Day on Torts

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)

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 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.

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.

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.

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."  

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.

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.

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 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.

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

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,

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.

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.

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.

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.

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.

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."

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.

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? "

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.

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.

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.

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."

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."

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.

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.

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.

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.

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.

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. 

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.

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 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.

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.

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.

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.

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).

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.  

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.

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.

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.

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.

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.

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?

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.

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. § 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. § 29-26-115(a)(1) to the scant evidence in this case, it is clear that [Plaintiff's expert] Dr. Kenned