Doctors in Thailand Voice Common Arguments Against Being Held Accountable for Errors

The government of Thailand wants to have a scheme to compensate victims of medical malpractice. Many Thai doctors are opposed to the law.  Here is an argument made by the physicians, as reported in Taiwan News:

It means our staff would have to be extra careful during work, which would decrease efficiency," said Somkid Auapisithwong of Thai Federation of Doctors, Main Hospitals and General Hospitals, which looks after the interests of medical practitioners in state hospitals. "We're already very stretched. Some of our nurses have to work almost 365 days. This would add more stress to our staff. They would have to be extra careful with all sorts of risks  and this will hinder their work.

Thanks to Torts Prof for informing me about this article.

 

Georgia Supreme Court Strikes Down Damages Cap in Medical Malpractice Cases

 

The Georgia Supreme Court has struck down a cap on noneconomic damages in medical malpractice cases, declaring the cap to be a violation of the right to trial by jury.   The case is Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt,  NO. SO9A1432  (Ga. March 22, 2010).  Read the opinion here.

The Court ruled that by "requiring a court to reduce a noneconomic damages award determined by a jury that exceeds the statutory limit, OCGA Sec. 51-13-1 clearly nullifies the jury's findings of fact regarding damages and thereby undermines the jury's basic function."

Patient Rights and Health Care Reform

Will the President sacrifice the rights of patients injured by medical malpractice to get Republicans to sign-off on a health care bill?

Steven Olsen explains why the President  should not in this article titled "Why Shouldn't Obama Throw Injured Patients Under the Bus to Get Heath Reform?  Ask Steven Olsen."

Steven Olsen is a malpractice victim from California.  Here is a letter written by the jury foreman after he learned that the jury's damage award was cut because of California's cap on damages.

We viewed video of Steven, age 2, shortly before the accident. This beautiful child talked and shrieked with laughter as any other child at play. Later, Steven was brought to the court and we watched as he groped, stumbled and felt his way long the front of the jury box. There was no chatter or happy laughter. Steven is doomed to a life of darkness, loneliness and pain.

He is blind, brain damaged and physically retarded. He will never play sports, work, or enjoy normal relationships with his peers. His will be a lifetime of treatment, therapy, prosthesis fitting and supervision around the clock...

Our medical-care system has failed Steven Olsen, through inattention or pressure to avoid costly but necessary tests. Our legislative system has failed Steven, bowing to lobbyists of the powerful American Medical Association (AMA) and the insurance industry, by the Legislature enacting an ill-conceived and wrongful law. Our judicial system has failed Steven, by acceding to this tilting of the scales of justice by the Legislature for the benefit of two special-interest groups....

I think the people of California place a higher value on life than this.

 

2009 Medical Malpractice Claims Reports Due March 1, 2010

The Tennessee Department of Commerce and Insurance has released the forms for reporting on medical malpractice claims for the 2009 calendar year.

The reports are due March 1, 2010.

Here are the instructions for filling out forms as a representative of the claimant.  Here is  the link to the reporting form.

Failure to submit all of the required information on or before the March 1, 2010 deadline will subject a reporting attorney to a penalty of $100 per day.

 

2009 Medical Malpractice Claims Report Released

The Tennessee Department of Commerce and Insurance has released the 2009 Medical Malpractice Claims Report.  Despite its title, the Report reveals data for calendar year 2008.

This is the fifth report issued by the Department and contains more different types of data than released in previous years because of a change in the reporting law.  Today I will report on some of the data and will address the balance in later posts.

In 2008, there were 3154 medical malpractice claims  closed in Tennessee.  (More than one "claim" can arise in a single case; a claim is defined as "a demand for money damages for injury or death caused by medical malpractice; or a voluntary indemnity payment for injury or death caused by medical malpractice.")  Of those claims 43 were resolved through ADR, 459 were resolved through settlement, 425 were resolved through judgment, and 2227 were otherwise resolved.

I do not understand the difference between those cases resolved by ADR and those resolved by settlement, given the difficulty settling any case without going through a mediation.  However,  the numbers appear to  tell us that  almost 70% (2227 out of 3154) of claims are dropped before suit is filed or by voluntary dismissal.  How do we know that?  Because we know the other 30% or so were settled or resulted in a judgment.

As indicated, 425 were resolved by the entry of a judgment.  How many were judgments for the plaintiff?  Five.  Just over one percent.  In other words, there were 420 claims resolved by judgment, and while the exact numbers are unreported it is reasonable to assume that many were resolved by summary judgment and a lesser amount by judgment for the defense after a trial.

The total amount of damages paid for the five cases in which a plaintiff received a judgment was $790,000, or just under $200,000 per claim.  The total damages received in the claims that were resolved by settlement or ADR was about  $118,500,00, or about $230,000 per claim.  

Payments of judgments were down over 90% from a year earlier.  Payments by settlement or ADR were about the same as they were in 2007.  

The largest reported judgment was $1,150,000.  Obviously, that judgment was not paid because it exceeds the total amount of damages paid for all judgments.  (if a case is settled post-judgment the amount is recorded as a settlement.)

There were 5,780 claims pending at the end of 2008.  

I will share more of the data contained in the Report in a later post.

 

When to Evaluate for a Hypercoagulable State

The Doctors Company is a medical malpractice insurer.  Its website contains articles of interest to all Tennessee medical malpractice lawyers and, in fact, medical malpractice lawyers in every state.

For example, one interesting article is titled "When to Evaluate for a Hypercoagulable State."   Here is an excerpt:

 

Hypercoagulability is any alteration in the coagulation pathway that predisposes to thrombosis; it can be divided into primary (genetic) and secondary (acquired) disorders.

Acquired conditions known to predispose to DVT and PE include knee and hip surgery, abdominal surgery, brain surgery, geriatric and obstetrical surgery, prolonged immobility or bed rest, congestive heart failure, and obesity. Malignancies, especially of the lung, prostate, pancreas, and GI tract, also predispose to thromboembolism. In addition, risk for DVT and PE increases with the use of oral contraceptives and postmenopausal hormones. Other rarer conditions, such as myeloproliferative disorders and the nephrotic syndrome, also place the patient at increased risk for thromboembolic disease.

In each of these conditions, the presence of a primary (genetic) disorder or additional acquired factor(s) significantly increases the likelihood of venous thrombosis or thromboembolism. Current thought is that inherited clotting disorders contribute to about 35 percent of thromboembolic events and may account for nearly 70 percent when circumstances lead one to suspect it.

Articles such as this one help lawyers who are evaluating potential medical malpractice cases get a solid grasp on the medicine before filing a lawsuit.  The Doctors Company is to be congratulated for sharing information about medical conditions so that the public, including lawyers, can learn more about medicine.

 

 

AAP Issues Expert Witness Policy

The American Academy of Pediatrics has issued a Policy Statement titled "Guidelines for Expert Testimony in Medical Malpractice Litigation.  

After reviewing the role of the expert witness in medical malpractice litigation, the Guidelines begin the "recommendations" section of the paper with this statement:

The AAP recognizes that physicians have the professional, ethical, and legal duty to testify as called on in a court of law in accordance with their expertise. Physicians serving as expert witnesses have an obligation to present complete and unbiased information with which the trier of fact can ascertain whether the defendant was medically negligent and whether, as a result, the plaintiff suffered compensable
injury and/or damages. At this time, the best strategies for improving the quality of medical expert witness testimony are strengthening the qualifications for serving as a medical expert and providing more specific guidelines for physician conduct throughout the legal process.
 
The recommendations include the following:
 
To meet that obligation, physicians agreeing to testify as experts in medical negligence cases should conduct themselves as follows:
 
1. Regardless of the source of the request for testimony (plaintiff or defendant physician), expert witnesses should lend their knowledge, experience, and best judgment to all relevant facts of the case.
 
2. Expert witnesses should take necessary steps to  ensure that they have access to all documents used to establish the facts of the case and the circumstances surrounding the occurrence.
 
3. Relevant information should not be excluded for any reason and certainly not to create a perspective favoring the plaintiff or the defendant.
 
4. The expert witness’s opinion should be fair and objective. The expert witness should be comfortable with his or her testimony regardless of whether it is to be used by the plaintiff or defendant.
 
 

 

New Medical Malpractice Case Filing Statistics

Here is the most up-to-date data on medical malpractice case filings in Tennessee.

Regular readers know that  effective October 1, 2008 the General Assembly imposed significant restrictions on patients who want to file a medical malpractice suits.  The new law, which was modified again effective July 1, 2009, requires pre-suit notice and the filing of a certificate of good faith.

For the 12-month period ending September 30, 2008, 644  medical malpractice lawsuits were filed in Tennessee.   A whooping 140 of those were filed in September 2008 as lawyers filed suits to avoid the burden and risks of filing cases under the new law.  If September 2008 were an average month, one would have expected only 45 cases to have been filed.

For the year ending September 30, 2009,  available data indicates that only 263 medical malpractice lawsuits had been filed.  (Note: several counties have not yet reported data for September 2009.  Final numbers will be available in a couple months.  I would be shocked if the total number of filings for the year ending September 30, 2009 would be more that 280.)

If one assumes that total filings for the year ending September 30, 2009 will be 280, medical malpractice filings are down 65%.

That percentage reduction is not really fair, however, because of the surge of filings in September 2008.  So, let's play with the numbers a little bit and see what we find.

Assume that all of the cases filed in September 2008 would have been filed even after the new statute came into effect and that, but for the new law, September 2008 filings should be re-adjusted to 45 - the average number of new lawsuits filed in each of the other months in that year.  Under that assumption, the adjusted total medical malpractice filings for the year ending September 30, 2008 were 549.

Next, assume that the other 95 cases filed in September 2008 would have been filed in the ordinary course in October -December 2008 or in early 2009.  Under that assumption, total medical malpractice filings for year ending September 30, 2009 would be 375 (assuming the final figures show total actual filings to be 280 plus the 95 hypothetical filings).  Under all of those assumptions, it would be fair to say that medical malpractice filings are down 32%.

This is a very conservative estimate.  Why?  First, it assumes that all of the cases filed in September 2008 under the old law would have been filed under the new law.   I think that is unlikely.   Second, it assumes that 36 medical malpractice lawsuits were filed in September, 2009, when available data tells us that only 19 were filed. 

It will take a couple years to get a completely accurate feel of how the new law has impacted medical malpractice case filings.  However,  at this time it is reasonable to say the new law has had a significant impact on case filings.  A reduction in the number of lawsuits is great for medical malpractice insurance companies and bad for insurance defense lawyers who defend malpractice cases.   In the short-run, a reduced number of filings is good for heath care providers. 

The impact on plaintiff's lawyers is that fewer lawyers will be handling these cases because the new law makes handling the cases more time-consuming, expensive and difficult.  In addition, anecdotal evidence tells us that, in an effort to reduce the loss of income from defending cases that are no longer being filed, defense lawyers will be working cases even harder, thus increasing the work on the lawyers for patients and decreasing the profitability of those cases.  As profitability decreases, only cases that have  substantial value will be filed, thus further impacting the ability of patients to seek legal redress for their injuries.

HealthGrades Sixth Annual Patient Safety in American Hospitals Study

HeathGrades studies Medicare patient care in our nation's hospitals based on 15 indicators of patient safety.   

Here are some highlights from the 2009 report representing data from 2005 -2007:

· There were 913,215 total patient safety events among 864,765 Medicare beneficiarieswhich represents 2.3 percent of the nearly 38 million Medicare hospitalizations.

· These patient safety events were associated with over $6.9 billion of excess cost.

· The overall incidence rate remained virtually unchanged compared to last year’s study(except the failure to rescue indicator for which there were major methodological changes).

· Eight indicators showed improvement over the course of the study.  Complications of anesthesia, death in low mortality DRGs, failure to rescue, iatrogenic pneumothorax, selected infections due to medical care, post-operative hip fracture, postoperativehemorrhage or hematoma, and transfusion reaction showed improvementranging from 2.3 percent to 52.0 percent.These eight indicators accounted for 14.5 percent of the total patient safety eventsduring the study period.

· Seven indicators worsened over the course of the study. Decubitus ulcer (bed sores), post-operative physiological and metabolic derangements,post-operative respiratory failure, post-operative pulmonary embolism (potentially fatalblood clots forming in the lungs) or deep vein thrombosis (blood clots in the legs), postoperativesepsis, post-operative abdominal wound dehiscence, and accidental punctureor laceration all worsened with changes ranging from a one-percent increase in events to23.4 percent.These seven indicators accounted for 85.5 percent of the total patient safety eventsduring the study period.

Other interesting data:

· There were 97.755 actual inhospital deaths that occurred among patients who experienced one or more of the 15 patient safety events.

· 92,882 of these deaths could be directly attributable to a patient safety event.

· Hospitals that had received a Patient Safety Excellence Award had a 43% lower risk of experiencing patient safety incidents.

· If all hospitals had performed at the same level as the award winners, 22,771 deaths could have potentially been avoided and $2.0 billion would have been saved.

· Award winners in Tennessee are Baptist Riverside, Cenntennial, Memorial (Chattanooga), Northcrest (Springfield), St. Thomas, Vanderbilt and Williamson Medical Center.

Tort Cases Pending Before the Tennessee Supreme Court - Physician Assistants

There are a significant number of cases of interest to Tennessee tort lawyers pending before the Tennessee Supreme Court.  One of those cases is Cox v. M.A. Primary and Urgent Care Clinic, 2009 WL 230242 (Tenn. Ct. App. 230242 (Jan. 30, 2009). 

The issue in the case is the appropriate standard of care for a physician's assistant.  The Court of Appeals ruled as follows:

the services provided by a physician assistant are provided under the supervision of a licensed physician and within the scope of practice of that physician, who is responsible for the treatment rendered by the physician assistant. Consequently, the standard of care applicable to a physician assistant is that of the supervising physician in the community in which the supervising physician practices.

The holding was based in part on the language of T.C.A. Sec. 63-19106(b), which provides as follows:

A physician assistant shall function only under the control and responsibility of a licensed physician. The supervising physician has complete and absolute authority over any action of the physician assistant. There shall, at all times, be a physician who is answerable for the actions of the physician assistant and who has the duty of assuring that there is proper supervision and control of the physician assistant and that the assistant's activities are otherwise appropriate.

The patient-appellee's brief was filed on October 16, 2009.  Oral argument should occur in the next couple of months and we can expect on opinion in the case in the Spring of 2010.

 

Rhode Island Hospital Cannot Get It Right

You know that patient safety is not a priority in a hospital when your state regulatory agency orders that cameras be installed in your operating rooms.

Rhode Island Hospital has had five wrong-site surgeries since 2007.  Here is how the AP described the last incident:

The latest incident last month involved a patient who was to have surgery on two fingers. Instead, the surgeon performed both operations on the same finger. Under protocols adopted in the medical field, the surgery site should have been marked and the surgical team should have taken a timeout before cutting to ensure they were operating on the right patient, the right part of the patient's body and doing the correct procedure.

The hospital was also fined $150,000.

Each of these incidents are completely unacceptable.  

Here is the recommendations  of the American College of Surgery on how these incidents can be prevented:

  • Verify that the correct patient is being taken to the operating room. This verification can be made with the patient or the patient's designated representative if the patient is under age or unable to answer for him/herself.
  • Verify that the correct procedure is on the operating room schedule.
  • Verify with the patient or the patient's designated representative the procedure that is expected to be performed, as well as the location of the operation.
  • Confirm the consent form with the patient or the patient's designated representative.
  • In the case of a bilateral organ, limb, or anatomic site (for example, hernia), the surgeon and patient should agree and the operating surgeon should mark the site prior to giving the patient narcotics, sedation, or anesthesia.
  • If the patient is scheduled for multiple procedures that will be performed by multiple surgeons, all the items on the checklist must be verified for each procedure that is planned to be performed.
  • Conduct a final verification process with members of the surgical team to confirm the correct patient, procedure, and surgical site.
  • Ensure that all relevant records and imaging studies are in the operating room.
  • If any verification process fails to identify the correct site, all activities should be halted until verification is accurate.
  • In the event of a life- or limb-threatening situation, not all of these steps may be followed.

I have written about this subject several times, most recently here.  Here are the "best practices" on this subject as developed by the Tennessee Improving Patient Safety program>

 

Commercial Appeal Writes About Medical Malpractice Litigation

The Commercial Appeal wrote an interesting story on medical malpractice litigation in today's paper.  Read it here.

An excerpt:

Nationwide, the number of payments physicians made for malpractice claims fell to 11,037 last year -- the lowest figure since the National Practitioner Data Bank began tracking data in 1990. Adjusted for inflation, the total $3.6 billion they paid was the second-lowest sum on record.

I was interviewed by the reporter and gave him the data that readers of this blog have seen about how few medical malpractice claims are filed in relation to the number of malpractice injuries and deaths and how the new statute has impacted the number of case filings.   He was kind enough to accurately quote me on one point:

"What's happening to all the other dead people? All the injured people? The cases just aren't being brought," said Nashville attorney John Day. "Is there a problem with too many lawsuits? I could make the argument that there's not enough."

 

New Medical Malpractice Filing Numbers

Every day, more than  5 Tennesseans die as a result of medical malpractice.

How do I know such a thing?  Simple math.  The Institute of Medicine has reported that 98,000 people a year die from medical malpractice.  Think about it:  the death rate from medical malpractice  is the equivalent of a large commercial airline crash every day that results in the death of 268 people.

The USA has about 300,000,000 people.  Tennessee has about 6,000,000 citizens, or 2% of the total.  Assuming that the rate of medical errors that result in death in Tennessee is no better and no worse than anywhere else in the country,  1960 Tennesseans die every year as a result of medical malpractice (2% x 98,000).  And that works out to 163 people per month.  That is the equivalent of a commuter jet crash in Tennessee every week that results in the death of about 40 people.

The deaths of 163 people per month equates to over 5 deaths per day.  If a carload of high school students were killed every day of every week of every month for an entire year do you think it would make the news?

Remember that the Institute of Health number does not include injuries from medical malpractice. One study reports the numbers of injuries at 1,500,000 per year.  

So, how many medical malpractice lawsuits are filed each month?  Since the medical malpractice law changed effective October 1, 2008, a total of 222 medical malpractice lawsuits have been filed in the state.  That is about 22 per month.  For reasons I have expressed before, the filings in the early months after the statute were passed  are not representative of what will occur in the future, and I think that we will see about 40 cases per month in August and September.  If another 80 cases are filed, the total for the year since the new law was passed will be 302. Remember, the number of deaths in that period totaled 1960.

Here are some of the filing numbers from the larger counties in the State:

  • Davidson        56
  • Shelby             55
  • Knox                31
  • Hamilton          2
  • Sullivan             8
  • Washington     8
  • Rutherford        8
  • Anderson          5
  • Wilson               4
  • Madison            6

A total of 34 counties had one or more medical malpractice filings.  Some 61 counties had no filings in the ten-month period ending July 31, 2009.

In the year ending June 30, 2008, there were 537 medical malpractice case filings for injuries and deaths.  Thus, it appears that filings for the year that ended September 30, 2009 will be down about 44%.  My prediction was that filings would be down about 40% as a result of the new law - I was a little off.  My guess is that filings will increase slightly next year, but I still predict that filings in the year beginning October 1, 2009 will be less than 400.

One last point.  The medical malpractice notice and certificate of good faith statute changed again effective July 1, 2009. .  If you don't regularly do medical malpractice work but plan to file one of these cases, I suggest you read my article about how to give notice under the new law.

Board Certification in Medical Malpractice

A couple of months ago I filed an application  with the American  Board of Professional Liability Attorneys seeking  board certification in medical malpractice cases.  I have been board certified as a civil trial specialist for over 15 years.   In fact, several years ago I served as President of the National Board of Trial Advocacy, the group that certifies civil trial specialists. 

For those of you who want to seek certification, here are the criteria:

  • Be in good standing with your State Bar;
  • Provide a writing sample, either trial memorandum or brief;
  • Pass EBOLA’s written examination in either Legal or Medical Professional Liability;
  • Have spent at least the last 5 years practicing in Legal or Medical Professional Liability;
  • In the last 3 years, have dedicated at least 25% of your professional time to  Medical Professional Liability;
  • In the last 3 years, have completed a minimum of 36 hours of continuing legal education (CALE) in  Medical Professional Liability, or met the CALE requirements of your State Bar, whichever is greater; and
  • Provide 6 references: 3 judges and 3 attorneys who practice in Legal or Medical Professional Liability.

I have to confess I was a little nervous about the examination.  I haven't taken a test for over 15 years and had no idea what to expect.  I was told it was impossible to study for the test, and that advice was correct.  The test was at least 50% medicine and the breadth of the subjects covered made studying impractical if not impossible..  I received a break - one series of questions dealt with a medical subject on a case I tried in 2008.

This week, I found out that I had passed that examination and was granted certification.

There are 17 Tennessee lawyers certified in medical malpractice by the EBOLA, and only 11 of these lawyers customarily represent patients.  I am honored to be included in this group of lawyers.

 

New Medical Malpractice Filing Numbers

Every day, more than  5 Tennesseans die as a result of medical malpractice.

How do I know such a thing?  Simple math.  The Institute of Medicine has reported that 98,000 people a year die from medical malpractice.  Think about it:  the death rate from medical malpractice  is the equivalent of a large commercial airline crash every day that results in the death of 268 people.

The USA has about 300,000,000 people.  Tennessee has about 6,000,000 citizens, or 2% of the total.  Assuming that the rate of medical errors that result in death in Tennessee is no better and no worse than anywhere else in the country,  1960 Tennesseans die every year as a result of medical malpractice (2% x 98,000).  And that works out to 163 people per month.  That is the equivalent of a commuter jet crash in Tennessee every week that results in the death of about 40 people.

The deaths of 163 people per month equates to over 5 deaths per day.  If a carload of high school students were killed every day of every week of every month for an entire year do you think it would make the news?

Remember that the Institute of Health number does not include injuries from medical malpractice. One study reports the numbers of injuries at 1,500,000 per year.  

So, how many medical malpractice lawsuits are filed each month?  Since the medical malpractice law changed effective October 1, 2008, a total of 222 medical malpractice lawsuits have been filed in the state.  That is about 22 per month.  For reasons I have expressed before, the filings in the early months after the statute were passed  are not representative of what will occur in the future, and I think that we will see about 40 cases per month in August and September.  If another 80 cases are filed, the total for the year since the new law was passed will be 302. Remember, the number of deaths in that period totaled 1960.

Here are some of the filing numbers from the larger counties in the State:

  • Davidson        56
  • Shelby             55
  • Knox                31
  • Hamilton          2
  • Sullivan             8
  • Washington     8
  • Rutherford        8
  • Anderson          5
  • Wilson               4
  • Madison            6

A total of 34 counties had one or more medical malpractice filings.  Some 61 counties had no filings in the ten-month period ending July 31, 2009.

In the year ending June 30, 2008, there were 537 medical malpractice case filings for injuries and deaths.  Thus, it appears that filings for the year that ended September 30, 2009 will be down about 44%.  My prediction was that filings would be down about 40% as a result of the new law - I was a little off.  My guess is that filings will increase slightly next year, but I still predict that filings in the year beginning October 1, 2009 will be less than 400.

One last point.  The medical malpractice notice and certificate of good faith statute changed again effective July 1, 2009. .  If you don't regularly do medical malpractice work but plan to file one of these cases, I suggest you read my article about how to give notice under the new law.

An Appropriate Handoff

Yes, handoffs occur in football.  But they also occur in healthcare, when one professional  transfers the responsibility for caring for a patient to another provider. 

Here is how The Doctor's Company explains handoffs when talking about hospitalists:

The primary objective of a handoff is to provide accurate information about a patient’s care, treatment, current condition, and any recent or anticipated changes. Handoffs are interactive communications allowing the opportunity for questioning between the provider and the recipient of patient information. For hospitals, the handoffs that occur during the time when a patient is moved to another unit, sent for a diagnostic test, or transferred to a new physician can create continuity of care issues.

The Company has these recommendations for hand-offs:

  • Use standardized communication tools such as the mnemonic “HANDOFFS.”
  • Allow interactive communication for questions/discussion and require repeat-back of the exchanged information.
  • At a minimum, include the following during handoffs: diagnoses, current condition, recent changes in condition or treatment, anticipated changes, and warning signs of changes in the patient’s condition.
  • Limit interruptions during handoffs.
  • Use the following questions for guidance in organizing communication during the handoff:
  • – What is important to communicate?
  • – Who needs to know what information?
  • – When should communication occur?
  • – How should the information be transmitted?
  • – How can I validate the communication was successful?

The HANDSOFFS mnemonic is taken from an article titled "The Art of HANDOFFS: A Mnemonic for Teaching the Safe Transfer of Critical Patient Information." The article was written by Alice Brownstein, MD and Anneliese Schleyer, MD, MHA.  The article explains the need for good communication during a hand-off:

With the advent of mandatory work-hour restrictions for residents1 and the development of hospitalist programs, patients are often cared for by several physicians during a 24-hour period. In 2004, an estimated 34.9 million people were discharged from hospitals in the United States, with an average length of stay of 4.8 days. Assuming that the care of each patient was handed off twice a day, a minimum of 335 million patient handoffs occurred.

With each handoff, there is an incremental increased risk for errors, near-misses, and challenges to high-quality care. The covering physicians are less aware of the patient's history, thus slowing the evaluation of new developments. This often leads to unnecessary testing and diagnostic procedures. The primary physician is informed of events after they have occurred and does not have direct involvement in the decision-making.

Frequent handoffs may cause communication breakdowns, with a resulting delay in care. It is often difficult for consultants to communicate directly with the primary physician, since that physician is no longer in the hospital. The impact of multiple transfers of care on patient satisfaction is unknown, but it is reasonable to postulate that it makes it more difficult for patients to identify their primary doctor.

To ensure continuous, seamless care throughout a patient's hospitalization, it is standard practice for one physician to hand off care to another physician by providing information about the patient. To minimize potential errors from multiple handoffs, a standard set of critical information must be developed and taught to house staff; providing unambiguous instructions for potential adverse events has been shown to decrease the potential for error.  [Footnotes omitted.]

Here is the mnemonic:

The article concludes with a vignette that shows how the mnemonic works and with these thoughts from the authors:

It is the experience of the authors that handoffs can be difficult. There are many potential pitfalls, including providing too much information or omitting salient points on the handoff sheet. It is also challenging to learn how to prioritize multiple calls when caring for patients you did not admit. Giving and receiving handoffs takes practice, and to our knowledge there has been little formal investigation about how to best hone this skill. It is our hope that the mnemonic HANDOFFS will help standardize the patient information shared between physicians. It is our belief that learning the fine art of handoffs early in a physician's career, and continuing to refine this skill, will promote a high quality of care and encourage patient advocacy.

Fascinating stuff.  This is very good material to have in our deposition toolbox.

 

Los Angeles Times Article Speaks Out About Tort Reform - "The Healthcare Debate's Frivilous Sideshow"

This column from the Business Section of today's Los Angeles Times attacks the myth that restriction of the rights of patients to hold health care providers responsible for harming patients must be a part of national healthcare reform.  

An excerpt: 

Every circus needs a sideshow, which must be why every time the issue of rising medical costs gets debated, politicians start clamoring for "tort reform."

The article explains who wins if patient's rights are restricted.  Here is on example:

How great a business is malpractice insurance nationwide? At American Physicians Capital (an insurer active in the Midwest), claims were falling so fast in 2007 that its chief executive publicly compared his underemployed claims managers to "the Maytag repairman." The next time you find yourself nodding in assent while some politician carries on about tort reform, remember that its benefits will go to characters like this.

Thanks to Brandon Bass for bringing the article to my attention.

New Tennessee Supreme Court Opinion on Comparative Fault

The Tennessee Supreme Court has ruled that a plaintiff who lost a medical malpractice case in federal court was not estopped from pursing a case against a State-employed doctor even though the federal court jury assigned no fault to the doctor, a non-party in the federal court action.

An excerpt:

We have determined that the proceeding in federal court did not provide Ms. Mullins with a full and fair opportunity to litigate her medical negligence claims against Dr. Mejia. It is undisputed that Ms. Mullins could not, as a matter of law, recover monetary damages from either Dr. Mejia or the State in the federal proceedings. Common sense also dictates that it would have been foolhardy for Ms. Mullins to press her claim that Dr. Mejia had been negligent in the federal proceeding because doing so would have diluted the strength of her claims against the remaining defendants and would have profited her little in later proceedings against Dr. Mejia. [Footnotes omitted.]

The case is Mullins v. State of Tennessee, No. E2007-011130SC-R11-CV  (Tenn. Sept. 30, 2009).  Read the full opinion here.   The opinion will be discussed in more detail in the November edition of the Tennessee Trial Law Report.

Washington Certificate of Merit Struck Down

The Washington Supreme Court has struck down the filing of a certificate of merit in medical malpractice cases in Washington state.   The certificate is required by RCW 7.70.150.

The opinion said that the statute was unconstitutional because it violated the separation of powers between the Legislature and the Judiciary and it denied medical malpractice victims equal access to the courts. 

The Court said that

“Requiring medical malpractice plaintiffs to submit a certificate prior to discovery hinders their right of access to courts. Through the discovery process, plaintiffs uncover the evidence necessary to pursue their claims. Obtaining the evidence necessary to obtain a certificate of merit may not be possible prior to discovery, when health care workers can be interviewed and procedural manuals reviewed . ...  It is the duty of the courts to administer justice by protecting the legal rights and enforcing the legal obligations of the people. Accordingly, we must strike down this law

The case is Putman v. Wenatchee Valley Med. Ctr.,  Docket No. 80888-1 (September 17, 2009).  Here is the Court's opinion.  Here is the concurring opinion.

 

Health Care Reform Everyone Can Support - The Use of Medical Checklists

A reader sent me an article in September - October 2009 issue of Harvard Magazine  that discusses the work of Dr. Atul Gawande.   Dr. Gawande is very interested in patient safety.  One of his interests is the use of medical checklists, a subject I have addressed in a previous post.

Apparently,  Gawande and his colleagues developed a checklist for surgery patients.  The list, described in the article as addressing "rudimentary tasks" (e.g. confirming the patient's identity), had some amazing results.  In one year of use in 8 different hospitals around the world, the rate of complications had dropped one-third; surgicial-site infections by half, and deaths of surgical patients by nearly half.

Seven countries and more than two dozen states require the use of surgical checklists.  One wonders why every state in the Union does not require them.

Gawande's team is developing other checklists for "perinatal care, emergency care, trauma care, burn care, and for managing a particularly troublesome type of bacterial infection."

Gawande described the  work in this area as consisting of "ridiculously primitive insights."  He said in an article he wrote for the New Yorker:  "But, really, does it take [distinguished professional degrees] to figure out what house movers, wedding planners, and tax accountants figured out ages ago?"  

By the way, I have not identified the reader who sent me the article because I do not know that he wants to be identified.  You know who you are.  If you want me to give you credit, let me know and I will do so.  Whether you want credit or not, please keep sending me information - I really appreciate it.  As I am sure you guessed, I am not a regular reader of Harvard Magazine and my college don't publish no such thing, least as far as I know.

New Tennessee Legislation of Interest to Tort Lawyers - Post 15

Post 15 addresses the changes to Tennessee law concerning the proper way to give notice to potential defendants in medical malpractice cases and the changes in the law concerning the certificate of good faith. 

I have addressed this legislation in several other posts  (here is a post with a complete summary) and need not repeat what I have published in the past.  For those of you who are involved in medical negligence litigation I suggest you read my  article on this legislation in the July 2009 edition of the Tennessee Bar Journal.

The predecessor to this law came into effect last October and has resulted in a significant decrease in the number of medical malpractice case filings.  As I wrote in June, the number of filings for the first eight months after the original law law passed are down 60% over a year earlier.  

Clink on the link to read Public Acts 2009,  Public Chapter 425.  Click on the Legislation 2009 Category to see additional changes to Tennessee statutory law in 2009.

 

Dead By Mistake

The "Dead By Mistake" website, hosted by the San Francisco Chronicle, contains chilling stories of deficiencies in our health care system that result in injury and death.  This alone brings the point home:  more people die each month from preventable medical errors than died in the terrorist attacks of 9/11.

Quite frankly, this is all old news to lawyers who are involved in medical malpractice litigation.   This site will educate those lawyers who do not regularly do this work.  It will inform consumers and legislators of the nature and extent of the problem.  And, for those of us who do this work everyday, it will remind us of how important it is that we work as hard as we can to hold health care providers responsible for the harm they cause.

A National Medical Safety Board?

That is what Tennessee's own Jim Hall called for in today's New York Times.  An excerpt from Jim's op-ed piece:

 Because American medicine accepts error as an inevitable consequence of treatment, our hospitals, insurers and government do little to respond to unnecessary deaths. If we are to address the problem in a serious manner, we must first change this culture.

Jim is the former chairman of the National Transportation Safety Board.  Read the entire op-ed piece here.