February 16th, 2007

Notre Dame Coach Testifies In Medical Malpractice Trial

Despite the potential risks, Notre Dame football coach Charlie Weis decided to have gastric bypass surgery in June 2002 because he said he was afraid he would “drop dead” if he didn’t lose weight.

Weis suffered life-threatening complications and nearly died after the surgery. Yesterday, he testified in his medical malpractice case against two surgeons that he has struggled with his weight all his life.

…

Weis claims in his suit that Massachusetts General Hospital physicians Charles Ferguson and Richard Hodin acted negligently by failing to recognize life-threatening internal bleeding and infection two days after the surgery.

Defense attorneys have said the doctors cared for Weis properly and that he experienced one of the known complications of the surgery.

February 7th, 2007

FAQ: Statute of Limitations in Medical Malpractice Cases

New York’s statute of limitations is just 2 1/2 years in medical malpractice cases, which is brutally short when it comes to the “failure to diagnose” cancer cases. Often the malpractice is not even known (because the diagnosis was missed) until after the statute of limitations has passed.

A few days ago, the Appellate Division decided Trimper v Jones, and this demonstrates how medical practitioners get immunity from suits regarding a failure to promptly diagnose a cancer:

[D]ecedent sought treatment from Dr. Jones for a flare-up of eczema and that he subsequently showed her a mole on his left shoulder that concerned him because it seemed to be growing. Dr. Jones excised the mole and had it biopsied in October 1999. Dr. Jones advised decedent on October 29, 1999, through plaintiff, that the lesion was a minor nevus and was not malignant. Decedent next saw Dr. Jones in January 2001, when he experienced another flare-up of eczema, and he again saw Dr. Jones in March 2002 for a flare-up of eczema. At that time, he pointed out a lump under his left arm, and Dr. Jones referred him to his internist. Upon removal of the lump by a surgeon, it was determined that decedent had metastatic melanoma. Decedent did not see Dr. Jones again, after his appointment in March 2002. Plaintiff commenced this action in February 2003, and defendants thus met their burden of establishing that the statute of limitations, which began to run in October 1999, had expired.

While New York does allow for some exceptions to the time limitations rule, they are not applicable in this type of matter. One could conceivable extend the statutory period under the “continuous treatment doctrine” if treatment was continuing for the same condition that gave rise to the lawsuit. But if the diagnosis was missed there is unlikely to be any treatment for that condition.

New York, unlike some other states, does not have the time limitation starting to run from the date of discovery of the malpractice. The effect is to give immunity to medical care providers who miss a diagnosis, tell a patient all is well, and such error is not discovered until the 2 1/2 year period has elapsed.

In a prior post I had discussed the need for speed sometimes in contacting an attorney. Sadly, it is sometimes impossible.

For other FAQs on New York medical malpractice, click this link.

January 24th, 2007

The Medical Malpractice "Crisis" Hoax — From Public Citizen

Since others had already pointed out the Public Citizen report exposing the hoax of a medical malpractice “crisis” I wasn’t going to bother. But there was Pres. Bush last night at his State of the Union speech once again leading people astray, when he said:

And to protect good doctors from junk lawsuits, by passing medical liability reform.

Good doctors, however, don’t seem to be the problem. Since 1991, according to the report, 5.9 percent of U.S. doctors were responsible for 57.8 percent of the number of medical malpractice payments. That is an extraordinary statistic.

A few other points from the report, and things to think about when someone advocates closing the courthouse door to those injured by negligence:

The number of malpractice payments declined 15.4 percent between 1991 and 2005.
Adjusted for inflation, the average annual payment for verdicts declined 8 percent between 1991 and 2005.
Payments for million-dollar verdicts were less than 3 percent of all payments in 2005.
Over 64 percent of payments in 2005 involved death, or major or significant injuries.
Payments for “insignificant injury” were less than one-third of 1 percent of payments in 2005.

The Public Citizen study follows a report last year in the New England Journal of Medicine entitled “Claims, Errors, and Compensation Payments in Medical Malpractice Litigation.” This was based on a study by the Harvard School of Public Health and the Harvard Risk Management Foundation.

Is our society litigation crazy? Apparently not. It appears from the Public Citizen report that only 5-10% of those killed by medical errors had any recovery from a malpractice suit. From the report:

“One-third of malpractice cases resulting in a malpractice payment in 2005 (4,504) involved the death of a patient. Yet, as a 1999 landmark study by the Institute of Medicine showed, an estimated 44,000 to 98,000 patient deaths occur each year as a result of preventable medical errors in hospitals.”

Public Citizen took their data from the National Practitioner Data Bank (NPDB), which contains data on malpractice payments made on behalf of doctors as well as information about disciplinary actions against them by state medical boards or hospitals.

Just reading the table of contents of this report is enough to make anyone think twice about the propaganda spewed by advocates of tort “reform.”

Key Findings
Part I: The Medical Liability System Produces Rational Outcomes

a. Annual Number of Malpractice Payments Is Down
b. Medical Malpractice Payments per Population Continue to Decline
c. Total Value of Malpractice Payments Flat Since 1991
d. Judgments Are Not Irrational
e. Million-Dollar Judgments Are Less Than 1 Percent of the Total Number of
Payments
f. Million-Dollar Judgments Were Less Than 3 Percent of Total Value of Payments
in 2005
g. Severe Injuries Account for a Majority of Payments
h. Medical Liability System Is Rational In Outcomes
i. 82 Percent of Total Value of Payments Compensate Most Severe Injuries
j. The Proportion of Surgical and Obstetrics Payments Flat Since 1991

Part II: Patient Safety and Doctor Discipline
k. Some Common, Preventable Errors Are Increasing
l. Easily Preventable Errors Show a Marked Increase Since 2003
m. Since the Beginning of the NPDB, 5.9 Percent of U.S. Doctors Were Responsible
for 57.8 Percent of the Number of Medical Malpractice Payments
n. Doctors with Repeated Malpractice Payments Experience Few Consequences
o. Many Serious Repeat Offender Doctors Are Not Disciplined

December 22nd, 2006

Oklahoma Tort "Reform" Reversal Decision Now Available

Yesterday I posted regarding the Oklahoma Supreme Court declaring a tort “reform” law unconstitutional with respect to the additional burdens placed on medical malpractice claimants. The court’s decision is now available in its unofficial form. It is an important decision for all states since similar attempts to place hurdles in front of claimants takes place on a daily basis around the nation.

The court decision was based on the need for an affidavit from a doctor when bringing a medical malpractice suit. The statute was a general law (as opposed to a special one under OK law), and therefore all claimants had to be treated equally. But, the court found:

The affidavit of merit requirement immediately divides tort victims alleging negligence into two classes — those who pursue a cause of action in negligence generally and those who name medical professionals as defendants. …The pleading code does not require negligence claimants generally to have an affidavit supporting the facts alleged and the anticipated basis for the right of recovery to be filed along with the petition. Plaintiffs alleging anything other than medical negligence need only file a petition giving fair notice of the plaintiff’s claim and the grounds upon which it rests. These claimants have no affidavit requirement and may commence a cause of action with the filing of a petition, while those alleging medical malpractice must obtain a professional opinion that their cause is meritorious as a prerequisite to pursuing suit or be subject to dismissal.

What’s more, the court found, since some medical malpractice claimants can proceed without an affidavit under the doctrine of res ipsa loquitor (the thing speaks for itself – like a retained sponge after surgery), there were actually now three different classes of claimants.

Since OK law mandates uniformity of procedure, all citizens of the state must have equal access to its legal institutions for teh application of the general ordinary forensic process. And this did not happen with the procedures employed.

A second ground for tossing the law was that it created an unconstitutional monetary barrier to the access to courts guaranteed by the Oklahoma Constitution. The court found that:

[T]he additional certification costs have produced a substantial and disproportionate reduction in the number of claims filed by low-income plaintiffs. The affidavit of merit provisions front-load litigation costs and result in the creation of cottage industries of firms offering affidavits from physicians for a price. They also prevent meritorious medical malpractice actions from being filed…Rather than reducing the problems associated with malpractice litigation, these provisions have resulted in the dismissal of legitimately injured plaintiffs’ claims based solely on procedural, rather than substantive, grounds.

One comical note in the opinion – though not apparently intended that way — was this part:

Another unanticipated result of statutes similar to Oklahoma’s scheme has been the creation of a windfall for insurance companies who benefit from the decreased number of causes they must defend but which are not required to implement post-tort reform rates decreasing the cost of medical malpractice insurance to physicians. These companies happily pay less out in tort-reform states while continuing to collect higher premiums from doctors and encouraging the public to blame the victim or attorney for bringing frivolous lawsuits.

The funny part is the assertion that the dramatic drop-off in claims, and the insurance company profits that went with it, was somehow “unanticipated.” The court’s rip at “tort reformers” coming from an 8-1 majority in a very red state, is stunning.

The court was emphatic about the unfair burden that was placed on those of modest means:

Access to courts must be available to all through simple and direct means and the right must be administered in favor of justice rather than being bound by technicalities. Claimants may not have the fundamental right of court access withheld for nonpayment of some liability or conditioned on coercive collection devices. Here, medical malpractice plaintiffs are singled out and must stand the cost of an expert opinion, which may range from $500 to $5,000,83 before they may proceed to have their rights adjudicated. In at least one instance, an affidavit of merit cost the litigant $12,000. A statute that so conditions one’s right to litigate impermissibly denies equal protection and closes the court house doors to those financially incapable of obtaining a pre-petition medical opinion. Therefore, we determine that 63 O.S. Supp. 2003 §1-1708.1E creates an unconstitutional monetary barrier to the access to courts guaranteed by art. 2, §6 of the Oklahoma Constitution.

An interesting decision, of which other courts around the nation will surely take notice when efforts to close the courthouse door take place under the pretext of “reform” in their own jurisdictions.

Links to this post:

Edwards for Tort Reform?
Yesterday, Presidential Candidate John Edwards spoke at a health care forum organized by Families USA and the Federation of American Hospitals. He offered a comprehensive strategy for combating HIV/AIDS, including (according to this …

posted by Kia Franklin @ September 25, 2007 3:50 PM

edwards for tort reform?
yesterday, presidential candidate john edwards spoke at a health care forum organized by families usa and the federation of american hospitals. he offered a comprehensive strategy for combating hiv/aids, including (according to this …

posted by Kia Franklin @ September 25, 2007 1:10 PM

okla. high court kills certificate-of-merit law
as we’ve had occasion to note a number of times in the past (eg here, here, and here) one of the weaker (though still useful) procedural reforms in medical malpractice litigation is a requirement that a plaintiff’s lawyer obtain a …

posted by Walter Olson @ January 22, 2007 12:16 AM

oklahoma tort “reform” reversal decision now available
cross-posted from new york personal injury law blog. yesterday i posted regarding the oklahoma supreme court declaring a tort “reform” law unconstitutional with respect to the additional burdens placed on medical malpractice claimants. …

posted by Eric Turkewitz @ January 03, 2007 9:58 AM

December 19th, 2006

Medical Malpractice Case Dismissal For Lack of Expert

This case in yesterday’s New York Law Journal demonstrates once again the single most important aspect of any medical malpractice case: The need for an expert.

In Doe v. Torres (05 Civ 3388), a prisoner attempted to represent himself regarding an allegation of failing to properly treat an injured knee. The facts are almost irrelevant, for the plaintiff violated the cardinal rule of malpractice cases. He didn’t have an expert to state that the defendant doctor had deviated from customary and usual practice. He will not make it to trial, with Magistrate Judge Gorenstein recommending a grant of summary judgment to the defendants.

In deeming such expert testimony required, the magistrate judge concluded that plaintiff’s case was not a ‘rare’ instance in which a juror could conclude either that the defendants departed from accepted practice, or that if there was a departure, it proximately caused any injury to plaintiff. Because nothing in the medical records would allow a reasonable juror to conclude that either of the two elements of a medical malpractice claim had been proved, plaintiff failed to make a prima facie showing of medical malpractice.

Links to this post:

medical malpractice – vetting the case
cross-posted from the new york personal injury law blog. about 95-98% of medical malpractice inquiries to my office are rejected. having previously discussed medical malpractice law and the economics of bringing such an action, …
posted by Eric Turkewitz @ May 22, 2007 5:33 PM

medical malpractice economics
cross-posted from new york personal injury law blog. two weeks ago i wrote medical malpractice – a primer, directed toward members of the medical community due to a recurring theme i saw on medical blogs: the idea that such suits are …

posted by Eric Turkewitz @ April 26, 2007 3:14 PM