Category Archives: Minnesota

December 2019 Newsletter

Personal injury attorneys target definition of a patient With courts increasingly reviewing physician liability for patients they have never treated, the answer to what defines a patient could shape the future of access to care. The issue stems from a recent case in which a Minnesota physician was held liable for harm to a patient he had never examined, reviewed her records or spoke to directly. Under review was whether or not the physician still had a “legal duty of care” following a conversation with a Nurse Practitioner, in which he recommended that the patient not be admitted to the hospital-based on a series of symptoms. The AMA’s Litigation Center, in an amicus brief, argued that the duty of care was premised on a patient-physician relationship, which was not present in this case. While lower courts agreed, highlighting the importance of informal consultations among health care professionals, the Minnesota State Supreme Court overruled these verdicts. A moot court review of the case at the 2019 AMA Interim Meeting saw audience members raise concerns about a number of issues arising from the decision, including “the chilling effect of the decision, decision-making authority of NPs and physician assistants, legal ethics and medical…

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More physicians being sued by patients they’ve never treated

SOURCE: American Medical Association Can physicians be held liable in cases in which they’ve never treated the patients experiencing the adverse outcome? That’s a question that is increasingly being put before the courts, and one explored during a recent education session held by the Litigation Center of the American Medical Association and State Medical Societies. The mission of the Litigation Center is to represent the interests of the medical profession in the courts. It brings lawsuits, files amicus briefs and otherwise provides support or becomes actively involved in litigation of general importance to physicians. The Litigation Center held a moot court session in which it presented arguments from Warren v. Dinter, a case in which a physician was held liable for harm to patient he had never examined, reviewed her records or spoke to her directly. Arguments were presented by Leonard Nelson, director of the Litigation Center, and Mark R. Whitmore, a Minnesota attorney who wrote the amicus brief in the case. Jack R. Bierig, the AMA’s principal outside counsel for more than 40 years, played the role of the Minnesota Supreme Court with the help of the audience. At issue was whether Dr. Dinter had “legal duty of care”…

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May 2019 Newsletter

Minnesota liability ruling trends towards dangerous precedent for patients Setting a troubling precedent that could limit collaborative patient care efforts, the Minnesota Supreme Court recently ruled in favor of expanding liability and opening the door for an increase in medical lawsuit abuse. In mid-April, the Court issued a ruling case of Warren v. Dinter, reversing precedent and stating that the existence of a physician-patient relationship was not a prerequisite for bringing forth a medical liability lawsuit. The Court declared that legal actions could proceed if the harm suffered by an individual — even if they were not considered a patient of the physician — was a “reasonably foreseeable consequence” of the physician’s actions. Supporting the defendant were the American Medical Association (AMA), Minnesota Medical Association (MMA), and the Minnesota Hospital Association (MHA), on the basis that this new precedent could expose physicians and other health professionals to expanded liability risks in situations that were previously protected, including unbilled consultations, and discourage collaboration. “The overall expansive language in the Court’s opinion does raise concerns,” said Mark Fogg, general counsel of COPIC, MMA’s endorsed medical professional liability insurance provider. “We respectfully believe that it is important that a physician-patient relationship be established…

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MN Supreme Court Rules Physician-Patient Relationship is Not Necessary to Sue Docs for Malpractice

SOURCE: Minnesota Medical Association In a case that could have wide-reaching implications for medical practice in Minnesota, the Minnesota Supreme Court issued a ruling on April 17 in the case of Warren v. Dinter holding that the existence of a physician-patient relationship is not a prerequisite for a medical malpractice action. Rather, a person may sue a physician for malpractice – even if that person was not a patient of the physician – if the harm suffered by the person was a “reasonably foreseeable consequence” of the physician’s actions. The MMA partnered with the AMA and the Minnesota Hospital Association to participate in the case as amici curiae, forcefully arguing that expanding physician liability outside of the physician-patient relationship would damage physician collaboration and informal consultation and ultimately harm patients. Despite this counsel, the Court issued a ruling that may hinder a physicians’ ability to collaborate with care partners. “The overall expansive language in the Court’s opinion does raise concerns,” said Mark Fogg, COPIC’s General Counsel. Colorado-based COPIC is the MMA’s endorsed medical professional liability insurance (MPLI) provider for its members. “We respectfully believe that it is important that a physician-patient relationship be established before any liability may occur for…

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January 2019 Newsletter

Pennsylvania liability rule change could lead to increase in lawsuit abuse A rule that helped stabilize the medical liability market in Pennsylvania faces the threat of repeal, bringing worry that medical lawsuit abuse could return. Implemented in 2002, reforms mandated that medical liability claims could only stand trial in the county where the alleged medical error occurred to avoid “venue shopping” lawsuits to courts that had a history of favoring large verdicts and personal injury attorneys. The Pennsylvania Supreme Court now proposes eliminating that rule, allowing victims to file lawsuits in any county where the defendant does business — even if the incident in question occurred elsewhere. A coalition that includes the Pennsylvania Medical Society (PAMED), the Hospital and Healthsystem Association of Pennsylvania (HAP), and the Pennsylvania Coalition for Civil Justice Reform (PCCJR) cites this rule as the primary reason the system has stabilized to its current point. “If history is any indication, this could have devastating effects on patient care,” said Danae Powers, MD, president of PAMED. “In the years before we restricted venue shopping, medical liability premiums rose so quickly that some physicians couldn’t obtain the insurance they needed to treat patients. Others chose to leave Pennsylvania or…

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For the Minnesota Legislature, 12 pertinent elements of any constructive health care reform

SOURCE: Star Tribune “A wise man begins at the end while a fool ends at the beginning” is a proverb worth considering in any discussion of health care reform. Minnesota legislators on both sides of the aisle have been meeting with stakeholders to determine what such an endpoint might look like. Allow me to explore 12 pertinent ideas about our health care crisis, several of which have already inspired bill proposals. 1) We must transform the health care discussion, making a clear distinction between insurance against unpredictable, calamitous occurrences and, on the other hand, routine care that can be foreseen and budgeted for, such as preventive dental visits, tetanus shots or screening tests. There is a real difference between wants and needs, and a reasonable perspective distinguishes between a catastrophic need and an elective desire. 2) We must blow open the doors of the internal financial workings of our healthcare system by expanding transparency across the board — on prescription-drug pricing, physician and hospital charges, facility fees, trade secrets between insurers and big clinics, and profiteering by middlemen such as pharmacy benefit managers. Only with clear information can patients truly become “their own best champion” regarding health care. We must outlaw any…

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May 2018 Newsletter

Maryland trial court attempts to redefine liability standards Under consideration by Maryland’s highest court is a case that attempts to redefine professional standards of care – and negate the testimony of expert witnesses. The basis of the case stems from a medical liability trial in which instructions provided to the jury deviated from well-established law on measuring standard of care as what a ‘reasonably competent’ physician would be expected to do, per expert witness testimony. Instead, the jury was instructed to consider only what a ‘reasonable layperson’ would do – potentially warping how physician negligence is defined. The Litigation Center of American Medical Association and State Medical Societies joined the Maryland State Medical Society (MedChi) and the Medical Mutual Liability Society of Maryland in filing an amicus brief that not only cited the likely increase in meritless lawsuits and implications for standards of other professionals in court, but also noted that experts must be relied on because medical procedures are not common knowledge. “Letting juries nullify professional standards would upend the basic premise that professional malpractice claims involve specialized knowledge and duties that laypeople cannot assess based on their common knowledge,” the brief states. A lower appeals court agreed that…

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Minn. Court Sets Expert Report Deadline For Med Mal Cases

Law360 (April 30, 2018, 8:14 PM EDT) — A Minnesota appeals court on Monday effectively created a bright-line rule regarding how much time plaintiffs have to file an expert opinion in medical malpractice cases, saying plaintiffs have 180 days to file after the start of discovery, which begins no later than 30 days after the defendant’s answer. In a published opinion, a three-judge Court of Appeals panel revived a lawsuit brought by patient Ann Firkus accusing Dr. Dana Harms of unspecified medical malpractice. The suit had been tossed by the trial judge for Firkus’ failure to submit a medical expert’s affidavit within 180 days of the start of discovery as required by the state’s expert-review statute, Section 145.682 of the Minnesota Statutes. The panel said because the statute’s language is ambiguous as to when discovery actually begins, it looked to the statute’s legislative history and determined that discovery commences, for purposes of the expert-review statute, no later than 30 days after the defendant files an answer to a complaint. The appeals court explained that a 2014 amendment to the expert-review statute, changing the 180-day deadline to begin running after the start of discovery rather than the date the suit is…

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December 2017 Newsletter

Year-end report sheds light on “Judicial Hellholes” The American Tort Reform Association (ATRA) end-of-year “Judicial Hellholes” report offers a public glimpse at the most unfriendly jurisdictions for those defending themselves against civil litigation, including medical liability lawsuits. At the top of the list this year was Florida, where once-strong medical liability reforms have been continuously rolled back at the expense of patients seeking affordable and accessible care. “This year, thanks to a state high court majority’s barely contained contempt for the policy-making authority of the legislative and executive branches of government, and a notoriously aggressive and sometimes lawless plaintiffs’ bar, Florida earns the ignominious #1 ranking among eight Judicial Hellholes…” said American Tort Reform Association president Tiger Joyce. Also high on the list was St. Louis, where “antiquated rules have made it a favorite of personal-injury lawyers shopping for big-money verdicts” resulting in $300 million in awards since 2015. However, recent changes in state government, including a governor in support of changes to the liability system, do hold promise for much-needed reform in the coming year. To read more about ATRA’s “Judicial Hellholes” executive summary and report on the where physicians and defendants fare the worst when it comes to…

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High Court’s Contempt for Lawmakers’ Authority, Lawsuit Rackets Place Florida atop Latest ‘Judicial Hellholes’ List

WASHINGTON, D.C., December 5, 2017 – The American Tort Reform Foundation issued its 2017-2018 Judicial Hellholes® report today, naming courts in Florida, California, Missouri, New York, Pennsylvania, New Jersey, Illinois and Louisiana among the nation’s “most unfair” in their handling of civil litigation. “With both this annual report and a year-round website, our Judicial Hellholes program since 2002 has been documenting troubling developments in jurisdictions where civil court judges systematically apply laws and court procedures in an unfair and unbalanced manner, generally to the disadvantage of defendants,” began American Tort Reform Association president Tiger Joyce. “This year, thanks to a state high court majority’s barely contained contempt for the policy-making authority of the legislative and executive branches of government, and a notoriously aggressive and sometimes lawless plaintiffs’ bar, Florida earns the ignominious #1 ranking among eight Judicial Hellholes, even as authorities have begun to crack down on some of the lawsuit industry’s most obviously fraudulent rackets. “Ranked #2 is perennial hellhole California, where lawmakers, prosecutors and plaintiff-friendly judges inexorably expand civil liability at the expense of businesses, jobseekers and those desperately in need of affordable housing,” Joyce explained. “The good news is the U.S. Supreme Court in June reversed a…

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