MEDICAL MALPRACTICE BULLETIN for June, 2008

CONTENTS:

  • Perspective: The high cost of medical care
  • Nevada jury awards plaintiff nothing while finding defendant pathologist negligent: The downside of tort reform
  • Georgia judge rules that tort reform unfairly favors wealthy patients
  • Sanctity of peer review process upheld in US District Court rulings for JAMA and NEJM
  • Lawyers must behave: Two courts find breaches of courtroom etiquette inappropriately influenced outcomes
  • NC physician organization combats malpractice with “vaccine against libel”
  • Physicians Insurance using focus groups to evaluate cases pre-trial
  • Experts can’t survey others to determine the standard of care.
  • Neurologist is not an expert on nursing care
  • Malpractice following treatable injury increases value of plaintiff award for a “trip and fall” event
  • New North Carolina law requires expert certification of merits of malpractice claim before filing
  • Don’t assume you will get to depose the doctor writing the “certificate of merit”

Perspective: The high cost of medical care
Two recent articles contend that, compared to other nations, the United States gets too little value for the money spent on health care.  Dr. John Wennberg and colleagues of the Dartmouth Institute for Health Policy and Clinical Practice and Drs. Ezekiel Emanuel and Victor Fuchs (JAMA, June 18) provide documentation of the extent of the problem with US health care. The latter authors’ article is titled “The Perfect Storm of Overutilization.” There is no measure in which the US excels, e.g., infant mortality, cancer deaths, heart disease, or life expectancy. We simply do worse.

For anyone interested in why medical care costs so much, and why we seem to do so poorly in comparison with the rest of the world, << CLICK HERE >> for a summary of the articles and links to the orginal data.

Nevada jury awards plaintiff nothing while finding defendant pathologist negligent: The downside of tort reform
A jury in Nevada awarded no monetary damages to the plaintiff, even though the defendant pathologist admitted his error. The jury, apparently influenced by political ads during the state’s tort reform ballot campaign, reportedly feared that the defendant doctor would leave the state if he were liable for a monetary award. They actually wanted to pin an award on the pathologist’s professional corporation, but the PC had not been named in the suit. The trial judge, not surprisingly, “was incensed.” << CLICK HERE >>

Georgia judge rules that tort reform unfairly favors wealthy patients
With a cap of $350,000 on non-economic damages, tort reform unfairly limits recovery for low income patients, according to a pre-trial ruling by a Fulton County judge, because high earners can prove greater economic damages. << CLICK HERE >> for the full story

Sanctity of peer review process upheld in US District Court rulings for JAMA and NEJM
A pair of US District Court rulings earlier this year strengthened the ability of scientific journals to protect the confidentiality of their peer review process. The courts ruled that Pfizer could not have access to the comments of reviewers regarding journal articles questioning the value of Pfizer products. Such access would dissuade reviewers from participating in the process and degrade scientific inquiry, according to the courts. << CLICK HERE >>

Lawyers must behave: Two courts find breaches of courtroom etiquette inappropriately influenced outcomes
A Michigan appeals court in March found the plaintiff counsel’s improper behavior in a malpractice trial pervasive enough to influence the jury and prevent a just hearing. The Ohio Supreme Court made a similar ruling in an October, 2007, birth injury lawsuit. For more << CLICK HERE >>

NC physician organization combats malpractice with “vaccine against libel”
Critics suggest that “Medical Justice,” a 1700 member NC physician group previously discussed on these pages, may be over-reaching by asking patients to sign an agreement not to post opinions about a practice on the internet. While there may be First Amendment issues, the agreement might also raise a red flag for the patients of a participating physician’s practice. One commentator believes physicians would be better off investing in communications training. For more << CLICK HERE >>

Physicians Insurance using focus groups to evaluate cases pre-trial
As part of the evaluation process in determining the defensibility of a particular claim of malpractice, Physicians Insurance (Washington State) uses focus groups to provide a sort of “moot court” analysis. The company has found the process valuable, and describes it on page 5-6 of their Spring, 2008, “Physicians Report.” Also included on page 3 of the document is a summary of four cases tried in the last half of 2007, all resulting in defense verdicts. For the full report << CLICK HERE >>

Experts can’t survey others to determine the standard of care
The Florida Supreme Court ruled 5-2 that medical experts cannot base opinions on consultations with colleagues or other experts when they testify about the standard of care in medical liability cases. Experts in Florida must base their testimony on their own education, training and experience. For more, << CLICK HERE >>

Neurologist is not an expert on nursing care
A Texas appellate court has been asked to decide if an expert’s testimony should have been excluded. A neurologist (from Virginia) testified that a Texas hospital was negligent in not restraining a patient who pulled out her breathing tube and eventually died of anoxic encephalopathy. On appeal, the defense argues that the neurologist cannot testify as to the standard of nursing care required. For details, << CLICK HERE >>

Malpractice following treatable injury increases value of plaintiff award for a “trip and fall” event
In this case, a woman whose foot was broken in a fall on a Honolulu sidewalk is alleged to have received sub-standard care for her injury, resulting in permanent disability. Had she been appropriately treated, she would have had a smaller claim against the city. However, “since malpractice is a foreseeable complication of the original injury,” the settlement against the city was much greater than the injury would have appeared to warrant. More on this case can be found << HERE >>

New North Carolina law requires expert certification of merits of malpractice claim before filing
The law also requires a 60 day pre-filing notification of defendants but does not cap non-economic damages. Penalties exist for plaintiff attorneys who do not comply. A similar law has passed both houses of the Tennessee legislature as well. The Tennessee story can be read in a law professor’s blog << HERE >> and in the Nashville Business Journal << HERE >>

Don’t assume you will get to depose the doctor writing the “certificate of merit”
Another state, Illinois, also requires that a “certificate of merit” be presented in order to file a malpractice lawsuit. However, a judge there recently ruled that there is no requirement that the person providing the certificate be made available for deposition. In the case at hand, the plaintiff attorney dropped the physician as an expert once the certificate was received. For more, << CLICK HERE >>