Articles Posted in Medical Negligence

The Tennessee State Board of Medical Examiners has a policy about prescribing drugs.  It applies to any prescription written for a patient, whether in person, electronically, or over the Internet. 

The policy includes the following:

(1) Except as provided in paragraph (2), it shall be a prima facie violation of T.C.A. 63-6-214 (b) (1), (4), and (12) for a physician to prescribe or dispense any drug to any individual, whether in person or by electronic means or over the Internet or over
telephone lines, unless the physician has first done and appropriately documented, for the person to whom a prescription is to be issued or drugs dispensed, all of the following:
(a) Performed an appropriate history and physical examination; and
(b) Made a diagnosis based upon the examinations and all diagnostic and laboratory tests consistent with good medical care; and
(c) Formulated a therapeutic plan, and discussed it, along with the basis for it and the risks and benefits of various treatments options, a part of which might be the
prescription or dispensing drug, with the patient; and
(d) Insured availability of the physician or coverage for the patient for appropriate
follow-up care.

Paragraph  (2) provides as follows:

Nursing homes continue to attempt to avoid trial by jury by requiring residents to sign arbitration ageements.  And the Tennessee courts continue to insist that if nursing homes are going to do so they must follow the law.

Here are two decisions that refuse to enforce arbitration provisions in nursing home contracts because they contracts were signed by a person other than the nursing home resident or appropriate representative:  McKey and Ricketts.  Both cases were decided on August 15 by the Tennessee Court of Appeals and were authored by Judge Andy Bennett.

 UPDATE:  And here is another decision, this one from Special Judge Walter Kurtz:  Jones.   Jones was released on August 20, 2008.

Tennessee permits a plaintiff to rely on the res ipsa loquitor  doctrine in medical negligence cases when appropriate under the facts.  For the most recent Tennessee case on the issue see Flowers v. H.C.A. Health Care Services of Tennessee, Inc., 2006 WL 627183 ((Tenn. Ct. App. Mar. 14, 2006).

But take a look at this case out of Missouri.  It holds that a plaintiff can rely on res ipsa in a case where the plaintiff got an E. coli infection after back surgery.

The Missouri Court noted that "Plaintiffs have alleged that all defendants were in control or had a right of control of the instrumentalities from which her infection was obtained, that the infection in the surgical site itself is one that does not occur in the absence of negligence, that the defendants all were negligent, that she was unconscious and has no knowledge of how the infection occurred, and that the defendants have superior knowledge of how it occurred."  The plaintiff had an expert to support this position but who could not say how the infection actually occurred.

How does SVMIC evaluate claims?   Here is what they tell their insureds.

The Arizona Court of Appeals has ruled unconstitutional a state statute that imposed certain requirements on expert witnesses in medical malpractice cases.  The statute required that experts be board certified in the same specialty as the defendant and mandated that the expert have practiced (or taught) that same specialty for the year prior to their testimony.

The Court ruled that it was the job of the courts to make rules relative to matters of procedure and that the legislature could not infringe on the role of the courts.

The case is Seisinger v. Siebel,  No 1 CA-CV 07-0266 (AZ. Ct. App. June 17, 2008).  Read it here.

Here is an interesting post from Torts Prof Blog:

"After all the time and money spent, aren’t the results of medical malpractice litigation extremely accurate? Although perhaps better than earlier studies indicated, malpractice results are imprecise. The Harvard School of Public Health study, in assessing how often medical error occurred in a random sample of closed claims, found that, "73 percent of all claims for which determinations of merit were made had outcomes concordant with their merit." Studdert et al., 354 New Eng. J. Med. at 2028. That figure would likely be reduced somewhat further if the technical requirements of medical malpractice were applied to the concept of medical error. In sum, after all these resources are expended, more than one in four cases is decided incorrectly.

Data is mixed regarding the distribution of the errors (whether errors generally favor plaintiffs or health care providers). The Harvard School of Public Health study finds a fairly even distribution. On the other hand, Professor Philip G. Peters, Jr. analyzed all seven studies that have compared verdicts rendered in individual malpractice cases with independent evaluations of each claim by medical or legal experts. Philip G. Peters, Jr., Doctors & Juries, 105 Mich. L. Rev. 1453 (2007). According to Peters, the studies demonstrate that plaintiffs win about 10% to 20% of cases with weak evidence of negligence and 50% of the cases with strong evidence thereof. In other words, plaintiffs win between 10% and 20% of cases they should likely lose, but lose one-half of cases they should likely win. Id. at 1464. If that’s true, plaintiffs’ lawyers, who tend to support the current malpractice regime, take a big risk with each individual client with a strong case that goes before a jury."

The Tennessee Supreme Court issued its first two tort law opinions of the year yesterday, both dealing with the same subject: the potential liability of a hospital for the acts of a non-employed,, hospital-based physician. 

The Court said  that

"to hold a hospital vicariously liable for the negligent or wrongful acts of an independent contractor physician, a plaintiff must show that (1) the hospital held itself out to the public as providing medical services; (2) the plaintiff looked to the hospital rather than to the individual physician to perform those services; and (3) the patient accepted those services in the reasonable belief that the services were provided by the hospital or a hospital employee."

The Speaker of  the House signed a bill yesterday that makes it more difficult for patients to bring medical malpractice actions.  The Senate Speaker signed the legislation last week and therefore the bill is on its way to the Governor.

The legislation requires that a patient give at least 60 days notice to the defendants before filing a medical malpractice lawsuit. 

More significantly, the legislation requires that a certificate of merit be filed within ninety days of filing suit.  The certificate of merit must be signed by plaintiff’s counsel, who is certifying that

Indiana is not known as a particularly progressive state when it comes to tort law (or anything else for that matter).

But not even Indiana could deny a plaintiff the use of the res ipsa doctrine when the plaintiff caught on fire during surgery.

You read that right.

To those of you who had a medical malpractice judgment or settlement in 2007:  Please remember that  the 2007 "Counsel for Claimants" reports must be completed and sent to the Tennessee Dept of Commerce and Insurance on or before April 1, 2008.  Here is the website where you can download the form.

The purpose of gathering this data is to learn the truth about medical malpractice verdicts and settlements in Tennessee and the costs associated with medical malpractice litigation.  This is the second year that attorneys for claimants have been required to share information with the state.

Here is a summary of the report for the 2005 calendar year: