Articles Posted in Medical Negligence

Plaintiff filed a medical negligence lawsuit. She enjoyed an occasional joint, before and after her injury. At trial, the defendant called four witnesses to say that the use of pot could affect a doctor’s treatment of her. None testified that it did affect treatment. The jury returned a verdict for the defendant.

A Florida appellate court reversed, holding that “In the absence of such evidence, the doctors’ testimony that a patient’s use of marijuana could have an impact on treatment decisions did not logically tend to prove or disprove any fact of consequence to the outcome of Shaw’s action. Accordingly, it was irrelevant, and should not have been permitted.”

The Court went on to say that “[e]ven if we assume that the evidence regarding Shaw’s marijuana use had some marginal relevance, however, the outcome remains the same. By repeated reference to Shaw’s marijuana use in opening statement, during the doctors’ testimony, and in closing argument, the marijuana use became a feature of the trial. As such, any marginal probative value it might have had was clearly outweighed ‘by the danger of unfair prejudice, confusion of issues [and] misleading the jury.'”

The Washington Post reports that “Americans pay more when they get sick than people in other Western nations and get more confused, error-prone treatment, according to the largest survey to compare U.S. health care with other nations.”

The Post also states that “Americans also reported the greatest number of medical errors. Thirty-four percent reported getting the wrong medication or dose, incorrect test results, a mistake in their treatment or care, or being notified late about abnormal test results. Only 30 percent of Canadian patients, 27 percent of Australian patients, 25 percent of New Zealanders, 23 percent of Germans and 22 percent of Britons reported errors.”

Read the article here.

Apparently not every doctor in America is willing to accept the propaganda from liability insurance carriers that “your rates are the fault of greedy trial lawyers.” This doctor wants information, and is pushing legislation to get it. Read more here.

A friend who is getting ready to file a medical negligence case told me that his medical consultant said this about the case: “It took a whole group of doctors to kill this woman.”

The consultant was not suggesting that the doctors conspired to hurt, much less “kill”, the patient. His point was that in a hospital setting the cause of an injury or death is often not the fault of one person. In the ordinary course, one person makes an error and someone else catchs it before harm is done. No, where things really get messed up is when a group of people is having a bad time of it, where balls are flying all over the place and nobody has a catcher’s mitt or is even aware that the balls are flying around. Simply put, awareness is off, communication breaks down and people get hurt.

The adoption of proper systems can usually prevent these situations from occurring. Indeed, this is one of the reasons behind Vanderbilt’s Evidence-Based Medicine Program that I talked about recently.

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.