Medical Malpractice Law & Strategy

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.

On Sept. 14, the Republican-led House passed a bill dubbed the Lawsuit Abuse Reduction Act of 2004 that aims to do just that: deter attorneys and their clients from bringing unfounded suits. The vote was 229-174 for the bill that would impose sanctions on lawyers who bring suits that are deemed unfounded.

Recent news of importance to you and your practice.

Recent verdict you need to know.

Times have changed. Depositions, used at trial for impeachment purposes, are now more than just dry words on a page. Increasingly, they are on videotape and the courts are happy about that. Weseloh-Hurtig v. Hepker, 152 F.R.D. 198, 201 (D. Kan. 1993). Should medical malpractice lawyers feel the same way? Well, it depends on whether you are the attorney taking the deposition or if you are the one whose client's deposition is being captured on video. It can be a blessing or it can be the death knell for your case. Let's look at this developing trend.

In the previous months' newsletters, we looked at two of the three significant cases interpreting the Health Insurance Portability and Accountability Act, Pub. L. No. 104-191, 110 Stat. 1936 (1996) (HIPAA). Northwestern Memorial Hospital v. Ashcroft, 2004 U.S. App. LEXIS 5724 (7th Cir. 2004), a case decided by the U.S. Court of Appeals for the Seventh Circuit, rejected the idea that HIPAA created a new federal privilege regarding abortion medical records. In South Carolina Medical Association v. Thompson, 327 F.3d 346, 2003 U.S. App. LEXIS 7940 (4th Cir. 2003)(cert. denied 2003 U.S. LEXIS 8010 (U.S., Nov. 3, 2003)), the Fourth Circuit held the HIPAA regulations themselves to be constitutional. The third case of note on the subject of HIPAA interpretation, which we look at this month, is Law v. Zuckerman, 307 F. Supp. Part Three of a Three-Part Article.

The latest happenings in the world of medical malpractice.

The federal Government Accountability Office (GAO - formerly, General Accounting Office) has for several years been examining the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) to determine 1) the extent to which its pre-2004 hospital accreditation process identified hospitals not complying with Medicare requirements; 2) the potential of JCAHO's new (post-2004) process for improving the detection of deficiencies in Medicare requirements; and 3) the effectiveness of the Centers for Medicare and Medicaid Services' (CMS) oversight of JCAHO's hospital accreditation program. A report detailing the findings of that study, "Medicare: CMS Needs Additional Authority to Adequately Oversee Patient Safety in Hospitals," GAO-04-850, published July 20, levels some serious charges against JCAHO.