LDM MedMal Forum

26 Jan, 2023

Be Mindful of Ethical Codes that Impact What Your Client or Witness Can Produce

2023-01-26T09:13:13-06:00January 26th, 2023|LDM MedMal Forum|

Cases that involve alleged brain injury often turn on expert battles over the results of sophisticated neuropsychological testing.  These tests—such as the Minnesota Multiphasic Personality Inventory, the Luria-Nebraska Neuropsychological battery, and the Weschler Adult Intelligence Scale—represent the culmination of decades of specialized research.  And these tests can often provide key insights into the examinees’ cognitive abilities. Like any test, these neuropsychological batteries can be gamed if the examinee has enough [...]

24 Jan, 2023

Recent Legislation Proposes Extreme Increases in Medical Malpractice Damages Caps

2023-01-24T09:04:49-06:00January 24th, 2023|LDM MedMal Forum|

Amid unprecedentedly high verdicts recently awarded in Nebraska and other Midwest states, two bills were introduced this month in the Nebraska Legislature to amend sections of the Nebraska Hospital-Medical Liability Act (“Act”).  Under this Act, damages against qualified healthcare providers for medical malpractice claims are capped at $2.25 million.  To be a qualified provider under the Act, healthcare providers must be insured in the amount of $500,000 for each occurrence [...]

16 Jan, 2023

A New Study Finds Significant Misdiagnoses in Emergency Rooms — But is it a False Alarm?

2023-01-16T09:57:08-06:00January 16th, 2023|LDM MedMal Forum|

A new report issued by the Agency for Healthcare Research and Quality (AHRQ), dated December 15, 2022, alleges: “About 5.7% of patients seen in the emergency department (“ED”) receive an incorrect diagnosis with about 2.0% experiencing an adverse event because of the incorrect diagnosis; some of these adverse events are serious (~0.3%). This translates to about 1 in 18 ED patients receiving an incorrect diagnosis, 1 in 50 suffering an [...]

6 Jan, 2023

No . . . You May Not Be Able to Use ALL of the Plaintiff’s Medical Records to Defend Your Case

2023-01-09T12:26:58-06:00January 6th, 2023|LDM MedMal Forum|

There is a great misconception that all of the plaintiff’s medical records may be used in your defense when your patient sues you for medical malpractice.   That is not true.  Generally, medical records are hearsay (out of court statements) and are not admissible in court proceedings to use in your defense unless an exception to the hearsay rule applies.  Good news-there are such exceptions; bad news-the exceptions are not as [...]

5 Jan, 2023

How Long Must Audit Logs Be Retained?

2023-01-05T12:02:03-06:00January 5th, 2023|LDM MedMal Forum|

Any electronically stored information that an entity collects, stores, and transmits that may identify a patient is considered electronic protected health information (ePHI). To protect their patients’ ePHI, a covered healthcare entity must implement hardware, software, and/ or procedural mechanisms that record and examine activity on the entity’s network. 45 CFR §164.312 (b). With almost all medical files being stored electronically today, audit logs are critical to an entity’s security [...]

17 Dec, 2022

Spoliation of Evidence in Medical Malpractice Cases: What is it and What are the Consequences?

2022-12-13T16:58:21-06:00December 17th, 2022|LDM MedMal Forum|

This blog has previously touched on importance of accurately documenting an Electronic Medical Record [EMR]. Document, Document, Document - Accurately! - Lamson Dugan & Murray LLP (ldmlaw.com). As the post explained, the “slightest discrepancy or ambiguity may result in protracted litigation.” But what happens when certain documents are deleted or are removed from the electronic medical record before or during litigation? This action may invoke a legal doctrine called spoliation. [...]

13 Dec, 2022

The Smiling Tiger: Think Twice About the Production of Correspondence With the Iowa DIA

2022-12-13T16:49:59-06:00December 13th, 2022|LDM MedMal Forum|

I have had countless Plaintiffs’ attorneys ask for various forms of evidence involving interactions between the Iowa Department of Inspections and Appeals (DIA) and our client. And why wouldn’t they? The Iowa DIA works together with hospitals and medical providers to produce the best possible healthcare. Their inspections and subsequent findings are intended to find areas of improvement, not to identify breaches in the standard of care. To dig-up evidence [...]

14 Nov, 2022

$111 Million Verdict Assessed Against Minnesota Surgical Practice — Could it Happen in Nebraska or Iowa?

2022-11-14T17:59:18-06:00November 14th, 2022|LDM MedMal Forum|

This past summer saw a Minnesota federal jury deliver what may be the state’s largest medical malpractice verdict to date. Though outside the jurisdictions LDM generally provides services in, this verdict offers an opportunity for defense practitioners to assess whether their clients may be at risk of incurring similar substantial judgments. The case, Thapa v. St. Cloud Orthopedic Associates, Ltd., arose from an injury a college student sustained during a [...]

9 Nov, 2022

What to Expect at Mediation

2022-11-09T14:22:45-06:00November 9th, 2022|LDM MedMal Forum|

If you are involved in litigation, you have likely heard that most medical negligence cases are resolved prior to trial. You may not know the mechanics of how lawsuits reach resolutions. One of the most common methods is mediation. Mediation is a process in which the parties to a lawsuit meet with a neutral person (a mediator) who assists the parties with negotiating a settlement of the case. In recent [...]

4 Oct, 2022

Can a Nurse Be Sued for Following a Physician’s Order?

2022-10-04T11:51:45-05:00October 4th, 2022|LDM MedMal Forum|

Consider a scenario whereby an attending physician gives orders to a nursing staff to monitor a patient and report to the physician any changes in the patient’s condition.  Despite the nursing staff’s constant monitoring, quick reporting to the attending physician, and implementation of further physician-guided treatment, the patient takes a turn for the worse.  Will a lawyer be able to point the finger at those nurses and say they owed [...]

3 Oct, 2022

How Private is Your Cell Phone Usage Once a Malpractice Case is Filed?

2022-10-03T18:39:38-05:00October 3rd, 2022|LDM MedMal Forum|

According to recent studies, most physicians and other health care providers (HCPs) use smartphones at work for a variety of purposes.  These include accessing electronic health records, communicating with patients and other HCPs, managing their schedules, viewing live monitoring data from remote locations, and consulting with apps downloaded to provide drug, diagnostic, and treatment information…in addition to using them for personal communication.  As a result, boundaries between professional and personal [...]

19 Sep, 2022

When Does the Clock Start? Bogue v. Gillis Clarifies the Continuous Treatment Doctrine in Nebraska

2022-09-26T10:14:50-05:00September 19th, 2022|LDM MedMal Forum|

Understanding the statute of limitations for any case is an essential first step.  However, determining whether a claim was timely filed is not always clear in medical malpractice cases.  This is especially true when the patient continues receiving treatment after the alleged negligence. Under the Nebraska Hospital-Medical Liability Act, a patient must bring a medical malpractice lawsuit within two years of the allegedly wrongful act, or if such wrongful act [...]

26 Aug, 2022

Document, Document, Document — Accurately!

2022-09-19T14:27:59-05:00August 26th, 2022|LDM MedMal Forum|

In defending medical malpractice cases, we are often faced with issues pertaining to the accuracy of the medical records.  It was originally thought that Electronic Medical Records (EMR) would provide a completely accurate contemporaneous record of what occurred in the medical care.  Unfortunately, EMR is only as good as the efforts used to correctly input the data.  Even the slightest discrepancy or ambiguity may result in protracted litigation. In the [...]

17 Aug, 2022

Emotional Damages Alone are Not Enough for a Malpractice Case in Iowa

2022-08-17T08:06:11-05:00August 17th, 2022|LDM MedMal Forum|

The general rule in Iowa is emotional distress damages are not recoverable in torts, “absent intentional conduct by a defendant or some physical injury to the plaintiff”.  Miranda v. Said, 836 N.W.2d 8, 14 (Iowa 2013).  This rule recognizes there is no duty in tort law to avoid causing emotional damages.  Id.  The duty to exercise ordinary care to avoid causing emotional harm is recognized only when supported by the [...]

18 Jul, 2022

COVID and Juror Attitudes About Science

2022-07-18T13:59:48-05:00July 18th, 2022|LDM MedMal Forum|

Fresh from a mistrial due to COVID causing the jury panel to be deficient in number, I was thinking of some non-scientific observations about jurors, jury selection, and jury pools during our ongoing COVID era. Some juror’s attitudes have changed our jury venire and the possible areas of inquiry to “deselect” jurors in a very scientific area of litigation:  medical malpractice lawsuits. Here are some observations and areas of inquiry [...]

13 Jul, 2022

Beware the Risk of the “Lapsed” License in Professional Licensure Actions

2022-07-13T09:20:30-05:00July 13th, 2022|LDM MedMal Forum|

Despite practicing in only one state, many physicians maintain licenses to practice in multiple states.  Some maintain active licenses in states where they no longer practice just in case they decide to return at some time in the future.  Others allow the licenses to lapse and become inactive, having no intention of practicing in the former state again.  Physicians holding more than one medical license, whether active or inactive, should [...]

6 Jul, 2022

Iowa Supreme Court Applies Statute of Repose to “Failure to Inform” Cases

2022-07-06T17:50:11-05:00July 6th, 2022|LDM MedMal Forum|

In Downing v. Grossman, an April 2022 decision, the Iowa Supreme Court reaffirmed that medical malpractice plaintiffs may not use allegations of fraudulent concealment to employ equitable estoppel to eviscerate the operation of Iowa Code § 614.1(9)’s a statute of repose when the alleged fraudulent concealment goes to the very “heart of” a plaintiff’s claim. To understand Downing, it is important to keep in mind the similarities and differences between [...]

29 Jun, 2022

Don’t Let Medicaid Reimbursement Impact Settlements – SCOTUS Rules Medicaid Can Seek Reimbursement for Future Medical Expenses

2022-06-29T12:23:47-05:00June 29th, 2022|LDM MedMal Forum|

The Supreme Court of the United States recently expanded the ability of states to recoup health care costs from accident victims under the Medicaid Act. The case, Gallardo v. Marstiller, involved injuries sustained by a plaintiff when she was hit by a motor vehicle as she stepped off a school bus in Florida.  Florida’s Medicaid agency paid $862,688.77 for Ms. Gallardo’s initial medical expenses.  Ms. Gallardo, through her parents, sued the [...]

19 Jun, 2022

No, You Don’t Have to Talk

2022-06-27T18:39:29-05:00June 19th, 2022|LDM MedMal Forum|

When recently defending my physician client in a medical malpractice deposition, Plaintiff’s counsel started asking questions outside the lines. I objected and he immediately retorted back that I did not know the Rules of Evidence and that his questions were legitimate. He claimed certain testimony privileges only apply in criminal matters. I stood on my objections and my physician client followed my lead and did not answer the questions. But [...]

15 Jun, 2022

Strict Liability of Hospitals Under EMTALA

2022-06-15T08:16:21-05:00June 15th, 2022|LDM MedMal Forum, Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor|

In 1986, Congress enacted the Emergency Medical Treatment and Active Labor Act (“EMTALA”), 42 U.S.C.S. § 395dd, which requires treatment of any person coming to an emergency department regardless of their insurance status or ability to pay.  This is commonly referred to as the “anti-dumping” law.  Although EMTALA is a federal regulation, hospitals and other healthcare facilities are subject to civil liability for EMTALA violations.  Thus, it is important for [...]

6 Jun, 2022

Billed v. Paid Medical Expenses: The Retail Price Isn’t Always the Fair and Reasonable Value of Medical Services

2022-06-06T08:31:55-05:00June 6th, 2022|LDM MedMal Forum, Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor|

In Nebraska, comparing what is charged in medical expenses to what was actually accepted as a complete payment of those medical expenses, including the patient deductible, is important in litigating every medical malpractice case. The measure of recovery for medical expenses is the reasonable value of the medical services rendered. Stanek v. Swierczek, 209 Neb. 357, 307 N.W.2d 807 (1981). Plaintiff's attorneys frequently cite a provision of Nebraska's hospital lien [...]

25 May, 2022

One Size Does Not Fit All – The Locality Rule in Nebraska

2022-05-25T16:00:26-05:00May 25th, 2022|LDM MedMal Forum, Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor|

As medical malpractice defense attorneys, we are often asked: Will the opposing party be able to find an expert to support what is believed to be a baseless claim of malpractice? We must respond that we do not know, but in the United States usually if you are willing to pay enough money, you can find an expert to say almost anything. There is a cottage industry of so-called expert [...]

17 May, 2022

When DHHS Comes Calling

2022-05-17T13:21:05-05:00May 17th, 2022|Disciplinary Actions, LDM MedMal Forum, Litigation Tips, Risk Management|

Every licensed health care provider dreads receiving that certified letter with the return address, “Nebraska Department of Health and Human Services, Investigations Division.”  Opening the letter doesn’t help matters:  “Dear sir or madam, we are gathering information regarding a complaint that has been made against you.  The complaint alleges that you blah, blah, blah.  Please provide your written response to this office no later than 14 days after receipt of [...]

9 May, 2022

Iowa’s Certificate of Merit Statute Has Teeth

2022-05-09T10:56:23-05:00May 9th, 2022|LDM MedMal Forum, Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor|

In 2017, Iowa enacted a statute that aimed to dismiss meritless medical malpractice actions early in the case.  The statute, Iowa Code § 147.140, requires that a plaintiff provide a certificate of merit signed by an expert within 60 days of the defendants’ answer.  The certificate must address the standard of care and the defendant’s alleged breach of that standard.  If the plaintiff fails to provide such a certificate, the [...]

4 May, 2022

Five Do’s and Don’ts of Deposition Preparation

2022-05-04T10:56:42-05:00May 4th, 2022|LDM MedMal Forum, 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 [...]

2 May, 2022

The Criminal Prosecution of Medical Errors: Where Transparency Meets Self-Incrimination

2022-05-02T07:07:25-05:00May 2nd, 2022|LDM MedMal Forum|

They say the truth will set you free, but one nurse who told the truth about a medication error she committed in 2017 now faces up to 8 years in jail.  On March 25, 2022, following a 3-day trial, RaDonda Vaught, a former nurse at Vanderbilt University Medical Center (VUMC), was found guilty of gross neglect and negligent homicide of 75-year-old Charlene Murphey.  Murphey died as the result of Vaught administering a [...]

25 Apr, 2022

Nebraska Supreme Court Puts the Brakes on the Continuous Treatment Doctrine

2022-04-25T08:56:19-05:00April 25th, 2022|LDM MedMal Forum|

The statute of limitations is a frequent defense in medical malpractice cases. Patients are often reluctant to sue a physician with whom they have an ongoing relationship. This has led to many cases being filed after the statute of limitations has expired. In the past, patients have relied upon the vague and confusing “continuous treatment doctrine” to avoid the statute of limitations. That will now be much more difficult to [...]

21 Apr, 2022

Whose Opinions Can You Share to Establish the Standard of Care

2022-04-21T09:18:03-05:00April 21st, 2022|LDM MedMal Forum|

In any medical malpractice case where a plaintiff claims your physician-client violated the applicable standard of care, one of the defense attorney’s first tasks is—or should be—to identify an expert to defend your client’s treatment.  At first glance, this task seems straightforward.  After all, the simple goal is to identify a person that can vouch for the care your client provided.  But states maintain distinct standards that sometimes differ as [...]

16 Feb, 2022

Is the Legislature Dictating the Standard of Care for Opioid Prescribing?

2022-02-24T16:11:40-06:00February 16th, 2022|LDM MedMal Forum|

Opioid abuse has grown into a crisis that has occupied the headlines in recent years. The Centers for Disease Control and Prevention estimates that the total "economic burden" of prescription opioid misuse alone in the United States is $78.5 billion a year, including the costs of healthcare, lost productivity, addiction treatment, and criminal justice involvement. The root of the problem is misuse of opioids prescribed for chronic pain. It is estimated [...]

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