Medical Malpractice Law & Strategy

In a disappointing decision for malpractice plaintiffs and their medical caregivers, the U.S. Supreme Court ruled on June 21 that patients do not have a state law private right of action against their Health Maintenance Organizations (HMOs) when such entities make coverage decisions that impact the patient's health care. The decision means patients have little recourse against their HMOs, which under federal law are liable to plan beneficiaries only for the cost of services they wouldn't cover.

National news that affects your practice.

In medical malpractice cases, it is a matter of hornbook law that health care providers bear no liability for poor outcomes resulting from the exercise of professional judgment, as long as they adhere to the relevant standard of care. In an attempt to facilitate jurors' understanding of this concept, courts across the country have given "mistake" or "error-of-judgment" charges, which typically instruct the jury that physicians are entitled to exercise their professional judgment in choosing either of two reasonable options.

Part One of a two-part article. Proper malpractice coverage is essential to any physician's practice. When that coverage is not readily available or premiums skyrocket, that essential can seem like a luxury. Physicians facing other economic pressures in their practice not infrequently opt to reduce their insurance limits, increase their deductible, drop their coverage altogether, retire or leave the area, or discontinue what they view as high-risk portions of their practice (eg, serving on ER call rosters or accepting Medicaid or indigent patients). As a result, physicians' personal assets (and careers) are more at risk, hospitals face more liability exposure as the "deep pocket," and patients face significantly reduced access to care.

Recent rulings of importance to you and your practice.

Part Two of a two-part article. In last month's issue, we discussed the defense problem of increasingly high med-mal verdicts. This month, we explore strategies that defendants anticipating their personal day in court should consider if they hope to buck the trend toward high jury verdicts in medical malpractice actions.

For those attorneys who loved "Gilly's" in law school, Current Medical Diagnosis and Treatment (CMDT), by Lange, McGraw-Hill, will simplify your ability to understand medicine. The following is a review of the CMDT by regular contributor Elliott B. Oppenheim, MD/JD/LLM Health Law.

As more and more states across the nation impose statutory caps on damages for non-economic injuries in medical malpractice cases, plaintiffs and their attorneys are seeing their options for compensation diminished. Attorneys are looking for ways to best help their injured clients, such as hurriedly filing claims before the imposition date of statutory caps and framing their cases as something other than medical malpractice.