Medical Negligence

September 7, 2010

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

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

As the article notes,

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

August 9, 2010

Sex Abuse Cases Against Therapists

by The Law Offices of John Day, P.C.

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

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

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

August 3, 2010

Doctors in Thailand Voice Common Arguments Against Being Held Accountable for Errors

by The Law Offices of John Day, P.C.

The government of Thailand wants to have a scheme to compensate victims of medical malpractice. Many Thai doctors are opposed to the law. Here is an argument made by the physicians, as reported in Taiwan News:

It means our staff would have to be extra careful during work, which would decrease efficiency," said Somkid Auapisithwong of Thai Federation of Doctors, Main Hospitals and General Hospitals, which looks after the interests of medical practitioners in state hospitals. "We’re already very stretched. Some of our nurses have to work almost 365 days. This would add more stress to our staff. They would have to be extra careful with all sorts of risks and this will hinder their work.

Thanks to Torts Prof for informing me about this article.

July 20, 2010

Trying Medical Malpractice Cases in Nashville

by The Law Offices of John Day, P.C.

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

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

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

July 6, 2010

SVMIC Financial Results – 2009

by The Law Offices of John Day, P.C.

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

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

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

May 25, 2010

Fourth Circuit Remands Case That Slashed Contingent Fee

by The Law Offices of John Day, P.C.

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

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

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

May 24, 2010

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

by The Law Offices of John Day, P.C.

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

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

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

March 22, 2010

Georgia Supreme Court Strikes Down Damages Cap in Medical Malpractice Cases

by The Law Offices of John Day, P.C.

The Georgia Supreme Court has struck down a cap on noneconomic damages in medical malpractice cases, declaring the cap to be a violation of the right to trial by jury. The case is Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, NO. SO9A1432 (Ga. March 22, 2010). Read the opinion here.

The Court ruled that by "requiring a court to reduce a noneconomic damages award determined by a jury that exceeds the statutory limit, OCGA Sec. 51-13-1 clearly nullifies the jury’s findings of fact regarding damages and thereby undermines the jury’s basic function."

February 15, 2010

2009 Medical Malpractice Claims Reports Due March 1, 2010

by The Law Offices of John Day, P.C.

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.

February 4, 2010

Tennessee Nursing Homes – 5th Worst in United States

by The Law Offices of John Day, P.C.

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

The February 3, 2010 article points out that

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