Medical-Legal News

The Associated Press recently reported the University of Iowa Hospitals and Clinics and the state of Iowa will pay $365,000 to settle two medical malpractice lawsuits filed by patients provided medical care in 2004.

In one suit, the State Appeals Board approved a $300,000 settlement with a patient who claimed anesthesiologists negligently administered pain relief before a knee surgery.  In another suit, the family of a patient will be awarded between $65,000 to $91,000 for alleged negligent treatment following a heart aneurysm medical procedure; subsequent infections killed him.

Both settlements put an end to lawsuits filed in 2007, in which the hospitals and its employees deny wrongdoing, according to the Associated Press.  Iowa has paid over $2.4 million thus far in 2011 to settle malpractice claims involving medical care at University of Iowa Hospitals and Clinics.

Diagnostic physicians are responsible to notify referring clinicians about urgent or unexpected results. Failing to communicate clinical data from diagnostic testing, such as delayed report findings, lack of results to patients, or lengthy turnaround time, puts doctors at risk for medical malpractice lawsuits, according to a study published in the Journal of the American College of Radiology.

During the past decade clinicians have ordered greater numbers of diagnostic examinations.  Because clinical evaluation usually depends on diagnostic tests, diagnostic physicians’ malpractice payments shoot up when communication failures affect notification reliability and patient safety.  When reportable test results occur, healthcare organizations require policies that define the responsibility of reporting and referring providers to ensure patient follow-up.

According to a SUNY Downstate Medical Center press release, using data from the National Practitioner Data Bank, the authors of the study found the total indemnity payout across all medical specialties for US claims related to the communication failures studied increased from $21.7 million in 1991 to $91 million in 2010. From 1991 to 2009 indicated that communications related malpractice payments increased at the national level by an average of $4.67 million each year.

Jurors heard evidence for two weeks in an infant death trial in Bennington, VT in late October 2011, according to the Bennington Banner. 

The defendant, age 28, of Arlington, pled not guilty to a manslaughter charge after the October 2009 death of his 5-week-old son, which the State Medical Examiner’s Office ruled a homicide.

The defense and the state made heavy use of expert witnesses, who testified to the meaning behind the medical examiner’s findings.

Deputy State’s Attorney argued the infant’s injuries could only be from being shaken or thrown into a soft object, and called Burlington-area neurosurgeons and pediatricians to testify.

Other experts called to testify were a Baltimore-area neurosurgeon and two pathologists from the Miami-Dade County, Florida.  The defense argued that the infant stopped breathing because he had a brain injury when he was born, which coupled with a birth defect, caused two plates in his head to fuse prematurely. Usually, the plates in infant skulls are not fused, letting the brain expand and the skull contract during birth. 

According to ABC News, Fresno, CA-based Community Regional Medical Center settled a wrongful death lawsuit filed by the family of a patient, age 68, who died after receiving a "massive dose" of drug Heparin, a blood thinning medication. Under the settlement, the hospital will pay the deceased’s family $250,000, close to the maximum amount allowed under state law for such claims.

ABC reported in December 2010, the hospital admitted the deceased for pain and numbness in her arm and gave her 50 times the ordered amount of the drug Heparin during a routine surgery.  Since the death, Community Regional took steps to ensure patients received the correct doses of ordered medications to prevent such a tragic medication error from occurring again. 

Medication errors, noted as the most common medical error, cost the United States a minimum $3.5 billion annually in healthcare and other expenses, according to a 2006 report by the Institute of Medicine. 

According to the patient’s death certificate, Heparin toxicity was listed as contributing to her death. 

Jurors heard three hours of medical expert testimony in late October 2011 in a Madison County, IL medical malpractice trial involving the allegations of an Edwardsville, Illinois man suing over the death of his wife in 2009, according to The Madison/St. Clair Record.

The defense called the medical expert witness, a St. Louis cardiologist, to the stand to tell jurors she would not have given the plaintiff’s deceased wife an EKG on the day she visited the defendant doctor of Maryville.  The man’s wife died of a heart attack at age 70 on January 27, 2009. Her husband, age 75, alleged the physician was responsible for her death.

The medical expert witness worked in an emergency room of a 1000-bed hospital.  She saw patients with heart problems. In examining patients, she said doctors were to consider what the patient said.

The medical expert witness testified she charged $350/hour to review cases and $500/her for time spent on the witness stand. She reviewed depositions from the deceased’s family, her medical records, and an ambulance record.

The plaintiff’s attorney told jurors during opening arguments that the defendant doctor did not give the deceased an EKG during her visit on January 21, 2009, though she had chest pains and he had EKG equipment.

Texas tort reform supporters, including Governor Rick Perry, are opposing a Public Citizen’s report that states the medical malpractice laws have made healthcare worse in Texas with fewer physician additions since 2003 compared to overall population growth, and higher health insurance premiums, according to Healthwatch, The Hill’s Healthcare Blog.

In response to the report, according to Governor Perry's office, the growth in the number of physicians practicing in Texas has outpaced population growth by 84% since enactment of the medical malpractice laws. The Governor’s office also said premiums for employer-sponsored coverage, where most people get their coverage, have increased more slowly than 27 other states and the national average. Public Citizen's report cited higher-than-average premiums overall, not just in the employer market. 

Tennessee insurers will payout fewer damages in medical negligence cases after a new cap of $750,000 on non-economic damages and $500,000 on punitive damages effective October 2011 in medical malpractice and personal injury cases.

In early 2011, Tennessee lawmakers enacted the “Tennessee Civil Justice Actor of 2011,” part of Governor Bill Haslam’s mission to reduce civil lawsuits.  Under the new law, insurers are no longer able to be sued under the Tennessee consumer protection law, reversing a 1998 Tennessee Supreme Court case, Myint. v Allstate Insurance Co.   The law places a $1 million cap on catastrophic cases where an individual becomes burned, blinded, paralyzed, amputated, or otherwise killed, leaving minor children behind.  The law excludes insurers from paying punitive damages in product liability cases except when the seller had substantial control over the product manufacturing and design or actual knowledge of the product defect at the time it was sold.

Over two-thirds of doctors face at least one malpractice claim during their career.  However, most claims do not end up in actual payments, according to Reuters Health.

Researchers from Harvard Kennedy School, Massachusetts General Hospital, the Schaeffer Center for Health Policy and Economics at the University of Southern California, and the RAND Corporation studied malpractice claims from insurers from 1991 to 2005. They discovered that each year, 7.4% of all doctors had a allegation filed against them. Yet, 1.6% of the cases actually resulted in a malpractice payment, with the average claim totaling around $275,000.

Surgery faced more allegations than other medical specialties, with neurosurgery at 19.1%, thoracic and cardiovascular surgery at 18.9%, and general surgery at 15.3%. Specialties with fewer malpractice claims included family practice at 5.2%, pediatrics at 3.1%, and psychiatry at 2.6%. However, specialties that faced the more claims didn't pay the most payments. For example, according to the Wall Street Journal the average malpractice payment for pediatricians was $520,924, compared the average payment of $344,811 for neurosurgeons.

Between 1990 and 2002, 5,691 medical malpractice payments were made in the United States, with an average payout of $338,190 per claim, according to an article by Ronald J. Bua & Associates.

These medical malpractice claims, sometimes requiring the assistance of medical expert witnesses, contributed to the rise in nationwide healthcare costs. One program medical providers in New York use to save on malpractice payments is judge-directed negotiations. For New York City Health and Hospitals Corp. (HHC) medically trained judges reviewing and ruling on medical liability cases within the legal framework has saved $66 million in malpractice payments.  Since 2002, about 95 percent of HHC malpractice cases resolved with settlements with often lower amounts than jury awards.

Besides saving on malpractice payments, the judge-directed negotiations save time. Compared to a medical liability case, usually taking three years to litigate, judge-directed negotiations often end in nine months.  

The Sixth Circuit recently explored in Moeller v. Garlock Sealing Technologies LLC, No. 09-5670, (6th Cir., 9/28/2011) a plaintiff's burden to prove exposure to a defendant's asbestos-containing gaskets caused his cancer when he was exposed at the same time to other similar products.   

Plaintiff, a pipefitter, sustained mesothelioma by working with Garlock from about 1962 until about 1970. During the same period of time, from 1962 until about 1975, plaintiff also sustained asbestos exposure from asbestos insulation products. Plaintiff contracted cancer and filed a lawsuit, alleging exposure to Garlock’s asbestos-containing gaskets was a substantial factor in causing his cancer.

At trial, plaintiff's expert witness testified exposure to asbestos from Garlock gaskets, along with other asbestos exposures, contributed to the injuries.  A treating oncologist reasoned that if plaintiff worked years scraping and grinding asbestos gaskets, and if plaintiff breathed the fibers, the asbestos exposure would have caused his injuries. Garlock presented evidence that, for 13 years, plaintiff sustained asbestos exposure from insulation products. Garlock argued that though asbestos insulation was banned in the 1970s, asbestos safety authorities believed gaskets posed “no health hazard,” and were distributed legally in the United States.  Garlock argued plaintiff did not ever remove the gaskets, and if plaintiff only installed gaskets, plaintiff would not have engaged in an activity that created cancer risk. 

The jury returned a verdict for plaintiff won.  Garlock appealed.  On appeal, the court ruled plaintiff failed to prove Garlock’s gaskets was a substantial factor in producing the injuries. Plaintiff presented witnesses to support the claim that the mesothelioma resulted from exposure to Garlock products. However, one expert witness did not testify the exposure to Garlock products was a substantial factor in causing cancer.  Other witnesses testified all types of asbestos can result in injuries and that any asbestos exposure was a “contributing factor.”  The evidence presented did not show Garlock asbestos gaskets exposure in and of itself was a substantial factor.