Medical Negligence

March 22, 2010

Georgia Supreme Court Strikes Down Damages Cap in Medical Malpractice Cases

The Georgia Supreme Court has struck down a cap on noneconomic damages in medical malpractice cases, declaring the cap to be a violation of the right to trial by jury. The case is Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, NO. SO9A1432 (Ga. March 22, 2010). Read the opinion here.

The Court ruled that by "requiring a court to reduce a noneconomic damages award determined by a jury that exceeds the statutory limit, OCGA Sec. 51-13-1 clearly nullifies the jury’s findings of fact regarding damages and thereby undermines the jury’s basic function."

February 15, 2010

2009 Medical Malpractice Claims Reports Due March 1, 2010

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

The Tennessee Department of Commerce and Insurance has released the forms for reporting on medical malpractice claims for the 2009 calendar year.

The reports are due March 1, 2010.

Here are the instructions for filling out forms as a representative of the claimant. Here is the link to the reporting form.

February 4, 2010

Tennessee Nursing Homes – 5th Worst in United States

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

Tennessee’s nursing homes rank the 5th worst in the United States, according to an analysis done by the Tennessean.

The February 3, 2010 article points out that

[a]bout 15,000 nursing homes nationwide got ratings of one to five stars, with five being the best, from the U.S. Centers for Medicare and Medicaid Services. The ratings are based on inspections, complaint investigations, staffing levels and other nursing home survey data collected in 2008 and 2009.

February 1, 2010

Tennessee Medical Malpractice Claims Report – 2008

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

The Tennessee Medical Malpractice Claims Report for 2009 (which reports data for 2008) contains lots of information of interest to lawyers who represent Tennesseans in medical malpractice claims. Last week I wrote about the number of claims closed in 2008 and the amount paid on these claims. Today I will drill down a little deeper on one topic – resolution of claims involving death.

About 1960 Tennesseans die each year as a result of medical malpractice in a hospital. (The number that die as a result of malpractice in a doctor’s office or nursing home or dentist’s office or elsewhere has not been estimated to my knowledge.) Yet, in 2008, there were 538 medical malpractice claims resolved in cases where the allegation involved malpractice-related death of the patient in all settings.

The total amount of money paid to resolve the 538 death claims was $60,663,764, or an average of less than $120,000 per claim. I hasten to add that gross payment figure includes claims on which no money was paid. The report does not indicate how many closed death claims resulted in no payment whatsoever. However, the report does indicate that payments were made in only 15% or so of all closed claims in 2008. If that statistic is true in the wrongful death area, it means that payments were made in only about 80 wrongful death cases in 2008 and the average payment was about $750,000 per claim.

January 26, 2010

2009 Medical Malpractice Claims Report Released

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

The Tennessee Department of Commerce and Insurance has released the 2009 Medical Malpractice Claims Report. Despite its title, the Report reveals data for calendar year 2008.

This is the fifth report issued by the Department and contains more different types of data than released in previous years because of a change in the reporting law. Today I will report on some of the data and will address the balance in later posts.

In 2008, there were 3154 medical malpractice claims closed in Tennessee. (More than one "claim" can arise in a single case; a claim is defined as "a demand for money damages for injury or death caused by medical malpractice; or a voluntary indemnity payment for injury or death caused by medical malpractice.") Of those claims 43 were resolved through ADR, 459 were resolved through settlement, 425 were resolved through judgment, and 2227 were otherwise resolved.

January 5, 2010

Tennessee Data From the National Practioners Data Bank

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

The National Practioners Data Bank collects data about malpractice claims paid by health care professionals. The NPDB has a report that lists all of medical malpractice paid claims against all Tennessee health care providers between September 1, 1990 through November 29, 2009, a period one month short of 20 years. To understand what data is collected by the NPDB click here.

The total number of paid claims against all health care providers in the United States is 340,463, or about 17,000 claims per year. Recall the National Institute of Medicine said that there were 98,000 documented deaths per year in our nation’s hospitals.

After the jump I have listed the number of paid claims by type of provider in Tennessee. The data does not include hospitals or nursing homes except to the extent the payment was made by a hospital or nursing home on behalf of an individual provider after receipt of a written claim or lawsuit.

December 31, 2009

Nevada Supreme Court Restricts Lawsuits Against Pharamacies

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

The Nevada Supreme Court has ruled that a pharmacy does not owe a duty of care to unidentified third parties who were injured by a pharmacy customer who was driving while under the influence of controlled prescription drugs.

In reaching the decision, the court rejected the arguments that pharmacies have a duty to act to prevent a pharmacy customer from injuring members of the general public and that Nevada’s pharmacy statutory and regulatory laws allow third parties to maintain a negligence per se claim for alleged violations concerning dispensation of prescription drugs and maintenance of customers’ records.

Here is the court’s summary of the facts:

December 28, 2009

Problem Nurses Move From State to State

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

Today’s Tennessean has an article originally published in the Los Angeles Times that reveals a problem with nurses moving from state to state and leaving behind a bad disciplinary record.

The article reports that "using public databases and state disciplinary reports, reporters found hundreds of cases in which registered nurses held clear licenses in some states after they had been sanctioned in others, often for serious misdeeds. In California alone, a months-long review of its 350,000 active nurses found at least 177 whose licenses had been revoked, surrendered, suspended or denied elsewhere."

This problem can be avoided. "By simply typing a nurse’s name into a national database, state officials can often find out within seconds whether the nurse has been sanctioned anywhere in the country and why. But some states don’t check regularly or at all."

December 21, 2009

Physicians in the United States Less Likely to Use Health Information Technology

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

According to the 2009 Commonwealth Fund International Health Policy Survey, only 46 percent of U.S. doctors use electronic medical records, compared to 99 percent of doctors in the Netherlands and 97 percent of doctors in New Zealand and Norway.

"We spend far more than any of the other countries in the survey, yet a majority of U.S. primary care doctors say their patients often can’t afford care, and a wide majority of primary care physicians don’t have advanced computer systems to access patient test results, anticipate and avoid medication errors or support care for chronically ill patients," said Commonwealth Fund Senior Vice President Cathy Schoen, lead author of an article appearing in Health Affairs.

The survey also reports that

December 10, 2009

Medical Malpractice Insurance Rates

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

From the American Association for Justice:

State tort reforms have provided a boon to insurance companies, leading to record profits while physician and patient premiums continue to skyrocket.

An analysis of data from the National Association of Insurance Commissioners (NAIC) and company annual statements shows malpractice insurer profits are 24 percent higher in states with caps. In these cap states, insurers took in 3.5 times more in premiums than they paid out in 2008. In contrast, insurers in states without caps took in just over twice what they paid in claims.