Healthcare Reform

The Supreme Court of Pennsylvania opened the door to allowing patients to sue for negligent infliction of emotional distress. No physical injury needs to accompany the claim.

Here’s the background. In March, 2003 (yes, 9 years ago), Jeanelle Toney was pregnant and had a pelvic ultrasound. She was assured the results were normal and no fetal abnormalities were identified.

In July, 2003, Toney delivered a boy with significant abnormalities – including partial arms and legs. Toney sued the radiologist who read the scan for negligent infliction of emotional distress. The lawsuit alleged the radiologist had not prepared her for the inevitable shock of witnessing the birth. The experience left her with ongoing grief, rage, nightmares, insomnia, etc. Of note, the suit did not include any medical negligence claim. A typical medical negligence claim must assert physical damages.

A lower court dismissed the lawsuit. It was reversed on appeal. And the Supreme Court of Pennsylvania agreed in December, 2011 that the mother could indeed sue for emotional distress only.

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Jeff Segal, MD, JD, FACS

Kyle Richards, 21, an inmate in a Michigan jail, sued the governor and the state over his lack of access to porn. Really.

Who is Kyle Richards? He entered a guilty plea to bank robbery. Now, he claims he is being subjected to “cruel and unusual punishment” because the jail does not allow pornographic materials.

Richards wrote, “Such living conditions have been used as a method of ‘psychological warfare’ against prisoners, in order to both destroy the morale of inmates and break the spirit of individuals.”

A repeat offender, Mr. Richard’s record includes convictions for assault and battery and assault of a prison employee. He has filed complaints in several courts, and judges have dismissed at least three as frivolous.

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Jeff Segal, MD, JD, FACS

Have you ever had a patient who, in the middle of a procedure, said “Please stop. It hurts.” Never? Almost every doctor has heard these words once.

One doctor apparently did not heed these words quickly enough. He was sued for battery. Battery is an “intentional tort.” It is different than negligence. Many professional liability policies exclude coverage of intentional torts – such as battery.

Here’s what happened. It’s an old case, but it’s instructive. Shirley Coulter underwent outpatient surgery to remove a mass on her lower eyelid. An automated blood pressure cuff was placed on the patient’s arm – to monitor her blood pressure. The first time it inflated, Coulter testified she felt extreme pain, began to sweat and tremble, and demanded the cuff be removed.

She claimed the cuff inflated a second time. She again cried for someone to remove the cuff.

The patient said it was not until several minutes later that her demands were heeded. The cuff was removed. Surgery continued uneventfully. (By the way, the doctor and nursing staff testified that the cuff only inflated a total of two times).

Coulter sued the doctor for battery. Battery is an offensive “touching” of another person’s body without her consent. The patient argued she gave consent for the procedure. Then she withdrew consent for one part of the procedure – in the middle.

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Michael J. Sacopulos, Esq.

A New York trial court judge received word that a juror had conducted some independent research during the trial by performing “google” searches on the parties. Upon questioning, the juror admitted that he had “googled” the parties and gave the excuse that he was “curious.” Apparently he wasn’t the only curious juror. The trial court judge went on to question the remaining jurors. Eight of his fellow jurors also admitted to conducting independent internet searches. That is nine (9) out of the twelve (12) jurors. The judge was forced to declare a mistrial. This is not an isolated incident. In another case, a juror was uncertain whether a defendant was guilty or not. What did she do? She conducted a poll on her Facebook page. This also resulted in a mistrial.

The social media revolution has inflamed other aspects of the trial process. Attorneys now devote effort to reviewing the other party’s social media use. Information that you post for friends or colleagues may well end up as a piece of evidence in a trial. A simple rant posting following an unpleasant appointment or difficult staff encounter reported in a Tweet could end up as a line of questioning in your deposition or trial. Social media sites have become a new frontier for lawyers to explore in litigation so be careful what you post.

Here are some tips on how to protect yourself:

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Michael J. Sacopulos, Esq.

An doctor was sued several weeks ago for her use of a healthcare financing company. The suit was brought as a class action and is based upon consumer fraud laws. The allegations center around the way the credit application was presented and when it was signed by the patient. The patient claims that she did not understand that she was signing a credit application and that the practice performed unnecessary work in an effort to collect the entire amount of her line of credit. The doctor needs to prepare for a long, painful process. This is not a medical malpractice case, so normal professional liability policies will not cover it. Further, given the general public’s current hostility towards finance firms, there is a risk to taking the case to a jury.

Basically, this is a predatory lending case. Predatory lending is a general description for activities that violate consumer laws. A common element to most predatory lending cases include the lender or lender’s agent engaging in fraud or deception to conceal the true nature of the loan obligation from an unsuspecting or unsophisticated borrower. This means that a practice could be sued based on what information was presented to a patient or for how a signature of the application was secured.

It seems that this doctor is not alone.

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Michael Kirsch, M.D. – author, MD Whistleblower

When lawyers talk, I listen. Two attorneys penned a piece on medical malpractice reform in the April 21st issue of The New England Journal of Medicine, the most prestigious medical journal on the planet. Here is an excerpt from their article, New Directions in Medical Liability Reform.

The best estimates are that only 2 to 3% of patients injured by negligence file claims, only about half of claimants recover money, and litigation is resolved discordantly with the merit of the claim (i.e., money is awarded in nonmeritorious cases or no money is awarded in meritorious cases) about a quarter of the time.

This is not self-serving drivel spewed forth by greedy, bitter doctors, but a view offered by attorneys, esteemed officers of the court. Apply the statistics in their quote to your profession. Would you be satisfied if your efforts were benefiting 2-3% of your customers or clients? Would this performance level give me bragging rights as a gastroenterologist? Perhaps, I should attach a new slogan to my business card.

Michael Kirsch, MD

Gastroenterologist

Correct Diagnosis and Treatment in 2-3% of Cases

We would have to build a second waiting room to accommodate the crowds of new patients who would be jamming in to see me.

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Michael J. Sacopulos, Esq.

There have been several recent cases involving Facebook that have been released. These cases continue to show how social media has permeated our society. They also show a darker side of social media. Although not directly related to the health care world, I think that they provide some useful lessons. But first the cases…

Several weeks ago a Connecticut judge ordered a couple in the midst of a divorce an exchange of passwords for Facebook and dating websites. The husband’s lawyer argued, that postings by the wife, were evidence of her inability to take care of the couple’s children. The husband was arguing for full custody. The court agreed that this might produce irrelevant information in order for the wife to disclose Facebook and dating website passwords. The court agreed it might provide irrelevant information and ordered that the husband and wife exchange Facebook and dating website passwords. Finally the court went on to order that neither spouse may post messages pretending to be the other.

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