Medical Negligence

November 25, 2009

AAP Issues Expert Witness Policy

The American Academy of Pediatrics has issued a Policy Statement titled "Guidelines for Expert Testimony in Medical Malpractice Litigation.

After reviewing the role of the expert witness in medical malpractice litigation, the Guidelines begin the "recommendations" section of the paper with this statement:

The AAP recognizes that physicians have the professional, ethical, and legal duty to testify as called on in a court of law in accordance with their expertise. Physicians serving as expert witnesses have an obligation to present complete and unbiased information with which the trier of fact can ascertain whether the defendant was medically negligent and whether, as a result, the plaintiff suffered compensable

November 22, 2009

New Medical Malpractice Case Filing Statistics

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

Here is the most up-to-date data on medical malpractice case filings in Tennessee.

Regular readers know that effective October 1, 2008 the General Assembly imposed significant restrictions on patients who want to file a medical malpractice suits. The new law, which was modified again effective July 1, 2009, requires pre-suit notice and the filing of a certificate of good faith.

For the 12-month period ending September 30, 2008, 644 medical malpractice lawsuits were filed in Tennessee. A whooping 140 of those were filed in September 2008 as lawyers filed suits to avoid the burden and risks of filing cases under the new law. If September 2008 were an average month, one would have expected only 45 cases to have been filed.

November 18, 2009

HealthGrades Sixth Annual Patient Safety in American Hospitals Study

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

HeathGrades studies Medicare patient care in our nation’s hospitals based on 15 indicators of patient safety.

Here are some highlights from the 2009 report representing data from 2005 -2007:

· There were 913,215 total patient safety events among 864,765 Medicare beneficiarieswhich represents 2.3 percent of the nearly 38 million Medicare hospitalizations.

November 4, 2009

Tort Cases Pending Before the Tennessee Supreme Court – Physician Assistants

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

There are a significant number of cases of interest to Tennessee tort lawyers pending before the Tennessee Supreme Court. One of those cases is Cox v. M.A. Primary and Urgent Care Clinic, 2009 WL 230242 (Tenn. Ct. App. 230242 (Jan. 30, 2009).

The issue in the case is the appropriate standard of care for a physician’s assistant. The Court of Appeals ruled as follows:

the services provided by a physician assistant are provided under the supervision of a licensed physician and within the scope of practice of that physician, who is responsible for the treatment rendered by the physician assistant. Consequently, the standard of care applicable to a physician assistant is that of the supervising physician in the community in which the supervising physician practices.

November 3, 2009

Rhode Island Hospital Cannot Get It Right

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

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.

October 30, 2009

Lawsuit Against Pharmacists For Filling Prescriptions for Known Drug Abuser

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

On the afternoon of June 4, 2004, a woman named Patricia Copening driving a SUV ran into a delivery-van driver who had pulled over to repair a flat tire on the highway’s shoulder, killing him at the scene. She also hit another man, causing a head and other injuries.

A lawsuit filed by the victims and their families against Wal-Mart, who dispensed a painkiller prescription to Copening, asks whether drugstores must use information at their disposal to protect the public from potentially dangerous customers. State officials had sent letters to 14 pharmacies in the Las Vegas area warning that Copening could be abusing drugs. The letters were issued after a state-ordered prescription audit identified potential drug abusers, including Copening.

According to this story from Wednesday’s Wall Street Journal, Nevada pharmacies have been gathering information about prescription drug use, sending it to the state, and receiving letters from the state advising about potential drug abuse since 1997.

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 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.