LJN Newsletters

Medical malpractice issues in today's headlines

The Joint Commission on Accreditation of Healthcare Organizations (JCAHO) issued an alert on Oct. 6 cautioning health care providers about the dangers of "anesthesia awareness." The organization asserts that tens of thousands of patients undergoing surgery each year remain partially awake while under general anesthesia during surgery, but are unable to communicate this problem to their caregivers. JCAHO's alert aims to make health care providers more aware of this phenomenon so that they can reduce the risks of its occurrence and better support patients when it does happen.

Patients in hospitals and nursing homes sometimes get injured, perhaps when they become disoriented and try to get out of bed unassisted or are being moved by hospital staff from a gurney to a bed. Patients can experience cerebral hypoxia (ie, a deficient oxygen supply to the brain) from anesthesia or surgical complications. Medical malpractice lawsuits often follow, with plaintiffs asserting that the hospital, nursing home staff or physicians failed to properly monitor and maintain the patient's safety. These plaintiffs may claim to have suffered acquired brain injuries (ABIs) or traumatic brain injuries (TBIs) that continue to hinder their ability to function in their everyday lives. However, while these assertions may be true, they call for further investigation on the part of the defense. Plaintiffs in medical malpractice actions have a financial incentive for exaggerating their symptoms, so an evaluation should be made to determine if the plaintiff is malingering.

The California Court of Appeal recently interpreted the scope of California Business & Professions Code ' 809.05, subdivision (a) in the case of Weinberg v. Cedars-Sinai Medical Center, 119 Cal. App. 4th 1098; 15 Cal. Rptr. 3d 6; 2004 Cal. App. LEXIS 1017 (5/28/04). Weinberg is the first published opinion dealing with the law, which requires that a hospital governing body give "great weight" to a peer review committee's recommendations regarding disciplinary proceedings against a physician, but authorizes the body to reject those recommendations, provided it does not do so arbitrarily or capriciously. The California Court of Appeal applied this statute to the review of physician disciplinary charges by the governing board of Cedars-Sinai Medical Center after four peer review committee members identified deficiencies in a physician's performance, but nonetheless recommended against terminating his staff privileges.

In recent years, many states have enacted punitive damage limitations on medical malpractice actions to help doctors, nurses and other health care workers stay in business and to stem the tide of medical insurer defections from high-risk states to states offering lower exposure to loss. However, depending on the way the punitive damage cap provisions are written, states may or may not be affording health care workers and insurers the protections they intended to give. Case in point: Johannesen v. Salem Hospital, 336 Or. 211, 82 P.3d 139 (2003). In this case, the Oregon Supreme Court issued a decision that broadens the scope of punitive damages claims against health care providers in Oregon beyond those that the legislature presumably intended.

Recent developments in e-commerce law and in the e-commerce industry.

Recent cases in e-commerce law and in the e-commerce industry.

Debate has been healthy recently over whether, and how, the European Union (EU) should amend its laws to allow software and business methods to be patented. The traditional, widely held view is that neither of these things is capable of patent protection under EU legislation; and while this isn't strictly true, much ink and air has been expended on the pros and cons in the argument.
What everybody does agree on, however, is that the current EU regime is ambiguous and inconsistent, with the result that one EU member state may grant a patent over an idea that would be refused by another member state. The European Commission has, therefore, attempted to solve the problems by proposing new legislation ' with what success remains to be seen.