Articles Posted in Medical Negligence

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."

From a full-page ad in yesterday’s Knoxville’s  Sunday News Sentinel:

Last year, Covenant Health hospitals saved the lives of 752 people who would not have lived at average hospitals.

According to U.S. government data, quality care makes a life-saving difference for patients at Covenant Health hospitals.  By being far better than national averages, we help more patients survive – 753 more than the national norms last year alone.

The Tennessee Attorney General’s Office has just released on opinion on the issue of the ability of non-physician health care professionals to own and operate a medical practice and to employee physicians.  Here are the two specific issues addressed:

"1. Considering the provisions of Tenn. Code Ann. §§ 63-6-204(b), 68-11-205(a), or any other law of this state, is it lawful for a certified nurse practitioner, registered nurse, advanced practice nurse, licensed practical nurse or physician assistant to own and operate a professional practice wherein medical services are provided?
2. Considering the provisions of Tenn. Code Ann. § 63-6-204(c) or any other law of this state, is it lawful for a physician to be an employee of, or an independent contractor to, a certified nurse practitioner, registered nurse, advanced practice nurse, licensed practical nurse or physician assistant for the sole purpose of providing the supervision, responsibility and control required by Tenn. Code Ann. § 63-6-204(b) for medical services being provided by those licensed allied health care providers at their practice sites? For purposes of this question, we assume that the physician, if he or she actively practices clinical medicine at all, does so primarily (if not exclusively) at some office or location other than at the referenced practice sites."

And here is the summary of the answers to those questions:

How much transparency should there be in health care?  In commerce in general?

Senator Grassley wants transparency in medicine – he has introduced legislation that is designed to require drug companies to disclose what they pay doctors.  Read about the legislation in this article from the New York Times.  The article says that Grassley "cited as an example the case of a prominent child psychiatrist, who he said made $180,000 over just two years from the maker of an antipsychotic drug now widely prescribed for children."

This is interesting, too:  "Mr. Grassley said that he had asked how much the child psychiatrist, Dr. Melissa DelBello at the University of Cincinnati, made from AstraZeneca, the London-based drug giant that manufactures the antipsychotic Seroquel.  Dr. DelBello’s studies of Seroquel in children have helped to fuel the widespread pediatric use of antipsychotic medicines. Those studies were inconclusive, but she has described them as demonstrating that Seroquel is effective in some children.  Asked in a past newspaper interview how much she was paid by AstraZeneca to help market Seroquel, she had said, “Trust me, I don’t make very much.” Mr. Grassley said this week that her disclosure forms at the University of Cincinnati show she received $100,000 from AstraZeneca in 2003 and $80,000 in 2004. Dr. DelBello consults for seven other drug makers as well. She did not respond to requests for comment this week. "

Charlie Weis, the head coach of the Notre Dame football team, lost the medical malpractice case he filed in Massachusetts.

The lawsuit arose out of gastric bypass surgery Weis had in June of 2002.  According to this article posted on www.boston.com,  "Weis, 51, who became ill after the operation, alleged that the surgeons were negligent for letting him bleed internally for 30 hours before they started a second surgery to respond to the complication. He testified he still has numbness and pain in his feet and had to use a motorized cart shortly after the operation."

The Michigan Law Review  has published an interesting article called "Doctors & Juries" by Philip G. Peters, Jr.

Here is a synopsis of the article:  "Physicians widely believe that jury verdicts are unfair. This Article  tests that assumption by synthesizing three decades of jury research.  Contrary to popular belief, the data show that juries consistently sympathize more with doctors who are sued than with patients who sue them. Physicians win roughly half of the cases that expert reviewers believe physicians should lose and nearly all of the cases that experts feel physicians should win. Defendants and their hired experts, it turns out, are more successful than plaintiffs and their hired experts at persuading juries to reach verdicts contrary to the opinions of independent reviewers."

One of his conclusions:  "As a consequence, politicians and critics of jury performance in medical malpractice cases should think twice before concluding that doctors will be treated more favorably in health courts."

Here is an interesting article titled "Electronic Health Records Raise New Risks of Malpractice Liability." 

An excerpt:

"Because more detailed information about patient care or medical decision-making may be included in the EHR than is possible with paper records, plaintiff attorneys may make extensive discovery requests for "relevant" electronic information in medical malpractice litigation. For example, integrated EHRs have the capability to create an electronic traceable path of a patient’s transition through a facility. Physician orders and interventions may be timed and documented automatically. Will such functionality increase the risk of liability in cases alleging physician failure to timely diagnose and treat? Will discovery requests include electronic footprints for relevant patient data that is not part of the facility’s permanent electronic medical records? Will use of EHRs raise the cost of litigation because of the need for expert testimony in the fields of health informatics or health IT? "