Articles Posted in Medical Negligence

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.

The Tennessee Department of Commerce and Insurance has released the "2006 Tennessee Medical Malpractice Claims Report"" which, in fact, is based on 2005 data.  Read the entire report here.

Some highlights:

*  There were  5 – that’s right – 5 – claims were resolved by judgment for the plaintiff in the entire state.  There were 6 verdicts for the plaintiff in 2004.

The Georgia Supreme Court was confronted with this question:  "In what circumstances, if any, is evidence of a nurse’s failure to pass a licensing  examination admissible in a medical malpractice action against the employing physician?"

Plaintiffs’ son Luke was diagnosed with bacterial meningitis resulting in brain damage and quadriplegia. Plaintiffs claimed that Luke’s pediatrician and his employees should have picked up on the symptoms given the information provided in a series of contacts.   Plaintiffs  introduced expert testimony that the pediatrician, Dr. Basilio, violated the standard of care by permitting an unlicensed nurse to answer weekend calls and give advice without consulting a supervising physician. To support that  testimony, the Sniders showed that Nurse DeVera was not licensed. However, the trial court did not allow the Sniders to show that Ms. DeVera failed to pass the nursing board examination.

The Georgia Supreme Court agreed.  It said as follows:  "Simply put, the issue in this case is not whether Ms. DeVera was generally competent, but whether Dr. Basilio breached the standard of care in hiring her because she was unlicensed. On this issue, the plaintiffs’ experts were able to testify that Dr. Basilio breached the standard of care by hiring an unlicensed nurse and allowing her to answer weekend calls without supervision. The fact that Ms. DeVera was unlicensed was key to resolving this issue. Why she was unlicensed was not."

Plaintiff received neck and spinal cord injuries in a motor vehicle accident.  He was taken to the local ER; the ER doctor thought he needed to be seen by a neurosurgeon.  The on-call neurosurgeon (Ebeling) said he was very tired and would not be coming to the hospital and recommended that Plaintiff be transferred to a trauma center.  Plaintiff was transferred and was determined to have developed C-7 paraplegia.

The ER doctor testified that Ebeling’s refusal to come in was the first time a doctor had refused to come to the ER because of fatigue. 

Plaintiff sued Ebeling (and others); Ebeling defended by saying that there was no physician-patient relationship between him and Plaintiff and that he was not negligent.

Do you remember   Kelley v. Middle Tennessee Emergency Physicians, P.C., 133 S.W.3d 587 (Tenn. 2004), when the defendant tried to claim that he owed no duty to the plaintiff because he was not the plaintiff’s regular doctor?   The defendant was called by the emergency room doctor and gave the doctor advice that allegedly turned out to be wrong.  The defendant said his advise was a "curbside opinion" and did not give rise to a duty of care to the patient.  The Tennessee Supreme Court respectfully disagreed and said an issue of fact existed on the subject.  (Note:  the Court also made it quite clear that they thought the defendant’s argument that  there was a mere "curbside consultation" based on the "undisputed facts" was a stretch – see text accompanying fn. 17 in the opinion).

Well, the nice folks in Mississippi just had a "sidewalk opinion" case.  The defendant doctor there said he did not owe a duty to the patient to give the patient’s treating physician the right advice when the treating physician called and sought and opinion before referring the patient to the defendant for treatment.  In Scafide v. Bazzone, NO. 2004-CA-01658-COA (Miss.Ct. App. 9/12/06) the Court held that the defendant did not have a duty.

The key language from the opinion:

Here is an unusual case out of California – a unique application of the "reasonable person test" when applying the causation standard in an informed consent case.

Wilson was paralyzed from spinal surgery for scoliosis, rendering him a paraplegic. He was wheelchair bound and needed to use his arms and shoulders to get in and out of the wheelchair.  Some five years ago Wilson had a stroke, and thereafter  developed adhesive capsulitis in his shoulder.  His doctor referred him to a chiropractor, who recommended manipulation under anesthesia.  Wilson asked his doctor questions about the risk associated with the procedure, and allegedly was told by his doctor  that the only risk was an infection secondary to an injection that was part of the procedure.  His doctor was present at the procedure performed by the chiropractor. Wilson suffered a fractured shoulder and a torn rotator cuff during the procedure. As a result, he had to undergo surgery to repair the damage.

Wilson sued the doctor, the chiropractor and others, saying that he never gave informed consent to the procedure.  The case went to trial against the doctor, but the trial judge dismissed this case on several grounds, including the failure of Wilson to prove causation in the informed case.