The Tennessean published an op-ed piece I wrote today. Read it here.
As the Med Mal Bill Comes Up – A Reminder
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
Rules of Civil Procedure Amended
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."
Attorney Liability For Distribution of Monies
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:
A Way to Reduce The Number of Lawsuits?
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."
Evaluating Cases Against ERs
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:
Another Aspect of the Big Lie
"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.
Top Ten Medical Malpractice Verdicts – 2000-2005
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.
Tort Cases To Be Argued in April
The Tennessee Supreme Court will hear the following tort cases in Jackson in April:
Dewayne E. Holloway v. State: Whether the Claims Commission lacked subject matter jurisdiction under Tennessee Code Annotated section 9-8-307(a)(1)(E) to adjudicate the plaintiff’s wrongful death claim.
Troup v. Fischer Steel Corporation: Whether the Court of Appeals erred in (reversing the trial court and) determining in this negligence action in which the employee of a roofing subcontractor, from which the employee has received workers’ compensation benefits, sues a steel subcontractor, the jury may assign fault to the general contractor, which is a “statutory employer” but did not pay any workers’ compensation benefits.
Comment on Tuesday’s Post
This is a comment from "Chris" to my post on Tuesday
I agree that the main focus is economics. In general, one CV surgeon is needed for approximately every 35-50 thousand people. Now, it is impossible to do this if you are the only one as then there is constraint of constant call, etc. So, specialists tend to concentrate together. The other factor that brings these physicians into larger areas is that is where the hospitals are large enough to have a dedicated OR team, ICU and cardiac cath labs with the attending cardiologists. To further apply economics, it would cost more to place these facilities in a rural area that it would cost for an entire hospital. Also, the re-embursement for bypass surgery has greatly dropped and the risk of litigation is high. As a result, it is economically unwise to practice in a small area, with a small patient volume, inadequeate facilities.
Chris – what is the source for your data? Are you aware of statistics that tell us what sort of population is required to support a each class of specialist?