Articles Posted in Medical Negligence

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).
 

Here is the most recent version of the practice guidelines for obstetric anesthesia as prepared by a task force of the American Society of Anesthesiologists.

I heard a rumor that the appeal in Hill v. NHC Healthcare/Nashville,LLC, M2005-01818-COA-R30-CV, (Tenn. Ct. App. April 30, 2008) (Rule 11 granted Aug. 25, 2008) has been dismissed.

This important opinion held that the defendant nursing home’s arbitration clause was unconscionable as a matter of law.  The hope was that this case would give some guidance on the circumstances under which arbitration clauses could be upheld in nursing home contacts.

Does anyone know what happened to this case?

The February 18, 2009 edition of The Wall Street Journal has an interesting article about fires in the operating room, which happen approximately 650 times per year in the United States. 

A sample:  "Because each member of the [surgical]  team may be focusing on his own role in a procedure, ‘the No. 1 cause of fires is lousy communication’ says Patricia Seifert, editor-in-chief of AORN Journal, the monthly publication of the Association of Perioperative Registered Nurses."

Here is a website dedicated to raise awareness about this problem:   www.surgicalfire.org.

State Volunteer Mutual Insurance Company’s Winter 2008-09 quarterly newsletter, Risk Points, has an interesting article discussing the diagnosis of appendicitis.   This illness occurs in 250,000 people in the United States every year, and the mortality rate increases 500% if the appendix ruptures.

A sample from the article:  "Thus clinicians should focus on the time of onset rather than the time the patient first presents for evaluation when deciding whether a ‘wait and see’ approach is warranted.  A good habit is a scheduled return appointment or referral within a reasonable time frame for a second evaluation in patients with unconfirmed abdominal pain etiologies   When a diagnosis is unclear, it is crucial that your rationale, patient instructions and followup plan are well documented in the chart." 

The article begins on Page 2.

The Tennessee Medical Malpractice Reporting Act found at Tenn. Code Ann. §§ 56-54-101, et seq. went into effect on January 1, 2009 and replaced statutes regarding similar previous reporting requirements.   Bold the old and new statute require that lawyers report all medical malpractice settlements and judgments obtained in calender year 2008.

The Act requires the report to be filed with the Department of Commerce and Insurance offices on or before March 1 of each year.  Since March 1 falls on a weekend, the report will be due March 2nd.
 
The new medical malpractice forms and instructions for the 2008 calendar year  can be found at the Department of Commerce and Insurance’s  web site.  That site is http://www.state.tn.us/commerce/insurance/medExpRpt.html. 

There is a great article in  today’s  New York Times titled "Simple Checklist Makes Surgery Safer."

An excerpt:  "a year after surgical teams at eight hospitals adopted a 19-item checklist, the average patient death rate fell more than 40 percent and the rate of complications fell by about a third, the researchers reported.’

The Times article is based on an article in the January 14, 2009 edition of the New England Journal of Medicine, which reports on a research project conducted by the World Health Organization.