Medical-Legal News

According to Thomson Reuters, Steven Pegalis, a New York attorney who represents patients in medical malpractice lawsuits is creating a program that, if adopted, would turn closed litigation cases into study tools for physicians and hospitals to better patient safety.

The Plaintiffs' lawyer presented the idea at a panel at New York Law School in April 2013, asking for feedback from New York state judges and medical malpractice experts.

Pegalis proposed the idea, with Dr. Irwin Merkatz, the chair of the department of obstetrics and gynecology at Albert Einstein College of Medicine in New York, to use information collected during a trial such as the facts and procedures in a given case to promote patient safety.  The program has been favorably looked at by several judges, according to Pegalis.

The idea involves a central clearinghouse, such as New York's Office of Court Administration, to house a database of anonymous closed legal cases.  Lawyers for the plaintiff patient and defendant hospital or doctor would meet and draft a description of the relevant facts for a closed case. They would take out any identifying names and replace them with fictitious information to protect the anonymity of individuals involved and deposit the description to the central clearinghouse, which would make the cases available to other physicians and medical facilities for training purposes.

If a database of actual cases were available online, other providers could contribute feedback about their personal experiences, for the sharing of information, reported Thomson Reuters.

The real-life stories may help motivate physicians to be conscientious. The process would require lawyers for both sides along with the judge to make sure the description of the case was not one-sided. 

The negative criticism on the database include a challenge to make sure what is on file with the Office of Court Administration is for training purposes and not litigation.  The idea may raise concerns about confidentiality. Even if the real names are replaced, persons and medical facilities can still be identified by facts, especially if the case received publicity. Publicizing malpractice cases may also encourage individuals to sue.

Pegalis said no other states have implemented a centralized clearinghouse for closed malpractice cases.

In the Los Angeles Lawyer, April 2013 edition, page 13, Scott A. Marks wrote about practice tips for a lawyer to take an expert’s deposition. 

Winning at trial depends on an attorney’s ability to take a deposition of the opposing party’s expert.  In a deposition, an attorney needs to get the expert to express all the opinions, and each fact that supports the opinions the expert intends to testify to at trial. 

For impeachment, a foundational fact underlying an expert’s opinion is not treated the same as the opinion. The law does not give the expert’s opinion the same integrity as it does the information underlying the opinion. The expert’s opinion is no better than the facts used to support the opinion.

During the deposition, it is the attorney's goal to develop the facts for the jury that show the expert’s bias for the retaining party.  The attorney wants to persuade the jury to disregard the expert’s testimony. 

To get to a winning deposition, the lawyer begins with properly noticing the expert’s deposition and demanding the production of the expert’s file.  An expert may need to provide a numerical estimate for the past three years regarding the number of times s/he has been retained by a plaintiff or defendant and the income generated from such expert witness activity.  In California, Evidence Code Section 722(b) provides, “The compensation and expenses paid or to be paid to an expert witness by the party calling him is a proper subject of inquiry by any adverse party as relevant to the credibility of the witness and the weight of his testimony.”

During the deposition, the lawyer should ask when the expert was first contacted on a case, who made the contact, what was discussed, and the scope of the assignment.

The attorney should obtain the curriculum vitae, and analyze each portion of the expert’s file which may include depositions, correspondence, time sheets and billing records, and work-up notes.  The attorney should look at whether the expert was provided with all the key and relevant information by the adverse party. If key information is not in the file, the attorney should not emphasize the absence during the deposition.  The attorney does not want to alert the expert and opposing counsel so the attorney can mention the omission during cross-examination at trial.

When an attorney reviews copies of deposition testimony given by the expert in other cases, the attorney should try to impeach the expert by seeing if the expert gives a different answer to the same question in a different deposition. This evidence is discoverable.

The lawyer should check for deficiencies in the expert’s background that would make the expert incompetent to render an expert opinion. In California, Evidence Code Section 801, an expert is allowed to render an opinion only “based on matter (including...special knowledge, skill, experience, training and education)...that reasonably may be relied upon by an expert witness....” If a deficiency exists, in California, the attorney can exclude the expert from testifying at trial by an in limine motion or an Evidence Code Section 402 hearing.

According to Oregon Live, a bill introduced from Oregon offering mediation for medical errors passed the Oregon House in March 2013. Senate Bill 483 reached Gov. John Kitzhaber, and is the outcome of a work group Kitzhaber opened to address issues about medical malpractice lawsuits.

The bill passed the Senate in a 26-3 vote on March 5, 2013. The margin in the house was greater, passing 55-1. Rep. Gene Whisnant, R-Sunriver, was the only person to vote “No.”

Kitzhaber signed the bill into law in late March 2013.  Patients, providers, or health care facilities can get into confidential negotiations in order to prevent a malpractice lawsuit. 

Supporters of the bill think the bill is a positive step toward reducing malpractice claims, but those against the bill say the bill does not do enough to attack medical malpractice claims.  The bill gained support from physicians and trial lawyers, who do not usually agree on medical malpractice.

According to Oregon Live, Kitzhaber praised the bill's passage:  "I committed last year to bring a proposal to the Legislature to ensure that our medical liability system fits within our shared vision of health system transformation," Kitzhaber said.

"This important legislation will help resolve many serious medical events before they go to court by allowing health care providers and patients to have early discussions in a confidential setting," Kitzhaber said in a statement, according to Oregon Live.

The voluntary mediation program will assist to decrease malpractice suits.  Under the bill, the Oregon Patient Safety Commission, a semi-independent state agency created in 2011 will create administrative procedures for notification and mediation. A Resolution of Adverse Health Care Incidents Task Force will evaluate the mediation program.

The bill bans insurers, regulators, licensing boards and providers from requesting the commission, providers or patients for adverse incidents being reported or mediated, and does not allow the use of such information as a way for disciplinary or licensing actions. The bill provides quality review of patient care in some situations.

The Wall Street Journal reported in April 2013 that physicians need to improve their communication skills.  Looking into the patient’s point of view, doctors might want to practice the compliments sandwich where they say something good then input the bad news, and conclude with another good tip.

Communications skills are something patients complain about. Doctors are said to be not polite, or do not listen.  They are said to be busy.  They may not explain something to patients.  The lack of personal skills can damage the quality of care, and increase the risk of malpractice suits.

Medical schools, malpractice insurers, and medical facilities are attempting to assist doctors to better their communications. Doctors are being sent to education programs to learn basics on how to be with a patient. They are being taught to let patients speak uninterrupted, and to be compassionate.

Make a connection with someone is a way to stay out of lawsuits.  Even when someone is hard to deal with, curbing anger may be the way to stay out of legal trouble.  Poor communications may be what is causing rising costs.

Research shows that when physicians do not pay attention to patients, they do not get important health signs and misdiagnose illness. Patients who do not understand what their doctors explain fail to comply with their regimens, leading to preventable hospitalizations, complications and poor results. A breakdown in doctor-patient personal skills is cited in 40% or more of malpractice suits, according to the Wall Street Journal.

In the educational seminars to improve people skills, doctors get lessons from claims, for example, a surgeon who is sued for a failed knee surgery that ends up in amputation since he did not provide the obese patient an opportunity during the informed-consent process to ask questions and did not explain the risk of being overweight.

There is evidence good personal skills assist patients to follow recommended treatments and manage chronic diseases. This improves results in the management of diabetes, hypertension, and cancer.

When doctors are more polite, they ask permission to enter a room, introduce themselves to patients, and put patients at comfort. They are clear about how long an exam or procedure will take, when outcomes will be provided, what they are performing and why, and what patients should expect. The doctors thank the patient and let the patient know it has been enjoyable to help.

When patient satisfaction scores go up, there are fewer malpractice lawsuits.

An editorial piece in the Harvard Crimson offers a compelling narative of issues within the medical system and specifically the difficulty patients have in getting honest answers and information from practitioners when a mistake is made.

Diagnostic errors are the leading cause of successful medical malpractice claims, and are the most common, most costly and most dangerous of medical mistakes, according to new research published in BMJ Quality & Safety.

Researchers analyzed 350,706 paid claims from the National Practitioner Data Bank from 1986 to 2010 and found diagnostic errors represented 28.6 percent of the claims and accounted for the highest proportion of total payments--35.2 percent or $38.8 billion.

Moreover, diagnostic errors resulted in death more than other allegation groups--40.9 percent versus 23.9 percent.

The Medical Injury Compensation Reform Act of 1975 (MICRA) put a cap of $250,000 on pain and suffering damages in cases involving medical malpractice. MICRA became law in 1975 in response to a perceived crisis in the rising cost of premiums for medical malpractice insurance.

MICRA caps compensation for “non-economic” damages. These damages include loss of limbs, severe disfigurement, loss of fertility, continuing pain, and loss of a parent.  In the March 2013 edition of Plaintiff Magazine, Bruce G. Fagel evaluates “Damages in Medical Malpractice Cases under MICRA.”

Damages are part of the initial determination of an attorney on whether to take a medical-malpractice case. MICRA create different plaintiffs in medical malpractice cases. Some plaintiffs suffer only non-economic damages.  These plaintiffs are those in wrongful-death claims, where the heirs have no claim for loss of income from the decedent, such as elderly or children. The injuries of these plaintiffs are limited because there is no significant loss of earnings or medical expenses when a person dies. The issues of negligence and causation are often disputed in wrongful-death claims.  Experts will often debate over a pre-existing condition of the deceased.

Another class of plaintiffs are those in wrongful-death claims of an adult where the heirs, such as a spouse or child, establishes loss of financial support, and the plaintiffs with long-term injury that impacts loss of earnings and future medical care costs. The economic loss to the heirs in a wrongful-death claim puts a medical malpractice case in a different category from a non-economic damages claim. MICRA does not restrict or limit recovery of economic damages.  Obtaining economic damages is not dependent on the testimony of experts who testify such losses are “reasonably certain” to happen in the future. The defense in such cases may contest each element of economic losses, including life expectancy.

To research damages, an attorney can go through data from the insurance industry. Some attorneys decline cases where the plaintiffs do not have much of any remedy. This is because most physicians and medical facilities have liability-insurance policies with duties to defend and indemnify. Even if a defense attorney loses at trial, the indemnity payment is limited, and less than the limit of the insurance. Physicians may be reluctant to provide consent to settle before trial. As to hospitals, they may not want to settle since hospital insurance policies have a self-insured deductible that is generally more than $250,000.  Any settlement must often come from the hospital’s own funds.

In the March 2013 issue of Plaintiff Magazine, Page 1, Thomas Stolpman reported that trial lawyers should start thinking about experts before the actual trial.

Some attorneys in California rush around to retain trial experts a few days before the expert designation is due under Code of Civil Procedure section 2034. This last minute hunt for experts may be detrimental in not getting the input experts can have during the earlier stages of the case.

Experts can be helpful in medical malpractice cases when the attorney gets the records reviewed by a medical doctor to determine if there is a viable case.

In products liability, before spending significant money in a case, Stolpman said having an expert look at the product and give opinions about its design/ manufacture can be helpful in case selection and in formulating a strategy.  Stolpman gave the example of a case he was working on where his office was suing on behalf of homeowners and residents for personal injuries and property damage arising out of the exposure to stray electricity and electromagnetic fields (EMFs). Prior to filing the lawsuit, his office engaged experts to assist in understanding the issue and in going through the holdings of appellate cases which appeared to foreclose claims of injury based on exposure to EMFs.

Stolpman wrote about experts helping him draft a complaint, and the complaint withstanding motions from the defense.  In almost every case, the defense files a motion for summary judgment or summary adjudication. Stolpman reported experts are a resource for opposing motions for summary judgment and to prepare for mediations.  Stolpman used as an example a medical malpractice case, where the healthcare provider files motions and attach a declaration which states the care and treatment rendered by the moving party was within the standard of care. This requires an opposing declaration by an expert opining the standard of care was violated in some specific way.  For defendants, this is a method to evaluate where the plaintiff is going with the case. By having the expert address the issue of who complies with the standard of care, the trial attorney meets with the expert and prepares to take the depositions of the declarant whose testimony was filed by declaration in the motion.

In other cases such as construction site accidents, an expert may be helpful to find out what the good cases were and how to conduct the investigation and discovery. Stolpman wrote that the experts he dealt with were able to give him a roadmap to use during the discovery stage, especially when taking depositions of health-care professionals, including doctors, nurses and therapists. Experts assist in drafting discovery, such as requests and interrogatories. Experts assist in preparing for depositions.

Patient satisfaction is increasingly being tied to reimbursement and physician compensation, so the days of considering communication a "soft skill" for doctors are past.  Organizations such as the Cleveland Clinic have begun enrolling their doctors in specialized communications courses, while medical schools are targeting the issue even earlier, The Wall Street Journal reported.

Satisfaction scores aside, the article cited additional compelling reasons to prioritize communication improvement:

• Breakdowns in physician-patient communication are cited in at least 40 percent of malpractice suits.
• There is a 19 percent higher risk of nonadherence among patients whose doctors communicate poorly than among those whose doctors communicate well, according to a 2009 review published in the journal Medical Care.

In March 2013, Bloomberg News reported an opinion from Peter Orszag on malpractice reform. Orszag is vice chairman of corporate and investment banking and chairman of the financial strategy and solutions group at Citigroup, Inc. He expressed that medical malpractice reform may help fix the long-term U.S. fiscal outlook.

For the decrease in health costs to continue, medical malpractice reform may be worth an attempt.  U.S. healthcare costs stem from a system that has to take care of Medicare beneficiaries, recommendations that physicians make to pursue one treatment as opposed to another, the cost of medical school training, traditions among doctors’ peers, financial incentives, and the medical malpractice system.

Improving the criteria for what constitutes proper care could change physicians’ behavior and save money, suggests research by Michael Frakes of Cornell Law School.

Most proposals to amend medical malpractice law limit liability in situations where physicians are discovered to be at fault, but they do not address how liability is evaluated. The malpractice laws are usually based on “customary practice.” A doctor can be liable for malpractice if he or she does not follow customary practice. This pushes physicians to follow what their peers do.

Many states have changed the customary practice standard to base liability on national rather than local medical practices. Frakes says: “that standardization in malpractice laws may lead to greater standardization in practices.” This suggests the cost of medicine may decline without being less effective.  The more costly procedures are often not the best.

Unlike other studies on malpractice laws, Frakes does not examine only how variations in health practices can be explained by variations in liability limits, but considers also how the standard of care is defined. Liability limit in a given state doesn’t have that much effect when doctors are influenced by customary practice.

Healthcare costs could decline if all states’ malpractice laws protected doctors who followed national standards of practice. The Center for American Progress has proposed providing a safe harbor, under the medical-malpractice laws, for doctors who follow evidence-based guidelines published by medical associations.

Just because one treatment or diagnostic process dominates in a specific situation doesn’t mean it is the most medically effective. The Frakes study suggests a safe-harbor approach to reforming the malpractice laws would impact doctors’ behavior.