Articles Posted in Medical Malpractice News

The Pop Tort rages about the certificate of merit requirement that many states have in medical malpractice cases, citing a particularly onerous Connecticut merit requirement. The Pop Tort cites a news article of an awful injustice done to a woman who had her medical malpractice lawsuit dismissed.

After a long ride to the end of the article, we find out what the grave injustice was. The plaintiff sued her doctors for alleged breach of contract and infliction of emotional distress — not malpractice – and the court decided she need a certificate of merit.

Personally, I’m fine with this. I think certificates of merit are actually a good thing. There is a knee jerk reaction: the certificate of merit makes it hard for plaintiffs and their lawyers to bring lawsuits. But not all things that are made harder are bad thing. I know that there are some meritorious cases that don’t make the cut because discovery is needed to get the information for the cerftificate of merit in the first place. But good lawyering can find a way around that problem, at least in Maryland.

  • The family of a man who died at Massachusetts General Hospital has settled its case against the hospital for $850,000. The man died after nurses failed to respond to alarms on his cardiac monitor. This death has shed national attention on the dangers of “alarm fatigue’’ among hospital staff.
  • A few New York courts are taking a new approach to handling the 4,000 medical malpractice suits filed each year. The approach…settling cases early. The pilot program will be using a $3 million grant to train more judges in medical issues, and has been shown to cut court backlogs and save money, while also proving to be a cost savings to hospitals and directly impacting the indemnity insurance of doctors. One of the new rules approved for the medical malpractice cases, in order to expedite things – scheduling Settlement Conferences 45 days after court papers are filed.
  • The Tennessee Court of Appeals issued an opinion on its relatively new certificate of merit rule in Crawford v. Kavanaugh. Maryland has a similar rule and this opinion is a cautionary tale for both Tennessee and Maryland malpractice lawyers. The lesson: don’t take a malpractice case unless you know how to handle it.

The Tennessee Court of Appeals issued an opinion on its relatively new certificate of merit rule in Crawford v. Kavanaugh. Maryland has a similar rule and this opinion is a cautionary tale for both Tennessee and Maryland malpractice lawyers. The lesson: don’t take a malpractice case unless you know how to handle it.

In Crawford, the defendant doctor performed a cystoscopy, retrograde pyelogram, and a brush biopsy on a woman’s ureter. The purpose of this procedure is typically to diagnose transitional cell carcinoma, a cancer of the urinary system. The doctor believed the woman had atypical urothelial cells. To combat this, the doctor performed a uretectomy and ureteroneocystostomy. The woman had an infection and other complications. Another doctor treating the woman noticed she had a bowel obstruction. The woman had to undergo another surgery.

Clearly, this is an awful thing in human terms but not a major injury in the medical malpractice milieu. The woman needed “many additional weeks” in the hospital and “many months of recuperation and rehabilitation.” Again, I don’t want to minimize her suffering. This is a tragedy if it happens to someone I care about. But that does not mean it is a good malpractice case. What is my point? This is the kind of case taken by maybe an otherwise good lawyer who does not regularly handle malpractice cases. Typically, experienced malpractice lawyers don’t take a case like this and won’t make these mistakes.

  • There are already major safety issues with medical devices, so what do the venture capitalists who invest in device companies want to do? Make it easier to get devices approved.
  • The Delaware Supreme Court holds that a referring physician is not liable for malpractice committed by the doctor to whom he or she refers a patient.
  • Here’s a point in the case for choosing a female doctor.

Do electronic records decrease malpractice?

Electronic medical records are all the rage. The potential benefits are not hard to see. Doctors can access a patient’s entire medical history from one chart. Allergic reaction to penacilin in 2003? Got it. Equally helpful, the system has built-in alerts of the potential dangers of drugs interactions.

It is a bipartisan idea in Washington, D.C., a town where bipartisan ideas are as common as Indianapolis Colts wins without Peyton Manning. President George Bush first championed Health Information Technology as a national priority for the U.S. in 2004. President Obama then threw $36 billion in stimulus money from the American Recovery and Reinvestment Act (ARRA) – earmarked to facilitate implementation of electronic health records (EHRs) – just what the doctor ordered to speed things up. Since then, the EHR implementation machine has churned away in an effort to improve efficiency in patient care. By broadening access to patient information, creating a consistent system for reminders and alerts, offering important safety features such as clinical decision-making support, and automating prescription filling and re-filling, EHRs have the potential to change the landscape of medicine in the U.S. and across the world.

You suffer an injury and need surgery. You have to rely on your surgeon to play it straight with you. Besides a second opinion, never a bad idea, what else can you do? Far down on your list of fears: not getting the surgery the doctor tells you that you are getting.

But, in massive numbers, that seems to have happened in New York. There are currently dozens of new lawsuits, alleging medical malpractice, pending against a New York based orthopedic surgeon, with about another 100 cases being discussed.

Ten of the current lawsuits filed allege that the doctor performed surgery, but intentionally did not treat, or improperly treated, his patients’ injuries. While those complaints stem from a surgery performed, there are yet other complaints that allege a surgery was never performed. In one particular case, a patient went to the surgeon because of shoulder problems. A “shoulder reconstruction” was performed, but when the patient’s pain and problems continued, she sought a second opinion from another doctor. After a battery of x-rays, it was determined that there was no evidence whatsoever that the surgeon performed a shoulder reconstruction, such as screws, anchors, or a fixation device. That patient further claims that the doctor injured her nerves during the surgery, and as a result, she now has permanent hand numbness, and problems grasping things.

The strict locality rule requires doctors to apply the standard of care specific to the community in which the medical care was given. This doctrine began after the Civil War where courts where loathe to apply the same standards to country doctors as they would to urban doctors that have access to the latest information.

Whatever may have justified the strict locality rule a hundred and forty years ago, that justification perished even before Al Gore invented the Internet. No lawyer would argue to a jury that medical standards change based on the community where the medical service is delivered. Still, doctors’ medical malpractice lawyers in Maryland have long claimed that the locality rule is codified by the Maryland Health Care Malpractice Claims Act. Thankfully, this notion was dispelled last month by a Maryland District Court judge.

  • Malpractice lawyers: if you give your medical malpractice client the job of finding a doctor to serve as an expert witness in her case, then basically sit back and do nothing while the statute of limitations runs out, you will probably be called out by the state bar.
  • DC Medical Malpractice and Patient Safety Blog writes about ProPublica’s “effort to shine a cleansing light into the murky closets of Big Pharma.”
  • A British woman is suing her dentist for malpractice. He took out the wrong tooth, and then, when she realized it and told him, he took the tooth out of the trash, where it was sitting next to all sorts of medical waste, and re-implanted it.

The National Practitioner Data Bank (for short: NPDB) is an electronic repository containing doctors’ malpractice settlements and judgments that the feds have maintained for 15 years. It also includes adverse peer review actions against licenses, clinical privileges, and professional society memberships of physicians and other health care providers and Medicare and Medicaid exclusion reports of sanctions against doctors for fraudulent billing.

This database – while not as complete as it should be – has been a huge weapon on both sides of the malpractice debate to separate fact from fiction. Federal law dictates that all medical liability payments and certain adverse actions must be reported. The NPDB makes some of this information available to hospitals, state licensure boards, some professional societies, and other health care entities under certain prescribed circumstances.

The public also had access to the database until this month when the government shutdown public access to this data. The public never had unfettered access but the NPDB has long been providing access to its reports with the names of the doctors, patients and hospitals redacted.