Category Archives: Medical Malpractice

 

December 1st, 2009

NY Appellate Court Says OK to Sue No-Fault, Workers’ Comp and DME Physicians


Generally speaking, one can’t sue a doctor that does a medical-legal exam for the other side. These exams come up in the context of Workers’ Compensation trying to cut off a worker’s benefits, Defense Medical Exams for personal injury suits where too many doctors seem to claim that every injury under the sun is one that pre-existed the accident, or cutting off benefits under the wreck of legislation that we call No-Fault.

Historically, the bar to such suits takes place because there is no duty of care between the examiner and the examinee.

But last week New York’s Appellate Division First Department said that these doctors can, in fact, be sued, if three conditions are met. This is based on “an implied physician-patient relationship” if the examiner gives advice.

In Badalto v. Rosenberg, a unanimous panel of the First Department wrote that

“In the context of a physical examination conducted for the purpose of rendering an evaluation for a third party, such as an employer or insurer, an implied physician-patient relationship may arise if the physician either affirmatively treats the examinee or affirmatively advises the examinee as to a course of treatment.”

The three conditions set forth by the court are:

1. that the advice was incorrect,
2. that it was foreseeable that the plaintiff would rely on the advice, and
3. that the plaintiff detrimentally relied on the advice.

So if then, hypothetically, a doctor does an exam for a Workers Compensation carrier, and claims the worker can go back to work — advice for which the physician had previously been immune — and the worker relies on that advice to go back to work and is injured, the doctor can be held liable.

Can you see where this is going? All those 5-10 minute quickie exams done by doctors on behalf of insurance companies may now subject those doctors to liability. If a doctor is going to cut off benefits, s/he will now have to write that the worker can go back to work, but also write that the worker shouldn’t actually rely on this opinion. The physicians will have to write, essentially, that their opinions are actually worthless and should not be relied upon. If an injured party shouldn’t rely on it, why should a judge or jury?

Of course, there is the other option. Doctors can actually do legitimate exams instead of selling their souls to the insurance companies.

Links to this post:

Court Decision Protects Plaintiffs By Making Defense Doctors …
Court-ruling-on-DME-doctor-liability Most people take it as a given that doctors are accountable for accurate, competent care of EVERY person whom they see in a professional capacity. It’s difficult to believe, but until just recently, …

posted by Jim Reed @ December 30, 2009 11:15 AM

Around the web, December 3
All-New York edition: New York “ranks dead last in 18 of 28 legal categories” on litigation cost, per new Pacific Research Institute report [Lawrence McQuillan, “An Empire Disaster: Why New York’s Tort System is Broken and How to Fix …
posted by Walter Olson @ December 03, 2009 12:09 AM

 

October 26th, 2009

Medical Malpractice or General Negligence (Part 2)


When I last touched the often imperceptible dividing line between medical malpractice and general negligence, it was because the difference in the statute of limitations was crucial to survival of the case. In that matter, there was trauma to the leg that resulted in death as the patent’s leg slammed into a bed rail. With a statute of limitations of three years for general negligence, but two and one-half years for malpractice, it’s easy to see how this can create litigation. (See: Medical Malpractice (So You Think You Know What It Is?)) A divided First Department decision ensued with Justice Catterson doing a lengthy analysis of the difference in Friedman v. New York Hospital-Cornell Medical Center.

The issue arose again last week, now in the Second Department, in Spiegel v. Goldfarb. This time the issue was the legal fee. You see, in New York, the legal fees are substantially lower in malpractice cases than in general liability, as a result of tort “reform” measures in the ’80s. These “reforms” resulted in de facto immunity for many medical professionals, and made it difficult for many victims to found counsel. In addition to a shorter limitations period, the legal fees were cut. Rather than a 1/3 fee, the malpractice legal fee (discussed further in one of my first posts on this blog) is:

30% of the first $250,000 of the sum recovered;
25% of the next $250,000 of the sum recovered;
20% of the next $500,000 of the sum recovered;
15% of the next $250,000 of the sum recovered;
10% of any amount over 1,250,000 of the sum recovered.

In Spiegel v. Goldfarb, the underlying case was a about a failure to diagnose endocarditis, an infection of the heart valves. One of those that settled was a lab. These are the magic words that make up the standard, but they don’t exactly give bright line definitions, which leads inevitably to litigation:

In distinguishing whether conduct may be deemed malpractice or negligence, the critical factor is the nature of the duty owed to the plaintiff that the defendant is alleged to have breached. A negligent act or omission by a health care provider that “constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician constitutes [medical] malpractice.” More specifically, an alleged negligent act constitutes medical malpractice when it can be characterized as a “crucial element of diagnosis and treatment” and “an integral part of the process of rendering medical treatment to [the plaintiff].”

The fault for this, of course, is not with the appellate division. Because the difference is often impossible to define. Rather, the solution is doing away with this artificial difference.

Malpractice cases are both more expensive and more difficult to handle. There is no compelling reason that the statute of limitations should be shorter or legal fees lower. If anything, the statute should be longer and the fees should be greater. And that is because many acts of malpractice are not even known at the time they occur (unlike an auto accident) and due to the complexity of the litigation.

There are some occasions, of course, when the reduced legal fee benefits the litigants. Those cases arise when they can actually find a lawyer to take the matter. (Though the 10% legal fee at the top end is often used by insurers in an attempt to drive a wedge between the plaintiffs and their counsel, by creating an incentive to take a smaller settlement because the risk-reward of going forward has become so unfavorable.) For many potential litigants, there is simply no lawyer to be found.

How do I know there is no lawyer to be found? Because I get these types of calls all the time. After I’ve declined the case because of the economics involved, many of these callers tell me that they’ve heard this before from several others that they’ve tried.

Frankly, it’s time New York stopped crapping on the victims of malpractice — and that is what those “reforms” are” — and restore fairness to the law.

 

September 29th, 2009

Defensive Medicine or Medical Greed (Dr. Turkewitz Responds)


One of my brothers is a doctor. Internist. Geriatrician. You may not have expected that given the many decades both my father and I spent prosecuting medical malpractice claims, but thems the facts.

Today he guest blogs in my humble little corner of cyberspace. He wrote this letter in response to an NPR broadcast on defensive medicine. They didn’t air his views, but I will. (My prior comments on Defensive Medicine v. Medical Greed are here, so that, if you choose, you can compare some of the intra-family views on the subject.)
———————————————————————-
By Stuart Turkewitz, M.D.

I listened with interest to your NPR interview regarding the estimated portion of health care costs attributable to malpractice expenses, and especially to the practice of defensive medicine. Both you and the host, Robert Segal, made repeated reference to unnecessary “tests and prescriptions” before arriving at a conclusion that a “very small portion” of the total health care bill results from practicing defensively.

Unfortunately, your reference to “tests and prescriptions” omits a major component of unnecessary health care expenditures: hospital admissions of older adults, and particularly adults with chronic medical problems.

I am an internist and geriatrician, and my patients occasionally go to or are sent to the emergency room, usually because a test is needed to urgently rule out a condition: a CT scan to rule out subdural hematoma, a lower extremity Doppler to rule out deep venous thrombosis, cardiac enzymes and EKG to rule out a heart attack.

Once a dangerous condition is ruled out, there is every reason not to admit an older patient to the hospital: people do best in familiar surroundings with familiar caregivers and food. The hospital subjects them to multiple new faces, irregular sleep cycles and sleep deprivation, risk of infection, and relative immobility, often precipitating a substantial decline in function.

Once in the emergency room, however, patients are confronted with physicians and other staff with every incentive to admit the patient, and little incentive to send him or her home. The infection, confusion, and insomnia that often accompany admission are at least a day or two in the future , and are not a consideration of the ER physician. On the other hand, the ER physician feels that he or she will be held to account for any misfortune that befalls the patient sent home from the ER. In addition, chronic medical problems can often look acute to physicians and staff unfamiliar with a particular patient’s “baseline.” The urge to recommend admission is overwhelming. The attending physician (that would be me), often at the other end of the phone, however skeptical of a true change in condition, is ill-prepared to argue against the physician who actually saw the patient moments earlier.

There is no question that the fear of malpractice suits influences physicians, particularly ER physicians, to admit patients unnecessarily, and I believe that the magnitude of this dwarfs the “tests and prescriptions” that you mention. This not only drives up the national health care bill enormously, but is detrimental to the health of most patients.

I believe that if the true “costs” of a hospital admission, including temporary and permanent decline in function, were truly and fairly accounted for, then it would be more evident how much the fear of lawsuits was truly costing us all.

Links to this post:

Defensive Medicine – Rob Sachs
Mr. Sachs makes a good point about defensive medicine in a recent post on his lawyer blog. Personally, I don’t think he understands what defensive medicine is, based on some of his back-handed comments. Here’s a little piece of that …

posted by Shawn Vuong @ October 16, 2009 7:03 PM

Unnecessary hospital admissions cost money and can harm patients
Unnecessary hospital admissions cost money and can harm patients. When the elderly go to the emergency room, more often than not, they are admitted to the hospital. Stuart Turkewitz, a geriatrician posting at his platintiff attorney …

posted by Kevin @ October 16, 2009 7:00 AM

Defensive medicine and hospital admissions
Unnecessary testing and prescribing is often the first example that comes to mind in discussions of defensive medicine, but Stuart Turkewitz, MD, explains why needless hospital admissions, especially of older adults and those with …

posted by Walter Olson @ October 01, 2009 7:51 AM

 

September 25th, 2009

North Shore Hospital Sued After Brain Surgery Patient Left on Table


Back in May I wrote about two top neurosurgeons that were suspended for leaving a brain surgery patient on the operating room table at North Shore University Hospital. That woman has now sued them.

The patient, Jennifer Ronca of Pennsylvania, had undergone the first of a two-part brain surgery. But the surgeon for the second part, Paolo Bolognese, failed to appear and operate. He remains on staff at the hospital.

A second neurosurgeon, Dr. Thomas Milhorat, refused to step in when called. He has now retired.

The first thought on reading the story is: So what were the damages? And defense counsel Tony Sola of Martin, Clearwater & Bell, one of the talented “regulars” of the malpractice defense bar here in New York, echoed that very thought when asked for a quote, saying that Ms. Ronca was “not injured” as her surgery was completed several weeks later.

But Ms. Ronca was, of course, injured. At the barest minimum she had an additional surgery and had her recovery delayed by those several weeks, in addition to any deficits that might have occurred due to the delay. There seems to be little doubt that trying to demonstrate (and defend against) such deficits will be the crux of the damages portion of the case.

On Ms. Ronca’s side is Mark Bodner, one of the regular plaintiff’s malpractice attorneys. Both sides are well represented here.

And it’s well worth noting that the damages sought are “unspecified” in accordance with New York law, notwithstanding that some lawyers break that rule. And even when pressed by the reporter for a number, because reporters love putting those numbers in headlines, he declined.

There is a demand for punitive damages also, and as both Bodner and Sola realize, such a claim has a very high hurdle indeed. I’m not sure if any punitive damage award has ever been upheld against a doctor in New York. While the conduct here might look particularly egregious, if there was a scheduling or communications snafu that caused it, such damages are unlikely to be awarded.

(hat tip to Scott Greenfield for picking this up out of Newsday)