Medical Malpractice Law & Strategy

The public favors reducing jury awards in malpractice lawsuits and allowing drugs to be imported from Canada, but ranks them relatively low on a list of 12 health care priorities for President Bush and Congress to address this year, according to a new post-election survey conducted by the Kaiser Family Foundation and the Harvard School of Public Health.

Major shifts in clinical practice rarely evolve as quickly or dramatically as has occurred with the practice of offering a trial of labor to patients who have had a previous cesarean section. Vaginal birth after cesarean (VBAC) has become a relatively rare event in recent years. The popular press has addressed the issue as a matter of patient choice, while the obstetrical community has focused on safety -- both for the patient and for the health care providers. Medical malpractice liability has been cited as a reason for the decision by a number of hospitals in the United States to stop offering VBAC to its patients. If that is, in fact, one of the reasons for this move, it demonstrates the essential nature of our legal system as a check on the use of dangerous and unsupported clinical practices by our health care community.

Recent rulings of interest to you and your practice.

As medical practitioners and the attorneys who defend (or sue) them have learned over the last few years, health care professionals are liable for wrongful disclosure of protected health care information under HIPAA and various state statutes. Lack of sophistication of the law in this area is no excuse for turning over medical records to unauthorized recipients, and appropriate statutory requirements must always be met. But it's not always easy to tell when those safeguards on patient privacy are paramount and when other considerations might trump them. A recent case offers an interesting permutation on the question by asking: When can law enforcement authorities access medical records without the patient's authorization? The wrong answer could leave the health care facility or provider that hands over patient records vulnerable to liability for unauthorized release.

National news of interest to you and your practice.

Although most medical malpractice actions are brought in state courts, some must be litigated in federal courts, usually because of diversity of citizenship. When it comes to discovery in these cases, it's important to understand the federal rules that come into play.

Complex statistical evidence -- based on huge samples, reams of academic and government studies and hours of testimony -- has been the weapon of choice in many epic battles. The list of major cases in which both sides have deployed legions of statistical experts is impressive: Bendectin, silicone breast-implants, Agent Orange and tobacco are just several of the many substances over which massive statistical battles have been waged. Currently, both sides of the debate over whether caps on non-economic damages help reduce medical malpractice insurance premiums are trading ground-shaking volleys of weapons-grade statistical analysis.

In last month's issue we looked at a pending complaint made against a forensic psychologist to the ethics committee of his professional organization by an examinee unhappy with the psychologist's recommendation. We also explored case law in the Seventh Circuit that holds the decisions of professional organizations are not reviewable by the courts as long as the person being disciplined was given procedural due process. In this month's installment, we see how this state of affairs not only negatively impacts the professional prospects of the medical expert but also the free expression of valid medical opinions in the courtroom and other comparable settings.