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Medical malpractice verdicts are at historical new lows, according to Public Citizen. Their new report tracks malpractice verdicts from National Practitioner Data Bank (NPDB). The NPDB began tracking medical malpractice payments in 1990. The number of malpractice payments made on behalf of doctors in 2010 was the lowest on record. The total number of payments made on behalf of doctors fell to 10,195 in 2010; down from a high of 16,566 in 2001.

No one is suggesting that there is 33% less medical malpractice than there was in 2001. Clearly, doctors and malpractice insurers are winning the public relations war, which is leading to lower verdicts and more damage caps. Will the tide turns again? Historically, the public’s tolerance for injustice to victims of malpractice and injury generally waxes and wanes.

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Baltimore Washington Medical Center must pay a fine after giving a patient an improper dose of radiation last year. The Glen Burnie hospital was fined by the Maryland Department of Environment which, surprisingly, enforces radiation management regulations.

BWMC recently reached the $14,000 settlement agreement with the state for the improper dose of radiation. The patient was notified of the error, and officials also told the state about it through the required self-reporting system.

Good for Baltimore Washington Medical Center for confessing to the error. But this fine also underscores how important it is for state regulators to be on top of these types of infractions. No medical malpractice lawyer in Maryland will take the injured victim’s claim: it is just too small. Someone needs to stand up for people who suffered through this type of thing because they represent so many more that we (and maybe even they) never know about.

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A rare medical malpractice trial where the issue was on damages: the hospital admitted fault and the jury awarded a modest – by medical malpractice trial standards where the injuries are usually catastrophic or the loss of a loved one – verdict of $250,000 which was affirmed on appeal in South Carolina.

The defendant made an interesting argument on appeal, arguing that the trial court should have excused “all potential jurors who owed a debt” to the hospital. The trial court removed the four venire members against whom the hospital held civil judgments but denied the hospital’s request to remove others whose debts to AnMed were in default. It is incredible how many people owe debts to the hospital. I can see a juror or two. The hospital asked the appellate court for a bright-line rule to categorically exclude from jury service all prospective jurors who are in debt to a party in the lawsuit.

Appellate courts have bright-line rules. So they relied on the catchall “Does any member feel like they have any interest, sensitivity, bias, or prejudice which would prevent you from being a fair and impartial juror in this case?”

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Medical malpractice is largely a zero-sum game. If it helps the defendant’s lawyer, it helps the plaintiff’s lawyer. We all pretend from time to time this is not so. But it is almost invariably true.

The question of whether to name doctors in a hospital malpractice case is one of those situations where it is best for everyone to keep the doctors out of the lawsuit. (Sure, maybe the public censure of a doctor through a civil lawsuit has value. But, ultimately, our job is to do right by our clients by maximizing the value of their malpractice case.) Plaintiffs’ lawyers prefer to name a hospital, which is far less sympathetic than an individual doctor. It gives juries the opportunity to award fair damages without the pain of directly blaming a specific doctor (even in cases where obviously it was a single doctor’s fault). The doctor’s lawyer – even if the lawyer also represents the hospital – gets that a doctor does not want to have her name in the lawsuit.

Everyone’s happy. One problem: the general release of a doctor operates as a matter of law to release the defendant from liability. And you don’t want to use the procedural leverage you have with a defendant doctor in terms of reading deposition testimony at trial, etc.

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Under the default statute of limitations for medical malpractice cases in Maryland, malpractice victims have three years to file a lawsuit from the time of the malpractice or wrongful death. The discovery rule says, however, that subject to a five-year limit, the clock only begins when you know or have reason to know of the connection between the malpractice and the injuries suffered.

This is one of those “little bit of information can kill you” type situations. Because, before I went to law school, I would interpret to know or have reason to know as to when the victim(s) would know or have reason to know. But that really is not the law. It is to know or have reason to know if you have done a full investigation. The distinction is critical, as the plaintiff in this new Illinois malpractice case found out the hard way.

The Plaintiff in Dixon v. Roseland Community Hospital sued a hospital and a boatload of doctors for the wrongful death of her mother, an active 69-year-old woman who was an artist with no significant health history. For reasons that are not clear in the opinion, the woman had been admitted to the hospital because she was not feeling well. She was given an IV and felt pain in her veins. She was moved to another hospital but died. Her lawsuit alleged that she had gangrene from her hand to her wrist and died from cardiopulmonary failure that was likely secondary to septic shock.

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A paradox that is just dumb: active-duty military personnel cannot sue military doctors – and, more importantly, the military – for medical malpractice. Under the Feres Doctrine, a 1950 Supreme Court ruling that bars active-duty military personnel – and, improbably, their families – from suing the federal government for injuries from malpractice. So unlike the rest of us, people in the military cannot sue for medical malpractice.

So run the scenario: a guy is trying to take a hill in Afghanistan and gets shot in the leg, requiring a leg amputation. The doctor amputates the wrong leg. Does the military step up and pay for destroying this guy’s life so much further? No.

The Supreme Court is poised to look at this issue. But you can’t blame them for following a 61-year-old rule. But Congress can and should act on this. Because it is just not fair to the people we all agree we should be bending over backwards for because of their service to all of us. (That sentence will read incredibly trite when I post this. But it is what it is.)

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The number of Pennsylvania malpractice lawsuits dropped for the sixth – please think about that for a second: sixth – consecutive year in 2010. The total number of malpractice lawsuits crashed from 2904 in 2002 to 1,491 last year.

Of the malpractice cases that went to a jury last year in Pennsylvania, doctors, hospitals, and health care providers won 82% of the time (33 of 163).

Hysterically, the tone deaf Hospital & Health System Association of Pennsylvania took the moment to point out that additional reforms are needed. Really? Hire a PR department or something, guys. It is such a credibility killer.

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I always like to point out that you don’t see lawyers trying to get lawyer specific dispensation to lower malpractice premiums for lawyers. I don’t like paying malpractice premiums but, unlike many doctors, I’m not suggesting special consideration. I think it is crazy doctors want a special exceptions – lawyers would never ask for such a thing.

Oops. Scratch that. I’ll take that arrow of superiority out of my quiver. A New Jersey State Bar is pushing its state legislature to reduce the statute of limitations in malpractice actions against licensed professionals, which includes, of course, lawyers.

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This is not a space to praise the virtues of malpractice insurance companies. But let’s give credit to Crico/RMF a malpractice insurance company which insures Harvard-affiliated hospitals. Crico/RMF, according to the Wall Street Journal, put on an emergency medicine leadership summit to identify the critical factors that cause missed or delayed diagnoses of patients in the emergency room.

How did they do this? They looked at settled malpractice lawsuits and tried to breakdown what went wrong. They found that doctor-nurse communication breakdowns often happen at a critical juncture in a patient’s treatment. From this, they put together a list of best practices that hospitals can use to prevent misdiagnosis.

One problem focused on at this ER summit was the concept that doctors have a hard time changing their initial diagnosis when facts are uncovered that should take the doctors in a different direction. Doctors are stubborn to change their diagnosis. But it is not just doctors. It is a cognitive bias we all have. (I’ve written before about how before lawyers use anchoring at trial.) But the key for doctors is identifying the bias so they can confront it before it leads to the wrong diagnosis.

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