Articles Posted in Medical Negligence

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.

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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.