduce the risk of bleeding. There’s mounting anecdotal evidence, however, that this particular device’s forced air mechanism may be responsible for introducing bacteria into the sterile surgical field, which can lead to infections with a range of complications from repeated debridement, to amputation-and even patient mortality.

The device was invented by a noted anesthesiologist, Dr. Scott D. Augustine (the holder of nearly 150 medical patents). Ironically, Dr. Augustine himself has been very vocal in his attempts to alert the medical community that the device should no longer be used for certain procedures-most specifically, the implantation of artificial heart valves and joint replacements.

Who to Believe?

Dr. Augustine says that newer technology available (for which he also holds patents) can provide safer alternatives to the Bair Hugger.

And therein lies the rub.

The doctor who invented it says it’s time to pull the plug on Bair Hugger, so why is it still being used? Because the company that currently owns the patent, 3-M, posits Dr. Augustine’s assertions are a case of sour grapes. They maintain the device’s efficacy outweighs any potential risks to patients, and they’ve gone a long way to prove their claims, enlisting their own expert testimony and compiling their own data.

When both sides pose convincing arguments, in lieu of a specific targeted, large-scale study on the pros and cons of a device (there is currently no such study on the Bair Hugger), it can be difficult for someone without a medical background to get a grasp of the real picture. That’s where a targeted records retrieval and evaluation can be of huge assistance pulling the situation into focus.

“In pharmaceutical cases, evidence can be tricky,” notes MEL’s in-house Lead Legal Nurse Consultant, Jessica Lobitz. “Patients aren’t always sure what drugs were prescribed to them, when or even if they took them, what the dosage was, if they were generic, and so on. But in a device case, like Bair Hugger, you know you’ve had surgery. If post-op complications develop, it’s pretty easy to go back and see what steps were taken, and what impact they potentially held.”

Lobitz explains that in the face of difficult litigation, in order to win, attorneys must look for cases that make sense. “As you review the intakes, the question you have to ask is, ‘what’s the ratio of good cases to bad ones?'” Lobitz says. “When we started looking at Bair Hugger, it was clear from the numbers that there were a lot of very strong, winnable cases out there.”

MEL’s expert trained nurse staff is experienced in both ordering the pertinent records, as well as making sense of the information they compile. Are you looking at a potentially difficult case, and aren’t sure if the numbers add up? Let MEL’s Records Retrieval Experts help you determine whether or not the odds are in your favor.

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