Latest News

23 Mar, 2015

Malpractice Payments Decrease

2018-04-23T23:57:54-05:00March 23rd, 2015|Medical Malpractice, Midwest Medical Legal Advisor, Risk Management, Tort Reform|

According to a new study appearing in the Journal of the American Medical Association, in the past ten years, the rate of medical malpractice claims resulting in some sort of payment has seen a drastic reduction. The study examined data from the National Practitioner Data Bank and the American Medical Association's Physician Masterfile to identify trends in the frequency of claims against doctors over a 19 year time period ending [...]

23 Dec, 2014

Selfies are fun (unless you are performing surgery)!

2018-04-23T23:57:55-05:00December 23rd, 2014|Disciplinary Actions, Health Care Law, HIPAA, Medical Malpractice, Midwest Medical Legal Advisor|

Let's be honest.  Selfies are fun.  They are great ways of capturing the moment.  Like my daughter and I on the merry-go-round at FunPlex this summer.  Selfies can also get you in lots of trouble. I can honestly say I have  never had a doctor or other health care provider ask whether taking a selfie during surgery is a good idea.  It's not.  As some doctors in China recently discovered. [...]

16 Dec, 2014

Contracts for Doctors

2018-04-23T23:57:55-05:00December 16th, 2014|Health Care Law, Medical Malpractice, Midwest Medical Legal Advisor, Risk Management|

It is not unusual for a doctor to be asked to sign a contact governing his or her employment and/or ownership of a business as a doctor.  The issues to consider in reviewing these contracts are many: -          Med mal insurance -          Staffing (nurses, assistants, etc) -          Provision of medical equipment -          Billing -          Compensation structure -          Employee versus owner -          Non complete clauses -          Non solicitation clauses -          Scope of [...]

10 Dec, 2014

Black box to be used to record surgery?

2018-04-23T23:57:55-05:00December 10th, 2014|Health Care Law, HIPAA, Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor, Nebraska Hospital-Medical Liability Act, Risk Management|

Surgeons: how would you like every move of the surgeries you perform recorded with a “black box” type device?  Such a device would make a record of every movement during a surgery, and potentially, provide real-time feedback to identify mistakes.  Not only would it record the surgery itself, it could record every word uttered by the medical team during a surgery. The potential and hopeful benefits include improved results and reduced [...]

11 Nov, 2014

“Landmark” Informed Consent Case: Physician Not Liable

2018-04-24T00:00:14-05:00November 11th, 2014|Health Care Law, Medical Malpractice, Midwest Medical Legal Advisor|

In a case decided in June of 2014 described as “landmark,” the Washington Supreme Court held in favor of a physician as to claims of lack of informed consent. Generally, informed consent addresses the need for a physician to advise the patient of the risks, benefits and alternatives to certain treatment or procedures for a medical condition before the care is undertaken.  The usual standard is then that a reasonably [...]

7 Oct, 2014

Ebola in Texas!

2018-04-23T23:57:55-05:00October 7th, 2014|Health Care Law, Medical Malpractice, Midwest Medical Legal Advisor|

Earlier, I blogged about two NMC employees being fired for viewing Dr. Sacara’s medical records without authorization.  Dr. Sacara had been treated for Ebola at NMC. Recently, a man in Texas was diagnosed with Ebola.  This is different from Dr. Sacara, who was being treated at NMC for Ebola.  In other words, NMC knew of Dr. Sacara’s condition.  The Texas patient contacted Ebola in Liberia, traveled to the United States [...]

28 Aug, 2014

No Sweeping Under the Rug

2018-04-24T00:00:14-05:00August 28th, 2014|Health Care Law, Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor, Risk Management, Tort Reform|

It happed in California several weeks ago.   After 2 ½ days of jury deliberation, the jury awarded a $4 million verdict against a hospital for allegedly covering up the cause of the post-operative death of a patient.  The jury did not find that the hospital committed malpractice and did not award punitive damages (which cannot be awarded in Nebraska). The patient had a surgical cervical disc.  Post operatively he had [...]

21 Aug, 2014

Who is getting the money?

2018-04-24T00:00:14-05:00August 21st, 2014|Medical Malpractice, Midwest Medical Legal Advisor, Tort Reform|

When it is determined that a medical malpractice / professional negligence lawsuit or claim needs to be settled, or when one of the few times a jury sides with the patient, money is paid.   Don’t be dismayed by what actually happens to the money.  Between contingent fee lawyer contracts paying the plaintiff’s lawyers up to 50% (these actually happen in Nebraska), to exorbitant expert witness fees to huge health are [...]

29 Jul, 2014

A success story: one clinic’s reduction of med-mal claims.

2018-04-23T23:57:55-05:00July 29th, 2014|Health Care Law, Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor, Risk Management, Tort Reform|

A hospital in Connecticut recently reported a drastic drop in both claims made and settlements paid after a safety training regime aided by the hospital’s med-mal insurer. In 2004, the hospital joined with its med-mal insurer in an effort to increase patient safety and in turn decrease claims made and amounts paid. Here’s what they did: -          standardized care, -          implemented new teamwork protocols, and -          enhanced oversight of clinical [...]

22 Jul, 2014

John Hopkins to pay $190 million for spying doctor.

2018-04-23T23:57:55-05:00July 22nd, 2014|Health Care Law, HIPAA, Medical Malpractice, Midwest Medical Legal Advisor, Risk Management|

A recent report by CNN indicates that John Hopkins has agreed to a whooping $190 million settlement in a case involving a gynecologist who was alleged to have secretly photographed and recorded his more than 7000 patients. Dr. Nikita Levy was fired in February 2013 after the Baltimore based health care system discovered he had been using a pen-like camera around his neck to snap photographs of patients.  A diligent co-worker suspected [...]

8 Jul, 2014

Florida throws out caps in med mal cases

2018-04-23T23:57:55-05:00July 8th, 2014|Health Care Law, Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor, Nebraska Hospital-Medical Liability Act, Tort Reform|

It's time for my somewhat regular update regarding the latest state to address the constitutionality of caps on damages in medical malpractice lawsuits.  Previously, I have discussed Kansas and Missouri and their judicial treatment of such caps. In its recent decision, the Florida Supreme Court threw out the state's statutory cap on non-economic damages in medical malpractice cases as violating the Equal Protection Clause of Florida's Constitution.  In a blistering [...]

27 Mar, 2014

He said she said he heard it from a friend….

2018-04-23T23:57:55-05:00March 27th, 2014|Health Care Law, HIPAA, Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor|

REO Speedwagon might have been discussing the Nebraska Supreme Court's recent opinion in C.E. v. Prairie Fields Family Medicine, P.C., 287 Neb. 667 (2014) in their famous song, "Take it on the Run." The Prairie Fields case dealt with the issue of whether a patient could sue a medical provider for intentional and negligent infliction of emotional distress for the alleged unauthorized disclosure of that patient's testing positive for HIV. In [...]

13 Feb, 2014

Questionable Autopsy Could Lead to Exposure for Physician

2018-04-23T23:57:55-05:00February 13th, 2014|Health Care Law, Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor|

 In an opinion released last week by the Nebraska Supreme Court, it indicated that a forensic pathologist who performed a poor autopsy could be liable for malicious prosecution when that autopsy formed part of the basis of criminal charges against a daycare provider. In McKinney v. Okoye, 287 Neb. 261 (2014) the Nebraska Supreme Court considered a malicious prosecution claim brought against a forensic pathologist whose testimony contributed to charges [...]

23 Jul, 2013

Malpractice Litigation: The Neverending Story?

2018-04-24T00:00:15-05:00July 23rd, 2013|Medical Malpractice, Midwest Medical Legal Advisor, Tort Reform|

 You have been sued.  How long until there is resolution of a professional negligence lawsuit?  Six months?  A year?  Maybe two?   Pyramids have been built faster than some cases get resolved. All participants want civil litigation over in a reasonable time, but medical malpractice lawsuits can become long and drawn out.  As noted in the Nebraska Supreme Court opinion of Simon v. Drake, M.D.,285 Neb. 784, __ N.W.2d __ (2013), [...]

25 Jun, 2013

The Impact of Unnecessary Surgery

2018-04-23T23:57:56-05:00June 25th, 2013|Health Care Law, Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor, Nebraska Hospital-Medical Liability Act, Risk Management, Tort Reform|

A recent article in USA Today posits that doctors perform thousands of unnecessary surgeries every year.  It claims that unnecessary surgeries might account for 10% to 20% of all operations in some specialties, including a wide range of cardiac procedures.  It generally cites three reasons as the cause of the problem: - doctors who enrich themselves by bilking insurers for operations that are not medically justified; - doctors who simply lack the competence [...]

14 Jun, 2013

The National Practitioner Databank

2018-04-23T23:57:56-05:00June 14th, 2013|Disciplinary Actions, Health Care Law, Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor, Risk Management|

No doctor wants to be the target of a medical malpractice lawsuit.  Nor does any doctor want to be reported to the National Practitioner Databank.  I recently argued before the Eighth Circuit Court of Appeals in an attempt to remove a doctor’s name and report from the Databank. My main take-away from this experience: if and when you receive notice that you are the subject of a disciplinary proceeding where [...]

7 Jun, 2013

Doctors-in-Training Have Only 8 Minutes Per Patient

2018-04-23T23:52:20-05:00June 7th, 2013|Health Care Law, Medical Malpractice, Midwest Medical Legal Advisor|

How much time should a physician spend with their patient? In an ideal world, the answer would be as much time as needed.  Yet, according to a new study conducted by researchers from the John Hopkins University and the University of Maryland, gone are the days where new physicians had the time to truly get to know the individuals they treat.   This new study found that physicians-in-training spend about eight minutes per day [...]

22 May, 2013

Is the Patient’s/Plaintiff’s Expert Witness Qualified to Testify Against You?

2018-04-24T00:00:15-05:00May 22nd, 2013|Health Care Law, Medical Malpractice, Midwest Medical Legal Advisor, Tort Reform|

Many years ago, in a Nebraska gynecological case alleging medical malpractice, an oncologist testified favorably as to the applicable standards of care relating to the defendant physician.   After the jury returned a verdict for the defense, the plaintiff appealed this inclusion of this expert witness’ opinions to the jury.  The Nebraska Court of Appeals upheld the decision in Hoffart v. Hodge, M.D, 9 Neb. App. 161, 609 N.W.2d 397 (2000).  [...]

17 May, 2013

Monetary Value of Malpractice Claims is Steadily Declining

2018-04-23T23:52:20-05:00May 17th, 2013|Health Care Law, Medical Malpractice, Midwest Medical Legal Advisor, Tort Reform|

Last week I discussed a new study published by the journal BMJ Quality and Safety that analyzed malpractice claims since 1986 and found errors in diagnosis to be the worst offender for malpractice claims.  This week, my discussion centers on a similar analysis performed by Diedrich Healthcare.  Analyzing data gathered by the National Practitioner Data Bank, Diedrich Healthcare found that out of the $3.6 billion paid out for malpractice lawsuits in [...]

3 May, 2013

Nebraska Supreme Court rules that Physical Therapists are professionals

2018-04-23T23:57:56-05:00May 3rd, 2013|Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor, Risk Management|

Earlier, we discussed whether Physical Therapists are professionals and whether a slip and fall can implicate professional negligence.  Last week, the Nebraska Supreme Court, in Churchill v. Columbus Community Hospital, agreed with my unofficial poll where a full 100% of the therapists polled considered physical therapists to be professionals (full disclosure: my polling sample size was one) and found that a slip and fall at a therapist’s clinic implicated professional negligence. The Churchill [...]

30 Apr, 2013

Hospital Policies: Will They be a Burden or a Benefit to You in Litigation?

2018-04-24T00:10:53-05:00April 30th, 2013|Health Care Law, Medical Malpractice, Midwest Medical Legal Advisor, Risk Management|

Hospital policies are adopted for the purpose of providing a safe environment and quality care to patients.  They are also adopted as a means of preventing liability.  It is becoming increasingly common, however, for policies to be used against health care facilities and providers when litigation arises.  By applying a literal interpretation to a policy that does not provide any flexibility in its terms, the plaintiff is able to argue [...]

26 Apr, 2013

The Debate Over Work Hour Restrictions for Doctors in Training

2018-04-23T23:52:20-05:00April 26th, 2013|Health Care Law, Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor, Risk Management|

Time magazine recently published an article highlighting the controversy surrounding work hour restrictions placed upon doctors in training.  Work hour restrictions were initially enacted by the state of New York in 1987 in response to the death of an 18 year old female, caused by a medication prescribing error made by a resident in the middle of a 30 hour work shift.   As a result of the 18 year old’s death, [...]

16 Apr, 2013

Nebraska’s Good Samaritan Law and the Duty to Rescue

2018-04-23T23:52:20-05:00April 16th, 2013|Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor|

Does anyone remember the last episode from Seinfeld where Jerry, Elaine, George and Kramer end up in jail for failing to help an individual being held up at gunpoint? The arresting police officer cites the town’s “Good Samaritan” law as grounds for the arrest, which purports to impose upon citizens a duty to rescue. Unlike this fictionalized episode from Seinfeld, laws generally do not impose a duty to rescue.  In [...]

12 Apr, 2013

Nevada’s Runaway Jury

2018-04-23T23:57:56-05:00April 12th, 2013|Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor, Tort Reform|

A Nevada jury says the state’s largest health management organization is liable for $24 million in compensatory damages to three plaintiffs in a negligence lawsuit stemming from a hepatitis C outbreak that became public in 2008. That was not all.  Unlike Nebraska, Nevada allows punitive damages.  The plaintiffs’ lawyer asked the jury to hold Health Plan of Nevada and Sierra Health Services responsible for another $1 billion in punitive damages [...]

9 Apr, 2013

Five Do’s and Don’ts of Deposition Preparation

2018-04-24T00:10:06-05:00April 9th, 2013|Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor|

Giving a deposition is a form of communication that is usually completely foreign to health care providers.  The surgeon who is in complete control of her operating suite may find herself utterly lost in a conference room surrounded by attorneys.  Some physicians become old hands at giving depositions, but for newcomers to the arena, emphasizing a few do’s and don’ts can make the process easier: DO Spend the time it [...]

26 Mar, 2013

Expanding Physician-Patient Confidentiality

2018-04-23T23:52:20-05:00March 26th, 2013|HIPAA, Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor, Risk Management|

On December 20, 2012, the Florida Supreme Court expanded the already far reaching scope of doctor-patient confidentiality.  In the case of Hasan v. Garvar, 2012 WL 6619334 (Fla.), a patient sued a dentist (referred to as Dentist #1 for purposes of this post) after the dentist failed to diagnose and treat a dental condition resulting in a bone infection. The patient subsequently sought treatment from a second dentist.  (Dentist #2).  Dentist [...]

22 Mar, 2013

Oregon passes law allowing presuit mediation of malpractice claims

2018-04-23T23:57:56-05:00March 22nd, 2013|Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor, Risk Management, Tort Reform|

Oregon recently passed a law, Senate Bill 483, creating a new mediation process for patients injured by medical mistakes.  The law allows injured patients to confidentially discuss, at a mediation, their claim and a possible settlement with the medical provider where the alleged negligence occurred.  What is the upside to this bill?  Participation is obviously voluntary.  Most significantly, the discussions would not be admissible in court if a lawsuit is [...]

12 Mar, 2013

Kansas: 1 Missouri: 0. The score on the constitutionality of non-economic damage caps

2018-04-23T23:57:56-05:00March 12th, 2013|Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor, Tort Reform|

Kansas recently became the eighteenth state to hold that statutory caps on non-economic damages are constitutional.  The court in Miller v. Johnson, No. 99,818 (Kan. Oct. 5, 2012) held that a Kansas statute did not violate the plaintiff's right to a trial by jury, due process, or equal protection, nor did it violate the separation of powers. The Miller court cited a number of familiar reasons for upholding the statutory cap [...]

1 Mar, 2013

Issues with high-low agreements in the medical malpractice context

2018-04-23T23:57:56-05:00March 1st, 2013|Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor, Risk Management|

Should a high-low agreement waive the right to appeal?  Waiving the right to appeal, and the finality that this brings, is a potential benefit.  However, giving up the right to challenge any error or impropriety in the proceedings has its own risks, including dealing with an overzealous opposing attorney, who may be more willing to push the envelope at trial, knowing that an appeal has been waived.  It is at [...]

26 Feb, 2013

Hospital Employed Physicians May Face Conflicts of Interest

2018-04-24T00:10:06-05:00February 26th, 2013|Health Care Law, Medical Malpractice, Midwest Medical Legal Advisor|

Between 2000 and 2010, the number of doctors employed by hospitals grew by 32 percent, to 212,000.  This unmistakeable trend raises serious questions about potential conflicts of interest that such employment arrangements may create.  For example, some physicians have reported that their hospital employer requires them to use in house lab facilities when the physicians have received better results or better service from an outside lab.  Others have reported that [...]

22 Feb, 2013

The Failure to Pass Board Examinations as Evidence in a Medical Malpractice Trial

2018-04-23T23:52:20-05:00February 22nd, 2013|Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor|

So, you didn't pass your medical boards?  Or you didn't pass your medical boards on your first try?  Worried how it might affect your career as a physician?  Well, you can rest easy when it comes to malpractice suits.  Generally, a defendant physician's failure to pass board certifications is not admissible as to whether a physician complied with the standard of care.  While performance on a board certifying examination might [...]

18 Feb, 2013

Don’t Let Your Medical Record Invite Litigation

2018-04-24T00:10:06-05:00February 18th, 2013|Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor, Risk Management|

The medical record can be your best friend or your worst enemy in litigation.  More than that, a well documented record can prevent a lawsuit altogether.  In order to see how, one must understand the process of how a lawsuit comes to pass.  Whenever there is an unexpected or untoward outcome, the patient or the patient's family will have many questions.  The first and best source to answer those questions [...]

15 Feb, 2013

High-low Agreements in the Medical Malpractice Context

2018-04-23T23:57:57-05:00February 15th, 2013|Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor, Nebraska Hospital-Medical Liability Act, Risk Management|

In negotiating a high-low agreement in the medical malpractice context, there are any number of issues to consider, including whether a settlement pursuant to such an agreement is reportable to the National Practitioner Data Bank (“NPDB”), whether to waive post-trial motions and the right to appeal, how to deal with comparative fault, taxation of costs, and a hung jury. Generally speaking, a high-low agreement is a contract used to limit [...]

7 Feb, 2013

Would Streamlining the Malpractice System Reduce Defensive Medicine?

2018-04-24T00:10:06-05:00February 7th, 2013|Health Care Law, Medical Malpractice, Midwest Medical Legal Advisor, Tort Reform|

Dr. Robert Glattner posted a very interesting article on Forbes.com yesterday that discusses the need for malpractice reform.  It is well worth the read.  I do have a couple of criticisms of his thesis, however. First, Dr. Glattner cites a recent RAND Corporation study for the proposition that "waiting for the resolution of [malpractice] claims can take up more than 10 percent of the average medical career."  While the study [...]

2 Feb, 2013

Falling on Your Scalpel: Admitting Fault in Medical Malpractice

2018-04-24T00:10:06-05:00February 2nd, 2013|Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor, Risk Management|

In a previous post, I discussed the potential use of an apology to head off medical malpractice litigation.  In this post, I will discuss situations where a complete admission of fault may help bring about a more favorable outcome in such litigation.  Before I do so, however, I want to direct you to a superb article on the subject of physician apologies that was published last week by the Boston [...]

29 Jan, 2013

What is Malpractice?

2018-04-23T23:57:57-05:00January 29th, 2013|Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor|

What constitutes “malpractice?”  If a patient slips and falls while at the doctor’s office, does that implicate professional negligence?  Generally speaking, malpractice is defined as treatment by a doctor in a manner contrary to accepted standards of care which results in injury to the patient.  In Nebraska, medical malpractice and professional negligence are defined as follows: "Malpractice or professional negligence shall mean that, in rendering professional services, a health care provider [...]

16 Jan, 2013

Are Physical Therapists Professionals?

2018-04-23T23:57:57-05:00January 16th, 2013|Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor|

According to the U.S. Bureau of Labor Statistics, there were 198,600 physical therapists in 2010.  Over the next 10 years, that number is expected to grow by 39%.  If you ask any physical therapist if he or she consider themselves to be a professional, the vast majority would likely answer in the affirmative.[1]  In my unofficial poll, a full 100% of the therapists polled considered physical therapists to be professionals.  [...]