Forensic Domestic Violence Assessments
The forensic evaluator's report can be crucial to the outcome of a domestic violence case, but the wrong type of evaluation can undermine a strong case. Psychologists who put themselves into the shoes of the judge when making their evaluations step over the line of clinical evaluation and can alienate the fact finder. Obtaining an assessment from a forensic psychologist with the correct understanding of his or her role in the decision-making process can is crucial.
Same-Sex Marriage Developments
In October, state comptroller Alan G. Hevesi issued the first official opinion from the government of New York concerning the state's recognition of the foreign marriages of gay partners with regard to a concrete right to state benefits. In a letter to a state employee who had asked what his partner's state benefits would be if they got married in Canada, Hevesi wrote that the employee's spouse would be entitled to state pension funds in the same manner that a traditional, opposite-sex spouse would be. New York State already allows state employees to name same-sex partners as beneficiaries of their pension funds, but Hevesi's decision means same-sex spouses will have rights that they might not have if their partners did not voluntarily name them as pension beneficiaries. In addition, same-sex spouses will be entitled to cost-of-living increases and accidental death benefits.
No-Fault Divorce on Front Burner
New York remains the only state in the union without a no-fault divorce provision on its books. Domestic Relations Law ' 170 authorizes divorce on grounds of adultery, abandonment and cruel and unusual treatment, but the closest thing to a no-fault divorce in this state is the recorded separation agreement followed by a year of living separately. Although this last ground might seem simple enough to comply with, it requires agreement by the parties and the often-expensive maintenance of separate residences before the marital assets have been distributed. If the New York State Bar Association has its way, all this will soon change.
Mild Traumatic Brain Injuries Pose Different Set of Rules
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.
Verdicts
Recent rulings of interest to you and your practice.
Med Mal News
Medical malpractice issues in today's headlines
CA Court: Peer Review Committee's Recommendations Not Final
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.
JCAHO Issues Alert
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.
Tort Reform
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.
