Day On Torts : Tennessee Injury Lawyer & Attorney : John Day : Personal Injury, Accidents : Serving Memphis, Nashville, Knoxville

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.

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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.

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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.

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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.

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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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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.

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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.

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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.

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 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.

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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.

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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.

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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.

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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.

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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.

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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>

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.  

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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.

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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.

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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.

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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.

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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.

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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.

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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.   

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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.

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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).

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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.

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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.

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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. 

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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.

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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 here,  here 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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

 

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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.
 

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

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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. 

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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.

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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.

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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.]
 

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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.

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From the March 30, 2009 edition of Courtoons.

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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.

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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:

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).

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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).
 

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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.

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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. 

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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.

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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.

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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. 

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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 Ricketts.  Both 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.

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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. 

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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.

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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.

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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)

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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.

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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.

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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.

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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.

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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."  

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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.

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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.

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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.

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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.

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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

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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,

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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.

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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.

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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.

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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.

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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.

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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."

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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.

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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? "

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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.

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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.

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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.

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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."

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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."

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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.

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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.

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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.

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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.

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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. 

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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.

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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.

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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.

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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.

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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.

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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).

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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.  

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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.

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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.

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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.

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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.

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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.

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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?

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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.

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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."

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Go to the Tennessee Medical Malpractice Law Blog for a post on wrong site surgeries.

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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).

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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.

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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.)

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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.)

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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.

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John Ritter died of an aortic aneurysm in 2003. His family filed a medical malpractice lawsuit against various health care providers. It now appears that the case has been settled.

I met John Ritter in New York 5 or 6 years ago. I went to a play and at the end the cast came back onto the stage and auctioned off a prop to raise money for an AIDS group. I "won" the auction and got to go backstage, meet the cast (including Henry Winkler), get photos, etc. It was a good deal of fun.

The reason for that little story is this: John Ritter could not have been more gracious. He spent part of his life in Nashville (his dad was country music legend Tex Ritter), and actually lived in a beautiful house about 4 miles away from my house. We talked about Nashville and he told me what wonderful memories he had of my adoptive home. I could tell that he was a kind, compassionate man.

I tell you that to say this: John Ritter was no different than most of the other 98,000 people who die as a result of medical negligence each year in this country, most of whom never see a lawyer much less win a case by settlement or verdict. His fame brought his death to the front pages and perhaps even helped bring his case to a settlement, but - like all us - he had to rely on the competence and attentiveness of the health care industry at a critical state in his life. That industry failed him, not intentionally, probably not even recklessly. That industry, which does so much good for so many every day, must be held accountable when it makes errors that harm or result in death. It is does not deserve special treatment because of the good it does, anymore than does the trucking industry (which brings us food, medicine, clothes and so much more every day of our lives) deserves special treatment when it does harm.

I applaud John Ritter's family for having the courage to speak out about his death and for going through the trauma of this litigation. May they now truly begin to heal.

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This op-ed piece from today's New York Times is so good it needs to be repeated in full in this blog.

The Doctor Will See You for Exactly Seven Minutes
By PETER SALGO

WHEN politicians speak of America's health care needs, they often miss an important point: the doctor-patient relationship has become frayed. Patients aren't unhappy just because health care costs too much (though they would certainly like it to be more affordable). Rather, people sense a malaise within the system that has eroded the respect they feel patients deserve.

There has been a shift in attitude within the profession. I see examples of it every day. I was making rounds in my intensive care unit recently when one of the interns presented a case. "This is the first admission for this 55-year-old male," he said.

"Stop," I said. "He is a man."

"That's what I said," the intern replied.

"Not exactly," I answered. Clearly, the intern didn't get it. Neither do a lot of other health care professionals anymore.

The problem has been sneaking up on us for almost two decades. As health-care dollars became scarce in the 1980's and 90's, hospitals asked their business people to attend clinical meetings. The object was to see what doctors were doing that cost a lot of money, then to try and do things more efficiently. Almost immediately, I noticed that business jargon was becoming commonplace. "Patients" began to disappear. They were replaced by "consumers." They eventually became "customers."

This may seem a trivial matter, but it is not. You treat "patients" as if they were members of your family. You talk to them. You comfort them. You take time to explain to them what the future may hold in store. Sometimes, that future will be bleak. But you assure them you will be there to help them face it.

You treat "customers" quite differently. Customers are in your place of business to purchase health care. You complete the transaction such a relationship suggests: health care for money. And then they aren't your customers any more. Taken a step further, you can make the case that the less time you spend with your customers, the better your bottom line will be. This gets everyone's attention.

"Length of stay" became a buzz phrase in hospitals in the 1990's. So did "throughput," an awful neologism for the number of patients per hospital bed per week. One of my colleagues joked that a hospital stay was a lot like a taxi ride. The institution collected a big fee when a patient got admitted, just as a cab driver saw most of his fare when he first turned the meter on.

The additional money collected over time wasn't nearly as impressive as that initial charge. The economics of the situation favored short trips, or lengths of stay, and lots of new riders, or throughput. The arithmetic worked, but I didn't notice a lot of people laughing.

Doctors in hospitals all over the country began hearing the same business language and facing the same pressures to "keep things moving." I used to be asked how well my patients were doing. Suddenly administrators were asking how long I was planning on keeping sick people in the intensive care unit. Each day a patient spent in my unit was a day some other paying patient would have to wait for a bed. Eventually, I was warned, some of those patients "in orbit" would go elsewhere, and we would not only "lose their business," but we risked losing future referrals from other centers.

It wasn't just hospitalized patients who were taking up space other "customers" could use. Outpatients "consumed" health care "resources," too. Publicly traded H.M.O.'s, for example, began restricting doctors to an average seven-minute "encounter" with each customer. This apparently kept shareholders happy. But it reduced the doctor-patient relationship to a financial concept in a business school term paper.

Doctors know you cannot provide compassion in seven-minute aliquots. But we have felt powerless to change things. The medical establishment has, many of us feel, simply rolled over and gone along to get along. It has sacrificed patients' best interests on the altar of financial return.

This leaves the solution to the problem in the hands of our patients. You, the patient, are the system's best hope. In the age of seven-minute health care, you need to realize that you employ doctors. That is, your doctor works for you. Although doctors shouldn't think of patients as customers, you can, and should, adopt a business mind-set when shopping for health care.

Evaluate what it is you expect from your doctor, then ask for it. If you are unhappy with your doctor, fire him. If you cannot get more than a seven-minute face-to-face encounter with your doctor, he needs fewer patients. The true power in the health care economy rests not with the doctors and certainly not with the backroom business staff. It rests with you. If you insist on being treated with care and respect, you will be. And the system will improve as a result.

A pediatrician I know put it quite succinctly. "There are a lot of doctors in town," she said. "There's no need to settle for one that doesn't treat you well."

In one respect the business people are right. Restoring the doctor-patient relationship will not save anyone any money. But I submit that it doesn't have to. There are other ways to curtail health care costs. Some involve high technology; others do not. None of them requires patients to sacrifice their self-respect.

We can and must reduce health care expenses. But we cannot do it at the expense of patients' well-being. The doctor-patient relationship is critical to the integrity of the health care system. It is not disposable. Turning doctors into shopkeepers who regard patients as customers is unacceptable.

How will the M.B.A.'s and the politicians respond to what can only be termed a "patient-driven revolution"? They will have to cope. I suspect doctors will be thrilled.

Peter Salgo, a professor at the Columbia University College of Physicians and Surgeons, is an internist and anesthesiologist, as well as the host of the PBS series "Second Opinion."

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The locality rule in medical malpractice cases is absolutely ridiculous. It is designed to create an artifical barrier to recovery, to protect doctors and hospitals, particularly those in rural areas, from malpractice suits. It pretends that there is a difference in the standard of care given the size of the community, as if people from smaller towns are entitled to less quality of care than those of bigger towns.

(Don't get me wrong - there are some services that hospitals in rural towns that are not and should not be provided and there are some doctors in rural areas who lack the practical experience of taking care of some types of patients. The patients who need this help need to referred to a place where such help is routinely given.)

Well, a doctor and his group in Clarksville just got bit by their own dog. A medical malpractice verdict for the plaintiff was reversed because the Court of Appeals found that the defendents' experts did not meet the qualifications of the locality rule.

More importantly, read this written by Judge Cain:

"The legislatively mandated 'similar locality rule' has long since outlived its usefulness. It developed as an improvement over the "strict locality rule" which was grounded in the manifest inequality existing in remote history between physicians practicing in large urban centers and those practicing in remote rural areas. Rapid advances in medical education, means of communication, and both invasive and diagnostic technology have rendered the 'similar locality rule' of today as obsolete as the 'strict locality rule,' which it legislatively supplanted in 1975. Totty, 121 S.W.3d 676.

There is no basis in logic or reason why the testimony of both Dr. Aaron and Dr. DeMaria is not admissible into evidence in this case. We are, however, powerless to do anything other than to engage in the tedious exercise of hair-splitting manifested both in this case and in the recent case of Travis v. Ferraraccio et al., 2005 WL 2277589, No. M2003-00916-COA-R3-CV (Tenn.Ct.App. Sept. 19, 2005). We can only once again follow the lead of the Supreme Court of Tennessee in Robinson, 83 S.W.3d at 723-24, and implore the Legislature to relegate the 'similar locality rule' to the 'ash heap' of history. Street v. Calvert, 541 S.W.2d 576, 583 (Tenn. 1976)."

(By the way, the reference to the "ash heap of history" by Judge Cain is a reference to language written by his former law partner, the late Chief Justice Joe Henry.)

Judge Cottrell and Judge Clement joined in this opinion.

I confess I hate to see a trial judge reversed and defendants lose a case because of the strict application of this assine rule. The system will now have to bear the expense of another trial. The doctor and his family will go through the trauma of another trial - always a difficult experience. The plaintiff will also have to through the trauma of another trial. Each side will go to tremendous expense in the process. And for what reason? To jump over an artifical hurdle.

Will the Legislature change the law? It will be a difficult task to convince them to do so. Doctors are fighting for more protection from responsibility from their negligence, not less. Perhaps the only way to get them to urge abandonment of this ridiculous rule is to have the courts equally apply the rule to both sides.

And perhaps that is exactly what the Court of Appeals was thinking.

Read the entire opinion in Carpenter v. Klepper here.

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Back in 1975 the Tennessee Legislature determined that the only health care providers who could testify against a Tennessee health care provider in a malpractice case where experts from contigious states. This is an assine rule - but it is still the law.

You can avoid the contigious state rule with permission of the trial judge. This opinion in Steele v. Berkman reminds us that we have to have some proof of the efforts made find an expert from a contigious state so that the court can determine that a waiver of the rule is appropriate.

The waiver has been applied in Childress v. Bennett, 816 S.W.2d 314, 316 (Tenn.1991) and Steele v. Ft. Sanders Anesthesia Group, 897 S.W. 2d 270, 281 (Tenn.Ct.App. 1994). It was denied in Rose v. HCA Health Services of Tennessee, 947 S.W. 2d
144, 148 (Tenn.Ct.App.1996).

Note: this is a Tennessee Court of Appeals Rule 10 appeal. Rule 10 says this: "The Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify the actions of the trial court by memorandum opinion when a formal opinion would have no precedential value. When a case is decided by memorandum opinion, it shall be designated "MEMORANDUM OPINION," shall not be published, and shall not be cited or relied on for any reason in any unrelated case." Nothwithstanding its lack of precedential value, it is worthy of being cited in this blog if only to remind us that the rule exists.

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The Tennessee Peer Review Law of 1967 was "was passed with the stated intent of encouraging 'committees made up of Tennessee's licensed physicians to candidly, conscientiously, and objectively evaluate and review their peers' professional conduct, competence, and ability to practice medicine.' The statute further 'recognizes that confidentiality is essential both to effective functioning of these peer review committees and to continued improvement in the care and treatment of patients.' Tenn. Code Ann. ㋔ 63-6-219(b)(1). To this end, the statute creates a privilege for certain documents, etc., which are generated or provided during the peer review process."

Dr. Moore was summarily suspended from his staff privileges in a Chattanooga hospital and sought information from his creditionals file. The hospital refused to provide it, citing the Peer Review Law. The case went to the Eastern Section of our Court of Appeals and the appellate court remanded to case to the trial judge for further action in consideration of the opinion.

Specifically, the appellate court found even though the creditionals file was covered under the Peer Review Law the wording of the statute itself said that "[n]othing contained in this subsection (e) applies to records made in the regular course of business by a hospital or other provider of health care and information, documents or records otherwise available from original sources are not to be construed as immune from discovery or use in any civil proceedings merely because they were presented during proceedings of such committee."

Thus, on remand, the trial judge was "instructed to determine which, if any, of the documents sought by Plaintiff were generated in the Hospital Authority's 'regular course of business,' keeping in mind that phrase does not include the peer review process itself. The Trial Court also shall determine which part, if any, of Dr. Monroe's credentialing information sought by Plaintiff is 'otherwise available from original sources' and order the Hospital Authority to divulge that information."

Read the entire opinion here.

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The Ohio Supreme Court has released a decision in a wrongful birth case. Read about it our medical malpractice blog.

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The Supreme Court of Mississippi has granted summary judgment in favor of a physician when the plaintiff failed to timely respond to discovery seeking information about plaintiff's expert witnesses and did not timely file an expert affidavit opposing the summary judgment motion.

Plaintiff maintained that she was entitled to more time to get an affidavit from an expert.

From the opinion: "In his final judgment, the trial judge denied Stallworth's request for a continuance and granted the Doctors' summary judgment motion based on Stallworth's failure to substantiate the claims of medical negligence. The trial judge based his decision on the fact that in June of 2004, the Doctors served Stallworth with interrogatories to identify a medical expert, and Stallworth never filed sworn answers to those interrogatories. Instead, Stallworth served unsigned and unsworn interrogatory answers by facsimile and mail subsequent to the filings on summary judgment. The trial judge also based his decision on the fact that Stallworth acquired records of her condition and had notice of a possible claim as early as March of 2002, and retained counsel in April of 2002. The trial court also stated Stallworth's attorney's affidavit filed on October 22, 2004, was not compliant with the rules requesting the supplementation of the answers to the interrogatories and did not excuse Stallworth from having an expert to support her claim. Based on these facts, we cannot say the trial judge abused his discretion when he denied Stallworth's request for an additional thirty days to obtain a medical expert's affidavit. Rule 56(f) is not designed to protect litigants who are lazy or dilatory. We find Stallworth had ample time to locate a medical expert to assist with her claim. Therefore, we find the trial court's grant of summary judgment to the Doctors was proper." [Citations omitted.]

The case is Stallworth v. Sanford; read the opinion here.

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The Indiana Supreme Court denied a challenge to the constitutionality of a statute of limitations for minors. The statute required that a suit be filed within two years of the date of injury or by the injured minor's eighth birthday if injured in the first six years of life.

The statute was challenged under this provision of the Indiana Constitution: "The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens."

The case is Ledbetter v. Hunter. Westlaw subscribers can see it at 2006 WL 401204. The opinion was released on February 22nd.

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Can a defendant doctor testify about what he was told by a consulting doctor? No, according to the Rhode Island Supreme Court.

The court held that the statement of the consultant (who received his information about the patient over the telephone from the defendant) was hearsay and that it did not meet the requirements of the 803(4) exception because it did not have "circumstantial guarntees of trustworthiness." The court explained it this way: "We believe there to be a fundamental difference between statements describing a patient's condition, symptoms, or history made for the purpose of fostering treatment, and statements made by a consulting physician with no personal knowledge of the patient's condition or history. Although made for the purposes of medical diagnosis and treatment, such latter statements lack the guarantees of trustworthiness inherent in the former."

Read the entire opinion here.

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Here is the text of the Governor's State of the State Address.

You will note that the Governor did not call for restrictions on the right of patients to hold doctors and hospitals responsible for their negligence. This is a good sign. You can be assured that this was not missed by the doctors, hospitals and their insurers, and these special interest groups will be putting significant pressure on the Governor to get behind their efforts. And note that the Governor did say that he would be speaking with the Legislature "in a few weeks" about health care issues.

More specifically, he said this:

"But when we are number three in the country in obesity, as we are, and when we have the diabetes and heart disease statistics to go with being number three in obesity, there's something needed beyond insurance. That something is personal responsibility-there's no pill to make someone push their plate back or take a walk. We have had for a decade the most comprehensive health care program in the nation, and whatever the merits of TennCare -- and there have been many -- it has not succeeded in moving those public health indicators one notch. An insurance policy hasn't worked, but a policy of responsibility can.

When I speak to you about health care in a few weeks, I am going to propose that we commit ourselves in a major way to combating obesity and the accompanying explosion of diabetes in our state. With diabetes, like so many chronic diseases, a patient's lifestyle is in large part his treatment. Our state can't solve this patient's problems by taking responsibility for him; we can only help him take responsibility for himself."

The same concept of responsibility goes for doctors and hospitals. We, the people of the State of Tennessee, are not in the position of preventing errors that injure and kill patients. We can encourage doctors and hospitals to prevent errors (and have, through the Peer Review Privilege, for example) but at the end of the day doctors and hospitals need to be accountable for their errors just like a diabetic needs to follow doctor's orders in an effort to minimize the effects of this terrible disease on his or her life.

The Governor can help the health care industry prevent errors by forcing disclosure of those errors to regulators, therefore increasing public pressure on providers to have a good report card. The Governor can help the health care industry avoid excessive insurance costs by requiring insurers to justify their rate hikes. The Governor can help the health care providers by requiring the compilation and publication of data about the claims experiences of hospitals so that the Legislature and public can make informed decisions about the presence (or absence) of a problem.

But at the end of the day the industry - and the diabetic - have to be accountable for what they do. For the diabetic, the failure to act is can result in blindness, amputations, heart disease, even death. For the industry, accountablilty means the payment of compensatory damages for harm caused, determined by a jury, with appropriate supervision by a trial judge.

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I did not watch the State of The Union Address last night but I read the speech that he was supposed to have delivered.

It was to contain this line: "And because lawsuits are driving many good doctors out of practice - leaving women in nearly 1,500 American counties without a single OB-GYN - I ask the Congress to pass medical liability reform this year."

How can anyone with a lick of sense suggest that OB-GYNs do not practice in rural American because of medical negligence lawsuits? Doctors practice medicine where there are patients and where there are hospitals. Hospitals need enough patients to establish and maintain a maternity ward. America does not need and cannot afford a hospital in every county with a maternity ward (which must be staffed 24/7).

Indeed, anyone willing to engage in an intelligent debate of these issues would recognize that the safest place (from the standpoint of litigation) for a doctor to practice medicine is in a rural community where his or her conduct will be judged by people he or she knows. The problem, however, is that there are not enough patients in many counties to make a specialty practice viable for the doctor or make it feasible for a hospital to staff a maternity ward.

Economic reality (something which this President has had difficulty accepting on many fronts) means that some people are going to have to travel to get health care. Just like they have to travel to go to a store other than Dollar General or Fred's. Just like they have to travel to see a movie or purchase a new car. Just like they have to travel to buy eyeglasses. And while no one would deny that prompt and safe health care is not more important than seeing a movie or buying the latest electronic equipment, there is simply no support for the argument that restricting the right of patients to sue careless doctors and hospitals will in any way cause doctors to set up shop in Burning Stump, Tennessee. Summary judgment on causation.

I look forward to the debate on legitimate factors concerning the potential reform of medical negligence laws. This is not one, but the fact that the President included it in his State of the Union Address suggests to me that his handlers think (a)that it the best argument they have; (b) legislators and the public are ignorant; or (c) both.

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We all know that that a person who suffers from an "unsound mind" gets the benefit of a tolling of the statute of limitations under T.C.A. Section 28-1-106, which states that "[i]f the person entitled to commence an action is, at the time the cause of action accrued, either within the age of eighteen (18) years, or of unsound mind, such person, or such person's representatives and privies, as the case may be, may commence the action, after the removal of such disability, within the time of limitation for the particular cause of action, unless it exceeds three (3) years, and in that case within three (3) years from the removal of such disability."

But what if the injured party, prior to becoming of "unsound mind," granted a durable power of attorney that gave an attorney-in-fact the duty "act in my name, place and stead in any way which I myself could do, if I were personally present, with respect to ... claims and litigation...?" Does the presence of that durable power of attorney trump the "unsound mind" statute, mandating the statute of limitations begin to run as if the plaintiff were not of unsound mind?

I have worried about this issue for years. We how have an answer from the Eastern Section of our Court of Appeals hearing a case arising out of the Middle Section. The plaintiff in the case held a durable power of attorney from his father. The father was a resident in the defendant's nursing home and became of "unsound mind." According to the opinion, "[t]he plaintiff frequently visited the deceased during the latter's stay at the defendant's facility. The plaintiff would later testify that, at the time of his visits, he observed problems in the defendant's care and treatment of his father, which he believed were harmful to him." More than a year after the father was transferred from the defendant's nursing home but within one year of the father's death {when the disability was "removed," according to the plaintiff) the attorney-in-fact filed a malpractice suit against the nursing home. Defendant sought summary judgment of the statute of limitations issue, arguing that plaintiff had the power and duty to act on behalf of his father and did not do so in a timely fashion. Plaintiff argued that the cause of action was tolled by operation of Section 28-1-106.

In Sullivan v. Chattanooga Medical Investors, LLP, Judge Susano, writing for the Court, first noted the words of Section 28-1-106: "If the person entitled to commence an action is, at the time the cause of action accrued, . . . of unsound mind, such person, or such person's representatives and privies, as the case may be, may commence the action, after the removal of such disability, within the time of limitation for the particular cause of action, ...." {Emphasis added by the Court.]

He went on to write as follows: "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, ㋔ 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 ㋔ 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."

The Court rejected the other arguments raised by the Defendant as well. The dismissal of the case was reversed and it was sent back to the Circuit Court for Hickman County for trial.

Until this issue is ultimately determined by the Tennessee Supreme Court this is the only opinion lawyers really have to work with on this issue. It is a well-written, well-reasoned opinion and I would like to think that it is one which will be adopted by the Tennessee Supreme Court. Nevertheless, given the fact that the expiration of a statute of limitations is the civil equivalent of the death penalty, lawyers would be advised to work under the assumption that a specific durable power of attorney such as the one in this case places a burden on the attorney-in-fact to file suit within one year of discovery of a personal injury claim arising in favor of the grantor of the power of attorney.

In the event that the Tennessee Supreme Court elects not to hear this case I urge the Court to direct that this opinion be published. Lawyers need to be able to rely on a published opinion to answer the important questions discussed in this opinion.

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The Michigan Court of Appeals has ruled that "[a]s a matter of law ... a physician's raw success rates do not constitute risk information reasonably related to a patient's medical procedure."

There apparently was no (or little) evidence of affirmative misrepresentation on the issue.

A verdict for the plaintiff was reversed and the case remanded for trial.

Under Tennessee law, recall that the law of informed consent is that a patient is entitled to hear only that information required by the applicable standard of care. That is, a patient is not entitled to know what the reasonably prudent patient would want to know under the same or similar circumstances but only what the standard of care applicable to physican requires the physician to tell the patient. Therefore, in Tennessee, this is a non-issue except in the context of a violation of the standard of care (and I doubt that the standard of care requires a physician to convey his or her success rate for any procedure) or an affirmative misrepresentation.

So why include this opinion on this blog? First, it is interesting to see how another state addresses the issue of informed consent. Second, the language and tone of the opinion in this case is unlike what we typically see in an appellate opinion in Tennessee. It is very critical of the plaintiff and the trial judge. It helps us remember how fortunate we are to have a judiciary that does not routinely lash out the parties or lower courts.

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Plaintiff settled a case with the hospital concerning care given by the nurses and proceeded to trial against the doctor. Over the plaintiff's objection, the judge gave this instruction to the jury:

"Every physician using ordinary care has the right to assume, until the contrary is or reasonably should be apparent, that every other medical care provider will use ordinary care. To act on that assumption is not negligence. As I have used the term ordinary care here, I mean that degree of care required of all physicians or medical care providers, as already explained in my definition of negligence."

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Isn't that what you have always heard?

Read what can happen when a hospital doesn't properly sterilize instruments after a procedure on a brain.

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As I have mentioned in some past posts (the most recent one can be read here) the voters of Florida passed a constitutional amendment one year ago that severely limited the amount of attorneys' fees in medical negligence actions. Lawyers who believed that a case was valid but who could not afford to prosecute it then asked clients if they would waive the fee cap and, presumably, had them execute a knowing, valid waiver.

Some lawyers with ties to the medical industry then asked the Florida Supreme Court to order that the Florida Bar adopt a ruling prohibiting such conduct.

The Florida Supreme Court ruled Wednesday. It held that an attorney must advise a potential client of the fee cap and that a client may knowingly and voluntarily waive the cap. It directed the Florida Bar to adopt appropriate rules. See the Order here.

This means that Florida consumers with medical negligence claims will have the opportunity to have a lawyer represent them.

ATLA's Center on Constitutional Litigation helped Florida's lawyers and medical negligence victims on the issue.

I picked up a copy of the Order itself through Abstract Appeal, the execellent blog published by Matt Conigliaro.

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Yesterday afternoon the Tennessee Supreme Court said the the 3-year statute of repose found in the "Doctor and Hospital Relief Act of 1975" should be applied to claims made by minors.

Before yesterday, most lawyers assumed that minors had the right to wait until their 19th birthday to file suit. No more.

Our office filed an amicus brief for TTLA in support of the plaintiffs in this case. I argued the case for the plaintiffs.

Chief Justice Barker wrote for a 3-2 majority; he was joined by Justice Drowota and Justice Birch. Justice Holder wrote the dissent; she was joined by Justice Anderson.

I will be part of the effort to file a petition to re-hear and therefore I must reserve extensive comment at this time. Suffice it to say that dozens of medical negligence cases that have been brought on behalf of children will be dismissed if this opinion is applied as written. Hundreds of other cases sitting in law office right now - where the parents waited to see if their child would "grow out" of their problem - will never be filed.

And then, of course, there is the law of unintended consquences. Now parents will be forced to file cases early before they know if their child is truly injured. Defense costs will rise because of the need to defend cases that might not have otherwise been brought. And then the doctors and their insurers will blame the greedy trial lawyers for their problems.

Just like they did in 1975.

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Do you remember that Florida capped fees in medical negligence litigation? Severely? If not, see this post.

Well, lawyers for plaintiffs gave plaintiffs the opportunity to waive the cap. Certain members of the bar (most of them with connections to health care providers) asked the Florida Supreme Court to adopt a rule prohibiting lawyers from doing so. Arguments were heard on November 30. Read about the arguments here. Read the briefs and other documents cocerning the petition here.

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A new study published in Health Affairs found that "[t]he United States often stands out with high medical errors and in-efficient care and has the worst performance for access/cost barriers and financial burdens."

The study looked at the health care delivery systems in Germany, Australia, Canada, New Zealand, the United Kingdom, and the USA.

The study reports that "p]atients in the United States reported the highest rate of disorganized care at doctor's offices - 33 percent - followed by Germany with 26 percent, Canada with 24 percent and New Zealand with 21 percent. Patients in Britain and Australia reported 19 percent." The study also found that "U.S. patient-reported lab error rates were significantly higher than the other five countries, with rates double those reported in Germany and the United Kingdom. Lab error rates were also relatively high in Canada."

The study also reports that "[d]espite studies that patients value discussion about mistakes or errors, most patients (61-83 percent) in each country said that the doctor or health professional involved did not tell them about the mistake. Countries differed greatly on the likelihood of discussions: New Zealanders were the most likely and Germans the least likely to report that conversations had occurred."

Want to read more? Click here.

Thanks to William Pintas for telling me about this article.

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Interested in knowing what the American College of Emergency Physicans thinks about how certain patients should be treated in the ER?

Then read this post at our Medical Malpractice Blog.

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Here is an interesting article published in a Memphis newspaper.

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Kaiser Permanente is advancing the cause of patient safety by using a "Preoperative Safety Briefing" similar in concept to preflight checklists used in the airline industry. A one-page checklist was developed and used for the project.

In a six-month trial project wrong site surgeries were eliminated (there had been three in the prior six month period) and positive perceptions by staff about patient safety and teamwork increased.

Read more here and here.

One might be tempted to ask "what took so long?" I suggest it is far better to say "thanks for taking steps to make operating rooms safe for patients. Please share your work with every hospital in the nation."

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There is no decision yet in the Calloway case. Until there is, it may be wise to assume that the three-year statute of repose in medical negligence cases trumps the rights of minors.

I will let you know as soon as I hear something on this important case.

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Plaintiff filed a medical negligence lawsuit. She enjoyed an occasional joint, before and after her injury. At trial, the defendant called four witnesses to say that the use of pot could affect a doctor's treatment of her. None testified that it did affect treatment. The jury returned a verdict for the defendant.

A Florida appellate court reversed, holding that "In the absence of such evidence, the doctors' testimony that a patient's use of marijuana could have an impact on treatment decisions did not logically tend to prove or disprove any fact of consequence to the outcome of Shaw's action. Accordingly, it was irrelevant, and should not have been permitted."

The Court went on to say that "[e]ven if we assume that the evidence regarding Shaw's marijuana use had some marginal relevance, however, the outcome remains the same. By repeated reference to Shaw's marijuana use in opening statement, during the doctors' testimony, and in closing argument, the marijuana use became a feature of the trial. As such, any marginal probative value it might have had was clearly outweighed 'by the danger of unfair prejudice, confusion of issues [and] misleading the jury.'"

The case is Shaw v. Jain; read the opinion here.

Thanks to Matt at Abstract Appeal for telling me about this opinion.

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The Washington Post reports that "Americans pay more when they get sick than people in other Western nations and get more confused, error-prone treatment, according to the largest survey to compare U.S. health care with other nations."

The Post also states that "Americans also reported the greatest number of medical errors. Thirty-four percent reported getting the wrong medication or dose, incorrect test results, a mistake in their treatment or care, or being notified late about abnormal test results. Only 30 percent of Canadian patients, 27 percent of Australian patients, 25 percent of New Zealanders, 23 percent of Germans and 22 percent of Britons reported errors."

Read the article here.

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Apparently not every doctor in America is willing to accept the propaganda from liability insurance carriers that "your rates are the fault of greedy trial lawyers." This doctor wants information, and is pushing legislation to get it. Read more here.

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A friend who is getting ready to file a medical negligence case told me that his medical consultant said this about the case: "It took a whole group of doctors to kill this woman."

The consultant was not suggesting that the doctors conspired to hurt, much less "kill", the patient. His point was that in a hospital setting the cause of an injury or death is often not the fault of one person. In the ordinary course, one person makes an error and someone else catchs it before harm is done. No, where things really get messed up is when a group of people is having a bad time of it, where balls are flying all over the place and nobody has a catcher's mitt or is even aware that the balls are flying around. Simply put, awareness is off, communication breaks down and people get hurt.

The adoption of proper systems can usually prevent these situations from occurring. Indeed, this is one of the reasons behind Vanderbilt's Evidence-Based Medicine Program that I talked about recently.

Apparently, someone recognized this situation in a case in Pennsylvania and filed a "corporate negligence" claim against a hospital. The trial judge threw it out but the Superior Court of the state sitting en banc reversed and remanded. Read about the case here.

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The Tennessee Supreme Court has just granted a Rule 9 application in a medical negligence case, even though the Tennessee Court of Appeals refused to do so.

The plaintiff had an abdominal operation several years ago and learned more than three years later that a clip was left on one of her ureters, resulting in the death of one kidney. She brought suit and the defendants asserted the three-year statute of repose. The plaintiff raised the foreign objection exception to the statute of repose. The defendants then asserted because the clip was of the type that is often left in the body it was not a "foreign object" within the meaning of the statute and therefore the suit was untimely.

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Where's the beef?

Rep. Rob Briley lead an effort to make medical malpractice insurers and health care providers to reveal to the State of Tennessee what their claims experience was. Malpractice insurers and health care providers fought this type of disclosure for almost two decades and, given what was disclosed, one can understand why they did so.

The first report came out yesterday, and it is of no particular surprise to anyone who does medical malpractice legal work.

Some highlights:

* Total medical malpractice verdicts against health care providers in Tennessee in 2004: 6

* Total judgments paid on those 6 cases: $1,958,648

* Total dollars paid in judgements and settlements: $110,292,183

* Average settlement or judgment amount in the 444 cases that were resolved by settlement or judgment in 2004: $243,944

* Cases closed with no payment whatsover: 1,916

* Average payment per case closed with or without payment: $45,904

* Pending claims in the State: 5255

* Total reserves for those cases: $730,939,171

So, 444 paid claims in 2004 in a state with more than 5,900,000 residents. Less than 5 people per county.

Now, when you think about that remember this: Studies show that some 90,000 people per year die as a result of medical malpractice. Assuming that Tennessee has no more or no fewer deaths per capita from malpractice than any other state that means that almost 2000 Tennesseans died from malpractice in 2004.

And there were 444 settlements for deaths and injuries.

By definition that means more than 1500 people in Tennessee died as a result of medical negligence and their families were not compensated in any way. It may be that none of those families wanted to pursue legal action, and that of course is their right, but it is just as likely that they were never given an accurate explanation of why their loved one died.

We need medical malpractice reform - but directed at ways of stopping malpractice, not towards restricting the rights of the victims of it.

One last point. This report is but a snapshot - one year's worth of data. We need 8 or 10 years worth of data to make any accurate judgment about the true state of medical malpractice payouts. However, we had to start somewhere and, with Rep. Briley's continued leadership, we will have a solid knowledge base in 8 to 10 more years.

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Rueters reports that "in a review of patient specimens, errors in cancer diagnosis were seen in up to 11.8 percent of cases, according to a report in the medical journal Cancer. Moreover, in a substantial proportion of cases, the error caused some degree of harm for the patient."

The article goes on to say that "the frequency of errors varied between hospitals and ranged from 1.79 percent to 9.42 percent for gynecologics cases and from 4.87 percent to 11.8 percent for other cases, the researchers note. A significant link between the institution and the error cause was observed. As for the cause of errors, up to 50 percent were due to misinterpretation with the remainder being due to poor tissue sampling."

Forbes has an even more complete description of the study.

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The Insurance Commissioner from the State of Washington has released a fascinating study of malpractice insurance rates for physicians in that state. A news report of the findings says "that the amount doctors pay for malpractice insurance in 2005 is largely equal to or less than what they paid for coverage in 1985 when adjusted for inflation. These findings and others 'fly in the face of those who claim that something dramatic has changed relating to malpractice suits in Washington,' said Commissioner Mike Kreidler."

Claims were also studied: "There were 10,212 closed claims during the period. Of those, 45 claims - less than 1 percent - were decided by a jury. Of those claims, 27 percent resulted in payments to patients. More than 60 percent were for $100,000 or less and less than 2 percent resulted in payments of more than $1 million."

Here is the study itself.

If the facts matter, the legislative fight on tort reform in the medical field is over. The fight for the hearts and minds of jurors is something else, however. The insurance companies have made a calculated decision: blame the legal system and the worst thing that can happen is that the jury pool is polluted against claimants. It has proven a worthwhile investment.

There is a reason why insurance companies own all the big buildings.

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A new study reports that doctors should not give clot-busting drugs to patients who are going to receive angioplasty. Doing so increased the death rate by 40%. The results were so surprising that the study was stopped before it was complete.

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Ms Matney, a MS patient residing in a nursing home, died from over exposure to the sun. Her daughter has filed suit against the nursing home.

The Toledo Blade reports that Ms Matney was permitted to sunbathe on a day where the temperatures exceeded 93 degrees. Her body temperature rose to 109 degrees. The county coroner has ruled the death accidental due to negligence; the cause of death was hyperthermia and heat stroke.

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There are many ways that defendants fight medical negligence cases. Some battles are fought in the courtroom. Some are fought in the Legislature. Others are fought against the doctors who choose to testify for plaintiffs.

Read this article about what can happen if a group of doctors doesn't like your expert's testimony.

I am familiar with the Fullerton case mentioned in the article; I sit on an ATLA Committee that advises the Center for Constitutional Litigation that is advising Dr. Fullerton. I will let you know when that case is resolved.

By the way, have any of you ever heard that any of these groups ever went after an expert for the defense?

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Click here to read about yet another example of a greedy trial lawyer filing a frivilous lawsuit for a greedy plaintiff.

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The Wisconsin Supreme Court struck down the state's med mal cap, saying that even under the rational basis test the cap did not meet constitutional muster. The med mal insurances companies and the docs are upset. What the insurance companies and the doctors don't understand is that rational basis does not mean "any ole reason that some lobbyist and pr flack can speculate about" - at least not to real judges who take their job as guardians of the right to trial by jury seriously.

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A bill has been introduced in Congress to fund pilot projects in several states to test the idea of special "health courts."

An article on the bill says that "[t]he bill would authorize the U.S. Secretary of Health and Human Services to award up to 10 demonstration grants to states for the development, implementation and evaluation of alternatives to current tort litigation for resolving disputes over medical errors. Within that context, the bill specifically authorizes the creation of a special health care court. The hallmark of such a court would be full-time judges with health care expertise, whose sole focus would be on addressing medical malpractice cases."

Here is a copy of the bill.

Any state participating in the program would have to give the judge who sits on the special court the power to make all decisions concerning negligence, causation, and damages.

I wonder if anyone who drafted, sponsored, or supports this bill ever gave any thought to the Seventh Amendment or its counter-part in the constitutions of the 50 states?

Nah. Decisions concerning the responsibility of health care providers are too important to be left to patients.

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Interested in knowing some more info on health care costs? See Rebecca Blair's post on our Medical Malpractice Blog.

You won't believe the difference between med mal settlements and judgments in the United States and Canada.

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The Wisconsin Supreme Court has ruled that the State's $350,000 cap on non-economic losses is unconstitutional under the State's equal protection clause.

An excerpt: "The court must presume that the legislature's judgment was sound and look for support for the legislative act. But the court cannot accept rationales so broad and speculative that they justify any enactment. "[W]hile the connection between means and ends need not be precise, it, at least, must have some objective basis.[Footnote omitted.] While we adhere to the concept of judicial restraint that cautions against substituting judicial opinion for the will of the legislature, we do not abdicate judicial responsibility. To hold that a rational basis exists for the $350,000 statutory cap on noneconomic damages in medical malpractice cases would amount to applying a judicial rubber stamp to an unconstitutional statute."

More later - I have got to get to work.

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You won't believe how many people died last year as a result of hospital acquired infections in Pennsylvania hospitals.

Go to our Medical Malpractice Blog at www.medmalblog.com to find out.

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Want to know how at least one defense lawyer plans on defending a brachial plexus injury case? Go to our Medical Malpractice blog.

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Here is a fascinating article from the Cato Institute on malpractice and malpractice reform. Pass it around to your friends - and your legislators.

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Go to our Medical Malpractice Blog to read about how you can see operations from your desk.

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Consumers and trial lawyers have been saying for years that if doctors would do a better job establishing standards and policing their own there would be less injuries and death and therefore less malpractice claims and (maybe) lower malpractice insurance.

The anesthesiologists figured this out and today, in constant dollars, they pay less for malpractice insurance than they did 20 years ago.

More importantly deaths have have dropped from 1 in 5000 cases to 1 in 200,000 to 300,000 cases.

One interesting comment by a doctor from Utah: "I don't think physicans are very good systems thinkers, by in large." He also said that many physicans prize their independence and that makes it hard to achieve the kind of cooperation necessary to reduce errors.

Check out the article in that well-known tool of the plaintiff's bar -the Wall Street Journal (registration required).

The bottom line is this: we are talking about people's lives. It is time to set egos aside and protect the patient. Most doctors want to do just that. Maybe this article will convince those that don't to make the necessary changes to save money on insurance.

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As a lawyer who has done medical malpractice work for 24 years I am embarrassed to say this, but I came across this little tidbit a couple weeks ago while preparing for an argument in the Tennessee Supreme Court.

Do we have the discovery rule for med mal cases? "Yes." What is the test? "Plaintiff must file suit within one year of the date that plaintiff knew or reasonably should have known about the injury." Right? Wrong. (Well, it might be wrong.)

The statute (T.C.A. Sec. 29-26-116(a)(2)) says "In the event that the injury is not discovered within such one (1) year period, the period of limitation shall be one (1) year from the date of such discovery." The test appears to be subjective, not objective.

The Legislature did use the objective-test language when talking about the discovery of the presence of a foreign object. That fact gives rise to the argument that the Legislature must have intended to have a different test for the discovery rule in non-foreign object cases.

Of course, I wouldn't rely on this theory quite yet. The case law all talks about the objective test; the case law relies on Teeters, which pre-dates the 1975 Doctor and Hospital Relief Act.

But if you have a good case you have to take and you have a little statute of limitations problem I think you have a heckuva argument here.

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This is a fascinating opinion.

Defendants in medical negligence cases try to argue that, say, because a bowel is perforated in 15 in 10,000 cases of a certain surgery it was not negligent to perforate the bowel in the subject surgery.

The Supreme Court of Virginia just ruled that that evidence could not be introduced and that that argument could not be made.

Take a look as this excerpt from the opinion: "That argument, and the statistical evidence on which it was based, had nothing to do with the issue of mitigation of damages. ... Further, the argument was based upon a premise unsupported by the evidence: That perforations are just as likely to occur in the absence of negligence as in its presence. The statistical evidence was so misleading that, for all the jury could determine, each of the perforations of the colon contained in the statistics may have been due to a physician's negligence. In that event, the jury could infer the direct opposite of defense counsel's argument: That perforations occur only where the physician is negligent. See McCloud v. Commonwealth, 269 Va. 242, 259, 609 S.E.2d 16, 25 (2005) (evidence of a raw number of events, without describing their circumstances, can be misleading or confusing to the jury); Sanitary Grocery Co. v. Steinbrecher, 183 Va. 495, 499-500, 32 S.E.2d 685, 686-87 (1945) (evidence that 1,000 customers per day visited grocery store without injury inadmissible as misleading and throwing no light upon the facts of the case before the jury). We conclude that such raw statistical evidence is not probative of any issue in a medical malpractice case and should not be admitted."

As the above opinion indicates, the use of statistical evidence is an issue in other types of personal injury and wrongful death cases, too.

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There is yet another article that provides more data undermining the alleged need for restrictions on the right of patients to sue negligent health care providers.

According to the abstract of a study published in Health Affairs "we used data from the National Practitioner Data Bank (NPDB) to study the growth of physician malpractice payments. Judgments at trial account for 4 percent of all malpractice payments; settlements account for the remaining 96 percent. The average payment grew 52 percent between 1991 and 2003 (4 percent per year) and now exceeds $12 per capita each year. These increases are consistent with increases in the cost of health care. A preoccupation with data on judgments, extreme awards, or specific specialties results in an incomplete understanding of the growth of physician malpractice payments."

Almost every week there is another study that demonstrates that the so-called "crisis" is one manufacturered by the insurance and health care industry. The current "crisis" is about over; the next one will be occur in about seven years.

What will happen then is this: All of those states who did not pass tort reform this time around will be labeled as "crisis" states. The pressure on those states will increase because they need to be "competitive." Reform (read: restrictions on patient rights) will pass in a few more states but the doctors will still end up paying an increasing amount for insurance because of inflationary increases in the cost of medical care. The doctors will be told "Yes, we are raising rates again - but it we would have raised them more without tort reform."

And the insurance industry will be laughing all the way to the bank.

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The Fourth District Court of Appeals in Florida has ruled that a pharmacist may be held liable for failure to follow the standard of care for pharmacists even though the pharmacist dispensed drugs pursuant to a doctor's order.

The plaintiff alleged that the pharmacist should have intervened to stop the numerous overlapping presriptions for narcotics and other medications prescribed for plaintiff's wife. Plaintiff's wife died of a drug overdose.

The trial judge dismissed the case, saying that the pharmacist had no duty. The court of appeals reversed, holding that despite competing authority in Florida the complaint stated a cause of action. Read the opinion here.

The opinion cites with approval the case of Dooley v. Everett, 805 S.W.32d 380 (Tenn. App. 1990), a ground-breaking case in the area of pharmacist liability in which I represented Brandon Dooley and his parents. We argued that there was a genuine issue of material fact on the issue of whether a pharmacist had the duty to warn about a drug-drug interaction when the pharmacist filled the two prescriptions that interacted. We argued that the pharmacist is the safety valve between the negligent prescribing physician and the innocent patient, in our case a wonderful seven year old boy who was brain-damaged by the drug-drug interaction.

I have tremendous respect for pharmacists. They are true professionals. They do not just fill, lick and stick. And, when they do not follow the standard of care they need to be held responsible for any foreseeable harm that results.

The opinion notes that it reaches a different result than two other appellate courts in Florida. Undoubtedly, the Florida Supreme Court will take this case. I will try to keep up with it and let you know what happens.

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There are many people who are concerned about the quality of medical care in our country. Those of us who represent patients know that medical negligence lawsuits are not the only way to improve the quality of care; indeed, they are not even the best way to do so. What needs to be done is that the industry itself needs to recognize the problems it has and needs to encourage the people in the industry to adopt systems to avoid errors.

Here is an article from a medical journal where the researchers give us data to remind us that computers in health care will not solve all the problems in the industry. Here is another article about the study.

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The distinction between a lack of informed consent case and a pure medical battery case is set out in Blanchard v. Kellum, 975 S.W.2d 522 (Tenn. 1998). An informed consent case requires expert proof as to the standard of care (or recognized standard of acceptable professional practice) of similar medical professionals. The plaintiff must establish what information is provided to patients prior to the procedure, and how the information is disclosed to the patient, in order to prove that the professional deviated from the standard of care. In a medical battery case, on the other hand, the plaintiff must establish either that the patient was unaware that the doctor was going to perform the procedure, or that the patient did not authorize the procedure. Medical battery cases include those in which the doctor performs a surgery that has been discussed with the patient, but performs the surgery on the wrong part of the body (i.e., amputation of the wrong limb). A true medical battery case does not require expert witness testimony on the standard of care, because there is no prior consent to be judged.

This is complaint from a medical malpractice and medical battery case in which a surgeon mixed up two of his patients' charts, leading him to perform a surgery on the plaintiff to which she had never consented. Download file

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The Texas Supreme Court has held that it is not error for a judge to permit a lawyer who regularly represents defendants in medical negligence cases to sit on a medical neligence jury.

The lawyer/juror candidly admitted that he would tend to relate to the defense lawyers in the case and that he would tend to look at the case from their perspective. He did say he would do his best to be objective.

I would love to know why the plaintiff's lawyer let this guy sit on the jury given these answers; perhaps there were worse jurors and the lawyer had to use all of the preemptory challenges on them. I certainly wouldn't second guess the lawyer for the call (especially without knowing a whole lot more about the facts) - picking a jury is the hardest part of a trial. Judgments must be made quickly, often on gut instinct (even when you use a consultant) and require you do look across the venire and think what you will get if you use a challenge on the potential juror you are evaluating.

This reminds me of a statement made years ago by my mentor which he learned from his own mentor over 50 years ago. He said: "There are three thinks you can never figure out. First, why one person picks another person as a spouse. Second, what a jury is going to do. And third, why bird sh*t is always white on top."

Now, those of you who know the answer to the last question please don't tell me what it is - it will ruin a story that I have been telling for over 20 years.

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The highest court of New York has rejected in part the medical negligence claim of a woman who sued a doctor and others for emotional distress but permitted the claim of the child to go forward.

The mother claimed that the doctor told her that the seven week old fetus she was carrying in utero would likely be harmed by fibroid tumors in her uterous and recommended that she terminate the pregnancy. The drug methotrexate was given to accomplish that result. The drug was administered, and the woman thought that the pregnancy was terminated, but later discovered she was 28-weeks pregnant. She alleged that the dose of methotrexate that she was given was too small to terminate the pregnancy. She was told that the drug administration put the baby at risk for harm, but she decided not to have a late-term, out-of-state abortion.

The baby was born severly injured. Suit was filed on behalf of the child; the mother also filed suit for emotional distress. The Court of Appeals held that the mother could not assert a claim for emotional distress arising out of the birth the impaired child but could assert a claim for any injuries independent of the birth of the child. She was granted leave to amend her complaint to plead accordingly.

Interestingly, the child's claim was allowed to proceed despite the suggestion that it was a "wrongful life" claim. Such claims may not be pursued in New York (or in Tennessee) but the court held that the claims were plead to assert that the original advice about the need to terminate the pregnacy was in error and that error lead to methotrexate-induced injury.

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Those of us who have lived through a couple of the so-called medical malpractice insurance crises knew it was just a matter of time before the market softened. The time has come.

The industry has declared that the insurance crisis is over. Read this fascinating article.

Of course, the facts will not stop the health care industry or its insurers from continuing to press for tort reform. Insurers want to take the risk out of the risk business, and the health care industry wants protection from patients who sit on juries.

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The Supreme Court of North Dakota has ruled that whether or not a reasonable patient would accept the risk of death from a procedure is a jury question and not one for which expert testimony is necessary. The plaintiff's wife died after an IVP. The doctors admitted that they did not inform the patient of the risk of death.

Here is the opinion.

North Dakota does not appear to require expert testimony on what should have been disclosed to the patient; Tennessee law does require expert testimony on this subject. However, expert testimony should not be required on the issue of whether or not the reasonably prudent person would, under the circumstances, accept the risk of the procedure.

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GE's Standard Edition of Medcyclopedia includes at no charge all text and images from The Encyclopaedia of Medical Imaging's eight book volumes: Physics, Techniques and Procedures, Normal Anatomy, Musculoskeletal and Soft Tissue Imaging, Gastrointestinal and Urogenital Imaging, Chest and Cardiovascular Imaging, Neuroradiology and Head and Neck Imaging, and Paediatric Imaging. There is a total of 18,000 topics and10,000 images.

The site notes that you are free to copy text and images for non-commercial use in lectures, articles, etc. provided that you refer to the source.

Thanks to the Insurance Defense Blog.

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The Sixth Circuit Court of Appeals reversed a ruling of the trial judge excluding certain experts in a medical negligence case, stating that Daubert's role of ensuring that the courtroom door remains closed to junk science is not served by the exclusion of testimony supported by relevant experience. The Court further held the "exclusion of testimony in cases of medical experts is rarely justified as opposed to supposed experts in the area of product liability."

Click here to read the opinion.

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James' vasectomy did not go as planned. His wife Corrine became pregnant. They filed suit against his urologist.

The Maryland Court of Special Appeals held that Corrine could not file suit against the doctor because there was not a physican-patient relationship. In short, the Court ruled that Corrine did not establish that her husband's doctor owed her a duty of care.

The dismissal of James' claim on the ground of contributory negligence was also affirmed. (In Maryland, contributory negligence is still an absolute bar to recovery.) The basis for the claim of contributory negligence included the failure to follow doctor's orders.

Read the opinion here.

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A neurosurgeon has written an op-ed piece about his experience with medical negligence litigation and offering his opinion about the role it plays in our society. The article is titled "How Malpractice Suits Keep My Profession Honest."

The writer gives this example of the pressure faced by doctors who testify for patients: "I remember a Detroit neurosurgeon calling me in desperation to ask what to do after he had testified against a surgeon who had operated on the wrong side of a patient's head. The Detroit doctor worried that he was being needlessly scrutinized by the American Association of Neurological Surgeons. It reminded me of a case in which I had been an expert witness here in Washington that led to complaints from the professor who had performed the surgery and unrelenting nit-picking from the association. My advice to the Detroit doctor? Resign from the association. That's what I did."

Isn't it nice to see a member of the profession speak out on the side of his patients?

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Expert witnesses. Can't live with 'em. Can't live without 'em. Can't kill 'em.

Buy me a drink sometime and I will tell you expert witness stories that will make your head spin. Or, let me buy you a drink and I will bore you with the same stories.

But I must confess that I never had an expert I had difficulty reaching because he was in jail. That's right: jail. Read the opinion.

The Court said "[t]he fact that plaintiff's attorney chose an incarcerated health professional to determine if a meritorious cause existed and had difficulty communicating with him because of his incarceration does not amount to good cause."

I wonder why this doctor was in jail. I wonder if he was in jail when he was hired. I wonder if the lawyer knew he was in jail when he hired him. And, I wonder, wonder, wonder, wonder who, who wrote the book of love.

Thanks Evan for finding this opinion for us.

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Public Citizen has just released new information that sets the record straight on various facts concerning medical negligence.

A few highlights:

1. At the same time that insurance rates in some areas have been climbing, the number and total value of malpractice payouts to patients have been flat since 1991 and, in fact, show a significant decline since 2001, when the spike in insurance rates began.

2. The total value of malpractice payments has been flat since 1991. Total malpractice payments increased from $2.1 billion in 1991 to $4.2 billion in 2004. However, from 1991 to 2004, the inflation-adjusted amount has changed little, rising from $2.1 billion to $2.3 billion - an average annual increase of only 0.8 percent.

3. Cases of serious injury to patients continue. Three-quarters of payments for 2004 involved major or significant injuries, or death, and these most severe cases account for 89 percent of the value of payouts made.

Read the entire press release below.

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Why? Because, unfortunately, part of the job of being a tort lawyer who represents patients and other negligence victims is staying on top of issues that affect current and future clients. I have monitored tort "reform" legislation since 1984. I have testified on our Capitol Hill numerous times since 1985; the first time concerned a bill that severely limited the liability of servers of alcoholic beverages (it passed, we lost).

The fact of the matter is that plaintiff's lawyers are one of the few voices for malpractice victims. AARP is there. Labor is often there. But there is no "Future Wrongful Death Victims of America Association." There is no "Prospective Med Mal Victims PAC." No one ever thinks that they will be a victim of a negligent doctor, a careless truck driver, or a defective product, and therefore even the consumers who care about the issue are often unwilling to speak out about it - they have too many other things going on in their lives that demand attention today.

Therefore, it falls upon lawyers to advocate for victims, not just in the courtroom, but in the halls of the legislature. We have to run for the legislature (only 17 lawyers out of 132 legislators in Tennessee!) or, if we cannot, give monetary support to those who will. We have to find non-lawyers to serve as candidates, help them win, and help them understand that the same people who had the ability to cast the votes that put them into office are the people who serve as jurors. We have to help them understand that when a jury makes an error there is a judge there who can correct the error, and that if that judge makes an error we have an appellate court system to correct it. In summary, we have a system of checks and balances that, all things considered, works pretty dang well.

So, that's why I have been blogging on this issue so much recently. The threat of adverse legislation on tort law lives on in Tennessee until next Tuesday, when the Civil Practice Subcommitte has its last hearing day. On the federal level, it will last as long as President Bush and Majority Leader Frist want it to last. Did you know that last year the US Senate spent more time debating liability reform than Iraq?

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Well, the Civil Practice Subcommittee met today but the sponser of the two "reform" bills asked that the bills be "rolled" (continued) until next week. The sponser indicated he wanted to amend the bill to address some of the issues I raised in the hearing of 12 days ago. Next Tuesday is the last day this committee will be holding hearings for this legislative session so it will be an all-or-nothing day.

I will be back there next Tuesday to testify. Medical malpractice victims will also be present. AARP will be presenting testimony against the bill and, presumably, so will the TBA. I will let you know what happens. If you want to help email me.

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That title is so misleading. Today's hearing has nothing to do with modifying the health care system to prevent injuries and death from medical malpractice.

Today's hearing will determine whether the Civil Practice Subcommittee of the House Judiciary Committee will vote-out a bill to restrict the rights of people who have valid claims. We have come to the point in this state and this country where "reforms" restrict the rights of ordinary people and give more power to those who already have it. We call this activity "reform" because "power grab" or "wealth protection action" is too wordy.

I am scheduled to testify today. The good news is that Chairman Rob Briley (D- Nashville) is determined to have a fair hearing on the issues. The Chairman chaired another committee last year that basically determined that all of the hype about the need to restrict the rights of people with meritorious claims was just that - hype.

I will give you an update tomorrow on the results of the hearing.

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The American Association of Critical Care Nurses has issued a new study concerning medical malpractice in our nation's hospitals.

This is scary stuff. The reports says that each year "one in twenty in-patients will be given the wrong medication, 3.5 million will get an infection from someone who did not wash his or her hands or take appropriate precautions, and 195,000 will die because of mistakes made while they're in the hospital." The study goes on to say that 60% of medication errors are caused by mistakes in interpersonal communication.

The study explains that the majority of health care providers break rules, make mistakes, or apppear to behave incompetently, but less than 1 in 10 say anything about it.

The study is fascinating and speaks volumes about the need for reform in our health care system in an effort to protect patients from injury or death.

Too busy to read the 19 page study? Read the Executive Summary.

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Yesterday I had the opportunity to testify before a group of state legislators interested hearing debate about a bill designed to limit the ability of patients to file medical malpractice lawsuits and recover adequate compensation when they do.

The bill, HB 2122, includes a provision that would give a defendant tortfeasor the right to reduce the damages awarded by the jury by the amount of life insurance paid for by the decedent, the disability insurance paid for by the plaintiff, the social security benefits received by the decedent's family or the injured person, and worker's compensation benefits.

It would also wipe out subrogation interests for every insurer who paid benefits to medical negligence victims. Indeed, it even attempts to eliminate subrogation interests for Tenncare, Medicare, and ERISA-based subro claims. Hmmm.

But it is worse than that. The bill also provides for periodic payments of future damages over $75,000. The kicker: if you die before the money runs out the defendant gets to keep the money. If you live longer than the payout plan expected you to live, the defendant does not have to continue the payments. One exception: damages for future loss of income would be paid to your spouse and surviving minor children, if any.

It also allows the jury that heard the case to determine that the lawsuit (or defense) was "frivilous" and award costs and attorneys' fees against the offender.

And, by the way, there is a $250,000 cap on human (read "non-economic") losses.

The House bill is up for hearing on April 19 in the House Judiciary Committee. Call your legislator (especially if he or she is on this committees.)

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The March 28, 2005 edition of Lawyers Weekly USA reports several cases on behalf of nursing home residents killed by fire ants.

In Florida, a 73 year old man recuperating from surgery was attacked by fire ants. The lawsuit against the nursing home settled for $1,870,000.

The family of a woman in North Port, Florida received an undisclosed settlement for a similar attack. A woman in Bradenton won $1,200,000 for a fire attack assault. She survived.

Two points. First, how can this happen in our country?

Second, the tort reformers want to protect nursing home operators from responsibility for this type of conduct. Why? I want to know why any business who permits something like this to happen is still in business. Fortunately, the nursing home in Bradenton is not.

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A recent editorial quotes the results of a Florida study that demonstrates that there has not been the dramatic increase in the numbers of malpractice cases represented by the insurance industry and doctors.

The editorial said that "the research showed that while the state's population climbed by 31.5 percent in this time, med-mal claims paid per 100,000 residents actually fell from a high of 12.36 in 1996 to 9.74 in 2003."

The editorial goes on to say that "the study found the 'debate about the role of juries in so-called 'mega awards' is misplaced.' In 14 years, the study identified 801 cases in which more than $1 million was paid. Further, the study said 93 percent of the million-dollar payouts were the result of settlements, not jury awards."

And this is Florida - allegedly a hotbed of malpractice litigation!!!

If we can ever get the facts, the public - and maybe even the doctors - will understand that the problem with malpractice insurance rates is an insurance industry problem coupled with the dramatic increase in health care costs (which increases the cost of claims because the claims include past and future medical expenses).

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The Tennessee General Assembly has a myraid of tort "deform" bills pending in the medical malpractice field this year. Generally speaking, the bills want to cap damages on meritorious cases, limit attorney's fees for lawyers who represent patients, cut off subrogation interests, impose periodic payments, etc.

The newest example of outrageous conduct is an attempt by the doctors to let the state medical board establish criteria for expert witnesses. To read the bill, click here, click on "Legislation" and enter House Bill number 1011.

The legislation would require the expert to sign the guidelines - or face cross-examination on the failure to sign them. It would give the state medical board the right to publish additional rules - perhaps even subjecting the expert to displinary action if the expert has been found by the board to given testimony with which it did not agree. This is witness intimidation, nothing more, nothing less.

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The Hunter v. Ura decision that I wrote about several days ago also seems to open the door to prejudgment interest in personal injury and wrongful death cases.

Several years ago a case called Myint seemed to suggest that prejudgment interest could be awarded in such cases. Then, several court of appeals decisions held that prejudgment interest could not be awarded, and the Tennessee Supreme Court refused to hear those cases on appeal.

In Hunter the Supreme Court affirmed the trial judge's refusual to award prejudgment interest, but affirmatively held that a trial judge has the discretion to award it.

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