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

The National Highway Traffic Safety Administration has set up a website called "Distraction.Gov."

The website reveals some interesting statistics:

• In 2008, there were a total of 34,017 fatal crashes in which 37,261 individuals were killed.
• In 2008, 5,870 people were killed in crashes involving driver distraction (16% of total fatalities).
• The proportion of drivers reportedly distracted at the time of the fatal crashes has increased from 8 percent in 2004 to 11 percent in 2008.
• The under-20 age group had the highest proportion of distracted drivers involved in fatal crashes (16%). The age group with the next greatest proportion of distracted drivers was the 20- to-29-year-old age group (12%).
• Motorcyclists and drivers of light trucks had the greatest percentage of total drivers reported as distracted at the time of the fatal crashes (12%).
• An estimated 21 percent of 1,630,000 injury crashes were reported to have involved distracted driving.
• Nationwide, those drivers observed visibly manipulating hand-held electronic devices increased from 0.7 percent to 1.0 percent.
• Some 1.7 percent of drivers 16 to 24 years old were observed visibly manipulating hand-held electronic devices, up from 1.0 percent the previous year.
• More drivers in Western States were observed manipulating hand-held electronic devices (2.1%) than in the other regions of the country (from 0.4% in the Northeast to 0.8% in the Midwest).
• The use of hand-held devices increased the most in the West, from 0.6 percent in 2007 to 2.1 percent in 2008.
• The observed use rate of hand-held electronic devices was higher among females (1.2%) than among males (0.8%).

 The site also contains a list of states which ban driving while using cell phones or while texting.

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What do you do when a party to a lawsuit intentionally refuses to follow the rules?  One judge in Washington State knew what to do: the judge struck the defendant's answer, entered judgment for $8,000,000, and awarded attorneys' fees.  Last week the Washington Supreme Court had upheld the award.

The facts are almost impossible to summarize and readers are urged to review the opinion to learn the details.  The bottom line:

The court found (1) there was no agreement between the parties to limit discovery, (2) Hyundai falsely responded to Magaña's request for production and interrogatories, (3) Magaña was substantially prejudiced in preparing for trial, and (4) evidence was spoiled and forever lost. The trial court considered lesser sanctions but found that the only suitable remedy under the circumstances was a default judgment. Hyundai then appealed.

[Footnotes omitted.]

Here are some highlights from the opinion of the Washington Supreme Court:

A corporation must search all of its departments, not just its legal department, when a party requests information about other claims during discovery. Here Hyundai searched only its legal department. Hyundai's counsel told the trial court that in response to request for production 20, Hyundai's search "was limited to the records of the Hyundai legal department" and that "no effort was made to search beyond the legal department, as this would have taken an extensive computer search." CP at 5319. As the trial court correctly found, "[t]here is no legal basis for limiting a search for documents in response to a discovery request to those documents available in the corporate legal department. ... Hyundai had the obligation to diligently respond to Magaña's discovery requests about other similar incidents. It failed to do so by using its legal department as a shield. The trial court also found "Hyundai had the obligation not only to diligently and in good faith respond to discovery efforts, but to maintain a document retrieval system that would enable the corporation to respond to plaintiff's requests. Hyundai is a sophisticated multinational corporation, experienced in litigation." Id. Hyundai willfully and deliberately failed to comply with Magaña's discovery requests since Magaña's initial requests in 2000 and continued to do so.

...

Magaña's ability to prepare for trial was substantially prejudiced because of Hyundai's egregious actions during discovery. The Court of Appeals substituted its own discretion for the trial court's, which is inconsistent with the abuse of discretion standard. The record supports the findings of the trial court that Magaña was prejudiced in preparing for trial.

...

The record fully supports the trial court's other conclusions: there was no agreement between the parties to limit discovery,Hyundai's definition of "claims" was too narrow because Magaña's discovery request was broad, and the seats in the Hyundai Elantra were similar to the seats in the Hyundai Accent. These findings of fact also support the conclusion Hyundai willfully violated the discovery rules.

[Footnotes omitted.]

The case is Magana v. Hyundia Motor America, No.80922-4.(Wash. Nov. 25, 2009).  Read the opinion here.  Regular readers will recall that a Minnesota trial judge recently awarded millions of dollars in sanctions against a defendant railroad company and a Vermont trial judge recently awarded sanctions against a lawyer for the Roman Catholic Diocese when its lawyer violated a motion in limine.

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The United States Department of Transportation has adopted the Motorcoach Safety Action Plan following an analysis of safety data.  DOT has identified seven priority action items that will have the greatest impact on reducing motorcoach crashes, fatalities and injuries.  The items include the following:

1. Rulemaking concerning electronic on-board recording devices to monitor drivers' duty hours and manage fatigue.
2. Rulemaking to prohibit cell phones for drivers.
3. Rulemaking to require seatbelts.
4. Development of roof crush performance requirements.
5. Study stability control systems for motorcoaches.
6. Enhance oversight of carriers.
7. Establish minimum knowledge requirements for companies who seek to transport passengers.

Read the entire report here.

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Ford Motor Company has announced that  is bringing to market the world’s first automotive inflatable seat belts, combining attributes of traditional seat belts and air bags to provide an added level of crash safety protection for rear seat occupants.

“Ford’s rear inflatable seat belt technology will enhance safety for rear-seat passengers of all ages, especially for young children who are more vulnerable in crashes,” said Sue Cischke, Ford group vice president of Sustainability, Environmental and Safety Engineering.  “This is another unique family technology that builds on our safety leadership, including the most top safety ratings of any automaker.”  

Ford will introduce inflatable rear seat belts on the next-generation Ford Explorer, which goes into production next year for the North American market.  Over time, Ford plans to offer the technology in vehicles globally.

Ford explains that in everyday use the inflatable belts operate like conventional seat belts and are safe and compatible with infant and children safety car and booster seats.  In Ford’s research, more than 90 percent of those who tested the inflatable seat belts found them to be similar to or more comfortable than a conventional belt because they feel padded and softer.  That comfort factor could help improve the 61 percent rear belt usage rate in the U.S., which compares to 82 percent usage by front seat passengers, according National Highway Traffic Safety Administration data.

Safety enhancements such as these help understand while traffic deaths in motor vehicle crashes continue to decline despite the fact that there are more and more vehicles on the road and more miles are being driven.

Thanks to Georgia Injury Law Blog for being this information to my attention.

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The National Highway Traffic Safety Administration (NHTSA) recently released a report titled "Motorcycle Helmet Use and Head and Facial Injuries."  The Report has a lot of data on motorcycle crashes and the injuries the result, comparing the injuries received by those wearing helmets and those that do not.

Here are a few highlights from the report:

1. The combined data set contains information on 104,472 motorcyclists involved in crashes in these 18 States during the years 2003, 2004, and 2005.
2. In the data set, 57 percent of motorcyclists were helmeted at the time of the crashes and 43 percent were non-helmeted. For both groups, about 40 percent of motorcyclists were treated at hospitals or died following the crashes. However, 6.6 percent of unhelmeted motorcyclists suffered a moderate to severe head or facial injury compared to 5.1 percent of helmeted motorcyclists.
3. Fifteen percent of hospital-treated helmeted motorcyclists suffered traumatic brain injury (TBI) compared to 21 percent of hospital-treated unhelmeted motorcyclists. TBI severity varied by helmet use. Almost 9 percent of unhelmeted and 7 percent of helmeted hospital-treated motorcyclists received minor to moderate TBI. More than 7 percent of unhelmeted and 4.7 percent of hospital-treated helmeted motorcyclists sustained severe TBI.
4. As of 2007, fatalities had increased for the 10th year in a row, an increase of 144 percent compared to 1997. While there has also been an increase in motorcycle registrations during this period, the rate of increase in fatalities has been greater than that of registrations.
5. This increase in deaths has been especially marked among riders 40 and older, who now constitute approximately half of all deaths. In 1997, this older group accounted for 33 percent of rider deaths, but had grown to 49 percent by 2007. Although fatalities increased in all age groups, the largest increase has been in the group of riders over the
   age of 49; thus the mean age of fatally injured motorcyclists has increased from 29.3 in 1990 to 37.9 in 2002. The overall percentage of older riders involved in crashes has increased. While younger people are still riding motorcycles, they now constitute a smaller proportion of fatalities.
6. Despite the burden of injury associated with motorcycle crashes, at least 6 States have repealed or weakened laws that require the use of motorcycle helmets since 1995. Also, 3 States don’t have a helmet law of any kind.

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The use of seat belts continues to increase in the United States.

Seat belt use in 2009 stood at 84 percent, a gain from 83 percent use in 2008. This result is from the National Occupant Protection Use Survey (NOPUS) which is the only survey that provides nationwide probability-based observed data on seat belt use in the United States. 

Vehicle occupants in Tennessee and other southern states continue to use seat belts at a level less than the national average (82%). Those in pickup trucks  have the lowest rate of use (74%).

Here is the entire report.

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A defense lawyer and I were having a drink the other day and he told me that from time to time he has difficulty getting cases settled at mediation because plaintiff's lawyers don't have information about subrogation interests.  Here are some tips to avoid such problems:

1. At the initial client meeting, as you help you client understand his or her rights and go through the outline of the types of damages he or she can recover if the case is successful, explain the law of subrogation.  To do so you have to ask whether any insurance company or governmental entity  paid the outstanding medical bills.  Then, explain that usually it will be necessary to re-pay  the entity that paid these bills monies from the proceeds of any settlement or judgment.  This not only informs the client of his or her obligation to re-pay the bills but also sets client expectations at an appropriate level.
2. If the bills are paid by a private entity get a copy of the applicable insurance policy or summary plan description to determine if a right of subrogation or reimbursement exists and if the plan is an ERISA plan. 
3. If the bills were paid by a governmental entity (in Tennessee this usually means either Tenncare or Medicare) you need to either know the law of subrogation or look it up.  The bottom line:   government payors have a right to be re-paid and it is your obligation, as a lawyer,  to help them get re-paid.  If you don't do so you (the lawyer) will be on the hook to re-pay these bills, so it is in your best interest to understand this law and help your client fulfill their  obligation.
4. Remember that your client's medical bills may have been paid by worker's compensation.  If so, the payor has a statutory right of subrogation.  Ignore it at your peril.
5. Gather all of the medical bills and determine who paid them.  Your client may not have given you accurate information about the entity that made the payments on the bills.  For instance, sometimes a client receives both Medicare and Tenncare benefits.  You need to know each entity that paid bills.   It is also possible that your client's auto insurance carriers paid some of the bills under a medical payments provision in the policy.  Get a copy of the policy to be sure, but auto insurance carriers almost certainly have a subrogation right for any such payments.
6. Private health  insurers routinely send letters asserting subrogation interests.  Tell your client that they may be receiving such letters and make sure you get them.
7. Ascertain the amount paid by each third-party before the mediation of the case.  This can be difficult, especially with Medicare, but start early and keep at it.  Do not accept numbers over the phone - try to get the payment amounts in writing.  If you get a total-payment figure over the phone confirm the number in an email or letter.   Do not wait until the day or even the week before the mediation to do this - you will not get the information you need before the mediation.
8. You will need to check the claimed subrogation interest versus the amount actually owed.  Sometimes insurers include bills for care unrelated to the incident.  Thus, you must get a print-out of who the insurer paid and the date of service for that payment and compare it with your client's medical records.
9. Get the name and telephone number of a contact person at the third-party payor that you can contact during a mediation.  Make sure you understand if their office is on Central time, Eastern time, or some other time - you need to know how late you can reach them.   Advise them that you have a mediation on a given day and that you will need to be able to reach them during the mediation.  
10. Some payors will reduce the subrogation amount if the client is not "made-whole" even if they have no legal obligation to do so.  A version of the  made-whole doctrine is statutory for Tenncare payments and the common law made-whole doctrine applies to med-pay and non-ERISA health insurance policies in Tennessee.  Understand the law applicable to each third-party payor before the mediation.  
11. In the days or weeks before the mediation as you explain the process to your client remind them once again of the need to re-pay the entities that paid the medical bills.  By doing so  you are reminding them of their legal obligation and at the same time setting a reasonable level of expectation of what will occur at the mediation.
12. Have the relevant contact information and the claimed subrogation amounts with you at the mediation.  How often you contact the payor during the mediation is subject to many factors, but generally speaking as want to call them as the settlement appears to be coming together.  You can often negotiate the amount due, but be armed with the facts that will help you do so.  The best fact to use to negotiate a reduction is a liability insurance policy that is totally inadequate given the injuries and the lack of any assets from the defendant.   There are a multitude of other factors, such as immunity for one or more defendants, a damage cap for a governmental entity, very difficulty liability facts, etc.  If the made-whole doctrine is applicable all arguments must be marshaled and presented.  Some carriers are willing to cut their subrogation amount if you demonstrate a willingness to help get a difficult case resolved by reducing your fee.  Confirm any deals made in writing or by email.
13. Try to have the subrogation issues resolved before you leave the mediation.  If that is impossible, then attempt to make the settlement subject to a satisfactory resolution of subrogation interests in the next few days.  Be sure the language of the agreement with the defendant provides that it is you (and your client) that must be satisfied with the resolution of the subrogation interests.
14. As I mentioned above, it is difficult to get a straight, final answer out of Medicare.  Start early, and write to them often.  Try to get the name and number of  a human being.  If you cannot get an answer out of Medicare before the subrogation, you will be forced to estimate the amount of their subrogation interest.  You will usually be safe if you assume that Medicare paid 40 cents on each dollar charged by a health care provider.  In other words, if the hospital bill shows $10,000 you can assume that Medicare paid $4000.  It will usually be less.  However, this will help your client understand his or her "net" recovery and will help you negotiate with reasonable comfort.

Why should you care about all of this?  If you do not have a knowledge of subrogation law it will be more difficult to settle your client's case because your client will not be able to understand the "net" recovery.  If the client thinks that he or she is going to receive "X" and then finds out that "X" has to be reduced by a subrogation payment, he or she going to be upset.  If the subrogation interest is one that imposes an obligation of the lawyer to protect, you risk financial loss and/or disciplinary action for failure to fulfill that obligation.

In summary, part of being a plaintiff's lawyer is having a good grasp on the contractual and statutory rights of those who have paid your client's medical bills.  Another part of being a plaintiff's lawyer is addressing such matters directly in a manner consistent with the law, with both the payor and the client, to avoid future unpleasantness.

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 Toyota has a problem with some of the vehicles it has manufactured and a little over 40 days ago issued a recall of 3.8 million of them.  According to Toyota, "[r]ecent events have prompted [the company] to take a closer look at the potential for an accelerator pedal to get stuck in the full open position due to an unsecured or incompatible driver's floor mat. A stuck open accelerator pedal may result in very high vehicle speeds and make it difficult to stop the vehicle, which could cause a crash, serious injury or death."  Read more here.

Something else is going on.  Read this statement released by the National Highway Traffic Safety Administration (NHTSA) on November 4:

A press release put out by Toyota earlier this week about their recall of 3.8 million Toyota and Lexus vehicles inaccurately stated NHTSA had reached a conclusion "that no defect exists in vehicles in which the driver's floor mat is compatible with the vehicle and properly secured." NHTSA has told Toyota and consumers that removing the recalled floor mats is the most immediate way to address the safety risk and avoid the possibility of the accelerator becoming stuck. But it is simply an interim measure. This remedy does not correct the underlying defect in the vehicles involving the potential for entrapment of the accelerator by floor mats, which is related to accelerator and floor pan design. Safety is the number one priority for NHTSA and this is why officials are working with Toyota to find the right way to fix this very dangerous problem. This matter is not closed until Toyota has effectively addressed the defect by providing a suitable vehicle based solution.

NHTSA constantly monitors consumer complaints and other data. This comprehensive recall focuses on pedal entrapment by floor mats, but NHTSA will fully investigate any possible defect trends in these vehicles.

The recall affects Toyota models from 2004 – 2010. Specific models affected include 2007-2010 Toyota Camry, 2005-2010 Toyota Avalon, 2004-2009 Toyota Prius, 2005-2010 Tacoma, 2007-2010 Toyota Tundra, 2007-2010 Lexus ES350 and 2006-2010 Lexus IS250 and IS350.

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 I have written before about the dangers of texting while driving (here is a post about the danger of posed when truckers text and drive), and the Tennessee Legislature recently outlawed the practice.

Here is a game developed by the New York Times that demonstrates the danger.

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

An excerpt:

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

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

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

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By now most of us have heard of the Sweat Lodge incident.

The Huffington Post article  says that "[m]ore than 50 followers of spiritual guru James Arthur Ray had just endured five strenuous days of fasting, sleep-deprivation and mind-altering breathing exercises [were] into a sweat lodge ceremony"  that is said to have resulted in the deaths of three people. The "Spiritual Warrior" event apparently cost $9,000-plus for each participant.  One survivor, Beverly Bunn, said that "Ray pushed for participants to go without sleep, enter into altered states of mind through breathing exercises and meditation, compete in a game in which he played God and fast for 36 hours during a vision quest."    Bunn also said that "people were vomiting in the stifling heat, gasping for air, and lying lifeless on the sand and gravel floor" in the 415-square-foot sweat lodge. Apparently, people were not forced to stay inside but were highly encouraged.  Bunn said "it was all about mind over matter, you're stronger than your body."

Who is James Arthur Ray?  He says he is "an internationally-renowned Personal Success Strategist, Visionary and New York Times Best-Selling Author who has traveled the globe dedicating over two decades of his life to studying the thoughts, actions, and habits of those who create true wealth in every area of their life [who] delivers his practical teachings to hundreds of thousands of individuals and business leaders every year."   I confess I never heard of him before this incident, but if his website says he is internationally-renowed I suppose it must be true.

His response to the tragedy?  The Huffington Post "Ray has hired his own investigative team to try to determine what went wrong, and vowed to continue with his work despite criticism. 'I have taken heat for that decision, but if I choose to lock myself in my home, I am sure I would be criticized for hiding and not practicing what I preach,' he wrote."

Is there tort liability here?  First, let me point out that this incident occurred in Arizona and the law of Arizona will almost certainly apply.  I do not pretend to know the law of Arizona, and thus I leave it to others to opine on the rights and responsibilities of all involved under Arizona law.   However, if this had occurred in Tennessee, the following questions come to mind:

1.  Was a waiver signed before the event?  In Tennessee, most pre-incident waivers of personal injury and wrongful death claims are enforceable if executed by competent adults.   The fight would be over whether the participants were told whether they would be subjected to such high-risk activity so that they could knowingly waive their right to hold the organizers liable for any negligence.  Another fight would be over the issue of whether the conduct of the organizers was grossly negligent, because under Tennessee law gross negligence trumps a pre-incident waiver.

2.  The organizers would have a duty under Tennessee law to make the event reasonably safe for the participants.  That would include a responsibility to have appropriate personnel on hand, which almost certainly would include the responsibility to have appropriate medical personnel on hand if there was a risk of injury. 

3.  The answer to whether reasonable care was exercised will depend on facts that are not yet known.  Were health care personnel consulted before the Sweat Lodge concept was used?  Were their recommendations followed?  Were there any issue with the Sweat Lodge and the health of the participants in the past?  What changes in procedures were adopted - or should have been adopted - as a result of past experience?  What personnel were available?  How were they trained?  Did they have the ability to recognize signs and symptoms of dehydration?  Did they have the appropriate supplies and equipment available to render aid?  Were appropriate warnings of the risk given?  Were the participants in the state of mind to appreciate those risks? 

4.  There will be allegations of comparative fault and assumption of the risk of any participant that makes a claim.  What information were they given?  What knowledge did they have?  Why did they agree to go forward with the Sweat Lodge experience?  Why did they not leave when they began to feel ill?  Did they accurately report any pre-existing  medical conditions (assuming they were asked)?

As you can see, there are many questions yet to be answered before anyone can determine whether liability is present under these facts.   The police are conducting a homicide investigation, and that investigation will be a great assistance in determining the merit of any claims asserted by any participant.  That being said, the media reports to date indicate to me that there is a strong likelihood that Ray and his organization have significant exposure for this incident. 

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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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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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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 American Association for Justice has issued a report called "Warning!  Safety Violation Ahead."  The report reveals that "a new analysis of government data reveals that more than 28,000 motor carrier companies, representing more than 200,000 trucks, are currently operating in violation of federal safety laws."    The safety violations include "defective brakes, bad tires, loads that dangerously exceeded weight limits and drivers with little or no training or drug and alcohol dependencies."   The accompanying press release indicates that

AAJ obtained data on the safety performance of U.S. trucking companies through the Motor Carrier Management Information System (MCMIS), which is maintained by the Federal Motor Carrier Safety Administration (FMCSA).  Over a million lines of data were analyzed in an effort to pinpoint just how many unsafe trucks might be on the road.

Tennessee had 107 fatalies involving large trucks in 2007.  The country as a whole had 4808 fatalities and 142,949 non-fatal crashes involving large trucks.  You can access the national database by clicking here.   You can reach the Tennessee database by clicking here.  Trucking companies are listed by city.

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