medical malpractice

November 3, 2009

Rhode Island Hospital Cannot Get It Right

You know that patient safety is not a priority in a hospital when your state regulatory agency orders that cameras be installed in your operating rooms.

Rhode Island Hospital has had five wrong-site surgeries since 2007. Here is how the AP described the last incident:

The latest incident last month involved a patient who was to have surgery on two fingers. Instead, the surgeon performed both operations on the same finger. Under protocols adopted in the medical field, the surgery site should have been marked and the surgical team should have taken a timeout before cutting to ensure they were operating on the right patient, the right part of the patient’s body and doing the correct procedure.

November 1, 2009

Commercial Appeal Writes About Medical Malpractice Litigation

by The Law Offices of John Day, P.C.

The Commercial Appeal wrote an interesting story on medical malpractice litigation in today’s paper. Read it here.

An excerpt:

Nationwide, the number of payments physicians made for malpractice claims fell to 11,037 last year — the lowest figure since the National Practitioner Data Bank began tracking data in 1990. Adjusted for inflation, the total $3.6 billion they paid was the second-lowest sum on record.

October 22, 2009

New Medical Malpractice Filing Numbers

by The Law Offices of John Day, P.C.

Every day, more than 5 Tennesseans die as a result of medical malpractice.

How do I know such a thing? Simple math. The Institute of Medicine has reported that 98,000 people a year die from medical malpractice. Think about it: the death rate from medical malpractice is the equivalent of a large commercial airline crash every day that results in the death of 268 people.

The USA has about 300,000,000 people. Tennessee has about 6,000,000 citizens, or 2% of the total. Assuming that the rate of medical errors that result in death in Tennessee is no better and no worse than anywhere else in the country, 1960 Tennesseans die every year as a result of medical malpractice (2% x 98,000). And that works out to 163 people per month. That is the equivalent of a commuter jet crash in Tennessee every week that results in the death of about 40 people.

October 18, 2009

Board Certification in Medical Malpractice

by The Law Offices of John Day, P.C.

A couple of months ago I filed an application with the American Board of Professional Liability Attorneys seeking board certification in medical malpractice cases. I have been board certified as a civil trial specialist for over 15 years. In fact, several years ago I served as President of the National Board of Trial Advocacy, the group that certifies civil trial specialists.

For those of you who want to seek certification, here are the criteria:

Be in good standing with your State Bar;
Provide a writing sample, either trial memorandum or brief;
Pass EBOLA’s written examination in either Legal or Medical Professional Liability;
Have spent at least the last 5 years practicing in Legal or Medical Professional Liability;
In the last 3 years, have dedicated at least 25% of your professional time to Medical Professional Liability;
In the last 3 years, have completed a minimum of 36 hours of continuing legal education (CALE) in Medical Professional Liability, or met the CALE requirements of your State Bar, whichever is greater; and
Provide 6 references: 3 judges and 3 attorneys who practice in Legal or Medical Professional Liability.

I have to confess I was a little nervous about the examination. I haven’t taken a test for over 15 years and had no idea what to expect. I was told it was impossible to study for the test, and that advice was correct. The test was at least 50% medicine and the breadth of the subjects covered made studying impractical if not impossible.. I received a break – one series of questions dealt with a medical subject on a case I tried in 2008.

October 6, 2009

An Appropriate Handoff

by The Law Offices of John Day, P.C.

Yes, handoffs occur in football. But they also occur in healthcare, when one professional transfers the responsibility for caring for a patient to another provider.

Here is how The Doctor’s Company explains handoffs when talking about hospitalists:

The primary objective of a handoff is to provide accurate information about a patient’s care, treatment, current condition, and any recent or anticipated changes. Handoffs are interactive communications allowing the opportunity for questioning between the provider and the recipient of patient information. For hospitals, the handoffs that occur during the time when a patient is moved to another unit, sent for a diagnostic test, or transferred to a new physician can create continuity of care issues.

October 1, 2009

Los Angeles Times Article Speaks Out About Tort Reform – “The Healthcare Debate’s Frivilous Sideshow”

by The Law Offices of John Day, P.C.

This column from the Business Section of today’s Los Angeles Times attacks the myth that restriction of the rights of patients to hold health care providers responsible for harming patients must be a part of national healthcare reform.

An excerpt:

Every circus needs a sideshow, which must be why every time the issue of rising medical costs gets debated, politicians start clamoring for "tort reform."

September 30, 2009

New Tennessee Supreme Court Opinion on Comparative Fault

by The Law Offices of John Day, P.C.

The Tennessee Supreme Court has ruled that a plaintiff who lost a medical malpractice case in federal court was not estopped from pursing a case against a State-employed doctor even though the federal court jury assigned no fault to the doctor, a non-party in the federal court action.

An excerpt:

We have determined that the proceeding in federal court did not provide Ms. Mullins with a full and fair opportunity to litigate her medical negligence claims against Dr. Mejia. It is undisputed that Ms. Mullins could not, as a matter of law, recover monetary damages from either Dr. Mejia or the State in the federal proceedings. Common sense also dictates that it would have been foolhardy for Ms. Mullins to press her claim that Dr. Mejia had been negligent in the federal proceeding because doing so would have diluted the strength of her claims against the remaining defendants and would have profited her little in later proceedings against Dr. Mejia. [Footnotes omitted.]

September 17, 2009

Washington Certificate of Merit Struck Down

by The Law Offices of John Day, P.C.

The Washington Supreme Court has struck down the filing of a certificate of merit in medical malpractice cases in Washington state. The certificate is required by RCW 7.70.150.

The opinion said that the statute was unconstitutional because it violated the separation of powers between the Legislature and the Judiciary and it denied medical malpractice victims equal access to the courts.

The Court said that

September 3, 2009

Health Care Reform Everyone Can Support – The Use of Medical Checklists

by The Law Offices of John Day, P.C.

A reader sent me an article in September – October 2009 issue of Harvard Magazine that discusses the work of Dr. Atul Gawande. Dr. Gawande is very interested in patient safety. One of his interests is the use of medical checklists, a subject I have addressed in a previous post.

Apparently, Gawande and his colleagues developed a checklist for surgery patients. The list, described in the article as addressing "rudimentary tasks" (e.g. confirming the patient’s identity), had some amazing results. In one year of use in 8 different hospitals around the world, the rate of complications had dropped one-third; surgicial-site infections by half, and deaths of surgical patients by nearly half.

Seven countries and more than two dozen states require the use of surgical checklists. One wonders why every state in the Union does not require them.

August 27, 2009

New Tennessee Legislation of Interest to Tort Lawyers – Post 15

by The Law Offices of John Day, P.C.

Post 15 addresses the changes to Tennessee law concerning the proper way to give notice to potential defendants in medical malpractice cases and the changes in the law concerning the certificate of good faith.

I have addressed this legislation in several other posts (here is a post with a complete summary) and need not repeat what I have published in the past. For those of you who are involved in medical negligence litigation I suggest you read my article on this legislation in the July 2009 edition of the Tennessee Bar Journal.

The predecessor to this law came into effect last October and has resulted in a significant decrease in the number of medical malpractice case filings. As I wrote in June, the number of filings for the first eight months after the original law law passed are down 60% over a year earlier.