Medical Negligence

February 24, 2006

Indiana Supreme Court Upholds Statute of Limitations

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.

February 16, 2006

Admissibililty of Hearsay from Consulting Doctor

by The Law Offices of John Day, P.C.

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.

February 8, 2006

Governor’s State of the State Address and Responsibility

by The Law Offices of John Day, P.C.

Here is the text of the Governor’s State of the State Address.

You will note that the Governor did not call for restrictions on the right of patients to hold doctors and hospitals responsible for their negligence. This is a good sign. You can be assured that this was not missed by the doctors, hospitals and their insurers, and these special interest groups will be putting significant pressure on the Governor to get behind their efforts. And note that the Governor did say that he would be speaking with the Legislature “in a few weeks” about health care issues.

More specifically, he said this:

February 1, 2006

The President and Tort Reform

by The Law Offices of John Day, P.C.

I did not watch the State of The Union Address last night but I read the speech that he was supposed to have delivered.

It was to contain this line: “And because lawsuits are driving many good doctors out of practice – leaving women in nearly 1,500 American counties without a single OB-GYN – I ask the Congress to pass medical liability reform this year.”

How can anyone with a lick of sense suggest that OB-GYNs do not practice in rural American because of medical negligence lawsuits? Doctors practice medicine where there are patients and where there are hospitals. Hospitals need enough patients to establish and maintain a maternity ward. America does not need and cannot afford a hospital in every county with a maternity ward (which must be staffed 24/7).

February 1, 2006

Limitation of Actions and the Mentally Disabled

by The Law Offices of John Day, P.C.

We all know that that a person who suffers from an “unsound mind” gets the benefit of a tolling of the statute of limitations under T.C.A. Section 28-1-106, which states that “[i]f the person entitled to commence an action is, at the time the cause of action accrued, either within the age of eighteen (18) years, or of unsound mind, such person, or such person’s representatives and privies, as the case may be, may commence the action, after the removal of such disability, within the time of limitation for the particular cause of action, unless it exceeds three (3) years, and in that case within three (3) years from the removal of such disability.”

But what if the injured party, prior to becoming of “unsound mind,” granted a durable power of attorney that gave an attorney-in-fact the duty “act in my name, place and stead in any way which I myself could do, if I were personally present, with respect to … claims and litigation…?” Does the presence of that durable power of attorney trump the “unsound mind” statute, mandating the statute of limitations begin to run as if the plaintiff were not of unsound mind?

I have worried about this issue for years. We how have an answer from the Eastern Section of our Court of Appeals hearing a case arising out of the Middle Section. The plaintiff in the case held a durable power of attorney from his father. The father was a resident in the defendant’s nursing home and became of “unsound mind.” According to the opinion, “[t]he plaintiff frequently visited the deceased during the latter’s stay at the defendant’s facility. The plaintiff would later testify that, at the time of his visits, he observed problems in the defendant’s care and treatment of his father, which he believed were harmful to him.” More than a year after the father was transferred from the defendant’s nursing home but within one year of the father’s death {when the disability was “removed,” according to the plaintiff) the attorney-in-fact filed a malpractice suit against the nursing home. Defendant sought summary judgment of the statute of limitations issue, arguing that plaintiff had the power and duty to act on behalf of his father and did not do so in a timely fashion. Plaintiff argued that the cause of action was tolled by operation of Section 28-1-106.

January 31, 2006

Michigan Decision: No Duty to Advise of Success Rate

by The Law Offices of John Day, P.C.

The Michigan Court of Appeals has ruled that “[a]s a matter of law … a physician’s raw success rates do not constitute risk information reasonably related to a patient’s medical procedure.”

There apparently was no (or little) evidence of affirmative misrepresentation on the issue.

A verdict for the plaintiff was reversed and the case remanded for trial.

December 31, 2005

Arkansas Case – Is it Appropriate to Charge the Jury in a Medical Negligence Case That A Defendant Can Assume That Another Provider Will Use Due Care?

by The Law Offices of John Day, P.C.

Plaintiff settled a case with the hospital concerning care given by the nurses and proceeded to trial against the doctor. Over the plaintiff’s objection, the judge gave this instruction to the jury:

“Every physician using ordinary care has the right to assume, until the contrary is or reasonably should be apparent, that every other medical care provider will use ordinary care. To act on that assumption is not negligence. As I have used the term ordinary care here, I mean that degree of care required of all physicians or medical care providers, as already explained in my definition of negligence.”

The jury decided in favor of the defendant. Plaintiffs appealed, and the Arkansas Supreme Court reversed and remanded. They argued as follows:

December 31, 2005

Cleanliness is Close to Godliness

by The Law Offices of John Day, P.C.

Isn’t that what you have always heard?

Read what can happen when a hospital doesn’t properly sterilize instruments after a procedure on a brain.

December 16, 2005

Florida Supreme Court Decides Fee Waiver Issue

by The Law Offices of John Day, P.C.

As I have mentioned in some past posts (the most recent one can be read here) the voters of Florida passed a constitutional amendment one year ago that severely limited the amount of attorneys’ fees in medical negligence actions. Lawyers who believed that a case was valid but who could not afford to prosecute it then asked clients if they would waive the fee cap and, presumably, had them execute a knowing, valid waiver.

Some lawyers with ties to the medical industry then asked the Florida Supreme Court to order that the Florida Bar adopt a ruling prohibiting such conduct.

The Florida Supreme Court ruled Wednesday. It held that an attorney must advise a potential client of the fee cap and that a client may knowingly and voluntarily waive the cap. It directed the Florida Bar to adopt appropriate rules. See the Order here.

December 10, 2005

Tennessee Supreme Court Applies 3-Year Statute of Repose to Children

by The Law Offices of John Day, P.C.

Yesterday afternoon the Tennessee Supreme Court said the the 3-year statute of repose found in the “Doctor and Hospital Relief Act of 1975” should be applied to claims made by minors.

Before yesterday, most lawyers assumed that minors had the right to wait until their 19th birthday to file suit. No more.

Our office filed an amicus brief for TTLA in support of the plaintiffs in this case. I argued the case for the plaintiffs.