Medical Malpractice Bulletin for October, 2009

In this issue:

Perspective: Certificate of merit overturned. Now what?

By Charles A. Pilcher MD FACEP

As most Malpractice Bulletin readers have undoubtedly heard by now, the requirement that a plaintiff must have a “certificate of merit” to file a malpractice lawsuit was overturned by the Washington State Supreme Court on September 17, 2009. The requirement was ruled to unfairly discriminate against a specific class of plaintiffs, thus denying them equal access to the courts and “conflicting with the judiciary’s inherent power to set court procedures.”

The medical news was quick to jump on the ruling as a victory for plaintiff attorneys. I am not so sure. I have always felt that COM was a benefit to both defense and plaintiff, since a plaintiff might not file a suit if the chance of recovery were negligible.

In my 25+ years of doing case review for both plaintiff and defense attorneys, I have yet to see a case I would call “frivolous.” Click here for the rest of this essay.

Health insurer can’t recover medical costs paid if settlement is only for pain and suffering.

In the case of Thomas v. Waller, the New York Supreme Court ruled on October 7, 2009, that a health insurance company is not entitled to recoup any of its expenses paid on behalf of a plaintiff awarded damages in a lawsuit if those damages were for “pain and suffering.” The company’s right of subrogation extends only to payments specifically set aside to cover medical expenses. Thomas made no claim for medical expenses in his original suit, which was settled prior to trial. The ruling justice rebuked the health insurance company and said that the injured victim had a contractual right to receive medical benefits when needed. The bottom line: Oxford Health Insurance and their agent, The Rawlings Company, were not entitled to recover anything. [Editor’s note: Thanks to a reader for this item.]

Social Media: Don’t forget to include it in discovery process

Malpractice cases often hinge on the physical or mental condition of a patient following an alleged medical or surgical misadventure. Attorneys are reminded that “social media” like Facebook, My Space, Twitter, cell phone records, text messages, email, blogs, client websites, etc., may often contain information on the condition of a plaintiff. Defense attorneys would do well to include such media in their discovery process. Plaintiff attorneys would do well to check their client’s “profiles” to avoid being blindsided. An article in USA Today from last year gives an example of how this worked in a pair of criminal cases. I would guess that a subpoena might be needed for some of these requests. [Editor’s Note: Should a reader ever need a good forensic computer expert, call me for a referral.]

As for our own use of social media, my Gen X son says, “Never say anything in social media that you would not say in public. Social media is public.”

A scary Halloween report? New Jersey hospitals committed nearly 9,400 serious errors in 2007

The Newark (NJ) Star-Ledger (10/15, Livio) reports that state hospitals “committed nearly 9,400 ‘serious medical errors” in 2007 that led to conditions that “threatened” patients’ health, according to a report by New Jersey’s Department of Health and Senior Services. The “errors” listed included infections in surgical patients, wound dehiscence, accidental organ puncture, and falls, among others.

Successfully managing life is both an art and a science. Can we really eliminate all risk? What if we reported how often a carpenter misses the nail and hits his thumb?

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