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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 endgame, right? Malpractice caps can’t be about just lining the pockets of our highest paid professionals. (How would that look on a bumper sticker?)

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.

A Baltimore County judge Susan Souder has denied disgraced former St. Joseph Medical Center chief cardiologist Mark Midei’s quest to get his Maryland medical license back.

The State Board of Physicians revoked Midei’s license in July after the St. Joseph’s hospital scandal, concluding he had engaged in unprofessional conduct, willfully made a false medical report, grossly overutilized health care services, violated the standard of care and failed to keep adequate medical records.

Plaintiffs allege in these cases that they underwent cardiac catheterizations and given completely unnecessary coronary artery stents by Mark G. Midei, M.D. because you can make a lot of money putting in stents.  These charges are grave.  The plaintiffs specifically allege that this doctor and others resorted to fraud in order to induce the unsuspecting patient to get stent and angioplasty procedures so they could charge for unneeded services as well as medical supplies used during the procedures.  After the fact, there was also fraud in an effort to conceal that the procedures were contraindicated and not medically necessary.

The Connecticut Appellate Court ruled that a trial court was within its discretion in precluding two expert witnesses from providing testimony in a wrongful death medical malpractice lawsuit involving a tragic stillbirth. This case provides a teachable moment – to beat that phrase into the ground – for Maryland medical malpractice lawyers.

The child’s parents brought a medical malpractice action against the doctor alleging the doctor, who specialized in obstetrics and gynecology, did not properly treat the mother’s gestational diabetes.

The take home lesson for medical malpractice lawyers: don’t assume your experts can speak to causation just because they are doctors who are can opine on the standard of care.

A plaintiff’s medical malpractice lawsuit against doctors she believes caused her to go blind was revived last week by the Tennessee Court of Appeals. The court remanded her malpractice action that had ended in a defense verdict. This is one of those rare cases when a motion for reconsideration actually worked because the court had previously affirmed the trial court.


There Is a National Standard of Care for Doctors

At issue in the case is the malpractice locality rule. For historical reasons that escape modern logic, some states require the standard of care for doctors to be local instead of national. Most states, including Maryland, have moved away from the locality rule because it is insulting to patients to suggest that doctors in their area do not have to be as competent as other doctors around the country. The Tennessee Medical Malpractice Act stays firmly rooted in 1845 and imposes a geographic-based limitation on doctors offering opinion testimony in a medical malpractice lawsuit. To be qualified to testify, the doctors must have practiced within the preceding year of the action in a contiguous state to Tennessee.

Amazing story here from Argentina.

After prematurely giving birth, the parents of a newborn baby, deemed stillborn, found the baby still breathing in the morgue after twelve hours. Shocked, I’m sure, to say the least.

The infant was taken directly to the morgue, after apparently being declared dead. When the parents went to the morgue to say good-bye, they opened the casket (already nailed shut), and uncovered the baby’s face. The baby let out a cry. Can you imagine?

What is the value of a wrongful death in a medical malpractice case? Ultimately, the value is what the jury says the value of the life was. Of course, the jury’s value is different from the value that the plaintiffs are actually allowed to receive. The pain and suffering cap in medical malpractice cases in Maryland for a wrongful death in 2018 is $1,00,000, assuming you have more than one survivor.  Otherwise, it is only $800,000.  For a human life.

Is that fair? Do we have any other way to estimate the value of a human life? The federal government values human life in the context of how much we should spend to keep a person alive. Even within the federal government, the numbers vary:

  • EPA: $9.1 million

Unlike a lot of medical malpractice lawyers, I don’t have a huge problem with requiring a certificate of merit when filing a malpractice lawsuit.

Why? They are probably a necessary evil in avoiding frivolous medical malpractice lawsuits. I don’t think these are a big and costly problem, but the medical community seems to think so. Let’s not fight them on everything.

But I do think it is wise to realize that if we require certificates of merit, we are best served by narrowly construing them to meet the statutory purpose of having a gatekeeper in malpractice suits. This means, to me, that if a challenge to the certificate of merit can be fairly called “technical”, let’s give the plaintiffs fair remedy to cure the problem.