Articles Posted in Medical Negligence

Here is an interesting post from Torts Prof Blog:

"After all the time and money spent, aren’t the results of medical malpractice litigation extremely accurate? Although perhaps better than earlier studies indicated, malpractice results are imprecise. The Harvard School of Public Health study, in assessing how often medical error occurred in a random sample of closed claims, found that, "73 percent of all claims for which determinations of merit were made had outcomes concordant with their merit." Studdert et al., 354 New Eng. J. Med. at 2028. That figure would likely be reduced somewhat further if the technical requirements of medical malpractice were applied to the concept of medical error. In sum, after all these resources are expended, more than one in four cases is decided incorrectly.

Data is mixed regarding the distribution of the errors (whether errors generally favor plaintiffs or health care providers). The Harvard School of Public Health study finds a fairly even distribution. On the other hand, Professor Philip G. Peters, Jr. analyzed all seven studies that have compared verdicts rendered in individual malpractice cases with independent evaluations of each claim by medical or legal experts. Philip G. Peters, Jr., Doctors & Juries, 105 Mich. L. Rev. 1453 (2007). According to Peters, the studies demonstrate that plaintiffs win about 10% to 20% of cases with weak evidence of negligence and 50% of the cases with strong evidence thereof. In other words, plaintiffs win between 10% and 20% of cases they should likely lose, but lose one-half of cases they should likely win. Id. at 1464. If that’s true, plaintiffs’ lawyers, who tend to support the current malpractice regime, take a big risk with each individual client with a strong case that goes before a jury."

The Tennessee Supreme Court issued its first two tort law opinions of the year yesterday, both dealing with the same subject: the potential liability of a hospital for the acts of a non-employed,, hospital-based physician. 

The Court said  that

"to hold a hospital vicariously liable for the negligent or wrongful acts of an independent contractor physician, a plaintiff must show that (1) the hospital held itself out to the public as providing medical services; (2) the plaintiff looked to the hospital rather than to the individual physician to perform those services; and (3) the patient accepted those services in the reasonable belief that the services were provided by the hospital or a hospital employee."

The Speaker of  the House signed a bill yesterday that makes it more difficult for patients to bring medical malpractice actions.  The Senate Speaker signed the legislation last week and therefore the bill is on its way to the Governor.

The legislation requires that a patient give at least 60 days notice to the defendants before filing a medical malpractice lawsuit. 

More significantly, the legislation requires that a certificate of merit be filed within ninety days of filing suit.  The certificate of merit must be signed by plaintiff’s counsel, who is certifying that

Indiana is not known as a particularly progressive state when it comes to tort law (or anything else for that matter).

But not even Indiana could deny a plaintiff the use of the res ipsa doctrine when the plaintiff caught on fire during surgery.

You read that right.

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.