Articles Posted in Medical Negligence

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Thanks to the Insurance Defense Blog.

The Sixth Circuit Court of Appeals reversed a ruling of the trial judge excluding certain experts in a medical negligence case, stating that Daubert’s role of ensuring that the courtroom door remains closed to junk science is not served by the exclusion of testimony supported by relevant experience. The Court further held the “exclusion of testimony in cases of medical experts is rarely justified as opposed to supposed experts in the area of product liability.”

Click here to read the opinion.

James’ vasectomy did not go as planned. His wife Corrine became pregnant. They filed suit against his urologist.

The Maryland Court of Special Appeals held that Corrine could not file suit against the doctor because there was not a physican-patient relationship. In short, the Court ruled that Corrine did not establish that her husband’s doctor owed her a duty of care.

The dismissal of James’ claim on the ground of contributory negligence was also affirmed. (In Maryland, contributory negligence is still an absolute bar to recovery.) The basis for the claim of contributory negligence included the failure to follow doctor’s orders.

A neurosurgeon has written an op-ed piece about his experience with medical negligence litigation and offering his opinion about the role it plays in our society. The article is titled “How Malpractice Suits Keep My Profession Honest.”

The writer gives this example of the pressure faced by doctors who testify for patients: “I remember a Detroit neurosurgeon calling me in desperation to ask what to do after he had testified against a surgeon who had operated on the wrong side of a patient’s head. The Detroit doctor worried that he was being needlessly scrutinized by the American Association of Neurological Surgeons. It reminded me of a case in which I had been an expert witness here in Washington that led to complaints from the professor who had performed the surgery and unrelenting nit-picking from the association. My advice to the Detroit doctor? Resign from the association. That’s what I did.”

Isn’t it nice to see a member of the profession speak out on the side of his patients?

Expert witnesses. Can’t live with ’em. Can’t live without ’em. Can’t kill ’em.

Buy me a drink sometime and I will tell you expert witness stories that will make your head spin. Or, let me buy you a drink and I will bore you with the same stories.

But I must confess that I never had an expert I had difficulty reaching because he was in jail. That’s right: jail. Read the opinion.

Public Citizen has just released new information that sets the record straight on various facts concerning medical negligence.

A few highlights:

1. At the same time that insurance rates in some areas have been climbing, the number and total value of malpractice payouts to patients have been flat since 1991 and, in fact, show a significant decline since 2001, when the spike in insurance rates began.

Why? Because, unfortunately, part of the job of being a tort lawyer who represents patients and other negligence victims is staying on top of issues that affect current and future clients. I have monitored tort “reform” legislation since 1984. I have testified on our Capitol Hill numerous times since 1985; the first time concerned a bill that severely limited the liability of servers of alcoholic beverages (it passed, we lost).

The fact of the matter is that plaintiff’s lawyers are one of the few voices for malpractice victims. AARP is there. Labor is often there. But there is no “Future Wrongful Death Victims of America Association.” There is no “Prospective Med Mal Victims PAC.” No one ever thinks that they will be a victim of a negligent doctor, a careless truck driver, or a defective product, and therefore even the consumers who care about the issue are often unwilling to speak out about it – they have too many other things going on in their lives that demand attention today.

Therefore, it falls upon lawyers to advocate for victims, not just in the courtroom, but in the halls of the legislature. We have to run for the legislature (only 17 lawyers out of 132 legislators in Tennessee!) or, if we cannot, give monetary support to those who will. We have to find non-lawyers to serve as candidates, help them win, and help them understand that the same people who had the ability to cast the votes that put them into office are the people who serve as jurors. We have to help them understand that when a jury makes an error there is a judge there who can correct the error, and that if that judge makes an error we have an appellate court system to correct it. In summary, we have a system of checks and balances that, all things considered, works pretty dang well.

Well, the Civil Practice Subcommittee met today but the sponser of the two “reform” bills asked that the bills be “rolled” (continued) until next week. The sponser indicated he wanted to amend the bill to address some of the issues I raised in the hearing of 12 days ago. Next Tuesday is the last day this committee will be holding hearings for this legislative session so it will be an all-or-nothing day.

I will be back there next Tuesday to testify. Medical malpractice victims will also be present. AARP will be presenting testimony against the bill and, presumably, so will the TBA. I will let you know what happens. If you want to help email me.

That title is so misleading. Today’s hearing has nothing to do with modifying the health care system to prevent injuries and death from medical malpractice.

Today’s hearing will determine whether the Civil Practice Subcommittee of the House Judiciary Committee will vote-out a bill to restrict the rights of people who have valid claims. We have come to the point in this state and this country where “reforms” restrict the rights of ordinary people and give more power to those who already have it. We call this activity “reform” because “power grab” or “wealth protection action” is too wordy.

I am scheduled to testify today. The good news is that Chairman Rob Briley (D- Nashville) is determined to have a fair hearing on the issues. The Chairman chaired another committee last year that basically determined that all of the hype about the need to restrict the rights of people with meritorious claims was just that – hype.

The American Association of Critical Care Nurses has issued a new study concerning medical malpractice in our nation’s hospitals.

This is scary stuff. The reports says that each year “one in twenty in-patients will be given the wrong medication, 3.5 million will get an infection from someone who did not wash his or her hands or take appropriate precautions, and 195,000 will die because of mistakes made while they’re in the hospital.” The study goes on to say that 60% of medication errors are caused by mistakes in interpersonal communication.

The study explains that the majority of health care providers break rules, make mistakes, or apppear to behave incompetently, but less than 1 in 10 say anything about it.