Articles Posted in Medical Negligence

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.

Yesterday I had the opportunity to testify before a group of state legislators interested hearing debate about a bill designed to limit the ability of patients to file medical malpractice lawsuits and recover adequate compensation when they do.

The bill, HB 2122, includes a provision that would give a defendant tortfeasor the right to reduce the damages awarded by the jury by the amount of life insurance paid for by the decedent, the disability insurance paid for by the plaintiff, the social security benefits received by the decedent’s family or the injured person, and worker’s compensation benefits.

It would also wipe out subrogation interests for every insurer who paid benefits to medical negligence victims. Indeed, it even attempts to eliminate subrogation interests for Tenncare, Medicare, and ERISA-based subro claims. Hmmm.

The March 28, 2005 edition of Lawyers Weekly USA reports several cases on behalf of nursing home residents killed by fire ants.

In Florida, a 73 year old man recuperating from surgery was attacked by fire ants. The lawsuit against the nursing home settled for $1,870,000.

The family of a woman in North Port, Florida received an undisclosed settlement for a similar attack. A woman in Bradenton won $1,200,000 for a fire attack assault. She survived.

A recent editorial quotes the results of a Florida study that demonstrates that there has not been the dramatic increase in the numbers of malpractice cases represented by the insurance industry and doctors.

The editorial said that “the research showed that while the state’s population climbed by 31.5 percent in this time, med-mal claims paid per 100,000 residents actually fell from a high of 12.36 in 1996 to 9.74 in 2003.”

The editorial goes on to say that “the study found the ‘debate about the role of juries in so-called ‘mega awards’ is misplaced.’ In 14 years, the study identified 801 cases in which more than $1 million was paid. Further, the study said 93 percent of the million-dollar payouts were the result of settlements, not jury awards.”

The Tennessee General Assembly has a myraid of tort “deform” bills pending in the medical malpractice field this year. Generally speaking, the bills want to cap damages on meritorious cases, limit attorney’s fees for lawyers who represent patients, cut off subrogation interests, impose periodic payments, etc.

The newest example of outrageous conduct is an attempt by the doctors to let the state medical board establish criteria for expert witnesses. To read the bill, click here, click on “Legislation” and enter House Bill number 1011.

The legislation would require the expert to sign the guidelines – or face cross-examination on the failure to sign them. It would give the state medical board the right to publish additional rules – perhaps even subjecting the expert to displinary action if the expert has been found by the board to given testimony with which it did not agree. This is witness intimidation, nothing more, nothing less.

The Hunter v. Ura decision that I wrote about several days ago also seems to open the door to prejudgment interest in personal injury and wrongful death cases.

Several years ago a case called Myint seemed to suggest that prejudgment interest could be awarded in such cases. Then, several court of appeals decisions held that prejudgment interest could not be awarded, and the Tennessee Supreme Court refused to hear those cases on appeal.

In Hunter the Supreme Court affirmed the trial judge’s refusual to award prejudgment interest, but affirmatively held that a trial judge has the discretion to award it.

Hunter v. Ura has been decided by the Tennessee Supreme Court. The Court reversed the Tennessee Court of Appeals and reinstated a jury verdict for the plaintiff.

The majority opinion is authored by Justice Riley Anderson. Justice Barker, joined by Chief Justice Drowota, dissented on one issue of many raised in the appeal.

I have to catch an early morning flight to Ohio so I do not have time to summarize this opinion for you this morning. Suffice it to say that this opinion is the most important opinion in the medical negligence field that comes to memory. It is definitely a “Blue Chipper.”

Would you think that a doctor who has had 33 medical malpractice payouts in the last decaded would still be practicing medicine?

Dr. Michael Sachs in Manhattan is. His record became news after a 42 year old mother died after a nose job performed in his office. The cause of death was “cardiac arrest.” He also has two malpractice cases pending against him alleging breathing difficulties stemming from botched nose jobs. Read the article here.

The medical community does a horrible job policing its own providers. I have been involved in medical negligence work for over 23 years. I would be surprised in a doctor went his or her entire career without a payout on a medical negligence case; anyone can make a mistake. I can even understand a couple of payouts. But 33 in a decade? Where are the licensing folks?

The Supreme Court of the State of Minnesota has held that a physician has an affirmative duty to inform a child’s biological parents about the risks posed by their child’s genetic problem.

The plaintiff’s child was born with an inheritable form of mental retardation known as “Fragile X.” The parents were told that the condition was probably not genetic and the child’s doctors did not do full genetic testing on the child. The parents then had a second child born with the same condition. Later testing revealed that both children and the parents were carriers of Fragile X.

The court recognized that the parents had a right to sue their daughter’s doctors for negligently performing genetic testing. They said that “a physician’s duty regarding genetic testing and diagnosis exends beyond the patient to biological parents who foreseeabily may be harmed by breach of that duty.” The ruling recognizes that as a “practical reality … genetic testing and diagnosis does not affect only the patient.” Read the decision by clicking here.