Perspective: State Supreme Court Accepts Two Important Cases for Review in 2009
An article in the October 23, 2008, issue of the WSMA Bulletin explains WSMA’s concerns regarding two upcoming cases to be heard by the Washington State Supreme Court in 2009. The first, Columbia Physical Therapy, Inc., P.S. v. Benton Franklin Orthopedic Associates, P.L.L.C. WSMA’s concern is that a ruling could prohibit physicians from employing other non-physician health care providers (“unlike licensees”). The second, Putman v. Wenatchee Valley Medical Center, et al. could affect the certificate of merit provision, possibly rendering it unconstitutional, and may place in jeopardy other liability reform provisions that were included in SSHB 2292.
Judge admitted improper evidence in malpractice case, court rules
After a summary judgment was entered because of her failure to respond, a defendant physician attempted to produce evidence in her defense during the damages portion of an Arkansas malpractice matter. The attempt was overruled on appeal.
Documentation of a “consent conversation” good; consent form better
The term “getting consent” does not mean having a form signed. Getting consent means having a conversation with the patient. If a treatment or procedure is advised by a physician, the patient’s consent to that treatment is important. Consent should document both risks and benefits. Courts will look to the records for this. If there is no documentation of a consent conversation, the record will seemingly support the patient’s story. If there is a consent form and progress note, the documentation would support the physician’s version, perhaps leading to a favorable verdict.
Tort reform having expected effects in Nevada.
Lawsuits are down. New physicians are up. Premiums are down. Doctors are happier. So are insurers. Attorneys are not. Patients are sometimes left in the cold. Here’s a quite readable summary of the result of tort reform in Nevada from the Insurance Journal.
Contingency fees best protection against frivolous lawsuits
An article in Medical Economics explains to physicians why contingency fees are the physicians best friend in preventing frivolous lawsuits. Attorneys can’t afford to take a case they aren’t likely to win or settle favorably, and have heard that as many as 9 out of 10 cases presented to plaintiff attorneys never become lawsuits. (If anyone has seen a study on this, I’d love to reference it in this newsletter. Also, I am happy to pre-screen these cases but find that, if a plaintiff attorney has doubts about a case’s merits, he/she is usually right.)
“Excessive” opiate prescriptions killing patients
Prescription narcotics are now a leading cause of death, and Washington is among the national leaders in the misuse of opiate medications. The push by national regulatory bodies to assure that all patients have their pain effectively treated, especially in emergency departments, is likely a contributing factor.
Failure to provide interpreter for deaf patient costly to NJ physician
Not providing the sign language interpreter requested by a deaf patient has cost a New Jersey doctor a $400,000 jury award. Malpractice insurance doesn’t cover this. Attorneys are also subject to the same rules for accommodating clients needing interpreters.
Given the importance of providing appropriate interpretation services to patients, how would you respond to this situation:
A mute person goes into a shop and wants to buy a toothbrush. By imitating the action of brushing his teeth he successfully expresses himself to the shopkeeper and the purchase is done.
Next, a blind man comes into the shop who wants to buy a pair of sunglasses; how does HE indicate what he wants?
***Scroll to the bottom of this newsletter for the answer.
Florida court rules that hospital bylaws do not trump medical staff bylaws
Justices on Aug. 28 nullified a St. Lucie County law that allowed hospital board bylaws to supersede medical staff bylaws in any conflicts over privileging, contracting and quality. “The rights, duties and responsibilities of the medical staff must be respected by hospital boards, not circumvented using legislative influence,” FMA President Steven R. West, MD, said.
How in the world can a dentist get away with doing breast surgery? In Seattle!
If you haven’t read this one in the local paper or another source, it’s as bizarre as it sounds.
Federal court sides with physician in hospital suspension lawsuit involving physical altercation with colleague
This material originally appeared in the September 19, 2008, issue of Health Lawyers Weekly, a publication of the American Health Lawyers Association.
A physician who sued a hospital that summarily suspended his privileges had met his burden of showing the hospital was not entitled to summary judgment based on immunity afforded by federal and state peer review protections, a federal trial court in Tennessee ruled September 8. Dr. Alexander Stratienko, a physician at Erlanger Hospital in Chattanooga, Tennessee, was involved in a physical altercation at the hospital with another physician, Dr. Stephen Monroe.
Oklahoma Supreme Court overturns “180 day notice to defendant” for medical malpractice; previously overturned certificate of merit requirement
A portion of Oklahoma’s malpractice reform law has been struck down because it singles out cases of medical malpractice for automatic dismissal. Other types of personal injury receive a notice of dismissal and have other legal options.
Georgia court finds emergency department physician not “grossly negligent” in malpractice lawsuit
A Georgia emergency physician appealed her failure to prevail in a motion for summary judgment in a case against her claiming that Ga. Code Ann. § 51-1-29.5 provides that “no physician or health care provider shall be held liable unless it is proven by clear and convincing evidence that the physician or health care provider’s actions showed gross negligence.” The appeals court concurred that her actions met the standard of care. X-rays taken were read by a radiologist; on whose opinion she relied. Based on this finding, there was no need for an orthopedic surgeon to consult in the emergency room about the patient’s leg injury.
Awand, Gage, Thalgott, Kabins, Chou, Cutarelli, Jain: Names in Las Vegas soap opera malpractice case back on front page
Las Vegas will be making news for years in at least three major malpractice matters in Las Vegas. One is the litigation of a convoluted malpractice referral network of physicians, attorneys and network managers. Another involves a local colonoscopy practice and the third involves ophthalmic laser surgery. Now that the election is over, this news returns to the front page, at least in Las Vegas and on various legal blogs.
***Answer: It’s really very simple. He opens his mouth and asks for it.