Medical-Legal News

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. 

According to Tampa Bay Times, Rep. Matt Gaetz, R-Shalimar, is sponsor of a bill that limits medical liability in Florida. He said reforms are needed to decrease the use of defensive medicine and attract quality physicians.

Some think the Florida Legislature already makes it hard to file lawsuits against doctors. Rep. Matt Gaetz, R-Shalimar said:  "I bring this bill not to limit access to courts, not to limit remedies, but to make sure that Florida is a place that is fair in the litigation process for physicians.''  The bill would limit lawsuits by tightening the standards for expert witnesses, make it more difficult to prove negligence when physicians are charged with failing to order proper diagnostic tests, and shield hospitals from liability if physicians were independent contractors.

The bill may spare hospitals and nursing homes from more lawsuits.  The bill will hurt patients if hospitals sign contracts with independent doctors to escape liability. Gaetz acknowledged that since state law lets doctors to go without insurance, victims could not recover damages if suing a doctor would be "like being injured by a poor person." However, if the hospital didn't cause the injury, "one should not be able to sue them just because they happen to have assets."

Holding health care providers and physicians accountable for negligence has become secondary to a push to stabilize health care costs this legislative session.  Florida lawmakers are in the process of implementing the federal health care law. Hospitals, physicians, and medical facilities are requesting limits on liability. Limits on liability will help attract physicians and lower costs.

The Florida Chamber of Commerce and Associated Industries of Florida, business groups funded by the health care industry, announced in March 2013 support of accepting federal dollars for Medicaid expansion, if certain conditions were met, including medical liability and tort reform.

The Florida Justice Association, which represents trial lawyers, questions the need for the proposed reforms. In the past 10 years, medical malpractice insurance costs have declined, the number of physicians practicing in Florida has gone up by 30 percent, and cases are down 50 percent.

Bob White, president of First Professional Insurance Company, Florida’s largest medical liability insurer, acknowledged in the past six years, the cost of medical liability insurance in Florida declined 36 percent.

According to wmctv.com and the Insurance Journal, Arkansas lawmakers weighed in early this 2013 competing ballot measures to address court rulings that overturned parts of a 2003 tort reform law.  The measures included a proposal to give the Legislature the authority to write the rules and practices for the state’s courts.

There were two proposals in response to recent court rulings over a 2003 law aimed at capping punitive damages in civil lawsuits. State court justices in 2012 tossed out a part of the 2003 law that specified who would be considered an expert in medical malpractice cases.

Sen. Eddie Joe Williams, R-Cabot, proposed giving the Legislature the authority to set the rules of pleading, practice and procedure for all courts in Arkansas. Williams stated his proposed amendment returned to lawmakers a power they had before voters approved Amendment 80 to the Arkansas Constitution in 2000. Amendment 80 states the Supreme Court shall “prescribe the rules of pleading, practice and procedure for all courts.”

Williams said: “Any type of tort reform we’ve tried to do has been struck down by the supreme court because of amendment 80, section 3.”  Williams was supported by the state’s business lobby.  The lobby preferred lawmakers addressing the court rulings over the tort reform law.

The Arkansas Trial Lawyers Association opposed Williams’ legislation as a “lobbyist employment act” and stated it would change the separation of powers in the state Constitution. 

Some trial lawyers might support an alternative proposal by Sen. Jeremy Hutchinson that would request voters to approve changes regarding damages and experts in cases rather than giving rule-making authority solely to the Legislature.

Hutchinson’s proposed amendment would require expert witnesses to be trained in the same specialty as the defendant and require those who file a lawsuit that is found to be frivolous to pay up to $10,000 in court costs and fees to the defendant. Hutchinson’s proposal would cap punitive damages at nine times the amount of compensatory damages awarded in a civil lawsuit and allow courts to determine percentages of responsibility when awarding damages.

Hutchinson stated he crafted the bill after speaking with business and lawyers groups to understand what a compromise on tort reform would be. He stated specifying the reforms would provide more certainty than handing over the rule-making authority to the Legislature.

The Centers for Disease Control and Prevention (CDC) announced on February 11, 2013 its 2011 National and State Healthcare-associated Infections Standardized Infection Ratio Report.  The report tracks healthcare-associated infections, compares the number of infections reported to National Healthcare Safety Network (NHSN), and analyzes national and state-level Healthcare-associated Infections (HAI) data to identify gaps in HAI prevention.

For 2011 the CDC reported:

• 41% decrease in central line (tube that is placed in a large vein of a patient's neck or chest to give medical treatment) bloodstream infections since 2008, up from the 32% reduction reported in 2010.  There is progress in preventing infections in intensive care units (ICU), wards, and neonatal ICUs. When not put in correctly or kept clean, central lines can allow germs to enter the body and cause bloodstream infections. CDC estimates 12,400 central line-associated bloodstream infections took place in 2011, costing one payer, the Centers for Medicare & Medicaid Services (CMS), approximately $26,000 per infection.

• 17% decrease in surgical site infections since 2008, up from the 7% reduction reported in 2010. There is still possible improvement across a range of operative procedures.

• 7% decrease in catheter-associated urinary tract infections since 2009, the same percentage of reduction reported in 2010. There were modest reductions in infections among patients in general wards, and essentially no reduction in infections reported in critical care locations.  Catheter-associated urinary tract infections among ICU patients are an area of concern because patients who get these infections likely need antibiotics for bacterial infections.  Antibiotics can put patients at risk for complications such as diarrhea caused by the bacteria Clostridium difficile.

The CDC report highlights areas for improvement.  Infection improvement is needed in medical facilities in order to protect patients.  Hospitals need to implement infection control strategies.

The report investigated data submitted to NHSN from more than 11,500 health care facilities across all 50 states, Washington, D.C., and Puerto Rico.  The number of infections reported was compared with data from 2010 and a national baseline. 

The federal government has ongoing efforts to protect patients and improve health care quality, including the Partnership for Patients initiative, which concentrates on protecting patients in America's health care facilities through preventing hospital-acquired conditions.  

Deadly bacterial infections that resist even the strongest antibiotics are on the rise in hospitals in the United States, and there is only a “limited window of opportunity” to halt their spread, health officials warned Tuesday.

Dr. Thomas R. Frieden, director of the Centers for Disease Control and Prevention, called the organisms “nightmare bacteria” during a telephone news conference, and noted that they could pass their trait for drug resistance — encoded in a scrap of genetic material called a plasmid — along to other bacteria.

The Florida Times Union reported on February 8, 2013 that medical malpractice in Georgia will be managed more like worker’s compensation under legislation in February in the Senate.

Senate Bill 141 by Sen. Brandon Beach, R-Alpharetta, will create a system in which patients take complaints of physicians or medical facility mistakes to a panel of doctors for hearings rather than filing lawsuits. If the panel decides compensation is warranted, it pays out of a fund all providers pay into, like a no-fault system that covers on-the-job injuries.

The legislation aims to decrease liability-insurance premiums for healthcare providers and soon stabilize health-insurance costs for employers once doctors stop ordering unneeded tests as part of their “defensive medicine.”

Supporters say it would also get compensation for mistakes that are too small for attorneys in today’s litigation environment to take on the expense of a suit. In most medical malpractice lawsuits, attorneys advance the upfront expenses in exchange for a share of a jury payout if a client wins, but lawyers usually do not take cases that don’t have large potential awards.

Supporters of SB 141 state the legislation responds to a decision three years ago by the Georgia Supreme Court to rule not constitutional $350,000 caps on malpractice awards. Enacting the caps in 2005 had been a legislative accomplishment of the Georgia Chamber of Commerce.

Attorneys who file suit against physicians and medical providers for malpractice state caps take away compensation from patients and don’t prompt negligent medical professionals to adopt safeguards.

Attorneys who handle medical malpractice cases generally have been against proposals like Beach’s bill since they state the legislation takes away from patients the opportunity to present their case to a jury of their peers which is not constitutional.

The Los Angeles Lawyer February 2013 edition, page 14, Becky Walker James and Kathryn Lohmeyer, reported overdoses from prescription pain medications may lead to liability for the doctors who prescribe them.  Overdose deaths may be from prescription drugs obtained from sources other than a single prescribing doctor. 

In cases involving overdose deaths, the public wants to hold someone accountable.  However, the science of pain management has evolved to recognize the legitimacy of the effective use of medications to treat pain.  Competing realities have led to whether doctors should be liable for prescribing drugs to pain patients.

Physicians can be convicted for the knowing or intentional distribution of a controlled substance when activities fall outside the general course of professional practice.  In enacting the Federal Controlled Substances Act (CSA), Congress recognized “[m]any of the drugs” regulated under the act “have a useful and legitimate medical purpose and are necessary to maintain the health and general welfare of the American people.” 

The Ninth Circuit and the U.S. Supreme Court have been clear about leaving the regulation of medical practices to the states.  States regulate doctors and the practice of medicine.  The California Medical Board, for instance, says its mission is “to protect health care consumers through the proper licensing and regulation of physicians and surgeons…through the vigorous, objective enforcement of the Medical Practice Act.”  State medical boards regulate most aspects of the practice of medicine, including licensure and continuing education for doctors, maintenance of standards of professional conduct and medical practice, and disciplinary actions against doctors found to have engaged in unprofessional or dishonorable conduct.

At the same time, the federal government has increased its role in the protection of health.  The Drug Enforcement Agency (DEA) has increased federal enforcement efforts against doctors prescribing pain medications.  Critics characterize these federal enforcement efforts as intrusions into the doctor-patient relationship, usually made without established guidelines for patient care. Supporters view federal enforcement actions as a necessary response to public health concerns.

In the medical and scientific communities the treatment of pain is recognized as a legitimate medical use of opiate analgesics, including oxycodone.  In California, this is reflected in the Business and Professions Code in California: “[a] physician and surgeon may prescribe for, or dispense or administer to, a person under his or her treatment for a medical condition dangerous drugs or prescription controlled substances for the treatment of pain or a condition causing pain, including, but not limited to, intractable pain.”  Even when a doctor suspects a patient is addicted, prescribing medication to treat a patient’s pain does not constitute an automatic violation of medical ethics or professional guidelines. Accepted medical practices include the use of opioid analgesics for the treatment of pain even in addicts.

Doctors who prescribe pain medication may be subject to state court jurisdiction for violations of a state’s health and safety code or medical practice act.  Under federal law, doctors are usually tried under the CSA, which may charge a medical professional for prescribing pain medication without a legitimate medical purpose.

Several hospitals have recently notified patients of infections from reused insulin pens.  One hospital is Olean General Hospital in New York. Its patients may have been exposed to HIV, hepatitis B or hepatitis C through the improper sharing of insulin pens, reported cnsnews.com.

Olean General Hospital mailed letters to 1,915 patients who received insulin at the hospital from November 2009 through January 2013, letting them know to call to arrange for blood testing. The risk of infection is a possibility to patients.  The insulin pens were used on diabetic inpatients only.

Hospital officials reported the mailings follow an internal review conducted after the Veterans Affairs hospital in Buffalo, NY discovered more than 700 patients may have been exposed to blood-borne pathogens over a two-year period when multi-use pens intended for single use may have been used on more than one patient.

Olean General had not discovered any particular persons who may have gotten an injection from another person’s pen and was not aware of any cases of infection, according to a news release from the hospital.

As with the Veteran Affairs hospital, needles at Olean were changed with each use of the insulin pens, according to the Olean hospital, but the risk of infection remained since stored insulin in the pen cartridge could have become contaminated by a back flow of blood with each use.  Cross-contamination from an insulin pen is possible.

Federal health agencies have warned against sharing insulin pens for many years. The Food and Drug Administration issued a March 2009 alert after discovering more than 2,000 patients may have been exposed at a Texas hospital between 2007 and 2009.  A clinical alert from the Centers for Disease Control and Prevention in 2012 stemmed from continued reports of the practice.

The pens are no longer used at Olean General. They were never used at a second hospital in the Upper Allegheny Health System, Bradford Regional Medical Center in Pennsylvania, according to a hospital representative.  Revelations of the issue at the VA hospital led the Department of Veterans Affairs Inspector General to commence a review of the Buffalo hospital.