Illinois malpractice reform advocates have apparently given up putting constitutional change on the ballot this year to try to get back caps on medical malpractice awards in Illinois, accordingly to LegalNewsLine.com.
The "letting the voters" decide paradigm sounds very appealing. Up with people and all of that. But, really, do you want the constitution changing as frequently as voters change their minds?
The Washington Supreme Court unanimously (9-0) threw out a 2006 law that requires an injured patient to get a certificate of merit from an expert before suing for medical malpractice, finding that RCW 7.70.150, usurped the judicial branch's power to determine the procedures by which courts adjudicate medical malpractice lawsuits. In other words, requiring a certificate of merit in medical malpractice cases in Washington violates the separation of state powers in Washington's constitution.
I'm not necessarily against the idea of certificates of merit in medical malpractice cases - which have been required for years as a condition precedent to filing medical malpractice lawsuits in Maryland - even though I'm a little queasy about the idea of treating doctors in civil lawsuit differently that the rest of us. (The justification? We have been doing it that way for a while. Which is really no justification at all when you think about it. But let's move on.) But if you read the opinion, it is hard to argued that a certificate of merit is anything other than a procedural rule. Washington state constitution, similar to Ohio's - is clear that procedural rules are for the judiciary.
Seven of the justices also said that the law was unconstitutional because it unduly burdened the right of access to courts.
"Obtaining the evidence necessary to obtain a certificate of merit may not be possible prior to discovery, when health care workers can be interviewed and procedural manuals reviewed," wrote the majority, led by Justice Susan Owens. "Requiring plaintiffs to submit evidence supporting their claims prior to the discovery process violates the plaintiffs' right of access to courts."
Justices Barbara Madsen and James Johnson wrote in a separate concurring opinion that while they agreed that the law was unconstitutional on the basis of separation of powers, it did not unduly interfere with access to the courts.
A doctor faces a long and almost certainly emotional jury trial. And the doctor wins. Does this mean the doctor can put the incident to bed? The answer is usually, but not necessarily.
A jury's finding that a doctor did not commit medical malpractice does not control a decision of the Maryland State Board of Physicians in a disciplinary proceeding under the Maryland Medical Practice Act. Accordingly, the Board can ignore a malpractice jury verdict in making the decisions it does.
The Maryland Injury Lawyer Blog offers thoughts on when to serve interrogatories. The argument that interrogatories should filed contemporaneously with the complaint applies to medical malpractice cases but with less force. The question is going to hinge on the facts, potential defenses, and other tactics specific to that malpractice lawsuit.
The Maryland Court of Appeals changed an illogical quirk in Maryland law on Friday, finding that doctors must inform patients not only of the risks of treatment but also the potential consequences of forgoing a medical procedure.
The Maryland Injury Lawyer Blog has a complete summary of this medical malpractice case here.
Wisconsin has a really dumb medical malpractice law. Non-dependent children or their parents are not allowed to file a medical malpractice lawsuit for a death claim that results from a medical error. There is now a move afoot in the Wisconsin legislature to make for a more fair wrongful death medical malpractice law.
In Maryland, there can be no wrongful death claim because there is no surviving parent or child. In other words, there is no loss for the death of the victim. This is one awful consequence of Maryland’s wrongful death law and should be changed. But Maryland does not go as far as Wisconsin and require dependency, which is abjectly unjust and hopefully will be changed soon.
If you have a a wrongful death medical malpractice claim in Maryland, call our Maryland malpractice lawyers at 800-553-8082 or click here for a free Maryland malpractice consultation.
The House Judiciary Committee is expected to consider a bill today that would allow military personnel to file medical malpractice lawsuits against the military. The proposed law comes in the wake of the death of a marine as the result of the misdiagnosis of skin cancer by military doctors. The Feres Doctrine, named for a 1950 Supreme Court case, currently preventing people in the military from filing medical malpractice lawsuits.
Why should our military have the opportunity to bring the same claims anyone else can bring? I don't want to minimize the costs, it is real money. But compared to the toll we are putting on our soldiers these days, it seems a small price to pay for a little bit of justice.
Maryland has a ridiculous statute of limitations of five years in medical malpractice cases where the malpractice victim would not have known of their injuries. New York's is even worse: two-and-a-half years, both a strange and draconian length. Some medical malpractice lawyers in New York are a part of the effort in Albany to make a more reasonable statute of limitations in New York.
In Allen v. United States, the government received summary judgment in North Dakota District Court in a medical malpractice case because they failed to retain an expert to offer opinions as to causation.
Plaintiff received transfusions at the Grand Forks Air Force Base Hospital in South Dakota over ten years ago. In 2005, while attempting to obtain life insurance, the plaintiff was diagnosed with Hepatitis C virus. Plaintiff claimed the government committed medical malpractice for failing to screen the blood she received and for failing to timely diagnose and treat her for the Hepatitis C virus.
Interesting article in the Insurance Journal on medical malpractice panels in New Hampshire. The idea is that medical malpractice panels, which are chaired by a retired judge and include a doctor and lawyer -- screen every medical malpractice case that's filed in New Hampshire. If the verdict of the panel is unanimous, this information is given to the jury. We do not have this system in Maryland although some variation is regularly raised by medical malpractice tort reformers from time to time.
The problem with medical malpractice panels is that they add to the cost to the already significant cost of bringing a medical malpractice lawsuit. Accordingly, Plaintiffs' medical malpractice lawyers in Maryland and elsewhere generally dislike the notion of medical malpractice panels. Conversely, defendants' medical malpractice lawyers love the system: more hours to bill.
Update: here is another article (January 11, 2009) on effort to modify or eliminate this medical malpractice in New Hampshire.
Sometimes medical malpractice clients assume that they have a “slam dunk case” when they learn that there have been displinary action by the Maryland Board of Physicians.
But under Maryland law, specifically § 14-410(a) of the Maryland Health Occupations Article, minutes or notes taken in the course of determining the denial, limitation, reduction, or termination of the employment contract of any physician in an alternative health system are not subject to review or discovery by any person nor are any finding made by the Board subject to subpoena or discovery.
In other words, these documents or findings from the medical board are not only inadmissible but are not even discoverable. This may seem unfair from the patient’s perspective. For good reason, the findings of the medical board and the doctor’s statements or ommisions might be relevant to the patient’s medical malpractice lawyer’s effort to support the claim against a negligent doctor.
Then why are the findings inadmissible? The purpose behind the Maryland medical peer review privilege is not to foster justice in individual medical malpractice cases but for effective review of medical care so that it can be improved. Confidentiality is considered essential to the peer review process because doctors hate criticizing other doctors as it is. If we expose those doctors to fears of exposure to involvement in medical malpractice case they may wish to avoid, loss of referrals from other doctors, or even from becoming a litigation target themselves (far less likely but feared by doctors involved in the peer review process).
Accordingly, this process may harm individual patients who have been harmed by medical negligence but it is believed for the health care system as a whole. Medical malpractice lawyers do not like the rule but it probably is a good rule for overall medical care in Maryland.
USA Today has a good article about a nurse who was fired because her husband is a medical malpractice lawyer in Texas. Wait, strike that, the hospital she worked for assumed he was a medical malpractice lawyer. He is not.
Many are surprised to hear such a species still exists in Texas anyway, given its draconian medical malpractice damage caps. But this story highlights a new trend of many doctors refusing care to medical malpractice lawyers, their families, and employees.
Some medical malpractice lawyers – and many doctors - see the refusal of doctors to provide medical treatment to patients seeking care as contrary to the Hippocratic oath, in which new doctors vow to appreciate "special obligations to all my fellow human beings."
I can’t imagine a decent doctor withholding care because you married to, work for, or are a medical malpractice lawyer. But if you encounter a doctor who refuses to give you treatment, I think you are probably better off.
It is also worth noting that our law firm occasionally does legal malpractice work in Maryland. This is not at all frowned upon by other personal injury lawyers or any other lawyers. I’m not putting lawyers on a pedestal above doctors. I have three kids and I want them all to be doctors, not lawyers. Believe me. But I don’t think lawyers feel targeted by legal malpractice lawyers because we figure if we do our job within the standard of care, we will be fine. This is why I get so confused by doctors who have never so much as seen a medical malpractice lawsuit – 96% according to a recent study in North Carolina - who get so involved in this issue.
Wyoming Senator Mike Enzi introduced a bill designed to encourage doctors and other medical professionals to volunteer their services to patients who cannot afford or access care. The law would provide grants that states would use in part to assume medical malpractice risk for doctors and ensure patients can recover damages from medical malpractice.
I have not thought through all of the ramifications of such a bill but it sure seems to make a lot of sense. What we also need to look at more creatively as a society is trying to get more doctors into rural areas. There have always been reports of doctor shortages in the more rural parts of Maryland.
