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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
