Healthcare Reform

A handful of states mandate that medical malpractice cases first be reviewed by panels of experts. These panels rule on the merits of a case. They conclude the standard of care was violated or it wasn’t.

In the states that use such panels, such as Indiana and New Mexico, the panel’s decision is not binding. A plaintiff’s attorney can ignore a smack-down and take the case to trial. But, the panel gives a strong signal as to how the winds will blow. Many – but not all – plaintiff’s attorneys take the hint.

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Dr. Orlito Trias was sued for negligence. The lower court awarded $4 million in damages.

A summary of the case was presented on the Connecticut State Medical Society website.

The case claimed that during a preoperative consultation for the removal of fibroid tumors, Dr. Trias failed to “strongly advise” the plaintiff that her family history of breast cancer greatly increased her risk for developing ovarian cancer. Although clear from the medical records that the risk of ovarian cancer was discussed, the plaintiff claimed that she was not “strongly advised” to undergo removal of her ovaries. The plaintiff subsequently developed ovarian cancer.

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We continue with our series of general educational 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.

We previously addressed who can determine treatment for the minor patient (addressed her in Part 1). We now move to confidentiality / records access issues for the minor patient in Part 2.

1. Confidentiality issues and access to records.

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We continue with our series of general educational 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.

The pitfalls in treating minors tend to fall into two areas: who can determine treatment for the minor patient (addressed here in Part 1); and confidentiality / records access issues (which will be addressed later in Part 2).

I. Treatment decisions.

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We continue with our series of general educational 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 physician recently asked about the following case: a midwife committed serious, wrongful acts in the care of a patient in premature labor with twins. The patient was initially discouraged from going to the hospital; a naturopathic doctor at the midwife’s birthing center was not competent to treat the labor medically; an outside midwife recommended the patient be transferred to the hospital but the patient was again discouraged from doing so; there was no equipment to resuscitate one twin born at the birthing center; and CPR was applied incompetently. That twin later died.  The midwife also lied to paramedics about the mother’s care and tried to conceal that the mother was, in fact, still in the birthing center, was still laboring and was bleeding profusely. The midwife was charged with manslaughter for the death of the twin delivered at her facility.

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We continue with 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. In this article, the author addresses “Avoiding liability involving autopsies.” 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.

I. Forensic autopsies

State and municipal law mandate autopsies in cases of “unnatural” deaths. These include the death of any person not under a doctor’s care and will always include cases that appear to be homicide, suicide or accident.

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We continue with our series of general educational 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.

Whether you can accept a gift from a patient is fundamentally a matter of ethics. But fiduciary violations can result in discipline for misconduct. And patients and estates of deceased patients can sue for the return of what was gifted. So, when accepting a patient’s gift, it’s important to keep basic legal issues in mind.

As a fundamental matter, the doctor-patient relationship imposes unique professional boundaries and gifting to doctors by patients blurs those.

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The other night, I was channel surfing and started watching a documentary on Jim Morrison, the lead singer of The Doors. He died at the age of 27 in a Paris hotel room. No autopsy was performed. Morrison struggled with alcohol abuse. Many accounts noted he was snorting heroin close to the time of his death. While he made a number of choices that hindered longevity, he did have a will.

The will stated his entire estate would pass to his girlfriend Pamela Courson, provided she survived him by 3 months. If she didn’t, his estate would pass to his brother and sister.

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California implemented substantive tort reform in the 1970s. The cap on non-economic damages (pain and suffering) has held firm at $250,000 since. And, compared to the rest of the country, professional liability premiums in California have remained “reasonable.”

Last year, enterprising lawyers spearheaded a referendum, Proposition 46, to overturn these caps. The Proposition was labeled Drug and Alcohol testing of Doctors. Medical Negligence Lawsuits.  The marketing pitch behind the proposition was clever – pilots and bus drivers are randomly tested for drugs and alcohol. Surely, this list should include physicians. (Buried in the Proposition was– “hey, by the way, let’s raise the cap on non-economic damages.”) The measure failed. For now, there is no state mandated random drug and alcohol testing for doctors. And, the cap on non-economic damages continues at $250k.

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