Articles Posted in Medical Negligence

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.

The Wisconsin Supreme Court has ruled that the mother of a stillborn infant may seek damages for wrongful death and for negligent infliction of emotional distress.

The child died as a result of conceded medical malpractice. The misdiagnosis took place several hours before the child died in utero. The mother sued for wrongful death of the child and her own emotional distress. The hospital settled the wrongful death claim but argued that the mother did not have a cause of action for her own emotional distress.

The Wisconsin court disagreed and remanded the case for trial. The court held that the mother could recover damages for the wrongful death of the child as well as the her personal injuries, including those caused by negligent infliction of emotional distress.

An article in the Washington Post demonstrates an amazing ability of Sen. Bill Frist: the skill to make a medical diagnosis from a videotape.

This may surprise some of you who do medical negligence work or address a lot of medical issues in your practice. As lawyers we are all told how difficult it is to make a medical diagnosis. Defense experts will routinely testify that it is unfair to challenge a medical diagnosis without seeing and laying hands on the patient. But Sen. Frist has the ability to look at a videotape and make a diagnosis that contradicts that of the patient’s treating physicians!

The article discusses Sen. Frist’s review of a videotape of Terri Schiavo and his (subsequent?) opinion that she may not be in a persistent vegetative state. That opinion was in no way influenced by the upcoming Presidential election.

Most tort reform proposals center on limiting damages for people who are found by a jury to have meritorious claims. Insurance companies that sell malpractice insurance want their exposure capped. (Who wouldn’t?) Do doctors and hospitals get lower premiums in return? Well, that depends on if you ask the insurance companies under oath or if you are reading their PR pieces.

There is another debate out there that is more interesting from an intellectual standpoint – the debate about special courts for health care claims. These courts would run by health care professionals. Two folks are going at it on the Internet right now – Philip K. Howard, Founder and Chair of Common Good and the author of The Death of Common Sense: How Law is Suffocating America and Stephanie Mencimer, a contributing editor of The Washington Monthly and author of a upcoming book on tort reform.

Read the debate by clicking here.

The cause of medical negligence cases is medical negligence. To be sure, the legal system does not do a very good job of holding careless health care providers accountable (far more people are injured or killed by medical negligence than ever bring a lawsuit much less win a lawsuit) but the legal system does not cause medical negligence.

Here is some interesting data regarding drug errors by some people who are actually working to prevent patient harm. Note that the information is from U.S. Pharmacopeia, Center for the Advancement of Patient Safety (CAPS), a group in the health field, not a bunch of lawyers.

The group found inter alia that during the three-year period of 2001-2003, there were 532,144 medication error records submitted to MEDMARX, a voluntary reporting service. Approximately 4.4% of these (n= 23,689) cited Wrong patient as a Type of Error. Nearly 50% of Wrong patient errors reached the patient but did not result in harm (Categories C and D) (Table 1.) Although only 1.3% of all Wrong patient errors resulted in harm, there were 10 sentinel events (including 3 fatalities) associated with this Type of Error. The number of fatalities from other types of errors is not a part of this report. The amount of medical expenses associated with errors and harm causing errors is not reported.

The Tennessee Supreme Court has held that the three-year statute of repose for medical negligence cases does not violate due process when applied to those who are mentally incompetent. The plaintiff argued that due process required that the statute of repose should be tolled during the period of incompetency. Read Mills v. Wong at http://www.tsc.state.tn.us/OPINIONS/TSC/Sc1qtr2005.htm.

As a result of this opinion, brain-injured adults and others who are incompetent lose their legal right to sue for medical negligence unless they file suit within one year of the date of discovery but no more than three years after the date of the negligent act or omission causing the injury (unless another exception to the statute of repose applies).

The only remaining exceptions to the statute of repose are for fraudulent concealment, the presence of foreign objects and the claims of minors.