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.
The Arkansas Supreme Court struck down that portion of legislation requiring a plaintiff in medical negligence cases to file affidavits of merit in medical malpractice cases within 30 days of filing the complaint or face dismissal of plaintiff’s complaint.
The Court ruled that the statute imposed a requirement for commencement of an action that was greater than that imposed by Rule 3 of the Arkansas Rules of Civil Procedure. The Court went on to say that "[t]he constitutional infirmity in § 16-114-209(b) is the provision for dismissal if the affidavit does not accompany a complaint within thirty days. We do not hold today that the balance of § 16-114-209(b), requiring a reasonable-cause affidavit, is constitutionally infirm. Having said that, it appears that without the time limit of thirty days, the statute largely is duplicative of § 16-114-206 regarding the plaintiff’s burden of proof and medical expert testimony concerning breach of the standard of care in the community."
The case is Summerville v. Thrower, No. 06-501, (Ark. S. C. March 15, 2007). Read it here.
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:
The Kansas Supreme Court has stated that a patient injured as a result of alleged medical negligence can file suit under the state’s consumer protection act.
The patient , Williamson, alleged that the defendant doctor "represented that the surgery he was recommending had a high likelihood of successfully relieving her pain when, in fact, that surgery had been unsuccessful in the majority of cases where [defendant] Dr. Amrani had utilized the same procedure. Williamson alleged that Dr. Amrani had willfully misrepresented or concealed material facts in that he knew or should have known that the surgery he was recommending had produced ‘bad results’ for a majority of his patients."
The Court reviewed the Kansas Consumer Protection Act and the law from other states interpreting similar statutes in other cases and ruled that "the language of the KCPA is broad enough to encompass a claim regarding the providing of medical care or treatment services brought by a patient against a physician for a violation under the KCPA."
It takes a tremendous amount of time and money to screen medical malpractice cases. Our office reviews over 700 cases per year and rejects over 95 percent of them over the phone. Of the remaining 5 percent most are rejected after review of the medical records and, if appropriate, consultation with one or more medical experts. In short, we spend a significant sum of money every year trying to take only claims that are valid and have sufficient damages to justify the significant investment of time and money necessary to prosecute one of these cases.
One way to save a little money and time reviewing cases and to help win a case that is actually filed is to use practice guidelines developed by the health care industry. Practice guidelines are consensus statements of good medical practice. The phrase "standards of care" immediately jumps to mind when one reads the last sentence – and that is what practice guidelines are. However, practice guidelines are not called standards of care because the people who write and use them seek plausible deniability if ever confronted with them.
No bother. You can use practice guidelines to evaluate the care your potential client or client received. You can use practice guidelines to prepare for depositions of health care providers. Your expert can point to practice guidelines as evidence of the standards of care, disclaimers notwithstanding. In short, they are potentially useful in litigation and, more importantly, very helpful in standardizing and improving the quality of care given to patients.
Day on Torts