Articles Posted in Medical Negligence

The Tennessee Supreme Court has just granted a Rule 9 application in a medical negligence case, even though the Tennessee Court of Appeals refused to do so.

The plaintiff had an abdominal operation several years ago and learned more than three years later that a clip was left on one of her ureters, resulting in the death of one kidney. She brought suit and the defendants asserted the three-year statute of repose. The plaintiff raised the foreign objection exception to the statute of repose. The defendants then asserted because the clip was of the type that is often left in the body it was not a “foreign object” within the meaning of the statute and therefore the suit was untimely.

Plaintiff asserts that even though the clip is of the type often left in the body it is not supposed to be left on a ureter. Essentially, the plaintiff argues that an object can become a “foreign object” if it was left in the body for an unintended use.

Where’s the beef?

Rep. Rob Briley lead an effort to make medical malpractice insurers and health care providers to reveal to the State of Tennessee what their claims experience was. Malpractice insurers and health care providers fought this type of disclosure for almost two decades and, given what was disclosed, one can understand why they did so.

The first report came out yesterday, and it is of no particular surprise to anyone who does medical malpractice legal work.

Rueters reports that “in a review of patient specimens, errors in cancer diagnosis were seen in up to 11.8 percent of cases, according to a report in the medical journal Cancer. Moreover, in a substantial proportion of cases, the error caused some degree of harm for the patient.”

The article goes on to say that “the frequency of errors varied between hospitals and ranged from 1.79 percent to 9.42 percent for gynecologics cases and from 4.87 percent to 11.8 percent for other cases, the researchers note. A significant link between the institution and the error cause was observed. As for the cause of errors, up to 50 percent were due to misinterpretation with the remainder being due to poor tissue sampling.”

Forbes has an even more complete description of the study.

The Insurance Commissioner from the State of Washington has released a fascinating study of malpractice insurance rates for physicians in that state. A news report of the findings says “that the amount doctors pay for malpractice insurance in 2005 is largely equal to or less than what they paid for coverage in 1985 when adjusted for inflation. These findings and others ‘fly in the face of those who claim that something dramatic has changed relating to malpractice suits in Washington,’ said Commissioner Mike Kreidler.”

Claims were also studied: “There were 10,212 closed claims during the period. Of those, 45 claims – less than 1 percent – were decided by a jury. Of those claims, 27 percent resulted in payments to patients. More than 60 percent were for $100,000 or less and less than 2 percent resulted in payments of more than $1 million.”

Here is the study itself.

A new study reports that doctors should not give clot-busting drugs to patients who are going to receive angioplasty. Doing so increased the death rate by 40%. The results were so surprising that the study was stopped before it was complete.

Ms Matney, a MS patient residing in a nursing home, died from over exposure to the sun. Her daughter has filed suit against the nursing home.

The Toledo Blade reports that Ms Matney was permitted to sunbathe on a day where the temperatures exceeded 93 degrees. Her body temperature rose to 109 degrees. The county coroner has ruled the death accidental due to negligence; the cause of death was hyperthermia and heat stroke.

There are many ways that defendants fight medical negligence cases. Some battles are fought in the courtroom. Some are fought in the Legislature. Others are fought against the doctors who choose to testify for plaintiffs.

Read this article about what can happen if a group of doctors doesn’t like your expert’s testimony.

I am familiar with the Fullerton case mentioned in the article; I sit on an ATLA Committee that advises the Center for Constitutional Litigation that is advising Dr. Fullerton. I will let you know when that case is resolved.

Click here to read about yet another example of a greedy trial lawyer filing a frivilous lawsuit for a greedy plaintiff.

The Wisconsin Supreme Court struck down the state’s med mal cap, saying that even under the rational basis test the cap did not meet constitutional muster. The med mal insurances companies and the docs are upset. What the insurance companies and the doctors don’t understand is that rational basis does not mean “any ole reason that some lobbyist and pr flack can speculate about” – at least not to real judges who take their job as guardians of the right to trial by jury seriously.

A bill has been introduced in Congress to fund pilot projects in several states to test the idea of special “health courts.”

An article on the bill says that “[t]he bill would authorize the U.S. Secretary of Health and Human Services to award up to 10 demonstration grants to states for the development, implementation and evaluation of alternatives to current tort litigation for resolving disputes over medical errors. Within that context, the bill specifically authorizes the creation of a special health care court. The hallmark of such a court would be full-time judges with health care expertise, whose sole focus would be on addressing medical malpractice cases.”

Here is a copy of the bill.