Personal Injury Law Update

HIPAA Bars Defense Attorney From Interviewing Doctors in Medical Malpractice Action

A defense attorney has violated rules of the Health Insurance Portability and Accountability Act (HIPAA), ruled the Georgia Supreme Court. The defense attorney had ex parte communications with the plaintiff's prior treating physician. The defense lawyer informally asked about the patient's medical condition after getting his medical records from three previous doctors. The doctor has been sued for malpractice.

When a plaintiff puts his or her medical condition at issue, the defense attorney can contact treating physicians about the plaintiff's condition. The court agreed with the plaintiff in this case when he argued that the defense attorney violated HIPAA's provisions requiring notice and consent from the patient before the medical records are disclosed.

The Supreme Court of Georgia stated as follows in Moreland v. Austin:

"[W}e find that HIPAA preempts [state] law with regard to ex parte communications between defense counsel and plaintiff's prior treating physicians because HIPAA affords patients more control over their medical records when it comes to informal contacts between litigants and physicians. ...

"HIPAA ... prevents a medical provider from disseminating a patient's medical information, whether orally or in writing, without obtaining a court order or the patient's express consent. In other words, HIPAA requires a physician to protect a patient's health information, unless the patient is given reasonable notice and an opportunity to object. ...

"Thus, in order for defense counsel to informally interview plaintiff's treating physicians, they must first obtain a valid authorization, or a protective order, or ensure that the patient has been given notice and an opportunity to object to the ex parte contact, all in compliance with the requirements of HIPAA," the court said.

Hospital-acquired infections lawsuits increase

Medical malpractice lawsuits associated with hospital infections are on the rise. Recent verdicts awarded around the country show this trend in lawsuits.

• $13.5 million was awarded by a jury on November 6 to a woman who died of an infection caused by flesh-eating bacteria that she contracted during cancer treatment.
• On November 14, a Utah woman reached a confidential settlement in a $16 million suit she filed alleging that a hospital failed to detect necrotizing fasciitis, a flesh-eating bacteria, before and after she gave birth, causing her to lose three limbs and several organs.
• In July, a Missouri couple was awarded $2.5 million after the husband contracted a potentially deadly type of staph infection when doctors inserted a pacemaker. As a result, the patient lost a kidney and his leg and foot had to be amputated.

Over 2 million infections transmitted in hospitals occur annually which has led to 90,000 deaths as estimated by the Centers for Disease Control and Prevention, or CDC. The CDC found that in long-term care centers an additional 1.5 million health-care related infections occur each year.

"This is the next asbestos. Now that the evidence is overwhelming that nearly all infections are preventable, hospitals that don't follow the proven protocols are inviting lawsuits," said Betsy McCaughy, founder and chair of the Committee to Reduce Infection Deaths, a non-profit patient safety organization in New York.

Twenty-six states have passed laws requiring hospitals to report infections acquired in their facilities. The standard of care for hospitals in preventing infections is rising because of new guidelines and rules. As of October 1, 2008 Medicare has stopped reimbursing for certain types of hospital-acquired infections. "There are CDC standards on infection prevention and lots of published materials that can be used to establish the standard of care," said McCaughy.

Causation is often the more contentious issue, McCaughy has noted. The plaintiff "is going to need an expert to say, 'If this precaution had been taken, he would not have gotten this infection,'" McCaughy said.

Oregon Medical Malpractice Statute of Limitations Upheld

Last week, the Oregon Supreme Court upheld a five-year statute of limitations on medical malpractice lawsuits involving minors. The case involved a woman who sued Providence Health System, claiming its doctor did not recognize signs of fetal distress when her son was being born and failed to perform an emergency Caesarean section. However, the suit was commenced eight years after the boy was born - beyond the five year statute of limitations. See stories in the media here and here.

A copy of the opinion can be viewed on the website of the Oregon Supreme Court.

Medical malpractice claims are typically complex, expensive and difficult cases. Because of the difficulty of these cases, it is vitally important to thoroughly investigate and speak to an experienced medical malpractice attorney as soon as you believe you may have a claim. The Oregon medical malpractice lawyers at D'Amore & Associates offer free consultations to review the facts of your case.

Jury Clears Cardiologist and Radiologist of Negligence in Diagnosis and Treatment of Actor John Ritter

We previously wrote about the commencement of testimony in the wrongful death lawsuit arising out of the untimely death of actor John Ritter. Last Friday, a jury cleared a cardiologist and a radiologist of negligence in the diagnosis and treatment of actor John Ritter who died of a torn aorta in 2003. The verdict was 9-3. This means there will be no damage judgment against the doctors. Eight other medical personnel and Providence St. Joseph Medical Center previously made settlements with the family totaling $14 million. See further details here and here.

Testimony Commences in $67 Million Wrongful Death Suit Filed by Family of the Late Actor John Ritter

Earlier this week, witnesses began testifying in the $67 million wrongful death lawsuit filed by the family of comic actor John Ritter against a cardiologist and radiologist who treated Ritter the day he died.

Ritter had been taping a TV show when he began complaining of chest pain and tightness, nausea, vomiting and dizziness. He was taken to a hospital across the street from the studio.

The lawsuit alleges that radiologist Matthew Lotysch misinterpreted the results of a body scan the actor had in 2001, and cardiologist Joseph Lee misdiagnosed the actor before he died that night of an ascending aortic aneurysm. The lawsuit alleges that "if proper procedures had been followed to diagnose and treat Mr. Ritter's symptoms, he would be alive and well today." The defendants contend that Ritter showed classic signs of a heart attack and received appropriate treatment. The case will turn largely on dueling medical experts.

Read stories here and here (reporting on testimony provided by Henry Winkler, f/k/a "The Fonz", who was with Ritter on the set the day he died).

Chicago Principal Dies of Heart Attack at Dentist Office During Routine Root Canal

It was recently reported that Georgette Watson, a 46-year old woman who worked as a principal at a Chicago middle school, died of a heart attack while under sedation for the performance of a routine root canal at her dentist.

A root canal is a procedure to save an inflamed or infected tooth. Dentists remove damaged tissue inside the tooth, disinfect and fill the area, and then seal it off. Experts said that more than 17 million root canals are performed every year in the U.S. and that a death during the procedure is highly unusual.

The licenses of the dentists who had performed the procedure had been put on probation in July due to substandard dental work and failure to maintain records. However, dentists on probation are allowed to continue practicing with certain restrictions, according to the Illinois Department of Financial and Professional Regulation Web.

See the full story here.

Thousands of medical and dental errors occur each year. When injury or death is caused by medical or dental malpractice through negligence or failure to follow the standard of care, you or your loved one should be compensated for all damages suffered. The Washington and Oregon dental and medical malpractice lawyers at D'Amore & Associates are experienced in all types of medical and dental malpractice and negligence claims. We routinely work with a variety of medical experts to determine the cause of the negative medical outcomes and assess accountability.

Texas Congressman Introduces Federal Bill Capping Damages in Medical Malpractice Cases

It was recently reported that Texas Congressman Michael Burgess (R-TX) has introduced federal tort reform legislation modeled after the Texas law capping damages in medical malpractice cases. Burgess' measure would cap non-economic damages against any single healthcare provider at $250,000 and wrongful death total damages at $1.4 million. Dubbed the Medical Justice Act (H.R. 3509), the bill also would provide certain instructions for juries to consider in their deliberations, as well as criteria for expert opinion and testimony in medical liability cases in civil court.

But as we've previously noted, the Texas cap on damages in medical malpractice cases has had a downside in terms of quality of care as evidenced by a 79% increase in disciplinary actions by the Texas Medical Board from 2002 to 2006. So a nationwide cap on damages in medical malpractice cases may not be such good news for patients.

The Downside of the Texas Cap on Medical Malpractice Damages

Arguing in favor of tort reform, a recent New York Times article noted the influx of doctors into Texas after medical malpractice damages were capped in 2003. However, in a recent blog post, New York personal injury lawyer Eric Turkewitz, begs to differ with the Times' claim that, during the same timeframe, disciplinary actions against physicians had only risen 8%.

Turkewitz quotes the following statistic directly from the article: "Since 2003, investigations of doctors have gone up 40 percent, patient complaints have gone up 25 percent, and disciplinary actions about 8 percent." (citing Jill Wiggins, a Texas Medical Board spokeswoman).

But as Turkewitz points out, the Board's own website contradicts this claim, instead showing that disciplinary actions increased from 187 in 2002 to 335 in 2006. Mathematically, this represents an increase of 79% (Turkewitz surmises that the "8% error" resulted from a comparison between 2006 and 2005, when 304 actions were commenced).

The obvious conclusion is that capping medical malpractice damages has a downside in terms of the quality of care - as Turkewitz puts it, "Texas is clearly getting more doctors. They just might not be the ones you want."

For those who believe they have been harmed by the negligence of a medical professional, the medical malpractice lawyers at D’Amore & Associates in Oregon and Washington are experienced in all types of medical malpractice and negligence claims. Our medical malpractice attorneys routinely work with a variety of experts to determine the cause of negative medical outcomes and assess accountability.

New Law Review Study Shows that Juries Tend to Favor Medical Defendants in the Courtroom

We recently reported that a jury had exonerated two surgeons in the medical malpractice trial of Notre Dame coach Charles Weis. We've had people express surprise at the result given the stereotype that juries run amok in medical malpractice cases.

It's actually the opposite. As Eric Turkewitz, on his Personal Injury Law Blog, recently noted, "[n]ationwide, approximately 2/3 of all malpractice verdicts favor the defendants. This occurs because, generally speaking, it is usually the most difficult of cases that go to verdict."  Indeed, a May 2007 Michigan Law Review Study entitled Doctors & Juries, by Professor Philip J. Peters, referenced by Turkewitz, concludes that juries tend to favor medical defendants in the courtroom. Among the findings summarized in the Study's abstract:

"Four important findings emerge from the data. First, negligence matters. Plaintiffs rarely win weak cases. They have more success in toss-up cases, and fare best in cases with strong evidence of medical negligence. Second, jury verdicts are most likely to square with the opinions of experts hired to evaluate the jury's performance when the evidence of provider negligence is weak. This is the very set of cases that most worries critics of malpractice litigation. Juries agree with expert reviewers in 80 to 90 percent of these cases - a better agreement rate than physicians typically have with each other. Third, jury verdicts are much more likely to deviate from the opinion of an expert reviewer when there is strong evidence of negligence. Doctors consistently win about 50 percent of the cases which experts believe the plaintiffs should win. Fourth, the poor success of malpractice plaintiffs in these cases strongly suggests the presence of factors that systematically favor medical defendants in the courtroom. The most promising explanations for that advantage are the defendant's superior resources, the social standing of physicians, social norms against "profiting" from an injury, and the jury's willingness to give physicians the "benefit of the doubt" when the evidence of negligence is conflicting. From the perspective of malpractice defendants at least, jury performance is remarkably good."

So next time you hear some tort reform critic complain that the jury system has run amok, point him or her to Professor Peters' study.

Notre Dame Coach Loses Second Medical Malpractice Trial

We previously reported on the mistrial of the first trial of Notre Dame football coach (and former New England Patriots offensive coordinator) Charlie Weis who sued two surgeons for medical malpractice for allegedly botching his care after gastric bypass surgery. Weis alleged the surgeons acted negligently when they allowed him to bleed internally for 30 hours after gastric bypass surgery before performing a second surgery to correct the complication.

Update: the online edition of the Boston Herald reported Tuesday that a Boston jury has just exonerated the two surgeons of any wrongdoing in the medical malpractice case. The doctors' defense had been that Weis ignored their medical advice, and crammed the surgery into a timeline weeks shorter than they had recommended.

The medical malpractice lawyers at D’Amore & Associates are experienced in all types of medical malpractice and medical negligence claims. Our medical malpractice attorneys routinely work with a variety of medical experts to determine the cause of the negative medical outcomes and assess accountability. We can provide you with a FREE consultation to evaluate your case.