Articles Posted in Medical Negligence

One medical malpractice insurer, The Doctors Company, has an interesting article on medical malpractice claims concerning pap smears.

Here is a excerpt from the article that discusses the scope of the problem:

To put the potential magnitude of this problem in perspective, a College of American Pathologists (CAP) study of the five-year “look-back” at previous negative Pap smears following the diagnosis of HSIL/carcinoma found that 10 percent of prior smears were false negatives for SIL/carcinoma. If atypical squamous cells of undetermined significance (ASC-US) were included, 20 percent of prior smears were false negatives. In 1996, the American Cancer Society predicted 15,700 new cases of cervical cancer and 4,700 deaths. Published studies indicated that 60–75 percent of women dying from cervical cancer either never had a Pap smear or had not had one in the five years prior to diagnosis. Therefore, if one assumed that 40 percent of the predicted new cases of cervical carcinoma had a single Pap smear in the prior five years with a 20 percent false-negative rate, there was a potential for 1,256 new claims for failure to diagnose cervical carcinoma on a Pap smear in 1996 alone!  [Footnotes omitted.]

Public Citizen ranks Tennessee 40th in its 2008  ranking of serious doctor disciplinary actions taken by state medical licensing boards.

The Tennessee board took a total of 40 serious disciplinary actions against the 18,137 doctors in Tennessee, or a total of 2.44 actions per 1000 physicians.  The total leading states were Alaska (6.54 per 1000) and Kentucky (5.87 per 1000).  The two states with the lowest rankings were Minnesota (0.95 per 1000) and South Carolina (1.23 per 1000).

In 2006 Tennessee ranked 29th on the list and in 2007 it ranked 28th. 

Many of us know that  doctors prescribe drugs for uses other than those approved by the FDA. 

This article discusses off-label drug prescribing and suggests that physicians who prescribe a drug for an off-label use follow the following steps to obtain informed consent:

• a statement that the off-label use is an “experimental use” so all the possible side effects and complications are not known;
• a list of the common and/or known risks and complications with use of the medication;
• a statement that the details of the treatment have been fully explained in lay terms or in terms that are easily understood by the patient;
• a statement that no guarantees about the results of the medication are given; and
• a statement that the patient is not required to take the medication.

Read the entire article here.

The Idaho Supreme Court has permitted an expert to opine that two defendants in a medical negligence case engaged in not just negligent but reckless conduct.

In Jones v. Crawford, 2009 Opinion 53 (Idaho S. Ct. April 8, 2009), a defendant appealed from an adverse jury verdict in a wrongful death case.  Plaintiffs charged that the decedent’s death from an air embolus after spine surgery was a result of the negligent and reckless conduct of the defendants.  The trial judge permitted the plaintiff’s experts to opine that the conduct of two of the defendants was reckless.

In affirming the trial judge’s decision to admit the expert testimony on the issue of recklessness, the Idaho Supreme Court said

Here are the 28 medical events that the National Quality Forum says should never occur:

Surgical Events

Surgery performed on the wrong body part
Surgery performed on the wrong patient
Wrong surgical procedure on a patient
Retention of a foreign object in a patient after surgery or other procedure
Intraoperative or immediately post-operative death in a normal healthy patient

These are not the words of some crazy plaintiff’s lawyer.  These are the words of a doctor.  Dr. Amy Tuteur at Harvard.

An excerpt:  "If I had been angry about what happened to the patient, I was even angrier after learning of the deception. The hospital had deliberately lied to protect its staff members. They lied to cover up medical negligence, with the assumption that the doctors in question would continue to practice at the same hospital, free to make similar mistakes."

Read it all for yourself.  Don’t forget the comments.  All of the comments.  Keep reading.

From the March 30, 2009 edition of Courtoons.

It was four years ago today that I wrote about the ability of Senator Bill Frist to make a medical diagnosis via videotape.  Here is my follow-up post from June 16, 2005, written after the release of Ms. Schiavo’s autopsy.

Did Dr. Frist’s videotape diagnosis cost him a shot at the presidency?  That is a tough question.  But I guarantee you that  he wishes he had never heard of Terri Schiavo.

We have some preliminary data on the number of medical malpractice case filings in certain counties since the October 1, 2009 effective date of the medical malpractice notice and certificate of good faith statutes.

One new statute requires that actual notice be given to defendants in med mal cases before a lawsuit is filed.  The other requires counsel to execute a certificate of good faith that arises after consultation with experts.

Here are the med mal filings in the following counties in the last three months of 2007 and 2008:

Thus, in these counties, med mal filings were down over 75%. The total number of med mal filings in  the entire state for the fiscal year ending June 30, 2008 was 537.  These eleven counties had 440, or 82%, of the total med mal filings for the entire state.  Assuming that the other 88 counties had reduced filings in the same proportion to the counties listed, total filings for the last three months of 2008 would number 35.

To be fair, three months is not a representative sample.  In addition,  there was probably an increase in filings before October 1, 2007, which would have depressed filings in the next three months.  Finally, if notice is given, the statute can be extended under certain circumstances, and that too could account for a decrease in filings in the last quarter of 2008.

That being said, this is the first objective data that we have seen that the new statute has impacted med mal filings.  I have predicted that med mal filings will be down 40% as a result of the new statutes.  In other words, I believe that filings will be down to about 332 per year as a result of the new statutes.  Time will tell if my projection is correct.

By the way, the new statutes are T.C.A. Sec. 29-26-121 (Notice)  and 29-26-122 (Certificate of Good Faith).

An article by Jeff Woods at Nashville Scene:

 

The nursing home industry is back at the legislature this session demanding a law to cap its liability in Tennessee courts for neglecting and abusing residents. That’s even though a legislative study committee, which met once after last year’s bill failed, decided more time is needed to write balanced legislation. One lawmaker last year dubbed the bill the "Kill Old People Cheap" Act. If anything, this new version is even more audacious.
Residents and their families could win no more than $300,000 in any lawsuit for so-called non-economic damages–intangible harm such as pain, emotional distress, disfigurement or loss of a loved one. In addition to capping those damages, the bill would place health services provided by nursing homes under the same rules as medical malpractice cases, making it harder and costlier for residents to prove negligence. All that was in last session’s bill.
What’s new is this devious provision: Should a jury actually award punitive damages against one of our state’s wretched nursing homes, half the cash would be snatched right out of the patient’s hands and placed into a state fund. Where would that money go? Back to the nursing home industry, of course.
The prime force behind the legislation is National Healthcare Corp., which owned the Nashville nursing home where 16 residents died in a fire five years ago. Fighting the bill is Tennessee Citizen Action–a coalition of trial lawyers, advocates for the disabled and labor unions. They say the bill shields homes from responsibility for bad care. The group’s executive director, Tom Peters, says:
"This bill is one of the most outrageous and extreme examples of corporate greed and political over-reaching that we have ever seen. It provides near-complete immunity when homes abuse or neglect residents and does nothing to improve care.
"The quality of care in many Tennessee nursing homes is shameful; there is no other way to characterize it. This bill would ensure that care only gets worse as it completely protects homes when they cause direct harm to the elderly. Several of the legislators who have signed their name to this bill are strong right-to-life advocates, but nothing in this bill will protect the sanctity of life for our nursing home residents. Tennessee Citizen Action stands strongly opposed to this deceptive and purposefully misleading legislation."
Here are the bill’s sponsors (as you will note, even a couple of Democrats are for the nursing home industry): Sen. Jim Tracy (R-Shelbyville), Rep. John Lundberg (R-Bristol), Rep. Steve McDaniel (R-Parkers Crossroads), Rep. Vance Dennis (R-Savannah), Rep. Bill Harmon (D-Dunlap), Rep. Lois DeBerry (D-Memphis), Rep. Jason Mumpower (R-Bristol), Rep. Judd Matheny (R-Tullahoma), Rep. Glen Casada (R-Franklin), Rep. Joe Carr (R-Lascassas).