Medical Malpractice Bulletin for October, 2009

In this issue:

Perspective: Certificate of merit overturned. Now what?

By Charles A. Pilcher MD FACEP

As most Malpractice Bulletin readers have undoubtedly heard by now, the requirement that a plaintiff must have a “certificate of merit” to file a malpractice lawsuit was overturned by the Washington State Supreme Court on September 17, 2009. The requirement was ruled to unfairly discriminate against a specific class of plaintiffs, thus denying them equal access to the courts and “conflicting with the judiciary’s inherent power to set court procedures.”

The medical news was quick to jump on the ruling as a victory for plaintiff attorneys. I am not so sure. I have always felt that COM was a benefit to both defense and plaintiff, since a plaintiff might not file a suit if the chance of recovery were negligible.

In my 25+ years of doing case review for both plaintiff and defense attorneys, I have yet to see a case I would call “frivolous.” Click here for the rest of this essay.

Health insurer can’t recover medical costs paid if settlement is only for pain and suffering.

In the case of Thomas v. Waller, the New York Supreme Court ruled on October 7, 2009, that a health insurance company is not entitled to recoup any of its expenses paid on behalf of a plaintiff awarded damages in a lawsuit if those damages were for “pain and suffering.” The company’s right of subrogation extends only to payments specifically set aside to cover medical expenses. Thomas made no claim for medical expenses in his original suit, which was settled prior to trial. The ruling justice rebuked the health insurance company and said that the injured victim had a contractual right to receive medical benefits when needed. The bottom line: Oxford Health Insurance and their agent, The Rawlings Company, were not entitled to recover anything. [Editor’s note: Thanks to a reader for this item.]

Law firm can’t read their own retainer agreement, sues own client – unsuccessfully.

When a plaintiff’s lawsuit was dismissed, apparently because her high-profile Manhattan law firm missed a statute-of-limitations deadline, she sued the  plaintiff firm. The firm counter-claimed, suing the plaintiff for the expenses they incurred prior to the dismissal.

The firm lost.

According to the decision, the firm’s retainer agreement provided that expenses and costs incurred in the prosecution of the suit would be “reimbursed as a lien against the total gross recovery of the action.” But the judge concluded that “since there was no recovery in the underlying medical malpractice action … there can be no claim for disbursements under the retainer.”

Do as I do, not as I say: Defense expert’s personal practice supports plaintiff’s claim

Despite testifying that a medical practice is not the “standard of care,” the fact that a defense expert does it impugns his testimony on behalf of a defendant physician. “The [Georgia Supreme] court found that under the Georgia Tort Reform Act, evidence of an expert’s personal practices, unless excludable on other grounds, was admissible both as substantive evidence and to impeach the expert’s opinion as to the applicable standard of care. As attorney Ronald V. Miller, Jr., says in the Maryland Injury Law Blog, “So the Georgia Tort Reform Act saves the plaintiff. Breathe in the irony.”

Social Media: Don’t forget to include it in discovery process

Malpractice cases often hinge on the physical or mental condition of a patient following an alleged medical or surgical misadventure. Attorneys are reminded that “social media” like Facebook, My Space, Twitter, cell phone records, text messages, email, blogs, client websites, etc., may often contain information on the condition of a plaintiff. Defense attorneys would do well to include such media in their discovery process. Plaintiff attorneys would do well to check their client’s “profiles” to avoid being blindsided. An article in USA Today from last year gives an example of how this worked in a pair of criminal cases. I would guess that a subpoena might be needed for some of these requests. [Editor’s Note: Should a reader ever need a good forensic computer expert, call me for a referral.]

As for our own use of social media, my Gen X son says, “Never say anything in social media that you would not say in public. Social media is public.”

New Jersey Court Gives Access to Non-Party Emergency Room Records

Jonathan Preziosi of Pepper Hamilton in New Jersey recently reported an April 15, 2009, ruling by the United States District Court for the District of New Jersey, in Gonzalez v. Choudhary (2009 U.S. Dist. LEXIS 32342 (D.N.J. 2009)) that potentially expands the limits of discoverable information in a medical malpractice lawsuit, though this particular case involved an EMTALA claim for denial of services.

The defendant hospital was asked to produce the medical records of other hospital patients similar  to the plaintiff’s. She argued that she could thus ascertain the hospital’s standard screening procedures for purposes of proving that she received disparate treatment.

The court agreed.

Preziosi says that “to avoid such problematic discovery obligations, hospitals should be sure to maintain policies delineating symptom-specific screening procedures for emergency room treatment. Maintenance of such written policies will not only minimize the risk of being compelled to produce other patients’ medical records as occurred but may also protect against the risk of a negligence claim for not having such a policy in place for proper emergency room care.

Washington State medical error reports: Where are they, and what do they mean?

In two recent Hearst New articles in the Seattle PI Online, Washington State’s medical error reporting system is highlighted. In the first, October 7, 2009, the State DOH reportedly has issued a call to investigate the lack of mandatory medical error reports from hospitals. The state law requires a variety of health care institutions to report a list of 28 ‘adverse events,'” but “only two thirds of hospitals have made any reports, and none have been submitted by the other categories of facilities. The State believes that “by now there should be thousands of reports,” and claims their interest “remains non-punitive.”

In an article the following day, the Washington State Hospital Association is reported to be asking the State for funds to hire a consultant to analyze those [missing?] medical error reports and recommend solutions. The hospitals “feel they aren’t getting enough in return when the state collects the reports and does nothing but store them.” According to State Rep. Tom Campbell (R), the expectation of such an allotment is “unrealistic” given Washington State’s budget crisis.

A scary Halloween report? New Jersey hospitals committed nearly 9,400 serious errors in 2007

The Newark (NJ) Star-Ledger (10/15, Livio) reports that state hospitals “committed nearly 9,400 ‘serious medical errors” in 2007 that led to conditions that “threatened” patients’ health, according to a report by New Jersey’s Department of Health and Senior Services. The “errors” listed included infections in surgical patients, wound dehiscence, accidental organ puncture, and falls, among others.

Successfully managing life is both an art and a science. Can we really eliminate all risk? What if we reported how often a carpenter misses the nail and hits his thumb?