Medical Negligence

August 25, 2009

Hospitals That Do It Right

Some health care providers are starting to get it. When you mess up, fix it. Don’t hide. Don’t cover it up. Don’t blame the patient. Just do the responsible thing and fix it.

Today’s Wall Street Journal writes about the relatively recent phenomena of hospitals that not only step in and make a fair payment to a person who has been harmed by negligence but go a step further and (a) figure out how and why the error happened and (b) put measures in place to prevent future errors.

This is absolutely wonderful, and shows that the tort system works. The purpose of the system is not just to compensate victims of negligence but also to deter future harm. Other things being equal, wrongdoers who fail to take steps to deter future harm will be hurt in the marketplace. Thus, the reasonably prudent person who is in the position to cause harm takes steps to prevent harm from occurring. That means they take advantage of the every error to analyze what they can do to prevent future harm. And they try to work out something with the victim of that error before litigation, saving everyone transaction costs and potential harm to reputation.

August 25, 2009

Failure to Inform Patients of Abnormal Test Results

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

An article in Archives of Internal Medicine (2009;169(12):1123-1129) reveals that about 1 in 14 abnormal outpatient test results are either not reported to the patient or the report to the patient is not documented. The article summarizes a study consisting "of a retrospective medical record review of 5434 randomly selected patients aged 50 to 69 years in 19 community-based and 4 academic medical center primary care practices."

Read an abstract of the article here.

August 17, 2009

The First Syllable of “Lawyer” is “Law”

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

A Tennessee lawyer who purports to have knowledge and experience in Tennessee medical malpractice law recently wrote a blog post that advised the pubic about statutes of limitations in medical malpractice cases. His post was wrong, and it was obvious to me that he was unaware of the legislation passed in June and that went into effect on July 1, 2009.

Now, you might say, "well John, don’t be a jerk. The law has only been in effect for a little over a month." Sorry folks, in my opinion that doesn’t cut it. If you hold yourself out as having knowledge in a given area of law you have the responsibility to keep yourself reasonably current in that area. The proposed changes to the medical malpractice law have been talked about by those actively involved in the field for months before the legislation was signed by the Governor. The Tennessee Association for Justice list-serves have had numerous posts about the subject. I wrote several blog posts on the issue (here, here, and here.). I wrote a cover-story article for the July 2009 TBA Journal on the changes. In short, there were plenty of opportunities to learn that the law was changing and that it had in fact changed.

I don’t expect every lawyer to keep up with all changes in the law – that is impossible. I don’t expect every personal injury and wrongful death lawyer to keep up with changes in medical malpractice law, for the simple reason that many of these lawyers do not do medical malpractice law. I don’t expect anyone to keep all the details of law in his or her head even in a relatively narrow field like medical malpractice. And of course I am not saying that everyone who does tort work in Tennessee must read this blog.

August 11, 2009

Dead By Mistake

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

The "Dead By Mistake" website, hosted by the San Francisco Chronicle, contains chilling stories of deficiencies in our health care system that result in injury and death. This alone brings the point home: more people die each month from preventable medical errors than died in the terrorist attacks of 9/11.

Quite frankly, this is all old news to lawyers who are involved in medical malpractice litigation. This site will educate those lawyers who do not regularly do this work. It will inform consumers and legislators of the nature and extent of the problem. And, for those of us who do this work everyday, it will remind us of how important it is that we work as hard as we can to hold health care providers responsible for the harm they cause.

August 8, 2009

Blore’s Razor

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

Those of us who do medical malpractice work are familiar with Occam’s Razor, the common understanding of which (as stated on Wikipedia) is that "of several acceptable explanations for a phenomenon, the simplest is preferable, provided that it takes all circumstances into account."

Those of us who do medical malpractice work are also familiar with the the following litigation tactic often employed by our brothers and sisters of the defense bar, known as Blore’s Razor: "Given the choice between two theories, take the one which is funnier." (from Michael Moncur’s (Cynical) Quotations).

August 4, 2009

New Tennessee Legislation of Interest to Tort Lawyers – Post 4

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

This is the fourth in a series of posts that addresses new laws of interest to Tennessee tort lawyers. For other changes go to the Legislation 2009 category of this blog.

Those of us who keep an eye on the Tennessee General Assembly know that there is an ongoing battle over whether hospitals will be permitted to employ physicians. As of now, hospitals can employ hospitalists but they cannot employ ER doctors, anesthesiologists, radiologists, etc.

The renal dialysis clinics have cracked the door open slightly and won the right to employ doctors under certain circumstances. This will be of interest to medical malpractice lawyers, who will need to explore the vicarious liability of clinics for the acts of nephrologists and others caring for ESRD patients. The law will also be of interest to those representing such doctors, in tort as well as contract litigation.

July 29, 2009

A National Medical Safety Board?

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

That is what Tennessee’s own Jim Hall called for in today’s New York Times. An excerpt from Jim’s op-ed piece:

Because American medicine accepts error as an inevitable consequence of treatment, our hospitals, insurers and government do little to respond to unnecessary deaths. If we are to address the problem in a serious manner, we must first change this culture.

Jim is the former chairman of the National Transportation Safety Board. Read the entire op-ed piece here.

July 28, 2009

New Tennessee Legislation of Interest to Tort Lawyers – Post 1

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

This post is a first in a series of posts that will address new laws passed by the 106th General Assembly and signed into law by Governor Bredesen. The posts will run two or three days per week over the next several weeks.

The first post is a change to the Tennessee Peer Review Law of 1967. The bill will be of interest to any one who does medical malpractice or any other area of health care law.

Here is a summary of the legislation:

July 22, 2009

SVMIC – 2008 Financial Results – Part 4

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

I have released three prior posts on the financial condition of State Volunteer Mutual Insurance Company – click here to read them: Part 1, Part 2, Part 3.

The bottom line is that conservative financial management at SVMIC has permitted the company to accumulate a quarter of a billion dollars in net worth, even as the number of policyholders has declined 4% of the last year.

So how is that impacting rates?

July 17, 2009

Consent Provisions in Professional Liability Insurance Policies

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

Last Friday a Memphis jury awarded almost $24M to a woman and her husband in a civil suit arising out of what the jury found to be medical negligence arising from the failure to promptly diagnose breast cancer. The woman is in the last weeks of her shortened life.

It is my understanding that the defendant did not make a settlement offer and in fact that the doctor refused to authorize any offer. I do not know if this is correct. I do not know if the case could have been settled. I do know it is hard to make progress on settlement negotiations if one side or the other refuses to discuss settlement.

Many insurance companies that provide professional liability coverage to physicians give the physician the right to refuse to consent to any settlement. This is unlike traditional liability insurance coverage, where the insured may be given the opportunity to voice an opinion on settlement but rarely has any power to block a settlement within policy limits.