Tennessee's Three-Year Health Care Liability Statute of Repose Bars Claim

 This case involves the Tennessee Medical Malpractice Act and the application of the three-year statute of repose.  On December 19, 1999, Jessie Bentley suffered severe injuries during labor and delivery by the defendant medical providers.  Suit was not filed until February 1, 2013 and the defendants all immediately moved for dismissal citing the three-year statute of repose and the Calaway decision.  Relying on the Crespo decision, plaintiff defended by arguing application of the statute of repose violated his due process rights and violated the equal protection clause.  The trial court granted the dismissal and the appeal followed. 

The Court of Appeals began its analysis with the proposition that vested rights of action in tort are constitutionally protected property interests and thus they are protected by both the due process and equal protection clauses of the Constitution.  Next, the Court turned to the Calaway decision, 193 S.W. 3d 509 (Tenn. 2005), in which the Tennessee Supreme Court held that a "plaintiff's minority does not toll the medical malpractice statute of repose".   In short, the Calaway Court reasoned that to allow disability or minority to toll the statute of repose would defeat the very purpose of the statute.  However, the Court was mindful of those plaintiffs and lawyers who had relied upon prior decisions and ruled the statute of repose would only have prospective application to cases commenced after December 9, 2005. 

The Court of Appeals also found the plaintiff's reliance on the Crespo decision was misplaced.  In Crespo, approximately one year after the birth of their minor child, the parents hired counsel to pursue a medical malpractice claim.  Relying on prior precedent, the malpractice investigation proceeded at a "relatively leisurely pace, which was perfectly reasonable given the clearly stated law at the time."  Four years after the birth, as the plaintiff's were awaiting responses to requests for medical records and were preparing to file suit, the Calaway decision was rendered and Crespo's case was instantly gone.  Under those circumstances, the Court of Appeals found the Crespos had been denied due process and their right to equal protection were violated.  

However, in this case, the Bentley plaintiffs had waited for seven years after the Calaway decision to file suit.  And unlike the plaintiffs in Crespo, they had not been actively pursuing their case at the time of the Calaway decision.  As such, the Court of Appeals affirmed the dismissal pursuant to the statute of repose. 

The case is Bentley v. Wellmont Health SystemNo. E2013-01956-COA-R3-CV (Tenn. Ct. App.  April 10, 2014).

 

Close Enough for Horseshoes and Hand Grenades: Substantial Compliance Rather Than Strict Compliance in HealthCare Liability Case

This is yet another Tennessee medical malpractice (health care liability) notice case and the issue is whether strict compliance is required for T.C.A. § 29-26-121 (a)(3) and (4), which requires an affidavit from the party mailing the notice. The underlying procedural facts were not in dispute: plaintiff fully and strictly complied with the pre-suit notice provisions of T.C.A. § 29-26-121(a) but failed to simultaneously file an affidavit of the party mailing the pre-suit notice. Instead, the plaintiff filed it after the notice was given and before the defendants filed any responsive pleading. In response, the defendants filed a “gotcha” motion to dismiss arguing the failure to simultaneously file the affidavit required a dismissal of the case.

The trial court disagreed noting the error had been remedied prior to the defendants filing a responsive pleading and ultimately finding the plaintiff had complied with the notice provision of the Act. An interlocutory appeal was granted pursuant to Rule 10 and the Court of Appeals made quick work of the issue relying on the Tennessee Supreme Court’s decision in Stevens ex rel. Stevens v. Hickman Cmty. Health Care Servs., Inc., No. M2012-00582-SC-SO9-CV, 2013 WL 61580000.

In Stevens, the Tennessee Supreme Court had been asked to decide whether strict compliance was required with T.C.A. § 29-26-121(a)(2)(E) (the HIPPA compliant medical authorization section of the Act). Ultimately, the Tennessee Supreme Court held that substantial compliance rather than strict compliance was all that was required for that particular section because the provision was non-substantive and no prejudice had befallen the defendants as a result of the non-compliance.

Likewise, in this case, the Court of Appeals concluded the true “purpose and essence” of the statute was to provide pre-suit notice to a defendant and that had been satisfied. The fact that the affidavit had not been served until shortly after the complaint was filed did not result in any prejudice to the defendants because simply having to proceed with the case or the passage of time could not, on their own, constitute prejudice. Given the preference to resolve cases on their merits, the Court of Appeals held the interests of justice would not be served by dismissing the complaint for failure to simultaneously serve the affidavit and the plaintiffs should be allowed to correct the oversight.

Finally we are beginning to see some notion of fairness find its way into this troublesome area of the law.  There are several notice and certificate of good faith cases pending before the Tennessee Supreme Court, and it needs to continue to send the message that while the statute must be followed substantial compliance is all that is required.  And what do I mean about substantial compliance?  Compliance to the extent that any deficiencies do not result in any substantial prejudice to the defendant. 

In other words, no more gotchas.

The case is Chambers v. Bradley County, No. E2013-01064-COA-R10-CV (March 28, 2014).

Should Defense Counsel Be Permitted to Have Ex Parte Communications With a Patient's Health Care Providers?

Health care liability attorneys for defendants want the right to have private meetings with the doctors of patients who sue health care providers.  Not just with the doctors who were sued, but also the other doctors who treated the patient over the years.

The Tennessee Supreme Court ruled years ago that the patient's privacy rights did not permit this type of activity.  Then, the Tennessee legislature got involved and passed legislation  (T.C.A. Section 29-26-121(f)) that lawyers for medical malpractice defendants maintain opened the door to ex parte communications with the the medical malpractice plaintiff doctors and other health care providers.   The issue are further complicated by the federal law known as "HIPPA," and whether this federal law which recognizes a consumer's right to privacy regarding health care information preempts the Tennessee state statute.

T.C.A. Section 29-26-121(f)  creates a host of problems  and the courts are struggling with how to interpret it.  Attached is a collection of documents on this issue, all generated out of one case presided over by Judge Thomas Brothers of the Circuit Court for Davidson County, Tennessee.  The lawyers for the patient are Matt Hardin, ably assisted on this issue by Amy Farrar.   The defendant in the case is The Vanderbilt University, represented by Steve Anderson.  The case is on its way to the Court of Appeals.

 www.dayontorts.com/uploads/file/Order of Def Motion for Qualified Protective Order.pdf

www.dayontorts.com/uploads/file/2013-12-23 FILED interloc appeal.pdf

www.dayontorts.com/uploads/file/Order- Amended (HIPAA).pdf

www.dayontorts.com/uploads/file/Order on Joint Motion to Alter or Amend.pdf

www.dayontorts.com/uploads/file/Orders on Def_ Motions for Interloc Appeal.pdf

www.dayontorts.com/uploads/file/Order Granting Motion for permission to file interloc appeal.pdf

 If you have a case where the issue of ex parte communication with a plaintiff's treating doctors has been litigated please send me the applicable documents and I will post them here for the benefit of other lawyers struggling with this issue.  I would like to share trial court orders and trial and appellate briefs.  My email address is jday@johndaylegal.com.

Thanks to Matt Hardin for sharing this information with all of us.

UPDATE: On March 28, 2014 the Tennessee Court of Appeals refused to hear the request for an interlocutory appeal in this case, holding that it could not conclude that an interlocutory appeal is necessary to prevent irreparable injury, develop a uniform body of law or prevent needless, expensive and protracted litigation.  Unless review is sought and accepted by the Tennessee Supreme Court , no ex parte communication will be permitted in this case.

Another Day, Another Tennessee Medical Malpractice Notice Case

Long story short, Givens v. Vanderbilt Univ. M2013-00226-COA-R3-CV (Tenn. Ct. App. Feb. 27, 2014), is a medical malpractice case that was dismissed without prejudice for failure to give pre-suit notice, since that is the appropriate remedy identified by the Tennessee Supreme Court in Stevens v. Hickman Community Health Care, Inc., – S.W.3d –, 2013 WL 6158000 (Tenn. Nov. 25, 2013).

Because Plaintiffs did not make any attempt to give pre-suit notice, the Court of Appeals rejected Plaintiffs’ claim that the failure to give notice should be excused for extraordinary cause under Tenn. Code Ann. Sec. 29-26-121(b). Plaintiffs previously used their savings statute by way of a voluntary nonsuit in the case, so the Court of Appeals acknowledged that dismissal without prejudice effectively makes the case time-barred.

The longer version is a painful tour down civil and appellate procedure, with multiple cases, dismissals, appeals, and remands. Suffice it to say that (based on prior appellate opinions applied to this case):

1)      Pre-suit notice is required before any nonsuited case is re-filed under the savings statute.

2)      For cases that were originally filed before the pre-suit notice requirement existed, the plaintiff must comply with valid notice before re-filing after any dismissal without prejudice.

3)      Filing suit without pre-suit notice cannot be fixed by sending notice the same day and later filing a separate lawsuit.

4)      Dismissal without prejudice is the appropriate remedy for a plaintiff’s failure to give notice.

So now what?  The Court said that "any further claims by Plaintiff will be time-barred." 

Sounds like the equivalent of a dismissal with prejudice to me.

Tennessee Medical Malpractice Trial: The Third Time Is Not the Charm

Tennessee health care liability (formerly called medical malpractice) cases are tough.  Tough because there is lots of sympathy for the defendant health care providers.  Tough because the defendants spare no expense and thus they are expensive for patients to try.  Tough because the health care providers hire excellent lawyers.  Tough because rarely does a jury verdict end the case - there is almost always an appeal.

The case of Cullum v. Baptist Hospital System, Inc., M2012-02640-COA-R3-CV, 2014 WL 576012 (Tenn. Ct. App. Feb. 12, 2014).has been tried three times and each of the three times the verdict has been set aside and a new trial ordered.  In the most recent trial, the jury returned a verdict of $7,974,505 against the defendants and the defendants appealed raising a number of evidentiary issues.  The Court of Appeals decided two of them.

First, the trial court refused to allow the defendants to play a video of their expert’s testimony from the previous trial.  Doctors are exempt from subpoena to trial under a Tennessee statute, Tenn. Code Ann. § 24-9-101.  However, the trial court made a distinction between a treating doctor and a doctor testifying as an expert witness at trial, and ordered that the doctor was not exempt from trial and that he must testify live or not testify at all. 

The Plaintiffs, on the other hand, did not argue on appeal that the doctor was not exempt from trial pursuant to the statute.  Instead, the plaintiffs argued that the doctor must be “unavailable” before his prior testimony could be used and that the doctor was not “unavailable” because he was subject to a subpoena for deposition testimony.

The Court of Appeals held that under Tennessee Rule of Evidence 804(a)(5), the expert doctor was unavailable at trial because Tenn. Code Ann. § 24-9-101 exempted him from a subpoena, and therefore that his prior testimony could be used.  The Court of Appeals noted that the court could override that exemption by ordering the doctor to appear, but did not appear to consider the trial court’s ruling that the doctor had to testify live to be an overriding of the exemption. 

The Court of Appeals also disagreed with the trial court’s decision not to allow the doctor to testify live once he made himself available for trial.  The defendants were able to get the doctor to agree to testify live in the midst of trial, but then the plaintiffs complained that they would be ambushed by his testimony because they would have approached their case differently if they has known he would testify.  The trial court ultimately sided with the plaintiffs and ruled that the expert could not testify.  The Court of Appeals found that the expert was unique to the defendants’ case because he actually taught the doctor and the nurse on trial regarding the procedure at issue and that the defendants were prejudiced without his testimony.

The case has been remanded for a new trial. 

So, this child was injured in May of 2000.  Almost fourteen years ago.  About 166 months ago.  The case was filed in 2004.  The first trial was in December of 2007.  The doctor and the doctor's group settled out and the jury found for the hospital.  A new trial was ordered by the trial judge.  The next trial was in June of 2009  and the hospital was found 3.75% at fault.  The Court of Appeals set aside the verdict because the jury applied a quotient verdict. 2011 WL 553768   The third trial was in July of 2012.  And now the case must be retried again.  

The Tennessee Supreme Court will be asked to review this case.  Whether it accepts the request or not will not be known for five or six months.  But, in any event, this case will not be tried until 2015.  

What is the point of reciting the procedural history of this case?  This case has moved appropriately. Sure, I can identify a few months here or there than could have been taken out of this sequence of events, but all in all three trials and two trips to the appellate courts in less than ten years is not that bad.  There are certain courts in this state where this case, handled by certain lawyers, would just have found its way to the first courtroom.  The lawyers involved here, and the judges, are to be commended for working to accomplish what they have in a decade.

But what a tremendous burden for all involved.  

Every complex trial is a long trial. And it is hard to try a long case and avoid reversible error of some type.  It truly is.  To do so it takes very good, ethical lawyers.  It also takes experienced thoughtful judges, jurors who follow the rules, and appellate judges who understand the law.  

In other words, it is dang near impossible, especially when the money involved is so great that no stone is left unturned by any party.

I wish I knew how to fix this.

I do not.  I do know that the problem will be made worse if we have inexperienced lawyers find their way to the Bench as trial or appellate judges.

 

Strange Facts, Familiar Ending -- Another Tennessee HealthCare Liability Case Dismissed For Failure To Comply With The Notice Provision

On November, 9, 2009, plaintiff was an emergency room nurse at Erlanger Hospital. During her shift, a certified nurse anesthetist employed by the defendant was administering anesthesia to a patient. Near the end of the procedure, the patient awoke prematurely and was agitated. The patient tried to extubate herself and rise from the table. Plaintiff noticed the situation and lunged toward the patient in an attempt to save her from falling and otherwise injuring herself. As a result, plaintiff sustained a back injury. So, it was not the patient bringing the healthcare liability claim, but a third-party nurse working nearby.

On September 27, 2010, plaintiff sent defendant a notice of intent to sue letter pursuant to T.C.A. § 29-26-121, and the return receipt was dated September 30, 2010.   Only 38 days after the notice of intent letter was sent, plaintiff filed her complaint.  Two and a half years later, defendant moved for summary judgment alleging plaintiff had failed to comply with the notice requirements of T.C.A. § 29-26-121.   Specifically, plaintiff had filed her suit less than 60 days after sending the notice of intent to sue. Plaintiff did not dispute her non-compliance with the notice provision but responded by claiming the defendant had waived the defense of failure to comply with T.C.A. § 29-26-121 by failing to timely raise it.

The trial court granted the defendant's motion for summary judgment. On appeal, the plaintiff renewed the waiver argument and also claimed T.C.A. § 29-26-121 conflicted with Tennessee Rule of Civil Procedure 18.01, Joinder of Claims (A party asserting a claim to relief as an original claim, counterclaim, cross-claim, or third-party claim, may join, either as independent or as alternate claims, as many claims, legal or equitable, in contract or tort, as the party has against an opposing party.)

The Court of Appeals quickly disposed of both issues. As for the waiver issue, the clear language of Tenn. R. Civ. P 12.08 allows a party to present the defense of failure to state a claim in a motion, in an answer, in an amendment to an answer, in a later pleading (if one is permitted) or at the trial on the merits. Since the defendant could have waited and raised the issue at trial, the Court of Appeals concluded the defendant had not waived the notice defense by conducting discovery and later presenting it in a motion for summary judgment.  

As for the Rule 18.01 issue, the Court of Appeals declined to address it as plaintiff had failed to raise the issue in the trial court.

Tragic, isn't it, that form has trumped substance in our law?

The case is Blankenship v. Anesthesiology Consultants Exchange, P.C., E2013-01974-COA-R3-CV (Tenn. Ct. App. Feb. 26, 2014).

 

Tennessee Health Care Liability Notice Statute and Its Interaction with the Savings Statute

The health care liability notice statute continues to supply our courts with work that has nothing to do with the merits of the claim, defense lawyers with increased income for simply pivoting,  and plaintiff's lawyers with heartburn.

The plaintiffs in Johnson v. Floyd, No. W2012-00207-COA-R3-CV (Tenn. Ct. App. Feb. 6, 2014) filed a medical malpractice suit in December 2004. More than five years later, the plaintiffs entered an order of voluntary dismissal without prejudice on April 27, 2010.

In the interim, Tennessee experienced substantial legislative reform that made filing lawsuits more difficult for victims of medical malpractice. The resulting pre-suit notice requirements that went into effect in 2009, found in Tenn. Code Ann. §§ 29-26-121 and -122, have been discussed on this blog in multiple previous posts. In sum, a plaintiff must satisfy certain notice requirements at least 60 days before filing a medical malpractice suit (re-labeled “health care liability” suit under the legislative reform), file a certificate of good faith with the complaint.  In exchange for "proper "compliance with notice section with the original statute  the one year statute of limitations for filing suit is extended by 120 days. 

Meanwhile, Tennessee also has a “saving statute” which allows plaintiffs who originally filed complaints within the applicable statute of limitations to re-file their suit within one year from any voluntary dismissal without prejudice.

The critical issue in Johnson was whether the saving statute should be extended by 120 days through compliance with the medical malpractice notice requirements. Coincidentally, the Tennessee Supreme Court recently answered this question in the affirmative on December 12, 2013, in Rajvongs v. Wright, 2013 WL 6504425 (Tenn. 2013).

Just like the plaintiffs in Rajvongs, the Johnson plaintiffs are “transitional plaintiffs” in that they filed their initial complaint prior to the effective date of Tenn. Code Ann. § 29-26-121, dismissed their original action, and refiled their lawsuits after the effective date of the statute. The voluntary dismissal was entered on April 27, 2010. The plaintiffs gave written notice per -121 on April 11, 2011, and the complaint was re-filed on August 24, 2011, which is within one year and 120 days from the date the voluntary dismissal was ordered. Because Tennessee law now clearly extends the savings statute for 120 for transitional plaintiffs who comply with the pre-suit notice requirements, the Johnson court ruled that the second complaint was timely filed.

The "Error in Judgment" Rule Exposed - and Rejected

The "error in judgment" rule in Tennessee medical malpractice cases is perhaps the most unfair principle of the common law of torts.  The rule was conceived in recognition of the fact that there may be more than one right way to approach a medical issue - the "two schools of thought" principle.  This narrow application of the rule makes sense.  For example,  in most cases, a surgeon can do a cervical laminectomy utilizing a posterior approach or an anterior approach.  Both carry certain risks and have certain benefits, but as long as informed consent is obtained and both approaches are reasonable for that patient, a surgeon should not be held accountable for doing one approach rather than the other.

But the error in judgment rule has been bastardized to give it the potential to gut most medical malpractice claims in Tennessee.  Here is the jury charge on the subject in Tennessee:

 By undertaking treatment a physician does not guarantee a good result.  A physician is not negligent merely because of an unsuccessful result or an error in judgment.  An injury alone does not raise a presumption of the physician's negligence.  It is negligence, however, if the error of judgment or lack of success is due to a failure to have and use the required knowledge, care and skill as defined in these instructions.

T.P.I.- Civil 6.12

See the problem?  The instruction gives defense counsel the ability to argue that the health care provider gets a get-out-of-jail free for failure to follow the standard of care IF the violation involved any judgment whatsoever.  And, since by definition judgment is a key component of what most professionals do every day, the medical judgment rule has been morphed into the "escape responsibility for malpractice" rule.

This opinion from Pennsylvania describes all of this and prohibits the application of error in judgment rule in virtually every case.  (It leaves open the issue in true "two schools of thought" cases - see FN 15.)  The opinion has a nice summary of law from around the country on this issue and serves as a great starting point for research for those seeking to overrule existing law in Tennessee.

Tennessee should do the same.  I encourage all lawyers who represent patients in Tennessee health care liability cases to preserve this issue for appellate review.  The "error in judgment" rule needs to be relegated to the ash heap of history.

Click on the link for Tennessee cases on the "error in judgment" rule.

Another Tennessee Health Care Liability Case Dismissal For Notice Omission

This is a healthcare liability case with the central issues being (1) compliance with the notice provisions of the statute; and (2) the statute of limitations.  Here is the procedural history in the trial court: 

  • September 25, 2009   - Decedent presented to the emergency room at Defendant Parkwest Hospital 
  • October 4, 2009 -  Decedent died.  
  • September 20, 2010 - Plaintiff sent notice of suit to Parkwest.  However, the medical authorization form accompanying the notice did not authorize the release of information to Parkwest and the release was expired.
  • December 10, 2010 - Plaintiff files first healthcare liability complaint alleging wrongful death.  But, the complaint does not have a statement of compliance with T.C.A. 29-26-121 or provide the documentation specified in T.C.A. 29-26-121.  Parkwest moves to dismiss.  
  • August 9, 2011 -  The trial court enters an order allowing plaintiff to voluntarily dismiss her case without prejudice. 
  • May 4, 2012 - Plaintiff files second healthcare liability complaint and Parkwest files a motion to dismiss based on statute of limitations.   
  • February 13, 2013 - The trial court grants Parkwest's motion to dismiss and plaintiff appeals. 

The primary issue in the Court of Appeals was whether plaintiff's original suit was timely filed.  Since there was no dispute that plaintiff had not filed his original complaint within the general one year statute of limitations for healthcare liability actions, the only issue was whether plaintiff was entitled to avail himself of the 120 extension provided by T.C.A. 29-26-121.  Plaintiff conceded he had not complied with the dictates of T.C.A. 29-26-121 since the notice provided did not authorize the release of information to Parkwest and was expired.  Moreover, the plaintiff had not demonstrated "extraordinary cause" for his non-compliance.  In fact, plaintiff did not even argue extraordinary cause.  The only explanation for the failure to comply with the statute was a comment made at the hearing on the original motion to dismiss in which plaintiff's counsel indicated the failure to comply with the statute was a "clerical error."   

The Court of Appeals concluded the original complaint was not filed within the statute of limitations because plaintiff could not avail himself of the 120 day extension provided by T.C.A. 29-26-121.  Because the first healthcare liability case was not filed within the statute of limitations, the plaintiff could not use the savings statute, T.C.A. 29-28-105, to file the second healthcare liability complaint.  The case was dismissed.

It will take another nine or ten months before the Tennessee Supreme Court has an opportunity to give us clear guidance on multitude of issues raised by the notice and certificate of good faith statutes.  In the meantime, it is prudent to study the statue carefully and assume that precise compliance will be required.  Crazy, I know, but it will help you sleep at night.

The case is Byrge v. Parkwest Medical Center, No. E2013-00927-COA-R3-CV (Tenn. Ct. App. Jan. 24, 2013).  

 

Failure of Court to Strike Juror For Cause Results in Reversal Of Health Care Liability Verdict

The Kentucky Supreme Court has reversed a verdict for the defendants in a medical malpractice (health care liability) case because the trial judge failed to grant a request of the patient's lawyer to strike two jurors for cause.

The reversal was granted notwithstanding the fact that the lawyer for the plaintiff was able to challenge one of the jurors that should have been dismissed for cause with a peremptory challenge.  Why?  Because the plaintiff ran out of peremptory challenges and there were two other jurors that they would have removed had they had any other peremptory strikes remaining.

A majority of the court did not believe it was necessary to show any actual prejudice to the party.   Rather, the court determined that when a party is forced to use a peremptory challenge on a juror that should have been dismissed for cause by the trial court that harm has been done.

There were two jurors who should have been stricken for cause.  The first was a female patient of an expert witness for the defendants; the witness had delivered two of her children.  The second juror had a son who worked for the parent of the corporate defendant and expressed some concern about his ability to be impartial.

The case is Grubb v. Norton Hospitals, Inc., No. 2010 - SC - 000532-DG (Kentucky S. Ct. May 23, 2013).

Counsel are urged to read the dissent, which takes issue of the failure of counsel to more fully develop the challenge for cause.  

The law of jury selection is an important part of trial practice, and knowledge of the law can not only help secure a jury verdict but can also help reverse an adverse verdict if the proper record is made.  

Motions to Alter or Amend and Notices of Appeal - Timing is Everything Under Tennessee Law

Tennessee Court of Appeals rules that Tennessee courts lose jurisdiction to reconsider dismissal when an aggrieved party fails to take proper action within the limited 30-day window after entry of final judgment.

In Hailey v. Wesley of the South, Inc., d/b/a Wesley at Dyersburg, No. W2012-01629-COA-R3-CV (Tenn. Ct. App. Nov. 19, 2013),the plaintiffs filed suit for wrongful death, medical negligence, negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress stemming from the care and treatment of the decedent, Beatrice Jackson. Defendant filed a motion to dismiss citing the plaintiff’s failure to file a certificate of good faith within ninety days of the filing of the complaint, as then-required by Tenn. Code Ann. § 29-26-122 (note: current law requires contemporaneous filing of certificate of good faith in health care liability actions requiring expert testimony). Not finding any adequate basis for the plaintiff’s failure to comply with the certificate of good faith requirement, the circuit court granted the motion and on April 22, 2010, dismissed the entire case finding that all claims were for medical malpractice and required a certificate of good faith. A timeline of the ensuing procedural events is as follows:

  • ·       May 21, 2010 – Plaintiff files first motion to alter or amend arguing that the court erred in finding that all of her claims arose from charges of medical malpractice.
  • ·       May 21, 2010 – Plaintiff also files first notice of appeal.
  • ·       July 19, 2010 – Plaintiff’s motion to alter or amend is heard and court orders parties to file memorandums on whether the Medical Malpractice Act governs the plaintiff’s claims.
  • ·       August 3, 2010 – Defendant files a supplemental memorandum.
  • ·       August 12, 2010 – After the plaintiff fails to file a memorandum, the court enters order denying the plaintiff’s motion to alter or amend.
  • ·       August 23, 2010 – The trial judge and attorneys hold a conference call and plaintiff’s counsel claims to have authority that would convince the court to grant the plaintiff’s motion to alter or amend, resulting in the trial court instructing plaintiff’s counsel to immediately file a second motion to alter or amend along with the claimed convincing authority.
  • ·       August 30, 2010 – Plaintiff files second motion to alter or amend
  • ·       August 30, 2010 – Plaintiff also files a second amended complaint, without leave, attempting to assert new claims of negligence per se and violation of the Tennessee Adult Protection Act
  • ·       September 8, 2010 – The trial court denies plaintiff’s second motion to alter or amend, noting that the plaintiff failed to argue any new authority other than to mention the Tennessee Adult Protection Act, which was not cited in the original complaint.
  • ·       June 14, 2011 – The Court of Appeals orders the plaintiff to show cause as to why her appeal should not be dismissed for failure to timely file a notice of appeal, noting that the circuit court clerk’s only record of the notice of appeal was received by facsimile, which is not permitted under Tenn. R. Civ. P. 5A.02.
  • ·       August 11, 2011 – Court of Appeals dismisses plaintiff’s appeal for lack of jurisdiction because the plaintiff provided no proof that the notice of appeal was mailed to the trial court clerk for filing, as the plaintiff had alleged.
  • ·       August 30, 2011 – Court of Appeals denies the plaintiff’s petition for rehearing.
  • ·       December 15, 2011 – Plaintiff files third motion to alter or amend in the trial court, based on the same purported new authority that would convince the trial court that the plaintiff’s claims were not governed by the Medical Malpractice Act.
  • ·       May 9, 2012 – The trial court denies plaintiff’s third motion to alter or amend, ruling that the trial court lost all subject matter jurisdiction after the appeal without remand by the Court of Appeals.
  • ·       June 8, 2012 – Plaintiff files second notice of appeal, prompting this appeal.

The main issues on appeal concerned: (1) whether the trial court correctly dismissed the plaintiff’s third motion to alter or amend for lack of subject matter jurisdiction; and (2) whether the Court of Appeals had subject matter jurisdiction to entertain the appeal.

Governing law holds that the date of entry of a final judgment in a civil case triggers the start of the thirty-day period in which the aggrieved party must file either a post-trial motion or a notice of appeal. Ball v. McDowell, 288 S.W.3d 833, 836 (Tenn. 2009). A timely-filed motion to alter or amend tolls commencement of the thirty-day period for filing a notice of appeal until the trial court grants or denies the motion. Id. A trial court lacks subject matter jurisdiction to rule on a post-trial motion if it is not timely, while the appellate court similarly lacks subject matter jurisdiction if the notice of appeal is not timely.

The Hailey court found that the final, operative judgment occurred when the trial court dismissed the entire case on April 22, 2010. The first motion to alter or amend filed on May 21, 2010, was timely, as was the second motion to alter or amend filed at the instruction of the trial court on August 30, 2010. However, the Court of Appeals ruled that the third motion to alter or amend filed on December 15, 2011, did not timely follow an order affecting the plaintiff’s substantive rights. Thus, the third motion was an impermissible successive Rule 59 motion that did not toll the thirty-day appeal period. See Parks v. Mid-Atlantic Finance Co., Inc., 343 S.W.3d 792, 799 (Tenn. Ct. App. 2011) (“Because Rule 59 motions delay appeals and finality, successive Rule 59 motions are not allowed.”). An untimely post-trial motion meant that the trial court lacked subject matter jurisdiction to rule on the motion. Furthermore, the Court of Appeals lacked jurisdiction because the notice of appeal was not filed either within thirty days of the final judgment on April 22, 2010, or within thirty days of the trial court’s ruling on a timely filed motion to alter or amend. Accordingly, the plaintiff’s appeal was dismissed. The Court of Appeals also found the appeal frivolous and awarded the defendant fees and costs, including attorney fees.

Among the many lessons to take from Hailey are (1) make sure to understand when a final judgment has been entered in your case, (2) pay close attention to Tennessee’s procedural rules for filing and know which documents can be filed by facsimile, and (3) most obviously, after the entry of an adverse final judgment make certain that your notice of appeal is filed within  thirty days thereafter or, if you choose to file a motion to alter or amend the judgment, within thirty days after the trial court rules on the motion.

 

Deadline for Filing Medical Malpractice Claims Against the Federal Government in Tennessee, Kentucky, Ohio and Michigan

There is a new case on how one establishes the deadline for filing medical malpractice claims against the military hospitals and other health care providers associated with the federal government under the Federal Tort Claims Act (FTCA).  The case applies to FTCA claims arising in Tennessee, Kentucky, Ohio, and Michigan.

Federal law is different that state law.  The general rule in Tennessee is that a person or entity that is going to be sued for medical malpractice (now called health care liability)  must be given written notice in the manner prescribed by law within one year of the date of the negligent act or omission causing an injury.  This is, I repeat, the general rule:  at actual rule is more complicated.

The Tennessee rule does not apply in actions against the hospitals and other health care providers of the federal government under the FTCA.   In such cases, notice must be given within two years after the claim accrues. Once again, the actual rule gets more complicated, but "two years" is the basis rule.

A new decision from the United States Court of Appeals for the Sixth Circuit flushes out the rule in more detail and helps us understand exactly when the two year period begins to run.  Jerry Ambergey died while receiving medical treatment at a health care facility operated by the federal government.  His wife Delma was promptly advised of his death.  The day before the two year anniversary of Jerry's death Delma mailed a claim form to the government.  The government received the claim form four days later.  The government claimed that Delma missed the deadline - that the two year period to give notice began on the date of Jerry's death and that its failure to receive the claim form within two years barred Delma's claim.  Delma argued that the two year period did not begin to run until several months later, after she received the autopsy report indicating that the  cause of death was an allergic reaction to the intravenous contrast dye.   Thus, Delma argued, by giving notice when she did she actually gave notice several months earlier than the deadline.

The appellate court noted as follows:

The government is thus left with only two facts that arguably support its position: (1) the EMS personnel provided Bolling, the coroner, with information that Bolling determined was in conflict with what the Amburgey family reportedly heard from Dr. Alam; and (2) because of that conflict, Bolling ordered that an autopsy be performed. Comparing these facts to those in cases that were deemed sufficient to trigger the accrual of tort claims, however, leads us to conclude that Delma’s wrongful-death claim did not accrue on the date of Jerry’s death. 

The court said that

that “[p]atients may reasonably rely on assurances by physicians” with respect to injuries and their causes. [citation omitted] This principle is applicable in the present case, where Dr. Alam told Delma that Jerry had died of natural causes. Nothing preceding the coroner’s autopsy report contradicted Dr. Alam’s assertion that the cause of death was natural. To be sure, the EMS personnel indicated to Bolling that they had been able to intubate Jerry, a fact that Bolling determined was in conflict with Dr. Alam’s explanation that Jerry had aspirated a blood clot. But neither Bolling nor anyone else indicated to Delma that they had any suspicion that Jerry’s death was related to the medical treatment he had received. 

Thus, the court held that the notice given by Delma was timely and the case could proceed on the merits.

The opinion turns on the facts of this case, and thus one should endeavor to give appropriate notice to the appropriate federal agency within two years of the event causing an injury or death.  Given notice later risks a later determination that notice was given too late or, at best, can mean a multiple year delay in moving forward with the case because of a fight over whether the claim was filed on time.

The case is Ambergey v. United States of America, No. 12-6279 (6th Cir. Oct. 24, 2013).

 

2012 Tennessee Medical Malpractice (Health Care Liability) Statistics - Part 2

More of our coverage of the 2013 Tennessee Health Care Liability Report issue by the Tennessee Department of Commerce and Insurance reflecting medical malpractice claims information for the year ending December 31, 2012.

As mentioned in Part 1 of this series, the total damages paid to claimants in 2012 was $90,520,000, for an average of $208,000 per claimant.  Here are the numbers for the previous four years.

Total Payments to Claimants
2008 2009 2010 2011 2012
119,300,00 111,000,000 109,000,000 114,000,000 90,520,00

Thus, we see an almost 25% decline in the total dollars paid to claimants in the last five years.

This chart gives us an understanding of the severity of injuries in the claims paid in 2012:

Severity of Injury
Injury  Number Paid   Amount Paid
Death  124 $51,403,476
Major Temporary 72 $11,855,186
Minor Temporary 72 $5,436,395
Significant Permanent 23 $7,732,010
Insignificant 21 $338,185
Emotional Only 3 $103,804
Major Permanent 11 $4,116,000
Grave Permanent  13 $7,003,500
Minor Permanent  16 $1,222,309
     

 Now let's add a few more columns of data to get a clear understanding of what is going on in the medical malpractice claims world in Tennessee:

Severity of Injury - Paid and Unpaid Claims Data - 2012
Injury Total Number of  Claims Paid Claims %  Paid    of Total Claims Unpaid Claims  % Unpaid of Total Claims Total Claim Payments Average Amount Per Paid Claim
Death  549  124  23%  335  77%  $51,403,476  $414,544
Major Temporary  277  72  26%  205  74% $11,855,186   $164,655
Minor Temporary  263  72  27%  191  73% $5,436,395   $75,505
Significant Permanent  128  23 18%  105   82%  $7,732,010  $336,174
Insignificant  90  21 23%   69  77%  $338,185  $16,104
Emotional Only  88  3  3%  85  97%  $103,804  $34,601
Major Permanent 67   11  16%  56  84%  $4,116,000 $374,182 
Grave Permanent  63  13  21%  50  79%  $7,003.500  $538,731
Minor Permanent  52  16  31%  36  69%  $1,222,309  $76,394

Let this data be a warning to inexperienced medical malpractice lawyers:  severe injury and death do not result in settlements or judgments.   More than 70% of the time allegations involving that type of injury result in no payment whatsoever to the claimant.  

The average settlement of per claim data on some of these categories is quite a surprise.  To be sure, some number of cases involve two or more claims, and thus the settlement or judgment would tend to be higher.  But, still, the numbers here are lower than I would expect.

There will be more data in the our next post, Tennessee Medical Malpractice (Health Care Liability) Statistics - Part 3.

Defendant Doctor Denied Waiver of Contiguous State Rule for Expert Witness in Tennessee Medical Malpractice Case

Tennessee law has an unusual rule concerning expert witnesses in health care liability cases - the "contiguous state rule."  Usually, the rule hurts patients because it limits the pool of expert witnesses available to testify on their behalf.  Sometimes, however, it comes back to bit health care providers.

An ophthalmologist in a medical negligence case requested that the trial court waive the expert competency requirement known as the contiguous state rule  under Tenn. Code Ann. § 29-26-115(b).  Under this rule, in order for an expert to testify in a Tennessee medical malpractice case, the expert must have been licensed to practice and did practice in a relevant specialty in Tennessee or a contiguous bordering state within the year preceding the date of the alleged malpractice. This requirement can be waived by a court when the court “determines that the appropriate witness otherwise would not be available.” Tenn. Code Ann. § 29-26-115(b).

In Gilbert v. Wessels, E2013- 00255-COA-R10-CV (Tenn. Ct. App. Nov. 18, 2013), the defendant ophthalmologist’s attorney spent approximately 35 hours searching for an expert and contacted 13 doctors in Tennessee and contiguous states before finding an expert in Florida. The defendant argued that this was sufficient to warrant a waiver of the contiguous state rule and also argued that the Florida expert had actual experience performing the procedure at issue and therefore was more qualified to testify than an expert who might meet the contiguous state requirements but had no experience with the procedure. 

The plaintiff opposed the defendant’s efforts to secure a waiver. The plaintiff’s attorneys filed an affidavit demonstrating that more than 2,300 ophthalmologists practice in Tennessee and contiguous states, and argued that contacting only 13 of these physicians was not sufficient to require a waiver of the rule. 

The Tennessee Court of Appeals upheld the trial court’s denial of a waiver finding that contacting only 13 doctors out of more than 2,300 was only a cursory effort to find an appropriate expert and did not constitute a diligent search.

The court also found that the defense had unnecessarily limited its search to only doctors who had performed the procedure at issue. Relying on Shipley v. Williams, 350 S.W.3d 527 (Tenn. 2011), the court reiterated that an expert is not required to have actual experience in performing the procedure at issue. The court also explained that a trial court is not required to waive the contiguous state rule just because an expert outside of the required geographical area is more qualified than an expert found in this state or a contiguous state.

So, how much of an effort is enough?  The answer to that question depends on the circumstances of each case.  Clearly, however, both plaintiff's lawyers and defense lawyers now have another case to point to on the issue, although at the end of the day the appellate courts will usually defer to the discretion of the trial judge.

See other information about the Tennessee contiguous state rule for expert witnesses in medical malpractice cases by clicking on the link.

2012 Tennessee Medical Malpractice (Health Care Liability) Statistics - Part 1

The Tennessee Department of Commerce and Insurance has released the 2013 Health Care Liability Report.  Unfortunately, the report bears the date on which it is issued rather than the year the data used to generate the report is based.  

In any event, the data confirms what most of us know about the state of health care liability litigation in Tennessee.  Medical malpractice claims have dropped substantially since 2008 when the notice and certificate of good faith statutes went into effect.

Claims Pending At End of Calendar Year
2008 2009 2010 2011 2012
5780 5030 4082 3950 3927

Here is data on the number of paid claims for the period from 2010 through 2012:

Paid Claims
2010 2011 2012
451 437 436


The number of claims closed without payment is about 80% of closed claims.  Stated differently, for every five claims that are opened four are later closed with no payment to the patient.

Claims Closed Without Payment
2010 2011 2012
2707 1895 1775

So, if there are 3927 pending claims at the end of 2012 and historically payments have been made to patients in 20% of claims, that means that a payment to a patient will be made in about 800 of the pending claims.

Notice that in the last three years the number of closed claims and end-of-year totals has dropped substantially.  This is consistent with complaints we are hearing from the defense bar - they have seen that their case inventory is dropping because the number of new case filings has dropped.

Remember that "claims" are different than lawsuits.  Not every claim results in a lawsuit, and multiple claims can result in one lawsuit.  Here is the data on filings of health care liability cases for the last few fiscal years ending on June 30.

Health Care Liability Filings (Year Ended June 30)

2008 2009 2010 2011 2012 2013 
537 426 324 343 369 385

 

So we are seeing some increase in filings, although they are still down about 30% from where they were six years ago.  What is going on?

I am not sure.  There has been an increase in population and that would impact the number of patients and thus the number of possibilities for malpractice to occur.  Financial pressure on the health care industry may be impacting quality of care.  Several defense lawyers have told me that they are seeing an increase claims brought by inexperienced lawyers.  Of course, the defense bar secretly loves these cases - these lawyers are unlikely to have the savvy or money to bring even a good case across the finish line, much less actually win the case.  If inexperienced lawyers are bringing more cases we should see the results of that in an increase in unpaid claims.

The total damages paid on health care liability cases in 2012 was $90,520,000.  Since we know that there were 436 claims paid in 2012, the average payment per claim was $208,000. 

In 2011, the total amount paid was $114,000,000, so the total payments dropped over 20%.  

I will share more data in my next post "2012 Tennessee Medical Malpractice (Health Care Liability Statistics - Part 2."

 

Tennessee Nursing Home's Arbitration Agreement Unenforceable

These days, almost all Tennessee nursing homes and rehabilitation centers include arbitration agreements in their admission documents. In this case, enforceability became an issue because the arbitration agreement was signed by the patient's sister who did not have a power of attorney. Moreover, it was undisputed the patient did not have any mental competency issues. However, the nursing home argued sister had implied and apparent authority to bind the patient. 

Marie Farmer was a 36 year old woman with multiple health issues including diabetes and end-stage renal disease. Over the course of several years, she had been in and out of various hospitals and medical facilities and her sister, Angelica Massey, had typically accompanied her and completed the necessary paperwork and Farmer's admission to defendant's nursing home was no different. While a patient at the nursing home, Farmer died allegedly from complications of hypoglycemia and her husband and minor children brought a wrongful death action. The nursing home then sought to enforce the arbitration agreement.

Since implied authority has been defined as "actual authority circumstantially proved, or evidenced by conduct, or inferred from a course of dealing between the alleged principal and the agent", defendant argued Massey had implied authority to sign the arbitration agreement since she routinely performed that function for her sister. The Court of Appeals disagreed. While Farmer knew Massey was signing admission documents for her, there was no evidence to establish Farmer knew an arbitration agreement was contained within those documents as even the nursing home's representative testified it was not discussed in Farmer's presence. Moreover, the undisputed testimony was the arbitration agreement was not mandatory. In other words, admission was not conditioned upon signing it. Given its optional nature, knowledge of its existence and an acquiescence to its terms was necessary, and evidence of that was absent in the record.

The court also rejected the nursing home's argument that Massey had apparent authority to execute the arbitration agreement because again there was no evidence Farmer was aware an arbitration agreement was contained within the admission paperwork.   As such, the Court concluded there was no "overt affirmation of agency" by which to conclude Farmer had authorized Massey to execute the optional arbitration agreement.

This is the right result. The waiver of the constitutional right to a jury trial is no small matter. So, if a nursing home or any other defendant wants to enforce an arbitration agreement, then they should ensure it is either signed by the person against whom it will be enforced or by someone with a power of attorney or other legal authority to do so.

One final comment: The defendant in this case tried to characterize its conduct here as a failure to "dot  i's and cross  t's" and wanted its sloppiness excused. I can't help but wonder if it would have been so forgiving of the plaintiff if the pre-suit notice had been less than perfect. 

The case is Farmer v. South Parkway Associates, L.P., W2012-02322-COA-R3-CV (Tenn. Ct. App. Sept. 25, 2013).

New Decision on Pre-Suit Notice in Tennessee Medical Malpractice Case

Pre-suit notice in Tennessee health care liability cases continues to be a huge problem for victims of medical malpractice. In this case, Plaintiff sent notice, included all of the necessary forms and paperwork, and attached it to the complaint – but it turned out to be sent to the wrong legal entity, one who had a business name extremely similar to the company who provided the care at issue in the case.

Plaintiff’s brother was a patient at a mental health facility who died allegedly due to substandard care.  Plaintiff sent pre-suit notice to Foundation, who she thought ran the facility, and filed suit against Foundation after waiting the requisite 60 days.  Foundation’s answer, however, said that it was a fund-raising company that provided no health care whatsoever.  Foundation’s answer stated that Cooperative, a related company, was actually who provided care to Plaintiff’s brother. 

Plaintiff moved and was granted leave to amend.  The Court of Appeals described it as a Tennessee Rule of Civil Procedure 15.03 motion to correct the misnomer.  However, it is unclear from the opinion if that is how Plaintiff herself described her motion.  It is also unclear if the motion was to add Cooperative as an additional defendant based on Foundation’s answer, or if the motion was to substitute Cooperative for Foundation.

Cooperative moved for summary judgment based on not receiving pre-suit notice of the claim.  The trial court granted dismissal under Tenn. R. Civ. P. 12 based on Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 307 (Tenn. 2012). 

On appeal, Plaintiff pointed out that nothing in the pre-suit notice statute actually says it has to be sent to whoever will ultimately be the correct defendant.  Instead, T.C.A. § 29-26-121(a)(1) merely says that it must be given “to each health care provider that will be a named defendant.” Plaintiff argued that she did just that – sent notice to the only defendant she named – and that she therefore complied with the statute.

The Court of Appeals rejected Plaintiff’s argument, saying “[i]t is axiomatic that the proper party be given pre-suit notice under 29-26-121(a)(1).”  The Court of Appeals also held that Rule 15.03 will not allow an amended complaint that corrects the name of the defendant to relate back, because it would not correct the pre-suit notice itself.  In a nutshell, the Court of Appeals held that if the name on the pre-suit notice is incorrect, nothing can be done in litigation to fix it.  In this case, Foundation and Cooperative even have the same registered agent, so the correct individual even received the pre-suit notice; it just had the wrong business name written on it.

This harsh result was not mandated by the statute and should be reversed by the Tennessee Supreme Court. 

First, Plaintiff was correct that the statute only requires notice be given to those who will be sued; not to exactly the correct business name of the defendants who will ultimately be on a verdict form after discovery has ensued.  What if Plaintiff had given pre-suit notice to Cooperative, but misspelled it as “Coperative”?  Is that completely uncorrectable for all time?  Is that what the legislature intended by passing the notice statute?  Where is that possibly indicated in a statute that is supposed to be strictly construed as in derogation of the common law?  A misnomer should be fixable in any event, let alone where the defendant actually gets the notice.

Second, shouldn’t Plaintiff’s amended complaint have been treated as a response to an allegation of potential fault against a non-party, and thus timely under T.C.A. § 20-1-119?  If an existing defendant alleges that a non-party is actually responsible for the conduct alleged in the complaint, the plaintiff can amend to sue that non-party under T.C.A. § 20-1-119 notwithstanding the statute of limitations may have run since the complaint was originally filed.  In Mann v. Alpha Tau Omega Fraternity, 380 S.W.3d 42 (Tenn. 2012), the Supreme Court held that an answer simply attaching a list of an organization’s members to an answer was sufficient to trigger 20-1-119 when the plaintiff’s complaint already said all of those members were negligent.  In Austin v. State, 222 S.W.3d 354 (Tenn. 2007), the Supreme Court held that an answer that says the State of Tennessee is actually who placed a sign, but did not say that the State did anything wrong in the process, was sufficient to trigger 20-1-119 when the plaintiff’s complaint already said the sign was placed negligently.  In Browder v. Morris, 975 S.W.2d 308 (Tenn. 1998), the Supreme Court held that a simple allegation in an answer that the defendant was on the job for a company at the time of an auto accident was sufficient to trigger 20-1-119, even if the allegation did not say the company did anything wrong itself. 

In every one of those examples, the defendant’s answer did not in any way allege that a non-party had done anything wrong.  In Mann, it was just listing the members of the defendant organization.  In Austin, it was just stating that somebody else owned what the plaintiff claimed was dangerous.  In Browder, it was just stating that the defendant was working for an employer at the time.  Nonetheless, in every one of those cases, the Tennessee Supreme Court held that T.C.A. § 20-1-119 applied to allow the plaintiff to amend his or her complaint to add the non-party in response to the allegation.  (Click on the link to read other Tennessee cases applying Tenn. Code Ann. Sec. 20-1-119.)

Here, you have Foundation (an existing defendant) saying it was actually Cooperative (a non-party) who did what Plaintiff claimed was wrong.  There is absolutely no difference between that and the litany of situations in which the Supreme Court has applied T.C.A. § 20-1-119.  Even if the courts were for some reason wary of construing notice as properly given against the correct defendant, the case should still not be dismissed because the plaintiff has a legitimate basis to have that defendant before the court.

The case is Shockley v. The Mental Health Cooperative, Inc., M2013-00494-COA-R3-CV (Tenn. Ct. App. Nov. 4, 2013).  The opinion was written by Judge Stafford - the Western Section of the Court of Appeals heard this Middle Section case.  

 

 

 

Tennessee Medical Malpractice Filings Remain Level and Rare

Tennessee medical malpractice (now called "health care liability") cases remained essentially flat for the fiscal year ending June 30, 2013, according to data recently released by the Administrative Office of the Courts.

For the twelve month period ending June 30, 2013, there were a total of 385 health care liability actions filed in Tennessee state courts.  This number compares with 369 cases filed for the twelve month period ending June 30, 2012 and 343 cases filed for the twelve month period ending June 30, 2011.


Medical malpractice filings took a big hit effective October 1, 2008, when the first round of legislation concerning pre-suit notice and certificates of good faith went into effect.     For the fiscal year ending June 30, 2008, there were 537 medical malpractice cases filed and for the prior year (ending June 30, 2007) there were 638 cases filed.  So, when one compares filings from the year ending June 30, 2007 with the year ending June 30, 2013, filings are down about 40%.

Here are the filings in the judicial districts containing the largest cities:

County                       2012-13        2006-07

Shelby County                 119            163

Davidson County               58            166

Knox County                      40             60

Hamilton County                 27            20


(Can you believe those Davidson County numbers?  The reduction is so shocking that   one has to wonder whether there is a reporting error in one year of the other.)

Now, on the last point of my title (filings are rare).  How can I say that?  Well, if one accepts the figure that some 98,000 people die in hospitals every year as a result of medical errors (and it is disputed as being too high or too low) one would expect that just under 2000 people die as a result of errors in Tennessee hospitals each year (since we have about 2% of the nation's population).  We know (or at least I guess, based on three decades of experience doing this work) that number of injuries as a result of medical errors greatly exceed the number of deaths.  Yet we have only 385 health care liability filings, which means that filings are made on a very small percentage of incidents.

"Substantial Compliance" and the Tennessee Health Care Liability Pre-Suit Notice Statute

The fights over the Tennessee health care liability pre-suit notice statute, T.C.A. Sec. 29-26-121, have steadily increased and now loom over virtually every Tennessee health care liability lawsuit  In short, motions to dismiss cases are being filed because of the alleged failure of the plaintiff's lawyer to perfectly comply the statute. In many of the cases, the defendant is not denying that notice was in fact received and, indeed, usually admits that the failure to strictly comply with the statute did not result in any prejudice whatsoever. Rather, the defendant argues that if every statutory "i" is not dotted and  "t" is not crossed,  the defendant has the absolute right to insist that the lawsuit be not only dismissed but that it be dismissed with prejudice i.e. any deviation, no matter how minor, requires the death penalty.

It is important to point out that the Tennessee Supreme Court has not addressed the issue to date. True, the court says giving pre-suit notice is mandatory but (a) expressly left open the question about what sanction, if any, is required when the notice statute is not complied with and (b) has not addressed the issue of imprecise compliance. Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 307 (Tenn. 2012);   Aubrey E. Givens, Administrator of the Estate of Jessica E. Givens, Deceased, et al. v. The Vanderbilt University D/B/A Vanderbilt University Hospital, et. al.,   M2013-00266-COA-R3-CV  (Tenn. Ct. App. Oct. 15, 2013) and Foster v. Chiles, No. E2012-01780-COA-R3-CV, 2013 WL 3306594 (Tenn. Ct. App. June 27, 2013).  The latter issue is the subject of this post: how should our courts address the issue of a failure to strictly comply with the notice statute, especially in the absence of prejudice to the defendant?  

I submit that the answer to the question asked is relatively easy.  It is easy because our law has answered substantially similar questions dozens of times over the decades, albeit in different contexts, and thus one need only apply decades-old law to reach resolve these cases in a way that furthers both the cause of justice and the familiar, worthy goal of resolving cases on the merits.  Thus, I urge any lawyer who is confronting a notice issue to consider the following cases and argue for the trial and appellate courts to apply the "substantial compliance" test.

Continue Reading...

Medical Malpractice Insurer Opposes Georgia Tort Reform Plan

No, you did not read the headline wrong.  The company that insures doctors for medical malpractice claims in Georgia is opposing a tort reform measure being pushed by a group of healthcare administrators.

What is going on?  A group of  healthcare administrators in Georgia  has formed an organization called "Patients for Fair Compensation" (has a nice ring to it, doesn't it?) that is seeking a new law which would move medical malpractice claims out of the courts and into an administrative system overseen by a "Patient Compensation Board" within the Department of Community Health.

Those supporting the legislation say that the new system, which would be similar to the way Georgia  worker's compensation claims are processed,  would reduce healthcare costs.  In essence, the proposed legislation would create a no-fault system for awarding limited compensation for victims of medical malpractice.  It would be funded by fees that would be paid by doctors and by hospitals.

So why would a medical malpractice insurer oppose such a thing, especially a medical malpractice insurer like MAG Mutual, which is actually owned by the doctors it insures?  This is what its lobbyist told Modern Healthcare:  "'No other state has attempted such a drastic overhaul," said former state Sen. Arthur "Skin" Edge, a lobbyist for MAG Mutual Insurance Company, which provides medical liability insurance for doctors in nine states including Georgia. "Under this bill you will have more claims, higher costs, more reporting, higher taxes and more bureaucracy.'"

Now, it would be easy to pass off MAG Mutual's position as one of pure self-protection - what is the need for medical malpractice insurance if there can be no medical malpractice lawsuits?  But, my gut is that they are right that the legislation will result in more claims and higher costs.

How can that be?  Because most medical malpractice victims never see a lawyer, much less file suit, and most people never receive a nickel in compensation for the harm they are caused.  

How can I make such an assertion?  Estimates vary, but conservatively speaking no less than 98,000 people in this country die as a result of medical errors in our nation's hospitals. Tennessee has 2% of the country's population, and thus assuming our hospitals are no better and no worse than average, about 2000 people die as a result in medical errors in Tennessee hospitals every year.  That is 2000 potential wrongful death cases.  That figure does not include all of the potential cases in which patients were merely  injured.

In 2011, there were 403 Tennessee medical malpractice claims where the patient received compensation as a result of a settlement or a  judgment . Not all of those case were wrongful death cases.  Only 109 of those were death cases.  That means that there were almost 1900 people who died as a result of medical malpractice in Tennessee hospitals whose families did not receive one nickel of compensation.  

Once again, we haven't touched compensation for  injuries.  My guess (a guess based on representing patients in medical malpractice cases for over 30 years and taking tens of thousands of calls from those who are seeking representation in such cases) is that injury claims are filed and compensated at an even lesser rate.

MAG Mutual knows that if the law makes it easier for people to get compensation for wrongs more people will seek compensation.  Even though the payments for claims will be less than what the claimant would have obtained after a successful tort claim, the number of  claims and therefor the total monies paid will surge. It also knows that that doctors (and no other professional) likes to think that they have made an error that hurt or killed someone so they will want to find some way to defend even "no-fault" claims.  All of that costs money. 

MAG Mutual has got this one right.  Believe me, its files are filled with very good claims that were reported by its insured doctors but were never filed by the patient.  And with other claims that were valid claims that were rejected by pro-doctor juries.  They also know that there are lots of valid claims not reported by doctors and never filed by patients.  Do they see some stupid lawsuits filed by patients?  Of course, but even the number of those claims are shrinking because of the changing nature of the plaintiff's medical malpractice bar.  As one risk manager told me, "John, the problem with medical malpractice is not that there are too many claims.  The problem is that too many claims are being handled by good plaintiff's lawyers."

No, the no-fault system might have made economic sense for future defendants and their insurers before the insurance industry and corporate America contaminated the jury pool with anti-plaintiff rhetoric and before anti-patient laws were passed by the legislatures.   But now defendants have the deck so stacked in their favor that they will never support laws that open the doors to compensation for all medical malpractice victims.  It won't happen in Georgia or anywhere else.

Anyone out there disagree?

 

Tennessee Medical Malpractice Cases - Information From the National Practitioner Data Bank

The National Practitioner Data Bank collects data about medical malpractice settlements of $10,000 and more.  Here is some recent information about Tennessee physician judgments and settlements as reported to the Data Bank:

  • There were 155 reported payments in 2011, down from 192 10 years earlier in 2001.
  • 31 of those payments were under $50,000.
  • 23 of those payments were between $50,000 and $99,000.
  • 26 of those payments were between $100,000 and $249,000.
  • 39 of those payments were between $250,000 and $499,000
  • 30 of those payments were between $500,000 and $999,999.
  • 6 of those payments were between $1,000,000 and $1,999,999.
  • None of those payments exceeded $2,000,000.
  • Total payments in 2011 were $46,850,000
  • Thus, the mean payout in 2011 was a little over $300,000.
  • The median payout in 2011 was $200,000, placing us 16th in the nation. Massachusetts was the highest at $404,000.
  • Total payments in 2001 were $48,950,000.
  • The year with the largest total payments was 2006 - $54,980,000.
  • The median delay from incident to payment in 2011 was 4.0 years.  The mean delay from incident to payment in 2011 was 4.5 years.
  • You can read the 2011 Data Bank report by clicking on the link.

All of this data is very interesting, but I was particularly intrigued by the "delay in payment" data.  We work particularly hard in our office to reduce this period and, quite frankly, I don't recall any case in our office ever having a four-year delay from incident to payment except one: a case won at trial and appealed by one of several defendants.  The verdict against that doctor was affirmed and payment was made about four years after the incident.

We recently resolved a case that was set for trial in late June, 2013.  Our client died as a result of an error made in an emergency room in early 2011.  The case had been filed for about 18 months.  Our case could have been set for trial three or four months earlier but for scheduling issues with the court and defense counsel.

 

Tennessee Medical Malpractice Lawsuits Against Governmental Entities and Their Employees and the Notice Statute

Tennessee law has a one year statute of limitation in a medical malpractice (now called a health care liability) case.  Formal legal notice must be given to health care providers who are going to be sued in the case and this notice must be given before the expiration of the statute of limitations.  Notice must be given at least 60 days before suit is filed.  If notice is given as required by law, the statute of limitations is extended for 120 days.  All of this is spelled out in detail in T.C. A. Sec. 29-26-121..

Thus, if a patient is hurt as a result of a medical error on Day 1, and notice is given on Day 364, plaintiff cannot file suit until Day 425 (60 days after suit was filed) but must file before Day 485 (120 days after the statute of limitations expired), right?

Yes, unless the case is against a health care provider employed by a local government or against the local government itself.  The Tennessee Supreme Court has released its opinion in Cunningham v. Williamson Cty. Hosp. District, No. M2011-00554-SC-S09-CV (Tenn. May 9, 2013) and has ruled that the notice statute (T.C.A. Sec. 29-2-121) does not extend the statute of limitations applicable to claims against governmental entities and its employees.  Why?  Because the Court has ruled that changes in statutes of general application that specifically conflict with the GTLA do not apply to claims against governmental entities unless the General Assembly specifically says they do.

The practical effect of this ruling is that a person who brings a health care liability action against a local government or a nurse or doctor employed by a local government must give notice of the claim more than 60 days before the expiration of the one year statute of limitations.  Why?  Because the notice statute requires that a plaintiff must wait sixty days after giving notice to file suit.  Failure to comply with this provision will result in dismissal of the case.  

Going back to the example used above, if an incident occurs on Day 1 and there is a claim against a local governmental entity or one of its doctors or nurses, notice must be given by no later than Day 304 so that suit can be filed on Day 365.  (Note:  the statute says that notice must be given "at least sixty days" before suit can be filed.  I don't know for sure if suit can be filed on the 60th day after notice is given or if suit can be filed no sooner than 61 days after notice is given.  I will let someone else make that law and thus recommend waiting 61 days if possible.)

Two other points must be made.  First, the Tennessee Supreme Court notes that 

[n]either party has addressed the issue of the applicability of the sixty-day notice requirement in cases governed by the GTLA. Although we have previously held that failure to comply with the sixty-day pre-suit notice requirement of section 29-26 121(a) may result in dismissal of the medical malpractice claim absent a showing of extraordinary cause, we have not previously addressed whether the sixty-day pre-suit notice is required in GTLA cases. Tenn. Code Ann. § 29-26-121(b); Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 311-12 (Tenn. 2012).

FN. 3.

Therefore, it is possible that the Court is signaling that it is receptive to an argument that notice is not required in cases against local governments.  

However, such an argument could be advanced in only a very small number of cases.  Why? Because when the Legislature changed the entire Tennessee Code to eliminate reference to medical malpractice cases and substitute the phrase "health care liability action" it expressly stated that e definition of “health care liability action” included “claims against the state or a political subdivision thereof.” Act of May 20, 2011, ch. 510, § 8, 2011 Tenn. Pub. Acts. 510, 1506 (codified as amended at Tenn. Code Ann. § 29-26-101(a) (2012)). The 2011 amendment became effective on October 1, 2011, after Mr. and Mrs.Cunningham filed their claim.  Thus, there is no longer any doubt that notice must be given in cases health care liability cases against local government entities and its nurses and doctors.  

All of this means that the argument left open by the Court in footnote 3 can only be advanced by those still in litigation over claims that arose after the notice statute first came into effect (October 1, 2008) and the definition change referenced above on October 1, 2011.

All of which gives rise to the second point:  does the inclusion of governmental entities under the definition of those covered by health care liability law mean that the Legislature intended to change the law and extend the statute of limitations by 120 days in health care liability cases against local governmental entities and their doctors and nurses if proper notice is given?  The Court said that it would "await a more appropriate case in which to determine whether the language of the 2011 amendment clearly expresses a legislative intent to extend the statute of limitations in GTLA cases."  FN. 2.

Should lawyers assume that the Court will rule that definition change means that a plaintiff will get the benefit of the 120 day extension of the statute of limitations in every health care liability action under the GTLA arising after October 1, 2011?  No.  I suggest that it is prudent to assume the 120 extension does not apply.  Thus, I suggest that if possible notice be given at least 61 days before filing suit and that suit before filed no later than the end of the one year period.  In the event a case comes to the lawyer at a day that makes it extremely difficult or impossible to give the mandated notice, wait the 60 days, and then file suit within the one year period, the lawyer will have to make the decision whether the strength of the case merits a "test case" on this issue.

The notice statute creates yet another hurdle for patients (and their lawyers) to jump in these very difficult cases.  Lawyers are advised to stay current on this ever-changing area of the law.

 

Tennessee Medical Malpractice Report Statistics - Verdicts and Settlements - 2011 - Part 1 of 4

The Tennessee Department of Commerce and Insurance has released its annual statistical report on filings, verdicts and settlements in medical malpractice (now known as health care liability) cases.  The report bears the date "2012" even though the data is from 2011.

The  report is helpful to lawyers who represent patients in Tennessee medical malpractice cases because it includes data collected from plaintiff's lawyers, insurers of health care providers, and self-insureds.  There is other data about medical malpractice lawsuits, but this data is reported at the claims level.  

Here are some of the highlights from the report:

  • Total number of claims closed in 2011:  2332
  • Number of claims resolved by judgment:  114
  • Number of claims resolved by settlement:  289
  • Number of claims resolved by ADR: 145
  • Number of claims otherwise resolved:  1784

Note that claims resolved by judgment includes claims in which summary judgment was granted, almost always for a defendant.  (It is theoretically possible for a plaintiff to get summary judgment in a health care liability action, but it is rare.)  

Now, contrast the 2011 data with 2007 data - 2007 data in bold:

  • Total number of claims closed : 2332                           3043
  • Number of claims resolved by judgment: 114               313
  • Number of claims resolved by settlement: 289             492
  • Number of claims resolved by ADR: 145                         N/A
  • Number of claims otherwise resolved: 1784               2238

Why is the number of claims closed down about 20% in the last 5 years?  Because filings are down substantially, mostly as a result of changes to the health care liability laws in 2008 and 2009.  Filings will continue to decrease given the Civil Justice Reform Act of 2011, which places artificial caps on damages in all tort cases and makes other anti-patient changes to our law.

Also note that we are not talking about the number of health care liability lawsuits that were filed - we are talking about claims.  A claim is a demand for money damages.  There can be multiple claims in one lawsuit because there can be multiple defendants.  In addition, there are claim files that are opened by an insurer or provider but do not result in a lawsuit.  There were only 369 health care liability actions filed in the entire state of Tennessee in the fiscal year ending June 30, 2012. (Read more statistics about Tennessee personal injury and wrongful death lawsuits by clicking on the link,)

The report goes on to explain that that out of the 2332 closed claims in 2011 payments were made to claimants in 18.74% of them or in 437 claims.  

There were 3,950 claims that were still open as of December 31, 2011.  

I will address other aspects of the Report in later posts.  

Surgical Errors

It comes as no surprise to those of us who are medical malpractice attorneys in Tennessee or elsewhere around the Nation, but this article, "Surgeons Make Thousands of Errors,"  (subscription required) does a great job of identifying problems that arise in the operating room.

The article reports that surgeons make such mistakes more than 4,000 times a year in the U.S.  The article is based on a study led by Johns Hopkins University School of Medicine, published online in the journal Surgery.


The study, relied on data in the National Practitioner Data Bank, a federal repository of medical-malpractice judgments and out-of-court settlements,and examined cases involving leaving an object inside a patient, wrong-site surgeries, wrong procedures and wrong-patient surgeries.

The study found  9,744 cases of mishaps  between 1990 and 2010.  How were patients affected by these errors?  The study reports that just over 6 percent of patients died, 32.9 percent had permanent injury and 59.2 percent suffered temporary injury, according to the researchers. 

The researchers estimate that at least 4,082 mistakes actually occur in the U.S. each year.  This estimate was based on  the number of paid claims and a prior study that estimated that only 12 percent of surgical adverse events result in indemnity payments,

Martin Makary, a doctor from Johns Hopkins and lead author of the study,  said his team's estimates are likely low; previous studies have shown that many patients never file claims after errors.

Unlike some complications in medicine, the surgical mistakes are "totally preventable," according to Makary.


 

Kidney Transplant Doner Does Not Have Malpractice Claim Against Kidney Donee's Doctor

The Nebraska Supreme Court has held that the doctor for a kidney donee does not owe a duty to the kidney donor.  Thus, when the donee's doctor allegedly committed malpractice when treating the donee, rendering the donor's kidney useless, the donor cannot sue the donor's doctor.

In Olson v. Wren shall, 284 Neb.445 (Oct. 5, 2012), Sean Olson agreed to give a kidney to his dad, Daniel.  The initial surgery went fine, but complications later developed.  Allegedly, a medical error caused the death of the donor's kidney in the do nee and it had to be removed.

The donor and his wife sued the Donne's doctors, seeking damages for the errors committed on do nee that resulted in the loss of the donor's kidney.  The trial court dismissed the case, finding that the Donne's doctors (who did not remove the kidney from donor) did not owe a duty a care to the donor.  The trial court also ruled that no legally cognizable damages were suffered by donor and his wife as a result of the alleged malpractice.

The Nebraska Supreme Court agreed with the trial court's ruling on the duty issue, citing opinions in two other states that reached the same result.   The Court declined to reach the damages issue.

Plaintiffs were pushing the legal envelope in this case.  It is tragic that this young man unselfishly gave a kidney to his father, only to see that kidney destroyed as a result of an alleged medical error.  Hopefully, his father will be able to get another kidney and see his life extended.

The case reminds us that duty is the threshold issue in every case.  In the run-of-the-mill case, duty is rarely thought about - it is so automatic that it is not on the radar screen.  But the fact remains that if defendant does not owe plaintiff a duty there is no case.

For the leading case on duty analysis in Tennessee, read Burroughs v. McGee, 118 S.W.3d 323 (Tenn. 2003). 

Medical Malpractice Victims: Denied Access to Justice

It happens almost every day.  I receive a call from a person claiming that they have been injured by the act or omission of some health care professional and I have to tell them I can't help them because the damages suffered to not justify the time and expense of a medical malpractice case.

This has always been a problem, but has gotten worse with tort reform legislation in Tennessee.  Caps on damages further restrict access to the courts.

Those in academia are paying attention.  Torts Prof recently wrote about a new article by Joanna Shephard tiitled ""Justice in Crisis: Victim Access to the American Medical Liability System."

Here is an abstract of the article:

An often overlooked problem with the current medical malpractice system is the vast number of medical errors that go uncompensated. Although studies indicate that one percent of hospital patients are victims of medical negligence, fewer than two percent of these injured patients file claims. In this Article, I explain that many victims of medical malpractice do not file claims because they are unable to find attorneys willing to take their cases. I conduct the first national survey of attorneys that explores medical malpractice victims’ access to the civil justice system. The results from the survey indicate that the economic reality of litigation forces many medical malpractice attorneys to reject legitimate cases. In fact, over 75 percent of the attorneys in my survey indicate that they reject more than 90 percent of the cases that they screen. The attorneys indicate that insufficient damages and high litigation expenses are their primary reasons for rejecting cases and that several tort reforms have reduced their willingness to accept cases. Moreover, the majority of the attorneys respond that they have threshold damage values, below which they will not consider accepting a case. In fact, over half of the attorneys responded that, even for a case they are almost certain to win on the merits, they will not accept the case unless expected damages are at least $250,000. For a case that they are only slightly likely to win, the vast majority of attorneys require minimum expected damages of $500,000 to accept the case. Because of the high cost of medical malpractice litigation, plaintiffs’ attorneys simply cannot economically justify taking cases with damages below these thresholds. As a result, many legitimate victims of medical malpractice are left with no legal representation and no meaningful access to the civil justice system. 

The civil justice system is designed in part to provide redress for injuries caused by others.  When the system cannot provide redress for injuries with a value of $250,000, the system is broken. 

Sooner or later, the health care community will feel the backlash of the artificial barriers its lobbyists have erected in health care liability cases.  And the legal community will feel the backlash of not finding ways to make litigation more efficient and less expensive.

 

The "Certificate of Good Faith" Requirement in Tennessee Medical Malpractice (Health Care Liability) Lawsuits

Almost four years ago Tennessee adopted  a requirement  lawyers filing  medical malpractice (now called health care liability) lawsuits must file a "certificate of good faith."  Under the current version of the statute the certificate must be filed with the complaint.

The Tennessee pre-suit notice statute can be found at T.C.A. Section 29-26-122.  I wrote an article about the most recent version of the statute for the  Tennessee Bar Journal; the article is titled "Med Mal Makeover:  The New Medical Malpractice Notice and Certificate of Good Faith Statute."

I have assembled a list of the cases that discussed the certificate of good faith requirement.  One of the cases is pending before the Tennessee Supreme Court and an opinion is expected in the next few weeks.

Case Pending in the Tennessee Supreme Court:

Myers v. AMISUB (SFH), Inc., 2011 WL 664753 (Tenn. Ct. App. Feb. 24, 2011) (perm. app. granted Aug. 23, 2011) (defendant need not show prejudice by non-compliance with pre-suit notice requirement and duty to file certificate of good faith; trial court reversed and remanded for dismissal). Note: oral argument held April 4, 2012.

Tennessee State Court Cases

Hinkle v. Kindred Hosp., 2012 WL 3799215 (Tenn. Ct. App., Aug. 31, 2012) (expert’s detailed affidavit that was filed with complaint was sufficient to satisfy the certificate of good faith requirement).

Jackson v. HCA Health Services of Tennessee, 2012 WL 1379847 (Tenn. Ct. App. Apr. 18, 2012) (failure to file certificate of good faith required dismissal; no extraordinary cause demonstrated; challenge to statute on constitutional grounds dismissed).

Crawford v. Kavanaugh, 2011 WL 5829602 (Tenn. Ct. App. Nov. 21, 2011) (case dismissed for failure to file a certificate of good faith; plaintiffs were required to do so even though the case had been originally filed before the law requiring it came into effect, was voluntarily dismissed, and re-filed under the Savings Statute).

Cude v. Herren, 2011 WL 4436128 (Tenn. Ct. App. Sept. 26, 2011) (case filed under Saving Statute after pre-suit notice and certificate of good faith requirements came into effect must give pre-suit notice and file certificate of good faith; extraordinary cause to excuse pre-suit notice and certificate of good faith was not demonstrated).

Robles v. Vanderbilt University Medical Center, 2011 WL 1532069 (Tenn. Ct. App. Aug. 25, 2011) (plaintiffs had a right to take a voluntary dismissal of medical malpractice case which failed to include a filing of a certificate of good faith and to re-file case with certificate of good faith).

Brister v. HCA Health Services of Tenn., 2011 WL 2395218 (Tenn. Ct. App. June 8, 2011) (after ruling the plaintiff need not comply with notice requirement if complaint sounds in ordinary negligence, the court said it did not need to address the second issue of whether a certificate of good faith had to be filed, presumably meaning that a certificate of good faith does not need to be filed if the allegations are only those of ordinary negligence).

Mathes v. DRD Knoxville Medical Clinic, 2011 WL 1402879 (Tenn. Ct. App. Apr. 13, 2011) (complaint sounded in ordinary negligence and therefore compliance with the pre-suit notice requirement and the certificate of merit requirement were not required).

Myers v. AMISUB (SFH), Inc., 2011 WL 664753 (Tenn. Ct. App. Feb. 24, 2011) (perm. app. granted Aug. 23, 2011) (defendant need not show prejudice by non-compliance with pre-suit notice requirement and duty to file certificate of good faith; trial court reversed and remanded for dismissal). Note: oral argument held April 4, 2012.

Brandon v. Williamson Medical Center, 343 S.W.3d 784 (Tenn. Ct. App. 2010) (plaintiff’s complaint dismissed for failure to file certificate of good faith; failure not excused for “extraordinary cause” or “excusable neglect”).

Barnett v. Elite Sports Medicine, 2010 WL 5289669 (Tenn. Ct. App. Dec. 17, 2010) (medical malpractice case dismissed for failure to file certificate of good faith; no extraordinary cause shown; certificate of good faith is not required in battery case).

Martins v. Williamson Medical Center, 2010 WL 4746238 (Tenn. Ct. App. Nov. 22, 2010) (complaint sounded in malpractice and thus certificate of good faith was required).

Tennessee Federal Court Cases

Stinnet v. United States, 2012 WL 3834826 (M.D. Tenn. Sept. 4, 2012) (case dismissed, in part because no certificate of good faith was filed with complaint; claims sounded in medical malpractice, not ordinary negligence).

Taylor v. Johnson City, Tennessee, 2012 WL 3441226 (E.D. Tenn. Aug. 14, 2012) (claims designated a “medical negligence” were not in fact medical negligence claims under Tennessee law and therefore pre-suit notice and a certificate of good faith were not required).

Southwell v. Summit View of Farragut, LLC, 2012 WL 3340176 (Aug. 9, 2012) (dismissal of medical negligence claims affirmed for failure to give proper notice and failure to file certificate of good faith; court gave plaintiff a chance to amend and assert ordinary negligence claims). (A more detailed statement of the facts in this case is in the opinion and order of the district court, found at 2011 WL 2749614.)

Shuler v. McGrew, 2012 WL 3260685 (W.D. Tenn. Aug. 8, 2012) (case dismissed for failure to give pre-suit notice and file a certificate of good faith; plaintiff’s argument that the claims were not medical malpractice claims rejected; request to amend complaint denied).984 (W.D.Tenn. Mar. 23, 2012) (FTCA claim dismissed for failure to file certificate of good faith; claims sounded in medical negligence and thus certificate had to be filed).

Guthrie V. Ball, 2012 WL 2597931 (E.D. Tenn. 2012) (complaint dismissed because plaintiff could not demonstrate that pre-suit notice was sent to address on Department of Health website, even though notice was sent to defendant’s former employer, where he worked when he treated plaintiff; case dismissed without prejudice).

Seiber v. Anderson County, 2011 WL 6258446 (E.D. Tenn. Dec. 14, 2012) (plaintiff’s state law negligence claims sounded in medical malpractice; case dismissed for failure to give pre-suit notice).

Estate of Robles, 2011 WL 5521172 (M.D. Tenn. Nov. 14, 2011) (defense for failure to comply with filing of certificate of good faith in prior state court action stricken as futile; certificate of good faith was filed in federal court).

Priest v. United States, 2011 WL 5023277 (M.D. Tenn. Oct. 20, 2011) (FTCA claims sounded in medical negligence, not ordinary negligence, and thus certificate of good faith was required; extraordinary cause to excuse filing of certificate not present; no evidence that medical records were withheld by defendant and no evidence that plaintiff sought expert testimony, distinguish Truth supra).

Mayo v. United States, 785 F.Supp. 2d 692 (M.D. Tenn. 2011) (FTCA claims sounded in medical negligence, not ordinary negligence, and thus certificate of good faith was required; extraordinary cause to excuse filing of certificate not present).

Truth v. Eskioglu, 781 F. Supp. 630 (M.D. Tenn. 2011) (failure of defendant to provide patient with full medical records excused patient from filing a certificate of good faith; in any event, misrepresentation case against doctor would have survived as a claim of ordinary negligence).

Williams v. United States, 754 F. Supp. 2d 942 (W.D. Tenn. 2010) (certificate of good faith applies to claims filed under the FTCA because the requirement is one of substantive law; simply supplying medical records to the defendant does not meet the requirements of a certificate of good faith).

Maliani v. Vanderbilt University Medical Center, 2010 WL 4054268 (M.D. Tenn. Oct. 15, 2010) (medical malpractice claims dismissed for failure to give notice and for failure to file a certificate of good faith).

Williams v. United States, 2010 WL 1957238 ( W.D. Tenn. May 12, 2010) (medical malpractice claim under FTCA should not be dismissed for failure to file a certificate of good faith because notice of claim was given under FTCA before the law required notice and the filing of a certificate of good faith).

Jenkins v. Marvel, 683 F. Supp. 2d 626 (E.D.Tenn. 2010) (pre-suit notice requirement met given unique circumstances of case given that case had been previously filed before pre-suit notice was required and voluntarily dismissed; certificate of good faith was filed).

Case Law on Pre-Suit Notice Requirement in Tennessee Health Care Liability (Medical Malpractice) Cases

 Almost four years ago Tennessee adopted a requirement that health care provides were entitled to receive advance notice of the filing of Tennessee medical malpractice (now call "health care liability) lawsuits. Under the current version of the statute, notice must be given in the manner proscribed by statute before the expiration of the statute of limitations. Exceptions are granted only for extraordinary cause. Giving appropriate notice extends the statute of limitations and statute of repose by 120 days.

The Tennessee pre-suit notice statute can be found at T.C.A. Section 29-26-119. I wrote an article about the most recent version of the statute for the Tennessee Bar Journal; the article is titled "Med Mal Makeover: The New Medical Malpractice Notice and Certificate of Good Faith Statute."

I have assembled a list of the cases that discussed the pre-suit notice requirement.  Here are the two cases currently pending before the Tennessee Supreme Court:

  1. Cunningham ex rel. Cunningham v. Williamson County Hosp. Dist., 2011 WL 6000379, (Tenn. Ct. App., Nov. 30, 2011) (perm. app. granted April. 11, 2012) (120 day extension of statute of limitations applies to medical malpractice claims filed against governmental entities).  Note:  oral argument scheduled for October 3, 2012.
  2. Myers v. AMISUB (SFH), Inc., 2011 WL 664753, at *8 (Tenn. Ct. App. Feb. 24, 2011) (perm. app. granted Aug. 23, 2011) (defendant need not show prejudice by non-compliance with pre-suit notice requirement and duty to file certificate of good faith; trial court reversed and remanded for dismissal).  Note:  Oral argument held April 4, 2012.

The other cases discussing the statute are after the jump.  NOTE: I have exluded almost all cases involving pro se plaintiffs.

I will post the cases involving the Tennessee certificate of good faith requirement tomorrow.

Continue Reading...

"They Left A Sponge In Me!"

How often are sponges, towels, pads and other foreign objects left in surgical patients?  The Doctor's Company, a medical malpractice insurer, has shared some information that helps us get an idea of the scope of the problem.

The insurer reports that from 2002 through 2011, there were 3,273 surgical claims closed (not including obstetric cases). Five percent involved retained foreign objects, with half of those being sponges, towels, or pads.  That means that this one insurer has defended about 160 foreign object claims during the indicated ten-year period.

The insurer admits that the claims are very difficult, if not impossible, to defend.

Historically, intra- or post-operative x-rays were used to identify foreign objects in patients.   Today, radio frequency identification (RFI) chips are starting to be used to automatically keep track of the sponges and surgical towels used in a procedure.  With this technology, a wand-type device is waved over the surgical site to determine whether there are any retained sponges or towels. The technology does not work for locating surgical instruments that have been left inside patients.  One manufacturer of the RFI technology claims that "zero is now the achievable standard for retained surgical sponges."

The Cedars Sinai Hospital shares this policy in an effort to eliminate foreign objects being left in surgical patients.

Given the large number of surgeries that occur every day, 160 cases over 10 years may not seem like that many.  However, this is only one insurer in the country that represents less than 10 % of all doctors and therefore its date reveals a small portion of the problem.  Indeed, the manufacturer of the RFI technology reports that objects are left in patients in 1 of every 1500 chest and abdominal surgeries.

It makes no difference whether this problem is eliminated using new technology or just the common sense ideas set forth in the information from Cedars Sinai Hospital.  It just needs to stop.

Medical Malpractice Paid Claims Continue to Drop

The National Practioner Data Bank, the entity that gathers data about medical malpractice claims, reports that paid medical malpractice claims continue to drop.

In 2001, the total number of paid claims was 20,319.  In 2010, the number had dropped to 13,277. Now, a new report released by Kaiser citing data from the NPDB indicates that paid claims for 2011 totaled 9497.

(The NPDB data for 2001 through 2010 is set forth in  Appendix D, Table 1.)

This data is consistent with my experience in Tennessee.  The passage of various laws have made medical malpractice cases less attractive for patients and their lawyers to pursue, and the jury pool has been impacted by decades of misinformation about the civil justice system in general and medical malpractice cases in particular.  

Once again, recall that as many as 98,000 people die in our nation's hospitals each year as a result of medical malpractice.  Undoubtedly, many more are injured.  The fact that less than 10,000 of those people receive compensation for injury or death arising from medical malpractice tells us that the health industry plan to avoid accountability for errors is working all too well.

Tennessee Court Waives Compliance With "Contiguous State" Rule for Expert Witness in Medical Malpractice Case

Tennessee has a goofy rule concerning expert witnesses that, to my knowledge and belief, exists in no other state.
 
Tenn. Code Ann. § 29-26-115(b) requires any expert witness in a medical malpractice state to practice in Tennessee or a border state unless the trial court “determines that the appropriate witnesses otherwise would not be available.”
 
The alleged purpose of the contiguous state rule is to increase the likelihood that the witness will know the applicable standard of care.  The actual result of this rule is to make it more difficult to find expert witnesses, particularly in specialty medical areas or when the defendant is well-known.  
 
In Marsha McDonald v. Paul F. Shea, M.D. and Shea Ear Clinic, No. W2010-02317-COA-R3-CV (Tenn. Ct. App. February 16, 2012),  Plaintiff moved for waiver of the contiguous state rule supported by an affidavit from Plaintiffs’ counsel. The affidavit explained that Plaintiff originally had an expert, but the expert developed health concerns that required him to decline to testify. Plaintiffs’ counsel then spoke with more than a dozen experts from Tennessee and border states, all of whom stated that Plaintiff had a meritorious case but they would not testify for fear of retaliation by
Defendant Doctor’s father, a prominent physician in the area. The trial court granted Plaintiff ’s motion.
 
Defendant contested the waiver, asserting that Plaintiff ’s difficulty in obtaining an expert from Tennessee or a border state was akin to a patient unable to find a testifying expert because no malpractice occurred. The parties and the Court of Appeals looked to Rose v.
H.C.A. Health Servs. of Tenn., 947 S.W.2d 144 (Tenn. Ct. App. 1996) for guidance:

In Rose v. H.C.A. Health Servs., the plaintiffs  searched unsuccessfully in Tennessee and bordering states for an expert in hospital risk management and quality assurance. Plaintiffs’ counsel submitted an affidavit stating that health care professionals in these areas would talk to him only if they were not identified. The affidavit expressed counsel’s belief that the size of defendant H.C.A. would make it difficult to find a witness in Tennessee or a contiguous state. The plaintiffs asked the trial court to waive the contiguous state requirement, and this request was denied. The plaintiffs appealed. The appellate court found no abuse of the trial court’s discretion, holding that the difficulties described by plaintiffs’ counsel in that case were “generalized and unspecific,” and reflected “only a cursory effort to find an appropriate expert.”Additionally, the plaintiffs’ counsel cited only a conversation with a single hospital administration in support of his assertion that the large size of the defendant corporation would make it difficult to find an expert without a conflict of interest. [Citations omitted.]

The Court of Appeals distinguished Rose because the appellate court in Rose merely affirmed a trial court’s denial of the waiver request under the circumstances; the Rose Court did not state that the circumstances mandated denial of the waiver request. In this case, the Court of Appeals
found the evidence submitted by Plaintiff ’s counsel sufficient to make waiver by the trial court “within the range of acceptable alternatives,” and therefore affirmed the trial court’s decision.
 
Plaintiff's counsel put in the extra effort that made a record to save the case.  This effort should not be necessary and the contiguous state rule should be abolished.  However, given the current composition of the Tennessee Legislature, that is not going to happen and Tennessee lawyers would be wise to follow the example set forth by the lawyer for the plaintiff in this case.

Tennessee Court Discusses Whether Expert is Qualified to Speak to Defendant's Standard of Care Under Locality Rule

Tennessee law requires that the plaintiff present expert proof that the defendant violated the standard of care applicable in the community in which the care was given at the time the care was given.  Proof of the standard can come from an otherwise qualified expert who knows the standard of care in that community or in a similar community.  This rule is codified in Tenn. Code Ann. § 29-26-115(a). 

In Marsha McDonald v. Paul F. Shea, M.D. and Shea Ear Clinic, No. W2010-02317-COA-R3-CV (Tenn. Ct. App. February 16, 2012),  the Court of Appeals engaged in a lengthy discussion of whether Plaintiff ’s expert was qualified to testify under Tenn. Code Ann. § 29-26-115(a). The court’s reasoning was guided by the recent Tennessee Supreme Court case of Shipley v. Williams, 350 S.W.3d 527 (Tenn. 2011). In Shipley, the Supreme Court rejected the notion that an expert must have personal, first-hand knowledge of the standard of care by actually practicing in a community. The Supreme Court also held that “expert medical testimony regarding a broader regional standard or a national standard should not be barred, but should be considered as an element of the expert witness’ knowledge of the standard of care in the same or similar community.”

These two holdings in Shipley gutted the majority of Defendants’ objections to the competency of Plaintiff ’s expert in this case.

 

The Court of Appeals then reviewed the testimony of Plaintiff ’s expert relied upon to establish that Los Angeles, where Plaintiff ’s expert practices, is similar to Memphis, where Defendant Doctor practices.  Here is the testimony from the expert:
 
Since I was not asked to do so during my deposition, I am providing such a comparison now. The Los Angeles and Memphis medical communities, though somewhat different in scale because of the difference in population, are nevertheless similar communities. They are both homes to university-based medical centers and university-based medical training programs. They both have community and specialty hospitals. They both offer a large number of medical specialties, including otology. Adjusting for the difference in population, Memphis and Los Angeles also have a comparable number of health care facilities and beds. In summary,  there is really no appreciable difference in the medical communities of Memphis and Los Angeles. At a minimum, they are similar communities. The medical and physiological considerations involved in the determination of whether to use transtympanic perfusion therapy on a patient, and whether to use Gentamycin or Streptomycin as the medication of choice in such a procedure, are not influenced any geographic differences between the Memphis and Shelby County, Tennessee community or the Los Angeles, California community. Physicians practicing otology in both of these communities have access to the same medical information concerning transtympanic perfusion therapy and whether to use Gentamycin or Streptomycin as the medication of choice in such a procedure. Further, the diagnosis of Ménière’s does not change from community to community. The diagnostic criteria are well understood within the specialties and do not change based on geographic location. All of this is true no matter the specialty nor [sic] location, but it is particularly true in sophisticated medical communities such as Los Angeles and Memphis. For consideration of all the issues that pertain to this case, it is my personal and medical belief that Los Angeles and Memphis are similar medical communities. This is not a situation where a community is impaired in its ability to deliver services because of lack of financial commitment, resources, information, or ability to provide services. In every way a patient presenting such as Marsha McDonald did to the Shea Clinic in July of 2004, should be subject to the same standards of care whether in Los Angeles, Memphis, or many other similar communities. Having pointed out the many similarities between the Los Angeles and Memphis medical communities, I can think of absolutely no differences between them for the purposes of this case other than the proportionally commensurate larger number of doctors and nurses in Los Angeles.
The Court of Appeals rejected Defendants’ argument that Los Angeles and Memphis are dissimilar per se because of the difference in population size, regardless of the testimony by Plaintiff ’s expert. The Court of Appeals acknowledged the trial court’s role as a gatekeeper, assuring the expert meets the minimum competency criteria and then letting the opposing party challenge the expert’s qualifications and testimony on cross-examination.
 
The Shipley  opinion did a fine job of elevating substance over form in the preparation and trial of health care liability actions in Tennessee.
 
Note:  some of you might ask why a doctor from California was permitted to testify in Tennessee, given the fact that ordinarily such experts must come from Tennessee or a contiguous state.  This portion of the opinion will be addressed in the next post.

 

Medical Malpractice Case Filings Still Below Pre-Tort Reform Levels

Medical malpractice case filings were up  last year but are still below the filings for the year when the first tort reform hit medical malpractice cases.

October 1, 2008 was the date that pre-suit notice and certificates of good faith became required.  In the year before the law change, 646 medical malpractice cases were filed in the entire state.  Some 140 of those cases were filed in the month before the law changed - ordinarily only about 46 were filed per month.

Predictably, filings were down substantially in the year ending September 30, 2009 - only 264 cases were filed.  The next year filings were up  to 314, and the year ended September 30, 2011 there were 378 medical malpractice cases filed.

In an effort to compare apples to apples, adjusted filings for the year ended September 30, 2008 were about 546 and filings last year were 378.   That is a decrease of 136 cases, or about 25%.

During the same time period, the population of Tennessee has increased by about 400,000 people to 6.4 million and thus one would expect some increase in the number of claims.

Filings will continue to fall because of damage caps and other restrictions placed on patients injured by malpractice. Those restrictions went into effect for injuries and deaths occurring October 1, 2011 and thereafter.

A few numbers will put these figures in perspective.  Tennessee has 130 or so  hospitals and provides about 3,750,000 patient days of care per year.   There are 320 nursing homes with and 37,000 beds with an occupancy rate of 85%.   Tennessee has over 16,000 licensed physicians and over 60,000 registered nurses.  Some 250,000 people are employed in health care in the state.

And there were only 378 medical malpractice cases filed.  True, some of those cases have multiple providers as defendants.  (Some of those defendants are sued only for purposes of vicarious liability.)  But assume that two health care providers are alleged to have been negligent in every case.  So about 800 providers - doctors, hospitals, nurses, dentists, nursing homes, pharmacies, surgery centers, etc. are sued a year.

This is a crisis?

 

 

Expert Witness Qualifications in Tennessee Medical Malpractice Case

The Sixth Circuit Court of Appeals has reversed a district court's finding that an expert witness was not qualified to testify on behalf of a plaintiff in a health care liability action, relying on Shipley v. Williams, 350 S.W.3d 527 (2011). 

In Bock v. University of Tennessee Medical Group, Inc., No. 10-5534 (6th Cir. March 26, 2012), the court ruled that Shipley required a remand but also made it very clear that merely determining a witness to be competent to give expert testimony did not end the inquiry.  After competency is determined, case law and evidence rules in federal court still require application of the  FRE 702 as interpreted by Daubert.  The record was such that the court could not make the determination of these issues and thus a remand was appropriate.

The case includes a helpful discussion of the interaction between the Erie rule and the Federal Rules of Evidence and how the 6th Circuit has addressed the issue.  Surprisingly, the United States Supreme Court has never directly addressed the issue.

Shipley does not open the door to permit anyone to qualify as an expert witness in a medical malpractice case.  However, Shipley does put some degree of common sense back into the discussion of whether the proposed expert is competent to testify.

 

Debunking the Myth: The Poor Do Not File More Medical Malpractice Cases

Four professors have written an article titled "Do Poor People Sue Doctors More Frequently? Confronting Unconscious Bias and the Role of Cultural Competency."

The article concludes that "Contrary to popular perception, existing studies show poor patients, in fact, tend to sue physicians less often. This may be related to a relative lack of access to legal resources and the nature of the contingency fee system in medical malpractice claims."

Quite frankly, there is no original research in this article, but it is a good collection of research that has been out there for several years.

My own experience is that poor people are less likely to sue and more likely to understand why they do not have a claim that can be pursued.  The most difficult conversations I have when I have to decline a medical malpractice case are with people who have money - they are used to getting there way and cannot understand why every bad result does not automatically result in compensation of some amount.  Quite frankly, my view is that poor folks are so used to getting kicked  that one more kick (the inability of a lawyer to take a case) is not viewed with particular surprise or consternation.

Debunking the Myth: The Poor Do Not File More Medical Malpractice Cases

Four professors have written an article titled "Do Poor People Sue Doctors More Frequently? Confronting Unconscious Bias and the Role of Cultural Competency."

The article concludes that "Contrary to popular perception, existing studies show poor patients, in fact, tend to sue physicians less often. This may be related to a relative lack of access to legal resources and the nature of the contingency fee system in medical malpractice claims."

Quite frankly, there is no original research in this article, but it is a good collection of research that has been out there for several years.

My own experience is that poor people are less likely to sue and more likely to understand why they do not have a claim that can be pursued.  The most difficult conversations I have when I have to decline a medical malpractice case are with people who have money - they are used to getting there way and cannot understand why every bad result does not automatically result in compensation of some amount.  Quite frankly, my view is that poor folks are so used to getting kicked  that one more kick (the inability of a lawyer to take a case) is not viewed with particular surprise or consternation.

Debunking the Myth: The Poor Do Not File More Medical Malpractice Cases

Four professors have written an article titled "Do Poor People Sue Doctors More Frequently? Confronting Unconscious Bias and the Role of Cultural Competency."

The article concludes that "Contrary to popular perception, existing studies show poor patients, in fact, tend to sue physicians less often. This may be related to a relative lack of access to legal resources and the nature of the contingency fee system in medical malpractice claims."

Quite frankly, there is no original research in this article, but it is a good collection of research that has been out there for several years.

My own experience is that poor people are less likely to sue and more likely to understand why they do not have a claim that can be pursued.  The most difficult conversations I have when I have to decline a medical malpractice case are with people who have money - they are used to getting there way and cannot understand why every bad result does not automatically result in compensation of some amount.  Quite frankly, my view is that poor folks are so used to getting kicked  that one more kick (the inability of a lawyer to take a case) is not viewed with particular surprise or consternation.

SVMIC Enjoys More Financial Success

State Volunteer Mutual Insurance Company, the Tennessee medical malpractice insurer owned by the doctors themselves, has had another profitable year even with its significant rate decrease.

The company, which insures about 75% of the doctors in the state, has announced the following financial results and other data for the year ending December 31, 2011:

  • Net income - $28,012,000.
  • Policyholder's Surplus (equivalent to net worth): $436,424,000
  • 2011 Dividend - $20,100,000
  • Total Dividends paid during company existence - $300,000,000
  • Rate of return on investments - 5.3%
  • Average decrease in premiums over last 3 years - 31%  (mature, base premiums)
  • Insured physicians - 14, 476

The gross premiums written have decreased since 2007 for two reasons. First, SVMIC has lost almost 1600 doctors as clients during that period.  Second, rates have declined substantially during that period.  The combination of the two factors has resulted in a decreased of gross premium written of a little over $90,000,000.  Profits remain high because investment income has remained about the same (actually, it is a little higher) and net paid loss and loss adjustment expenses have increased only about 5% in five years.  Surplus during the 5 year period has increased over 80% despite payment (through premium credits) of $48,000,000.

I expect medical malpractice insurance premiums to stay flat or decrease only slightly  in 2012, unless it experiences pricing pressure from other med mal insurers.  SVMIC is losing market share to other insurers and thus it may be forced to continue to cut insurance rates and maintain dividend credits to keep its share of the marketplace.  Of course, claims experience will continue to be a factor in rates, but pricing pressure and investment income will play a major role as well.

 

Parents Sue for Wrongful Birth of Child With Cystic Fibrosis. What Would Happen in Tennessee?

Insurance Journal reports that the parents of a child born with cystic fibrosis sued various Montana  health care providers,  saying that had they known of the genetic disorder they would have terminated the pregnancy.

Cystic fibrosis causes sticky mucus buildup in the lungs and other organs, leading to infections, digestive problems and death in young adulthood. The typical life expectancy is about 37 years, according to the Cystic Fibrosis Foundation.

The couple alleges that genetic testing the mother underwent in the first trimester failed to explore whether the child was likely to have cystic fibrosis. The parents would have terminated the pregnancy because they claim they were not emotionally or financially equipped to care for a child with that illness.

The defendants deny the claim and ask that the case be dismissed. The defense lawyer said

“In an age where prenatal testing can identify genetic indicators for traits ranging from Down Syndrome to eye color, will the court allow parents to sue for a lost right to abort any child the parent subjectively considers ‘imperfect”’ [Julie] Lichte [the defense lawyer] wrote. “Where do we draw the line?”

Tennessee has case law on wrongful pregnancy when a healthy child was later delivered (Smith v. Gore, 728 S.W.2d 738 (Tenn. 1987)) and wrongful pregnancy where the child was later born with Downs Syndrome (Owens v. Foote, 773 S.W.2d 911 (Tenn. 1990)) but no reported case law directly on point (an allegation of failure of appropriate genetic testing that would have identified an issue that would have lead to termination of the pregnancy).

Regardless of how Tennessee courts would ultimately resolve the issue, however, it would be a real challenge to find a competent lawyer to take on such a case in Tennessee. Why? Winning the typical medical malpractice case is tough. But finding a jury in this state that will give damages for emotional distress to the parents for caring for a child with an illness and who state they would have rather aborted the child would be a hard sell.

Remember, Tennessee requires unanimity in jury trials, and finding twelve people that would give damages for emotional distress in this type of case would be very difficult. Extraordinary medical expenses associated with the condition that arguably should have been discovered? Possible. But emotional distress? Nope, I don't think that dog would hunt in Tennessee, particularly when the disease is cystic fibrosis.

The article “Understanding Tort Law Impacts Created by Scientific Advances of Human Biomonitoring and Genetic Biomarkers” by Gary E. Marchant and Cason Schmit discusses the medicine and the law in this fascinating field.  This publication is from a Defense Research Institute seminar.

New York Attacks Junk Science Used in Defense of Brachial Plexus Case

One of the defenses commonly asserted in an Erb's Palsy medical malpractice case is the "natural forces of labor defense."   The Appellate Division of the Supreme Court of New York recently ruled that a trial judge did not abuse his discretion by ruling that the defense could not be presented to the jury because "defendants failed to rebut plaintiff’s showing that [the] theory was not generally accepted within the relevant medical community" and  that the theory "lacked an adequate foundation for its admissibility."

 Mark Bower, guest blogger at the New York Personal Injury Law Blog, does an excellent job explaining the injury and the creation of a defense to it:

Erb’s Palsy is a neurological injury that is commonly the subject of birth trauma litigation. For over 100 years, it was generally accepted that Erb’s Palsy happens when a baby’s shoulder gets caught in the mother’s birth canal during delivery. If the delivering doctor pulls on the baby’s head in order to dislodge the stuck shoulder, the nerves running down from baby’s neck to the shoulder and arm (the “brachial plexus”) can be stretched or torn, resulting in a crippled arm. That the newborn has a non-functioning arm is usually recognized at the time of birth, or very shortly thereafter.

This mechanism causing Erb’s Palsy was so well-established, that the medical literature used to refer to it as “Obstetrical Brachial Plexus Palsy.” That is, until the medical community started to push back 20 or so years ago, and the waves of “tort reform” gathered momentum.
A small cadre of obstetricians developed a new theory, that contrary to the conventional wisdom, Erb’s Palsy is not due to the delivering physician pulling on the baby’s head or neck after all. Instead, they theorized, it is due to the “natural forces of labor” somehow stretching the baby’s neck during childbirth, so the fault is Mother Nature’s, not obstetrical malpractice.
This new theory was happily embraced by the obstetrical community, as it deflects the blame for Erb’s palsy injuries away from obstetricians and midwives. The same handful of doctors who invented the theory, published it over and over, each one repeatedly citing the others as sources. And so, around and around it went, building a significant body of literature, but with no actual original research or studies validating the theory, other than its proponents continually reinforcing one another. And the same half dozen or so doctors flew around the country, testifying to this theory in the defense of Erb’s Palsy cases, and depriving injured infants of recovery.

This decision reminds Daubert and various state court decisions that require trial judges to exercise some level of "gatekeeper" function before permitting proposed expert testimony to find its way to the jury is a sword that cuts both ways.  Plaintiff's lawyers need to be on the lookout for and attack junk science offered by defendants, especially in medical negligence and products liability cases.

The New York opinion is Muhammad v. Fitzpatrick, CA 11- 01764 ( N.Y. App. Div. Jan. 31, 2012).

Hat tip to the New York Personal Injury Law Blog.

Arkansas Supreme Court Limits Legislature's Efforts To Determine Who Can Testify As An Expert

The Arkansas Supreme Court has rejected an effort by the Arkansas Legislature to define who is permitted to give testimony as an expert witness in a medical malpractice case.

Broussard's medical malpractice case was dismissed on summary judgment after her expert witness was excluded under Arkansas Code Annotated section 16-114-206 (Repl. 2006). Broussard argued that the requirement in section 16-114-206(a) that proof in medical-malpractice cases must be made by expert testimony by “medical care providers of the same specialty as the defendant” violates section 3 of Amendment 80 of the Arkansas Constitution.

 

In Broussard v. St. Edward Mercy Health System, Inc.,  2012 Ark. 14 (Jan. 19, 2012), the Arkansas Supreme Court held that "the provisions in section 16- 114-206(a), which provide that expert testimony may only be given by “medical care providers of the same specialty as the defendant,” violate the separation-of-powers doctrine, Amendment 80, and the inherent authority of the courts to protect the integrity of proceedings and the rights of the litigants.
 
This paragraph does a nice job summarizing the controversy and the result:
 
According to the circuit court, the phrase “a medical care provider of the same specialty as the defendant” is constitutional because it constitutes substantive law setting out the burden of proof.  Substantive law “creates, defines, and regulates the rights, duties, and powers of parties.”  Johnson, 2009 Ark. 241, at 8, 308 S.W.3d at 141 (quoting Summerville v. Thrower, 369 Ark. 231, 237, 253 S.W.3d 415, 419–20 (2007)).  In contrast, procedural law prescribes “the steps for having a right or duty judicially enforced, as opposed to the law that defines the specific rights or duties themselves.” Id., 308 S.W.3d at 141 (quoting Summerville, 369 Ark. at 237, 253 S.W.3d at 419–20).  Procedural matters lie solely within the province of this court.  Id., 308 S.W.3d at 141.  The General Assembly lacks authority to create procedural rules, and this is true even where the procedure it creates does not conflict with already existing court procedure.  Id., 308 S.W.3d at 141.  
 
The Court went on to explain that it had a rule (Rule 702 of the Arkansas Rules of Evidence, which is very similar to  TRE 702) which governed the procedure to be following in determining whether an expert would be permitted to testify.  The Court explained that "the challenged language, “By
means of expert testimony provided only by a medical care provider of the same specialty as
the defendant,” which adds requirements to Rule 702, attempts to dictate procedure and invades the province of the judiciary’s authority to set and control procedure.  As such, it violates the separation-of-powers doctrine, Amendment 80, and the inherent authority of the courts to protect the integrity of proceedings and the rights of the litigants."  [Footnote omitted.]
 
Here is the text of Section 3 of Amendment 80:  " The Supreme Court shall prescribe the rules of pleading, practice and procedure for all courts; provided these rules shall not abridge, enlarge or modify any substantive right and shall preserve the right of trial by jury as declared in this Constitution."
 
In Tennessee, and in many places across the nation,  legislatures are passing bills that attempt to address matters that have historically been left to the judicial branch of government.  For example, the Tennessee General Assembly recently passed legislation that attempts to redefine the standard of review that must be applied by the courts when evaluating a motion for summary judgment made pursuant to Rule 56 of the Tennessee Rules of Civil Procedure.   The unanimous opinion in Broussard indicates that the Arkansas Supreme Court does not intend to permit temporary political winds to cause damage to the separation of powers doctrine that has well-served this country and its fifty states for centuries.

 

Evaluating Chest Pain in the Emergency Room

This article by an emergency room physician in Texas providers a good summary for the evaluation of chest pain in the emergency room.  

The article explains that "The decision to discharge a patient who presents with chest pain as the primary complaint should be made only after careful consideration of potential consequences. Patients with myocardial ischemia (MI), angina, pulmonary embolism, dissecting aortic aneurysm, or pneumothorax all can present with chest pain. Your evaluation and documentation should take into consideration all of these high-risk conditions."

The author explains the importance of documentation with these words:

 

Use the following guidelines to establish consistent documentation habits.

  • Remember the chief complaint. Given the presenting symptom, document pertinent negatives that rule out high-risk possibilities.
  • Document pertinent positives that support your diagnosis, treatment, and disposition of the case.
  • Double-check your documentation to see whether the chief complaint, history, and your findings support the diagnosis.
  • Directly address any suspicion of MI, pneumothorax, dissecting aneurysm, or pulmonary embolus. Verbalize your suspicions, and note them in writing.

This article was written over 20 years ago, but a professional liability insurer still considers it to be so valuable that it is included on its website as a resource for emergency room doctors

 

Defense Costs in Medical Malpractice Cases

This article from www.claimsjournal.com reveals data from the Physician Insurer's Association of America on the monies spent on defense costs in medical malpractice cases.

The PIAA reviewed closed claim data for 2009 and found that the average defense costs for medical malpractice lawsuits was $69,244 for cases that settled and ranged between $140,000 and $170,000 for cases that were tried.

The rates paid were not disclosed.  The article did not discuss whether "defense costs" included expenses such as court reporter fees, expert witness fees, etc.  Given the numbers that were disclosed, I assume that such expenses were not included in the amounts.

The numbers are not surprising and, if anything, are a little lower than I would expect.  Of course, these are average figures, and my guess is that the cost of defending birth trauma cases and multi-defendant cases are substantially higher.

Medical Malpractice Caps Hurt Patients

Here is a great article by Shirley Svorny of the well-known liberal outfit, the  Cato Institute.  The article originally appeared in The Huffington Post:.

The U.S. House is set to consider on the Republicans' Jobs Through Growth Act, which contains a section aimed at reforming medical malpractice by imposing caps on economic and non-economic damages similar to those in place in Texas. Texas limits non-economic and exemplary (punitive) damages in all cases, and limits what relatives can get in cases of wrongful death. An obvious disturbing consequence is that caps reduce compensation to severely-injured individuals. Caps would hurt consumers in a second way — lower damage awards would reduce medical professional liability insurers' financial incentives to reduce practice risk.

Much of the protection consumers have against irresponsible and negligent behavior on the part of health care providers hinges on oversight and incentives created by the medical professional liability insurance industry. A nationwide shift to caps could result in more cases of negligence and substandard care.

Support for caps comes from individuals who see the medical malpractice system as broken, largely based on anecdotal observations. Everyone seems to have heard a story of a high verdict to a plaintiff whose claim was not valid. Yet, careful studies suggest these cases are anomalies, and the court system generally works. While there are no statistics for the country as a whole, based on the existing evidence, we can say confidently that a good chunk of initial claims (likely more than three-quarters) do not move forward because no negligence was involved. The vast majority of cases that do move forward settle.

This means that court signals from earlier trials are clear. If court awards were random, one would expect many more cases to go to court as there would be an expectation of an award even where there was no negligence. Many cases go to court because plaintiffs think they have a case when they do not. We know this because plaintiffs rarely win; less than a quarter of all cases that go to court are resolved in favor of the plaintiff. At least one study found court findings of negligence lined up with assessments by impartial reviewing physicians.

Critics of the legal system point out that many cases of negligence are not reported or adjudicated. However, every review has found claims are concentrated among a very small subset of physicians; less than five percent of physicians are responsible for the overwhelming share of claims. Even if a large percentage of negligent actions are not reported, it would seem that the present system works in identifying physicians whose practice patterns put patients at risk.

For the system to work to reduce practice risk, malpractice premiums must be experience rated — physicians who exhibit risky behaviors must face higher malpractice insurance premiums than their less-risky peers. The conventional wisdom among health policy experts has been that experience rating does not occur. But this is not true: high-risk physicians pay up to 500% more for insurance than their less-risky peers.

Insurance companies specialize. Some only insure physicians with spotless records. Others, the surplus lines carriers, specialize in underwriting the highest-risk physicians — at any given time between two and ten percent of practicing physicians. As one broker put it, because it is so costly, being forced into the surplus lines market gets a physician's attention and motivates efforts to reduce practice risk.

New procedures are often left to surplus lines carriers to underwrite, adding a layer of oversight to the introduction of new procedures such as Lasik eye surgery and laparoscopic gallbladder surgery. On rare occasions, carriers deny coverage, which precludes affiliation with most hospitals and health maintenance organizations — which effectively means these really risky physicians are forced out of practice, which is exactly the desired result.

Beyond individual underwriting to identify at-risk physicians, the medical professional liability insurance industry makes significant contributions to risk reduction in other ways. Companies offer premium discounts to physicians who take risk management seminars. The Physicians Insurers Association of America's Data Sharing Project identifies risky practice patterns. High insurance premiums motivated anesthesiologists to evaluate the risk associated with their practice patterns. As a result, anesthesiology is much safer than it used to be. Some insurers visit physician offices to evaluate safety and risk.

In 1992, when Congress tried to "help" community and migrant health centers by taking on their malpractice risk, many of the health centers resisted, lamenting the loss of the risk-management services the private carriers supplied.

Under the current system, liability motivates these efforts to reduce risk. Reducing liability, as caps do, is rarely a good idea in any situation. Placing caps would reduce malpractice insurers' incentives to oversee physician practice patterns and reduce incentives to manage risk in our health care system, and make health care that much riskier for all of us. 

I have been a Tennessee medical malpractice lawyer for 30 years.  It is unfortunate that the risk of financial loss is necessary to force some people to do the right thing, but it is a fact of life.  Caps on damages in any personal injury or wrongful death case to not encourage safe practice.

Why Brain Damage Occurs in Premature Births

NPR reports that a recent meeting of the Society for  Neuroscience  discussed why brain damage occurs in premature births.

Research has revealed that the most common cause of brain injury in premature infants is a lack of oxygen in the days and weeks after birth.  Apparently, the lack of oxygen damages white matter, which provides the "communication highways" that carry messages around the brain and to distant parts of the body.  The babies at greatest risk of this sort of brain damage are those born after as little as six months of gestation.

This lack of oxygen appears to damage the most common type of white matter, myelin, which acts like an insulator around the nerve fibers that carry messages in the brain and nervous system. Without enough myelin, short circuits can prevent these messages from getting through.  Evidence of white matter damage was initially found by studying brains from premature infants who died, but recently the researchers have been able to assess premature infants using a special incubator designed to fit in an MRI scanner.

There is no definitive way to prevent or treat this damage, but  current prevention efforts include everything from the magnetic stimulation of certain areas of the brain to temporarily lowering the body temperature of premature infants to protect brain tissue.  

As Tennessee birth injury attorneys, it is wonderful to see this research begin to bear fruit.  Hopefully, the science in this area will continue to develop and brain injuries will be prevented or, if they occur, treated in a way that will reduce the impact of the injury on the child and the child's parents.

Brief Seeking Recovery of Medical Expenses Charges Under Tennessee's Medical Malpractice Law

In medical negligence cases in Tennessee there is often a dispute about whether the plaintiff can recover the amount of the medical charges or the amount actually paid by the private insurer or governmental entity like Medicare.   This is a recent brief on the subject prepared by Brandon Bass,  a fine lawyer who works with our firm.

It is hard to believe that this issue has not yet been addressed by our supreme court. 

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What Is Going Wrong With Patient Safety in Health Care?

The Doctor's Company sells medical malpractice insurance to doctors.  In 2010, it conducted  525 patient safety site surveys. The surveys  were conducted across a range of practice environments around the country—from small office practices to large integrated delivery systems, hospitals, and outpatient facilities, such as surgery centers.

The survey found that in the 15 categories it surveyed,  medical record documentation was the category with the most frequent patient safety/risk management issues. A total of 266 surveys—more than half of the 525 site surveys—had at least one issue related to this category. Top findings within this category included the failure to document allergy status in the same location in each record and the lack of a problem list or a list of current medications.

The research also disclosed that  two combined categories—lab tests/referrals and scheduling/follow-up—came a close second with issues in 234 of the surveys. Although the categories are individually ranked fourth and fifth,searchers determined that  the  they are so closely related that a finding in one typically leads to a finding in the other.

The findings included a failure by the practitioner to review and sign all test results; no follow-up for missed appointments; and no tracking system to ensure that the ordered test was performed, the report received, the patient informed, and appropriate follow-up accomplished.

The third category identified medication management as an issue in 195 of the surveys. The issues in this category included medications that were drawn up in unlabeled syringes, absence of a system for storing and managing sample medications, and failure to ask patients for an updated list of current medications.

Go here to read more and to see an excellent list of tips on how health care providers can take steps to minimize the risks identified in the survey.

He Killed His Momma But Is Permitted to Sue His Psychiatrist?

Sounds outrageous, doesn't it?  A guy  kills his mother and then the Georgia Supreme Court says he has a right to sue his psychiatrist for inappropriate psychiatric treatment that gave rise to the death of his mother.  

It is outrageous only if you know nothing about either law or medicine.

Psychiatrists are trained to help people who have mental illness (duh).  Some psychiatrists are good.  Some are bad.  Some good psychiatrists will, from time to time, fall below the standard of care and cause harm to a patient.

There are a fair number of cases every year in which the family of a suicide victim will claim that a psychiatrist or other mental health professional negligently cared for the decedent.  Some think that those cases should be barred, but Tennessee law allows a jury to determine whether recovery is appropriate so long as there is expert proof supporting the claim of both negligent treatment and causation.  See, e.g. White v. Lawrence, 975 S.W.2d 525 (Tenn. 1998).   Bruscato v. O'BrienS11G0660 (Sept. 12, 2011), is  unusual in that the patient claims that his psychiatrist's negligence (abruptly stopping Zyprexa) resulted in him de-compensate to the point of killing his mother.  Note that Bruscato has been charged, but not yet convicted, of murder.

The defense argued that Bruscato's claim should be barred as a matter of law - that he should not be allowed to profit from his mother's death.  That argument has some emotional appeal to it, but little other appeal.  As the Georgia Supreme Court ruled, " Bruscato’s lawsuit is not wholly related to his act of murder, and it is not wholly designed to profit from that  act. To the  contrary,  his lawsuit relates to the  allegedly improper medical treatment he received from O’Brien and seeks damages for the suffering it caused to him. In this sense, Bruscato is not seeking to profit from the murder
of his mother,  he is seeking damages to  be made whole  from the  allegedly improper  treatment  he  received  from O’Brien." 
 
Makes sense to me.  
 
So, will Bruscato win his case against Dr. O'Brien?  I must confess that it appears like a tough case to me.  As explained in the summary of facts set forth in the opinion,  Bruscato is, shall we say, not the most sympathetic plaintiff.  (One might argue that his plight deserves the most sympathy - he truly appears to be a very sick man.  But the plaintiff's lawyer here has a hard row to hoe to educate a jury on this man's difficulties).
 
That being said, if in fact it is determined that he was "insane" at the time of the murder and negligence and causation is established by the requisite expert proof, a jury should be permitted to conclude that inappropriate health care caused this foreseeable consequence.  Psychiatrists should not avoid accountability for negligent acts just because their patients are severely mentally ill.  Likewise, it is completely  foreseeable that some mentally ill people will harm or kill others.
 
 
 

Florida Supreme Court to Evaluate Constitutionality of Damage Cap in Medical Negligence Cases

The Florida Supreme Court has agreed to determine whether a  limit on noneconomic damages in medical malpractice cases violates the state's constitution.  The law was passed in 2003 as part of a Republican-led effort to limit the rights of medical malpractice victims.  The damages cap in Florida is $500,000 per claimant and practitioner with an aggregate cap of $1,000,000.

Here are the facts of the case as reported by FJA:

In June 2005, Michelle McCall began receiving prenatal medical care at a United States Air Force clinic as an Air Force dependent. On February 21, 2006, test results revealed that Ms. McCall’s blood pressure was high, requiring labor be induced immediately. Ms. McCall remained at the family practice department instead of being transferred to the OB/GYN department. When it was determined that Ms. McCall would require a cesarean section, an Air Force obstetrician was called. Unfortunately, he was unavailable, so the family practice department opted to wait and deliver the child vaginally instead of calling another doctor.

Following the birth of a healthy boy, family members noticed an enormous loss of blood by Ms. McCall. The medical staff dismissed the family’s concerns, claiming her condition was stable. Following complications delivering the placenta, Ms. McCall’s blood pressure began to drop rapidly and remained dangerously low for an extended period of time. The nurse anesthetist monitoring Ms. McCall’s vital signs failed to notify staff, and Ms. McCall’s doctor failed to inquire of the vital signs.

Subsequently, the assigned doctor requested an “immediate” blood count. One hour and twenty minutes later, a nurse finally attempted to draw blood from Ms. McCall, who was unresponsive. She had gone into shock and cardiac arrest due to severe blood loss. Ms. McCall never regained consciousness and was removed from life support on February 27, 2006.

The McCall family filed suit in federal court. In addition to actual damages, the court found noneconomic damages totaling $2,000,000, but limited them to $1,000,000 due to Florida’s medical malpractice statute. Plaintiffs appealed the case to the Eleventh Circuit Court of Appeals, arguing that the cap on damages was unconstitutional.

The appellate court ruled in favor of the defendant on federal constitutional grounds; however, the three judge panel certified four state constitutional questions to the Florida Supreme Court. The questions to the state high court are whether the medical malpractice statute violates the Florida’s Constitution’s provisions pertaining to equal protection, access to the courts, right to trial by jury, and separation of powers. 

Here is the brief submitted on behalf of the plaintiff.  The ABA supports the effort to overturn the caps.

 I do not believe that an oral argument has been scheduled, although the Florida Supreme Court website is not very user friendly.

Kentucky Jury Throws Out Claim of Wrongful Penis Amputatiion

Insurance Journal reports that a Kentucky jury has sided with a physician who is alleged to have amputated a portion of his patient's penis without the patient's consent.

The article states that "[t]he doctor said he decided to amputate less than an inch of the penis after he found potentially deadly cancer during surgery in 2007. The rest of the penis was taken off later by another doctor.  [The defendant doctor] testified that when he cut the foreskin, the tip of the penis had the appearance of rotten cauliflower, indicating cancer. A pathologist later testified that tests confirmed the diagnosis."

The plaintiff argued that the doctor should have allowed the patient to wake up from the procedure and determine whether he wanted the amputation.   He alleged that he only gave consent for a circumcision.   He also alleged negligence in performing the procedure.

I understand the plaintiff's point, but quite frankly I can say with 100% confidence that I would not have accepted representation of the plaintiff in this case.  While I understand and appreciate the argument that the informed consent form may not have permitted to the defendant doctor to amputate any portion of the penis, the problem is that the entire penis was later amputated.  Thus, the fact that the plaintiff went without some portion (about one inch) of his penis for some period of time is (at least to me and probably to the jury ) of relatively little consequence.

Medical malpractice cases are hard.  Really hard.  It is a challenge not letting your emotions drive case selection decisions.   The failure to do so will result in many more losses than wins.

Lawyer Alleges That False Medical Article is Being Used to Defeat Brachial Plexus Injury Cases

Kenneth Levine of Kenneth Levine and Associates of Brookline, Massachusetts has filed a fascinating lawsuit against the authors of an article on brachial plexus injuries and the publication that printed the article.

Levine alleges that the article, "Permanent Brachial Plexus Injury Following Vaginal Delivery Without Physician Traction or Shoulder Dystocia ", was published in 2008 in the American Journal of Obstetrics and Gynecology, and is being used by defense experts to defeat brachial plexus injury claims.  The article claims to report the  "first unambiguous  case of a baby born vaginally  without  physician traction, and even without the occurrence of shoulder dystocia, that resulted in a permanent brachial  plexus  injury."
 
He further alleges that the  case report of the delivery contains false information and the individual defendants knew the data was false when it was published.  The Complaint states that the corporate defendants were later made aware of the falsities and have refused to retract the article.
 
On what basis does Mr. Levine allege that the data was false?  A medical malpractice claim arose out of the original delivery and the defendant doctor (a co-author) is said to have admitted in her deposition in that case that she had in fact used downward traction in delivering the trial.  In addition, the labor and delivery notes indicate the presence of shoulder dsytocia.
 
The other co-author of the case report was Dr. Henry Lerner.    He is alleged to have later admitted (during expert testimony in a different case in Illinois)  to not reading the labor and delivery notes in the case before co-authoring the case report.
 
Mr. Levine has indicated that Dr. Lerner has filed an Answer to the Complaint and that a motion to dismiss is being filed by the magazine publisher.
 
As I said above, this is a fascinating case and an aggressive strategy to defeat  what has the risk of being labeled as "science."   The problem, of course, is that one case report will, sooner or later, get picked up by some other author and over time walls against liability are built that are difficult to overcome.  Even legitimate experts - on either side - who are unaware of the truth behind an article will be forced to admit (or rely upon) this type of literature to support their position.   Mr. Levine, who has a nationwide practice in such cases, is bound and determined to stop what he believes to be junk science from interfering with the quest to find truth in the courtrooms in brachial plexus cases.
 
The case is Gorbey v. American Journal of Obstetrics & Gynecology, No. 1:11-CV- 11259-NMG.  It is pending in the U. S. District Court for the District of Massachusetts.
 
If the remedy is available, I suggest that Mr. Levine explore the possibility of getting an injunction against the authors from using this case report to support their testimony.  Such a court order then could also be used in cross-examination of other experts who attempt to rely on the article.  ("Were you aware, Doctor, that a federal court has ordered  that the authors of that article cannot use the article as a basis for expert testimony because it was determined to have been false?")  
 
The case against the publishers reminds me of the case based on the Good Housekeeping Seal of Approval, where the plaintiff claimed that she relied on the Seal of Approval in buying a product she claimed to be defective.  The California Court of Appeals ruled that while a publisher or advertiser of a product cannot usually be held liable for its defects, if it gives a consumer guaranty which induces members of the public to buy its products, it will generally be held to the terms of that guaranty, because it has extended a duty to the public by making said guaranty."  The case is Hanberry v. Hearst Corp., 276 Cal. App. 680 ( Cal. App. 1969).  My memory is that similar claims have been made against Underwriter's Laboratory (the "UL" seal).
 
What is the similarity?   The Ob-GYN Journal is a very respected publication - one that is readily accepted as a leader in its field.  While arguably it cannot be expected to delve into the facts behind every case report, should it have a responsibility to correct the record when sworn testimony indicates, as alleged here, that a case report is wrong?  Doesn't the failure to do so induce doctors serving as expert witnesses to rely on the case report, thus impacting the result in what might otherwise be meritorious cases?  True, Hanberry is not directly on point, but I have seen worse arguments for the extension of existing law.
 
I will keep you advised as this case develops.  
 

 

New Data on Medical Malpractice Claims

Max Kennerly has  a great post on a study on medical malpractice that was recently published in the NEJM.  Read it here.

Are There More Errors in Hospitals in July?

Are you more likely to get hurt in the hospital in July?  This article from the New York Times says "yes," if you are in a teaching hospital.

The Times  article references to a paper published earlier this month in Annals of Internal Medicine,.  The paper examines previous studies of the "July effect," and while the analysis found inconsistencies among nearly 40 studies examined, the data produced by the largest and best-designed ones indicated that patient death rates in teaching hospitals increase by 8 percent in July.  Those studies also reported longer hospital stays, more drawn-out procedures and higher hospital charges in July, when 20 to 30 percent of the more experienced doctors-in-training leave and a class of newly minted doctors starts working at teaching hospitals.

Those of us who do medical negligence work know that this article makes sense.  The massive shift of medical students and residents in our teaching hospitals every July 1 is bound to lead to errors.

Telephone Triage and Patient Safety

The Doctors Company, a professional liability insurer for physicians, has a "Knowledge Center" on its website that contains lots of useful information.

Here is a great example.  In "Telephone Safety and Patient Triage,"  the writer explains that "implementing an effective telephone triage system in the office practice can improve physician-patient communication, confidence, service, satisfaction, and care. It can also reduce emergency department visits while ensuring access to the appropriate level of care. Telephone triage, which is just one of the ways that telemedicine is practiced, has its own risks."

The paper has some excellent recommendations for physicians on how to establish a safe and effective way to communicate with patients over the telephone.

Death by Medicine

"Death by Medicine" is a report by  Gary Null, PhD; Carolyn Dean MD, ND; Martin Feldman, MD; Debora Rasio, MD; and Dorothy Smith, PhD. 

The report reveals that "that the total number of deaths caused by conventional medicine is an astounding 783,936 per year. It is now evident that the American medical system is the leading cause of death and injury in the US. (By contrast, the number of deaths attributable to heart disease in 2001 was 699,697, while the number of deaths attributable to cancer was 553,251."

The report explains that

 
As few as 5% and no more than 20% of iatrogenic acts are ever reported. This implies that if medical errors  were completely and accurately reported, we would have an annual iatrogenic death toll much higher than 783,936. In  1994, Leape said his figure of 180,000 medical mistakes resulting in death annually was equivalent to three jumbo-jet  crashes every two days.  Our considerably higher figure is equivalent to six jumbo jets are falling out of the sky each day.  (Footnotes omitted.)

 Read more here.

SVMIC Financial Results - 2010

State Volunteer Mutual Insurance Company (SVMIC) had another outstanding year in 2010.  Here are some highlights from its "2010 Report to Policyholders:"

  • Surplus (think: net worth) increased almost 20% to $444 million, up from $364 million in 2009.
  • Earned premiums dropped to $218 million, due to a significant rate reduction (average:  23%) and a decrease in the number of policyholders secondary to increased competition in the marketplace.
  • Despite a decrease in earned premiums of over 15% (totaling over $43M),  post-tax net income declined only a little over $4M to $67,668,000.
  • Profits as a percentage of revenue were extraordinarily high, at over 25%. 
  • The unpaid loss and loss adjustment expense reserve actually dropped for 2010, a very unusual result.
  • On February 22, 2011, the company declared another $20M dividend to its policyholders.  This will decrease rates by an average of about 9%.  This follows a dividend of $20M in 2010.

SVMIC's 2011-12 rate filing will be available shortly and, I predict, will show further rate declines.

Of course, the tort reform measures virtually certain to be enacted into law in the next couple weeks will further enhance this company's profits.  

SVMIC has done an excellent job capturing a significant portion of the market for medical malpractice insurance in less than 40 years. 

 

Patients Are Dying From Unheard Alarms

The Boston Globe reports that more than 2000 people died in a period of a little more than five years because of issues arising from alarms on hospitalized patients.  The cause in many cases:  personnel did not notice that the alarms were sounding or ignored them.

From the article:

 

The Globe enlisted the ECRI Institute, a nonprofit health care research and consulting organization based in Pennsylvania, to help it analyze the Food and Drug Administration’s database of adverse events involving medical devices. The institute listed monitor alarms as the number-one health technology hazard for 2009. Its review found 216 deaths nationwide from 2005 to the middle of 2010 in which problems with monitor alarms occurred.

But ECRI, based on its work with hospitals, believes that the health care industry underreports these cases and that the number of deaths is far higher. It found 13 more cases in its own database, which it compiles from incident investigations on behalf of hospital clients and from its own voluntary reporting system.

There is more:

The Globe, with the help of ECRI, reviewed copies of 216 reports that device manufacturers filed with the FDA on deaths in which problems with monitor alarms occurred. The names of hospitals and patients had been removed for privacy reasons.

Initially, hospitals almost always blame the monitor’s alarm for not sounding when it should have, according to the reports. But the company investigations show that assertion is often false.  

The Boston Globe article is an example of what real newspaper reporting used to be like before the McNews era. Read and become informed about this very real problem.

 

 

 

 

 

 

 

Hospitals Fail to Follow-Up on Test Results

A new study reveals that as many as 75 percent of hospital tests are not followed up and this failure can have serious consequences for patients, including delayed or missed diagnoses and even death.

The study is a "study of studies,"  and looked at 12 international studies.  The work showed that between 1% and 75% of tests run on ER patients were not followed up after the patients were discharged. For inpatient tests the rate was 20% to 65%.

The study is  published in the Feb. 8 edition of the journal BMJ Quality and Safety.

 

Adverse Event Protocol in Anesthesia

The Anesthesia Patient Safety Foundation has released this Adverse Event Protocol discussing what should be done when things go bad for a patient receiving or who is under anesthesia.

As the author of the plan explains, the "plan of action will help minimize damage to the patient (and also to the involved practitioners) as well as promote understanding and learning that will help prevent recurrence or repetition of the adverse event."

This is a very good piece of work by the APSF and they are to be commended for creating it.  

Lies, Damn Lies and Medical Malpractice Reform

Tennessee consumers injured by medical negligence are facing a full assault on their right to trial by jury.  Some members of the new General Assembly seem hell-bent on placing arbitrary caps on damages, notwithstanding the fact that medical malpractice lawsuits are down over 40% and malpractice insurer profits are soaring.

Max Kennerly, one of my favorite bloggers, has a great post on similar efforts in Congress.   Here is an excerpt:

Even if we put aside the fact that, for every dollar spent on compensating the victims of medical negligence, more than $5 dollars in damage was caused by medical negligence, it bears repeating that the overall costs of compensating injured patients is so small that it the medical malpractice liability system does not restrict access to health care. Similarly, malpractice lawsuits have not been shown to change of physician behavior — so-called “defense medicine” — even in high-risk, high-liability cases like obstetricians’ decisions to perform c-sections when the baby shows signs of fetal distress.

Read the entire post to learn how one Congressman from Georgia misquotes a respected report to advance his effort to protect hospitals and doctors from responsibility for their errors.

Great job, Max.

Preventing and Management of Operating Room Fires

The Anesthesia Patient Safety Foundation has created a video that discusses how to prevent and manage fires that occur in the operating room.

The video is 18 minutes long and was released in February 2010.

Here is what the organization says about operating room fires:

The most notable finding when cases of operating room fires are reviewed is that most if not all are preventable! This video is intended to promote the best practices known to prevent the potentially devastating complication of a fire in the operating room. Each member of the operating room care team has a role to play in preventing operating room fires.

You may view the video here.  Here is additional commentary for the anesthesia professional and the ENT Surgeon.

 

2010 Medical Malpractice Reports Due March 1, 2011

The Tennessee Department of Commerce and Insurance has put the medical malpractice case reporting form on its website.   The reports must be filed on or before March 1, 2011.

Plaintiff's medical malpractice attorneys who concluded a case in 2010 must complete this form.

Upcoming TBA Speech - January 5, 2011 Noon CST

I will be speaking on a Webcast seminar on January 5, 2011 at Noon CST discussing the developments in the law of notice and certificates of good faith in medical malpractice cases.  I will also discuss service of process issues after the decision in Hall v. Haynes.

The seminar is sponsored by the Tennessee Bar Association.  The price is $45 for TBA members and $65 for non-TBA members.   One hour of CLE credit will be earned.

Register here.

Federal Judge Rules That Certificate of Good Faith Must Be Filed in FTCA Med Mal Cases

Judge Mays of the United States District Court in Memphis has dismissed a medical malpractice case filed against the United States under the Federal Tort Claims Act because the plaintiff did not file a certificate of good faith as required by T.C.A. Sec. 29-26-122.

Judge Mays held that the federal courts should apply Tennessee substantive law on the issue and that the failure to file the certificate required dismissal of the case.

The judge also dismissed the loss of consortium claim brought by the medical malpractice plaintiff's spouse, saying that her claim was derivative to her husband's claim and since his claim was rejected for failure to file the certificate the loss of consortium claim was also barred.

The case is Williams v. United States of America, 2010 WL 4736907 (W.D. Tenn. Nov. 16, 2010).

NY Times: "Study Finds No Progress in Safety at Hospitals"

The November 25, 2010 New York Times has reported on a study that has found that no progress has been made at improving patient safety in hospitals.

The study is reported in last week's New England Journal of Medicine.  It was conducted from 2002 to 2007 in 10 North Carolina hospitals, found that harm to patients was common and that the number of incidents did not decrease over time. The most common problems were complications from procedures or drugs and hospital-acquired infections.  

As the author explained,

[t]he researchers found a high rate of problems. About 18 percent of patients were harmed by medical care, some more than once, and 63.1 percent of the injuries were judged to be preventable. Most of the problems were temporary and treatable, but some were serious, and a few — 2.4 percent — caused or contributed to a patient’s death, the study found.

The article went on to say this: 

recent government report found similar results, saying that in October 2008, 13.5 percent of Medicare beneficiaries — 134,000 patients — experienced “adverse events” during hospital stays. The report said the extra treatment required as a result of the injuries could cost Medicare several billion dollars a year. And in 1.5 percent of the patients — 15,000 in the month studied — medical mistakes contributed to their deaths. That report, issued this month by the inspector general of the Department of Health and Human Services, was based on a sample of Medicare records from patients discharged from hospitals.

Evidence continues to mount that patient safety has taken a back seat to greater profits in the health care industry, but the drumbeat for restricting patient's rights continues. 

Read the NYT article here.

State Volunteer Mutual Insurance Company's Profits Explode

Yesterday  I reported that SVMIC, the bedpan mutual that insures the vast majority of Tennessee doctors,  reduced its rates by 23.1% .  I also reported that  the company declared a $20,000,000 dividend.  The net effect of the dividend means that policyholders with a history of no paid claims will receive another 8% reduction (or so) in rates effective May 15, 2010.

How can SVMIC cut rates so dramatically while paying the highest dividend it has paid in years?   There are two reasons.   First, as a result of the tort reform passed effective October 1, 2008 (revised effective July 1, 2009) claims have decreased substantially.   Fewer claims means reduced claims handling costs, defense fees, court reporter and other litigation fees, and claims payments.  Since the law permits insurers to "write off" reserves as they are established, fewer claims means that reserves are lower than these would have otherwise been had there been more claims.   A decrease in the need to set aside money in reserves for these "absent" claims increases net income.

And how it has increased.   In 2009, SVMIC had a net income (after taxes) of a whopping  $71, 968,000, an increase of over 100% from a year earlier.  

The company had revenues of  $289,482,000 in 2009.  That means its after-tax income was almost 25% of revenue.     For comparison purposes, Walmart's net income was about 6% of its revenue.  Exxon Mobile's was about the same.

Here is a number that is even more shocking.   SVMIC's surplus (think:  net worth)  increased over $100,000,000 in one year, from $251,321,000 to $364,163,000.     Remember, this company has only been in existence about 35 years.

Does this mean that the company will stop its efforts to reduce the right of malpractice victims to have a jury determine the value of their case?  No way.  Here is what the company told its doctor/owners:  "The uncertainty of awards in our civil court system makes the process [of establishing reserves] exceedingly difficult."   Caps on damages will simply that effort, and that is why the company will continue to fight for them, regardless of its profitability.

One last point.  SVMIC is cutting rates not only because of an abundance of wealth but also because of increased competition in the marketplace.   Med mal insurers are in what is known as a "soft market," and thus are scrambling to lower rates to maintain market share.  When rates go up (they always do) medical malpractice victims and juries will be blamed (they always are).

Medical Malpractice Insurer Slashes Rates

In recent days I have shared several posts (here, here, here, and here) concerning the substantial reduction in the number of medical malpractice cases filed in Tennessee since the enactment of the law that mandates pre-suit notice and filing of a certificate of good faith.

Thus, it is not surprising that State Volunteer Mutual Insurance Company, the doctor-owned medical malpractice insurer that insures the vast majority of non-university based physicians in Tennessee, has slashed medical malpractice insurance rates.

The average rate decrease, effective for renewals on or after May 15, 2010, is $23.1% at $1M / $3M insurance policy limits.    There are different rates of decreases depending on specialty, dividend status, limits, years in practice, and other factors. 

Why the decrease?   A letter to insureds attributes the decrease to "the latest downward trend in the frequency of claims ...."   I have reported on this trend before in this post and others.

But that's not all.  SVMIC also announced a $20,000,000 dividend to its insureds.  The dividend will further reduce premiums because it will be paid as a credit on policies renewed during the 12 months beginning May 15, 2010.   One-fourth of the dividend will be based on the total premiums paid during the last 5 years.   Three-fourths of the dividend will be paid based on paid-claims experience.   Doctors who had claims but no paid claims will still receive a merit dividend.

The average rate decrease of 23.1%  follows rate decreases of 2.5% in 2009  and 4.2% in 2007.  (I cannot put my hands on what happened to rates in 2008.  I will try to find out what happened.)   I predicated in July of 2009 that SVMIC would reduce rates again in 2010, but I admit I did not foresee a 23% decrease.   When coupled with dividend, many SVMIC doctors will see a premium reduction of over 30% for renewals on and after May 15, 2010.

So, if tort reform has already reduced malpractice insurance rates, is there any legitimate reason to further restrict patient rights to file medical malpractice claims?

Tennessee Medical Malpractice Case Filings - Part 4

This is Part 4 of my report on medical malpractice filings in Tennessee for 2010.  (Here is Part 1, Part 2, and Part 3.) Today, I examine the county where I live, Williamson County.    

Williamson County, Tennessee is on the southern border of Davidson County, which is the home of our state capital, Nashville.  In 2010 Williamson County had 180,891 residents.  Almost 90 percent of those residents were white and about 5% of them were African-American.  The average household income was almost $122,000 per year and the per capita annual income was about $42,000.    Over 56% of the people in the county have attained at least one college degree.

Williamson Medical Center is a 185-bed hospital in Franklin.  It provides comprehensive inpatient and outpatient care.  It has an active emergency room and has physicians on-staff in some 36 specialties.

The hospital had over $130,000,000 in net patient revenue in the year ended June 30, 2009.  (I do not have access to more recent data, but almost certainly revenue did not decrease.)   There were 33, 286 patient days of admissions at the hospital; about two-thirds of those admitted lived in Williamson County.  There were 1341 babies delivered alive, and three born dead.  There were35, 601 patients treated in the ER.

The hospital employs 9 physicians and 284 nurses who are involved in patient care.  There are 544 physicians who have staff privileges, 516 of whom are board-certified.  

It is unclear how many outpatient procedures there are in a given year, but since outpatient revenues are over 60% of all net revenues it is fair to assume that the number is substantial.

There is one other hospital in the county, Rolling Mills Hospital.  It is a psych hospital that did $9,000,000 in revenue in fiscal 2009 and had 12,328 in-patient patient days.

There are several ambulatory surgery centers in the county. The Bone and Joint Surgery Center is now owned by Vanderbilt and has 12 surgeons. It did 5026 procedures in 2008.  The Cool Springs Surgery Center did 8136 procedures in 2008.  The Williamson Surgery Center did 5454procedures.  The Vanderbilt Williamson County Cancer Center did 19,715 treatments on 515patients.

There are five nursing homes and two outpatient diagnostic centers in the county.  There are also three home health agencies.

There were 215 dentists in the county in 2009.  I do not know how many dental visits there were in the county.   I was unable to learn how many visits there were to doctors' offices in the county.

In summary, though, I think it is fair to say that there are 1000 or more health care professionals in Williamson County, Tennessee who care for 1000s of patients every single day in a large variety of health care settings.  There is a risk of error with each interaction, and a risk of injury connected with some number of the errors.

What was the total number of medical malpractice cases filed against all health care providers in Williamson County, Tennessee in the year ended September 30, 2010?

Four.   Just four.    

Tennessee Medical Malpractice Case Filings - Part 3

 This is Part 3 of my report on medical malpractice case filings in Tennessee.  (Click to read Part 1and Part 2.)  Here are the case filings for some of the larger counties in the state for the year ended September 30, 2010:

 

County                                                          

Shelby                         88                                   

Davidson                    67     

Knox                           27   

Hamilton                    17        

Rutherford                 11        

Montgomery                4      

Washington                 9      

Sullivan                       10         

Maury                           4         

Sumner                        8        

Anderson                    7           

Wilson                          2         

Dickson                       1          

As of the end of October, 2010, 55 counties had no medical malpractice cases filed in the 12 months preceding September 30, 2010 and seventeen counties only had 1 medical malpractice case filed in the period.

I will share Part 4 of the series tomorrow.

 

Tennessee Medical Malpractice Case Filings 2010 - Part 2

Yesterday I wrote about the decrease in the number of medical malpractice case filings since the new law requiring pre-suit notice and a certificate of good faith went into effect October 1,2008.    As I mentioned, the total number of medical malpractice lawsuits filed for the one-year period ending September 30, 2010 was 313.

Tennessee has approximately 6,100,000 people.  Assuming that there was a single plaintiff in each case (which is almost always true except for loss of consortium claims in injury cases) simple math tells us that there was one claim filed for every 20,000 Tennesseans.

There are 137 hospitals in the state with about 20,000 hospital beds.  There are 317 nursing homes with 36,276 beds.  There are about 18,560 non-federal licensed physicians. There are also almost 62,000 registered nurses.    There are 954 physicians' assistants, 4853 nurse practitioners and 4,196 dentists.  Each of these providers is a potential defendant in a malpractice case.   Add to this some number of x-ray techs, ambulance drivers, etc.

Now remember:  there were only 313 medical malpractice suits actually filed for the year that ended September 30.

Of course, we don't know how many health care providers were sued in each case.  Many cases involve only one provider, but it is true that a good number of  cases involve multiple providers, especially because one provider  who was sued will assert that a health care provider who was not sued committed medical malpractice and needs to be added as a party defendant.  

Even if there are an average of three providers as defendants in medical malpractice cases (a number that is probably high)  there are relatively few health care providers sued  given the number of health care providers.in Tennessee.   

I would be willing to bet that every single hospital risk manager in the state has incident reports in his or her desk drawer that are clear cases of malpractice that never result in claims.  Indeed, I will go further and say the number of meritorious cases that each hospital in the state has actual knowledge of (through incident reports) exceeds the number of cases actually filed against the facility by a factor of five or more.  

How can I say this with any confidence?  The Institutes of Medicine told us over a decade ago that 98,000 people die per year from medical malpractice in our hospitals.  Tennessee has about 2% of the nation's population.  Thus, about 2000 people die in Tennessee every year from malpractice in hospitals.  

As I said above, there were 313 claims filed last year.  Those claims were not just death claims - they were injury and death claims.  My guess - a guess based on almost 30 years of work in this area - is that there are more injuries caused by medical malpractice than there are deaths from malpractice.  

In any event, if 2000 Tennesseans died from malpractice  in a given year and there are about 300 death and injury cases filed that year, that means that no less than 1700 valid death cases were not filed.  I am not saying that they should have been filed - families with valid cases have every right not to pursue a case.  I am saying that there were valid death cases that could have been filed and that there were thousands of valid injury cases that were not filed.

One might legitimately ask this question:  Does Tennessee have a problem with too many medical malpractice cases that find their way to the judicial system?  Or too few?

More on this subject next week.

Note:  all data concerning numbers of hospitals and health care providers is 2008 data.  See the source here.   There is no reason to believe that the data has changed materially. 

Tennessee Medical Malpractice Case Filings 2010 - Part 1

The preliminary numbers are in for 2010 and demonstrate that the statute providing for the giving of notice and filing a certificate of good faith has dramatically decreased the number of medical malpractice filings in Tennessee.  The new law came in to effect on October 1, 2008 and was modified effective July 1, 2009.

You may remember that 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, some of which were filed  as lawyers took action to avoid the burden and risks of filing cases under the new law.  

 For the year ending September 30, 2009,  the first year that the new law was in effect, available data indicates that only 263 medical malpractice lawsuits had been filed.  Because  there were a larger-than-usual number of filings before the new law came into effect,  it is fair to say that filings were lower than one would expect in an ordinary year.

The filings for the year ending September 30, 2010 give us a much more accurate view of how the new law has impacted medical malpractice filings.  Why?  First,  one year's data on any subject is almost always less reliable than two years of data on the subject.  Second, lawyers who handle medical malpractice cases have a growing familiarity with the law and thus by now have achieved sufficient comfort with the burdens placed by new law that filings should be leveling out.

So, what is the result?  For the 12-month period ending September 30, 2010,  a total of  313  medical malpractice cases were filed in Tennessee.   This tells us that filings are down somewhere in the neighborhood at least  40 %, depending on how one views the September 2008 filings.   For instance, if one assumes that  if the new law had not been passed there would have been an equal number of cases filing in September 2008 that had been filed, on average, in the 11 preceding months (45 per month),  then 2010 filings are down by 222 cases, or 40.7%. 

Tomorrow I will share additional data.

Note:  the "313" filing figure may be adjusted slightly in coming weeks.   Several counties have not yet reported filings, but all of the major counties have reported their filings.

Tennessee Medical Malpractice Case Filings 2010 - Part 4

This is Part 4 of my report on medical malpractice filings in Tennessee for 2010.  (Here is Part 1, Part 2, and Part 3.) Today, I examine the county where I live, Williamson County.    

Williamson County, Tennessee is on the southern border of Davidson County, which is the home of our state capital, Nashville.  In 2010 Williamson County had 180,891 residents.  Almost 90 percent of those residents were white and about 5% of them were African-American.  The average household income was almost $122,000 per year and the per capita annual income was about $42,000.    Over 56% of the people in the county have attained at least one college degree.

Williamson Medical Center is a 185-bed hospital in Franklin.  It provides comprehensive inpatient and outpatient care.  It has an active emergency room and has physicians on-staff in some 36 specialties.

The hospital had over $130,000,000 in net patient revenue in the year ended June 30, 2009.  (I do not have access to more recent data, but almost certainly revenue did not decrease.)   There were 33, 286 patient days of admissions at the hospital; about two-thirds of those admitted lived in Williamson County.  There were 1341 babies delivered alive, and three born dead.  There were35, 601 patients treated in the ER.

The hospital employs 9 physicians and 284 nurses who are involved in patient care.  There are 544 physicians who have staff privileges, 516 of whom are board-certified.  

It is unclear how many outpatient procedures there are in a given year, but since outpatient revenues are over 60% of all net revenues it is fair to assume that the number is substantial.

There is one other hospital in the county, Rolling Mills Hospital.  It is a psych hospital that did $9,000,000 in revenue in fiscal 2009 and had 12,328 in-patient patient days.

There are several ambulatory surgery centers in the county. The Bone and Joint Surgery Center is now owned by Vanderbilt and has 12 surgeons. It did 5026 procedures in 2008.  The Cool Springs Surgery Center did 8136 procedures in 2008.  The Williamson Surgery Center did 5454 procedures.  The Vanderbilt Williamson County Cancer Center did 19,715 treatments on 515 patients.

There are five nursing homes and two outpatient diagnostic centers in the county.  There are also three home health agencies.

There were 215 dentists in the county in 2009.  I do not know how many dental visits there were in the county.   I was unable to learn how many visits there were to doctors' offices in the county.

In summary, though, I think it is fair to say that there are 1000 or more health care professionals in Williamson County, Tennessee who care for 1000s of patients every single day in a large variety of health care settings.  There is a risk of error with each interaction, and a risk of injury connected with some number of the errors.

What was the total number of medical malpractice cases filed against all health care providers in Williamson County, Tennessee in the year ended September 30, 2010?

Four.   Just four.   

 

 

 

Tennessee Medical Malpractice Filings 2010 -Part 3

This is Part 3 of my report on medical malpractice case filings in Tennessee.  (Click to read Part 1 and Part 2.)  Here are the case filings for some of the larger counties in the state for the year ended September 30, 2010:

 

County                                                          

Shelby                         88                                   

Davidson                    67     

Knox                           27   

Hamilton                    17        

Rutherford                 11        

Montgomery                4      

Washington                 9      

Sullivan                       10         

Maury                           4         

Sumner                        8        

Anderson                    7           

Wilson                          2         

Dickson                       1          

As of the end of October, 2010, 55 counties had no medical malpractice cases filed in the 12 months preceding September 30, 2010 and seventeen counties only had 1 medical malpractice case filed in the period.

I will share Part 4 of the series tomorrow.

 

Tennessee Medical Malpractice Filings 2010 - Part 1

The preliminary numbers are in for 2010 and demonstrate that the statute providing for the giving of notice and filing a certificate of good faith has dramatically decreased the number of medical malpractice filings in Tennessee.  The new law came in to effect on October 1, 2008 and was modified effective July 1, 2009.

You may remember that 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, some of which were filed  as lawyers took action to avoid the burden and risks of filing cases under the new law.  

 For the year ending September 30, 2009,  the first year that the new law was in effect, available data indicates that only 263 medical malpractice lawsuits had been filed.  Because  there were a larger-than-usual number of filings before the new law came into effect,  it is fair to say that filings were lower than one would expect in an ordinary year.

The filings for the year ending September 30, 2010 give us a much more accurate view of how the new law has impacted medical malpractice filings.  Why?  First,  one year's data on any subject is almost always less reliable than two years of data on the subject.  Second, lawyers who handle medical malpractice cases have a growing familiarity with the law and thus by now have achieved sufficient comfort with the burdens placed by new law that filings should be leveling out.

So, what is the result?  For the 12-month period ending September 30, 2010,  a total of  313  medical malpractice cases were filed in Tennessee.   This tells us that filings are down somewhere in the neighborhood at least  40 %, depending on how one views the September 2008 filings.   For instance, if one assumes that  if the new law had not been passed there would have been an equal number of cases filing in September 2008 that had been filed, on average, in the 11 preceding months (45 per month),  then 2010 filings are down by 222 cases, or 40.7%. 

Tomorrow I will share additional data.

Note:  the "313" filing figure may be adjusted slightly in coming weeks.   Several counties have not yet reported filings, but all of the major counties have reported their filings.

 

Medical Errors

This article from Newsweek reveals some interesting information on medical errors.

An excerpt:

Undoing a culture is hard, especially one steeped in hierarchy and intimidation, where doctors tend to reign supreme and nurses, pharmacists, and technicians fall into the ranks below. “What underlies it is arrogance,” says Pronovost, an anesthesiologist and director of Hopkins’s Quality and Safety Research Group. In his book he describes a run-in with a surgeon who refused to switch from latex to non-latex gloves during a hernia operation, despite Pronovost’s concern that the patient was having a potentially fatal latex-allergy reaction. It was only after a nurse picked up the phone to call the hospital president that the surgeon relented. “This patient,” Pronovost writes, “could have died from ignorance and arrogance—a lethal combination.”

NPR Article: " Costs of Defensive Medicine May Be Overstated"

This article from NPR caught my eye.  Rep. Tom Price (R-GA), a physician, said recently on the House Republican website America Speaking Out that the tab runs "an astounding $650 billion each year. That's 26 percent of all money spent on health care."  

As the article notes, 

 a series of studies published in the current issue of the policy journal Health Affairs suggests that number is not only dramatically too high, but that most of the popular proposals for addressing the medical malpractice problem — particularly capping damages for "pain and suffering" would do little to reduce the practice of defensive medicine.

The article also points to an interesting study which concluded that

capping damages for pain and suffering, which is the top malpractice solution favored by most doctor groups, "was not associated with a significant difference in perceived malpractice risk."

The health care industry has been actively working to restrict patient rights for the last 35 years.  Can you imagine what good would have been accomplished if all of that effort had been put into patient safety projects?

 

Sex Abuse Cases Against Therapists

If you have a potential claim for professional misconduct against a therapist for sexually abusing or inappropriately touching a patient, don't forget that Tennessee has a special act for such torts. 

The act is known as the "Therapist Sexual Misconduct Victims Compensation Act."  It is codified at T.C.A. Section 29-26-201 et seq.  

Under the Act a therapist is "any person who performs therapy regardless of whether the person is licensed by the state."

The Act also has a longer statute of limitations that traditional tort cases in Tennessee.    The statute of limitations is set forth in T.C.A. Section 29-26-208.   Generally speaking, the statute of limitations in such claims is two years and is subject to a "discovery rule" but discovery of the injury does not occur until after the therapy ends.

 

 

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.

 

Trying Medical Malpractice Cases in Nashville

A recent study gives yet another reason of why it is difficult for a plaintiff to win a medical malpractice case in Nashville.

MTSU’s Business and Economic Research Center has released a study that states that puts health care industry’s annual economic impact in Nashville at $30 billion. That represents  an increase of 60 percent since 2004.  The number of jobs in teh Nashville MSA directly tied to the health care industry has grown from 94,000 to more than 110,000.

The study reports that "[m]ore than 56 major health care companies (public and private) have chosen Nashville as their home, and seven of the nation’s 12 leading for-profit acute care hospital companies are located in Nashville, controlling more than one-third of the investor-owned hospitals in the United States."

Believe it or not,  in the Nashville MSA 1 out of 12 occupations was a health care occupation in 2008. paying total wages of $4.7 billion.

Here is the Executive Summary of the report.  The entire report may be read here.

The challenge for the plaintiff's lawyer is to help those health care-related jurors understand that a verdict for a plaintiff in a medical malpractice case is not a verdict against the industry that feeds their family.   Jurors must be persuaded  that every person - doctor, nurse, truck driver or lawyer - is responsible for harm caused by his or her  negligence, and that a verdict for a patient is not an indictment of the entire health care delivery system.

 

SVMIC Financial Results - 2009

On June 15, 2010 I reported that SVMIC, the bedpan mutual that insures the vast majority of Tennessee doctors,  reduced its rates by 23.1% .  I also reported that  the company declared a $20,000,000 dividend.  The net effect of the dividend means that policyholders with a history of no paid claims will receive another 8% reduction (or so) in rates effective May 15, 2010.

How can SVMIC cut rates so dramatically while paying the highest dividend it has paid in years?   There are two reasons.   First, as a result of the tort reform passed effective October 1, 2008 (revised effective July 1, 2009) claims have decreased substantially.   Fewer claims means reduced claims handling costs, defense fees, court reporter and other litigation fees, and claims payments.  Since the law permits insurers to "write off" reserves as they are established, fewer claims means that reserves are lower than these would have otherwise been had there been more claims.   A decrease in the need to set aside money in reserves for these "absent" claims increases net income.

And how it has increased.   In 2009, SVMIC had a net income (after taxes) of a whopping  $71, 968,000, an increase of over 100% from a year earlier.  

The company had revenues of  $289,482,000 in 2009.  That means its after-tax income was almost 25% of revenue.     For comparison purposes, Walmart's net income was about 6% of its revenue.  Exxon Mobile's was about the same.

Here is a number that is even more shocking.   SVMIC's surplus (think:  net worth)  increased over $100,000,000 in one year, from $251,321,000 to $364,163,000.     Remember, this company has only been in existence about 35 years.

Does this mean that the company will stop its efforts to reduce the right of malpractice victims to have a jury determine the value of their case?  No way.  Here is what the company told its doctor/owners:  "The uncertainty of awards in our civil court system makes the process [of establishing reserves] exceedingly difficult."   Caps on damages will simply that effort, and that is why the company will continue to fight for them, regardless of its profitability.

One last point.  SVMIC is cutting rates not only because of an abundance of wealth but also because of increased competition in the marketplace.   Med mal insurers are in what is known as a "soft market," and thus are scrambling to lower rates to maintain market share.  When rates go up (they always do) medical malpractice victims and juries will be blamed (they always are).

Fourth Circuit Remands Case That Slashed Contingent Fee

The Court of Appeals for the 4th Circuit ordered a district judge to re-consider the fee to be awarded to plaintiff's counsel in a personal injury case that resulted in a $18M dollar settlement.  The district court had cut the fee from $6M to $600,000.

The appellate court concluded that the district court had disregarded the nature of contingent fee contracts in cutting the award.

The case is Pellegren v. National Union Fire Company, No. 09-1285 (4th Cir. May 18, 2010).

 

 

A Conversation With A Doctor Who Wanted To File A Malpractice Case

Max Kennerly has this interesting post that sprung from a post on Kevin, M.D. about a doctor who was a victim of poor medical care.  The doctor went to a lawyer, not because she wanted money (she said) but because she wanted an apology.  The lawyer couldn't take her case because it was not economically viable.  The doctor never got the apology she said she wanted.

I have represented patients in medical malpractice cases for 29 years.  I have been contacted many times over the years by  health care professionals to represent them in medical malpractice cases, and I am surprised to learn how little they know about the complexities of actually bringing the case.  My assumption is  that they have been taught that medical malpractice cases are routinely filed and won, and that cases are resolved based on sympathy and emotion, not laws and medicine.  Anyone with any knowledge of the system knows that is simply not true and, for every plaintiff that wins a brain damaged baby case on the basis of "sympathy" there are five cases in which plaintiffs with valid cases lose because  "Dr. Smith may have dropped the ball on this one but he is such a nice guy and volunteers as the team doctor for the high school football team."

Likewise, I am constantly amazed at how angry these health care professionals get when I  do not automatically accept their view of the case or decline a case because it is not economically viable.  Let me recount a recent example. Note:  to avoid any risk of someone recognizing this event or the people involved, the gender of those involved may or may not be correct and the facts of the underlying event may or may not have been altered.  Those portions of the post that go over the discussion with the prospective client are accurate.

A Tennessee doctor asked me to represent him in a wrongful death suit.  His father,  a man in his 90s, was a victim of a series of claimed medical errors involving one doctor (a PCP in the community who was an acquittance  prospective plaintiff ) and various other professionals at a 

 

 

 

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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."

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.

 

Tennessee Nursing Homes - 5th Worst in United States

Tennessee's nursing homes rank the 5th worst in the United States, according to an analysis done by the Tennessean.   

The February 3, 2010 article points out that 

[a]bout 15,000 nursing homes nationwide got ratings of one to five stars, with five being the best, from the U.S. Centers for Medicare and Medicaid Services. The ratings are based on inspections, complaint investigations, staffing levels and other nursing home survey data collected in 2008 and 2009.

More than 60 percent of Tennessee's 319 nursing homes got low ratings — one or two stars — for staffing by registered nurses.

Overall, the state ranked in the bottom five. Only West Virginia, Texas, Georgia and Louisiana had lower average scores. However, Tennessee fared better than it did a year ago, when the star ratings earned the state's nursing homes a third-worst designation.

The article goes on to explain that

[a]dvocates say the staffing level required by state law is not enough to care for nursing home residents, and that carries consequences: ignored bedside calls, medication errors and unanswered questions. Under Tennessee law, each patient should have at least two hours of direct care each day, including 24 minutes of a licensed nurse's time. Standards in neighboring states vary, with Mississippi requiring 2.8 hours of direct care and Arkansas mandating more than 3.8 hours.

This data is revealed to Tennesseans at the same time that the health care industry seeks to limit its liability for non-economic losses (including punitive damages) caused  by  injuries and deaths caused by care at nursing homes and other health care facilities to $1,000,000.

 If enacted into law, this cap on damages will directly impact the value of every nursing home case because these residents have no loss of income or future earning capacity and thus their losses are principally non-economic damages such as pain, suffering, disfigurement and loss of consortium.  In addition, a jury will occasionally award punitive damages against a nursing home that recklessly causes injuries to patients.  A cap on damages limited the downside risk for the health care provider and its insurance company because they know that a jury cannot hold them fully responsible for the harm caused by their conduct.   

I urge you to consult your state representative or state senator and urge them to oppose this legislation.  Here is the contact information for your representative and senator.

Go to this site to see the ratings of nursing homes in Tennessee and across the nation.

 

 

Tennessee Medical Malpractice Claims Report - 2008

The Tennessee Medical Malpractice Claims Report for 2009 (which reports data for 2008) contains lots of information of interest to lawyers who represent Tennesseans in medical malpractice claims. Last week I wrote about the number of claims closed in 2008 and the amount paid on these claims. Today I will drill down a little deeper on one topic - resolution of claims involving death.

About 1960 Tennesseans die each year as a result of medical malpractice in a hospital.  (The number that die as a result of malpractice in a doctor's office or nursing home or dentist's office or elsewhere has not been estimated to my knowledge.)  Yet, in 2008, there were 538 medical malpractice claims resolved in cases where the allegation involved malpractice-related death of the patient  in all settings.  

The total amount of money paid to resolve the 538 death claims was $60,663,764, or an average of less than $120,000 per claim.  I hasten to add that gross payment figure includes claims on which no money was paid.  The report does not indicate how many closed death claims resulted in no payment whatsoever.  However, the report does indicate that payments were made in only 15% or so of all closed claims in 2008.  If that statistic is true in the wrongful death area, it means that payments were made in only about 80 wrongful death cases in 2008 and the average payment was about $750,000 per claim.

Now, I know I am making a whole lot of assumptions here.  But as we try to understand this data, we have to make assumptions because (a) the method of reporting does not give us information on key issues and (b) confidential settlements mandated by defendants prevent us from having more accurate data.

A couple of concluding thoughts.  First, remember that we are talking about the date of closing claims, not the date of death.  Thus, these deaths occurred over a number of years.  Yet, it is not unreasonable to assume that there are 450 - 600 wrongful death claims asserted each year.   What happened to the hundreds of other wrongful death claims arising from malpractice?  They were not filed, either because (1) the survivors were ignorant of the circumstances giving rise to the death, (2) it was not economically feasible to pursue the claim because the medical malpractice insurance industry has gone to extraordinary lengths to make the prosecution of the claims so expensive;  (3) the claims were viable but a lawyer contacted by the family did not realize that a claim could be successfully asserted or (4) the survivors did not pursue the claim for religious or other reasons.

Second, there were only about 80 paid wrongful death claims in 2008 (once again, I know I am making some assumptions here - I'm doing the best I can with limited data.)  Even if the paid claim number is two or three times that, there are hundreds and hundreds of valid claims every year that are not pursued for one of the reasons specified above.

Third, there were hundreds of wrongful death claims asserted for which no payment was made. This could have occurred because (a) there was no proof of malpractice; (b) there was no proof of causation; (c) the plaintiff was unable to qualify the necessary experts because of Tennessee's goofy locality rule; (d) the plaintiff's lawyer lacked the knowledge or money to bring an otherwise valid case to a successful resolution; and (e) the plaintiff's lawyer had to drop the case because defense tactics made it to expensive to pursue it from an economic standpoint.  It is anticipated that the new medical malpractice certificate of good faith statute will address (a) and (b).  The statute came into effect on October 1, 2008, so it had no effect whatsoever on these 2008 closed-claim statistics.

NOTE:  As I re-read this, I see the need to clear up one matter.   A "claim" is not the same as a lawsuit.  If there are four defendants in a wrongful death lawsuit, that will almost certainly be reported as four different claims even though there is only one death.  Likewise, if multiple defendants settle a defendant case, this would be reported as multiple claims being resolved. For the year ending July 1, 2009 there were only 426 medical malpractice lawsuits filed in the prior twelve months in the entire state and obviously not all of those cases involved the death of the patient.  Thus, when the Report indicates that 80 wrongful death claims were resolved in the 2008 calendar year that almost certainly does not mean that the litigation for 80 decedents were resolved but rather claims against 80 defendants (or potential defendants) were resolved.  The number of actual decedents would have been less and, indeed, it would not be unlikely that the number of decedents was less than 60 and perhaps less than 40.

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.

 

Tennessee Data From the National Practioners Data Bank

The National Practioners Data Bank collects data about malpractice claims paid by health care professionals.   The NPDB has a report that lists all of medical malpractice paid claims against all Tennessee health care providers between September 1, 1990 through November 29, 2009, a period one month short of 20 years.  To understand what data is collected by the NPDB click here.

The total number of paid claims against all health care providers in the United States is 340,463, or about 17,000 claims per year.  Recall the National Institute of Medicine said that there were 98,000 documented deaths per year in our nation's hospitals.

After the jump I have listed the number of paid claims by type of provider in Tennessee.  The data does not include hospitals or nursing homes except to the extent the payment was made by a hospital or nursing home on behalf of an individual provider after receipt of a written claim or lawsuit.

I have not added up the Tennessee claims but the number is less than 4500 in the course of 20 years or about 225 per year.

 

 

 

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Nevada Supreme Court Restricts Lawsuits Against Pharamacies

The Nevada Supreme Court has ruled that a pharmacy does not owe a duty of care to unidentified third parties who were injured by a pharmacy customer who was driving while under the influence of controlled prescription drugs. 

In reaching the decision, the court rejected the arguments that  pharmacies have a duty to act to prevent a pharmacy customer from injuring members of the general public and that Nevada’s pharmacy statutory and regulatory laws allow third parties to maintain a negligence per se claim for alleged violations concerning dispensation of prescription drugs and maintenance of customers’ records.

Here is the court's summary of the facts:

On June 4, 2004, while driving on U.S. Highway 95 in Las Vegas, Gregory Sanchez, Jr., stopped on the side of the road to fix a flat tire. Appellant Robert Martinez, Sanchez’s co-worker, arrived at the scene to assist Sanchez. While Martinez and Sanchez were transferring items from Sanchez’s vehicle into Martinez’s vehicle, they were struck by defendant Patricia Copening’s vehicle.[1] As a result of the collision, Sanchez died and Martinez was seriously injured. Copening was arrested for driving under the influence of controlled substances.

Appellants, Sanchez’s minor daughters, his widow, and the personal representatives of his estate, and Martinez and his wife, filed a wrongful death and personal injury complaint against Copening, two medical doctors, and a medical association. Through discovery, appellants learned that in June 2003, the Prescription Controlled Substance Abuse Prevention Task Force sent a letter to the pharmacies that had dispensed to, and physicians who had written prescriptions for, Copening, concerning Copening’s prescription-filling activities. The letter informed the pharmacies and physicians that from May 2002 to May 2003, Copening had obtained approximately 4,500 hydrocodone pills at 13 different pharmacies. Based on the Task Force letter, appellants moved the district court and were granted leave to file a second amended complaint to add the following defendants to the action: Wal-Mart Stores, Inc.; Longs Drug Stores Co.; Walgreen Co.; CVS Pharmacy, Inc.; Rite-Aid; Albertson’s Inc., d/b/a Sav-on Pharmacy; and Lam’s Pharmacy, Inc.

As to the pharmacies, the second amended complaint alleged that Copening was under the influence of controlled substances when the accident occurred and that the pharmacies had filled Copening’s prescriptions after they had received a Task Force letter informing them of her prescription-drug activities. The complaint further asserted that after receiving the Task Force letter, the pharmacies continued providing Copening with the controlled substances that she used before the accident. The complaint did not allege any irregularities on the face of the prescriptions themselves. Nor did the complaint allege that the prescriptions presented by Copening to the pharmacies were filled by the pharmacies in violation of the prescriptions’ language, were fraudulent or forged, or involved dosages that, individually and if taken as directed, were potentially harmful to Copening’s health.

The case was discussed in a October 31, 2009 post on this blog.

Read the opinion in Sanchez v. Wal-Mart Stores, 125 Nev. Adv. Op. No. 60 (Nev. Dec. 24, 2008) here.

Problem Nurses Move From State to State

Today's Tennessean has an article originally published in the  Los Angeles Times that reveals  a problem with nurses moving from state to state and leaving behind a bad disciplinary record.

The article reports that "using public databases and state disciplinary reports, reporters found hundreds of cases in which registered nurses held clear licenses in some states after they had been sanctioned in others, often for serious misdeeds. In California alone, a months-long review of its 350,000 active nurses found at least 177 whose licenses had been revoked, surrendered, suspended or denied elsewhere."  

This problem can be avoided.  "By simply typing a nurse's name into a national database, state officials can often find out within seconds whether the nurse has been sanctioned anywhere in the country and why. But some states don't check regularly or at all."

The article was written by reporters who work for ProPublica,  an independent, non-profit newsroom that produces investigative journalism in the public interest.  Here is the story on ProPublica's website.   This is the second story this organization has written about the nursing profession.  The Los Angeles Times and ProPublica have also  reported that "the California Board of Registered Nursing took more than three years, on average, to investigate and discipline errant nurses. It failed to act against nurses whose misconduct already had been thoroughly documented and sanctioned by others. And the board gave probation to hundreds of nurses – ordering monitoring and work restrictions – then failed to crack down as many landed in trouble again and again."

There is no reason why this should occur.  States should adopt policies that require checks of available resources to determine whether a nurse - or any other professional - has a disciplinary history that would impact the professional's ability to be licensed in the state.  The failure to do so increases the risk that a citizen will be harmed.

Physicians in the United States Less Likely to Use Health Information Technology

According to the 2009 Commonwealth Fund International Health Policy Survey, only 46 percent of U.S. doctors use electronic medical records, compared to 99 percent of doctors in the Netherlands and 97 percent of doctors in New Zealand and Norway.

"We spend far more than any of the other countries in the survey, yet a majority of U.S. primary care doctors say their patients often can't afford care, and a wide majority of primary care physicians don't have advanced computer systems to access patient test results, anticipate and avoid medication errors or support care for chronically ill patients," said Commonwealth Fund Senior Vice President Cathy Schoen, lead author of an article appearing in Health Affairs.

The survey also reports that

• 58% of U.S. physicians, by far the most of any country surveyed, said their patients often had difficulty paying for medications and care. Half of U.S. doctors spend substantial time dealing with the restrictions insurance companies place on patients’ care.

• Only 29% of U.S. physicians said their practice had arrangements for getting patients afterhours care—so they could avoid visiting a hospital emergency room. Nearly all Dutch, New Zealand, and U.K. doctors said their practices had arrangements for after-hours care.

Read this article in Healthcare IT News to learn more about the survey. 

By the way, physicans who treat Medicare patients are getting a huge handout from taxpayers to adopt health care information technology.  The American Recovery and Reinvestment Act signed into law in February 2009 includes as much as $64,000 in financial incentives to physicians who have a Medicare population of 30% and up to $44,000 for those with fewer Medicare patients.    Doctors and hospitals with Medicare and Medicaid patients who have already purchased such systems and use them in a meaningful way will receive billions of dollars in incentives.

Medical Malpractice Insurance Rates

 From the American Association for Justice:

 

State tort reforms have provided a boon to insurance companies, leading to record profits while physician and patient premiums continue to skyrocket.

An analysis of data from the National Association of Insurance Commissioners (NAIC) and company annual statements shows malpractice insurer profits are 24 percent higher in states with caps.  In these cap states, insurers took in 3.5 times more in premiums than they paid out in 2008.  In contrast, insurers in states without caps took in just over twice what they paid in claims.

The findings also show absolutely no correlation between the cost of malpractice premiums and health insurance premiums.  For example, Maine has the ninth lowest malpractice premiums but the fourth highest health insurance premiums.  Conversely, Nevada has the third lowest health insurance premiums nationally, but malpractice premiums are the country's ninth highest, despite having a cap in place for eight years.

"The data are clear: tort reform is just another insurance company handout," said American Association for Justice President Anthony Tarricone.  "Insurers cried wolf and demanded tort reform, only to pocket the profits and never pass savings onto physicians or patients.  While 98,000 people die every year from preventable medical errors, it's nonsensical to limit patients' rights simply to fill insurance company coffers."

The report also shows how medical negligence laws were passed under false pretenses.  The medical malpractice insurance industry has seen a 47 percent increase in profitability in the last 10 years. Overblown "reported" losses were used by the insurance industry to justify new measures restricting the rights of those injured by medical negligence.

Now that over 30 states have malpractice caps, insurance companies are enjoying extremely high levels of profit. In 2008, the average profit of the 10 largest medical malpractice insurers was higher than 99 percent of Fortune 500 companies and 35 times higher than the Fortune 500 average.

Finally, the report explains the dynamics of the insurance cycle and trends in premium pricing, which are well-known by analysts within the insurance industry.  Remarkably, the industry’s leaders are already positioning to claim another “tort crisis” and to lobby for even more severe restrictions on patients’ rights in 2012.

To view a copy of Insurance Company Handout: How the Industry Used Tort Reform to Increase Profits While Americans' Premiums Soared, visit http://www.justice.org/clips/Insurance_Company_Handout.pdf.

 

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>

 

Lawsuit Against Pharmacists For Filling Prescriptions for Known Drug Abuser

On the afternoon of June 4, 2004, a woman named Patricia Copening driving a SUV ran  into a delivery-van driver who had pulled over to repair a flat tire on the highway’s shoulder, killing him at the scene. She also hit another man, causing a head and other injuries.

A lawsuit filed by the victims and their families against Wal-Mart, who dispensed a painkiller prescription to Copening, asks whether drugstores must use information at their disposal to protect the public from potentially dangerous customers.  State officials had sent letters to 14 pharmacies in the Las Vegas area warning that Copening could be abusing drugs.  The letters were issued after a state-ordered prescription audit identified potential drug abusers, including Copening.

According to this story from Wednesday's Wall Street Journal, Nevada pharmacies have been gathering information about prescription drug use, sending it to the state, and receiving letters from the state advising about potential drug abuse since 1997.  

 

The trial judge dismissed the case, holding that Wal-Mart owed no duty to the victims because the state never told the pharmacies what they should do with information they received.  The Nevada Supreme Court should issue an opinion in the case before the end of the year.

The case raises the question of the responsibility of pharmacists to act on information in their possession to protect the public from known prescription drug abusers.  The decision is of interest to those of us in Tennessee because Tennesseans  have a huge problem with abuse of   hydrocodone, codeine, oxycodone an d benzodiazepines, according to a study by Blue Cross/Blue Shield of Tennessee.  These drug abusers present a threat to all of us to use our state's streets and highways.

 

 

 

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.

Paul Luvera on Losing Cases

Washington State's outstanding plaintiff's lawyer offers great advice to those of us who have lost jury trials. 

A sample from "First Aid for Lawyers When They Lose Their Case:"

When trial lawyers who are passionate about their client’s cause lose the case, their pain for the loss of their client is palpable. Dealing with losing is always agony and something we never get used to if we are competitive trial lawyers striving for our client’s rights. I’ve often said: losing hurts worse then winning feels good.

Ain't it the truth.

CBO Offers New Data on Cost of Medical Malpractice Lawsuits

Senator Orin Hatch (R-Nevada) asked the Congressional Budget Office to update its previous findings concerning the effect that restrictions on the rights of patients to hold the health care industry responsible for errors that kill or injure patients ("tort reform").

Here are some of the findings from the report:

  1. "National implementation of a package of proposals similar to the preceding list would reduce total national premiums for medical liability insurance by about 10 percent, CBO now estimates. ... CBO estimates that the direct costs that providers will incur in 2009 for medical malpractice liability—which consist of malpractice insurance premiums together with settlements, awards, and administrative costs not covered by insurance—will total approximately $35 billion, or about 2 percent of total health care expenditures. Therefore, lowering premiums for medical liability insurance by 10 percent would reduce total national health care expenditures by about 0.2 percent."
  2. "Combining the effects on both mandatory spending and revenues, a tort reform package of the sort described earlier in this letter would reduce federal budget deficits by roughly $54 billion over the next 10 years. That estimate assumes that a change enacted in 2010 would have an impact that increased over time, achieving its full effect after four years, as providers gradually changed their practice patterns. Of course, the estimated effect of any specific legislative proposal would depend on the details of that proposal."  Note:  the proposals listed in the letter was a $250,000 cap on non-economic losses, abolition of joint and several liability, changes to the collateral source rule, caps on punitive damages, and reducing the statute of limitations to 1 year for adults and 3 years for children.
  3. "Because medical malpractice laws exist to allow patients to sue for damages that result from negligent health care, imposing limits on that right might be expected to have a negative impact on health outcomes. There is less evidence about the effects of tort reform on people’s health, however, than about its effects on health care spending because many studies of malpractice costs do not examine health outcomes. Some recent research has found that tort reform may adversely affect such outcomes, but other studies have concluded otherwise."

Let us put these numbers in perspective.  Americans spend over $45 billion per year on pet care.

 

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.

 

President Orders Tort Reform Tests

President Obama announced yesterday  that the government will set aside $25 million to support state grants for pilot programs to reduce medical malpractice lawsuits.  

ABC News describes the grant process  this way:

The Department of Health and Human Services will oversee the process for states to launch and test initiatives that meet the following parameters:  
• Put patient safety first and work to reduce preventable injuries; 
• Foster better communication between doctors and their patients; 
• Ensure that patients are compensated in a fair and timely manner for medical  injuries, while also reducing the incidence of frivolous lawsuits; and 
• Reduce liability premiums.

The effort will be directed by  Health and Human Services Secretary Kathleen Sebelius.

Here is the "fact sheet" released by the White House when it announced the project.  

 

 

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.

 

Georgia Supreme Court Considers Constitutionality of Damages Cap in Medical Malpractice Cases

The Georgia Legislature imposed a cap on noneconomic damages in meritorious medical malpractice cases in 2005.   The cap is $350,000.   In a case tried in Fulton County several years ago, the jury's verdict exceeded the cap, and the Georgia Supreme Court is now considering whether the cap is constitutional.

According to a press release from the Georgia Trial Lawyers Association and re-printed on the Atlanta Injury Lawyer Blog

“Betty Nestlehutt was the face of her real estate business,” said Malone. “Her face was so horrifically disfigured that she was no longer able to even leave her house. Photographs of her disfigurement are even too gruesome for public distribution. The damage is permanent. Years later she has to wear layers of special makeup to try to give the appearance of normalcy.”

The damage award?  $115,000 for past and future medical expenses and $1.15 million in noneconomic damages, including $900,000 for her pain and suffering.   The damage cap would have the effect of reducing the award by over 50%, down  to $465,000.

The press release has an extended summary of the trial judge's ruling that struck down the caps as unconstitutional on three different grounds.  Click on "Continue reading" to see the summary of Judge Diane Bressen's order as set out in the press release.

 

 

 

Continue Reading...

Medical Malpractice Reform: Survey Manipulation

Max Kennerly has done it again.  Read this post on the Litigation and Trial bog which looks behind the allegation that the American people support medical malpractice reform.  Before you do,  read the following:

DO YOU AGREE OR DISAGREE WITH THIS STATEMENT: As part of any health care reform plan, Congress needs to change the medical malpractice system so that cases are resolved quicker, and more reliably, on behalf of those who are in the right.

Did you say "Yes?"     I did.

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.

Hospitals That Do It Right

Some health care providers are starting to get it.  When you mess up, fix it.  Don't hide.  Don't cover it up.  Don't blame the patient.  Just do the responsible thing and fix it.

Today's Wall Street Journal  writes about the relatively recent phenomena of hospitals that not only step in and make a fair payment to a person who has been harmed by negligence but go a step further and (a) figure out how and why the error happened and (b) put measures in place to prevent future errors. 

This is absolutely wonderful, and shows that the tort system works.  The purpose of the system is not just to compensate victims of negligence but also to deter future harm.  Other things being equal, wrongdoers who fail to take steps to deter future harm will be hurt in the marketplace.  Thus, the reasonably prudent person who is in the position to cause harm takes steps to prevent harm from occurring.  That means they take advantage of the every error to analyze what they can do to prevent future harm.  And they try to work out something with the victim of that error before litigation, saving everyone transaction costs and potential harm to reputation.

We had the experience recently with a non-medical concern.  An organization messed up and a child died.  Rather than react as so many potential defendants would act, they stepped up to the plate and resolved the matter short of litigation.  They took steps to solve the problem that caused the death, not only in that location but all other locations where they provide services.  And then they publicly honored the family that suffered the loss.  This group did exactly what responsible people do when they cause harm, and the family remains a proud supporter of the group's efforts in our community.

Enjoy this article.

Failure to Inform Patients of Abnormal Test Results

An article in Archives of Internal Medicine (2009;169(12):1123-1129) reveals that about 1 in 14 abnormal outpatient test results are either not reported to the patient or the report to the patient is not documented.  The article summarizes a study consisting "of a retrospective medical record review of 5434 randomly selected patients aged 50 to 69 years in 19 community-based and 4 academic medical center primary care practices."

Read an abstract of the article here.

 

The First Syllable of "Lawyer" is "Law"

A Tennessee lawyer who purports to have knowledge and experience in Tennessee medical malpractice law recently wrote a  blog post that advised the pubic about statutes of limitations in medical malpractice cases.  His post was wrong, and it was obvious to me that he was unaware of the legislation passed in June and that went into effect on July 1, 2009.

Now, you might say, "well John, don't be a jerk.  The law has only been in effect for a little over a month."  Sorry folks, in my opinion that doesn't cut it.  If you hold yourself out as having knowledge in a given area of law you have the responsibility to keep yourself reasonably current in that area.  The proposed changes to the medical malpractice law have been talked about by those actively involved in the field for months before the legislation was signed by the Governor.   The Tennessee Association for Justice list-serves have had numerous posts about the subject.  I wrote several blog posts on the issue (here, here, and here.).  I wrote a cover-story article for the July 2009 TBA Journal on the changes.  In short, there were plenty of opportunities to learn that the law was changing and that it had in fact changed. 

I don't expect every lawyer to keep up with all changes in the law - that is impossible.  I don't expect every personal injury and wrongful death lawyer to keep up with changes in medical malpractice law, for the simple reason that many of these lawyers do not do medical malpractice law.   I don't expect anyone to keep all the details of law in his or her head even in a relatively narrow field like medical malpractice.   And of course I am not saying that everyone who does tort work in Tennessee must read this blog. 

 

I am saying this:  if you hold yourself out as a medical malpractice lawyer, and you purport to advise the public on their legal rights in medical malpractice cases, please carve some time out of your marketing schedule to keep current with  the law.   

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.

Blore's Razor

Those of us who do medical malpractice work are familiar with Occam's Razor, the common understanding of which (as stated on Wikipedia) is that "of several acceptable explanations for a phenomenon, the simplest is preferable, provided that it takes all circumstances into account." 

Those of us who do medical malpractice work are also familiar with the the following litigation tactic often employed by our brothers and sisters of the defense bar, known as Blore's Razor:  "Given the choice between two theories, take the one which is funnier."  (from Michael Moncur's (Cynical) Quotations).

New Tennessee Legislation of Interest to Tort Lawyers - Post 4

This is the fourth in a series of posts that addresses new laws of interest to Tennessee tort lawyers.  For other changes go to the Legislation 2009 category of this blog.

Those of us who keep an eye on the Tennessee General Assembly know that there is an ongoing battle over whether hospitals will be permitted to employ physicians.  As of now, hospitals can employ hospitalists but they cannot employ ER doctors, anesthesiologists, radiologists, etc. 

The renal dialysis clinics have cracked the door open slightly and won the right to employ doctors under certain circumstances.  This will be of interest to medical malpractice lawyers, who will need to explore the vicarious liability of clinics for the acts of nephrologists and others caring for ESRD patients.  The law will also be of interest to those representing such doctors, in tort as well as contract litigation.
 

Here is a summary of the legislation:

This bill authorizes renal dialysis clinics to employ licensed physicians to provide medical services, subject to the following conditions:

(1) Employing entities may not restrict or interfere with medically appropriate diagnostic or treatment decisions;
(2) Employing entities may not restrict or interfere with physician referral decisions unless: the physician so employed has agreed in writing to the specific restrictions at the time that the contract is executed; the restriction does not, in the reasonable medical judgment of the physician, adversely affect the health or welfare of the patient; and the employing entity discloses any such restrictions to the patient; and
(3) In the event that there is any dispute relating to (1) or (2), the employing entity would have the burden of proof.

This bill prohibits clinic from restricting the employed physician's right to practice medicine upon the termination or conclusion of the employment relationship, except as allowed by present law governing non-compete covenants for physicians (see TCA Section 63-1-148). However, in the event that the employment contract with a physician employed independently of a bona fide practice purchase is terminated by the clinic for reasons other than breach by the employee, any such restrictions would be void.

This bill specifies that it does not prohibit any of the following from employing physicians:

(1) A licensed physician; or
(2) A group of licensed physicians, including, but not limited to, either of the following: a physicians' professional corporation; or a 501(c)(3) domestic nonprofit public benefit corporation that operates as a "faculty practice plan" for purposes of the federal Social Security Act, a purpose of which is to engage in medical education and medical research in conjunction with a college or university operating an accredited medical school in Tennessee and whose physician-employees are restricted to the medical faculty of such a college or university.

With respect to any such domestic nonprofit public benefit corporation, physician employees of any such faculty practice plan who practice in the specialties of radiology, pathology, anesthesiology and/or emergency medicine are restricted to practice as faculty practice plan employees in those health care institutions, including but not limited to hospitals or surgery centers, in which they were practicing as employees of the nonprofit public benefit corporation on May 30, 1997.

This bill prohibits an affiliate of a renal dialysis clinic that employs physicians from engaging in any business other than the employment of physicians, the management of physicians and health care facilities, or the ownership of property and facilities used in the provision of health care services, or a tissue bank or organ procurement agency. Any violation of this bill by an affiliate would subject any renal dialysis clinic at which the physician has staff privileges, and that controls or is under common control with the affiliate, to the penalties and sanctions applied to renal dialysis clinics that employ physicians.

No radiologist, anesthesiologist, pathologist, or emergency physician may be employed by a renal dialysis clinic or an affiliate of a renal dialysis clinic, and no renal dialysis clinic or an affiliate of a renal dialysis clinic may employ any physician to provide medical services provided by radiologists, anesthesiologists, pathologists, or emergency physicians; provided, that a physician may be employed to provide emergency medical services if such physician is employed to provide other medical services.

This bill prohibits the clinics from requiring, by contract or policy, that as a condition or consequence of employment, written or otherwise, employed physicians relinquish staff privileges, or the rights related to staff privileges, upon the commencement of, upon any event during the pendency of, or at the termination or conclusion of, the employment relationship. This bill specifies that it does not affect or negate the ability of an employing renal dialysis clinic to revoke or suspend a physician's staff privileges in accordance with the procedures set forth in the staff bylaws. Renal dialysis clinics may not substitute physician employment contracts for staff privileges. Non-employed and employed physicians holding staff privileges at a renal dialysis clinic that is an employing entity, or renal dialysis clinics at which employed physicians hold staff privileges that are affiliates of employing entities, would enjoy the same privileges, rights and protections with respect to staff membership. Employment of a physician would not affect any other physician's staff privileges. Physicians who hold membership on staff at a renal dialysis clinic which is an employing entity, or a renal dialysis clinic at which employed physicians hold staff privileges that are affiliates of employing entities, would be provided with the rights and protections, including rights of self-governance, afforded by the applicable state licensing board, and, when accredited, the accrediting entity or agency.

If a physician, in connection with a claim for breach of contract or other dispute related to the present law provisions governing the practice of medicine and the employment of a physician by a hospital, renal dialysis clinic, or other entity to employ physicians, establishes in a court of competent jurisdiction, or other forum, including in a peer review action or arbitration proceeding, that the conditions of those provisions have been violated by the employing entity, the physician would be entitled to recover the physician's cost of litigation, arbitration, or peer review defense, and a reasonable attorney's fee.

This bill prohibits renal dialysis clinics from restricting or interfering with patient referral decisions in a manner that unnecessarily increases the cost to the patient of the medical services provided.

Here is a copy of Public Acts, 2009 Public Chapter 70.

 

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.

New Tennessee Legislation of Interest to Tort Lawyers - Post 1

This post is a first in a series of posts that will address new laws passed by the 106th General Assembly and signed into law by Governor Bredesen.  The posts will run two or three days per week over the next several weeks.

The first post is a change to the Tennessee Peer Review Law of 1967.  The bill will be of interest to any one who does medical malpractice or any other area of health care law.

Here is a summary of the legislation:

The Tennessee Peer Review Law of 1967 grants peer review committees certain immunities relating to their actions undertaken to review, discipline, and educate the medical profession. "Peer review committee" means any committee of a state or local professional association or society, including impaired physician peer review committees, programs, malpractice support groups and their staff personnel, or a committee of any licensed health care institution, or the medical staff thereof, or any committee of a medical care foundation or health maintenance organization, preferred provider organization, individual practice association or similar entity, the function of which is to evaluate and improve the quality of health care rendered by providers of health care service.

This bill clarifies that a "peer review committee" also includes a "medical group practice" and their staff personnel, and as such, a medical group practice has the immunity provided under present law.

Here is the full text of Public Acts 2009,  Public Chapter No. 46

SVMIC - 2008 Financial Results - Part 4

I have released three prior posts on the financial condition of State Volunteer Mutual Insurance Company - click here to read them:  Part 1, Part 2, Part 3.

The bottom line is that conservative financial management at SVMIC has permitted the company to accumulate a quarter of a billion dollars in net worth, even as the number of policyholders has declined 4% of the last year.

So how is that impacting rates?

In 2007 SVMIC reduced rates for Tennessee doctors by an average of 4.2%.  Now, the conpany will decrease rates again for new and renewal business written as of May 15, 2009.  The average rate decrease will be 2.5%  Some doctors will see greater declines (e.g. pediatrics - down 10%, interventional pulmonary medicine, down 5.3%, maternal and fetal medicine down 2.7%).   Only emergency medicine doctors will see a rate increase (5.0%).    Thus, out of the 10, 391 doctors insured by SVMIC in Tennessee only 204 will receive a rate increase.   IN 2007 74% of the insureds received a rate decrease and 26% received a rate increase.

These rate changes are based on policy limits of $1,000,000 / $3,000,000.  Here are some examples of what Tennessee doctors with 5 over more years in practice pay for insurance:

Type of Doctor                                          $1M / $3M                            $2M / $4M

Pediatrics - No Surgery                            $8510                                     10,049

Infectious Disease                                    $9302                                      10,887

Radiology - Major Interventional             $17,536                                   20,971

Anesthesiology                                          $14,606                                    17,425

Emergency Room                                      $36,263                                    43,407

Gen. Surgery - No Cosmetics                 $40,504                                    48,438

Neurological Surgery                                $54, 698                                   65,404

Maternal and Fetal Medicine                    $58,207                                    69,600

These are list prices.  There is a 10% discount for those physicians who attend the annual loss prevention seminar.   Those doctors who are designated as "full-time faculty" at a teaching institution pay only 60% of the normal rate.  Multi-physician groups can earn up to a 30% discount for other loss prevention, peer selection, and record-keeping practices.   Those who pay for the entire year earn a 5% discount.

Two final notes.  First, he 2009 rate increase probably does not yet take into account the substantial changes to the medical malpractice law in the areas of pre-suit notice and certificates of good faith.  There is no way to know that for certain, but (a) SVMIC is a conservative company and (b) the changes just came into effect October 1, 2008 and July 1, 2009.  I predict further rate decreases in 2010.

Seond, in the event this four-part series is viewed as a complaint about capitalism in general or the business practices of SVMIC in particular, readers may wish to view my thoughts on the subject set forth in this post of October 11, 2008.

Consent Provisions in Professional Liability Insurance Policies

Last Friday a Memphis jury awarded almost $24M to a woman and her husband in a civil suit arising out of what the jury found to be medical negligence arising from the  failure to promptly diagnose breast cancer.  The woman is in the last weeks of her shortened life.

It is my understanding that the defendant did not make a settlement offer and in fact that  the doctor refused to authorize any offer.  I do not know if this is correct.  I do not know if the case could have been settled.  I do know it  is hard to make progress on settlement negotiations if one side or the other refuses to discuss settlement.

Many insurance companies that provide professional liability coverage to physicians give the physician the right to refuse to consent to any settlement.  This is unlike traditional liability insurance coverage, where the insured may be given the opportunity to voice an opinion on settlement but rarely has any power to block a settlement within policy limits.

On the one hand, consent provisions are a good marketing tool.  They empower doctors, making them feel like they have a right to control their own destiny in litigation.  The major carriers in Tennessee all seem to have such a provision in their policies.

On the hand, consent provisions subject the assets of the insurer (and re-insurer) to the whim of a doctor who may permit ego to interfere with sound judgment.  They also drive up defense costs.

Lawyers who defend medical malpractice cases have  told me on multiple occasions that they have recommended settlement of a particular case but the doctor refused to consent.  It certainly seems to me that a good medical malpractice defense lawyer is in a better position to evaluate facts under existing law and determine what a jury is probably going to do than (what I hope would be) an infrequent litigant, even one who is intelligent and wears a white coat.  I  have a reasonable level of intelligence and education and have been doing medical-related work for 28 years, but I can tell you with 100% confidence that you want a well-trained oncologist (and not me) working you up for symptoms that are consistent with cancer. One would like to think that doctors would have a similar view of the work of lawyers.

To be sure,  professional liability insurers can write consent provisions into their policies if they want to do so.  Indeed, the market probably demands that they do so.  And,  the negative aspects of these provisions are not causing the world to come to an end, as evidenced by my articles this week on SVMIC's financial condition. See posts herehere and here.

But the fact of the matter is that use of consent provisions have consequences, and one of those consequences is that from time to time a case that could have been settled and, from an objective standpoint, should have been settled will not be settled.  This can happen because the physician received poor advice from the lawyer for the defense or the case was not properly evaluated by the claims personnel, and of course this can happen in any case for any company, regardless of whether there is a consent provision in the policy.  The added risk of a consent provision  is that even if the defense  lawyer and the claims rep do exactly what they should do and communicate those evaluations to a doctor in language the doctor can understand  the doctor can refuse to accept their opinion and "just say no."  An unreasonable "no" has consequences for the company and, if it is a mutual insurer, every policyholder in the company.  Indeed, in a "small" mutual company a single unreasonable insured can have a significant impact on re-insurance rates (because a large, adverse hit that would not have occurred had the case that should have been settled actually been settled can impact the view of re-insurers and thus the cost of re-insurance).

Am I complaining about consent provisions in professional liability policies?  No.   Insurers have a right to do what they want to do in this regard and can yield to the demands of the marketplace if they think that is in their long term best interest.  There is a price for doing so, and it may have played a role in what just happened in Memphis.  As my wife would say, when that happens the insurance company and its policyholders  just have to "put on [their] big girl panties and get over it."  It is a cost of the business model.

I will conclude with this recommendation:  Dr. Defendant, if you are being represented by a lawyer you have confidence in and she recommends that a case be settled, you should accept her advice and permit a reasonable effort to do so.  If you have confidence in the lawyer but feel uncomfortable with the advice, get a seond opinion.  If you don't have confidence in ;your  lawyer, fire her and get another one.  A doctor (indeed, any professional) who tries  to evaluate the merits of his or her own case faces a real struggle clouded by lack of knowledge and lack of objectivity.

SVMIC - 2008 Financial Results - Part 3

This is the third post about State Volunteer Mutual Insurance Company's 2008 financial results.  Click on the links to see Part 1 and Part 2.

New malpractice claims asserted against SVMIC insureds dropped 2.5% in 2008.  The company reports that 83% of all cases were resolved in favor of it's policyholders on a company-wide basis.

(One of the things I frequently address at seminars for young lawyers is the evaluation of potential medical negligence cases.  I tell them that the best way to make money on medical malpractice cases is to refuse to represent the next ten people who call asking the lawyer  to represent them in a medical malpractice case.  Obviously, that is ridiculous, but the fact remains that SVMIC "wins" almost 9 out of 10 cases.   A fair number of those cases are filed by lawyers who do not have the experience to recognize a bad case from a good case..)

As of the end of 2008 there were 2,603 cases pending against the company, and some unknown percentage of those cases involve multiple policyholders.  The company reports that the total payout for claims in 2008 declined by 6.7%.

The company paid a total of $138M in claims and loss adjustment expenses in 2008.  That figure is only $500,000 less than 2007.  Since the company says that claim payments decreased by 6.7%, loss expenses (defense attorney's fees and more) must have increased.  This is certainly consistent with what those of us who practice in the field are seeing - defense firms are working these cases much harder and thus one would expect defense costs to be increasing.

I do not know how many claims SVMIC settled in 2008.  The data for all medical malpractice settlements and judgments in Tennessee will not become available until November.  In 2007 there were 7 jury verdicts for the patient in the entire state and a total of 492 settlements.  2007 also brought 2238 medical malpractice cases dismissed with no payment and 306 jury verdicts for the health care providers, for a total of 2534 cases resolved in a manner adverse to the patient. 

I will have Part 4 for you in a couple of days.

SVMIC - 2008 Financial Results - Part 2

Our last post discussed State Volunteer Mutual Insurance Company's  $251,321,000 policyholder surplus.  This post will discuss other aspects of the company's finances.

As of December 31, 2008, SVMIC had total assets of $1,324,500,000 assets.  (That's $1.3 Billion).  The vast majority of those assets are in government (federal, state and local) and corporate bonds, although the company does have some stock holdings ($53M).  The conservative allocation of monies among these investment vehicles resulted in only a very small loss in investments in 2008.  The loss on the value of these investments sold was only $1.7M, although the the investments that continued to be held had a decline in value of about $23M. 

The total revenues of the company in 2008 were down about $12,000,000 to $246,000,000.  It is important to note that the number of policyholders decreased from 16,155 to 15,501, which certainly had an impact on revenue. 

Despite the fact that revenue fell, net income of the company increased by almost 20%, from $28.4M to $34.5M.   For the first time in years the company paid a dividend to its policyholders - the amount of the dividend was $3,900,000. 

My next post will discuss claims.

SVMIC - 2008 Financial Results - Part 1

SVMIC continues to enjoy wonderful profitability, even as the number of physicians it insures declines.

SVMIC - State Volunteer Mutual Insurance Company - is a physician-owned insurance company that was created over 30 years ago.  It has grown from a company with paid-in capital of $7,500,000 to a entity with a policyholder surplus (think: net worth) of $251,321,321.

Let me explain what that means.   Policyholder surplus is determined by subtracting reserves for claims payments and claims expenses from assets.  Each time a claim is made a reserve is set.  The size of the reserve is based on the severity of the claim, the likelihood of payment and the anticipated defense costs.  The amount reserved on a claim changes over time, but the idea is that the sum total of reserves should pay all existing claims and all future defense costs.  There is also a category of reserves known as IBNR - Incurred But Not Reported.  This is for claims that the company "knows" to be out there but have not yet been reported to the company.

The amount reserved for a claim reduces that year's income.  In other words, if SVMIC (or any P&C insurer) sets aside money to pay a claim today, they can deduct it from this year's income, even though the money may not (and probably will not) be paid on that claim until a later year. 

Last year SVMIC increased its reserves by $51,786,000.  That means that in the future it believes that it will have to pay $52M is losses and loss adjustment expenses (litigation-related costs) more than it thought it would have to pay as of December 31, 2007.  Of course, that number is based part in a revision of pre-2008 claims plus the setting of reserves for all claims reported in 2008.

So, a policyholder surplus takes all of that into account.  It means that if SVMIC were shut down for business on December 31, 2008 and it did not collect one more dollar in premiums it believes that it has set aside enough money to pay claims and defense costs and still have $251,321,100. 

SVMIC has 15,501 insureds (down from a high of 16,415 in 2005).   The number of policyholders decreased in Arkansas and Virginia because competitors have been reducing rates.

If that policy surplus was divided between its 15,501 insureds, each insured (who after-all is an owner of the company and would be entitled to whatever money is left if the company were liquidated) would receive an average of $16,213.

Let me hasten to add that the fact that SVMIC has $251M in "extra" money does not necessarily mean that it can reduce rates or make dividend payments to its owners.   I don't pretend to understand it all, but suffice it to state that good business practice and state law require companies to maintain a level of surplus appropriate to the business of and size of the company.  In a simple way, it is like your personal financial situation - the fact that you have a positive net worth does not mean you can or should quit working.  I have no idea rather SVMIC's policyholder's surplus is too high or too low, but the high rating given to the company by A.M. Best Company - an "A (Excellent)" rating tells me that it is what it should be.

A later post will discuss other aspects of SVMIC's financial position.

 

ER Docs in Arizona Get Special Treatment in Courtrooms

Torts Prof lets us know that the elected representatives in Arizona believe that ER doctors should not be held responsible for their negligence unless the patient can prove his case by clear and convincing evidence.

Georgia Supreme Court Reverses Med Mal Verdict Because of Error in Jury Instructions

Georgia has a pattern jury instruction called the "hindsight" instruction.  It provides as follows:

In a medical malpractice action, a defendant cannot be found negligent on the basis of an assessment of a patient’s condition that only later, in hindsight, proves to be incorrect as long as the initial assessment was made in accordance with reasonable standards of medical care. In other words, the concept of negligence does not include hindsight. Negligence consists of not foreseeing and guarding against that which is probable and likely to happen, not against that which is only remotely and slightly possible.

 

In Smith v. Finch , S08G1845 (Ga. June 29, 2009) the Georgia Supreme Court reversed a jury verdict for the defense and held that this instruction should not have been given.  The court said as follows:

The third sentence of the hindsight charge, however, goes far beyond this non-controversial notion and is actually inconsistent with the standard of care in many medical malpractice cases. As Georgia courts have recognized, the applicable standard of care often requires employment of a “differential diagnosis” methodology, whereby “‘[t]he physician considers all relevant potential causes of the [patient’s] symptoms and then eliminates alternative causes based on a physical examination, clinical tests, and a thorough case history.’” (Footnote omitted.) Shiver v. Georgia & Florida Railnet, Inc., 287 Ga. App. 828, 829 (1) (652 SE2d 819) (2007). See also Hawkins v. OB-GYN Assocs., 290 Ga. App. 892, 893 (1) (660 SE2d 835) (2008) (describing differential diagnosis methodology); Cherry v. Schwindt, 262 Ga. App. 48, 48- 49 (584 SE2d 673) (2003) (same). In this case, for example, appellants presented expert testimony to the effect that RMSF [Rocky Mountain Spotted Fever] should have been included in the physicians’ respective differential diagnoses because of Justin’s presenting symptoms and the fact that it was summertime in Georgia, as well as because of the disease’s potentially severe effects if left untreated. Having heard this testimony, the jury was then instructed, via the third sentence of the hindsight instruction, that, as a matter of law, negligence may not be found if the injury is “only remotely and slightly possible.” Given the evidence that RMSF is a disease that is relatively rare, i.e., “slightly possible,” this language effectively instructed the jury to disregard appellants’ experts’ characterization of the standard of care.

 

The court also said that  "the third sentence of the hindsight charge ... instructs juries that liability may be premised only on those injurious results that are “probable and likely to happen.” As such, it is inaccurate and misleading."  [Footnote omitted].  Why?  Because  |[g]eneral negligence law holds that negligence may be established where it is shown that “by exercise of reasonable care, the defendant might have foreseen that some injury would result from his act or omission, or
that consequences of a generally injurious nature might have been expected.”

The court also announced its disapproval of the second sentence of the instruction because "it
adds nothing of substance to the first sentence and, being thus duplicative, may serve to unduly emphasize the notion that hindsight has no role in the assessment of negligence."

Read the opinion here.

Thanks to Torts Prof for alerting me about the decision.

Article on the New Medical Malpractice Notice and Certificate of Good Faith Legislation

My article on the new medical malpractice notice and certificate of good faith legislation (which goes into effect today, July 1) made the cover of the July edition of the Tennessee Bar Journal.  Here is the article.

Anyone who practices in the field of medical negligence needs to become familiar with this legislation.  This article will give you an easy way to get up to speed on this new law.

"Other Bad Act" Evidence in Medical Malpractice Cases

Sometimes a lawyer representing a patient in a medical malpractice trial may want to introduce evidence of "bad acts" of a health care provider or a provider's expert witness.   This article   from the Medical Malpractice Newsletter published by the Hinshaw & Culbertson tells us how the defense is going to attempt to keep that information from the jury.

ACOG Changes FHR Monitoring Guidelines

From ACOG's Press Release:

Refinements of the definitions, classifications, and interpretations of fetal heart rate (FHR) monitoring methods were issued today in new guidelines released by The American College of Obstetricians and Gynecologists (ACOG). The objective of the guidelines is to reduce the inconsistent use of common terminology and the wide variability that sometimes occurs in FHR interpretations. ACOG's Practice Bulletin, published in the July 2009 issue of Obstetrics & Gynecology, supports the recommendations of the Eunice Kennedy Shriver National Institute of Child and Health Development workshop* on electronic fetal monitoring (EFM) held in April 2008.

...

One notable update in the guidelines is the three-tier classification system for FHR tracings (print-outs of the fetal heart rate). Category 1 FHR tracings are considered normal and no specific action is required. Category 2 tracings are considered indeterminate. This category requires evaluation and surveillance and possibly other tests to ensure fetal well-being. Category 3 tracings are considered abnormal and require prompt evaluation, according to ACOG. An abnormal FHR reading may require providing oxygen to the pregnant woman, changing the woman's position, discontinuing labor stimulation, or treating maternal hypotension, among other things. If the tracings do not return to normal, the fetus should be delivered.

 

President's Speech to the AMA

 

Here it is.

An excerpt: 

Now, I recognize that it will be hard to make some of these changes if doctors feel like they are constantly looking over their shoulder for fear of lawsuits. Some doctors may feel the need to order more tests and treatments to avoid being legally vulnerable. That’s a real issue. And while I’m not advocating caps on malpractice awards which I believe can be unfair to people who’ve been wrongfully harmed, I do think we need to explore a range of ideas about how to put patient safety first, let doctors focus on practicing medicine, and encourage broader use of evidence-based guidelines. That’s how we can scale back the excessive defensive medicine reinforcing our current system of more treatment rather than better care.

These changes need to go hand-in-hand with other reforms.
 

NYT Reports President Is Talking About Restricting Med Mal Suits

Here is the article from today's New York Times.

UPDATE on Medical Malpractice Notice and Certificate of Good Faith Statute

SB  2109   passed the Senate at 11:36 on June 4 and is now on its way to the Governor's desk.  The Bill  passed the House (HB2233) in May.   UPDATE:  The Governor signed the legislation on June 11.   Click here for information on the June 15 seminar on this important bill.

The bill dramatically changes the law that came into effect just last October 1, and impacts both the pre-suit notice and the certificate of merit provisions.   The effective date of the bill is a little tricky and bears careful study, but the notice provisions come into effect July 1, 2009.

Generally speaking, the law makes it easier to give notice of a potential medical malpractice claim and gives more specifics about what the notice must say.  It also requires that the claimant provide a HIPPA-compliant authorization with the notice.

If notice is given in accordance with the statute, the statute of limitations and repose is extended 120 days.  However, when the complaint is filed, the new law requires that the complaint must be accompanied by a certificate of good faith.

Here is a summary of the bill  prepared by  the General Assembly:


AMENDMENT #1 rewrites the bill. Under present law, any person asserting a potential claim for medical malpractice must give written notice of the claim to each health care provider against whom the claim is being made at least 60 days before the filing of a complaint based upon medical malpractice. A list of all health care providers to whom notice is being given must be attached to the notice. This amendment clarifies that the list must include the name and addresses of such persons and requires that the notice additionally include:

(1) The full name and date of birth of the patient whose treatment is at issue;
(2) The name and address of the claimant authorizing the notice and the relationship to the patient, if the notice is not sent by the patient;
(3) The name and address of the attorney sending the notice, if applicable; and
(4) A HIPAA compliant medical authorization permitting the provider receiving the notice to obtain complete medical records from each other provider being sent a notice.

The above information must also be provided with the medical malpractice complaint.

This amendment clarifies that the requirement of service of written notice prior to suit is deemed satisfied if, within the statutes of limitations and statutes of repose applicable to the provider:

(1) Personal delivery of the notice to the health care provider or an identified individual whose job function includes receptionist for deliveries to the provider or for arrival of the provider's patients at the provider's current practice location; or
(2) Mailing of the notice:
(A) To an individual health care provider at both the address listed for the provider on the department of health Web site and the provider's current business address, if different;
(B) To a health care provider that is a corporation or other business entity at both the address for the agent for service of process; and the provider's current business address, if different from that of the agent for service of process.

If the mailings described above in (2)(A) or (2)(B) are returned undelivered from both addresses, then, within five business days after receipt of the second undelivered letter, the notice would be mailed in the specified manner to the provider's office or business address at the location where the provider last provided a medical service to the patient. Compliance with the above (2) would be demonstrated by filing a certificate of mailing from the U.S. postal service stamped with the date of mailing, and an affidavit of the party mailing the notice, establishing that the specified notice was timely mailed by certified mail, return receipt requested. A copy of the notice sent would be attached to the affidavit. It is not necessary that the addressee of the notice sign or return the return receipt card that accompanies a letter sent by certified mail for service to be effective. This amendment clarifies that personal service is effective on the date of that service and that service by mail is effective on the first day that the service is made.

Under present law, when the above notice is given, the applicable statutes of limitations and repose are extended for up to 90 days. This amendment increases this extension to up to 120 days and clarifies that the extension would begin from the date of expiration of the statute of limitations and statute of repose applicable to that provider. This amendment clarifies that no more than one extension would apply to a provider.

Under present law, all parties in a medical malpractice action may obtain complete copies of the claimant's medical records from any other party. The receipt of a medical authorization executed by the claimant is considered compliance by the claimant with this provision. This amendment revises this provision to instead clarify that the claimant complies with this requirement by providing the providers with the authorized HIPAA complaint medical authorization required to accompany the notice. This amendment clarifies that a party may obtain the copies from "any other provider receiving notice" instead of from "any other party". This amendment specifies the manner in which a provider may comply with this requirement. This amendment requires that the records received by the parties be treated as confidential and be used only by the parties, their counsel, and their consultants.

Present law requires the plaintiff or plaintiff's counsel to file a certificate of good faith within 90 days after filing a complaint in any medical malpractice action in which expert testimony is required under present law. This amendment revises this provision to require that the certificate be filed "with the complaint" instead of "within 90 days". This amendment specifies that the complaint will be dismissed, pursuant to present law, if the certificate is not filed with the complaint unless there is a showing that the failure was due to the failure of the provider to timely provide copies of the claimant's records or demonstrated extraordinary cause.

This amendment specifies that in the event that notice is successfully given more than once to a provider, the effect of the notice will be determined by the law in effect on the date of the first successful notice.

Seminar on New Medical Malpractice Litigation

The Tennessee Bar Association is sponsoring a seminar to educate lawyers on the new medical malpractice statute passed by the Senate earlier today.  If signed by the Governor, and there is no reason to believe that he will not sign the bill, the legislation makes major changes in medical malpractice procedural law.  The TBA has selected me as the speaker for this program.

The seminar will be webcast at 11:00 CDT on Monday, June 15, 2009.

A portion of the legislation is effective July 1, 2009 , but the transitional issues will be discussed in the seminar.  Each provision of the legislation will be discussed in detail.  I participated in all of the negotiations concerning this legislation and will provide a history of how the legislation developed.

Go here to register for the program.  The program will be held via webcast at a charge of only $45 for TBA members and $65 for non-members.  One hour of CLE credit will be given.

NOTE:  Why am I repeating this post?  Because this legislation represents a substantial change in this area and lawyers need to be aware of it before the effective date.   I am not getting paid to present the program or to market it.  I just do not want lawyers to make decisions on medical malpractice cases without being aware of this new legislation.

Seminar on New Medical Malpractice Legislation

The Tennessee Bar Association is sponsoring a seminar to educate lawyers on the new medical malpractice statute passed by the Senate earlier today.  If signed by the Governor, and there is no reason to believe that he will not sign the bill, the legislation makes major changes in medical malpractice procedural law.  The TBA has selected me as the speaker for this program.

The seminar will be webcast at 11:00 CDT on Monday, June 15, 2009.

A portion of the legislation is effective July 1, 2009 , but the transitional issues will be discussed in the seminar.  Each provision of the legislation will be discussed in detail.  I participated in all of the negotiations concerning this legislation and will provide a history of how the legislation developed.

Go here to register for the program.  The program will be held via webcast at a charge of only $45 for TBA members and $65 for non-members.  One hour of CLE credit will be given.

New Medical Malpractice Notice and Certificate of Good Faith Bill Passes Senate

SB  2109   passed the Senate at 11:36 and is now on its way to the Governor's desk.  The Bill  passed the House (HB2233) in May.   There is no indication that the Governor will not sign the legislation.

The bill dramatically changes the law that came into effect just last October 1, and impacts both the pre-suit notice and the certificate of merit provisions.   The effective date of the bill is a little tricky and bears careful study, but the notice provisions come into effect July 1, 2009.

Generally speaking, the law makes it easier to give notice of a potential medical malpractice claim and gives more specifics about what the notice must say.  It also requires that the claimant provide a HIPPA-compliant authorization with the notice.

If notice is given in accordance with the statute, the statute of limitations and repose is extended 120 days.  However, when the complaint is filed, the new law requires that the complaint must be accompanied by a certificate of good faith.

Here is a summary of the bill  prepared by  the General Assembly:


AMENDMENT #1 rewrites the bill. Under present law, any person asserting a potential claim for medical malpractice must give written notice of the claim to each health care provider against whom the claim is being made at least 60 days before the filing of a complaint based upon medical malpractice. A list of all health care providers to whom notice is being given must be attached to the notice. This amendment clarifies that the list must include the name and addresses of such persons and requires that the notice additionally include:

(1) The full name and date of birth of the patient whose treatment is at issue;
(2) The name and address of the claimant authorizing the notice and the relationship to the patient, if the notice is not sent by the patient;
(3) The name and address of the attorney sending the notice, if applicable; and
(4) A HIPAA compliant medical authorization permitting the provider receiving the notice to obtain complete medical records from each other provider being sent a notice.

The above information must also be provided with the medical malpractice complaint.

This amendment clarifies that the requirement of service of written notice prior to suit is deemed satisfied if, within the statutes of limitations and statutes of repose applicable to the provider:

(1) Personal delivery of the notice to the health care provider or an identified individual whose job function includes receptionist for deliveries to the provider or for arrival of the provider's patients at the provider's current practice location; or
(2) Mailing of the notice:
(A) To an individual health care provider at both the address listed for the provider on the department of health Web site and the provider's current business address, if different;
(B) To a health care provider that is a corporation or other business entity at both the address for the agent for service of process; and the provider's current business address, if different from that of the agent for service of process.

If the mailings described above in (2)(A) or (2)(B) are returned undelivered from both addresses, then, within five business days after receipt of the second undelivered letter, the notice would be mailed in the specified manner to the provider's office or business address at the location where the provider last provided a medical service to the patient. Compliance with the above (2) would be demonstrated by filing a certificate of mailing from the U.S. postal service stamped with the date of mailing, and an affidavit of the party mailing the notice, establishing that the specified notice was timely mailed by certified mail, return receipt requested. A copy of the notice sent would be attached to the affidavit. It is not necessary that the addressee of the notice sign or return the return receipt card that accompanies a letter sent by certified mail for service to be effective. This amendment clarifies that personal service is effective on the date of that service and that service by mail is effective on the first day that the service is made.

Under present law, when the above notice is given, the applicable statutes of limitations and repose are extended for up to 90 days. This amendment increases this extension to up to 120 days and clarifies that the extension would begin from the date of expiration of the statute of limitations and statute of repose applicable to that provider. This amendment clarifies that no more than one extension would apply to a provider.

Under present law, all parties in a medical malpractice action may obtain complete copies of the claimant's medical records from any other party. The receipt of a medical authorization executed by the claimant is considered compliance by the claimant with this provision. This amendment revises this provision to instead clarify that the claimant complies with this requirement by providing the providers with the authorized HIPAA complaint medical authorization required to accompany the notice. This amendment clarifies that a party may obtain the copies from "any other provider receiving notice" instead of from "any other party". This amendment specifies the manner in which a provider may comply with this requirement. This amendment requires that the records received by the parties be treated as confidential and be used only by the parties, their counsel, and their consultants.

Present law requires the plaintiff or plaintiff's counsel to file a certificate of good faith within 90 days after filing a complaint in any medical malpractice action in which expert testimony is required under present law. This amendment revises this provision to require that the certificate be filed "with the complaint" instead of "within 90 days". This amendment specifies that the complaint will be dismissed, pursuant to present law, if the certificate is not filed with the complaint unless there is a showing that the failure was due to the failure of the provider to timely provide copies of the claimant's records or demonstrated extraordinary cause.

This amendment specifies that in the event that notice is successfully given more than once to a provider, the effect of the notice will be determined by the law in effect on the date of the first successful notice.

 

Unusual Incident Reporting in Tennessee

Last year I wrote about the Tennessee Department of Commerce and Insurance's 2008 Medical Malpractice Claims Report.  The report revealed data from medical malpractice cases settled and tried in Tennessee in calendar year 2007.

The numbers:

Total judgments for plaintiffs  

2007             7

Total settlements                     

2007         492

Cases Dismissed   With No Payment

2007        2238  (plus another 306 claims dismissed on defense verdicts for a total of 2544)

That is interesting, but wouldn't it be nice to know how much malpractice occurred?  We know that approximately 2000 people die in Tennessee hospitals each year as a result of medical malpractice, but data on out-of-hospital deaths and data on injuries is hard to find.

But I came across this interesting report that sheds a little light on the issue.  Tennessee health care providers are required to report "unusual events" to the Department  of Health.  In 2006 there were 8,301 unusual events reported to the State.  That is not a typo - 8, 301.

And what constitutes an unusual event?  Falls with fractures (1295),  death (170), rape (17), retained foreign body (50) , wrong patient, wrong site surgery (27), and many more.

I am not suggesting that every "unusual event" is medical malpractice.  I am also not suggesting that each of these 8,301 self-reported unusual events should have resulted in litigation. 

What I am saying is that a relatively small percentage of unusual events results in the filing of a lawsuit, and relatively few of them result in a settlement or verdict for the patient.   I also suggest that unusual events are woefully under-reported.  For example, one category of unusual event is "post op wound infection."  It indicates that there were 779 patients who suffered from this unusual event in 2006.  If that is true, then at least 50% of them called me to tell them whether they had a malpractice case.  No - that number is way, way low.

 

"Diagnosis and Treatment of Acute Pulmonary Embolism"

On Tuesday  I posted  David B. Troxel, MD's article in The Doctor's Advocate about VTE.  Today, I include another article by the same doctor - this one about diagnosis and treatment of PE.

Here it is.

Are iPhones the Standard of Care?

To be precise, I am not talking about iPhones.  I am talking about the apps for iPhones.  There are hundreds and hundreds of iPhone apps for health care providers that permit one to help formulate a differential diagnosis, check for drug-drug interactions, or identify medications.

So, does the standard of care require a doctor to buy and use these apps relevant to his or her field?

Not today.  But as time goes on look for the standard of care to include either the knowledge of relevant data that can be gathered from such sources or ready means to access it via iPhone, Blackberry, etc.  Medical students are already being trained for the use of these devices, and it is only natural that the standard of care will ultimately incorporate the use of  these tools.

"Venous Thromboembolism--Risk Factors, Prevention, and Diagnosis"

David B. Troxel, MD of the Doctors Company has written a great article about VTE inThe Doctor's Advocate..  The article reviews the risk factors for VTE, the prevention of VTE, and the diagnosis of DVT and includes a reference to the American College of Chest Physicians’ guidelines.

Read here - and learn.

SVMIC Supplies Us With Surgical Checklist

SVMIC, the medical malpractice insurer owned by doctors for doctors, has published information about a seminar it offered to its insureds addressing the issue of surgical checklists.

This is how SVMIC describes the seminar it called "“Applied Aviation Safety Practices for Surgeons and Anesthesiologists:”

The basic premise of these seminars was that human errors, often supported by poorly designed systems, are the primary cause of preventable patient deaths and injuries. These human errors share similarities with, and will respond to, many of the same error reduction methods used in high reliability industries such as aviation and nuclear power. One of the hallmarks of high reliability industries is the conscientious and consistent use of checklists.

Do checklists work?

Fast forward to January 2009, and research published in the New England Journal of Medicine that found when surgical teams used a simple checklist — as pilots do before takeoff —patient mortality rates dropped over 40% and complications fell by more than a third.

Is using checklists complicated?

The checklist itself is a single page that requires only a few minutes to complete at three critical junctures of operative care: before anesthesia is administered, before
skin incision, and before the patient is removed from the operating room.

What is on the checklist?

objective evaluation and documentation of the status of the patient’s airway before administration of the anesthetic; the use of pulse oximetry at the time of initiation of anesthesia; the administration of prophylactic antibiotics; oral confirmation, immediately before incision, of the identity of the patient, the operative site, and the procedure to be performed; and completion of a sponge count at the end of the procedure if an incision was made.

How does SVMIC describe the "bottom line?"

Effectively used checklists are a low cost, low effort, low tech tool for improving communication among team members, encouraging consistent and appropriate patient care, and reducing complications and death associated with surgery and other medical mishaps. Even the best tools and systems will fail, however, without commitment from the top levels of an organization to create a “culture of safety.” Physician buy-in is a must. We strongly encourage you to consider the judicious use of checklists in medical and surgical situations where they would be helpful.
 

The 19 item WHO checklist (shown on page 5) and other supporting materials are freely available on the WHO Safe Surgery Saves Lives site at http://www.who.int/patientsafety/safesurgery/en/. These materials include a Checklist Implementation Manual, Starter Kit with PowerPoint presentation and video examples of how to use the checklist in both a simple and complex case. This is a nice starting point but bear in mind, no checklist is “one size
fits all.” Additions and modifications to fit local practices and institutional needs are encouraged.

Ok, so there is the typical CYA stuff included.  Nevertheless, this information is helpful to doctors and lawyers alike.

Read the article and see the checklist here.

Permit me to add this.  I know some people think that SVMIC writes these articles and gives seminars to save money on future claims.  Perhaps.  But I doubt it. 

I have disagreements with SVMIC about some portions of their apparent litigation strategy and their evaluation of some claims.  I disagree with their support of tort reform (I understand it - I just disagree with the need for some of the protections they want.)  That being said, the folks over there (their office is right down the road from mine) do care about patient safety.  Saving money on claims by preventing claims is a collateral benefit that just so happens to be very good for patients.

Medical Record-Keeping

The Doctors Company, a medical malpractice insurer, has published this article about keeping medical records. 

An excerpt:

The following entries should appear in the office or hospital records of each patient:

  • Results of a patient’s physical examination, specifically noting the absence of abnormality.
  • Patient history, a list of all medications with particular emphasis on current medications, to include over-the-counter drugs and supplements and any allergies or drug sensitivities.
  • Specific notation on the patient’s experience, if any, with drug or alcohol abuse and family or emotional problems.
  • Progress notes, entered after each office visit, about any change in status. (If negative, your follow-up should be indicated.)
  • Signed and witnessed consent forms for special procedures or surgery.
  • Patient response to medication or procedures.
  • Patient failure to follow advice or to keep appointments and any refusal to cooperate. (Log missed appointments and follow-up telephone calls and letters.)
  • All significant laboratory or x-ray reports and the dates when they were ordered and read.
  • Copies or records of instructions of any kind (including diet) and directions given to the family.
  • Records of consultations with other physicians and their written or oral responses, with the dates and times.
  • Thorough documentation of any patient’s grievance, including the date and time.

Malpractice Concerning Pap Smears

One medical malpractice insurer, The Doctors Company, has an interesting article on medical malpractice claims concerning pap smears.

Here is a excerpt from the article that discusses the scope of the problem:

To put the potential magnitude of this problem in perspective, a College of American Pathologists (CAP) study of the five-year “look-back” at previous negative Pap smears following the diagnosis of HSIL/carcinoma found that 10 percent of prior smears were false negatives for SIL/carcinoma. If atypical squamous cells of undetermined significance (ASC-US) were included, 20 percent of prior smears were false negatives. In 1996, the American Cancer Society predicted 15,700 new cases of cervical cancer and 4,700 deaths. Published studies indicated that 60–75 percent of women dying from cervical cancer either never had a Pap smear or had not had one in the five years prior to diagnosis. Therefore, if one assumed that 40 percent of the predicted new cases of cervical carcinoma had a single Pap smear in the prior five years with a 20 percent false-negative rate, there was a potential for 1,256 new claims for failure to diagnose cervical carcinoma on a Pap smear in 1996 alone!  [Footnotes omitted.]

The cause of the errors is split between sampling errors and interpretation errors.

And what is one method that the insurance company recommends to its insureds to "help" patients?  Put in the path report that errors are made.  This is also known as the "give the defense lawyer something to use for closing argument" recommendation.  ("You can't expect us to get every one right.  We told you that we get them wrong.")

Include a “statement” in the Pap smear report reminding the clinician (and patient) that the Pap smear is a screening test with an irreducible false-negative rate, the consequences of which can be minimized by obtaining an annual Pap smear. It is important to educate the public, primary care physicians, and gynecologists about the limitations of the Pap smear so that they have realistic expectations about its sensitivity and understand why it is important to obtain a Pap smear annually.

And what about this little goodie:

A single Pap test has a high false-negative rate (circa 55 percent). Therefore, when collecting the Pap test specimen, if the clinician sees a cervical abnormality (ulceration, induration, a visible or elevated lesion, bleeding), it should be biopsied. In a patient with cervical cancer and a false-negative Pap test, the failure to biopsy a cervical abnormality may be below the standard of practice and constitute negligence.

There is so much more here.  Read it and educate yourself before accepting one of these cases.

Tennessee Ranks #40 in Doctor Discipline

Public Citizen ranks Tennessee 40th in its 2008  ranking of serious doctor disciplinary actions taken by state medical licensing boards.

The Tennessee board took a total of 40 serious disciplinary actions against the 18,137 doctors in Tennessee, or a total of 2.44 actions per 1000 physicians.  The total leading states were Alaska (6.54 per 1000) and Kentucky (5.87 per 1000).  The two states with the lowest rankings were Minnesota (0.95 per 1000) and South Carolina (1.23 per 1000).

In 2006 Tennessee ranked 29th on the list and in 2007 it ranked 28th. 

Let me hasten to add that the number of actions per physician numbers and the annual rankings take into account a compilation of three years of disciplinary actions.  Therefore, the 2008 ranking includes disciplinary actions from 2006, 2007, and 2008 while the 2006 ranking include 2004, 2005 and 2006 disciplinary actions.  The ranking includes disciplinary actions over a three-year period because  "small states do not have many physicians, an increase or decrease of one or two serious actions in a year can have a much greater effect on the rate of discipline in such states (and their ranks) than it would in larger states."

The Public Citizen report also reveals that the nationwide disciplinary rate in 2008—2.92 serious actions per 1000 physicians—is 21.5% lower than the peak rate in 2004 of 3.72 serious actions per 1000 physicians,  For example, in 2004 Tennessee ranked 41st in the country, but the disciplinary rate was actually higher - 49 actions against 16.547 physicians.
 

One final point.   Despite the failure of Tennessee to pass caps on damages that can be recovered by patients when they are harmed by the negligence of a health care provider, the number of physicians in Tennessee has increased.  In 2004 we had 16,547 physicians.  In 2008 we had 18,137, an increase of almost 1600 doctors (about 10%) in four years. 

Geez - I thought physicians were leaving the state because the Tennessee General Assembly had not passed damage caps. 

Prescribing Drugs for Off-Label Use

Many of us know that  doctors prescribe drugs for uses other than those approved by the FDA. 

This article discusses off-label drug prescribing and suggests that physicians who prescribe a drug for an off-label use follow the following steps to obtain informed consent:

  • a statement that the off-label use is an “experimental use” so all the possible side effects and complications are not known;
  • a list of the common and/or known risks and complications with use of the medication;
  • a statement that the details of the treatment have been fully explained in lay terms or in terms that are easily understood by the patient;
  • a statement that no guarantees about the results of the medication are given; and
  • a statement that the patient is not required to take the medication.

Read the entire article here.

Expert Testimony Allowed on the Issue of Recklessness in Medical Negligence Case

The Idaho Supreme Court has permitted an expert to opine that two defendants in a medical negligence case engaged in not just negligent but reckless conduct.

In Jones v. Crawford, 2009 Opinion 53 (Idaho S. Ct. April 8, 2009), a defendant appealed from an adverse jury verdict in a wrongful death case.  Plaintiffs charged that the decedent's death from an air embolus after spine surgery was a result of the negligent and reckless conduct of the defendants.  The trial judge permitted the plaintiff's experts to opine that the conduct of two of the defendants was reckless.

In affirming the trial judge's decision to admit the expert testimony on the issue of recklessness, the Idaho Supreme Court said

it was the opinions of the experts regarding the community standard of care that was the focus of the testimony. The district court allowed the two experts to testify as to what conduct they would characterize as reaching a level of negligence that they saw as reckless. This testimony was permissible because (1) the experts had acquainted themselves adequately with the community standard for health care providers such as [defendant technician], and (2) their opinions as to the level of negligence of her conduct were not conclusions that the average juror would be qualified to draw.

Read the entire opinion here.

 

Never Events

Here are the 28 medical events that the National Quality Forum says should never occur:

Surgical Events

Surgery performed on the wrong body part
Surgery performed on the wrong patient
Wrong surgical procedure on a patient
Retention of a foreign object in a patient after surgery or other procedure
Intraoperative or immediately post-operative death in a normal healthy patient


Product or Device Events


Patient death or serious disability associated with the use of contaminated drugs, devices, or biologics provided by the healthcare facility
Patient death or serious disability associated with the use or function of a device in patient care in which the device is used or functions other than as intended
Patient death or serious disability associated with intravascular air embolism that occurs while being cared for in a healthcare facility


Patient Protection Events


Infant discharged to the wrong person
Patient death or serious disability associated with patient disappearance for more than four hours
Patient suicide, or attempted suicide resulting in serious disability, while being cared for in a healthcare facility


Care Management Events


Patient death or serious disability associated with a medication error
Patient death or serious disability associated with a hemolytic reaction due to the administration of ABO-incompatible blood or blood products (transfusion of the wrong blood type)
Maternal death or serious disability associated with labor or delivery on a low-risk pregnancy while being cared for in a healthcare facility
Patient death or serious disability associated with hypoglycemia, the onset of which occurs while the patient is being cared for in a healthcare facility
Death or serious disability (kernicterus) associated with failure to identify and treat jaundice in newborns
Stage 3 or 4 pressure ulcers acquired after admission to a healthcare facility
Patient death or serious disability due to spinal manipulative therapy


Environmental Events


Patient death or serious disability associated with an electric shock while being cared for in a healthcare facility
Any incident in which a line designated for oxygen or other gas to be delivered to a patient contains the wrong gas or is contaminated by toxic substances
Patient death or serious disability associated with a burn incurred from any source while being cared for in a healthcare facility
Patient death associated with a fall while being cared for in a healthcare facility
Patient death or serious disability associated with the use of restraints or bedrails while being cared for in a healthcare facility
Criminal Events
Any instance of care ordered by or provided by someone impersonating a physician, nurse, pharmacist, or other licensed healthcare provider
Abduction of a patient of any age
Sexual assault on a patient within or on the grounds of a healthcare facility
Death or significant injury of a patient or staff member resulting from a physical assault (i.e., battery) that occurs within or on the grounds of a healthcare facility

By the way, this group has recently released "Safe Practices for Better Healthcare 2009 Update A Consensus Report."  Here is an abstract of the report.

Improving the safety of healthcare delivery saves lives, helps avoid unnecessary complications, and increases the confidence that receiving medical care actually makes patients better, not worse. Unfortunately, patients are still harmed, or nearly harmed, in healthcare institutions across the country every day. This harm is not intentional, however, and it usually can be avoided. Although modest advances in patient safety have been made nationally since the National Quality Forum (NQF) published its report Safe Practices for Better Healthcare—2006 Update, adverse healthcare events continue to be a leading cause of death and injury in the United States, even though well-documented methods continue to be available that could prevent their occurrence.

Safe Practices for Better Healthcare—2009 Update presents 34 practices that have been demonstrated to be effective in reducing the occurrence of adverse healthcare events. This revised set of NQF-endorsed safe practices has been updated with current evidence and expanded implementation approaches, and it provides additional measures for assessing the implementation of the practices.

Systematic, universal implementation of these practices can lead to appreciable and sustainable improvements in healthcare safety. The update explicitly calls upon healthcare organization leaders and governance boards to review proactively the safety of their organizations and to take action to improve continually the safety and thus the quality of the care they provide.  [Emphasis added.]
 

"They Killed My Patient. Then They Tried to Hide It."

These are not the words of some crazy plaintiff's lawyer.  These are the words of a doctor.  Dr. Amy Tuteur at Harvard.

An excerpt:  "If I had been angry about what happened to the patient, I was even angrier after learning of the deception. The hospital had deliberately lied to protect its staff members. They lied to cover up medical negligence, with the assumption that the doctors in question would continue to practice at the same hospital, free to make similar mistakes."

Read it all for yourself.  Don't forget the comments.  All of the comments.  Keep reading.

Thanks to Eric Turkewitz at the New York Personal Injury Law Blog for informing me about Dr. Tuteur's blog post.

The Latest From David Mills

From the March 30, 2009 edition of Courtoons.

A Look Back: Senator Frist and Terri Schiavo

It was four years ago today that I wrote about the ability of Senator Bill Frist to make a medical diagnosis via videotape.  Here is my follow-up post from June 16, 2005, written after the release of Ms. Schiavo's autopsy.

Did Dr. Frist's videotape diagnosis cost him a shot at the presidency?  That is a tough question.  But I guarantee you that  he wishes he had never heard of Terri Schiavo.

Medical Malpractice Filings Down - New Statutes Reducing Number of Lawsuits

We have some preliminary data on the number of medical malpractice case filings in certain counties since the October 1, 2009 effective date of the medical malpractice notice and certificate of good faith statutes.

One new statute requires that actual notice be given to defendants in med mal cases before a lawsuit is filed.  The other requires counsel to execute a certificate of good faith that arises after consultation with experts.

Here are the med mal filings in the following counties in the last three months of 2007 and 2008:

County 4th Q. 2007 4th Q. 2008
Davidson 30 11
Franklin 2 1
Hamilton 5 1
Knox 15 2
Maury 1 1
Putnam 2 1
Robertson 0 1
Rutherford 7 1
Shelby 38 3
Sullivan 12 1
Washington 8 4
            Total 120 28

Thus, in these counties, med mal filings were down over 75%. The total number of med mal filings in  the entire state for the fiscal year ending June 30, 2008 was 537.  These eleven counties had 440, or 82%, of the total med mal filings for the entire state.  Assuming that the other 88 counties had reduced filings in the same proportion to the counties listed, total filings for the last three months of 2008 would number 35.

To be fair, three months is not a representative sample.  In addition,  there was probably an increase in filings before October 1, 2007, which would have depressed filings in the next three months.  Finally, if notice is given, the statute can be extended under certain circumstances, and that too could account for a decrease in filings in the last quarter of 2008.

That being said, this is the first objective data that we have seen that the new statute has impacted med mal filings.  I have predicted that med mal filings will be down 40% as a result of the new statutes.  In other words, I believe that filings will be down to about 332 per year as a result of the new statutes.  Time will tell if my projection is correct.

By the way, the new statutes are T.C.A. Sec. 29-26-121 (Notice)  and 29-26-122 (Certificate of Good Faith).

Nashville Scene Speaks Out Against Efforts by Nursing Homes to Limit Liability for Malpractice

An article by Jeff Woods at Nashville Scene:

 

The nursing home industry is back at the legislature this session demanding a law to cap its liability in Tennessee courts for neglecting and abusing residents. That's even though a legislative study committee, which met once after last year's bill failed, decided more time is needed to write balanced legislation. One lawmaker last year dubbed the bill the "Kill Old People Cheap" Act. If anything, this new version is even more audacious.
Residents and their families could win no more than $300,000 in any lawsuit for so-called non-economic damages--intangible harm such as pain, emotional distress, disfigurement or loss of a loved one. In addition to capping those damages, the bill would place health services provided by nursing homes under the same rules as medical malpractice cases, making it harder and costlier for residents to prove negligence. All that was in last session's bill.
What's new is this devious provision: Should a jury actually award punitive damages against one of our state's wretched nursing homes, half the cash would be snatched right out of the patient's hands and placed into a state fund. Where would that money go? Back to the nursing home industry, of course.
The prime force behind the legislation is National Healthcare Corp., which owned the Nashville nursing home where 16 residents died in a fire five years ago. Fighting the bill is Tennessee Citizen Action--a coalition of trial lawyers, advocates for the disabled and labor unions. They say the bill shields homes from responsibility for bad care. The group's executive director, Tom Peters, says:
"This bill is one of the most outrageous and extreme examples of corporate greed and political over-reaching that we have ever seen. It provides near-complete immunity when homes abuse or neglect residents and does nothing to improve care.
"The quality of care in many Tennessee nursing homes is shameful; there is no other way to characterize it. This bill would ensure that care only gets worse as it completely protects homes when they cause direct harm to the elderly. Several of the legislators who have signed their name to this bill are strong right-to-life advocates, but nothing in this bill will protect the sanctity of life for our nursing home residents. Tennessee Citizen Action stands strongly opposed to this deceptive and purposefully misleading legislation."
Here are the bill's sponsors (as you will note, even a couple of Democrats are for the nursing home industry): Sen. Jim Tracy (R-Shelbyville), Rep. John Lundberg (R-Bristol), Rep. Steve McDaniel (R-Parkers Crossroads), Rep. Vance Dennis (R-Savannah), Rep. Bill Harmon (D-Dunlap), Rep. Lois DeBerry (D-Memphis), Rep. Jason Mumpower (R-Bristol), Rep. Judd Matheny (R-Tullahoma), Rep. Glen Casada (R-Franklin), Rep. Joe Carr (R-Lascassas).
 

Practice Guidelines: Obstetric Anesthesia

Here is the most recent version of the practice guidelines for obstetric anesthesia as prepared by a task force of the American Society of Anesthesiologists.

Has Hill v. NHC Been Settled? UPDATE

I heard a rumor that the appeal in Hill v. NHC Healthcare/Nashville,LLC, M2005-01818-COA-R30-CV, (Tenn. Ct. App. April 30, 2008) (Rule 11 granted Aug. 25, 2008) has been dismissed.

This important opinion held that the defendant nursing home's arbitration clause was unconscionable as a matter of law.  The hope was that this case would give some guidance on the circumstances under which arbitration clauses could be upheld in nursing home contacts.

Does anyone know what happened to this case?

UPDATE 2/24/09 at 4:44 AM:

I received word from a reader that the Hill case settled in mediation.  I have not posted the comment because the reader mentioned that he has a similar case that he intends to take up and I was not sure that he wanted his name (and therefore his case) revealed the world at this time.

I think Hill  would have been affirmed.  Any lawyer who has such a case is urged to build an appropriate record and seek appellate review.  A lawyer''s duty to the client means that when the defendant finally gets the money right  in a case like this the case has to be settled, but the valuation for settlement  should not be discounted for risk of loss of the arbitration issue in a case with facts like Hill. 

Fire in the Operating Room

The February 18, 2009 edition of The Wall Street Journal has an interesting article about fires in the operating room, which happen approximately 650 times per year in the United States. 

A sample:  "Because each member of the [surgical]  team may be focusing on his own role in a procedure, 'the No. 1 cause of fires is lousy communication' says Patricia Seifert, editor-in-chief of AORN Journal, the monthly publication of the Association of Perioperative Registered Nurses."

Here is a website dedicated to raise awareness about this problem:   www.surgicalfire.org.

It goes without saying that these incidents can give rise to medical negligence cases against one or members of the surgical team.   A patient seriously burned in an operating room should seek the assistance of an experienced  lawyer to investigate the potential merits of a medical malpractice lawsuit.

 

Diagnosis of Appendicitis

State Volunteer Mutual Insurance Company's Winter 2008-09 quarterly newsletter, Risk Points, has an interesting article discussing the diagnosis of appendicitis.   This illness occurs in 250,000 people in the United States every year, and the mortality rate increases 500% if the appendix ruptures.

A sample from the article:  "Thus clinicians should focus on the time of onset rather than the time the patient first presents for evaluation when deciding whether a 'wait and see' approach is warranted.  A good habit is a scheduled return appointment or referral within a reasonable time frame for a second evaluation in patients with unconfirmed abdominal pain etiologies   When a diagnosis is unclear, it is crucial that your rationale, patient instructions and followup plan are well documented in the chart." 

The article begins on Page 2.

 

Lawyer Medical Malpractice Reports Due March 2

The Tennessee Medical Malpractice Reporting Act found at Tenn. Code Ann. §§ 56-54-101, et seq. went into effect on January 1, 2009 and replaced statutes regarding similar previous reporting requirements.   Bold the old and new statute require that lawyers report all medical malpractice settlements and judgments obtained in calender year 2008.

The Act requires the report to be filed with the Department of Commerce and Insurance offices on or before March 1 of each year.  Since March 1 falls on a weekend, the report will be due March 2nd.
 
The new medical malpractice forms and instructions for the 2008 calendar year  can be found at the Department of Commerce and Insurance's  web site.  That site is http://www.state.tn.us/commerce/insurance/medExpRpt.html

Making Surgery Safer

There is a great article in  today's  New York Times titled "Simple Checklist Makes Surgery Safer."

An excerpt:  "a year after surgical teams at eight hospitals adopted a 19-item checklist, the average patient death rate fell more than 40 percent and the rate of complications fell by about a third, the researchers reported.'

The Times article is based on an article in the January 14, 2009 edition of the New England Journal of Medicine, which reports on a research project conducted by the World Health Organization. 

Here is the "Elements of Surgical Safety Checklist." 

This article is a keeper.

 

Tennessee Nursing Homes Rank At the Bottom

According to the Tennessean. Tennessee nursing homes rank No. 48 (beating only Louisiana and Georgia), according to new survey information out from the Centers for Medicare and Medicaid Services.  Less than 7% of the nursing homes in Tennessee were rated above average.

The paper reports that

 "[o]f the 40 nursing homes listed in Davidson, Rutherford, Sumner, Williamson and Wilson counties, 11 fell well below average. Three of those — Briley Nursing and Rehabilitation Center in Whites Creek, Greenhills Health and Rehabilitation Center in Nashville and Cumberland Manor Nursing Center in Nashville — not only received the poorest marks for overall quality, but also received the lowest possible score in every category."

The paper notes that "[o]nly two facilities in the Nashville area — Gallatin Health Care Center LLC and West Meade Place — received the highest overall possible scores."

Read the entire story here.

This information has become public at a time when the Tennessee General Assembly will be considering legislation that limits the ability of consumers to pursue legal action against nursing homes when they cause injury or death to their patients.  Hopefully, the Legislature will understand that if you want  to protect the health and safety of nursing home residents you must maintain the right of citizens - through juries - to hold nursing homes fully accountable for harming residents.

Why would we want to pass damage caps and other laws to protect an industry that refuses to effectively do what they are paid to do (take care of our seniors) ?

Here is the Nursing Home Compare website.  The site is easy to use. For example,  here is the basic information on the nursing homes in the county where I live.

Medical Malpractice Reporting Statute

Many plaintiff's lawyers from across the state received assessments from the Department of Commerce and Insurance for failure to report data concerning medical malpractice settlements and judgments received during the prior year.  Many of the penalities approach $20,000 and, as one lawyer told me, the penality he has been assessed is greater than the fee he received in the case.

Some people have asserted that the reason plaintiff's lawyers have to report this data is my fault.  That is not accurate.  Here are the facts.

Since 1986 I have pushed for mandatory reporting of medical malpractice verdicts and settlements data.  Unfortunately, the state of Tennessee only recently began keeping data on verdicts in med mal cases, and most settlements are cloaked with a confidentiality agreement.  Therefore, we had no good data to fight the constant whining by the medical community that there was a med mal litigation crisis. 

Thus, after lots of hard work over many years by many people, a statute was passed requiring med mal insurers and self-insured providers to report data to the DCI.  This data would be used to help the Legislature to determine whether the future claims of a litigation crisis were real or imagined.  The reporting for these entities began in 2006 for the 2005 calendar year.

About a year after that legislation was passed either the med mal insurers or the DCI  (I can't remember which) had legislation introduced to require plaintiff's lawyers to also report data regarding fees and expenses.  I was involved in the TAJ Legislative Committee at the time and had no opposition to the legislation.  It only seemed fair to me that if we were requiring the defendants and insurers of the world to report such data we should be required to do the same thing.  This data would support the claims we were making on Capitol HIll that (a) the average fee in med mal cases was less than 1/3 (and it is) and demonstrate the substantial money that plaintiff's lawyers invest in these cases.

The legislation was discussed at several TAJ meetings and the decison was made not to oppose the effort.  The legislation was passed and become effective for cases settled and tried in 2006.  I announced that that legislation was passed in this blog and sent out warnings about the filing deadlines, including this one on February 19, 2007 and this one  on March 13 of 2008.  The legislation was also announced in various TAJ publications and an announcement was sent out on the TAJ general member listserve in early 2007,

Thus, it is true that I pushed for reporting of data by insurers and providers.  It is also true that I did not oppose the applicability of the reporting statute to plaintiff' lawyers, mainly because I could think of no legitimate reason to argue that the reporting should be applicable to the defendants of the world but not to plaintiffs.  But I did not propose the broadening of the reporting requirement and quite frankly I would have been very content to see it not apply to plaintiff's lawyers (because it is more paperwork for our office, too).  After the legislation passed,  I did what I could do to give  the information  to those I came in contact with through this blog and at seminars.

The reporting statute has permitted us to learn that there are very few medical malpractice verdicts and settlements for plaintiffs in Tennessee, as reflected in this data for  2005,  2006 and 2007.  I cannot guarantee that this data will help us win the upcoming med mal reform fight.  I can tell you that the data tells anyone who will listen with an open mind that there is no need to cap judgments in med mal cases. 

I feel sorry for people who have received a penalty  for not reporting data.  I think all TAJ members need to let the office know about their problem and the Association should help them work with the DCI to reach a resolution.  The fact of the matter is that the penalty should be a minor one rather than $100 per day; such a penalty only means that the longer it takes the DCI to figure out that an innocent mistake was made the greater the penalty.  This is not a health and safety issue that mandates that an additional penalty be assessed with the passing of each day.

To the extent that someone made in an error in completing the form, I cannot believe that the DCI would not work with the reporter and substantially reduce the penalty.  The form is a little confusing and a good faith effort to comply should not result in punishment and certainly not in any significant punishment.

Finally, the reporting of data for 2008 will be due in sometime in early April, 2009.  It would be a good idea to place a tickler on your calendar now.  Here are the current regulations but you should know that they are being in the process of being revised and there will almost certainly be new regs applicable for the 2008 reporting year.  I will let you know when the new regulations are issued and send a reminder of the 2009 due date for reporting 2008 data.

Finally, for those that are new to this blog, there is a new statute that requires giving notice of the intent to file medical malpractice cases (T.C.A. Sec. 29-26 -121) and mandates the filing of a certificate of merit (T.C.A. Sec. 29-26-122).  Here is a link to the new statutes.  The statutes are applicable to all Tennessee med mal cases filed after October 1, 2008.

"Hospital Compare" Website

The U.S. Department of Heath and Human Services has a website that delivers information on how well hospitals care for patients with certain medical conditions or surgical procedures, and the results of a survey of patients about the quality of care the patients received  during a recent hospital stay.

The site is here.

Information on Doctors

The Federation of State Medical Boards has a website that allows you to order professional information on physicians and physician assistants.  The reports include infomoration about disciplinary sanctions, education, medical specialty, licensure history and locations.  The cost of each report is $9.95.

Go the this site to place an order.

Limited information on Tennessee doctors (and other licensed health care providers) can be obtained for free at this site.

New Medical Negligence Certificate of Good Faith Form

The Administrative Office of the Courts has released the form that must be filed by plaintiffs in medical negligence cases (and by defendants who allege fault of another health care provider).  Both forms are available here.

In general, a plaintiff must file the certificate within 90 days after filing suit.

My partner Rebecca Blair had an article about the new statute published as the cover story of the Tennessee Bar Journal.   The article can be viewed here.

Those who intend to file a medical malpractice suit should carefully review the new statute that went into effect October 1.  Rebecca does a nice job of summarizing the statute in the article referenced above.

Standard of Care for Prescribing Medication

The Tennessee State Board of Medical Examiners has a policy about prescribing drugs.  It applies to any prescription written for a patient, whether in person, electronically, or over the Internet. 

The policy includes the following:

(1) Except as provided in paragraph (2), it shall be a prima facie violation of T.C.A. 63-6-214 (b) (1), (4), and (12) for a physician to prescribe or dispense any drug to any individual, whether in person or by electronic means or over the Internet or over
telephone lines, unless the physician has first done and appropriately documented, for the person to whom a prescription is to be issued or drugs dispensed, all of the following:
(a) Performed an appropriate history and physical examination; and
(b) Made a diagnosis based upon the examinations and all diagnostic and laboratory tests consistent with good medical care; and
(c) Formulated a therapeutic plan, and discussed it, along with the basis for it and the risks and benefits of various treatments options, a part of which might be the
prescription or dispensing drug, with the patient; and
(d) Insured availability of the physician or coverage for the patient for appropriate
follow-up care.

Paragraph  (2) provides as follows:

A physician may prescribe or dispense drugs for a person not in compliance with
subparagraph (a) in circumstances including, but not limited to, the following:
(a) In admission orders for a newly hospitalized patient; and
(b) For a patient of another physician for whom the prescriber is taking calls; and
(c) For continuation medications on a short-term basis for a new patient prior to the
patient's first appointment; and
(d) For established patients who, based on sound medical practices, the physician
feels does not require a new physical examination before issuing new
prescriptions.

Every doctor will admit that it is a violation of the applicable standard of care not to follow the law regarding prescribing medications.   If a defendant refuses to do so, your expert will have no problem so testifying.

Arbitration Agreements UPDATED

Nursing homes continue to attempt to avoid trial by jury by requiring residents to sign arbitration ageements.  And the Tennessee courts continue to insist that if nursing homes are going to do so they must follow the law.

Here are two decisions that refuse to enforce arbitration provisions in nursing home contracts because they contracts were signed by a person other than the nursing home resident or appropriate representative:  McKey and RickettsBoth cases were decided on August 15 by the Tennessee Court of Appeals and were authored by Judge Andy Bennett.

 UPDATE:  And here is another decision, this one from Special Judge Walter Kurtz:  Jones.   Jones was released on August 20, 2008.

A Res Ipsa Case to Remember

Tennessee permits a plaintiff to rely on the res ipsa loquitor  doctrine in medical negligence cases when appropriate under the facts.  For the most recent Tennessee case on the issue see Flowers v. H.C.A. Health Care Services of Tennessee, Inc., 2006 WL 627183 ((Tenn. Ct. App. Mar. 14, 2006).

But take a look at this case out of Missouri.  It holds that a plaintiff can rely on res ipsa in a case where the plaintiff got an E. coli infection after back surgery.

The Missouri Court noted that "Plaintiffs have alleged that all defendants were in control or had a right of control of the instrumentalities from which her infection was obtained, that the infection in the surgical site itself is one that does not occur in the absence of negligence, that the defendants all were negligent, that she was unconscious and has no knowledge of how the infection occurred, and that the defendants have superior knowledge of how it occurred."  The plaintiff had an expert to support this position but who could not say how the infection actually occurred.

Given these allegation, the precise issue before the Court was "whether to permit medical experts to offer opinions on the issue of negligence of the defendants in a medical malpractice case that is brought on a theory of res ipsa loquitur rather than based on specific or general negligence."

The Court answered the question in the affirmative, citing the Restatement (Second) of Torts Sec. 328D, cmt. d.,  which says, in pertinent part, "expert testimony that such an event usually does not occur without negligence may afford a sufficient basis for the inference. Such testimony may be essential to the plaintiff's case where, as for example in some actions for medical malpractice, there is no fund of common knowledge which may permit laymen reasonably to draw the conclusion."  Tennessee also follows this rule.  Seavers v. Methodist Med. Ctr., 9 S,W,3d 86, 91 (Tenn. 1999).

The case is Sides v. St. Anthony's Medical Center, SC88948 (Mo. Aug. 5, 2008).  Read it here.

Although 29 states have now adopted this rule, this is the first case I have read that applied the theory to an infection case.  (I am not saying that there are not others; I am only saying that I do not recall reading others.)  The significance of the application of the res ipsa doctrine is obvious: it is very tough to prove negligence in the ordinary infection case, and this decision puts one more arrow in the plaintiff's lawyer's quiver.

However, do not think for one minute that this decision opens the door to winning infection cases.  First, this was an unusual infection to get after a back surgery.  Second, who can be hit with a negligence verdict here?  Was it the surgeon  who did not properly wash his hands?  Or the hospital which did not supply sterile instruments?  If the plaintiff doesn't know who it was, how can fault be assigned to one defendant?  If it is just assigned "to the defendants" then how is it apportioned?

In short, this is an interesting opinion that will provide even more appellate litigation. 

SVMIC Claims Evaluation Document

How does SVMIC evaluate claims?   Here is what they tell their insureds.

A New Attack on the Contigious State and Locality Rule?

The Arizona Court of Appeals has ruled unconstitutional a state statute that imposed certain requirements on expert witnesses in medical malpractice cases.  The statute required that experts be board certified in the same specialty as the defendant and mandated that the expert have practiced (or taught) that same specialty for the year prior to their testimony.

The Court ruled that it was the job of the courts to make rules relative to matters of procedure and that the legislature could not infringe on the role of the courts.

The case is Seisinger v. Siebel,  No 1 CA-CV 07-0266 (AZ. Ct. App. June 17, 2008).  Read it here.

Thanks to Jeff Boyd, God's gift to the women of rural Madison County, for telling me about the case.

Are the Results of Med Mal Trials Accurate?

Here is an interesting post from Torts Prof Blog:

"After all the time and money spent, aren’t the results of medical malpractice litigation extremely accurate? Although perhaps better than earlier studies indicated, malpractice results are imprecise. The Harvard School of Public Health study, in assessing how often medical error occurred in a random sample of closed claims, found that, "73 percent of all claims for which determinations of merit were made had outcomes concordant with their merit." Studdert et al., 354 New Eng. J. Med. at 2028. That figure would likely be reduced somewhat further if the technical requirements of medical malpractice were applied to the concept of medical error. In sum, after all these resources are expended, more than one in four cases is decided incorrectly.


Data is mixed regarding the distribution of the errors (whether errors generally favor plaintiffs or health care providers). The Harvard School of Public Health study finds a fairly even distribution. On the other hand, Professor Philip G. Peters, Jr. analyzed all seven studies that have compared verdicts rendered in individual malpractice cases with independent evaluations of each claim by medical or legal experts. Philip G. Peters, Jr., Doctors & Juries, 105 Mich. L. Rev. 1453 (2007). According to Peters, the studies demonstrate that plaintiffs win about 10% to 20% of cases with weak evidence of negligence and 50% of the cases with strong evidence thereof. In other words, plaintiffs win between 10% and 20% of cases they should likely lose, but lose one-half of cases they should likely win. Id. at 1464. If that's true, plaintiffs' lawyers, who tend to support the current malpractice regime, take a big risk with each individual client with a strong case that goes before a jury."

This is the fourth in a series of posts that are inspired by a book Christopher Robinette is publishing with Jeffrey O'Connell, A Recipe for Balanced Tort Reform.

For other posts concerning the upcoming book look here, here, and here.

Court Decides Apparent Agency Cases Concerning Hospital-Based Physicians

The Tennessee Supreme Court issued its first two tort law opinions of the year yesterday, both dealing with the same subject: the potential liability of a hospital for the acts of a non-employed,, hospital-based physician. 

The Court said  that

"to hold a hospital vicariously liable for the negligent or wrongful acts of an independent contractor physician, a plaintiff must show that (1) the hospital held itself out to the public as providing medical services; (2) the plaintiff looked to the hospital rather than to the individual physician to perform those services; and (3) the patient accepted those services in the reasonable belief that the services were provided by the hospital or a hospital employee."

The Court went on to say that  while “[a] hospital generally will be able to avoid liability by providing meaningful written notice to the patient, acknowledged at the time of admission”  there was a genuine issue of material fact whether the plaintiffs had adequate notice of the contractual arrangement between the hospital and the physicians in the two cases.  Thus, it remanded both cases to the trial court, clearing the way for a jury trial on the issue.

This is the language contained in the admission documents in the cases:  "I understand those physicians providing medical services are not agents or employees of the Hospital. This includes but is not limited to: The emergency department physicians and physicians assistants, the anesthesiologists, the radiologists, the pathologists, and the physicians’ [sic] on-call to the emergency department to render specialty services."  (Note:  the quote of the language in the  DeWald opinion stops at the word "radiologists;"  I simply assume that the rest of the language is the same because the hospitals in both cases are HCA hospitals.)  In both cases the person who signed these documents testified they did not read them (both patients came to the facility through the ER).

What is the practical impact of these decisions?  Quite frankly, there is little impact in the vast, vast majority of cases.  First, most of the physicians have more than adequate insurance coverage, and I submit that if insurance policy limits were discoverable in this state it would be very unusual for an agency claim to be asserted against a hospital for the acts of any hospital-based physician other than a hospitalist (who probably will be an employee of the hospital anyway).   Second, hospitals can protect themselves from liability by requiring hospital-based physicians to have adequate insurance coverage.  Third, hospitals will probably  be able to effectively disclaim apparent agency for  non-emergency room admissions because the patients are admitted under circumstances in which they can be reasonably expected to look at the documents. 

The cases are Boren v. Weeks, No. M2007-00628-SC-R11-CV  (Tenn. S. Ct. May 6, 2008)  (read it here) and DeWald v. HCA Health Services of Tennessee, No. M2006-02369-SC-R11-CV (Tenn. S. Ct. May 6, 2008) (read it here)

Medical Malpractice Notice and Certificate of Merit Bill Sent to Governor

The Speaker of  the House signed a bill yesterday that makes it more difficult for patients to bring medical malpractice actions.  The Senate Speaker signed the legislation last week and therefore the bill is on its way to the Governor.

The legislation requires that a patient give at least 60 days notice to the defendants before filing a medical malpractice lawsuit. 

More significantly, the legislation requires that a certificate of merit be filed within ninety days of filing suit.  The certificate of merit must be signed by plaintiff's counsel, who is certifying that

"(1) The plaintiff or plaintiff’s counsel has consulted with one (1) or more experts who have provided a signed written statement confirming that upon information and belief they: (A) Are competent under § 29-26-115 to express opinion(s) in the case; and (B) Believe, based on the information available from the medical records concerning the care and treatment of the plaintiff for the incident(s) at issue, that there is a good faith basis to maintain the action consistent with the requirements of § 29-26-115; or

(2) The plaintiff or plaintiff’s counsel has consulted with one (1) or more experts who have provided a signed written statement confirming that upon information and belief they: (A) Are competent under § 29-26-115 to express opinion(s) in the case; and (B) Believe, based on the information available from the medical records reviewed concerning the care and treatment of the plaintiff for the incident(s) at issue and, as appropriate, information from the plaintiff or others with knowledge of the incident(s) at issue, that there are facts material to the resolution of the case that cannot be reasonably ascertained from the medical records or information reasonably available to the plaintiff or plaintiffs counsel; and that despite the absence of this information there is a good faith basis for maintaining the action as to each defendant consistent with the requirements of § 29-¬26- 115. Refusal of the defendant to release the medical records in a timely fashion or where it is impossible for the plaintiff to obtain the medical records shall waive the requirement that the expert review the medical record prior to expert certification."

The failure to file such a certificate makes the case subject to dismissal with prejudice.

Defendants who assert fault against other health care providers must file a similar certificate.

The information about who signed the certificate, what data they reviewed is not ordinarily discoverable,  However, "if a party ...prevails on the basis of the failure of an opposing party to offer any competent expert testimony as required by § 29-26-115, the court may, upon motion, compel the opposing party or party's counsel to provide to the court a copy of each such expert's signed written statement relied upon in executing the Certificate of Good Faith."  The legislation also permits a discovery deposition of the medical expert. 

Sanctions include payment of attorneys' fees and a report to the disciplinary board.  Attorneys who are repeatedly sanctioned can be required to post a bond before filing suit.

If Governor Bredesen signs the bill it will apply to  all actions filed on or after October 1, 2008.  Here is a copy of the bill.

The legislation creates a significant hurdle for filing medical malpractice actions in Tennessee.  Attorneys now face a financial penalty for filing cases without consulting an expert before or shortly after filing suit. 

I will be speaking in much more detail about this legislation  at a seminar sponsored by the Tennessee Association for Justice on June 26 in Nashville.   I will give you more information about that program in a later post.

Indiana Applies Res Ipsa Doctrine in Fire Case

Indiana is not known as a particularly progressive state when it comes to tort law (or anything else for that matter).

But not even Indiana could deny a plaintiff the use of the res ipsa doctrine when the plaintiff caught on fire during surgery.

You read that right.

The plaintiff was under general anesthesia and a spark from the Bovie ignited the blow-by oxygen and the plaintiff was burned.  The court re-affirmed a prior case that said that "[c]ommon sense tells us that injury to the patient from a fire in the operating room is not a frequent or expected outcome of surgery" and that "[w]hile mere use of the electrocautery unit combined with the use of supplemental oxygen may not itself fall below the standard of care, it is easily understandable to the common person that careless use of the two could cause a fire and result in bodily injury."

The case is Cleary v. Manning, No. 18A02-0707-CV-599 (Ind. Ct. App.4/18/08).  Read the opinion here.

2007 Counsel for Claimants Reports

To those of you who had a medical malpractice judgment or settlement in 2007:  Please remember that  the 2007 "Counsel for Claimants" reports must be completed and sent to the Tennessee Dept of Commerce and Insurance on or before April 1, 2008.  Here is the website where you can download the form.

The purpose of gathering this data is to learn the truth about medical malpractice verdicts and settlements in Tennessee and the costs associated with medical malpractice litigation.  This is the second year that attorneys for claimants have been required to share information with the state.

Here is a summary of the report for the 2005 calendar year:

"Based upon financial data reported to the Department, insurance companies wrote over $341  million in medical malpractice premiums in Tennessee in 2005. According to the submitted  medical malpractice claims information, Tennessee trial courts issued five medical malpractice judgments totaling $6,075,724. In 2005, over 2,366 medical malpractice claims were resolved by insurance companies and uninsured health care facilities. Eighty-three percent (83%) of these claims resolved in 2005 resulted in no payment of damages. Settlement of claims occurred for sixteen percent (16%) of medical malpractice claims in 2005 and resulted in payment of damages totaling $119,091,990. Expenses paid in 2005 for defense of medical malpractice claims totaled $61,768,804. Insurance companies reported that financial reserves established in 2005 for Tennessee medical malpractice claims totaled $822,098,399.  Approximately 5,680 open medical malpractice claims were identified as of December 31, 2005, with 295 of those claims first originating in 2005."

I cannot cut and paste results for the report issued for the 2006 calendar year, but here is a copy of the press release that summarizes those results.

 

Back from Trial

It's over.

Rebecca Blair and I have been in trial in Columbia, Tennessee since February 25, 2008.  Our client was a eleven year-old boy who lost his 34 year-old mother to hyperkalemia (an excessive level of potassium which causes the heart to stop) a little over three years ago.

Ginger was a diabetic who suffered from end-stage renal disease.  She had several other health problems (pulmonary hypertension, obesity, sleep apnea, oxygen dependent lung disease, etc.) that resulted in a life expectancy of about 6.8 years.   She was determined to be totally disabled two months before her death.  Therefore, we were unable to make any claim for economic loss.  We  elected not to make a claim for funeral expenses or pain and suffering and sought damages for Jessie solely for loss of "love, society and affection" under Jordan v. Baptist Three Rivers Hospital.

To make a very long story short, we alleged that she lost her life because an emergency room doctor, two nurses, an "unknown" hospital employee, and her nephrologist failed to communicate with one another appropriately after Ginger missed a dialysis session because of bleeding around the dialysis catheter.  Ginger needed a blood test to ensure that she did not have excessive potassium in her body after missing dialysis.  It was ordered in the emergency room at the hospital but the order was never completed and Ginger was sent home without the test.  The next morning Ginger's mother called the nephrologist about the need for Ginger to go for dialysis but the nephrologist (assuming that the potassium had been checked and determined within normal limits the previous day in the ER) said that Ginger could wait until the next day.  She died early that evening at home in the presence of her son.

Cause of death was hotly disputed.  The nephrologist completed a death certificate saying that Ginger died of excessive potassium and admirably did not deviate from that opinion at trial.  The nephrologist's lawyer, however, called another nephrologist to the stand who testified that the cause of death could not be determined without an autopsy.  The ER physician called a cardiologist who testified that the cause of death was respiratory arrest secondary to lung disease and a nephrologist who testified that the cause of death was a pulmonary embolus secondary to superior vena cava syndrome.  The ER doctor himself said death was secondary to a pulmonary embolus.  We had two physicians - a nephrologist and an ER doctor - who said Ginger died from excessive potassium.

The trial was the equivalent of hand-to-hand combat on a roller-coaster, the most difficult of my career.  Without boring you with the details, there were eight lawyers in the courtroom for the defendants and Rebecca and I were there for Ginger and Jessie, ably assisted by Cheryl Terrell (our nurse) and Tracy Conte (our paralegal).  There were something like 30 motions in limine argued on February 9 and several more argued during trial.  It took an entire day to pick a jury.   We won multiple challenges for cause, including the local head of the Chamber of Commerce.    At the end of the day we ended up with a jury with no health care providers (although several of the jurors had children working at the hospital) and only a couple of the jurors who had been treated by one of the defendant physicians. 

The case was complicated by the fact that we took no depositions of the four adverse witnesses on causation or  the other experts who testified solely on standard to care.   One adverse expert left the impression in his CV and on direct examination that he was board-certified when in fact it had expired several years earlier; we accessed the Internet in the courtroom to show the jury that both the local hospital and state licensing website erroneously indicated that he was board-certified.  

The bottom line:  after one and one-half days of deliberations the jury the jury returned a verdict of $1,250,000.  The ER doctor was found 14% at fault, the nephrologist 40% at fault, the primary care nurse 1% at fault, and the "unknown" hospital employee who canceled the order for blood work after Ginger left the hospital without the necessary blood test having been run 45% at fault.  The triage nurse received 0% fault.   We were very pleased by the result.

The fault assigned to "unknown" hospital employee presents an interesting legal issue.  The hospital is a government employee; the hospital's liability is capped under the GTLA.  However, it is our position that the unknown employee is a nurse and in a medical malpractice case the cap does not apply if a government-employed nurse or doctor injures a patient.  We agreed during the charge conference to let  the judge decide on post-trial motions whether the employee was a nurse or non-nurse.  We believe the employee was a nurse because the computer records indicate that the lab-work was "canceled by nursing."  The hospital says this was a default entry.   No one has accepted responsibility for canceling the order and the computer records were over-written five days after the order was canceled.

It is our position that the hospital had a duty to maintain the records so that we could identify the nurse; the record unambiguously supports the conclusion that the hospital was notified of the problem within 24 hours of Ginger's death and therefore with more than sufficient time to preserve the data.  Thus , we will be arguing that the deletion of the data deprived us of the opportunity to sue the nurse individually and the hospital should be held liable for the liable for all fault apportioned to it, notwithstanding the fact that it exceeds the damages cap under the GTLA.

So, in one way this matter is far from over.  On the other hand, the break-neck pace of the last 4 weeks will slow considerably. 

You must know that this case was prepared by Rebecca Blair, who also put on our entire case-in-chief.  She did an excellent job.  Brandon Bass took a considerable number of depositions in the case and helped on legal issues.  Laura Bishop helped on legal issues and both she and Ken Sanney made presentations to a focus group on behalf of two of the defendants.  The entire office worked very hard on this case and the efforts paid off for our client.

 

 

 

 

Op-Ed Published

The Tennessean  has been kind enough to print an op-ed piece I wrote and to editorialize against the health care industry's attempt to avoid full responsibility for the harm it causes to its patients.

Read the editorial here.

Read my op-ed piece here.

Read the opposing op-ed piece by Rep. Casada (R -Franklin) here.  Note that Rep. Casada cites not a single fact about medical liability in Tennessee, except the AMA's declaration of several years ago that Tennessee is a "crisis state."  

When Should a Doctor Speak Out?

This article in yesterday's The Washington Post  reported that 96% of physicians thought that they should report an impaired or incompetent colleague - but 45% said that they did not always do so.

In addition, "46 percent said they had failed to report at least one serious medical error that they knew about, despite the fact that 93 percent of doctors said physicians should report all significant medical errors that they observe."

I am not saying anything negative about doctors by telling you about this article. I am simply saying that doctors are human and that sometimes their conduct falls below what they expect of themselves.

In others words, they are just like us.

Georgia Supreme Court Says Med Mal Statute of Repose Not Unconstitutional

The Georgia Supreme Court has refused to strike down that state's statute of repose in medical malpractice cases when challenged on equal protection grounds.   Georgia has a five-year statue of repose in medical malpractice cases (Tennessee has a three-year statute of repose).

The case is Nichols v. Gross, S07A1027 ( Georgia S. C. Nov. 21, 2007).  Read the opinion here.

Wrong Site Surgeries

There is right.  And there is left.

It is as simple as that.

One would think that before operating on a patient's brain a surgeon would know what side of the brain needed work.  And that at least one of the nurse's or techs in the operating room would know.

But this article from the Boston Globe tells us that a hospital in Rhode Island has had three wrong side brain surgeries this year.    And the year is not over.

One news report indicates that wrong site surgery occures between 1300 and 2700 times per year in the United States.

The Joint Commission has addressed this issue:

"In July 2003, The Joint Commission Board of Commissioners approved the Universal Protocol for Preventing Wrong Site, Wrong Procedure and Wrong Person Surgery™. The Universal Protocol was created to address the continuing occurrence of these tragic medical errors in Joint Commission accredited organizations. The Universal Protocol became effective July 1, 2004 for all accredited hospitals, ambulatory care and office-based surgery facilities. The Universal Protocol drew upon, and expanded and integrated, a series of requirements under The Joint Commission’s 2003 and 2004 National Patient Safety Goals. It is applicable to all operative and other invasive procedures. The principal components of the Universal Protocol include: 1) the pre-operative verification process; 2) marking of the operative site; 3) taking a ‘time out’ immediately before starting the procedure; and 4) adaptation of the requirements to non-operating room settings, including bedside procedures. The protocol is endorsed by 51 professional health care associations and organizations. . . ."

Here is a copy of the Universal Protocol for Preventing Wrong Site, Wrong Procedure, Wrong Person Surgery ™

An article in the Archives of Surgery concluded that "[w]rong-site surgery is unacceptable but exceedingly rare, and major injury from wrong-site surgery is even rarer. Current site-verification protocols [which include the universal protocol] could have prevented only two thirds of the examined cases. Many protocols involve considerable complexity without clear added benefit."  That study found the rate of wrong site surgery to be 1 in 112,994 operations.

Two brief thoughts.  First, let's find a way to follow the Universal Protocol to prevent two-thirds of the injuries.  Then, let's find a way for doctors and OR personnel  to know the name and diagnosis of each patient they are operating on.

That should work.

An article in the Archives

An article in the Archives of Internal Medicine looked at closed malpractice claims to see what caused the errors made by medical trainees.  A summary of the findings:

"Among 240 cases, errors in judgment (173 of 240 [72%]), teamwork breakdowns (167 of 240 [70%]), and lack of technical competence (139 of 240 [58%]) were the most prevalent contributing factors. Lack of supervision and handoff problems were most prevalent types of teamwork problems, and both were disproportionately more common among errors that involved trainees than those that did not (respectively, 54% vs 7% [P < .001] and 20% vs 12% [P = .009]). The most common task during which failures of technical competence occurred were diagnostic decision making and monitoring of the patient or situation. Trainee errors appeared more complex than nontrainee errors (mean of 3.8 contributing factors vs 2.5 [P < .001])."  You can access the article here.

Thanks to the DC Metro Malpractice Blog for informing me about the article.

TSC Issues Arbitration Decision

The Tennessee Supreme Court has ruled that an arbitration provision in a nursing home contract signed by a person who had a power of attorney to act on behalf of the resident is not void as against public policy.  However, the court remanded the case to the trial court for a determniation of whether the inclusion of the provision was an unconscionable contract of adhesion.

Justice Holder wrote the opinion for the Court.  Here is a summary of the holding:

"the agreement is governed by the Tennessee Uniform Arbitration Act and that the power of attorney authorized Daniel to sign the arbitration agreement on behalf of King. We also affirm the  intermediate appellate court’s holding that the arbitration agreement is not unenforceable on the  ground that a material term of the agreement is incapable of performance. We likewise affirm the  Court of Appeals’ holding that the arbitration agreement does not violate federal law. We further  hold that a pre-dispute arbitration agreement in a nursing-home contract is not per se invalid as  against public policy. In addition, we affirm the intermediate appellate court’s holding that the  agreement is not unenforceable on the ground that requiring King to sign an arbitration agreement  breached a purported fiduciary duty owed to King by the defendants. We vacate, however, the Court of Appeals’ judgment insofar as it holds that the arbitration agreement is not an unconscionable  contract of adhesion, and we remand for further proceedings on that issue. In light of our remand for further proceedings on the unconscionability issue, we also vacate the intermediate appellate   court’s instruction to the trial court to enter an order compelling arbitration."

Read the entire opinion here

 

Tennessee Supreme Court Grants Rule 11 Application in Apparent Agency Cases

The Tennessee Supreme Court has granted permission to appeal in two cases that address the issue of apparent agency.   In both cases plainitffs seek to impose liability on a hospital for the acts of a doctor.  The cases have been consolidated for appeal.

One case is DeWald v. HCA Heatlh Services of Tennessee, No. M2006-02369-COA-R9-CV (Tenn. Ct. App. June 12, 2007);.  This case involves an ER physician.  Read the opinion here.

The other case is Boren v. Weeks, No. M2007-00628-COA-R0-CV (Tenn. Ct. App. June 12, 2007).  This case also involves an ER physician.  Read the opinion here.

Judge Clement wrote the opinion he both cases.  In both cases the Court of Appeals ordered that the claim of apparent agency against the hospital should be dismissed.

Expect an opinion in the late winter, early spring of 2008,

Story from the LA Times

The LA Times makes an extraordinary effort here  to tell the story of the death of a woman in a local hospital - and how it could have been prevented.

Big News from Medicare

Medicare is no longer going to pay hospitals from costs arising from "preventable errors" and "serious preventable events."

What are preventable errors?   The Washington Post story on the subject says this:  "bedsores, or pressure ulcers; injuries caused by falls; and infections resulting from the prolonged use of catheters in blood vessels or the bladder."

Serious preventable events?  They are events that should not occur during a hospital stay such as  "leaving a sponge or other object in a patient during surgery and providing a patient with incompatible blood or blood products."

The cost cannot be passed on to patients - the rules say  “[t]he hospital cannot bill the beneficiary for any charges associated with the hospital-acquired complication.”

Here is a copy of the new regulations.  The discussion starts at Page 290.

Question: if the federal government has defined an error or event as preventable is it negligence per se for that event to occur?  Why should it be necessary to employ an expert if the government, after a deliberate rule-making process, has determined that such errors or events should not occur?

How big is the problem?  Well, read this about objects left in a patient after surgery:

"For FY 2006, there were 764 cases reported of Medicare patients who had an object left in during surgery reported as a secondary diagnosis. The average charges for the hospital stay were $61,962. This is a rare event. Therefore, it is not high volume. However, an individual case will likely have high costs, given that the patient will need additional surgery to remove the foreign body. Potential adverse events stemming from the foreign body could further raise costs for an individual
case."  Page 317.

Don't you think this is pretty strong language that would support a negligence per se instruction?

"Prevention guidelines – There are widely accepted and clear guidelines for the prevention of this event. This event should not occur. Prevention guidelines for avoiding leaving objects in during surgery are located at the following Web site:

http://www.qualityindicators.ahrq.gov/psi_download.htm.

The Double Standard

From a full-page ad in yesterday's Knoxville's  Sunday News Sentinel:

Last year, Covenant Health hospitals saved the lives of 752 people who would not have lived at average hospitals.

According to U.S. government data, quality care makes a life-saving difference for patients at Covenant Health hospitals.  By being far better than national averages, we help more patients survive - 753 more than the national norms last year alone.

Of course, when they get sued they get the benefit of a local standard of care with a requirement that the expert come from a contiguous state.  But when they are looking for business, they compare themselves with hospitals across the nation.

I don't mean to pick out Covenant Health on this point - all of the hospitals of any size engage in this hypocrisy.  The fault lies with the majority of those in the Legislature who do not recognize  hypocrisy in action.

New AG Opinion on Medical Practice Ownership

The Tennessee Attorney General's Office has just released on opinion on the issue of the ability of non-physician health care professionals to own and operate a medical practice and to employee physicians.  Here are the two specific issues addressed:

"1. Considering the provisions of Tenn. Code Ann. §§ 63-6-204(b), 68-11-205(a), or any other law of this state, is it lawful for a certified nurse practitioner, registered nurse, advanced practice nurse, licensed practical nurse or physician assistant to own and operate a professional practice wherein medical services are provided?
2. Considering the provisions of Tenn. Code Ann. § 63-6-204(c) or any other law of this state, is it lawful for a physician to be an employee of, or an independent contractor to, a certified nurse practitioner, registered nurse, advanced practice nurse, licensed practical nurse or physician assistant for the sole purpose of providing the supervision, responsibility and control required by Tenn. Code Ann. § 63-6-204(b) for medical services being provided by those licensed allied health care providers at their practice sites? For purposes of this question, we assume that the physician, if he or she actively practices clinical medicine at all, does so primarily (if not exclusively) at some office or location other than at the referenced practice sites."

And here is the summary of the answers to those questions:

"1. It is not lawful for a certified nurse practitioner, registered nurse, advanced practice nurse, licensed practical nurse or physician assistant to own and operate a professional corporation or professional limited liability company (“PLLC”) for the provision of medical services.1 However, it is lawful for a physician assistant to form and own shares in a Medical Professional Corporation, but only in combination with licensed physician(s) or licensed osteopathic physician(s), except radiologists, pathologists, and anesthesiologists, under Tenn. Code Ann. § 48-101-610(d)(4), and/or in combination with physician entities as described in Tenn. Comp. R. & Regs. 0880-2-.20(1)(b). Further, it is lawful for a physician assistant to be a member of, or holder of financial rights in, a Medical Professional Limited Liability Company, but only in combination with licensed physician(s) or licensed osteopathic physician(s), except radiologists, pathologists and anesthesiologists, under Tenn. Code Ann. § 48-249-1109(e)(1)(D), and/or in combination with  physician entities as described in Tenn. Comp. R. & Regs. 0880-2-.20(2)(b). Otherwise, insofar as our research has revealed no specific statutory prohibition against it, we anticipate that there could be certain circumstances in which a nurse practitioner, advanced practice nurse or physician assistant legitimately might own and operate a practice wherein medical services are provided, so long as such services are provided under the “supervision, control and responsibility” of a licensed physician, as is required by Tenn. Code Ann. § 63-6-204(b).


2. It is not lawful for a physician to be an employee of a certified nurse practitioner, registered nurse, advanced practice nurse, licensed practical nurse or physician assistant for the sole purpose of providing the supervision, responsibility and control required by Tenn. Code Ann. § 63-
6-204(b) for medical services provided by such a licensed allied health care provider. However, a physician in active clinical practice lawfully may enter into an independent contractor arrangement
with a certified nurse practitioner, advanced practice nurse or physician assistant for the sole purpose of providing the supervision, responsibility and control required by Tenn. Code Ann. § 63-6-204(b), and other applicable statutes or rules, for the provision of medical services by such licensed allied health care provider at a remote practice site. Nevertheless, a licensed physician may not contract independently with a licensed practical nurse or registered nurse (who is not, in addition, a certified nurse practitioner or advanced practice nurse) for such purpose."

Read the entire opinion here.

Transparency?

How much transparency should there be in health care?  In commerce in general?

Senator Grassley wants transparency in medicine - he has introduced legislation that is designed to require drug companies to disclose what they pay doctors.  Read about the legislation in this article from the New York Times.  The article says that Grassley "cited as an example the case of a prominent child psychiatrist, who he said made $180,000 over just two years from the maker of an antipsychotic drug now widely prescribed for children."

This is interesting, too:  "Mr. Grassley said that he had asked how much the child psychiatrist, Dr. Melissa DelBello at the University of Cincinnati, made from AstraZeneca, the London-based drug giant that manufactures the antipsychotic Seroquel.  Dr. DelBello’s studies of Seroquel in children have helped to fuel the widespread pediatric use of antipsychotic medicines. Those studies were inconclusive, but she has described them as demonstrating that Seroquel is effective in some children.  Asked in a past newspaper interview how much she was paid by AstraZeneca to help market Seroquel, she had said, “Trust me, I don’t make very much.” Mr. Grassley said this week that her disclosure forms at the University of Cincinnati show she received $100,000 from AstraZeneca in 2003 and $80,000 in 2004. Dr. DelBello consults for seven other drug makers as well. She did not respond to requests for comment this week. "

It is good to know that $100,000 from one of eight drug maker is not "very much" for this doctor.  Those of us who are mere lawyers think that is real money.  

A graph in this month's edition of the  ABA Journal informed us that the median pay for lawyers in this country is $90,000.  And we have to buy our own lunches.

Notre Dame Coach Lose Malpractice Trial

Charlie Weis, the head coach of the Notre Dame football team, lost the medical malpractice case he filed in Massachusetts.

The lawsuit arose out of gastric bypass surgery Weis had in June of 2002.  According to this article posted on www.boston.com,  "Weis, 51, who became ill after the operation, alleged that the surgeons were negligent for letting him bleed internally for 30 hours before they started a second surgery to respond to the complication. He testified he still has numbness and pain in his feet and had to use a motorized cart shortly after the operation."

Law Review Article

The Michigan Law Review  has published an interesting article called "Doctors & Juries" by Philip G. Peters, Jr.

Here is a synopsis of the article:  "Physicians widely believe that jury verdicts are unfair. This Article  tests that assumption by synthesizing three decades of jury research.  Contrary to popular belief, the data show that juries consistently sympathize more with doctors who are sued than with patients who sue them. Physicians win roughly half of the cases that expert reviewers believe physicians should lose and nearly all of the cases that experts feel physicians should win. Defendants and their hired experts, it turns out, are more successful than plaintiffs and their hired experts at persuading juries to reach verdicts contrary to the opinions of independent reviewers."

One of his conclusions:  "As a consequence, politicians and critics of jury performance in medical malpractice cases should think twice before concluding that doctors will be treated more favorably in health courts."

Read the article here

Thanks to Phillip Miller for letting me know it was out there.

Medical Negligence Article

Here is an interesting article titled "Electronic Health Records Raise New Risks of Malpractice Liability." 

An excerpt:

"Because more detailed information about patient care or medical decision-making may be included in the EHR than is possible with paper records, plaintiff attorneys may make extensive discovery requests for "relevant" electronic information in medical malpractice litigation. For example, integrated EHRs have the capability to create an electronic traceable path of a patient's transition through a facility. Physician orders and interventions may be timed and documented automatically. Will such functionality increase the risk of liability in cases alleging physician failure to timely diagnose and treat? Will discovery requests include electronic footprints for relevant patient data that is not part of the facility's permanent electronic medical records? Will use of EHRs raise the cost of litigation because of the need for expert testimony in the fields of health informatics or health IT? "

New Legislation on Patient Privacy Rights

The TMA hates the Givens and Alsip opinions.  The hospitals would prefer they did not exist, but were willing to accept some compromise as opposed to the outright reversal of the decisions sought by the TMA.

This is what the hospitals worked out with the interested parties and the sponsors of the bills:

T.C.A. Sec. 68-11-312 ( a new code section)

 
(a) It is the public policy of the state of Tennessee to promote effective communications between health care providers while rendering care to their patients.


(b) There is no implied covenant of confidentiality or other restriction that precludes (1) health care providers from communicating with each other in the course of providing care and treatment to a patient, or (2) a health care provider from responding to a request from a hospital regarding entries in the patient's records of the requesting hospital made or reviewed by that health care provider during the course of providing care and treatment to the patient in the hospital; provided, however, that any information received from a health care provider that corrects or modifies a patient's hospital record shall be made a part of the patient's hospital record with a notation as to the date the information was supplied and the name(s) of the person(s) supplying the information.

 
(c) This section shall not be construed to authorize any disclosure of information that would be prohibited pursuant to the federal Health Insurance and Portability and Accountability Act of 1996, Public Law 104-191, as amended.

The Legislation is effective on July 1, 2007.  See the actual public chapter here.

Apparent Agency Opinions

The Tennessee Court of Appeals has released two opinions on the issue of apparent agency in a hospital setting.  One case concerns an emergency room doctor, the other a radiologist.

The law?  Both decisions contain these paragraphs: 

"Apparent agency is essentially agency by estoppel. White v. Methodist Hosp., 844 S.W.2d 642, 646 (Tenn. Ct. App. 1992). Its existence depends upon such conduct by the principal as would preclude the principal from denying another's agency. Kelly v. Cliff Pettit Motors, 234 S.W.2d 822 (Tenn. 1950). The liability of the principal is determined in any particular case by what authority the third person, exercising reasonable care and prudence, was justified in believing that the principal had by his acts under the circumstances conferred upon his agent. Southern Ry. Co. v. Pickle, 197 S.W. 675, 677 (Tenn. 1917).


'It is well settled that apparent authority must be established through the acts of the principal rather than those of the agent.' Bells Banking Co. v. Jackson Centre, Inc., 938 S.W.2d 421, 425 (Tenn. Ct. App. 1996). A principal is responsible for the acts of an agent only where the principal himself by his acts or conduct has clothed the agent with the appearance of authority, and not where the agent's own conduct has created the apparent authority. Mechanics Laundry Serv. v. Auto Glass Co. of Memphis, 98 S.W.3d 151, 157 (Tenn. Ct. App. 2002). To prove apparent authority one must establish: (1) the principal actually or negligently acquiesced in another party's exercise of authority; (2) the third person had knowledge of the facts and a good faith belief that the apparent agent possessed such authority; and (3) the third person relied on this apparent authority to his or her detriment. Mechanics Laundry Service v. Auto Glass Co. of Memphis, Inc., 98 S.W.3d at 157."

In both cases the trial judge's decision to deny summary judgment to the hospital was reversed.

 

Medical Authorization Not Required

Georgia's med mal statute requires that when a complaint is filed the plaintiff must submit a medical authorization.   The statute says that "the authorization shall provide that the attorney representing the defendant is authorized to obtain and disclose protected health information contained in medical records to facilitate the investigation, evaluation, and defense of the claims and allegations set forth in the complaint which pertain to the plaintiff or, where applicable, the plaintiff’s decedent whose treatment is at issue in the complaint. This authorization includes the defendant’s attorney’s right to discuss the care and treatment of the plaintiff or, where applicable, the plaintiff’s decedent with all of the plaintiff’s or decedent’s treating physicians."

On May 14, 1007 in the case of Allen v. Wright, the Georgia Supreme Court struck down this statute as inconsistent with HIPPA.

Read the opinion here.

Surprise! Juries Favor Doctors

This is no news to anyone who actually follows medical malpractice litigation, but it is nice to see that a person who has actually researched the issue confirms conventional wisdom accepted by everyone except lobbyists for the health care industry and the legislators they persuade.

An article in Law.com reports on this new study from law professor Phillip Peters.

A couple excerpts:

*"In the New Jersey study, [ a now defunct liability insurer] asked physicians to evaluate incoming claims and rate them as defensible, indefensible or unclear. Plaintiffs won 21 percent of those cases rated as defensible, 30 percent of those rated unclear and 42 percent of those rated indefensible. Thus, plaintiff wins were in the minority even in the most meritorious cases.'

*"He attributed the largest portion of the discrepancy to the normal difference of opinion among doctors about a particular case. Jurors may be reluctant to hold a doctor liable where evidence is unclear or conflicting, out of appreciation for the burden of proof. And jurors may find doctors credible because of their high social status or because the doctors can afford better lawyers and expert witnesses."

* "Both piecemeal reforms and more fundamental alternatives to malpractice litigation should not be driven by the mistaken assumption that juries treat physicians unfairly," Peters wrote. "Although the current system of resolving malpractice claims has many shortcomings, neither randomness nor favoritism toward injured patients is among them."

Hospital Errors Rising - 247,662 Deaths Over Three Years???

It is getting worse.

Healthgrades reports that the number of errors in our nation's hospitals rose 3% over the years 2002 - 2005.  From the press release:

The HealthGrades study of 40.56 million Medicare hospitalization records over the years 2003 to 2005 ... found:
• Patient-safety incidents continue to rise in American hospitals, with 1.16 million preventable
patient-safety incidents occurring over the three years studied among Medicare patients in the
nation's hospitals, an incidence rate of 2.86 percent.
• 247,662 deaths were potentially preventable over the three years, and Medicare patients who had one or more patient-safety incidents had a one-in-four chance of dying.
• The excess cost to hospitals was $8.6 billion over three years, with some of the most common
incidents proving to be the most costly.
• Ten of the 16 patient-safety incidents tracked worsened from 2003 to 2005, by an average of
almost 12 percent, while seven incidents improved, on average, by six percent. Patient-safety
incidents with the greatest increase in incident rates were post operative sepsis (34.28 percent),
post-operative respiratory failure (18.70 percent) and selected infections due to medical care
(12.23 percent).
• Patient-safety incidents with the highest incidence rates were decubitus ulcer, failure to rescue
and post-operative respiratory failure.

And check this out:  242 hospitals constitute the top 5% of those studied.  On average, these hospitals had a 40 percent lower rate of patient-safety incidents when compared with the poorest-performing hospitals. If all hospitals performed at the level of the Distinguished Hospitals for Patient Safety, the study found (a) approximately 206,286 patient-safety incidents and 34,393 Medicare deaths could have been avoided; and (b) $1.74 billion could have been saved.

These are the safety incidents studied:

• Accidental puncture or laceration
• Complications of anesthesia
• Death in low-mortality DRGs
• Decubitus ulcer
• Failure to rescue
• Foreign body left in during procedure
• Iatrogenic pneumothorax
• Selected infections due to medical care
• Post-operative hemorrhage or hematoma
• Post-operative hip fracture
• Post-operative physiologic metabolic
derangement
• Post-operative pulmonary embolism or
deep vein thrombosis
• Post-operative respiratory failure
• Post-operative sepsis
• Post-operative abdominal wound
dehiscence
• Transfusion reaction

Read the study here.

What about Tennessee hospitals?  They "performed worse than expected" and were ranked 48th in the country, beating only Nevada, New York and New Jersey.  See the rankings here.  This source says that "Medicare patients in the best state, Minnesota, had an almost 30 percent overall lower relative risk of developing one or more of the patient safety incidents, compared with the worst state, New Jersey."

More Data on Rising Insurance Rates for Doctors

Amercicans for Insurance Reform have released a report that demonstrates that the "insurance crisis that hit doctors between 2001 and 2004 was not caused by claims, payouts or legal system excesses as the insurance industry claimed."

Rather, this report concludes as follows:

 "Inflation-adjusted payouts per doctor not only failed to increase between 2001 and 2004, a time when doctors’ premiums skyrocketed, but they have been stable or falling throughout this entire decade.

Medical malpractice insurance premiums rose much faster in the early years of this decade than was justified by insurance payouts.

At no time were recent increases in premiums connected to actual payouts. Rather, they reflected the well-known cyclical phenomenon called a “hard” market. Property/casualty insurance industry “hard” markets have occurred three times in the past 30 years.

During this same period, medical malpractice insurers vastly (and unnecessarily) increased reserves (used for future claims) despite no increase in payouts or any trend suggesting large future payouts. The reserve increases in the years 2001 to 2004 could have accounted for 60 percent of the price increases witnessed by doctors during the period."

Here is the report.

Arkansas Strikes Down Part of Certificate of Merit Legislation

The Arkansas Supreme Court struck down that portion of legislation requiring a plaintiff in medical negligence cases to file affidavits of merit in medical malpractice cases within 30 days of filing the complaint or face dismissal of plaintiff's complaint.

The Court ruled that the statute imposed a requirement for commencement of an action that was greater than that imposed by Rule 3 of the Arkansas Rules of Civil Procedure.  The Court went on to say that "[t]he constitutional infirmity in § 16-114-209(b) is the provision for dismissal if the affidavit does not accompany a complaint within thirty days. We do not hold today that the balance of § 16-114-209(b), requiring a reasonable-cause affidavit, is constitutionally infirm. Having said that, it appears that without the time limit of thirty days, the statute largely is duplicative of § 16-114-206 regarding the plaintiff’s burden of proof and medical expert testimony concerning breach of the standard of care in the community."

The case is Summerville v. Thrower, No. 06-501, (Ark. S. C. March 15, 2007).  Read it here.

Evaluating Cases Against ERs

Part of the case evaluation process is a review of appropriate literature.  A literature review is not enough - you still need as expert to testify that the protocols set forth in any given piece of literature represent the standard of care.  But the existence of literature on point can help you persuade experts to testify and, indeed, can even help you identity experts (by contacting the authors).

The American College of Emergency Physicians (ACEC) has issued a list of documents which "describe the College’s policies on the clinical management of presenting symptoms, specific illnesses or injuries."  The ACEC's Clinical Policies Committee drafts each protocol and and each protocol is approved by the ACEP Board.

Here is the list:

Syncope
Clinical Policy: Critical Issues in the Evaluation and Management of Adult Patients Presenting to the Emergency Department with Syncope



Acute Heart Failure Syndromes
Clinical Policy: Critical Issues in the Evaluation and Management of Adult Patients Presenting to the Emergency Department with Acute Heart Failure Syndromes



Acute Myocardial Infarction - Reperfusion Therapy
Clinical Policy: Indications for Reperfusion Therapy in Emergency Department Patients with Suspected AMI



NSTE Acute Coronary Syndromes
Clinical Policy: Critical Issues in the Evaluation and Management of Adult Patients with Non-STSegment Elevation Acute Coronary Syndromes



Asymptomatic Hypertension
Clinical Policy: Critical Issues in the Evaluation and Management of Adult Patients with Asymptomatic Hypertension in the Emergency Department



Psychiatric Patient
Clinical Policy: Critical Issues in the Diagnosis and Management of the Adult Psychiatric Patient in the Emergency Department



Procedural Sedation and Analgesia
Clinical Policy: Procedural Sedation and Analgesia in the Emergency Department



Pediatric Sedation and Analgesia - Pharmacologic Agents
Clinical Policy: Evidence-Based Approach to Pharmacologic Agents Used in Pediatric Sedation and Analgesia in the Emergency Department



Seizure
Clinical Policy: Critical Issues in the Evaluation and Management of Adult Patients Presenting to the Emergency Department With Seizures



Blunt Abdominal Trauma
Clinical Policy: Critical Issues in the Evaluation of Adult Patients Presenting to the Emergency Department With Acute Blunt Abdominal Trauma



Fever - Children Younger than 3 Years
Clinical Policy for Children Younger Than Three Years Presenting to the Emergency Department With Fever



Lower Extremity Deep Venous Thrombosis
Clinical Policy: Critical Issues in the Evaluation and Management of Adult Patients Presenting With Suspected Lower-Extremity Deep Venous Thrombosis



Pulmonary Embolism
Clinical Policy: Critical Issues in the Evaluation and Management of Adult Patients Presenting With Suspected Pulmonary Embolism



Early Pregnancy
Critical Issues in the Initial Evaluation and Management of Patients Presenting to the Emergency Department in Early Pregnancy



Neuroimaging - Mild Traumatic Brain Injury
Clinical Policy: Neuroimaging and Decisionmaking in Adult Mild Traumatic Brain Injury in the Acute Setting



Headache
Critical Issues in the Evaluation and Management of Patients Presenting to the Emergency Department with Acute Headache



Community-acquired Pneumonia
Clinical Policy for the Management and Risk Stratification of Community-Acquired Pneumonia in Adults in the Emergency Department



Abdominal Pain
Clinical Policy: Critical Issues for the Initial Evaluation and Management of Patients Presenting With a Chief Complaint of Nontraumatic Acute Abdominal Pain



Neuroimaging - Seizure
Practice Parameter: Neuroimaging in the Emergency Patient Presenting With Seizure (Summary Statement)

Find all of these documents here.

Consumer Protection Act Applies Against Doctors

The Kansas Supreme Court has stated that a patient injured as a result of alleged medical negligence can file suit under the state's consumer protection act.

The patient , Williamson, alleged that the defendant doctor "represented that the surgery he was recommending had a high likelihood of successfully relieving her pain when, in fact, that surgery had been unsuccessful in the majority of cases where [defendant] Dr. Amrani had utilized the same procedure. Williamson alleged that Dr. Amrani had willfully misrepresented or concealed material facts in that he knew or should have known that the surgery he was recommending had produced 'bad results' for a majority of his patients."

The Court reviewed the Kansas Consumer Protection Act and the law from other states interpreting similar statutes in other cases and ruled that "the language of the KCPA is broad enough to encompass a claim regarding the providing of medical care or treatment services brought by a patient against a physician for a violation under the KCPA."

The Court went on to rule that "in order to determine whether Dr. Amrani's alleged failure to make an affirmative disclosure of his level of experience or success rate for the recommended surgery constituted a deceptive or unconscionable act or practice, the district court correctly ruled that expert testimony would be helpful in determining whether the disclosure is one that would be made by a reasonable medical practitioner under the same or like circumstances."

Two justices issued a long, passionate dissent.

The case is Williamson v. Amrani, No. 95-154 (Kan. S. C. Feb. 9, 2007).  Read it here.

Medical Practice Guidelines

It takes a tremendous amount of time and money to screen medical malpractice cases.  Our office reviews over 700 cases per year and rejects over 95 percent of them over the phone.  Of the remaining 5 percent most are rejected after review of the medical records and, if appropriate, consultation with one or more medical experts.  In short, we spend a significant sum of money every year trying to take only claims that are valid and have sufficient damages to justify the significant investment of time and money necessary to prosecute one of these cases.

One way to save a little money and time reviewing cases and to help win a case that is actually filed is to use practice guidelines developed by the health care industry.  Practice guidelines are consensus statements of good medical practice.  The phrase "standards of care" immediately jumps to mind when one reads the last sentence - and that is what practice guidelines are.  However, practice guidelines are not called standards of care because the people who write and use them seek plausible deniability if ever confronted with them.

No bother.   You can use practice guidelines to evaluate the care your potential client or client received.  You can use practice guidelines to prepare for depositions of health care providers.  Your expert can point to practice guidelines as evidence of the standards of care, disclaimers notwithstanding.  In short, they are potentially useful in litigation and, more importantly, very helpful in standardizing and improving the quality of care given to patients.

Where do you find them?  This website - www.guidelines.gov.  Simply go to that page, type in the appropriate search term or scan the index, and you will be sent into a world of over 2000 practice guidelines.

Some examples:

Management of Labor.  This 73-page guideline was issued by the Institute for Clinical Systems Improvement.   "The recommendations for management of labor are presented in the form of eight algorithms with a total of 128 components, accompanied by detailed annotations. Algorithms are provided for: Management of Labor Main Algorithm, Management of Signs/Symptoms of Preterm Labor (PTL), Monitoring and Management of Prodromal Preterm Labor, Management of Active Preterm Labor, Management of Preterm Labor with Rupture of Membrane (ROM) or Bleeding, Vaginal Birth after Cesarean, Treatment of Failure to Progress in Labor, and Intrapartum Fetal Heart Rate Management."  There are references supporting the recommendations.

Treatment of Acute Pancreatitis.  Short explanation of the diagnosis and treatment of this condition.

Pediatric and Newborn Septic Shock.  This guideline gives information on hemodynamic support for these patients.

Caution:  Guidelines are not a substitute for an expert.  Do not assume that guidelines represent the standard of care and that if a practitioner violated a guideline the practitioner has violated the standard of care.   You still need hones-to-God expert proof to win your case. 

Indeed, the mere fact that guidelines are followed does not mean that the standard of care was met.  Guidelines may be outdated.  Or guidelines may be drafted in such a way as to provide a tool to defend cases rather than promote good care (is my cynicism showing?) 

One last point.  Do your research before you file suit, not after.  If at all possible, consult experts before filing suit, not after.  Each of these cases is like nuclear war, and your opponent has a lot of warheads in his or her control.  Be prepared for a time-consuming, expensive fight against very good lawyers. 

A Comment From A Doctor

I wrote two posts in the last year (here and here)about doctors who have been attacked by organized medicine for giving testimony on behalf of plaintiffs in medical malpractice lawsuits.  The goal of these efforts is not only to punish the doctors for having the audacity to testify for a plaintiff in a medical malpractice case but also to discourage other doctors from testifying.

This weekend I received this comment to one post :

I'm a physician but I do not want to reveal my real name because this topic is so controversial. In the past I would infrequently give depositions or testify in malpractice cases. I think I worked on a total of 20 cases in about 15 years. I have worked both with defense and plaintiff's attorneys but plaintiff work is easier to get so I did somewhat more of that. When I began to read about the horrendous ordeals some physicians went through when some board picked apart their testimony, I decided to give it up entirely.

I think the current approach, which appears to emphasize suppressing lawsuits, is very misguided. When I signed on to my specialty society, I know I agreed to follow their bylaws but I never dreamed this would subject me to abuse by a "kangaroo court" bent on killing off expert witnesses.

But for me this is simply not a significant enough source of income. I don't have the time, the energy or the resources to fight this, at least not individually. I hope that those who have more of an interest in this subject will campaign against the efforts of the various medical specialists to suppress malpractice cases.

There actually should be a law protecting expert witnesses from this type of abuse. Also, the theory that expert testimony constitutes medical practice is completely preposterous. The AMA and other physician groups should not be allowed to get away with it. I've tried speaking up about this at some medical meetings, but I now have given up. Most doctors are completely convinced that anything that one can do to make life harder for plaintiffs is to their benefit. I think that patients and patient advocates need to speak up and contact their representatives in Congress and the state legislatures or the AMA is going to get it's way.

To the writer:  Thanks for taking the time to express your thoughts on this important subject.  While I agree that patients and patient advocates need to speak out on this issue, I hope that you will do so, too.  As a physician, your observations and opinions will really help motivate legislators to action.

Plaintiff's Expert Excluded in Med Mal Case

Plaintiff filed an affidavit from an expert witness in opposition to a motion for summary judgment in a medical negligence case.  The expert - from UAB in Birmingham - explained that he understood the standard of care in Memphis because of the following:

2. I am familiar with the standard of care for Mohs micrographic Surgeons in communities similar to Memphis, TN.
3. I have become familiar with the standards of care in the Memphis community and throughout the State of Tennessee.
4. I have discussed the standard of care for obtaining informed consent with all the fellowship trained Mohs surgeons in Tennessee. “Fellowship trained” refers to Mohs surgeons who have specialized training in Mohs micrographic surgery for 1-2 years after completing a dermatology or related residency.
5. These fellowships are accredited by the American College of Mohs Micrographic Surgery and Cutaneous Oncology. In the past two years, many of these fellowships have also become accredited by the American Board of Medical Specialties under the newly recognized specialty of Procedural Dermatology.
6. There are sixteen (16) Mohs surgeons in Tennessee including the Defendant. Seven of the Mohs surgeons are partners with the Defendant. Therefore they were not consulted.
7. Besides Dr. Allen and his partners, I consulted with Dr. Malika Tuli of Memphis, Tennessee and was advised that written and oral informed consent are obtained in the Memphis, Tennessee community.
8. I also consulted with the remaining six Mohs surgeons in Tennessee and was advised that the written and oral informed consent are obtained in their community. See attached spreadsheet of my investigation.

Not good enough.  "Defendants assert that knowledge gained by surveying other physicians and not by personal or firsthand experience is not sufficient under § 29-26-115(a)(1). They submit that a non-expert could survey physicians in a community if the mere collection of data could constitute knowledge. Defendants assert the statute requires personal, firsthand, or direct knowledge of the applicable standard by an expert who practices in the community or in a similar community. We agree."

The case is Eckler v. Allen, No. W2005-02501-COA-R3-CV  (Tenn. Ct. App. Nov. 29, 2006); the opinion was authored by Judge David Farmer of the Western Section of the Court of Appeals.  Read it here.

2006 Tennessee Med Mal Claims Report Released

The Tennessee Department of Commerce and Insurance has released the "2006 Tennessee Medical Malpractice Claims Report"" which, in fact, is based on 2005 data.  Read the entire report here.

Some highlights:

*  There were  5 - that's right - 5 - claims were resolved by judgment for the plaintiff in the entire state.  There were 6 verdicts for the plaintiff in 2004.

*  There were 2827 med mal claims closed by insurers in 2005.  Although the report is unclear, 2361 appear to be closed with no payment to the claimant.  Note:  a closed claim does not mean that a lawsuit was filed.  A claim may be a report by a provider of, say, a patient complaint.

* There were 461 settlements in med mal cases last year, up only slightly from 444 the year before.  The total is less than five per county.

* Total settlements were $119,091,990.  That is an average of about $260,000 per settled claim, about the same as last year.

*  As of 12/31/05 there were 5680 claims pending.  The amount reserved for those claims is slightly over $822,000,000.

I have a few comments.  Five jury verdicts for the plaintiffs is shocking - it demonstrates that people are settling good cases and trying difficult ones.  Jury verdicts for the defendant are not reported, but should be, in that it would tell what a good job juries are doing weeding out "bad" cases.

Second, the dollars paid per settled claim is lower than I would have expected, and much lower than what the public would assume it to be given the propagand from the health care industry.

Third, we need to get rid of ad damnum clauses.  The total damages sought in cases was in the billions, and most ad damnums do not reflect reality.  They should be prohibited.

Fourth, almost 2000 people die of medical malpractice per year in Tennessee.  An unknown number are injured.  The reported verdicts and settlements tell us that but a fraction of those claimants ever find their way to a lawyer.

Fifth, we need to get a better handle on what percentage of cases are voluntarily dismissed or dismissed on summary judgment.  Clearly, there are suits being filed that should not have been filed, and some steps need to be taken to reduce the number of those claims while taking into account the difficulty of finding an expert before filing suit given sloppy or false medical records and Tennessee's one-year statute of limitations.

Sixth, these and other statistics confirm that the so-called crisis in medical malpractice liability is false.  The claims are few in number given the number of negligent acts and omissions causing injury and death and the results modest compared with other states.  The health care industry would be better served by focusing its efforts on reducing claims rather than seeking to eliminate the rights of patients with valid claims.

GA Court Answers Evidence Question

The Georgia Supreme Court was confronted with this question:  "In what circumstances, if any, is evidence of a nurse’s failure to pass a licensing  examination admissible in a medical malpractice action against the employing physician?"

Plaintiffs' son Luke was diagnosed with bacterial meningitis resulting in brain damage and quadriplegia. Plaintiffs claimed that Luke's pediatrician and his employees should have picked up on the symptoms given the information provided in a series of contacts.   Plaintiffs  introduced expert testimony that the pediatrician, Dr. Basilio, violated the standard of care by permitting an unlicensed nurse to answer weekend calls and give advice without consulting a supervising physician. To support that  testimony, the Sniders showed that Nurse DeVera was not licensed. However, the trial court did not allow the Sniders to show that Ms. DeVera failed to pass the nursing board examination.

The Georgia Supreme Court agreed.  It said as follows:  "Simply put, the issue in this case is not whether Ms. DeVera was generally competent, but whether Dr. Basilio breached the standard of care in hiring her because she was unlicensed. On this issue, the plaintiffs' experts were able to testify that Dr. Basilio breached the standard of care by hiring an unlicensed nurse and allowing her to answer weekend calls without supervision. The fact that Ms. DeVera was unlicensed was key to resolving this issue. Why she was unlicensed was not."

The case is Snider v. Basilio, S06G0559 (Ga. S.C. October 30, 2006).  Read the opinion here.

Important Decision on Expert Witnesses

The Florida Supreme Court has released an important decision on testimony by expert witnesses.

Plaintiff's counsel sought an order prohibiting a defendant's expert from testifying that he relied on consultations with colleagues or other experts in forming his opinions.   The Florida high court said  "that such testimony is inadmissible because it impermissibly permits the testifying experts to bolster their opinions and creates the danger that the testifying experts will serve as conduits for the opinions of others who are not subject to cross-examination."  However, the Court made it clear that "our opinion today in no way precludes experts from relying on facts or data that are not independently admissible in evidence '[i]f the facts or data are a type reasonably relied upon by experts in the subject.'”

The Court also said that "[a]llowing qualified experts to testify as to the prevailing professional standard of care under section 766.102(1), Florida Statutes (2005), does not permit experts to conduct a survey of a myriad of other experts or colleagues to derive a consensus on the standard of care."

The dissenter said " the majority’s resolution of the issue . . . as it applies in the instant case to testimony about the standard of care. The very definition of standard of care in section 766.102(1), Florida Statutes (2005), requires proof of what is “recognized as acceptable and appropriate by reasonably prudent similar health care providers.” This obviously requires discussions with similar health care providers. Standard of care is a particularized requirement of medical malpractice litigation. The opinion in this case should be limited to the medical malpractice context and to specific issues which by their nature require knowledge by the expert of what others in a particular profession do under similar circumstances."

The case is Linn v. Fossum,  No. SC05-134   (Florida S.C.  Nov. 2, 2006).   Read the opinion here.

No-Show On-Call Doctor Can't Be Sued

Plaintiff received neck and spinal cord injuries in a motor vehicle accident.  He was taken to the local ER; the ER doctor thought he needed to be seen by a neurosurgeon.  The on-call neurosurgeon (Ebeling) said he was very tired and would not be coming to the hospital and recommended that Plaintiff be transferred to a trauma center.  Plaintiff was transferred and was determined to have developed C-7 paraplegia.

The ER doctor testified that Ebeling's refusal to come in was the first time a doctor had refused to come to the ER because of fatigue. 

Plaintiff sued Ebeling (and others); Ebeling defended by saying that there was no physician-patient relationship between him and Plaintiff and that he was not negligent.

The Kansas Court of Appeals agreed and affirmed dismissal of the case.  Plaintiff first argued that by taking call Ebeling had assumed a duty under Section 324A of the Restatement (Second) of Torts.  The Court rejected this argument, saying that even if Section 324A was extended to impose a duty under the facts the uncontroverted evidence was that Ebeling performed as he was required to perform.  Why?  His on-call responsibilities did not require him to go to the hospital and treat a patient.

The Court also noted that Plaintiff "has not pointed to any regulation, law, or policy which would establish a "social consensus" in Kansas that on-call physicians must come to the hospital within a reasonable time after they are called. Moreover, [Plaintiff] has failed to point to any authority which would indicate that based on the public policy in Kansas, a duty should be imposed upon a physician who is on-call to come into the hospital and treat a patient. To extend such a requirement to an on-call physician would have a chilling effect on the profession. Physicians would not want to volunteer to receive calls from hospitals if a physician could be required to come into the hospital and treat a patient even though the physician did not feel competent to handle a particular case. "

The Court also held that a physician-patient relationship was not created by Ebeling's conduct. The Court said that "Ebeling's only opportunity to treat [Plaintiff] was during the two phone calls that he had with [the RE doctor]. Nevertheless, the undisputed evidence in this case showed that he declined to treat [Plaintiff] during both of these telephone calls. There was no evidence that Ebeling provided any advice concerning [Plaintiff's] treatment and care. [Plaintiff ] has not met his burden to bring forth evidence which could show that Ebeling, either expressly or impliedly, consented to treat [Plaintiff].

The case is Seeber v. Ebeling, No. 94,666 (Kansas Ct. App. 9/1/2006).

 

Sidewalk, Not Curbside, Consultation

Do you remember   Kelley v. Middle Tennessee Emergency Physicians, P.C., 133 S.W.3d 587 (Tenn. 2004), when the defendant tried to claim that he owed no duty to the plaintiff because he was not the plaintiff's regular doctor?   The defendant was called by the emergency room doctor and gave the doctor advice that allegedly turned out to be wrong.  The defendant said his advise was a "curbside opinion" and did not give rise to a duty of care to the patient.  The Tennessee Supreme Court respectfully disagreed and said an issue of fact existed on the subject.  (Note:  the Court also made it quite clear that they thought the defendant's argument that  there was a mere "curbside consultation" based on the "undisputed facts" was a stretch - see text accompanying fn. 17 in the opinion).

Well, the nice folks in Mississippi just had a "sidewalk opinion" case.  The defendant doctor there said he did not owe a duty to the patient to give the patient's treating physician the right advice when the treating physician called and sought and opinion before referring the patient to the defendant for treatment.  In Scafide v. Bazzone, NO. 2004-CA-01658-COA (Miss.Ct. App. 9/12/06) the Court held that the defendant did not have a duty.

The key language from the opinion:

"[W]e now turn to whether a duty arose when [defendant] Dr. Bazzone discussed his reaction over the telephone to the medical information orally discussed with him by [treating physician] Dr. Ross on March 14. Described was an unidentified patient who had an aggressive tumor that showed signs of being cancerous.  Dr. Bazzone did not render an opinion concerning whether the tumor was cancerous or diagnose the illness during the conversation with Dr. Ross. Dr. Bazzone accepted the diagnosis given by Dr. Ross and agreed with the treatment approach. He also stated that based on what he was told, he would proceed without surgery that would gain tissue for a biopsy. The conversation between Dr. Ross and Dr. Bazzone could in some ways be compared to the situation of Dr. Ross’s consulting a medical treatise or manual on the treatment for a glioblastoma. Without seeing a patient or having any other personal knowledge, Dr. Bazzone gave an opinion that serves the public policy purpose to encourage and not discourage such conversations. The followup to the conversation was to be an examination by Dr. Bazzone. That exam never occurred because [decedent] Ms. Goss declined. No duty by Dr. Bazzone arose from this informal consultation."

So, does the fact that Mississippi reached this result in a "sidewalk opinion" case mean that our justices erred in our alleged  "curbside consultation"  case?

No.  In the Tennessee case, a key fact was that the defendant was the on-call physician for the plaintiff's regular doctor.  When the emergency room tried to call the regular doctor for input, he got the on-call doctor.  The patient-physician relationship arguably existed by reason of the on-call relationship (within the same group) and therefore it is only fair that a duty should be found to exist.  That relationship was not present in the Mississippi case.

My criticism of the Tennessee case is that the Court should have held that a physician-patient relationship existed as a matter of law.  

Informed Consent and Causation

Here is an unusual case out of California - a unique application of the "reasonable person test" when applying the causation standard in an informed consent case.

Wilson was paralyzed from spinal surgery for scoliosis, rendering him a paraplegic. He was wheelchair bound and needed to use his arms and shoulders to get in and out of the wheelchair.  Some five years ago Wilson had a stroke, and thereafter  developed adhesive capsulitis in his shoulder.  His doctor referred him to a chiropractor, who recommended manipulation under anesthesia.  Wilson asked his doctor questions about the risk associated with the procedure, and allegedly was told by his doctor  that the only risk was an infection secondary to an injection that was part of the procedure.  His doctor was present at the procedure performed by the chiropractor. Wilson suffered a fractured shoulder and a torn rotator cuff during the procedure. As a result, he had to undergo surgery to repair the damage.

Wilson sued the doctor, the chiropractor and others, saying that he never gave informed consent to the procedure.  The case went to trial against the doctor, but the trial judge dismissed this case on several grounds, including the failure of Wilson to prove causation in the informed case. 

In California (as in Tennessee), "causation must be established by an objective test: that is,  the plaintiff must show that reasonable ‘prudent person[s]’ in the patient’s position would decline the procedure if they knew all significant perils."

The Court of Appeals reversed the dismissal of the action, saying that Wilson "must show that a reasonable, prudent paraplegic,  who had been largely paralyzed by a prior surgery and was dependent upon the use of his  arms and shoulders for any mobility at all, and who, at that point, had already achieved about a 20 percent improvement in his adhesive capsulitis condition based on physical therapy alone, would have declined the procedure if informed that it could result in a torn  rotator cuff and a fractured bone. There was sufficient evidence for a jury to conclude  that, under the circumstances, a reasonable, prudent paraplegic would indeed have passed up the opportunity."

The case is Wilson v. Merritt,  No. G035929 (Cal. App. 4th Dis. 9/11/06).  Read it here.

New FTCA Case Involving Spina Bifida

Timothy Brown sued the United States  alleging that his daughter Melody developed spinal bifida as a result of a military doctor recommending to Deborah Brown (Melody's mother and a member of the military) than she  (Deborah) stop taking prenatal vitamins during a critical period in his development in utero.  The vitamins contained folic acid, which the Tommy alleged  is intended solely to prevent  neural tube defects in a developing fetus. Neural tube defects can cause serious spinal cord and  brain injury during the first 28 days of gestation, after which the fetal neural tube closes. Deborah Brown sustained no physical injury whatever from the effects of the negligent prenatal treatment, from her pregnancy, or from Melody’s birth.

The United States moved to dismiss, alleging that it was immune from suit under Feres v. United States, 340 U.S. 135 (1950).  Feres held that  the government “is not liable under [the Act] for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.”   Id. at 146.  Plaintiff argued that the  Feres  doctrine was inapplicable because Melody’s injury was not derivative of any injury to her mother but was, rather, the result of negligence affecting Melody directly(albeit in utero). 

The district court (Judge McCalla in Memphis) dismissed the case, saying the case was controlled by a prior decision of the Sixth Circuit in Irvin v. United States, 845 F.2d 126 (1988), which held that "the treatment accorded to a pregnant member of the military on active duty is inherently inseparable from that accorded to the fetus and that such a claim would therefore force a judge to  question the propriety of decisions or conduct of fellow members of the military."

Judge Daughtery wrote the opinion for the Sixth Circuit Court.  She said that Irvin was distinguishable because it sought damages for the death of an injured child as a consquence to injuries caused to the plaintiff mother.  Here, the mother had no injury, and therefore the Court held that "that the Federal Tort Claims Act does not  preclude recovery for negligent prenatal injuries to the child of a military service person that are independent of any injury to the child’s parent."  The Court expressed limited Irwin to its facts.

Judge Graham dissented. saying that the result was controlled by Irvin.

The case is Brown v. United States of America, No. 04-5171 (6th Cir. September 8, 2006). Read the entire decision here.

Tennessee Supreme Court Accepts Statute of Limitations Case

The statute of limitations is tolled when the plaintiff is of unsound mind.  Tenn. Code Ann. §  28-1-106.  Does the fact that a Durable Power of Attorney (executed before the incompetency) is in existence trump the tolling statute and require the attorney-in-fact to take action within the original statute?

The Tennessee Court of Appeals said "no" in Sullivan v. Chattanooga Medical Investors, L.P.,  No. M2004-02264-COA-R3-CV -  (January 26, 2006).   See the original opinion here.

Judge Susano put the issue this way:  "Is the tolling effect  of Tenn. Code Ann. § 28-1-106 implicated when an individual, while competent, grants another a  durable power of attorney, including the power to act for the grantor with respect to “claims and  litigation”? The crux of both the defendant’s argument and the trial court’s holding in opposition  to the application of § 28-1-106 is that, by granting a durable power of attorney, the deceased  removed himself and the plaintiff from the ambit and protection of § 28-1-106."

The essential holding is this:  "The statute does not recite, expressly or by implication, that the tolling of the statute of  limitations only occurs in those situations where there is no one authorized to act for the disabled  individual. On the contrary, § 28-1-106 specifically grants the tolling protection not only to the  disabled individual but also to his or her “representatives and privies.” Though the plaintiff is the  individual who brought the action, he brought it in a representative capacity for the alleged wrong  done to the deceased. Thus, as we believe was intended by the legislature, the plaintiff, as  Administrator of the deceased’s estate, is a “representative[]” of the deceased and not “the person  entitled to commence an action.” We hold that the plain and ordinary meaning of the language of  § 28-1-106 simply does not permit this court to conclude that “representatives and privies” does not  cover the plaintiff in this case. We think it clearly does."

Yesterday the Tennessee Supreme Court said it would review the case.

Does that mean the decision of the Eastern Section will be reversed?  Not necessarily.  It is fair to say that usually in tort cases the TSC takes cases to reverse them.  But that was not true in  the Alsip case; Judge Susano was affirmed there.  And I predict he will be affirmed in this case.

I think the TSC took this case because it is somewhat similar to a Rule 23 case it is currently considering out of the Western District of the Federal Court.   That case involves the effect of the appointment of a conservator on the tolling of a statute of limitations.

Expect a decision in early Spring, 2007.

2006 Changes in Medical Malpractice Reporting Law

From a recent press release issued by the Tennessee Dept. of Commerce and Insurance:

"Public Chapter 744, effective May 23, 2006, contains several important changes to the Medical Malpractice Reporting Law of Tennessee, (Public Chapter 902, adopted in 2004, and codified at Tenn. Code Ann. § 56-54-101). For the first time, it requires “reporting entities” (insurance companies, uninsured health care facilities and professionals) to include the damages and defense expenses incurred from the inception date of the medical malpractice claim until the end of the reporting year in its annual report to the Department of Commerce & Insurance (the “Department”). This change will enable the Department to accurately report on all of the costs to date incurred by reporting entities in its annual report to the General Assembly, rather than just those costs incurred during the reporting calendar year. The law requires reporting entities to re-file 2005 reports by July 1, 2006 to reflect these inception-to-date damages and costs, and also extends the deadline for the Department to report to the General Assembly from September 1 to November 1 of each year.

The legislation places requirements on counsel for claimants to submit their information on medical malpractice fee arrangements directly to the Department by April 1 of each year, beginning in 2007. Counsel for claimants are also included in the definition of “reporting entities” over which the Department has civil penalty authority to levy a fine of $100 a day for failure to report. The law now requires claimant’s counsel to report the portion of settlement or judgment received in the reporting calendar year. Similarly, all reporting entities must now list the name of each attorney representing claimants in its annual report in order to provide the Department with additional enforcement information. All settlement and judgment information submitted to the Department will continue to be held confidential, and reported only in aggregate form.

Lastly, the legislation changes the requirements on reporting entities to submit social security numbers. It was found that in many instances, this information is not maintained by the reporting entities, and therefore the law now only requires this information to be reported to the extent it is available to the reporting entity.

For any additional questions concerning the medical malpractice reporting law, please contact Andrea Hardy or Kathy Fussell with the Department of Commerce & Insurance at (615) 741-1692. "

I would encourage all attorneys to keep this data on a on-going basis during the year and have it ready to submit effective January 1, 2007.   A form will undoubtedly be developed to use to submit this information but, in the meantime, put a copy of the settlement sheet in an appropriately marked file.

Hospitals Reduce Birth Injuries

Efforts to improve teamwork and communication have substantially  reduced births resulting in traumatic injury .

Many of the Seaton hospitals have worked with the Institute for Healthcare Improvement to reduce preventable childbirth injuries by " improving communications, standardizing procedures and reducing risky methods that speed deliveries, including forceps use, vacuum deliveries and medication to induce labor," according to an article in the American-Statesman.

The paper reports that overall the actions have "reduced traumatic birth injuries from 3.2 per 1,000 in 2004 (less than half the national average) to 0.3 injuries per 1,000."

This is wonderful news.  Hopefully other hospitals will follow the lead of these institutions and adopt these same policies, procedures and training methods to reduce injuries and death.

There is one troubling thing about this report, however.   In virtually every birth trauma case several doctors are prepared to or do swear until oath that the injuries to the child could not have been prevented.  If that testimony is true, how then did these facilities manage to reduce injuries by almost 90%?  Note too that the article does not mention that new equipment or some sort of expensive testing was required to prevent these injuries.  Rather, they  worked on "improving communications, standardizing procedures and reducing risky methods that speed deliveries, including forceps use, vacuum deliveries and medication to induce labor" and were taught to follow "national best practices and ... use the same language to prevent misunderstandings of fetal monitor readings and descriptions of a patient's progress." 

National best practices?  Hmm.  That almost sounds like a national standard of care.  I didn't think there was such a thing.  Then again, I live in Tennessee, where the doctors managed to convince the Legislature that (a) doctors and nurses who live in rural areas could not be trained like doctors and nurses who live in urban areas and (b) no doctor or nurse from a non-contigious state was competent to testify about the standard of care in Tennessee (absent permission from the Court).

But, I do not want to dwell on the negative.  This report is wonderful news for the patients at these facilities and, as I said above, will hopefully serve as an inspiration to other facilities.

Early Intervention Prevents Lawsuits

It just makes sense for hospitals and doctors to try to resolve problems with patients before lawyers  get involved, and it looks like they are starting to do it.

This article from www.law.com explains how facilities are starting to aggressively deal with potential claims and avoid litigation. 

Look at what happened to claims at the University of Michigan Hospital when such a program was adopted:  "In August 2001, there were 262 total claims, ranging from presuit notices to active litigation; in August 2002, there were 220 total claims; 193 claims in August 2003; 155 claims in August 2004; 114 claims in August 2005; and since that time, the total number of claims has fallen to fewer than 100...."  This occurred despite an increase in clinical activity.

During the last session of the Legislature a bill was introduced that would have facilitated this kind of activity before suit.  Tragically, some health care lobbyists wanted (surprise!) to get special protection (read:damage caps) for attempting to settle cases early.  The bill died, and will continue to be contested to the extent that any provider wants special treatment for doing the right thing. 

The bottom line is that is that if you do the right thing you are doing the right thing.  It will save you legal fees, it will almost certainly reduce your indemnity payment, it will make your patient happy - and you are doing the right thing.

Isn't that enough?

Doctor Fights Back

Dr.  Fullerton made a horrible mistake.  He testified for a patient in a medical malpractice case.  The defendants won the case and turned Dr. Fullerton into the Florida Medical Association "stating, among other things,  that his opinion testimony fell below reasonable professional standards, that it was  made “for the sole purpose of propagating a frivolous lawsuit for financial gain,” and  that he specifically “presented false testimony and false theories about stroke in the  hope to prove negligent medical care in an 80-year-old diabetic with previous strokes  who suffered a stroke despite appropriate care.” Appellees concluded their letter with  a request to the FMA to issue an opinion addressing whether Fullerton’s testimony  “fall[s] below standards,” and, if so, to report its findings to the Board of Medicine for  appropriate disciplinary action in order “to prevent the Medical profession from being  terrorized by similar experts.”

Fullerton (who was not a member of the FMA) responded with litigation, alleging  " that the statements in the  letter were false and were submitted for processing by the FMA’s Expert Witness  Committee (EWC) of FMA’s Council on Ethical and Judicial Affairs (CEJA), which  was organized for the purpose 'of intimidating, hindering, and deterring persons, including plaintiff Fullerton, from appearing as expert witnesses on behalf of plaintiffs  in cases involving medical malpractice,' thereby depriving injured plaintiffs of the  ability to pursue medical-malpractice lawsuits. He continued that because of the  actions of FMA and the defendant doctors, who acted in concert to inhibit expert  testimony in medical malpractice cases, he had suffered damages and would suffer  irreparable harm to his reputation and to his capacity to earn income in the future if  the defendant FMA’s CEJA and EWC programs were permitted to continue their  operations."

The doctors and the FMA claimed they were immune from suit under the peer review statute in Florida.  The trial court dismissed the case.

The Court of Appeals reversed, saying "We find nothing in Florida’s  medical peer-review statutes reasonably supporting an interpretation that a peer review  committee is shielded from liability for an act taken by the committee on a claim that a physician’s testimony in a medical-malpractice action fell below  acceptable professional standards."

Read the entire opinion here.

Read my prior post about Dr. Lustgarten's fight with the North Carolina Medical Board here.

Congradulations to ATLA/s Center for Constitutional Litigation for their efforts on behalf of Dr. Fullerton.  ATLA is fighting a similar case in Texas.

Blue Chipper - Medical Malpractice - Locality Rule

The case: Robinson v. LeCorps, 83 S.W.3d 718 (Tenn. 2002). Author: Justice E. Riley Anderson

Why it is a Blue Chipper: Robinson made it crystal clear that a standard of care expert in a medical malpractice case may not base that testimony on a national standard of care and that an expert's testimony will be excluded if it based solely on a national standard.

The bottom line:

A. Plaintiff first attempted to argue that Tennessee courts should adopt a national standard of care in medical malpractice cases:

"Despite the clear statutory language and evidence of legislative intent, Robinson asserts that the locality rule in Tenn.Code Ann. ㋔ 29-26-115(a)(1) should be enlarged or broadened by adopting a national standard of professional care for all malpractice actions, malpractice actions involving physicians who are board-certified in a particular area, or malpractice actions involving a specific treatment issue or area of medicine. There is no statutory language or other evidence of legislative intent, however, that would support such an interpretation.

...[W]e decline to adopt the plaintiff's interpretation based either on policy arguments or alleged evidence of the existence of a national standard of care in the medical community that are better addressed to the legislature."
Id. at 723-24.


B. Plaintiff also attempted to argue that his expert was qualified to testify against an orthopedic surgeon in Nashville.

"Accordingly, in applying Tenn.Code Ann. ㋔ 29-26-115(a)(1) to the scant evidence in this case, it is clear that [Plaintiff's expert] Dr. Kennedy's testimony did not establish the standard of professional care in Nashville, Tennessee, or in a similar community. Although Dr. Kennedy was licensed in Tennessee, practiced in Johnson City, Tennessee, and was board certified in orthopaedic surgery, he testified only that the applicable standard of care in this case "would be expected" to be the same as the national standard of care and that "[t]here is no differentiation recognized in �?�?�? one locality as opposed to the other, certain localities comparable with Nashville�?�?�?�?" Dr. Kennedy also stated that orthopaedic surgeons "would stand the same test and would be expected to have the same knowledge and to practice in very similar fashions by the American Board of Orthopaedic Surgeons." He did not, however, relate the basis for his knowledge of the standard of care in Nashville or indicate why the Nashville medical community was similar to, and thus had the same standard of professional care as, the community with which Dr. Kennedy was familiar.

We therefore agree with the Court of Appeals' conclusion that the trial court did not abuse its discretion by excluding the deposition testimony."
Id. at 724-25.

New Tennessee Supreme Court Opinion on "Foreign Object" Exception to Medical Malpractice Statute of Repose

The Supreme Court of Tennessee issued an important ruling on the "foreign object" exception to the medical malpractice statute of repose and statute of limitations. The case is Chambers v. Semmer, M.D., and deals with what exactly constitutes a foreign object. The plaintiff's theory in the case is that a hemoclip was negligently placed on her ureter during a surgery and left there, later causing her left kidney to fail. The defendants countered that they did not leave any hemoclip on the plaintiff's ureter, but that "hemoclips are used intentionally and are intended to remain permanently," so they could not be foreign objects. The Supreme Court rejected the defendants' argument, ruling "that a hemoclip that is intentionally used but negligently placed and negligently left in a patient's body following surgery may be a "foreign object" under Tennessee Code Annotated section 29-26-116(a)4) that establishes an exception to the one-year statute of limitations and the three-year statute of repose."

Read more about the opinion at our firm's Tennessee Medical Malpractice Blog.

Alsip

I apologize for the lack of a post Friday and Saturday. Friday morning I was in North Carolina and did not have access to a computer. By the time I made it to the office I had back-to-back conference calls or appointments until 4:15 and just decided to wait until Saturday morning to blog.

Friday night Joy and I went to the cabin. I got up early Saturday morning but for reasons I do not understand I could not get access to the Internet. I spent several hours riding my early birthday present (a Sea Doo RXT) and messing around in the water.

I got up early again this morning and, surprise, the Internet connection is working. So, I decided to bang out this post before Joy and I meet our friend Buzz at 8:00 a.m. to get in some water skiing before the water gets rough

The Alsip opinion is big news but not unexpected. As reported Thursday afternoon, a plaintiff need not agree and a court may not order that defense counsel can engage in ex parte communications with the plaintiff's physicians. This ruling is applicable to all personal injury cases, but is of most importance in medical malpractice cases. Why? Because historically some defense counsel have used ex parte meetings to persuade a plaintiff's treating physicans to testify against the plaintiff in the med mal case.

Now what will happen is that treating physicians who are potential witnesses will get counsel (through SVMIC, the doctor-owned insurance company) and that opens the door to potential mischief. However, the vast majority of those counsel are responsible men and women who will counsel their clients about the dangers of opining on causation without the knowledge of all of the facts. There is still a risk on standard of care testimony being developed by defense lawyer to defense lawyer communications, but as that begins to occur we will try, once again, to demonstrate the bias of the witness and (hopefully) the insurance company connection.

In an effort to avoid the cost of an extra deposition, Plaintiffs' lawyers should give consideration to allowing defense counsel to meet with treating physicians with plaintiffs' counsel present.

The Tennessee Supreme Court reached the right result in this case. This decision still allows defendants to get the information they need to defend a case while allowing the the plaintiff to ensure that only discoverable information is communicated between the treating physician and the defense counsel.

Undoubtedly the medical industry lobby will try to introduce legislation to reverse the result in this case. I will let you know when it does.

Breaking News: Supreme Court Bars Ex Parte Talks with Plaintiff's Doctors

The Supreme Court just issued its opinion in Alsip et al v. Johnson City Medical Center et al. More information on the opinion, holding that defense counsel may not participate in ex parte communications with a plaintiff's non--party treating physicians, is available over at our firm's medical malpractice blog. I am on the road right now, so commentary will follow later.

Summary Summary Judgment

Judge Koch and the Court of Appeals for the Middle Section have ruled that a summary judgment in favor of a doctor in a medical malpractice case must be reversed because the plaintiff was not given adequate time to marshal the facts necessary to respond to it and submit an affidavit necessary to defeat the motion.

I have commented before that it is a mistake for lawyers to assume that a trial judge will automatically give a plaintiff additional time to respond to a motion for summary judgment. But this case tells us that a plaintiff must have a reasonable opportunity to respond to the motion, and recognizes that "[i]t is quite conceivable that careful experts will withhold rendering an opinion based on medical records or supporting affidavits alone."

Say it again, brother. Lawyers who handle medical negligence cases know that the medical records tell only part of the story and that if you develop, in writing, a theory of the case based on the medical records any gaps in the records will be filled with facts contrary to your theory. Am I saying that health care providers lie? Oh, sometimes - they are human. But in the ordinary course "lie" is too strong of word. It is more accurate, and certainly more polite, to say that most human beings tend to resolve doubts in favor of themselves, particularly when those doubts cannot be controverted by something written in their own hand. Hence, a careful expert, and a careful lawyer, will not assume facts that only can be found in the gray matter of an opponent or potentially hostile witness.

I would not suggest that one must always be permitted to depose a defendant in a medical malpractice case before responding to a motion for summary judgment supported only by that doctor's affidavit. But I confess that I cannot think of a circumstance where I would not do so.

Here, the doctor was deposed but refused to waive signature (which is his right) and pushed for a quick hearing on his pending motion (15 days after his deposition and before the defendant had signed off on the transcript). Once again, taking a position on the facts based on an unsigned deposition permits potential mischief. Am I paranoid? Perhaps. But, as the saying goes: "Fool me once, shame on you. Fool me twice, shame on me."

The patient's lawyer here did a good job creating a record that permitted the Court of Appeals to reverse the trial judge. All of us can learn from his efforts. However, we would all be well-adivsed to strongly consider sending written discovery early in a case to avoid the argument that we have been foot-dragging. Once again, I suppose that there is some type of case out there where once could defend not sending discovery seeking to identify fact witnesses and experts, but I cannot think of one.

The decision is Grisham v. McLaughlin, No. M2004-01662-COA-R3-CV, filed on June 12, 2006. Read it here.

New Book on Patient Safety Standards

The Joint Commission has released the Fourth Edition of its book "Patient Safety Essentials for Health Care."

The blurb: "This book is the complete guide to the Joint Commission's safety standards for ambulatory care, behavioral health care, critical access hospital, home care, hospital, and long term care organizations. It includes the standards, rationales, elements of performance, and scoring information in one handy resource. This book also identifies the commonalities among the standards to help readers understand which standards apply to which settings."

Order it for $75.00 here.

Displinary History of Surgeon Not Admissible at Trial

The Nebraska Supreme Court has ruled that plaintiffs could not argue that a surgeon should have disclosed his displinary history unless there was proof that the standard of care required disclosure.

The Court held that plaintiffs "never established that the standard of care required such disclosures. Rather, they ask us to adopt a different standard of care for a narrow class of plaintiffs. Not only is their approach unprecedented, it contravenes the Legislature's adoption of the professional theory by supplanting, in a single narrow context, the Legislature's judgment."


The Court also held that the evidence was not admissible to impeach the defendant.

The case is Curran v. Buser, No. S-04-1303 (Neb, S. Ct. March 31, 2006). Read the opinion here.

More from Steven

Steven and I have been having a discussion - it started here. Here is his latest missive:

"My mistake, I did not mean to state that this particular lawyer(s) was sleazy, but that the trial bar in general is sleazy. I will admit that there must be some decent trial attorneys just as there are bad doctors, cops, judges, etc.

As for your comment about doctors and EtOH, drugs, etc., it is true that many docs have problems, but experts and studies have shown that the last thing in their life they let go is often their career. This is probably true for most professions as well. Plus, I would never call someone with a disease sleazy, that would be "shallow."

As for the specifics of the case, no one on this board knows them. I read in two different papers, two different diagnosis. However, both are extremely deadly and difficult to treat. I would be inclined to give the physicians the benefit of the doubt. I know it may be difficult for you to understand, but physicians try to save/help EVERYONE. When a physician fails they must live with that the rest of their life.
In addition, this was settled out of court. So we will never know if anyone was at fault or if they settled to avoid the bad PR from a trail.

Unfortunately, everyone dies at some point, so physicians are guaranteed to fail.

The fact is that most attorneys get a size-able chunk of change for representing these kinds of cases. They would not do it if there were no financial incentive.

Every surgeon I know has been sued, none have lost. Most of these cases are ridicules. Now would you argue that all of these surgeons are incompetent or deserved to be sued? The facts are simple, that malpractice awards have been surging at the same time rates have been going up. If you don't believe me check out the congressional budget office.

Finally, There is a legal jackpot system in this country, where physicians are forced to be judged by a non-medically trained jury with the fortune of hind-sight."

My response:

1. "My mistake, I did not mean to state that this particular lawyer(s) was sleazy, but that the trial bar in general is sleazy. I will admit that there must be some decent trial attorneys just as there are bad doctors, cops, judges, etc." Steven, I have got to hand it to you. After being called to task for your assine comment that a lawyer you don't know and can't even name is sleazy you apologize (very good manners) and then call 100,000+ lawyers in the trial bar sleazy. Very smooth, Steven - you are a real Dale Carnegie.

Seriously, I am somewhat surprised by your position. Given your writing style and the language used in your posts I assume that you are a physician. Someone with enough intellectual capacity to attend graduate school would ordinarily require some factual basis before making such a statement. You should know that making such statements reveal either (a) a deep prejudice that undermines whatever good arguments you are able to make in support of your position or (b) an intellectual shallowness that causes reasonable people to question every other statement you make. Really, Steven, if you want to debate these issues you can do better than that.

Oh, yes, it did not escape me that you reluctantly concede that there "must" be some trial lawyers that are "decent just as there are bad doctors...." Let me boil that down: Doctors good, trial lawyers bad. Exceptions to both rules. Your bias is palpable.

2. "I would be inclined to give the physicians the benefit of the doubt." No kidding. That is my point. You don't know the facts. You admit you don't even know the ultimate diagnosis. But you conclude in your earlier post that the lawsuit has no merit. One struggle I have with many doctors is their scientific training makes it challenging for them to accept assumptions. I understand this - when one is trained to have to rely on demonstrated facts before taking action it is often difficult to accept assumed facts as true. But you (and, in my experience, many of your colleagues in the health care industry) have no problem assuming that a malpractice case is "frivolous" without knowing anything about the facts.

You know what Steven? I give doctors the benefit of the doubt every day. I turn down at least 10 potential medical malpractice cases a week. Most of them involve significant injuries. But I look at the facts and determine that they have no merit or that potential merit is too questionable to justify bringing the claim. I never said that John Ritter's case had merit - I don't know the facts. I simply reported on the fact that a settlement was reported in the press.

3. "In addition, this was settled out of court. So we will never know if anyone was at fault or if they settled to avoid the bad PR from a trail." Or even a trial. True, we won't know why this case was settled. My point is that you offered an opinion on the merits without knowing the facts. Also, we have no idea whether "PR" played any role in settling the case. There would have not been bad PR if the case had been won - the case would have been used as "yet another example of greedy trial lawyers trying to play on the sympathy of a jury to extort money from a hard-working doctors, etc." Someone representing the hospital, the doctors, or all of them decided after consideration of all relevant factors to resolve the case in some fashion. I don't know anymore about the settlement than that, and neither do you.

4. "I know it may be difficult for you to understand, but physicians try to save/help EVERYONE." No, Steven, that is not difficult for me to understand because I don't believe physicians are bad people. I believe that the vast majority of physicians are good people. I believe that the vast majority of people are good people. I would expect that good people try their best to avoid injury and harm, and that if you happen to be a health care provider you try to save lives. Everyday.

What all too many health care providers fail to understand is that lawyers who do what I do don't dislike them - we simply want to help our clients hold them accountable when they make errors below the standard of care that cause harm. Trial lawyers believe in accountability. Do you have a problem with that, Steven? Do you think people should be accountable for what they do?


5. "Unfortunately, everyone dies at some point, so physicians are guaranteed to fail." What does this mean? Are you suggesting that every time someone dies that the public deems that a failure? Or that you do? Death does not necessarily represent a failure by health care providers, and you know it. And the public knows it. It sounds to me like you are making a woe-is-me argument, and it is beneath you.

And don't suggest that everytime someone dies people (including lawyers) think that malpractice occurred. That is ridiculous.

6. "The fact is that most attorneys get a size-able chunk of change for representing these kinds of cases. They would not do it if there were no financial incentive." Let me let you in on a secret, Steven. Most people get paid for their labor. My guess is that you do. Are you suggesting that there is something wrong with getting paid for professional services?

Lawyers who represent patients get paid for what they do - if they win. I am proud that our profession has a contingent fee system in place that will allow people access to the courthouse without paying money out-of-pocket to fund the litigation. I have offered every personal injury client I have had for over two decades the option of paying by the hour - and only two families have elected to do so. Even most of the wealthy people I have represented prefer a contingent fee. My clients make an informed choice and, if they choose a contingent fee, I accept the risk of working and not getting paid for my effort.

7. "Every surgeon I know has been sued, none have lost. Most of these cases are ridicules. Now would you argue that all of these surgeons are incompetent or deserved to be sued?" I don't know that any of them deserved to be sued - I don't know the facts of any of the cases and cannot comment. I certainly don't believe that all of them are incompetent - we have a fundamental disagreement here. You believe that if someone is sued it is an allegation that he or she is incompetent. It is not. The person may be incompetent, but I have sued only one doctor in 25 years who I thought was truly incompetent. The other health care providers I have sued over 25 years were not incompetent - they made errors that cost people their lives or caused them a serious injury. I think they should be held responsible for the harm they cause. Don't you?

I think some - perhaps more than some - health care providers think that they should not be sued when they violate their own standard of care because health care providers deserve special treatment because of all the good they ordinarily do. I disagree - I don't think anyone deserves special treatment. Do you think you deserve special treatment, Steven? What about a truck driver that crosses the center line and kills a carload of people? Does he or she deserve special treatment? What if he or she has driven 2,000,000 miles without a fender bender or a speeding ticket? Should he or she get a break when they wipe out a family? What if they deliver medical supplies? Or food? Should they get a break for that? I don't think so.

8. "If you don't believe me check out the congressional budget office." OK. Here are some quotes from the report you mention:

"Several studies have found that various types of restrictions on malpractice liability can indeed reduce total awards and thereby lead to lower premiums for malpractice insurance. By themselves, however, such changes do not affect economic efficiency: they modify the distribution of gains and losses to individuals and groups but do not create benefits or costs for society as a whole. The evidence for indirect effects on efficiency--through changes in defensive medicine, the availability of medical care, or the extent of malpractice--is at best ambiguous."

Do you agree with this language from the CBO report? Or how about this language?

"Malpractice costs amounted to an estimated $24 billion in 2002, but that figure represents less than 2 percent of overall health care spending.(12) Thus, even a reduction of 25 percent to 30 percent in malpractice costs would lower health care costs by only about 0.4 percent to 0.5 percent, and the likely effect on health insurance premiums would be comparably small."

What about this on so-called "defensive medicine"? Here is what the report you cite says about that: "[W]hen CBO applied the methods used in the study of Medicare patients hospitalized for two types of heart disease to a broader set of ailments, it found no evidence that restrictions on tort liability reduce medical spending. Moreover, using a different set of data, CBO found no statistically significant difference in per capita health care spending between states with and without limits on malpractice torts."

Access to health care? The report you cite says this: "GAO investigated the situations in five states with reported access problems and found mixed evidence. On the one hand, GAO confirmed instances of reduced access to emergency surgery and newborn delivery, albeit "in scattered, often rural, areas where providers identified other long-standing factors that affect the availability of services." On the other hand, it found that many reported reductions in supply by health care providers could not be substantiated or "did not widely affect access to health care."

Since you cite the report, I am sure you agree with this: "Second, evidence suggests that very few medical injuries ever become the subject of a tort claim. The 1984 New York study estimated that 27,179 cases of medical negligence occurred in hospitals throughout the state that year, but only 415--or 1.5 percent--led to claims." A real crisis in the number of malpractice cases, isn't there Steven? Face the facts: most mistakes are buried, and the families have no idea what happened to their loved ones.

And, finally, the bottom line of the report you cite: "[T]he evidence available to date does not make a strong case that restricting malpractice liability would have a significant effect, either positive or negative, on economic efficiency."

9. "Finally, There is a legal jackpot system in this country, where physicians are forced to be judged by a non-medically trained jury with the fortune of hind-sight."

Well, it is good to know that you read your mail from the Chamber of Commerce. "Non-medically trained jury?" They become trained enough through the trial to figure out how to determine the standard of care. How use do you explain the cases where the health care industry wins? Are those just flukes by a "non-medically trained" jury? Are you advocating special courts for health care providers? Those proposals always amaze me - as if a subset of our society is entitled to special treatment in our judicial system because "what we do is just too complicated for the mere mortals to understand." Give me a break. The arrogance just drips off of statements like that. Doctors don't deserve a special judicial system, and neither do trucks drivers or bricklayers.

And by the way, Steven - I don't ask for juries in medical malpractice cases because I think the billions of the dollars the healthcare industry has spent attacking the civil justice system (rather than preventing malpractice) has so contaminated the jury pool that my clients have difficulty getting a fair shake in front of a jury. But I still get a jury - because the defendant health care provider demands one. The hypocrisy is deafening - defendants demand juries, praise them when they decide a case for a defendant and damn they when lose.

Keep the comments coming, Steven. Every single one of them helps the readers understand that your position is based on pure emotion, bias and prejudice, firmly rooted in the belief that health care providers deserve special treatment in our civil justice system.

Amounts of Settlement Not Discoverable

The Arizona Court of Appeals has ruled that the amounts of settlements made by doctor in other cases are not discoverable in another medical malpractice action against him.

The case is Miller v. Kelly; it is reported at 130 P.3d 982 (Ariz. App. 2006).

The Court held that "the amount paid in settlement of a claim establishes neither negligence nor gross negligence" and that the information is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. The Court noted that "[p]ermitting disclosure of amounts paid in settlement of a lawsuit contrary to an express provision ensuring the confidentiality of that information likely would discourage parties from settling. And disclosure of that information poses the risk that conclusions will be drawn about the paying party's culpability and the degree of culpability based on the fact that payment was made and the amount."

The Court mentioned that the trial judge has not "precluded [plaintiffs] from impeaching [the defendant] with evidence about the circumstances that gave rise to the other lawsuits. Nor would [plaintiffs] be precluded from using the prior incidents affirmatively to support her claim for punitive damages."

Wrong Site Surgeries

Go to the Tennessee Medical Malpractice Law Blog for a post on wrong site surgeries.

Lawyer and Insurer May Be Sued For Pressuring Opposing Witness Into Not Testifying

Teresa Sigmon, attorney for the defendant in a medical malpractice case, allegedly pressured one of the plaintiff's consulting experts in the case into withdrawing from an agreement to testify for the plaintiff. The plaintiff then sued her, her law firm, and the the medical malpractice insurer for "abuse of process, intentional interference with a business relationship, inducement/procurement of a breach of contract, and coercion of a witness." (The defendant doctor was also sued originally; that claim was dropped.)

The Sixth Circuit Court of Appeals remanded all of the claims against the lawyer and her law firm for trial except the abuse of process claim.

The Court found the existence of a business relationship between the consultant and the plaintiff and found that a claim existed under both the interference and inducement theories.

The abuse of process claim was dismissed because the alleged conduct of the lawyer did not involve the use of "process" as that term is defined in Tennessee.

The lawyer's claim of absolute and qualified immunity was rejected as being raised too late,

The medical malpractice insurer, SVMIC, was dismissed from the case because the Court determined that the company could not be held vicariously liable for the acts of the lawyer absent "actual control," which it found lacking.

The case is Matthews v. Storgion; the appeal numbers of the consolidated cases are Nos. 05-5219; 05-5220 (6th Cir. April 17, 2006).

Pharmacist Liability

A retail pharmacy appealed an adverse jury verdict for breach of express warranty based on a package insert that it generated and provided with a prescription (doxycycline), directing the plaintiff to "take with food or milk if upset stomach occurs." The plaintiff, Ms. Levy-Gray, who was taking the drug because she was diagnosed with Lyme disease, alleged 'that her consumption of milk and other various dairy products while taking the doxycycline, consistent with the information provided by Rite Aid, reduced the absorption of the drug and prevented it from operating as effectively as possible, thereby proximately causing her post- Lyme syndrome."

The Maryland Court of Appeals held that pharmaceuticals may be the subject of an express warranty under the Uniform Commercial Code. The Court also determined that the directions supplied for use of the drug constituted an affirmation of fact regarding the prescription drug and that the timing of the affirmation did not preclude it from being considered an express warranty. The Court of Appeals then affirmed the jury verdict, concluding that the jury reasonably could have inferred that the plaintiff relied on the pharmacist's written instructions for taking the drug.

The Court rejected Rite-Aid's argument that the "learned intermediary" doctrine should bar recovery.

The case is Rite Aid Corporation v. Ellen R. Levy-Gray, No. 61, September Term, 2005, Maryland Court of Appeals. You can read the full opinion here.

Deaths from Medical Malpractice

It is getting worse. A study of patients in our Medicare population has found an alarming number of incidents and deaths.

The study looked discharge records of Medicare patients and used 16 of "20 indicators for potentially preventable patient safety incidents that could be readily identified in hospital discharge data. This tool set of 20 evidence-based PSIs was created and released to the public in 2003 to be used by various healthcare stakeholders to assess and improve patient safety in U.S. hospitals."

They found:

- Approximately 1.24 million total patient safety incidents occurred in almost 40 million hospitalizations in the Medicare population. These incidents were associated with $9.3 billion of excess cost during 2002 through 2004. For the second year in a row, patient safety incidents have increased-up from 1.14 and 1.18 million reported in HealthGrades' First and Second Annual Patient Safety in American Hospitals studies, respectively.
- Of the 304,702 deaths that occurred among patients who developed one or more patient safety incidents, 250,246 were potentially preventable.
- Medicare beneficiaries that developed one or more patient safety incidents had a one-in-four chance of dying during the hospitalization during the period covered, 2002-2004.

Tennessee ranked 48th for patient safety in the nation.

For example, the organziation determined that Tennessee's rate of post-operative sepsis was almost 20 incidents per 1000 procedures, 20% higher than expected and almost four times that of Minnesota.
Also, he Tennessee death rate in Low Mortality DRGs was 24.5% higher than expected.

The report is by Health Grades; read it here.

Note: this study just looked at Medicare patient deaths. The Medicare population includes less than 20% of all Americans.

The following people are eligible for Medicare:

-Persons 65 or older who are U.S. citizens or have been legal residents for 5 years AND who have worked for at least 40 calendar quarters (10 years) or are the spouse of someone who has worked for 40 calendar quarters.
-Persons 65 or older who are U.S. citizens or have been legal residents for 5 years and who have not worked for 40 calendar quarters may be able to buy Medicare coverage.
-Persons under 65 who have been entitled to a monthly Social Security Disability Insurance benefit or Railroad Retirement Disability benefit for 24 months, either on their own work record, or on that of a parent or a deceased spouse In order to qualify for disability benefits of any kind, the individual must have worked a minimum number of calendar quarters. The required number varies depending on the individual's age at the onset of disability.
-Persons under 65 who have been diagnosed with Amyotrophic Lateral Sclerosis (ALS) and are entitled to monthly Disability Insurance benefits from Social Security or the Railroad Retirement Board. Such individuals are entitled to Medicare the first month that they receive the Disability Insurance benefit.
-Persons of any age who have end stage renal disease (ESRD) and are in need of dialysis or a kidney transplant. Such persons must qualify for monthly benefits from Social Security or the Railroad Retirement Board through their own work record or that of a parent or spouse.

(Quoted from this site.)

Deaths from Medical Malpractice

It is getting worse. A study of patients in our Medicare population has found an alarming number of incidents and deaths.

The study looked discharge records of Medicare patients and used 16 of "20 indicators for potentially preventable patient safety incidents that could be readily identified in hospital discharge data. This tool set of 20 evidence-based PSIs was created and released to the public in 2003 to be used by various healthcare stakeholders to assess and improve patient safety in U.S. hospitals."

They found:

- Approximately 1.24 million total patient safety incidents occurred in almost 40 million hospitalizations in the Medicare population. These incidents were associated with $9.3 billion of excess cost during 2002 through 2004. For the second year in a row, patient safety incidents have increased-up from 1.14 and 1.18 million reported in HealthGrades' First and Second Annual Patient Safety in American Hospitals studies, respectively.
- Of the 304,702 deaths that occurred among patients who developed one or more patient safety incidents, 250,246 were potentially preventable.
- Medicare beneficiaries that developed one or more patient safety incidents had a one-in-four chance of dying during the hospitalization during the period covered, 2002-2004.

Tennessee ranked 48th for patient safety in the nation.

For example, the organziation determined that Tennessee's rate of post-operative sepsis was almost 20 incidents per 1000 procedures, 20% higher than expected and almost four times that of Minnesota. Also, the Tennessee death rate in Low Mortality DRGs was 24.5% higher than expected.

The report is by Health Grades; read it here.

Note: this study just looked at Medicare patient deaths. The Medicare population includes less than 20% of all Americans.

The following people are eligible for Medicare:

-Persons 65 or older who are U.S. citizens or have been legal residents for 5 years AND who have worked for at least 40 calendar quarters (10 years) or are the spouse of someone who has worked for 40 calendar quarters.
-Persons 65 or older who are U.S. citizens or have been legal residents for 5 years and who have not worked for 40 calendar quarters may be able to buy Medicare coverage.
-Persons under 65 who have been entitled to a monthly Social Security Disability Insurance benefit or Railroad Retirement Disability benefit for 24 months, either on their own work record, or on that of a parent or a deceased spouse In order to qualify for disability benefits of any kind, the individual must have worked a minimum number of calendar quarters. The required number varies depending on the individual's age at the onset of disability.
-Persons under 65 who have been diagnosed with Amyotrophic Lateral Sclerosis (ALS) and are entitled to monthly Disability Insurance benefits from Social Security or the Railroad Retirement Board. Such individuals are entitled to Medicare the first month that they receive the Disability Insurance benefit.
-Persons of any age who have end stage renal disease (ESRD) and are in need of dialysis or a kidney transplant. Such persons must qualify for monthly benefits from Social Security or the Railroad Retirement Board through their own work record or that of a parent or spouse.

(Quoted from this site.)

Cost of Infections

The Washington Post tells us that hospital-acquired infections cost more than $600M per year - and that is just in Pennsylvania!

An excerpt from the article: "Doctors, nurses and patients' relatives have long known the risks of contracting an infection while in a hospital. But there has been little quantifiable data available on the cost of those infections, from a financial or a medical perspective. The average hospital payment for a Pennsylvania patient who did not have an infection was $8,078, compared with $60,678 for patients who did, according to the report by the Pennsylvania Health Care Cost Containment Council."

Wouldn't it be nice if doctors and hospitals spent their time and money trying to prevent infections rather than trying to reduce their financial responsibility for negligence? The cost of malpractice insurance in a drop in the bucket compared to the cost of hospital-acquired infections.

John Ritter's Family Settles Med Mal Lawsuit