CONTENTS:
- Perspective: Rabies? Practicing defensive medicine leaves me sleep deprived
- Empty chair defense
- The expert who changed his opinion: follow-up
- Rapid strep tests
- The defamed witness
- “Do it yourself” malpractice law
- Physicians attempt to curtail frivolous lawsuits
- Funding your malpractice suit
- Hospitals won’t bill for medical errors
- Losing defendants pay plaintiff attorney fees
- Falsifying records voids the statute of limitations
- Certificate of merit
- Malpractice attorneys advertising in “Physicians” section of Yellow Pages
- Plaintiff attorney feels sorry for opposing counsel
- Online LNC course available for RN’s
Perspective: Rabies? Practicing defensive medicine leaves me sleep deprived
Recently I lost a night’s sleep worrying about whether a treatment in which I became a participant might have done more harm than good. Here’s the scenario.
Empty chair defense backfires on defendant urologist
When a male pelvic trauma patient developed problems following a urethral catheterization, the defendant urologist opined that the patients problems may have been caused by prior nurse attempts to catheterize the patient , even though the urologist’s own attempt went smoothly. However, the urologist’s attorney failed to notify the plaintiff attorney of this defense tactic, and the judge ruled that he would declare a mistrial if this opinion were later offered at trial. Despite this, the urologist could not keep his mouth shut on the stand, offered his opinion, and a mistrial was declared. What would have been an easy defense verdict was later settled before a re-trial. Two morals here: (1) a defendant doctor should follow his/her attorney’s – and the judge’s – advice, and (2) a defense attorney needs (apparently in most jurisdictions) to inform the plaintiff attorney of a proposed line of defense… and assure that his/her client comply with instructions from the court. << CLICK HERE >>
Case against plaintiff expert who changed his opinion now back in Utah courts. Follow up on March/April issue.
Dr. Barry Swerdlow, the plaintiff’s expert who changed his opinion after belatedly reading the defendant physician’s deposition, is now himself being sued by plaintiffs because his change of heart caused the court to dismiss the plaintiff’s suit against another physician. This sure seems like a case that is going nowhere. I cannot believe that any court would require that an expert witness who, during the course of discovery, encounters information leading him to a contrary opinion, no matter how poorly evolved, would essentially be forced to lie to the court and say something he no longer believed to be true. This would be a boon for unscrupulous experts, who would no longer feel compelled to say what they really think, and could sell their comments, true or not, to any attorney willing to pay the price. Just one more reason that I believe more practicing physicians should become involved in medical dispute resolution. Justice is not served by compelling a witness to say something he or she no longer believes to be true. << CLICK HERE >>
Rapid strep test sufficient: FYI
I reviewed an article on MedScape (that I can’t crosslink because a subscription is required). Bottom line: A family physician relying on a negative rapid strep test in his office was found not to have committed malpractice after the teenage patient developed acute rheumatic fever 4 weeks later. The standard of practice no longer demands that a followup culture of a negative rapid strep be done, at least as demonstrated by the results of this one case.
Plaintiff expert suit against American Academy of Ophthalmology dismissed:
A plaintiff expert claims he was “defamed” when defendant physicians lodged a complaint with their professional organization over testimony the plaintiff expert gave at trial. So the plaintiff expert sued the AAO. The judge dismissed the case against the AAO, but surprisingly ruled that the “defamed” plaintiff expert could sue, as individuals, the defendant physicians against whom he testified in the case.
I feel it might have been better to let the original claim proceed, which almost certainly would have resulted in vindication of the AAO, since the other part of the judge’s ruling, allowing defamation suits against complainants as individuals, could put a damper on physicians testifying for plaintiffs or defendants. << CLICK HERE >>
No attorney will take my case, so I guess I’ll do it myself
Just an interesting little piece illustrating why each side in a malpractice case prefers to have a competent attorney on the other side, at least if a case has merit. I found no evidence that the required affidavits were subsequently filed to allow the case, referenced below, to proceed. << CLICK HERE >>
Physician organization in North Carolina attempts to curtail “frivolous” lawsuits.
Physician members of “Medical Justice” have their patients sign an agreement to use only board certified experts in the event of a question of a breach of the standard of care. MJ’s website describes what they do as follows: “Medical Justice is a membership-based organization that is focused on relentlessly protecting physicians from frivolous lawsuits through deterrence, early intervention, and enabling effective responses. Maximum protection at the most cost-effective price is afforded by joining before you are sued.”
Once again, I find that few plaintiff attorneys can afford to take on so-called “frivolous” cases. In cases they accept, there is usually a question involving the standard of care. << CLICK HERE >>
Help available for plaintiff attorneys with shallow pockets: Lawsuit Financial
On the other hand, Lawsuit Financial http://www.lawsuitfinancial.com/ will evaluate cases for plaintiff attorneys and provide funding for subsequent litigation if the case has merit. An article in the Detroit Business News describes the company. << CLICK HERE >>
Hospitals will no longer bill for medical errors in Washington State
That pretty much says it all. << CLICK HERE >>
Plaintiff attorneys win in Colorado legislature: Defendants to pay their fees
Colorado recently passed a bill requiring unsuccessful defendants to pay a portion of plaintiff’s legal fees, even if a prior settlement offer that was refused was more than the amount awarded at trial. Bill also increases allowance for non-economic damages, and eliminates limits for “physical impairment and disfigurement” without defining these. << CLICK HERE >>
Falsifying records is fraud, not subject to statute of limitations
A Massachusetts court ruled that falsification of medical records constitutes fraud. Since fraud is not subject to the statute of limitations, as is medical malpractice, a physician falsifying records may be subject to a lawsuit regardless of how long ago the alleged event occurred. << CLICK HERE >>
WSMA tracking “certificate of merit” case in Wenatchee.
[Editor’s Note: The information below is verbatim from “WSMA Membership Memo,” April 4, 2008]
The WSMA is currently tracking a case in Wenatchee that threatens the state’s certificate of merit statute (RCW 7.70.150) that was recently passed as part HB 2292, a compromise bill on liability reform the WSMA negotiated with the governor and the trial lawyers in 2006. RCW 7.70.150 requires that a complaint in a medical malpractice case be verified through simultaneous filing of certificates of merit from qualified experts as to each defendant’s failure to conform to the applicable standard of care.
In this case, the plaintiff filed her complaint against a large multispecialty group, two radiologists and her primary care physician. Her attorney filed only one certificate of merit. The certificate was from a radiologist, stating that the claims against the two defendant radiologists had merit. No certificate was filed as to the care of the primary care physician or an OB/GYN also involved in the plaintiff’s care. The plaintiff argued (1) that for vicarious liability claims only one certificate of merit was necessary for all defendants, and (2) the certificate of merit statute was unconstitutional.
The trial court ruled that the certificate of merit statute was not unconstitutional as applied in this case. The court reserved ruling on the motion as to corporate negligence, but dismissed all vicarious liability claims against the multispecialty group that were based upon the conduct of any health care provider (including but not limited to the OB/GYN and the primary care physician) for whom a certificate of merit had not been filed.
The plaintiff is now seeking direct review from the Washington Supreme Court requesting the Court to declare RCW 7.70.150 unconstitutional.
The certificate of merit was a key component of the compromise agreed to by the WSMA in HB 2292. This attack on its constitutionality is very troubling. We will continue to monitor this case as it develops and work with defendant and their counsel to support their efforts to achieve a favorable outcome.
“Because that’s where the money is.” Willie Sutton, bank robber*
FYI, according to a Maryland blogger, Verizon has included 6 ads for malpractice attorneys in its just-published telephone directory for an unnamed city, presumably Baltimore. Not unusual, except that the ads are printed under the listing for “Physicians.” Please, plaintiff attorneys reading this, I hope you are all above that. And that goes for Verizon, too. Should this trend continue, I wonder what non-attorney services might decide to place ads under the heading “Attorneys.” (If you have a suggestion, and it’s in a tasteful spirit of good humor, send me an email and I just might publish it the next issue.)
*This quote, attributed to Mr. Sutton, was actually created by an industrious newspaper reporter, but later used by Mr. Sutton in his autobiography. Mr. Sutton said that, although he agreed with such and obvious statement, he mainly robbed banks because it was “just a whole lot of fun.”
Plaintiff attorney feeling sorry for potentially unemployed defense attorneys in Nevada
I normally avoid posting anything here from www.injuryboard.com but I was tickled by attorney Steve Klearman’s concern for the opposition in a recent post. He laments the situation where “conservative juries” and damage caps make practicing personal injury law in that state difficult. “One wonders what the defense attorneys will do for work when there aren’t plaintiff’s attorneys left who are willing to take these cases?” asks Mr. Klearman. << CLICK HERE >>
Online course available for RN’s wishing to become Legal Nurse Consultants
An online professional certification in Nurse Paralegal Studies will be offered beginning in April through Thomas Edison State College in Trenton, N.J. According to the website, a nurse who graduates from the 45-week program will receive a certificate and have sufficient legal training to work as a nurse paralegal or legal nurse consultant (LNC). The program director says the program allows busy nurses to complete the work according to their erratic schedules. << CLICK HERE >>