Medical Negligence

October 22, 2009

New Medical Malpractice Filing Numbers

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 13, 2009

Paul Luvera on Losing Cases

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

Washington State’s outstanding plaintiff’s lawyer offers great advice to those of us who have lost jury trials.

A sample from "First Aid for Lawyers When They Lose Their Case:"

When trial lawyers who are passionate about their client’s cause lose the case, their pain for the loss of their client is palpable. Dealing with losing is always agony and something we never get used to if we are competitive trial lawyers striving for our client’s rights. I’ve often said: losing hurts worse then winning feels good.

October 11, 2009

CBO Offers New Data on Cost of Medical Malpractice Lawsuits

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

Senator Orin Hatch (R-Nevada) asked the Congressional Budget Office to update its previous findings concerning the effect that restrictions on the rights of patients to hold the health care industry responsible for errors that kill or injure patients ("tort reform").

Here are some of the findings from the report:

"National implementation of a package of proposals similar to the preceding list would reduce total national premiums for medical liability insurance by about 10 percent, CBO now estimates. … CBO estimates that the direct costs that providers will incur in 2009 for medical malpractice liability—which consist of malpractice insurance premiums together with settlements, awards, and administrative costs not covered by insurance—will total approximately $35 billion, or about 2 percent of total health care expenditures. Therefore, lowering premiums for medical liability insurance by 10 percent would reduce total national health care expenditures by about 0.2 percent."
"Combining the effects on both mandatory spending and revenues, a tort reform package of the sort described earlier in this letter would reduce federal budget deficits by roughly $54 billion over the next 10 years. That estimate assumes that a change enacted in 2010 would have an impact that increased over time, achieving its full effect after four years, as providers gradually changed their practice patterns. Of course, the estimated effect of any specific legislative proposal would depend on the details of that proposal." Note: the proposals listed in the letter was a $250,000 cap on non-economic losses, abolition of joint and several liability, changes to the collateral source rule, caps on punitive damages, and reducing the statute of limitations to 1 year for adults and 3 years for children.
"Because medical malpractice laws exist to allow patients to sue for damages that result from negligent health care, imposing limits on that right might be expected to have a negative impact on health outcomes. There is less evidence about the effects of tort reform on people’s health, however, than about its effects on health care spending because many studies of malpractice costs do not examine health outcomes. Some recent research has found that tort reform may adversely affect such outcomes, but other studies have concluded otherwise."

Let us put these numbers in perspective. Americans spend over $45 billion per year on pet care.

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.

September 18, 2009

President Orders Tort Reform Tests

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

President Obama announced yesterday that the government will set aside $25 million to support state grants for pilot programs to reduce medical malpractice lawsuits.

ABC News describes the grant process this way:

The Department of Health and Human Services will oversee the process for states to launch and test initiatives that meet the following parameters:
• Put patient safety first and work to reduce preventable injuries;
• Foster better communication between doctors and their patients;
• Ensure that patients are compensated in a fair and timely manner for medical injuries, while also reducing the incidence of frivolous lawsuits; and
• Reduce liability premiums.

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 17, 2009

Georgia Supreme Court Considers Constitutionality of Damages Cap in Medical Malpractice Cases

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

The Georgia Legislature imposed a cap on noneconomic damages in meritorious medical malpractice cases in 2005. The cap is $350,000. In a case tried in Fulton County several years ago, the jury’s verdict exceeded the cap, and the Georgia Supreme Court is now considering whether the cap is constitutional.

According to a press release from the Georgia Trial Lawyers Association and re-printed on the Atlanta Injury Lawyer Blog

“Betty Nestlehutt was the face of her real estate business,” said Malone. “Her face was so horrifically disfigured that she was no longer able to even leave her house. Photographs of her disfigurement are even too gruesome for public distribution. The damage is permanent. Years later she has to wear layers of special makeup to try to give the appearance of normalcy.”

September 11, 2009

Medical Malpractice Reform: Survey Manipulation

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

Max Kennerly has done it again. Read this post on the Litigation and Trial bog which looks behind the allegation that the American people support medical malpractice reform. Before you do, read the following:

DO YOU AGREE OR DISAGREE WITH THIS STATEMENT: As part of any health care reform plan, Congress needs to change the medical malpractice system so that cases are resolved quicker, and more reliably, on behalf of those who are in the right.

Did you say "Yes?" I did.

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.