Medical Negligence

April 26, 2012

Tennessee Court Waives Compliance With “Contiguous State” Rule for Expert Witness in Medical Malpractice Case

Tennessee has a goofy rule concerning expert witnesses that, to my knowledge and belief, exists in no other state.

Tenn. Code Ann. § 29-26-115(b) requires any expert witness in a medical malpractice state to practice in Tennessee or a border state unless the trial court “determines that the appropriate witnesses otherwise would not be available.”

The alleged purpose of the contiguous state rule is to increase the likelihood that the witness will know the applicable standard of care. The actual result of this rule is to make it more difficult to find expert witnesses, particularly in specialty medical areas or when the defendant is well-known.

April 25, 2012

Tennessee Court Discusses Whether Expert is Qualified to Speak to Defendant’s Standard of Care Under Locality Rule

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

Tennessee law requires that the plaintiff present expert proof that the defendant violated the standard of care applicable in the community in which the care was given at the time the care was given. Proof of the standard can come from an otherwise qualified expert who knows the standard of care in that community or in a similar community. This rule is codified in Tenn. Code Ann. § 29-26-115(a).

In Marsha McDonald v. Paul F. Shea, M.D. and Shea Ear Clinic, No. W2010-02317-COA-R3-CV (Tenn. Ct. App. February 16, 2012), the Court of Appeals engaged in a lengthy discussion of whether Plaintiff ’s expert was qualified to testify under Tenn. Code Ann. § 29-26-115(a). The court’s reasoning was guided by the recent Tennessee Supreme Court case of Shipley v. Williams, 350 S.W.3d 527 (Tenn. 2011). In Shipley, the Supreme Court rejected the notion that an expert must have personal, first-hand knowledge of the standard of care by actually practicing in a community. The Supreme Court also held that “expert medical testimony regarding a broader regional standard or a national standard should not be barred, but should be considered as an element of the expert witness’ knowledge of the standard of care in the same or similar community.”

These two holdings in Shipley gutted the majority of Defendants’ objections to the competency of Plaintiff ’s expert in this case.

March 29, 2012

Medical Malpractice Case Filings Still Below Pre-Tort Reform Levels

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

Medical malpractice case filings were up last year but are still below the filings for the year when the first tort reform hit medical malpractice cases.

October 1, 2008 was the date that pre-suit notice and certificates of good faith became required. In the year before the law change, 646 medical malpractice cases were filed in the entire state. Some 140 of those cases were filed in the month before the law changed – ordinarily only about 46 were filed per month.

Predictably, filings were down substantially in the year ending September 30, 2009 – only 264 cases were filed. The next year filings were up to 314, and the year ended September 30, 2011 there were 378 medical malpractice cases filed.

March 26, 2012

Expert Witness Qualifications in Tennessee Medical Malpractice Case

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

The Sixth Circuit Court of Appeals has reversed a district court’s finding that an expert witness was not qualified to testify on behalf of a plaintiff in a health care liability action, relying on Shipley v. Williams, 350 S.W.3d 527 (2011).

In Bock v. University of Tennessee Medical Group, Inc., No. 10-5534 (6th Cir. March 26, 2012), the court ruled that Shipley required a remand but also made it very clear that merely determining a witness to be competent to give expert testimony did not end the inquiry. After competency is determined, case law and evidence rules in federal court still require application of the FRE 702 as interpreted by Daubert. The record was such that the court could not make the determination of these issues and thus a remand was appropriate.

The case includes a helpful discussion of the interaction between the Erie rule and the Federal Rules of Evidence and how the 6th Circuit has addressed the issue. Surprisingly, the United States Supreme Court has never directly addressed the issue.

March 19, 2012

Debunking the Myth: The Poor Do Not File More Medical Malpractice Cases

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

Four professors have written an article titled "Do Poor People Sue Doctors More Frequently? Confronting Unconscious Bias and the Role of Cultural Competency."

The article concludes that "Contrary to popular perception, existing studies show poor patients, in fact, tend to sue physicians less often. This may be related to a relative lack of access to legal resources and the nature of the contingency fee system in medical malpractice claims."

Quite frankly, there is no original research in this article, but it is a good collection of research that has been out there for several years.

March 15, 2012

SVMIC Enjoys More Financial Success

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

State Volunteer Mutual Insurance Company, the Tennessee medical malpractice insurer owned by the doctors themselves, has had another profitable year even with its significant rate decrease.

The company, which insures about 75% of the doctors in the state, has announced the following financial results and other data for the year ending December 31, 2011:

Net income – $28,012,000.
Policyholder’s Surplus (equivalent to net worth): $436,424,000
2011 Dividend – $20,100,000
Total Dividends paid during company existence – $300,000,000
Rate of return on investments – 5.3%
Average decrease in premiums over last 3 years – 31% (mature, base premiums)
Insured physicians – 14, 476

The gross premiums written have decreased since 2007 for two reasons. First, SVMIC has lost almost 1600 doctors as clients during that period. Second, rates have declined substantially during that period. The combination of the two factors has resulted in a decreased of gross premium written of a little over $90,000,000. Profits remain high because investment income has remained about the same (actually, it is a little higher) and net paid loss and loss adjustment expenses have increased only about 5% in five years. Surplus during the 5 year period has increased over 80% despite payment (through premium credits) of $48,000,000.

March 12, 2012

Parents Sue for Wrongful Birth of Child With Cystic Fibrosis. What Would Happen in Tennessee?

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

Insurance Journal reports that the parents of a child born with cystic fibrosis sued various Montana health care providers, saying that had they known of the genetic disorder they would have terminated the pregnancy.

Cystic fibrosis causes sticky mucus buildup in the lungs and other organs, leading to infections, digestive problems and death in young adulthood. The typical life expectancy is about 37 years, according to the Cystic Fibrosis Foundation.

The couple alleges that genetic testing the mother underwent in the first trimester failed to explore whether the child was likely to have cystic fibrosis. The parents would have terminated the pregnancy because they claim they were not emotionally or financially equipped to care for a child with that illness.

February 15, 2012

New York Attacks Junk Science Used in Defense of Brachial Plexus Case

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

One of the defenses commonly asserted in an Erb’s Palsy medical malpractice case is the "natural forces of labor defense." The Appellate Division of the Supreme Court of New York recently ruled that a trial judge did not abuse his discretion by ruling that the defense could not be presented to the jury because "defendants failed to rebut plaintiff’s showing that [the] theory was not generally accepted within the relevant medical community" and that the theory "lacked an adequate foundation for its admissibility."

Mark Bower, guest blogger at the New York Personal Injury Law Blog, does an excellent job explaining the injury and the creation of a defense to it:

Erb’s Palsy is a neurological injury that is commonly the subject of birth trauma litigation. For over 100 years, it was generally accepted that Erb’s Palsy happens when a baby’s shoulder gets caught in the mother’s birth canal during delivery. If the delivering doctor pulls on the baby’s head in order to dislodge the stuck shoulder, the nerves running down from baby’s neck to the shoulder and arm (the “brachial plexus”) can be stretched or torn, resulting in a crippled arm. That the newborn has a non-functioning arm is usually recognized at the time of birth, or very shortly thereafter.

January 31, 2012

Arkansas Supreme Court Limits Legislature’s Efforts To Determine Who Can Testify As An Expert

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

The Arkansas Supreme Court has rejected an effort by the Arkansas Legislature to define who is permitted to give testimony as an expert witness in a medical malpractice case.

Broussard’s medical malpractice case was dismissed on summary judgment after her expert witness was excluded under Arkansas Code Annotated section 16-114-206 (Repl. 2006). Broussard argued that the requirement in section 16-114-206(a) that proof in medical-malpractice cases must be made by expert testimony by “medical care providers of the same specialty as the defendant” violates section 3 of Amendment 80 of the Arkansas Constitution.

In Broussard v. St. Edward Mercy Health System, Inc., 2012 Ark. 14 (Jan. 19, 2012), the Arkansas Supreme Court held that "the provisions in section 16- 114-206(a), which provide that expert testimony may only be given by “medical care providers of the same specialty as the defendant,” violate the separation-of-powers doctrine, Amendment 80, and the inherent authority of the courts to protect the integrity of proceedings and the rights of the litigants.

December 22, 2011

Evaluating Chest Pain in the Emergency Room

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

This article by an emergency room physician in Texas providers a good summary for the evaluation of chest pain in the emergency room.

The article explains that "The decision to discharge a patient who presents with chest pain as the primary complaint should be made only after careful consideration of potential consequences. Patients with myocardial ischemia (MI), angina, pulmonary embolism, dissecting aortic aneurysm, or pneumothorax all can present with chest pain. Your evaluation and documentation should take into consideration all of these high-risk conditions."

The author explains the importance of documentation with these words: