Jeffrey Segal, MD, JD

By Dr. JD, a plaintiff’s attorney, practicing in the Northeast

 

We continue our series of articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eyes. This attorney is a seasoned veteran.  The series includes a number of pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and fully relevant.  Please give us your feedback – and let us know if you find the series helpful.

 

A defendant doctor has options to change the landscape of the lawsuit against him – impleader and summary judgment.

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by Michael J. Sacopulos, JD (General Counsel Medical Justice / Dental Justice)

Porn Stars Deserve Privacy, Too

Every day seems to bring word of new healthcare privacy breaches. A physician’s laptop goes missing in Illinois. A practice’s system is hacked in Maryland. Old patients’ charts turn up in a landfill in Ohio. Some of these breaches are not only frightening in terms of their ramifications, but they come across like plots of crime shows on TV. Here are some of the dramatic examples.

Porn Star HIV Test Database Leaked

Although porn stars are not typically known for their privacy concerns, they do often use stage names to keep their true identities confidential. In 2011, however, their personal lives were broadcast for the world to see, when medical test results and personal details about thousands of current and former porn performers were leaked.^[1]

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If a patient is injured in a hospital, and a lawsuit emerges, it can fall under the category of “ordinary negligence” or “medical malpractice.” For cases that qualify as legal claims, the vast majority of such claims fall under the category “medical malpractice.”

 

Why does it even matter?

 

The two categories often have different statutes of limitations, damage caps, need for expert testimony, and so on. The cost to pursue the case and the amount of money which can be recovered may vary dramatically.

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Drs. Michael Parsa and Christopher Cabanillas are employed by University Medical

Center of El Paso. They are two of numerous defendants in a lawsuit filed by the ACLU. Even though they are hospital employees, they are being sued in their individual capacity.

 

The plaintiff, Jane Doe, is a 54 year old New Mexico resident. She was visiting a family friend in Juarez, Mexico. On return, she crossed the bridge back to the US, where she was chosen at random for “additional screening.” This “secondary inspection” involved a pat-down where an agent “inserted her finger into the crevice of Ms. Doe’s buttocks.” Nothing was noted. But, that was not the end of this search.

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Alexander Pope once stated in An Essay on Criticism “A little learning is a dangerous thing” (updated in modern times to the saying A little knowledge is a dangerous thing).

 

Here’s a conundrum.

 

Benjamin Dover has lymphoma and is a candidate for a bone marrow transplant. Ben is 10 years old. His parents, Mr. and Ms. Dover agree to be tested to see if either might be a suitable donor. Dr. Smith, the patient’s pediatric oncologist, spearheads the process.

 

When the lab results return, Dr. Smith learns that neither parent would be an ideal candidate. Dr. Smith also learns from the genetic testing that Mr. Dover cannot be Ben’s biological father.

 

Mr. and Ms. Dover have been married for 15 years, and by outward appearances, seem to have a close and loving relationship. Further, Ms. Dover did not express any anxiety about the genetic testing.

 

Dr. Smith does not believe either Benjamin or Mr. Dover knows who the actual biological father is. In other words, Dr. Smith suspects there’s a secret that has been kept for a long time – but is not sure.

 

What to do?

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Since the 1970s, California has had some of the most aggressive tort reform laws in the country. The law, known as MICRA, caps non-economic damages – otherwise known as “pain and suffering.” The cap is $250,000 and it’s not budged in over three decades. This feature has kept medical malpractice premiums lower than in other states that exemplify judicial hell-holes.

California allows citizens to change laws directly via ballot propositions (referenda). To get a proposition on the ballot, a critical mass of signatures must be obtained. Then, the citizens vote thumbs up or thumbs down.

Plaintiff’s attorneys have tried multiple times to over-turn MICRA in courts. They’ve not succeeded. Now, the question of MICRA is being brought directly to the citizens. If enough signatures are collected, the fate of MICRA will be determined in November 2014 elections.

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Jahi McMath was declared brain dead following complications related to tonsil / sleep apnea surgery at Children’s Hospital in Oakland California. Jahi developed post-op bleeding and went into cardiac arrest. Several doctors examined her and declared she satisfied criteria for brain death. And she was indeed declared dead. Under California law, brain death equals death.

The hospital wanted to remove Jahi from the ventilator. The patient’s family filed a court action arguing that the hospital should not have the power to do so. Removing the ventilator would cause cardiopulmonary arrest. The family believed it was premature to make that call.

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