The Tennessee Department of Commerce and Insurance has released the "2006 Tennessee Medical Malpractice Claims Report"" which, in fact, is based on 2005 data. Read the entire report here.
Some highlights:
* There were 5 – that’s right – 5 – claims were resolved by judgment for the plaintiff in the entire state. There were 6 verdicts for the plaintiff in 2004.
The Georgia Supreme Court was confronted with this question: "In what circumstances, if any, is evidence of a nurse’s failure to pass a licensing examination admissible in a medical malpractice action against the employing physician?"
Plaintiffs’ son Luke was diagnosed with bacterial meningitis resulting in brain damage and quadriplegia. Plaintiffs claimed that Luke’s pediatrician and his employees should have picked up on the symptoms given the information provided in a series of contacts. Plaintiffs introduced expert testimony that the pediatrician, Dr. Basilio, violated the standard of care by permitting an unlicensed nurse to answer weekend calls and give advice without consulting a supervising physician. To support that testimony, the Sniders showed that Nurse DeVera was not licensed. However, the trial court did not allow the Sniders to show that Ms. DeVera failed to pass the nursing board examination.
The Georgia Supreme Court agreed. It said as follows: "Simply put, the issue in this case is not whether Ms. DeVera was generally competent, but whether Dr. Basilio breached the standard of care in hiring her because she was unlicensed. On this issue, the plaintiffs’ experts were able to testify that Dr. Basilio breached the standard of care by hiring an unlicensed nurse and allowing her to answer weekend calls without supervision. The fact that Ms. DeVera was unlicensed was key to resolving this issue. Why she was unlicensed was not."
The Florida Supreme Court has released an important decision on testimony by expert witnesses.
Plaintiff’s counsel sought an order prohibiting a defendant’s expert from testifying that he relied on consultations with colleagues or other experts in forming his opinions. The Florida high court said "that such testimony is inadmissible because it impermissibly permits the testifying experts to bolster their opinions and creates the danger that the testifying experts will serve as conduits for the opinions of others who are not subject to cross-examination." However, the Court made it clear that "our opinion today in no way precludes experts from relying on facts or data that are not independently admissible in evidence ‘[i]f the facts or data are a type reasonably relied upon by experts in the subject.’”
The Court also said that "[a]llowing qualified experts to testify as to the prevailing professional standard of care under section 766.102(1), Florida Statutes (2005), does not permit experts to conduct a survey of a myriad of other experts or colleagues to derive a consensus on the standard of care."
Plaintiff received neck and spinal cord injuries in a motor vehicle accident. He was taken to the local ER; the ER doctor thought he needed to be seen by a neurosurgeon. The on-call neurosurgeon (Ebeling) said he was very tired and would not be coming to the hospital and recommended that Plaintiff be transferred to a trauma center. Plaintiff was transferred and was determined to have developed C-7 paraplegia.
The ER doctor testified that Ebeling’s refusal to come in was the first time a doctor had refused to come to the ER because of fatigue.
Plaintiff sued Ebeling (and others); Ebeling defended by saying that there was no physician-patient relationship between him and Plaintiff and that he was not negligent.
Do you remember Kelley v. Middle Tennessee Emergency Physicians, P.C., 133 S.W.3d 587 (Tenn. 2004), when the defendant tried to claim that he owed no duty to the plaintiff because he was not the plaintiff’s regular doctor? The defendant was called by the emergency room doctor and gave the doctor advice that allegedly turned out to be wrong. The defendant said his advise was a "curbside opinion" and did not give rise to a duty of care to the patient. The Tennessee Supreme Court respectfully disagreed and said an issue of fact existed on the subject. (Note: the Court also made it quite clear that they thought the defendant’s argument that there was a mere "curbside consultation" based on the "undisputed facts" was a stretch – see text accompanying fn. 17 in the opinion).
Well, the nice folks in Mississippi just had a "sidewalk opinion" case. The defendant doctor there said he did not owe a duty to the patient to give the patient’s treating physician the right advice when the treating physician called and sought and opinion before referring the patient to the defendant for treatment. In Scafide v. Bazzone, NO. 2004-CA-01658-COA (Miss.Ct. App. 9/12/06) the Court held that the defendant did not have a duty.
The key language from the opinion:
Here is an unusual case out of California – a unique application of the "reasonable person test" when applying the causation standard in an informed consent case.
Wilson was paralyzed from spinal surgery for scoliosis, rendering him a paraplegic. He was wheelchair bound and needed to use his arms and shoulders to get in and out of the wheelchair. Some five years ago Wilson had a stroke, and thereafter developed adhesive capsulitis in his shoulder. His doctor referred him to a chiropractor, who recommended manipulation under anesthesia. Wilson asked his doctor questions about the risk associated with the procedure, and allegedly was told by his doctor that the only risk was an infection secondary to an injection that was part of the procedure. His doctor was present at the procedure performed by the chiropractor. Wilson suffered a fractured shoulder and a torn rotator cuff during the procedure. As a result, he had to undergo surgery to repair the damage.
Wilson sued the doctor, the chiropractor and others, saying that he never gave informed consent to the procedure. The case went to trial against the doctor, but the trial judge dismissed this case on several grounds, including the failure of Wilson to prove causation in the informed case.
Timothy Brown sued the United States alleging that his daughter Melody developed spinal bifida as a result of a military doctor recommending to Deborah Brown (Melody’s mother and a member of the military) than she (Deborah) stop taking prenatal vitamins during a critical period in his development in utero. The vitamins contained folic acid, which the Tommy alleged is intended solely to prevent neural tube defects in a developing fetus. Neural tube defects can cause serious spinal cord and brain injury during the first 28 days of gestation, after which the fetal neural tube closes. Deborah Brown sustained no physical injury whatever from the effects of the negligent prenatal treatment, from her pregnancy, or from Melody’s birth.
The United States moved to dismiss, alleging that it was immune from suit under Feres v. United States, 340 U.S. 135 (1950). Feres held that the government “is not liable under [the Act] for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” Id. at 146. Plaintiff argued that the Feres doctrine was inapplicable because Melody’s injury was not derivative of any injury to her mother but was, rather, the result of negligence affecting Melody directly(albeit in utero).
The district court (Judge McCalla in Memphis) dismissed the case, saying the case was controlled by a prior decision of the Sixth Circuit in Irvin v. United States, 845 F.2d 126 (1988), which held that "the treatment accorded to a pregnant member of the military on active duty is inherently inseparable from that accorded to the fetus and that such a claim would therefore force a judge to question the propriety of decisions or conduct of fellow members of the military."
The statute of limitations is tolled when the plaintiff is of unsound mind. Tenn. Code Ann. § 28-1-106. Does the fact that a Durable Power of Attorney (executed before the incompetency) is in existence trump the tolling statute and require the attorney-in-fact to take action within the original statute?
The Tennessee Court of Appeals said "no" in Sullivan v. Chattanooga Medical Investors, L.P., No. M2004-02264-COA-R3-CV – (January 26, 2006). See the original opinion here.
Judge Susano put the issue this way: "Is the tolling effect of Tenn. Code Ann. § 28-1-106 implicated when an individual, while competent, grants another a durable power of attorney, including the power to act for the grantor with respect to “claims and litigation”? The crux of both the defendant’s argument and the trial court’s holding in opposition to the application of § 28-1-106 is that, by granting a durable power of attorney, the deceased removed himself and the plaintiff from the ambit and protection of § 28-1-106."
From a recent press release issued by the Tennessee Dept. of Commerce and Insurance:
"Public Chapter 744, effective May 23, 2006, contains several important changes to the Medical Malpractice Reporting Law of Tennessee, (Public Chapter 902, adopted in 2004, and codified at Tenn. Code Ann. § 56-54-101). For the first time, it requires “reporting entities” (insurance companies, uninsured health care facilities and professionals) to include the damages and defense expenses incurred from the inception date of the medical malpractice claim until the end of the reporting year in its annual report to the Department of Commerce & Insurance (the “Department”). This change will enable the Department to accurately report on all of the costs to date incurred by reporting entities in its annual report to the General Assembly, rather than just those costs incurred during the reporting calendar year. The law requires reporting entities to re-file 2005 reports by July 1, 2006 to reflect these inception-to-date damages and costs, and also extends the deadline for the Department to report to the General Assembly from September 1 to November 1 of each year.
The legislation places requirements on counsel for claimants to submit their information on medical malpractice fee arrangements directly to the Department by April 1 of each year, beginning in 2007. Counsel for claimants are also included in the definition of “reporting entities” over which the Department has civil penalty authority to levy a fine of $100 a day for failure to report. The law now requires claimant’s counsel to report the portion of settlement or judgment received in the reporting calendar year. Similarly, all reporting entities must now list the name of each attorney representing claimants in its annual report in order to provide the Department with additional enforcement information. All settlement and judgment information submitted to the Department will continue to be held confidential, and reported only in aggregate form.
Efforts to improve teamwork and communication have substantially reduced births resulting in traumatic injury .
Many of the Seaton hospitals have worked with the Institute for Healthcare Improvement to reduce preventable childbirth injuries by " improving communications, standardizing procedures and reducing risky methods that speed deliveries, including forceps use, vacuum deliveries and medication to induce labor," according to an article in the American-Statesman.
The paper reports that overall the actions have "reduced traumatic birth injuries from 3.2 per 1,000 in 2004 (less than half the national average) to 0.3 injuries per 1,000."
Day on Torts