Articles Posted in Medical Negligence

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."

It just makes sense for hospitals and doctors to try to resolve problems with patients before lawyers  get involved, and it looks like they are starting to do it.

This article from www.law.com explains how facilities are starting to aggressively deal with potential claims and avoid litigation. 

Look at what happened to claims at the University of Michigan Hospital when such a program was adopted:  "In August 2001, there were 262 total claims, ranging from presuit notices to active litigation; in August 2002, there were 220 total claims; 193 claims in August 2003; 155 claims in August 2004; 114 claims in August 2005; and since that time, the total number of claims has fallen to fewer than 100…."  This occurred despite an increase in clinical activity.

Dr.  Fullerton made a horrible mistake.  He testified for a patient in a medical malpractice case.  The defendants won the case and turned Dr. Fullerton into the Florida Medical Association "stating, among other things,  that his opinion testimony fell below reasonable professional standards, that it was  made “for the sole purpose of propagating a frivolous lawsuit for financial gain,” and  that he specifically “presented false testimony and false theories about stroke in the  hope to prove negligent medical care in an 80-year-old diabetic with previous strokes  who suffered a stroke despite appropriate care.” Appellees concluded their letter with  a request to the FMA to issue an opinion addressing whether Fullerton’s testimony  “fall[s] below standards,” and, if so, to report its findings to the Board of Medicine for  appropriate disciplinary action in order “to prevent the Medical profession from being  terrorized by similar experts.”

Fullerton (who was not a member of the FMA) responded with litigation, alleging  " that the statements in the  letter were false and were submitted for processing by the FMA’s Expert Witness  Committee (EWC) of FMA’s Council on Ethical and Judicial Affairs (CEJA), which  was organized for the purpose ‘of intimidating, hindering, and deterring persons, including plaintiff Fullerton, from appearing as expert witnesses on behalf of plaintiffs  in cases involving medical malpractice,’ thereby depriving injured plaintiffs of the  ability to pursue medical-malpractice lawsuits. He continued that because of the  actions of FMA and the defendant doctors, who acted in concert to inhibit expert  testimony in medical malpractice cases, he had suffered damages and would suffer  irreparable harm to his reputation and to his capacity to earn income in the future if  the defendant FMA’s CEJA and EWC programs were permitted to continue their  operations."

The doctors and the FMA claimed they were immune from suit under the peer review statute in Florida.  The trial court dismissed the case.

The Supreme Court of Tennessee issued an important ruling on the “foreign object” exception to the medical malpractice statute of repose and statute of limitations. The case is Chambers v. Semmer, M.D., and deals with what exactly constitutes a foreign object. The plaintiff’s theory in the case is that a hemoclip was negligently placed on her ureter during a surgery and left there, later causing her left kidney to fail. The defendants countered that they did not leave any hemoclip on the plaintiff’s ureter, but that “hemoclips are used intentionally and are intended to remain permanently,” so they could not be foreign objects. The Supreme Court rejected the defendants’ argument, ruling “that a hemoclip that is intentionally used but negligently placed and negligently left in a patient’s body following surgery may be a “foreign object” under Tennessee Code Annotated section 29-26-116(a)4) that establishes an exception to the one-year statute of limitations and the three-year statute of repose.”

Read more about the opinion at our firm’s Tennessee Medical Malpractice Blog.

I apologize for the lack of a post Friday and Saturday. Friday morning I was in North Carolina and did not have access to a computer. By the time I made it to the office I had back-to-back conference calls or appointments until 4:15 and just decided to wait until Saturday morning to blog.

Friday night Joy and I went to the cabin. I got up early Saturday morning but for reasons I do not understand I could not get access to the Internet. I spent several hours riding my early birthday present (a Sea Doo RXT) and messing around in the water.

I got up early again this morning and, surprise, the Internet connection is working. So, I decided to bang out this post before Joy and I meet our friend Buzz at 8:00 a.m. to get in some water skiing before the water gets rough

Judge Koch and the Court of Appeals for the Middle Section have ruled that a summary judgment in favor of a doctor in a medical malpractice case must be reversed because the plaintiff was not given adequate time to marshal the facts necessary to respond to it and submit an affidavit necessary to defeat the motion.

I have commented before that it is a mistake for lawyers to assume that a trial judge will automatically give a plaintiff additional time to respond to a motion for summary judgment. But this case tells us that a plaintiff must have a reasonable opportunity to respond to the motion, and recognizes that “[i]t is quite conceivable that careful experts will withhold rendering an opinion based on medical records or supporting affidavits alone.”

Say it again, brother. Lawyers who handle medical negligence cases know that the medical records tell only part of the story and that if you develop, in writing, a theory of the case based on the medical records any gaps in the records will be filled with facts contrary to your theory. Am I saying that health care providers lie? Oh, sometimes – they are human. But in the ordinary course “lie” is too strong of word. It is more accurate, and certainly more polite, to say that most human beings tend to resolve doubts in favor of themselves, particularly when those doubts cannot be controverted by something written in their own hand. Hence, a careful expert, and a careful lawyer, will not assume facts that only can be found in the gray matter of an opponent or potentially hostile witness.

The Joint Commission has released the Fourth Edition of its book “Patient Safety Essentials for Health Care.”

The blurb: “This book is the complete guide to the Joint Commission’s safety standards for ambulatory care, behavioral health care, critical access hospital, home care, hospital, and long term care organizations. It includes the standards, rationales, elements of performance, and scoring information in one handy resource. This book also identifies the commonalities among the standards to help readers understand which standards apply to which settings.”

Order it for $75.00 here.