Articles Posted in Medical Negligence

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.