Medical malpractice attorneys that defend doctors love medical malpractice caps.  They just think they are the greatest invention since the iPhone.  Or something like that.  I always thought it was misplaced because what defense lawyer want more than anything else is more cases and I assumed that malpractice caps meant less money in legal fees for them.

For reasons I can’t explain, the opposite may well be true.  In a study in the Journal of Health Politics, Policy and Law titled “Medical Malpractice Reform and Insurer Claims Defense: Unintended Effects?”, the authors looked at the impact of malpractice tort reforms on the cost of defending medical negligence cases.  What they found really surprised me: defense expenses were actually higher in those states where noneconomic damage caps, punitive damage limits, and attorney fee limits had been implemented.

The law of intended consequences is really something.  I honestly cannot think of a reason why this would be true.  And it is just one study.  But it does throw another monkey wrench into one of the rationales for medical malpractice cap.

Here are a few medical malpractice links/blog posts/stories I found of interest:

  • When doctors and hospitals don’t pay attention to recall notices and warnings, disaster can ensue.
  • An Alabama jury awarded $15 million in the case of a woman who died after a hospital administered an overdose of the anesthetic propofol.

An appellate court in Florida affirmed a defense verdict in a medical malpractice lawsuit. Plaintiff alleged that the doctor was negligent in failing to diagnose and treat the decedent’s cervical cord compression, a condition which eventually caused the man to suffer from quadriplegia.

Plaintiff made four arguments on appeal. The one I found interesting was the idea that the doctor’s lawyer made an “impermissible burden-shifting argument” on the issue of the doctor’s negligence when he argued that the plaintiff failed to present testimony from any neurosurgeon that he would have done anything different in treating the patient. Florida law is clear that a plaintiff is not required to prove that the subsequent treating physician would have acted differently in order to prevail at trial.

Certainly, under Maryland and Florida law, lawyers may not in opening or closing statements make comments that mislead the jury as to the appropriate burden of proof. But the court disagrees (as do I) that this is what the doctor’s lawyer was doing in his closing statement.

This is a guest post from Jonathan Rosenfeld, a medical malpractice attorney in Chicago, IL. Jonathan is the founder of Rosenfeld Injury Lawyers. I appreciate his contribution to this blog. The topic Jonathan attacks today is an important one: how to help cerebral palsy patients get the best possible outcomes.

There is no doubt that many cerebral palsy (CP) patients face many obstacles. But there is some relatively low hanging fruit to improve patients outcomes: good nutrition. Because of their condition, patients can be malnourished even when though they are fed regularly with what may seem like a healthy diet for the average person.

Causes of Malnutrition in CP Patients

A new study published in the Journal of the American Geriatrics Society finds that one in five newly admitted nursing home patients has a fall within one month. I realize statistics like this are dry and mind numbing, but consider this: 1 in 5 in the first month. Incredible.

This study probably understates the case, too. The researchers in this study looked at Medicare/Medicaid data. How many falls go unreported?

The researchers analyzed the potential factors that contribute to falls. They found something that makes too much sense: fewer falls occurred in nursing facilities with higher ratios of certified nursing assistants to residents. These are the people providing the real care for nursing home patients and their absence causes risk of injury.

The family of a severely brain damaged two year-old boy was awarded $55 million dollars yesterday, at the conclusion of a malpractice case, filed last February.

The suit alleged that Johns Hopkins waited too long to perform an emergency caesarean section after complication arose during a home birth. The procedure was performed more than two hours after the mother was rushed to Hopkins.

Tragically, the two year old boy currently suffers from severe and permanent developmental delays, severe brain damage, multiple physical and mental disabilities and cerebral palsy.

Disturbingly, the Pennsylvania Supreme Court will consider approving a “a mere error in judgment” does not constitute negligence jury instruction. In other words, doctors can make mistakes as long as the jury wants to understand why the doctor made the mistake and can tolerate it.

The case on appeal involves an infant who underwent multiple treatments for what was thought to be gastroesophageal reflux after the child was fussy, wheezy, vomiting, not sleeping, and exhibiting pain while feeding. . After several visits with the defendant doctor, the boy’s parents took him to the ER where doctors found him in severe respiratory distress with a low heart rate. Tragically, the boy died. The autopsy revealed the cause of death as diffuse viral myocarditis, a viral infection of the heart.

The case went to trial and the court gave an “error in judgment” jury instruction which the defense lawyer ran with in closing argument. Plaintiffs, the parents of the lost child, are appealing the verdict because of the instruction. The Plaintiff’s are urging that the court affirm Pringle v. Rappaport, a shoulder dystocia case where the doctor was accused of excessive force when performing the corkscrew procedure in delivering the child, which abrogated the former “error in judgment rule” as a defense in medical malpractice cases.

Honestly, I have always figured they did. My thinking was that it is basic economics. Decrease the upside risk and premiums will come down.

Now, I’m not so sure. Certainly, at a glance a cap on noneconomic damages appears to be correlated with keeping health care malpractice premiums down. But the data just does not back that up. Take a look at the analysis in Ferdon v. Wisconsin Patients Comp. Fund 701 N.W.2d 440 (Wis. 2005) where the court breaks down the “caps equal higher premiums” argument.

Even more to the macro picture is whether a cap decreases medical costs. That is the end game, right? Malpractice caps can’t be about just lining the pockets of our highest paid professionals. (How would that look on a bumper stick?)

Becoming a Special Focus Facility (SFF) is no honor in the nursing home industry. To be deemed an SFF is to be branded one of the worst nursing homes in the state when it comes to violations. Amid continuous speculation on the level of care being provided in nursing homes in general, homes which are in the SFF program are those most in the spotlight.

Special Focus Facility Program

Centers for Medicare and Medicaid Services (CMS) developed the SFF program back in 1998 to address the issue of poorly performing nursing homes and to strive to improve their performance. It started with each state labeling the two worst offenders to be added to the SFF list and in 2005 it increased that number to 6 slots per state.

The Journal of the American Medical Association (JAMA) released a new study on May 23rd about restraints in nursing homes. The article, Effects of a Guideline-Based Multicomponent Intervention on Use of Physical Restraints in Nursing Homes, detailed the problems with physical restraints in nursing homes—they are unsafe and often illegal or against the standard of care.

Types of Physical Restraints

Physical restraints are used for many reasons in nursing homes. Staff may be concerned that residents will fall out of bed or a wheelchair, will leave their rooms, or even leave the building (elopement). Staff might simply want an easier job—a restrained resident can, unfortunately, sometimes accomplish that goal. Approximately 20.4% of residents in United States nursing homes are forcibly restrained. Types of restraints include bed rails, belts, and wrist restraints.