Genetic Testing Doctors' Liability Grows As Tests Become Widely Used
November 30, 2004
Court rulings across the country are showing that the increased use of genetic testing has substantially expanded physicians' liability for failure to counsel patients about hereditary disorders. In recent years courts in Minnesota, North Carolina, Massachusetts, New Jersey, Utah, Michigan, New York, Ohio, Georgia, Pennsylvania and Virginia have ruled on medical malpractice cases stemming from genetic testing issues. Decisions issued in those courts have tried to carve out rules on when physicians have a duty to relay information gleaned from genetic testing.
Expert Witnesses Disciplined By Their Own Ranks
November 30, 2004
Increasingly, expert witnesses' opinions are subject to the scrutiny of the professional organizations to which they belong. This scrutiny can act as a check on their proffered expert testimony. The requirements of admissibility of expert opinion at trial have long been subject to the requirements of <i>Daubert v. Merrill Dow Pharmaceutical Inc.</i>, 509 U.S. 579 (1993), and after admission, the opinions are often second-guessed by an unhappy client in a subsequent lawsuit, as in LLMD of <i>Michigan v. Jackson-Cross Co.</i>, 740 A.2d 186 (Pa. 1999). Now we're finding that the further review of these same opinions by the expert's own specialty professional organization is being used increasingly as a new strategy of attack by the expert's unhappy opponents.
Mild Traumatic Brain Injuries Pose Different Set of Rules
November 30, 2004
Part Two of a Two-Part Article. In last month's newsletter, we looked at the symptoms of traumatic brain injury (TBI) and the incentives plaintiffs who claim such injuries may have to exaggerate their symptoms. In this month's conclusion, we see how forensic experts test for and detect this type of fraud on defendants and their insurers.
Forecasting Claims in an Era of Tort Reform
November 08, 2004
Forecasting mass tort claims is often based on sophisticated models applied to large, complicated databases. These models can account for such causal factors as the size of the exposed population, the dose-response rates between defendant's product and disease, and actuarial mortality rates of the exposed population. Too often, though, there is one variable that is simply extrapolated into the future at historical levels with no attempt to understand its causal influences — the filing rate (also called the propensity to sue).
Med Mal News
November 02, 2004
Medical malpractice issues in today's headlines
Tort Reform
November 02, 2004
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: <i>Johannesen v. Salem Hospital</i>, 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.
Mild Traumatic Brain Injuries Pose Different Set of Rules
November 02, 2004
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 (<i>ie</i>, 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.
CA Court: Peer Review Committee's Recommendations Not Final
November 02, 2004
The California Court of Appeal recently interpreted the scope of California Business & Professions Code ' 809.05, subdivision (a) in the case of <i>Weinberg v. Cedars-Sinai Medical Center</i>, 119 Cal. App. 4th 1098; 15 Cal. Rptr. 3d 6; 2004 Cal. App. LEXIS 1017 (5/28/04). <i>Weinberg</i> 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.
Verdicts
November 02, 2004
Recent rulings of interest to you and your practice.
JCAHO Issues Alert
November 02, 2004
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.
