Medical Malpractice

March 25, 2011

Mississippi High Court on Experts and Collateral Sources

The Mississippi Supreme Court reversed a directed verdict for a hospital in a nursing medical malpractice action in which the plaintiff suffered IV infiltration – leakage of fluid from an IV into the patient’s tissues from an IV line – and burn injuries.

The directed verdict from the trial court struck Plaintiffs’ expert from testifying as to the standard of care even though the expert had already been accepted as an expert on the nursing care given by the hospital. Had the expert been permitted to testify, she would have testified as to the standard of care for IV infiltrations and that the hospital breached that standard.

The Mississippi high court also make a good call for plaintiffs on the question of the collateral source set off when the amount of the liens/bills have been reduced.

February 14, 2011

Certificate of Merit Requirements in Malpractice Cases

by Ronald V. Miller, Jr.

The Minnesota Court of Appeals decided an interesting medical malpractice case addressing the bar plaintiffs’ malpractice lawyers must clear when presenting a certificate of merit that will survive summary judgment.

November 5, 2010

Unnecessary Heart Stents

by Ronald V. Miller, Jr.

If you Google “unnecessary heart stents” most of the searches come up discussing the stent debacle at St. Joseph’s Hospital in Maryland. But Maryland might just be the tipping point. The same health care system with the same financial incentives for doctors for using heart stents exists throughout the country. I suspect unnecessary stent medical malpractice lawsuits will be the next wave of malpractice lawsuits. In many jurisdictions, although I suspect not in Maryland when all is said and done, there will be a great case for punitive damages.

Stent lawsuits in jurisdictions with punitive damages involving a hospital systematically providing unnecessary heart stents may be big cases. Punitive damage claims against individual doctors are typically of limited utility because the doctors have limited assets – relatively speaking – and the insurance policies do not cover intentional torts. Obviously, hospitals have more insurance and deeper pockets.

July 18, 2010

Pennsylvania Malpractice Lawsuits

by Ronald V. Miller, Jr.

James A. Goodyear, president of the Pennsylvania Medical Society, says that because Pennsylvania doctors win a defense verdict in 85 percent of malpractice lawsuits that go to trial, it may be that “too many claims are advancing that shouldn’t.”

Alternative view: good malpractice lawsuits settle before trial.

December 22, 2008

Pennsylvania Informed Consent Law: New High Court Ruling

by Ronald V. Miller, Jr.

Pennsylvania’s highest court last week in Fitzpatrick v. Natter that circumstantial evidence provided by a plaintiff’s spouse in a medical malpractice lawsuit is sufficient to get past summary judgment in an informed consent malpractice claim. The court found that a Pennsylvania Superior Courty had erred in concluding that Pennsylvania’s informed consent law required the Plaintiff to testify herself about information that was not provided by her doctor.

September 27, 2008

Medical Malpractice Informed Consent Lawsuit in Kentucky: Are Punitive Damages Warranted?

by Ronald V. Miller, Jr.

Medical malpractice lawyers filed an informed consent lawsuit last week accusing a doctor of amputating a man’s penis without his consent. In the lawsuit, a Kentucky man alleges that the doctor was only authorized to perform a circumcision. What happened—right or wrong – was the doctor did what he thought he should, to save the patient’s life when he found cancer during the operation.

I won’t prejudge this lawsuit without hearing the evidence. I can certainly imagine a scenario where a doctor finds cancer during a routine operation and does what the doctor believes he must do to save the patient. The Plaintiff affirmed the doctor’s prerogative in this regard by signing a consent form acknowledging that unforeseen conditions discovered during the circumcision “may necessitate additional or different procedures.” But I would reserve judgment on the merits of the case because it really depends on whether reasonable minds could differ as to what was the appropriate course.

But I find disturbing that the lawsuit seeks punitive damages. Unless facts in the case exist that were not included in the Courier-Journal article I read, there is no malice or even recklessness in a doctor – right or wrong – deciding to save a patient’s life.

May 14, 2008

New York Medical Malpractice Lawyer Cap on Fees

by Ronald V. Miller, Jr.

New York limits an attorneys medical malpractice contingent fee in a medical, dental or podiatric malpractice case to 30 percent of the first $ 250,000 of the sum recovered; 25 percent of the next $ 250,000 recovered; 20 percent of the next $ 500,000 recovered; 15 percent of the next $ 250,000 of the sum recovered; 10 percent of any amount recovered over $ 1,250,000.

While contingency fees vary from malpractice lawyer to malpractice lawyer, 40% is a common fee in medical malpractice cases. So if a case settles, or the plaintiff gets a verdict for $1,000,000, the attorneys’ fees, in many cases, is $400,000. In New York, when a malpractice case recovers $1,000,000, the malpractice lawyer’s fee is limited to $225,000.

If you are not a malpractice lawyer, you might think that this is not a bad payday for a single case. You are right. But the problem is that plaintiffs’ medical malpractice lawyers lose most cases. When a lawyer loses a case, he might lose $100,000 or more in out-of-pocket costs. This discourages many good lawyers from handling medical malpractice cases.

April 3, 2008

Malpractice Verdict in New York Stroke Case

by Ronald V. Miller, Jr.

The Times Union (Albany, New York) reports that after a three-week trial before Supreme Court Judge Michael Lynch, a jury awarded Watervliet man and his wife $1.87 million in a medical malpractice lawsuit Tuesday against a doctor whose Plaintiffs alleged failure to detect and disclose a high glucose condition leading to a stroke.

Specifically, the jury believed it was negligent not to advise the Plaintiff of the results of a blood glucose study that had been done. The jury found the doctor’s negligence was a “substantial factor” in his stroke. The doctor’s lawyer contended that there is no evidence that Plaintiff would have acted had he been given the blood glucose test results.

Samaritan Hospital was also a named defendant, but the jury did not find that the hospital was negligent.