Articles Posted in Medical Negligence

To those of you who had a medical malpractice judgment or settlement in 2007:  Please remember that  the 2007 "Counsel for Claimants" reports must be completed and sent to the Tennessee Dept of Commerce and Insurance on or before April 1, 2008.  Here is the website where you can download the form.

The purpose of gathering this data is to learn the truth about medical malpractice verdicts and settlements in Tennessee and the costs associated with medical malpractice litigation.  This is the second year that attorneys for claimants have been required to share information with the state.

Here is a summary of the report for the 2005 calendar year:

It’s over.

Rebecca Blair and I have been in trial in Columbia, Tennessee since February 25, 2008.  Our client was a eleven year-old boy who lost his 34 year-old mother to hyperkalemia (an excessive level of potassium which causes the heart to stop) a little over three years ago.

Ginger was a diabetic who suffered from end-stage renal disease.  She had several other health problems (pulmonary hypertension, obesity, sleep apnea, oxygen dependent lung disease, etc.) that resulted in a life expectancy of about 6.8 years.   She was determined to be totally disabled two months before her death.  Therefore, we were unable to make any claim for economic loss.  We  elected not to make a claim for funeral expenses or pain and suffering and sought damages for Jessie solely for loss of "love, society and affection" under Jordan v. Baptist Three Rivers Hospital.

The Tennessean  has been kind enough to print an op-ed piece I wrote and to editorialize against the health care industry’s attempt to avoid full responsibility for the harm it causes to its patients.

Read the editorial here.

Read my op-ed piece here.

This article in yesterday’s The Washington Post  reported that 96% of physicians thought that they should report an impaired or incompetent colleague – but 45% said that they did not always do so.

In addition, "46 percent said they had failed to report at least one serious medical error that they knew about, despite the fact that 93 percent of doctors said physicians should report all significant medical errors that they observe."

I am not saying anything negative about doctors by telling you about this article. I am simply saying that doctors are human and that sometimes their conduct falls below what they expect of themselves.

The Georgia Supreme Court has refused to strike down that state’s statute of repose in medical malpractice cases when challenged on equal protection grounds.   Georgia has a five-year statue of repose in medical malpractice cases (Tennessee has a three-year statute of repose).

The case is Nichols v. Gross, S07A1027 ( Georgia S. C. Nov. 21, 2007).  Read the opinion here.

An article in the Archives of Internal Medicine looked at closed malpractice claims to see what caused the errors made by medical trainees.  A summary of the findings:

"Among 240 cases, errors in judgment (173 of 240 [72%]), teamwork breakdowns (167 of 240 [70%]), and lack of technical competence (139 of 240 [58%]) were the most prevalent contributing factors. Lack of supervision and handoff problems were most prevalent types of teamwork problems, and both were disproportionately more common among errors that involved trainees than those that did not (respectively, 54% vs 7% [P < .001] and 20% vs 12% [P = .009]). The most common task during which failures of technical competence occurred were diagnostic decision making and monitoring of the patient or situation. Trainee errors appeared more complex than nontrainee errors (mean of 3.8 contributing factors vs 2.5 [P < .001])."  You can access the article here.

Thanks to the DC Metro Malpractice Blog for informing me about the article.

The Tennessee Supreme Court has ruled that an arbitration provision in a nursing home contract signed by a person who had a power of attorney to act on behalf of the resident is not void as against public policy.  However, the court remanded the case to the trial court for a determniation of whether the inclusion of the provision was an unconscionable contract of adhesion.

Justice Holder wrote the opinion for the Court.  Here is a summary of the holding:

"the agreement is governed by the Tennessee Uniform Arbitration Act and that the power of attorney authorized Daniel to sign the arbitration agreement on behalf of King. We also affirm the  intermediate appellate court’s holding that the arbitration agreement is not unenforceable on the  ground that a material term of the agreement is incapable of performance. We likewise affirm the  Court of Appeals’ holding that the arbitration agreement does not violate federal law. We further  hold that a pre-dispute arbitration agreement in a nursing-home contract is not per se invalid as  against public policy. In addition, we affirm the intermediate appellate court’s holding that the  agreement is not unenforceable on the ground that requiring King to sign an arbitration agreement  breached a purported fiduciary duty owed to King by the defendants. We vacate, however, the Court of Appeals’ judgment insofar as it holds that the arbitration agreement is not an unconscionable  contract of adhesion, and we remand for further proceedings on that issue. In light of our remand for further proceedings on the unconscionability issue, we also vacate the intermediate appellate   court’s instruction to the trial court to enter an order compelling arbitration."

The Tennessee Supreme Court has granted permission to appeal in two cases that address the issue of apparent agency.   In both cases plainitffs seek to impose liability on a hospital for the acts of a doctor.  The cases have been consolidated for appeal.

One case is DeWald v. HCA Heatlh Services of Tennessee, No. M2006-02369-COA-R9-CV (Tenn. Ct. App. June 12, 2007);.  This case involves an ER physician.  Read the opinion here.

The other case is Boren v. Weeks, No. M2007-00628-COA-R0-CV (Tenn. Ct. App. June 12, 2007).  This case also involves an ER physician.  Read the opinion here.

The LA Times makes an extraordinary effort here  to tell the story of the death of a woman in a local hospital – and how it could have been prevented.

Medicare is no longer going to pay hospitals from costs arising from "preventable errors" and "serious preventable events."

What are preventable errors?   The Washington Post story on the subject says this:  "bedsores, or pressure ulcers; injuries caused by falls; and infections resulting from the prolonged use of catheters in blood vessels or the bladder."

Serious preventable events?  They are events that should not occur during a hospital stay such as  "leaving a sponge or other object in a patient during surgery and providing a patient with incompatible blood or blood products."