Is Your Client on Facebook?

Stark & Stark's Pennsylvania Law Monitor has a nice post about the impact of Facebook on personal injury litigation.  

An excerpt:

The Internet and social networking sites have changed the face of litigation in this country. However, there are some precautions that you can take to protect yourself, short of boycotting the Internet all together. First, be careful in reviewing the photos and posts on your social networking site. Remove anything that you would not want an insurance company lawyer to see that could help them defend against your case. Next, check your privacy settings which enable you to block certain people from seeing you on a particular site (Facebook allows this). It is also helpful to search your name in the search field and see what comes up to make sure it is acceptable (it is advisable to do this on Google and YouTube as well). Finally never accept friend requests or respond to emails from people you do not know.

Online Accident Reports

Getting motor vehicle accident reports is a hassle, but is appears that it will be getting easier. makes accident reports from Georgia, Indiana, and Kentucky  available for purchase over the Internet.  Accident reports from Tennessee will be available in the future.

Thanks to Chris Simon and the Atlanta Injury Attorney Blog for making me aware of this service.

Tennessee Personal Injury Client Advice

The Springfield Injury Law Blog has given us a great post titled "8 Ways to Help Your Personal Injury Lawyer Help Your Case."   Obviously, the post informs personal injury clients how they can help their lawyer obtain a better result in their case.

It is so good I am going to reprint it here:

    1.  Give your lawyer the whole story

The conversations you have with your personal injury lawyer are confidential and protected by attorney-client privilege so you can tell the truth without fear of others finding out.  Your lawyer must keep what you say in strict confidence.  Don't omit details about the events in an accident just because they may be embarrassing or you think make you look like you did something wrong.  A good injury attorney will take all the facts of your case and know how to present less flattering elements in the best possible light and keep the impact to a minimum.  If  your lawyer first hears about an important detail that you omitted from the lawyer on the other side, it can have devastating effects on your personal injury case.  Caught unprepared, he/she is at a disadvantage in keeping potentially unfavorable facts from hurting your case and it can make it impossible to disprove negative accusations if there is not time to investigate. Be sure to tell your lawyer everything and answer all questions truthfully.

    2.  Go to doctor appointments and follow doctor recommendations

Since you hired a personal injury lawyer, you must have an injury.  Therefore, getting well should be your first priority. You can't do that if you aren't going to the doctor or aren't following your doctor's recommendations for treatment or therapy.  If you miss your doctor appointments, you are telling the other side that you must not be hurt and therefore, don't need any compensation for your injuries or medical bills.

3.  Don't talk about your case with anyone but your lawyer

Don't tell your friends, family or coworkers about your personal injury lawsuit.  Insurance companies will try and manipulate things you say and use them against you to reduce the compensation paid.  This includes not mentioning your case on your blog, Facebook, MySpace or Twitter. See #4 below.

4.  Put a hold on Facebook and Twitter

What you say in a post, tweet or status update can reveal a lot of about your activities and state of mind.  If you are claiming serious injuries, but tweet about an upcoming deep sea fishing trip or post photos of you learning to snowboard, you can be sure an insurance company will find them and use them against you.  Insurance companies are not above sending private investigators to physically follow those claiming injuries and following someone in cyberspace is just as easy and effective.  Don't rely on privacy settings of social media applications to protect you.  It is better to avoid making any updates until after your case has closed.  Learn more about social networking and personal injury cases.

5.  Supply all requested documents on time

You will need to fill out a variety of forms and provide insurance and medical documents periodically to your personal injury lawyer.  Return any forms fully completed and provide documents in a timely manner to keep your case progressing and help your lawyer meet any filing deadlines. The legal process will naturally take long enough, see #6 below.  Don't add to that by taking extra time to provide requested information after your accident.  

6.  Be patient

After a car accident, collecting necessary information such as police reports, information from witnesses, and paperwork from doctors takes time.  Additionally, when injuries are involved there must be a confirmation and stabilization of medical conditions so time must pass while you receive medical tests and start to heal.  Naturally, the insurance company will drag its feet before making any payments.  Do not plan on getting a check in a week.  If a personal injury lawyer tries to quickly settle your case you could lose out on all the compensation you may be entitled to receive.

7.  Ask questions

If you don't understand something about your personal injury case, ask your lawyer to explain it. You should be aware of status of your case and what to expect along the way. This is YOUR CASE. The more you understand, the better you can participate and help your lawyer and your case.

8.  Listen to your lawyer

You chose an experienced personal injury attorney because he/she can use the law to help you maximize the compensation you can receive for your injuries, lost wages and other pain and suffering after your car accident.  What a lawyer may ask you to do (or not do) or the information you are requested to provide is based on their experience and knowledge of the law.  For that reason, you should listen to your lawyer and cooperate with requests in order for you to secure the best possible outcome after your accident. 




2009 Medical Malpractice Claims Reports Due March 1, 2010

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

The reports are due March 1, 2010.

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

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


Proposed Consumer Product Safety Commission Database Concerns Product Liability Defense Lawyers

Thompson Hine is a 99-year old law firm with offices in eight different cities.  Its products liability lawyers work do work in the aerospace, automotive, chemical, electrical, mechanical, medical device and pharmaceutical areas.

And they are concerned  about the implications of Section 212 of the Consumer Product Safety Improvement Act of 2008, which requires the Consumer Product Safety Commission (CPSC) to implement a publicly accessible, searchable database of consumer product incident reports. 

The firm reports that:

[o]n September 10, the CPSC issued its "Report to Congress Pursuant to Section 212 of the Consumer Product Safety Improvement Act of 2008 - Implementation of a Searchable Consumer Product Safety Incident Database," which outlines the CPSC's planned rollout of this database. As described below, this database has the potential to have far-reaching business and legal implications for how manufacturers, distributors and retailers of consumer products report and respond to consumer complaints.

The concerns?  First, the CPSC's control of the database "creates the potential for an increased number of, and potentially less efficient, investigations and recalls implemented by the CPSC."

Second, there are concerns on how companies should monitor or use the new site.

Third, "the database will serve as an easily accessible tool for plaintiffs in future litigation to locate potential evidence of "alleged other similar incidents" or evidence to support a punitive damages claim. "

Fourth, "the database will undoubtedly serve as a new resource for an always creative plaintiffs' bar searching for potential lawsuits. The searchable capacities of the database will enable plaintiffs' attorneys to search for potential personal injury or consumer claims, as well as to identify potential class actions or mass torts."

Thompson Hine reports that the target deadline for the new public database is March 11, 2011.

Read the entire paper here.



Nevada Supreme Court Restricts Lawsuits Against Pharamacies

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

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

Here is the court's summary of the facts:

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

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

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

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

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

Ambulance Driver Crashes Into TDOT Help Truck - Is There an Incapacitated Driver Defense?

David Cline, the paramedic who was killed when the private ambulance he was driving slammed into the back of a TDOT roadside help truck on Interstate 65 on October 22, 2009,  had a history of medical problems, including narcolepsy and epilepsy.  Investigators are unsure why Cline left the highway  but believe that the he suffered a "seizure or some type of medical condition that [incapacitated] him and led to the fatal crash, according to the final report released by Metro Nashville Police Department on December 28, 2009.  The story was reported in The City Paper.

The article reports that "after performing a toxicology examination, police determined Cline had an elevated level of amphetamines in his bloodstream from his prescribed medication for narcolepsy, Adderall. The same report did not find indications his prescribed epilepsy medication, Depakote, was in his system."    The article also reports that

Cline did have previous incidents involving seizures and car crashes. On Christmas Day 1999, Cline ran off the road and struck a utility pole after he had a seizure, and following the incident, his driver's license was suspended. His credentials were reinstated in March of 2000. He suffered another seizure while working his day job as a Franklin firefighter, "three or four years prior" to the deadly crash.

Is Cline's Estate and his employer liable for this wreck?  We need more facts.  Here is a general statement of the law under these circumstances:

 A sudden loss of consciousness or physical capacity experienced while driving which is not reasonably foreseeable is a defense to a negligence action. To constitute a defense, defendant must establish that the sudden loss of consciousness or physical capacity to control the vehicle was not reasonably foreseeable to 156 a prudent person. As a result, the defense is not available under circumstances in which defendant was made aware of facts sufficient to lead a reasonably prudent person to anticipate that driving in that condition would likely result in an accident.

In determining whether the loss of capacity or consciousness was foreseeable, pertinent, nonexclusive considerations would include: the extent of the driver's awareness or knowledge of the condition that caused the sudden incapacity; whether the driver had sought medical advice or was under a physician's care for the condition when the accident occurred; whether the driver had been prescribed, and had taken, medication for the condition;  whether a sudden incapacity had previously occurred while driving; the number, frequency, extent, and duration of incapacitating episodes prior to the accident while driving and otherwise; the temporal relationship of the prior incapacitating episodes to the accident;  a physician's guidance or advice regarding driving to the driver, if any; and medial opinions regarding the nature of the driver's condition, adherence to treatment, foreseeability of the incapacitation, and potential advance warnings which the driver would have experienced immediately prior to the accident. These factors, and any other relevant ones under the circumstances, would tend to establish whether the duty to exercise reasonable care was breached.

McCall v. Wilder, 913 S.W.2d 150, 156 (Tenn. 1995).   For a case in which a defendant successfully asserted the defense, see Beasley v. Amburgy, 70 S.W.3d 74 (Tenn. Ct. App. 2001).

Even if the driver has the defense, there is a question about the employer's potential negligence for hiring a professional driver with a history of seizures and narcolepsy.   There are lots of cases discussing this area of the law, starting at least as far back as 1936:  Wishone v. Yellow Cab Co No. 1, 20 Tenn. App. 229, 97 S.W.2d 452 (1936, cert. den. 1936).

As is often the case, the information that is publicly available does not give us enough information to evaluate the merits of the claims.  The claim against Cline can only be truly evaluated after a through review of the events leading up to the collision, the physical evidence at the scene, and the medical history of Mr. Cline.  Any direct liability of the employer can only be evaluated after an investigation of what the employer knew and should have known about Mr. Cline's history.  One wonders, however, why someone with these types of medical problems was driving an ambulance.

Problem Nurses Move From State to State

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

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

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

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

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

Fatal Car and Truck Crashes By Young Drivers

 NHTSA has released a report concerning fatal crashes by young drivers.  The report shows that

  1. „„Youths 15 to 20 years old represented 9 percent of the U.S. population in 2007 and 6 percent of the licensed drivers; however, 19 percent of the fatalities in the United States in 2007 were related to young-driver crashes.„„
  2. Approximately two-thirds of the people killed in fatal young-driver crashes are the young drivers themselves or the passengers (of all ages) of the young drivers. „„
  3. Of the passengers killed riding in vehicles with young drivers, 67 percent are in the same 15-to-20-year-old age group as the drivers.
  4. „„Fifty-six percent of the fatal crashes and 57 percent of the fatalities involving young drivers occur on rural road-ways.
  5. In 2007, 6,982 young drivers were involved in 6,669 fatal crashes. A total of 7,650 fatalities occurred in those crashes.
  6. The 2007 National Occupant Protection Use Survey (NOPUS) states that overall restraint use has increased slightly from the previous year, to 82 percent. However, belt use among  people 16 to 24 was only 77 percent. In 2007, of the 15- to 20-year-old passenger vehicle occupants killed in all fatal crashes, 61 percent (of those whose restraint use was known) were unrestrained. Of the total fatalities in which restraint use was known in 2007, 54 percent of the vehicle occupants killed were unrestrained.
  7. In 2007, 31 percent of young drivers 15 to 20 years old who were killed had blood alcohol concentrations (BACs) of .01 grams/deciliter (g/dL) or greater, and 26 percent of young drivers had BACs of .08 g/dL or greater. These figures are relatively similar to the overall driving population in which 37 percent involved BACs of .01 g/dL or greater and 32 per-cent involved BACs of .08 g/dL or greater in 2007.
Those of us who are parents of teenage drivers know that few things terrify us more than the thought of our children behind the wheel.  These statistics remind us that these fears are grounded in fact and that we must continue to educate our young drivers of the need for common-sense and vigilance behind the wheel.

Debt Collector Blamed in Wrongful Death Lawsuit

Dianne McLeod says a debt collector killed her husband Stanley.  

According to CNN, Ms. McLeod alleges that " her mortgage company, Green Tree Servicing, for the wrongful death of her husband. McLeod said she thinks he would be alive if not for the stress caused by Green Tree's debt collectors. She said they sometimes called up to 10 times a day and also called the McLeods' neighbors."    Stanley , a heart patient died of heart failure.

The CNN story does not reveal the cause of action being employed in the Florida litigation.  In Tennessee, the Supreme Court has ruled that debt collectors may be liable for damages caused if they engage in intentional infliction of emotional distress, as known as the tort of outrageous conduct.  The case applying this tort to debt collectors is Moorhead v. J.C. Penny, Co. 555. S.W. 2d 713 (Tenn. 1977).   Whether conduct is "outrageous" and whether the conduct caused an injury or death is very much dependent on the facts.

What are the elements of tort of intentional infliction of emotional distress? First, "the conduct complained of must be intentional or reckless".  Second, "the conduct must be so outrageous that it is not tolerated by civilized society".   Third, "the conduct complained of must result in serious mental injury."  A causation requirement is implicit in the third element which necessitates that the misconduct "result in serious mental injury."  For a complete discussion of the law in this area in Tennessee, read Doe v. Roman Catholic Diocese of Nashville,  154 S.W.3d 22 (Tenn. 2005).

Alcohol Impaired Drivers Continue to Kill

According to NHTSA’s National Center for Statistics and Analysis there were 1035 people killed on Tennessee roads in 2008.  Of those fatalities, 327 of them involved at least one driver who had a blood alcohol level of 0.8 or greater. 

This is an alcohol-related death rate of .47 people per 100 Million Vehicle Miles Traveled (VMT). The death rate per VMT is down 11.3% from a year earlier.

In 2008, Montana had the highest alcohol-impaired fatality rate in the Nation – 0.84 fatalities per 100 million VMT while Vermont had the lowest rate in the Nation – 0.16 per 100 million VMT.

In the country as a whole some 11,773 people died in alcohol-related crashes.

The holiday season brings lots of parties, and lots of parties means an increased consumption of alcohol, all too frequently to excess.  Use your head during the holiday season and, if you do not know that you can consume alcohol in moderation,  select and use a designated driver.  And, once you have figured out that you can act responsibly during the holidays, keep up the good work in the following days and years.

No one is saying that you should not be able to enjoy the holiday season and that, if you are an adult, you cannot  enjoy alcohol as a part of celebration of the season.  But you have no right to place the lives of others at risk because you choose to operate a vehicle while you are impaired.

When to Evaluate for a Hypercoagulable State

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

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


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

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

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

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



Defendant's Discovery Abuse Results in Default Judgment of $8,000,000, Plus Fees

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.


New Medical Malpractice Case Filing Statistics

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

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

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

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

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

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

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

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

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

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

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

HealthGrades Sixth Annual Patient Safety in American Hospitals Study

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

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

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

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

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

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

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

Other interesting data:

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

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

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

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

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

Motorcoach Safety Action Plan

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.

Inflatable Seat Belts?

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.

Motorcycle Deaths and Injuries

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.
I am a motorcycle rider and cannot image riding without a helmet.  Fellow riders, take this study to heart and wear a helmet, whether you are riding on-road or off-road.  Insist that your passenger wear a helmet.  And, always remember that when you are riding on a motorcycle the fact that you have the right-of-way only gives your lawyer something to argue to a jury after you get hurt - it doesn't mean that you will avoid an injury if another driver hits you.  Always assume that the other driver is totally distracted and unaware of your presence.  Be especially careful at intersections and on curvy roads - stay back  from the center line.


Seat Belt Use Continues to Increase

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.

Thoughts About Subrogation

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.

Precise Fix for Defect in Toyotas Still Unknown

 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.


More on Dangers of Texting While Driving

 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.

Rhode Island Hospital Cannot Get It Right

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

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

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

The hospital was also fined $150,000.

Each of these incidents are completely unacceptable.  

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

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

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


Commercial Appeal Writes About Medical Malpractice Litigation

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

An excerpt:

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

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

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


Liability in the Sweat Lodge Case

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. 



New Medical Malpractice Filing Numbers

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

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

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

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

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

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

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

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

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

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

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

Board Certification in Medical Malpractice

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

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

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

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

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

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


New Medical Malpractice Filing Numbers

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

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

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

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

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

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

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

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

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

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

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

An Appropriate Handoff

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

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

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

The Company has these recommendations for hand-offs:

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

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

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

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

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

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

Here is the mnemonic:

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

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

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


Washington Certificate of Merit Struck Down

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

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

The Court said that

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

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


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

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

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

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

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

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





Here it is:

A limit or cap on noneconomic damages, however, invades the right to a jury trial by usurping one of the fact-finding responsibilities of the jury. If the amount of noneconomic damages awarded by the jury exceeds the statutory cap, this Code section automatically and arbitrarily reduces the verdict, without consideration of the evidence, the record, or any other fact produced at trial and found by the jury. The limitations imposed by O.C.G.A. 51-13-1 render the right of the jury to assess damages meaningless… The cap so interferes with the determination of the jury that it renders the right of a jury trial wholly unavailable.

Additionally, Judge Bessen also found that the cap on damages violates the Separation of Powers Doctrine contained in the Georgia Constitution. Three other states’ supreme courts, with similar constitutional provisions, also have struck down caps on damages on this basis. The Georgia Constitution states that: “The legislative, judicial and executive powers shall forever remain separate and distinct, and no person discharging the duties of one, shall, at the same time, exercise the functions of either of the others.” One distinct function of the judicial branch is that judges have the exclusive right to award to a party a “remittitur” – or a new trial – if a judge finds that a verdict is either excessive or inadequate. Judge Bessen’s order declares the cap on damages statute to be a “legislative remittitur” and that the legislature has unconstitutionally invaded the exclusive role of the judiciary to find facts and control judgments.

“Equally important,” the judge writes, “it does so without the option of a new trial for the injured plaintiff. As such, it unduly encroaches upon the judiciary’s constitutional right and prerogative to determine whether a jury’s assessment of damages is either too excessive or too inadequate within the meaning of the law.”

The third violation of the Constitution Judge Bessen found was that a cap on damages violates the Equal Protection provisions of the Georgia Constitution which state: “No persons shall be denied the equal protection of the laws.” To examine this violation, Judge Bessen explored whether there was a “rational relationship” between the government’s purpose and its enacted statute which treats similar parties in very different, unequal ways.

The rational relationship test basically states that a statute may be valid as long as it has a rational relationship to a governmental purpose. In the case of SB 3, the government’s stated purpose was to “promote predictability and improvement in the provision of quality health care services and the resolution of healthcare claims..., assist in promoting the provision of healthcare liability insurance by insurance providers…, [and addressed concerns about] medical providers and facilities leaving the state and the cost of malpractice awards.” For a law to be valid, a rational relationship to those goals must be proven. Judge Bessen found that the cap on damages failed the rational relationship test completely.

In holding the cap on damages provision unconstitutional, Judge Bessen wrote:

After review, this Court finds that there is no rational relationship between statute and the expressed government interest. Most obviously, it is a complete contradiction to state that the overall quality of healthcare would be improved by shielding negligent healthcare providers from liability. In fact, as recognized by other courts, a cap on noneconomic damages actually diminishes tort liability for healthcare providers and diminishes the deterrent effect of tort law… There is absolutely no evidence that these objectives are achieved by imposing a financial burden on the most victimized of plaintiffs… Based on current statistics, limiting noneconomic damage caps is not rationally related to the state purpose of reducing medical malpractice insurance rates… it appears that this statute was enacted arbitrarily, based upon speculation and conjecture rather than empirical data.

Finally, Judge Bessen found that the cap on damages violates Equal Protection because it creates different classes of victims—those injured by healthcare providers and those injured by others and those who are catastrophically injured and those who are less severely injured. Judge Bessen penned, “The cap’s greatest impact falls on those who are most severely injured, and creates classes of fully compensated victims and those only partially compensated… Similarly, the noneconomic damages cap discriminates against low-income individuals who are unable to prove large economic damages but nonetheless may sustain large noneconomic damages.”

The Georgia Supreme Court heard oral arguments in the case yesterday, the first time it has heard a challenge to the constitutionality of the damages caps.


AAJ Issues Report About Unsafe Trucks on U.S. Roads

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.