Articles Posted in Medical Negligence

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.

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.

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:

This article from www.claimsjournal.com reveals data from the Physician Insurer’s Association of America on the monies spent on defense costs in medical malpractice cases.

The PIAA reviewed closed claim data for 2009 and found that the average defense costs for medical malpractice lawsuits was $69,244 for cases that settled and ranged between $140,000 and $170,000 for cases that were tried.

The rates paid were not disclosed.  The article did not discuss whether "defense costs" included expenses such as court reporter fees, expert witness fees, etc.  Given the numbers that were disclosed, I assume that such expenses were not included in the amounts.

Here is a great article by Shirley Svorny of the well-known liberal outfit, the  Cato Institute.  The article originally appeared in The Huffington Post:.

The U.S. House is set to consider on the Republicans’ Jobs Through Growth Act, which contains a section aimed at reforming medical malpractice by imposing caps on economic and non-economic damages similar to those in place in Texas. Texas limits non-economic and exemplary (punitive) damages in all cases, and limits what relatives can get in cases of wrongful death. An obvious disturbing consequence is that caps reduce compensation to severely-injured individuals. Caps would hurt consumers in a second way — lower damage awards would reduce medical professional liability insurers’ financial incentives to reduce practice risk.

Much of the protection consumers have against irresponsible and negligent behavior on the part of health care providers hinges on oversight and incentives created by the medical professional liability insurance industry. A nationwide shift to caps could result in more cases of negligence and substandard care.

NPR reports that a recent meeting of the Society for  Neuroscience  discussed why brain damage occurs in premature births.

Research has revealed that the most common cause of brain injury in premature infants is a lack of oxygen in the days and weeks after birth.  Apparently, the lack of oxygen damages white matter, which provides the "communication highways" that carry messages around the brain and to distant parts of the body.  The babies at greatest risk of this sort of brain damage are those born after as little as six months of gestation.

This lack of oxygen appears to damage the most common type of white matter, myelin, which acts like an insulator around the nerve fibers that carry messages in the brain and nervous system. Without enough myelin, short circuits can prevent these messages from getting through.  Evidence of white matter damage was initially found by studying brains from premature infants who died, but recently the researchers have been able to assess premature infants using a special incubator designed to fit in an MRI scanner.

The Doctor’s Company sells medical malpractice insurance to doctors.  In 2010, it conducted  525 patient safety site surveys. The surveys  were conducted across a range of practice environments around the country—from small office practices to large integrated delivery systems, hospitals, and outpatient facilities, such as surgery centers.

The survey found that in the 15 categories it surveyed,  medical record documentation was the category with the most frequent patient safety/risk management issues. A total of 266 surveys—more than half of the 525 site surveys—had at least one issue related to this category. Top findings within this category included the failure to document allergy status in the same location in each record and the lack of a problem list or a list of current medications.

The research also disclosed that  two combined categories—lab tests/referrals and scheduling/follow-up—came a close second with issues in 234 of the surveys. Although the categories are individually ranked fourth and fifth,searchers determined that  the  they are so closely related that a finding in one typically leads to a finding in the other.

Sounds outrageous, doesn’t it?  A guy  kills his mother and then the Georgia Supreme Court says he has a right to sue his psychiatrist for inappropriate psychiatric treatment that gave rise to the death of his mother.  

It is outrageous only if you know nothing about either law or medicine.

Psychiatrists are trained to help people who have mental illness (duh).  Some psychiatrists are good.  Some are bad.  Some good psychiatrists will, from time to time, fall below the standard of care and cause harm to a patient.