Articles Posted in Medical Negligence

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? "

The TMA hates the Givens and Alsip opinions.  The hospitals would prefer they did not exist, but were willing to accept some compromise as opposed to the outright reversal of the decisions sought by the TMA.

This is what the hospitals worked out with the interested parties and the sponsors of the bills:

T.C.A. Sec. 68-11-312 ( a new code section)

The Tennessee Court of Appeals has released two opinions on the issue of apparent agency in a hospital setting.  One case concerns an emergency room doctor, the other a radiologist.

The law?  Both decisions contain these paragraphs: 

"Apparent agency is essentially agency by estoppel. White v. Methodist Hosp., 844 S.W.2d 642, 646 (Tenn. Ct. App. 1992). Its existence depends upon such conduct by the principal as would preclude the principal from denying another’s agency. Kelly v. Cliff Pettit Motors, 234 S.W.2d 822 (Tenn. 1950). The liability of the principal is determined in any particular case by what authority the third person, exercising reasonable care and prudence, was justified in believing that the principal had by his acts under the circumstances conferred upon his agent. Southern Ry. Co. v. Pickle, 197 S.W. 675, 677 (Tenn. 1917).

Georgia’s med mal statute requires that when a complaint is filed the plaintiff must submit a medical authorization.   The statute says that "the authorization shall provide that the attorney representing the defendant is authorized to obtain and disclose protected health information contained in medical records to facilitate the investigation, evaluation, and defense of the claims and allegations set forth in the complaint which pertain to the plaintiff or, where applicable, the plaintiff’s decedent whose treatment is at issue in the complaint. This authorization includes the defendant’s attorney’s right to discuss the care and treatment of the plaintiff or, where applicable, the plaintiff’s decedent with all of the plaintiff’s or decedent’s treating physicians."

On May 14, 1007 in the case of Allen v. Wright, the Georgia Supreme Court struck down this statute as inconsistent with HIPPA.

Read the opinion here.

This is no news to anyone who actually follows medical malpractice litigation, but it is nice to see that a person who has actually researched the issue confirms conventional wisdom accepted by everyone except lobbyists for the health care industry and the legislators they persuade.

An article in Law.com reports on this new study from law professor Phillip Peters.

A couple excerpts:

It is getting worse.

Healthgrades reports that the number of errors in our nation’s hospitals rose 3% over the years 2002 – 2005.  From the press release:

The HealthGrades study of 40.56 million Medicare hospitalization records over the years 2003 to 2005 … found:
• Patient-safety incidents continue to rise in American hospitals, with 1.16 million preventable
patient-safety incidents occurring over the three years studied among Medicare patients in the
nation’s hospitals, an incidence rate of 2.86 percent.
• 247,662 deaths were potentially preventable over the three years, and Medicare patients who had one or more patient-safety incidents had a one-in-four chance of dying.
• The excess cost to hospitals was $8.6 billion over three years, with some of the most common
incidents proving to be the most costly.
• Ten of the 16 patient-safety incidents tracked worsened from 2003 to 2005, by an average of
almost 12 percent, while seven incidents improved, on average, by six percent. Patient-safety
incidents with the greatest increase in incident rates were post operative sepsis (34.28 percent),
post-operative respiratory failure (18.70 percent) and selected infections due to medical care
(12.23 percent).
• Patient-safety incidents with the highest incidence rates were decubitus ulcer, failure to rescue
and post-operative respiratory failure.

Amercicans for Insurance Reform have released a report that demonstrates that the "insurance crisis that hit doctors between 2001 and 2004 was not caused by claims, payouts or legal system excesses as the insurance industry claimed."

Rather, this report concludes as follows:

 "Inflation-adjusted payouts per doctor not only failed to increase between 2001 and 2004, a time when doctors’ premiums skyrocketed, but they have been stable or falling throughout this entire decade.

Part of the case evaluation process is a review of appropriate literature.  A literature review is not enough – you still need as expert to testify that the protocols set forth in any given piece of literature represent the standard of care.  But the existence of literature on point can help you persuade experts to testify and, indeed, can even help you identity experts (by contacting the authors).

The American College of Emergency Physicians (ACEC) has issued a list of documents which "describe the College’s policies on the clinical management of presenting symptoms, specific illnesses or injuries."  The ACEC’s Clinical Policies Committee drafts each protocol and and each protocol is approved by the ACEP Board.

Here is the list: