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Disturbingly, the Pennsylvania Supreme Court will consider approving “a mere error in judgment” does not constitute negligence jury instruction. In other words, doctors can make mistakes as long as the jury wants to understand why the doctor made the mistake and can tolerate it.

The case on appeal involves an infant who underwent multiple treatments for what was thought to be gastroesophageal reflux after the child was fussy, wheezy, vomiting, not sleeping, and exhibiting pain while feeding. After several visits with the defendant doctor, the boy’s parents took him to the ER where doctors found him in severe respiratory distress with a low heart rate. Tragically, the boy died. The autopsy revealed the cause of death as diffuse viral myocarditis, a viral infection of the heart.

The case went to trial, and the court gave an “error in judgment” jury instruction which the defense lawyer ran with in the closing argument. Plaintiffs, the parents of the lost child, are appealing the verdict because of the instruction. The Plaintiff’s urge that the court affirm Pringle v. Rappaport, a shoulder dystocia case where the doctor was accused of excessive force when performing the corkscrew procedure in delivering the child, which abrogated the former “error in judgment rule” as a defense in medical malpractice cases.

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Honestly, I have always figured they did. My thinking was that it is basic economics. Decrease the upside risk and premiums will come down.

Now, I’m not so sure. Certainly, at a glance, a cap on noneconomic damages appears to be correlated with keeping health care malpractice premiums down. But the data just does not back that up. Take a look at the analysis in Ferdon v. Wisconsin Patients Comp. Fund 701 N.W.2d 440 (Wis. 2005) where the court breaks down the “caps equal higher premiums” argument.

Even more to the macro picture is whether a cap decreases medical costs. That is the endgame, right? Malpractice caps can’t be about just lining the pockets of our highest paid professionals. (How would that look on a bumper sticker?)

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Becoming a Special Focus Facility (SFF) is no honor in the nursing home industry. To be deemed an SFF is to be branded one of the worst nursing homes in the state when it comes to violations. Amid continuous speculation on the level of care being provided in nursing homes in general, homes which are in the SFF program are those most in the spotlight.

Special Focus Facility Program

Centers for Medicare and Medicaid Services (CMS) developed the SFF program back in 1998 to address the issue of poorly performing nursing homes and to strive to improve their performance. It started with each state labeling the two worst offenders to be added to the SFF list and in 2005 it increased that number to 6 slots per state.

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The Journal of the American Medical Association (JAMA) released a new study on May 23rd about restraints in nursing homes. The article, Effects of a Guideline-Based Multicomponent Intervention on Use of Physical Restraints in Nursing Homes, detailed the problems with physical restraints in nursing homes—they are unsafe and often illegal or against the standard of care.

Types of Physical Restraints

Physical restraints are used for many reasons in nursing homes. Staff may be concerned that residents will fall out of bed or a wheelchair, will leave their rooms, or even leave the building (elopement). Staff might simply want an easier job—a restrained resident can, unfortunately, sometimes accomplish that goal. Approximately 20.4% of residents in United States nursing homes are forcibly restrained. Types of restraints include bed rails, belts, and wrist restraints.

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The Connecticut Appellate Court ruled that a trial court was within its discretion in precluding two expert witnesses from providing testimony in a wrongful death medical malpractice lawsuit involving a tragic stillbirth. This case provides a teachable moment – to beat that phrase into the ground – for Maryland medical malpractice lawyers.

The child’s parents brought a medical malpractice action against the doctor alleging the doctor, who specialized in obstetrics and gynecology, did not properly treat the mother’s gestational diabetes.

The take home lesson for medical malpractice lawyers: don’t assume your experts can speak to causation just because they are doctors who are can opine on the standard of care.

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A plaintiff’s medical malpractice lawsuit against doctors she believes caused her to go blind was revived last week by the Tennessee Court of Appeals. The court remanded her malpractice action that had ended in a defense verdict. This is one of those rare cases when a motion for reconsideration actually worked because the court had previously affirmed the trial court.

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There Is a National Standard of Care for Doctors

At issue in the case is the malpractice locality rule. For historical reasons that escape modern logic, some states require the standard of care for doctors to be local instead of national. Most states, including Maryland, have moved away from the locality rule because it is insulting to patients to suggest that doctors in their area do not have to be as competent as other doctors around the country. The Tennessee Medical Malpractice Act stays firmly rooted in 1845 and imposes a geographic-based limitation on doctors offering opinion testimony in a medical malpractice lawsuit. To be qualified to testify, the doctors must have practiced within the preceding year of the action in a contiguous state to Tennessee.

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What is the value of a wrongful death in a medical malpractice case? Ultimately, the value is what the jury says the value of the life was. Of course, the jury’s value is different from the value that the plaintiffs are actually allowed to receive. The pain and suffering cap in medical malpractice cases in Maryland for a wrongful death in 2018 is $1,00,000, assuming you have more than one survivor.  Otherwise, it is only $800,000.  For a human life.

Is that fair? Do we have any other way to estimate the value of a human life? The federal government values human life in the context of how much we should spend to keep a person alive. Even within the federal government, the numbers vary:

  • EPA: $9.1 million
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A few facts from Ezra Klein’s Washington Post article today:

  • Congressional Budget Office (CBO) took a careful look at the evidence on defensive medicine and concluded that aggressive reforms to the medical malpractice system “would reduce total national health care spending by about 0.5 percent.” (No one argues – at least not that I have ever heard – that the CBO is not an honest broker.)
  • I specify “direct costs” because there’s a separate question related to “defensive medicine” — tests and treatments doctors prescribe to protect themselves from lawsuits. The problem is that it’s very difficult to figure out what is and isn’t defensive medicine. In a world where patients and their families want every treatment that might help and where doctors and hospitals are paid more for every additional treatment they try, there are plenty of incentives pushing doctors to do more. Fear of lawsuits is simply one of many. (I’ve made this point a 1,000 times, but this is nice to great way to say it.
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After a twelve year lawsuit (which includes a mistrial and appeals), the verdict is in. The estate of a thirty-nine-year-old man has been awarded $1.45 million in punitive damages.

The man, a paraplegic because of a shooting as a teenager, presented to a hospital in 1999, complaining of abdominal pain, protracted constipation, and vomiting. He was given pain medication, underwent an enema, and discharged. He returned the next day with severe abdominal pain after having vomited blood all night. Despite lab work which indicated that he was critically ill, the hospital discharged him. The man died several hours later, of peritonitis and a ruptured peptic ulcer.

The hospital, two physicians, a physician’s assistant, and three nurses were sued, accused of failing to pay proper attention to the man’s symptoms and the blood test results which indicated the severity of his illness. The hospital was further accused of “patient dumping,” the illegal practice of turning away an uninsured or under-insured person in need of emergency care. The lawsuit claimed that the man, who had a criminal record, was told that the police would be called if he returned to the hospital.

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A three-year legal battle has ended in a $17.9 million settlement, though the money is nothing in comparison to the woman’s loss.

The facts here are absolutely tragic. In 2008, a now 35-year-old mother of two presented to a New York emergency room. She was diagnosed with a kidney stone and sent home with some painkillers. The next day, still in agonizing pain, she called 911 not once, but twice. The local medics did not take her back to the hospital.

On the following day, now two days out, her fiancé rushed her to the hospital. By this time, she had developed a sepsis infection that had spread through her body. She lapsed into a coma, and gangrene spread to her extremities. She awoke to having had both hands and feet amputated, and the loss of her sight in one eye.

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