Articles Posted in Medical Negligence

John Ritter died of an aortic aneurysm in 2003. His family filed a medical malpractice lawsuit against various health care providers. It now appears that the case has been settled.

I met John Ritter in New York 5 or 6 years ago. I went to a play and at the end the cast came back onto the stage and auctioned off a prop to raise money for an AIDS group. I “won” the auction and got to go backstage, meet the cast (including Henry Winkler), get photos, etc. It was a good deal of fun.

The reason for that little story is this: John Ritter could not have been more gracious. He spent part of his life in Nashville (his dad was country music legend Tex Ritter), and actually lived in a beautiful house about 4 miles away from my house. We talked about Nashville and he told me what wonderful memories he had of my adoptive home. I could tell that he was a kind, compassionate man.

This op-ed piece from today’s New York Times is so good it needs to be repeated in full in this blog.

The Doctor Will See You for Exactly Seven Minutes
By PETER SALGO

WHEN politicians speak of America’s health care needs, they often miss an important point: the doctor-patient relationship has become frayed. Patients aren’t unhappy just because health care costs too much (though they would certainly like it to be more affordable). Rather, people sense a malaise within the system that has eroded the respect they feel patients deserve.

The locality rule in medical malpractice cases is absolutely ridiculous. It is designed to create an artifical barrier to recovery, to protect doctors and hospitals, particularly those in rural areas, from malpractice suits. It pretends that there is a difference in the standard of care given the size of the community, as if people from smaller towns are entitled to less quality of care than those of bigger towns.

(Don’t get me wrong – there are some services that hospitals in rural towns that are not and should not be provided and there are some doctors in rural areas who lack the practical experience of taking care of some types of patients. The patients who need this help need to referred to a place where such help is routinely given.)

Well, a doctor and his group in Clarksville just got bit by their own dog. A medical malpractice verdict for the plaintiff was reversed because the Court of Appeals found that the defendents’ experts did not meet the qualifications of the locality rule.

Back in 1975 the Tennessee Legislature determined that the only health care providers who could testify against a Tennessee health care provider in a malpractice case where experts from contigious states. This is an assine rule – but it is still the law.

You can avoid the contigious state rule with permission of the trial judge. This opinion in Steele v. Berkman reminds us that we have to have some proof of the efforts made find an expert from a contigious state so that the court can determine that a waiver of the rule is appropriate.

The waiver has been applied in Childress v. Bennett, 816 S.W.2d 314, 316 (Tenn.1991) and Steele v. Ft. Sanders Anesthesia Group, 897 S.W. 2d 270, 281 (Tenn.Ct.App. 1994). It was denied in Rose v. HCA Health Services of Tennessee, 947 S.W. 2d
144, 148 (Tenn.Ct.App.1996).

The Tennessee Peer Review Law of 1967 was “was passed with the stated intent of encouraging ‘committees made up of Tennessee’s licensed physicians to candidly, conscientiously, and objectively evaluate and review their peers’ professional conduct, competence, and ability to practice medicine.’ The statute further ‘recognizes that confidentiality is essential both to effective functioning of these peer review committees and to continued improvement in the care and treatment of patients.’ Tenn. Code Ann. ㋔ 63-6-219(b)(1). To this end, the statute creates a privilege for certain documents, etc., which are generated or provided during the peer review process.”

Dr. Moore was summarily suspended from his staff privileges in a Chattanooga hospital and sought information from his creditionals file. The hospital refused to provide it, citing the Peer Review Law. The case went to the Eastern Section of our Court of Appeals and the appellate court remanded to case to the trial judge for further action in consideration of the opinion.

Specifically, the appellate court found even though the creditionals file was covered under the Peer Review Law the wording of the statute itself said that “[n]othing contained in this subsection (e) applies to records made in the regular course of business by a hospital or other provider of health care and information, documents or records otherwise available from original sources are not to be construed as immune from discovery or use in any civil proceedings merely because they were presented during proceedings of such committee.”

The Ohio Supreme Court has released a decision in a wrongful birth case. Read about it our medical malpractice blog.

The Indiana Supreme Court denied a challenge to the constitutionality of a statute of limitations for minors. The statute required that a suit be filed within two years of the date of injury or by the injured minor’s eighth birthday if injured in the first six years of life.

The statute was challenged under this provision of the Indiana Constitution: “The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens.”

The case is Ledbetter v. Hunter. Westlaw subscribers can see it at 2006 WL 401204. The opinion was released on February 22nd.

Can a defendant doctor testify about what he was told by a consulting doctor? No, according to the Rhode Island Supreme Court.

The court held that the statement of the consultant (who received his information about the patient over the telephone from the defendant) was hearsay and that it did not meet the requirements of the 803(4) exception because it did not have “circumstantial guarntees of trustworthiness.” The court explained it this way: “We believe there to be a fundamental difference between statements describing a patient’s condition, symptoms, or history made for the purpose of fostering treatment, and statements made by a consulting physician with no personal knowledge of the patient’s condition or history. Although made for the purposes of medical diagnosis and treatment, such latter statements lack the guarantees of trustworthiness inherent in the former.”

Read the entire opinion here.