Day on Torts

One medical malpractice insurer, The Doctors Company, has an interesting article on medical malpractice claims concerning pap smears.

Here is a excerpt from the article that discusses the scope of the problem:

To put the potential magnitude of this problem in perspective, a College of American Pathologists (CAP) study of the five-year “look-back” at previous negative Pap smears following the diagnosis of HSIL/carcinoma found that 10 percent of prior smears were false negatives for SIL/carcinoma. If atypical squamous cells of undetermined significance (ASC-US) were included, 20 percent of prior smears were false negatives. In 1996, the American Cancer Society predicted 15,700 new cases of cervical cancer and 4,700 deaths. Published studies indicated that 60–75 percent of women dying from cervical cancer either never had a Pap smear or had not had one in the five years prior to diagnosis. Therefore, if one assumed that 40 percent of the predicted new cases of cervical carcinoma had a single Pap smear in the prior five years with a 20 percent false-negative rate, there was a potential for 1,256 new claims for failure to diagnose cervical carcinoma on a Pap smear in 1996 alone!  [Footnotes omitted.]

Public Citizen ranks Tennessee 40th in its 2008  ranking of serious doctor disciplinary actions taken by state medical licensing boards.

The Tennessee board took a total of 40 serious disciplinary actions against the 18,137 doctors in Tennessee, or a total of 2.44 actions per 1000 physicians.  The total leading states were Alaska (6.54 per 1000) and Kentucky (5.87 per 1000).  The two states with the lowest rankings were Minnesota (0.95 per 1000) and South Carolina (1.23 per 1000).

In 2006 Tennessee ranked 29th on the list and in 2007 it ranked 28th. 

Many of us know that  doctors prescribe drugs for uses other than those approved by the FDA. 

This article discusses off-label drug prescribing and suggests that physicians who prescribe a drug for an off-label use follow the following steps to obtain informed consent:

• a statement that the off-label use is an “experimental use” so all the possible side effects and complications are not known;
• a list of the common and/or known risks and complications with use of the medication;
• a statement that the details of the treatment have been fully explained in lay terms or in terms that are easily understood by the patient;
• a statement that no guarantees about the results of the medication are given; and
• a statement that the patient is not required to take the medication.

Read the entire article here.

The Idaho Supreme Court has permitted an expert to opine that two defendants in a medical negligence case engaged in not just negligent but reckless conduct.

In Jones v. Crawford, 2009 Opinion 53 (Idaho S. Ct. April 8, 2009), a defendant appealed from an adverse jury verdict in a wrongful death case.  Plaintiffs charged that the decedent’s death from an air embolus after spine surgery was a result of the negligent and reckless conduct of the defendants.  The trial judge permitted the plaintiff’s experts to opine that the conduct of two of the defendants was reckless.

In affirming the trial judge’s decision to admit the expert testimony on the issue of recklessness, the Idaho Supreme Court said