State Volunteer Mutual Insurance Company , the doctor-owned medical malpractice insurance carrier, continues to enjoy profitability, according to my review of its 2006 Annual Report that was recently filed with the Tennessee Department of Commerce and Insurance.
A few highlights:
* Surplus, the insurance industry equivalent of net worth, increased $33,000,000 to a total of $217,000,000. This represents an increase of almost 18% in one year. This follows a $16.4 million dollar increase in 2005.
Vioxx is back in the news. Merck won one and lost one in New Jersey and is on trial in Illinois.
In New Jersey, the jury condemned the pre- April 2002 label but approved the label issued that month. The verdict was under New Jersey’s consumer law fraud, which has a fee-shifting provision. The jury will now consider the issue of causation on the pre-April 2002 label – the plaintiff is Frederick Humeston. Read more here.
The Illinois case has just started and is expected to take four to six weeks.
The Tennessean published an op-ed piece I wrote today. Read it here.
The bill to limit health care provider’s responsibility for their errors comes up in Senate Judiciary tomorrow afternoon. Here is a list of some recent posts on the issue:
"The Great Medical Malpractice Hoax"
Another Aspect of the Big Lie
The Tennessee Rules of Civil Procedure have been amended. The amendments are effective on July 1, 2007. See the amendments here.
The two most significant changes are to Rule 15 and Rule 56. Rule 15.01 has been amended to add the following language: "For amendments adding defendants pursuant to Tenn. Code Ann. §20-1-119, however, written consent of the adverse party or leave of court is not required."
Rule 56.04 has been amended to add the following language: "The trial court shall state the legal grounds upon which the court denies or grants the motion, which shall be included in the order reflecting the court’s ruling."
This South Carolina case reminds us of our responsibilities when receive money on behalf of a client and are aware that a portion of the proceeds have been assigned to a third party.
The Court found that the lawyer was aware of the assignment and went on to say as follows: "A letter of protection offers one method protecting a creditor’s interest. However, the absence of a letter of protection does not automatically relieve an attorney of a duty under an assignment."
The Court cited several cases in support of its position, as well as these sections from 1.15 of the RPC:
Texas has a rule that permits presuit depositions to be taken, not just be preserve testimony but also to do discovery to determine the merits of a claim before filing suit.
Professor Lonny Hoffman has written about the subject. Here is an abstract of the article:
"What is the relationship between access to information and access to justice? Private parties obviously have many publicly available points of access to the information they seek in order to file a lawsuit. Lawyers can talk to their clients and other willing witnesses. Documents can be gathered. Specific statutes may sometimes permit information to be obtained before a formal lawsuit is brought. On other occasions, however, information needed or desired will lie solely within the exclusive knowledge and control of another. The ability of private parties to compel the production of information, documents or testimony before litigation rarely has been seriously considered as a factor bearing on access to court. Beyond the lack of treatment of the doctrinal sources of authority, no attempt has been made by academic commentators or those most closely involved in civil procedural reform to gather empirical evidence to try to fix how important to the institution and maintenance of civil suits is the right to take presuit investigatory discovery. This Article seeks to fill these vital gaps that exist in the literature and in the public debates, more generally, over access to justice. After examining the available authority in the federal and state courts, the author gathers and reports on original empirical research conducted on the use of presuit investigatory discovery by private parties. That data comes from Texas, where the state rule provides the broadest grant of authority to prospective litigants to invoke judicial process for investigatory purposes. The empirical evidence from Texas may reasonably be read as indicating widespread use of the state’s presuit discovery rule, most likely on the order of approximately one out of two lawyer and judge respondents reporting at least one experience in which a presuit deposition was taken. Relatedly, it appears that approximately 60% of the time the deposition was taken to investigate a potential claim before suit was filed; the remaining 40% of depositions were secured for the purpose of perpetuating testimony. Examining the available data, the author argues that there are good reasons to believe that the perceived need to satisfy formal legal requirements to bringing suit, as well as the pull of practical considerations, may plausibly explain the incidence of use of the state’s presuit discovery rule. Read in this manner, the empirical evidence suggests an important relationship exists between access to information and access to justice."
Part of the case evaluation process is a review of appropriate literature. A literature review is not enough – you still need as expert to testify that the protocols set forth in any given piece of literature represent the standard of care. But the existence of literature on point can help you persuade experts to testify and, indeed, can even help you identity experts (by contacting the authors).
The American College of Emergency Physicians (ACEC) has issued a list of documents which "describe the College’s policies on the clinical management of presenting symptoms, specific illnesses or injuries." The ACEC’s Clinical Policies Committee drafts each protocol and and each protocol is approved by the ACEP Board.
Here is the list:
"It’s not personal responsibility I have a problem with. It is the constant threat of litigation that gets to me. And that’s why we need to cap damages in malpractice lawsuits."
How many times have you heard some member of the health care industry say that?
I guess that the argument means that the industry doesn’t mind valid lawsuits (how can they say anything else?) but they don’t like non-meritorious lawsuits. But how does capping damages stop non-meritorious lawsuits? Capping damages only limits recoveries for claims already found to be meritorious.
SVMIC, the well-managed, physician-owned liability insurance company that insures an estimated 90% of the doctors in the state, publishes a newsletter called "Riskpoints." It is available on their website.
The Fall 2006 edition of the newsletter (article in on Page 2 of the newsletter). listed the top ten jury verdicts against SVMIC insureds in the six year period 2000-2005. Four of those verdicts were by out-of-state juries (SVMIC writes insurance in multiple states).
The largest verdict was the verdict in Hunter v. Ura, a Davidson County case, in the amount of $5.8M. The decedent, a six-figure wage earner, died as the result of an anesthesa error. He left a wife and two minor children behind.
