Austin Personal Injury Lawyer - Medical Malpractice

Tort Reform Not Working In Ohio

Brooks Schuelke — Sat, 29 Mar 2008 10:31:43 GMT

One of the benefits of tort "reform", according to its supporters, is that reform is supposed to increase access to care by making more physicians available. But in Ohio, the data is now in. Five years after the state enacted medical malpractice caps, there are fewer doctors delivering babies.

Recent data also questions the claim that tort reform was necessary due to rising insurance rates. Data now suggests that the insurance rates have slowed across the board and the rates are generally equal in states that did not enact tort reform and those states that did enact some type of reform.

Originally posted at InjuryBoard by Brooks Schuelke

Many Doctors Requiring Arbitration Agreements

Brooks Schuelke — Fri, 28 Mar 2008 10:13:22 GMT

In a disturbing new trend, many doctors and other medical groups are requiring patients to enter into arbitration agreements prior to the doctors providing medical care. There are many problems with pre-dispute arbitration agreements, and the biggest in my mind is that the patient is giving up rights without the benefit of counsel. Most people don't know that arbitration can be as expensive as litigation. Most people don't know what rights they are giving up when they sign arbitration agreements. Most people don't know what procedures will be used in the arbitration. Most people don't know that there is a difference between the organizations used to conduct the arbitration. The doctor that had the agreement drafted by its counsel gets the benefits of advice on these issues. The patient doesn't.

I am not opposed to arbitration per se. But I believe that an arbitration agreement should be carefully tailored to the dispute. That can't happen if the arbitration agreement is signed in advance of the dispute without any advice being provided to the patient.

I have previously written about arbitration in the medical malpractice context here. Other links of interest on this topic include:

Consumerist
Healthcare Neutral ADR Blog
TortDeform

Originally posted at InjuryBoard by Brooks Schuelke

It's Bigger Than AIDS; It's Bigger Than Breast Cancer; It's Bigger Than Auto Accidents

Brooks Schuelke — Wed, 19 Mar 2008 08:17:21 GMT

"It's bigger than AIDS. It's bigger than breast cancer. It's bigger than auto accidents. And yet no one seems to really be aware of the problem."

That's a quote from Dennis Quaid talking about medical errors. Over 100,000 people a year are killed by medical errors, but the public doesn't seem to know about the problem. Though his twins are doing fine after their well publicized experience with medical malpractice, Dennis Quaid wants to publicize the problem that is taking needless lives. One of his first attempts to spread the word was his weekend interview with 60 minutes, where the Quaids discussed their ordeal. You can watch the entire story below:

Originally posted at InjuryBoard by Brooks Schuelke

John Ritter Medical Malpractice Case Comes to An End

Brooks Schuelke — Mon, 17 Mar 2008 09:43:43 GMT

We had previously posted about the medical malpractice case filed by John Ritter's widow. After a long and grueling trial, the case came to a close last Friday when the jury found that the two remaining doctors had not committed medical malpractice in providing treatment to the actor. Prior to this trial, the hospital and other entities had entered settlements with the family.

The case can be a lesson about medical malpractice claims. From reading articles on the story, it appears that the jury was hung up on causation. In a medical malpractice case, a plaintiff must not only prove that the doctors acted negligently, but also that the negligence caused the harm. As demonstrated by this case, that can often be difficult. The two doctors in the trial argued that they didn't cause the death because it was too late --- John Ritter was already having a heart attack when they saw him, and Mr. Ritter was not going to survive regardless of what the doctors did.

This is a common defense in medical malpractice cases. Many doctors won't contest that they were negligent, but they argue that their negligence didn't cause the underlying harm. For example, when a plaintiff is claiming that a doctor was negligent in failing to diagnose a condition, the plaintiff must show that the diagnoses should have been made in time to make a difference in the patient's life. Similarly, if a doctor delays in providing some treatment, the plaintiff must prove that the delay caused some significant injury (while a delay in treatment often means the patient unnecessarily contines with pain for a while, that pain alone is rarely enough to justify the expense of a medical malpractice trial).

Originally posted at InjuryBoard by Brooks Schuelke

Doctors Billing For Medical Malpractice

Brooks Schuelke — Sun, 02 Mar 2008 13:31:36 GMT

There has been a bit of a debate recently about doctors and hospitals billing for services when they commit medical malpractice. Indeed, since last fall, hospitals in 10 states have agreed to waive fees for certain errors called "never events" because experts say they should never happen.

But MSNBC has a new story about a medical malpractice charge that may take the cake. As the story says:

When Kevin Baccam of Urbandale, Iowa, went in for hernia surgery in August 2005, he expected to come home with a scar on the right side of his groin.
But the 33-year-old school district controller actually wound up with two scars in the delicate region --- one to each side --- after the surgeon mistakenly operated on the left and had to start over.
Nearly as painful, Baccam said, was when he opened his mail a few weeks later and saw his health insurance had been billed for both operations.

It's one thing to charge for a surgery that you were supposed to perform but simply screwed up. But it's an entirely separate matter to perform the wrong procedure and then try to bill the patient or his health insurance for the wrong surgery.

I suppose the only "fortunate" thing about this is that there is no better way to get a jury upset and ready to punish a defendant than some egregious conduct like this.

Originally posted at InjuryBoard by Brooks Schuelke

Texas Medical Malpractice Caps Challenged

Brooks Schuelke — Fri, 29 Feb 2008 14:31:43 GMT

Former Dallas Cowboy Ron Springs and 11 other plaintiffs filed suit Monday seeking an order from a judge that Texas's medical malpractice caps violate various provisions of the United States Constitution. The challenge is the first federal constitutional challenge to the statute.

We will try and keep you posted as the case progresses.

Originally posted at InjuryBoard by Brooks Schuelke

Are Texas's Medical Malpractice Caps Constitutional?

Brooks Schuelke — Thu, 14 Feb 2008 12:39:26 GMT

Some lobbyist groups would like to believe so, and they've filed a new suit to try and prove it. The case stems from a medical malpractice case in Corpus. There, a Corpus doctor was sued by one of his patients after the patient developed a severe infection after a surgery. In the suit, the patient asserted that the medical malpractice damage caps violated several provisions of the Texas Constitution. The doctor and the lobby groups filed suit earlier this week in Travis County seeking a declaration that the caps are constitutional.

This is a highly unusual procedural move. Most of the time the constitutional issues are litigated at the same time as the underlying case. It's my belief that the Travis County courts will ultimately find that is the proper route, and send the case back to Corpus.

The San Antonio Express News has an article on the case that quotes me.

Originally posted at InjuryBoard by Brooks Schuelke

Arbitration in the Medical Malpractice Context

Brooks Schuelke — Wed, 13 Feb 2008 09:43:35 GMT

This weekend, the Philadelphia Inquirer wrote about a disturbing trend of mandatory arbitration agreements showing up in the medical malpractice context. The article states:

Within the space of two weeks late last year, Michael and Hedy Cohen, who happen to be experts on medical errors, each encountered what they saw as a disturbing development in the modern doctor-patient relationship.
They were asked by two groups of suburban doctors to sign away their right to a jury trial in the interest of reducing malpractice costs.
Legal experts say such attempts to channel potentially unhappy patients away from the court system and into arbitration are becoming increasingly common in health care

We are not against arbitration per se. Many disputes can be resolved in arbitration. But many problems arise with pre-dispute arbitration agreements. Without anyone counseling them on the subject, consumers agree to arbitrations with rules the consumers don't understand, agree to processes that may be much more expensive than they can imagine, and agree to use arbitrators that may not be appropriate for the future disputes. Given the few minutes that patients have to read agreements before appointments, there is simply no way for a patient to get any advice on whether the arbitration agreement adequately protects their rights.

Fortunately, this risk might be addressed by Congress. An arbitration fairness act is currently winding its way through the process, and its passage may bring relief to consumers. Until then, we urge you to watch your agreements closely and consider the risks you are taking by signing arbitration agreements.

Originally posted at InjuryBoard by Brooks Schuelke

Nursing Home Agreements May Violate the Law

Brooks Schuelke — Tue, 05 Feb 2008 08:03:52 GMT

The February 2, 2008 Kansas City Star reports on a study from the National Senior Citizens Law Center that finds that many nursing home agreements may be violating state and federal law.

Eric Carlson, the study's author, said that some of the agreements conflict with the federal Nursing Home Reform Law and state laws. The federal law requires nursing homes to provide care that helps residents reach the "highest practicable" level of functioning.
But Carlson said some agreements instead seek to get seniors or their families to lower their expectations of care and assume more of the risks of injury, such as falling or choking.

The study further points out that upon admissions, when families are often in a crises situation, families must be diligent about reviewing documents to make sure that the families aren't giving up important legal rights.

Originally posted at InjuryBoard by Brooks Schuelke

John Ritter -- A Medical Malpractice Case Still Worth Taking

Brooks Schuelke — Mon, 04 Feb 2008 09:48:06 GMT

Tomorrow, a medical malpractice trial is scheduled to start involving the death of actor John Ritter (the family has previously settled with the hospital involved). In the trial, the Ritter family is seeking an award of $67 million, an amount that the family claims Mr. Ritter would have earned for his continued acting on the show "8 Simple Rules For Dating My Teenage Daughter."

The case is a prime example of the disparity of caps on damages. Texas law allows victims of medical malpractice to recover their economic damages (such as lost wages), but caps the amount that can be recovered for non-economic damages (mental anguish, impairment, etc). Because Mr. Ritter was a high wage earner, his claim is economically viable. And it's the same for most other wage earners; if the victim made a decent wage before his or her death, and there is a surviving spouse or other dependent relying on those wages, then the malpractice claims may be viable. But if it was Mr. Ritter's daughter (or his retired mother or father) that had been the victim of the same conduct, then her claim, in Texas, would have likely been limited to $250,000, and her family would have a very difficult time finding a lawyer to take her case.

And this discrimination is one of the problems with damage caps. The caps inherently say that the life of a child, or an elderly person, or a stay-at-home mom isn't worth as much as someone that's employed.

MSN has an interview with Mr. Ritter's widow that discusses the case.

Originally posted at InjuryBoard by Brooks Schuelke