Consumers and trial lawyers have been saying for years that if doctors would do a better job establishing standards and policing their own there would be less injuries and death and therefore less malpractice claims and (maybe) lower malpractice insurance.
The anesthesiologists figured this out and today, in constant dollars, they pay less for malpractice insurance than they did 20 years ago.
More importantly deaths have have dropped from 1 in 5000 cases to 1 in 200,000 to 300,000 cases.
As a lawyer who has done medical malpractice work for 24 years I am embarrassed to say this, but I came across this little tidbit a couple weeks ago while preparing for an argument in the Tennessee Supreme Court.
Do we have the discovery rule for med mal cases? “Yes.” What is the test? “Plaintiff must file suit within one year of the date that plaintiff knew or reasonably should have known about the injury.” Right? Wrong. (Well, it might be wrong.)
The statute (T.C.A. Sec. 29-26-116(a)(2)) says “In the event that the injury is not discovered within such one (1) year period, the period of limitation shall be one (1) year from the date of such discovery.” The test appears to be subjective, not objective.
This is a fascinating opinion.
Defendants in medical negligence cases try to argue that, say, because a bowel is perforated in 15 in 10,000 cases of a certain surgery it was not negligent to perforate the bowel in the subject surgery.
The Supreme Court of Virginia just ruled that that evidence could not be introduced and that that argument could not be made.
There is yet another article that provides more data undermining the alleged need for restrictions on the right of patients to sue negligent health care providers.
According to the abstract of a study published in Health Affairs “we used data from the National Practitioner Data Bank (NPDB) to study the growth of physician malpractice payments. Judgments at trial account for 4 percent of all malpractice payments; settlements account for the remaining 96 percent. The average payment grew 52 percent between 1991 and 2003 (4 percent per year) and now exceeds $12 per capita each year. These increases are consistent with increases in the cost of health care. A preoccupation with data on judgments, extreme awards, or specific specialties results in an incomplete understanding of the growth of physician malpractice payments.”
Almost every week there is another study that demonstrates that the so-called “crisis” is one manufacturered by the insurance and health care industry. The current “crisis” is about over; the next one will be occur in about seven years.
The Fourth District Court of Appeals in Florida has ruled that a pharmacist may be held liable for failure to follow the standard of care for pharmacists even though the pharmacist dispensed drugs pursuant to a doctor’s order.
The plaintiff alleged that the pharmacist should have intervened to stop the numerous overlapping presriptions for narcotics and other medications prescribed for plaintiff’s wife. Plaintiff’s wife died of a drug overdose.
The trial judge dismissed the case, saying that the pharmacist had no duty. The court of appeals reversed, holding that despite competing authority in Florida the complaint stated a cause of action. Read the opinion here.
The distinction between a lack of informed consent case and a pure medical battery case is set out in Blanchard v. Kellum, 975 S.W.2d 522 (Tenn. 1998). An informed consent case requires expert proof as to the standard of care (or recognized standard of acceptable professional practice) of similar medical professionals. The plaintiff must establish what information is provided to patients prior to the procedure, and how the information is disclosed to the patient, in order to prove that the professional deviated from the standard of care. In a medical battery case, on the other hand, the plaintiff must establish either that the patient was unaware that the doctor was going to perform the procedure, or that the patient did not authorize the procedure. Medical battery cases include those in which the doctor performs a surgery that has been discussed with the patient, but performs the surgery on the wrong part of the body (i.e., amputation of the wrong limb). A true medical battery case does not require expert witness testimony on the standard of care, because there is no prior consent to be judged.
This is complaint from a medical malpractice and medical battery case in which a surgeon mixed up two of his patients’ charts, leading him to perform a surgery on the plaintiff to which she had never consented. Download file
The Texas Supreme Court has held that it is not error for a judge to permit a lawyer who regularly represents defendants in medical negligence cases to sit on a medical neligence jury.
The lawyer/juror candidly admitted that he would tend to relate to the defense lawyers in the case and that he would tend to look at the case from their perspective. He did say he would do his best to be objective.
I would love to know why the plaintiff’s lawyer let this guy sit on the jury given these answers; perhaps there were worse jurors and the lawyer had to use all of the preemptory challenges on them. I certainly wouldn’t second guess the lawyer for the call (especially without knowing a whole lot more about the facts) – picking a jury is the hardest part of a trial. Judgments must be made quickly, often on gut instinct (even when you use a consultant) and require you do look across the venire and think what you will get if you use a challenge on the potential juror you are evaluating.
The highest court of New York has rejected in part the medical negligence claim of a woman who sued a doctor and others for emotional distress but permitted the claim of the child to go forward.
The mother claimed that the doctor told her that the seven week old fetus she was carrying in utero would likely be harmed by fibroid tumors in her uterous and recommended that she terminate the pregnancy. The drug methotrexate was given to accomplish that result. The drug was administered, and the woman thought that the pregnancy was terminated, but later discovered she was 28-weeks pregnant. She alleged that the dose of methotrexate that she was given was too small to terminate the pregnancy. She was told that the drug administration put the baby at risk for harm, but she decided not to have a late-term, out-of-state abortion.
The baby was born severly injured. Suit was filed on behalf of the child; the mother also filed suit for emotional distress. The Court of Appeals held that the mother could not assert a claim for emotional distress arising out of the birth the impaired child but could assert a claim for any injuries independent of the birth of the child. She was granted leave to amend her complaint to plead accordingly.
Those of us who have lived through a couple of the so-called medical malpractice insurance crises knew it was just a matter of time before the market softened. The time has come.
The industry has declared that the insurance crisis is over. Read this fascinating article.
Of course, the facts will not stop the health care industry or its insurers from continuing to press for tort reform. Insurers want to take the risk out of the risk business, and the health care industry wants protection from patients who sit on juries.
The Supreme Court of North Dakota has ruled that whether or not a reasonable patient would accept the risk of death from a procedure is a jury question and not one for which expert testimony is necessary. The plaintiff’s wife died after an IVP. The doctors admitted that they did not inform the patient of the risk of death.
Here is the opinion.
North Dakota does not appear to require expert testimony on what should have been disclosed to the patient; Tennessee law does require expert testimony on this subject. However, expert testimony should not be required on the issue of whether or not the reasonably prudent person would, under the circumstances, accept the risk of the procedure.
Day on Torts