Category Archives: Oregon

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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Top cases show physicians had a forceful ally in the courts

One thing physicians from Florida to Hawaii had in common in 2017 was that the Litigation Center of the American Medical Association and State Medical Societies had their backs. The Litigation Center was involved in legal battles that helped prevent an insurance mega-merger, protected physicians’ right to free speech, and fought back on multiple fronts against attempts to sidestep or peel back established state liability reforms. But it was a case involving the staff at a hospital in rural California that may have attracted the most attention. Case signaled threat to end medical staff independence in California. In Tulare Regional Medical Center Medical Staff v. Tulare Local Healthcare District et al, the Litigation Center provided significant legal and financial support after the hospital’s board of directors voted to terminate the medical staff organization, remove elected medical staff officers, install a slate of appointed officers and approve new medical staff bylaws and rules without staff input. “This case serves as an existential threat to independent hospital medical staffs,” said Long Do, California Medical Association (CMA) legal counsel and director of litigation. Just before closing arguments were scheduled in October, Tulare filed for Chapter 9 bankruptcy. As part the process, the hospital…

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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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May 2017 Newsletter

  Liability reform cited as major savings in President’s budget With an emphasis on deficit reduction, the President’s 2018 budget highlighted how medical liability reform can lead to improved fiscal health. Cited as resulting in major savings and reform, medical liability reform is noted in the President’s budget as necessary due to the fact that “the current medical liability system does not work for patients or providers, nor does it provide quality, evidence-based care,” budget language states. The liability reform proposal in the budget contains proven state reforms that have lowered costs and increased access to care in states such as California, Texas, West Virginia, and Ohio. This allows for deficit reductions of $55 billion over 10 years upon passage of a bill that contains reasonable limits on non-economic damages of $250,000 (increasing with inflation), a three-year statute of limitations, and modifications on attorney’s fees to ensure deserving patients – not personal injury lawyers – benefit from liability judgments and settlements. To review the medical liability reform proposal contained within the President’s budget, click here. Panel discussion yields insights into future of liability reform Taking part in a legal panel on the future of medical liability reform, HCLA chair Mike…

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Oregon Court Ruling Opens Avenues for Defensive Medicine, Lawsuit Abuse

The Oregon Supreme Court on Thursday revived a patient’s medical malpractice suit accusing a hospital and doctors of depriving him of a chance of a full recovery from a stroke, saying such “loss of chance” theories are fair game in medical negligence cases. The state’s highest court unanimously overturned the dismissal of a suit alleging Drs. Linda L. Desitter and Michael R. Harris and Providence Hood River Memorial Hospital failed to properly follow up on patient Joseph Smith’s complaints of stroke symptoms which robbed him of a one-third chance at a full recovery in cases like his, had he received timely and proper treatment. The justices said in the context of Oregon common-law medical malpractice claims, loss of chance of a better medical outcome is itself a type of injury, rejecting the defendants’ arguments that such a ruling would be an improper relaxation of standards regarding causation, or that a health care provider’s alleged negligence caused a patient’s injury. “When the lost chance is the injury in a medical malpractice action, the plaintiff still bears the burden to prove that, more likely than not, the defendant’s negligence caused the plaintiff to lose the chance of a favorable medical outcome,” the…

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Does your physician have to prescribe antibiotics for every sore throat?

With the right medical malpractice reforms, physicians can reinforce high quality care and provide cover for those who don’t want to prescribe antibiotics for every sore throat. There is a lot of jockeying ahead of the Supreme Court’s decision on the Affordable Care Act. Beyond posturing and heated rhetoric, there is a health care issue the two parties can work together on rather than blame each other: medical malpractice. It is clear there is support for reform. Republicans have long argued for reform. President Obama has been a consistent advocate for it. In 2006, he co-authored an article in the New England Journal of Medicine with Hilary Clinton and introduced legislation on the matter, and he launched several demonstration projects for reform. And doctors desperately want it and remain befuddled and upset about why malpractice reform never made it into the Affordable Care Act. So there is ground for optimism. And we desperately need reform. By every metric, the malpractice system is dysfunctional. For many physicians in high-risk specialties, such as cardiac and neuro-surgery, no matter what they do there is essentially a 100% chance they will be sued at some point during their career. Even so-called low-risk specialties, such…

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Governor signs alternative to medical malpractice lawsuits

Gov. John Kitzhaber signed a bill today offering patients, doctors and hospitals an alternative to medical-malpractice lawsuits. Senate Bill 483 would allow them to enter into voluntary discussions and mediations, including settlement offers, under the authority of the Oregon Patient Safety Commission. The legislation had the support of the Oregon Medical Association and the Oregon Trial Lawyers Association, which have often been at odds over issues of liability. The proposal emerged from a work group convened last year by Kitzhaber, who’s a physician, as part of his overhaul of delivery of care to 600,000 recipients under the Oregon Health Plan. Kitzhaber said he wanted the legislation to improve the safety of patients, allow them compensation for medical “events,” and reduce collateral costs to doctors and hospitals such as liability and litigation. “I didn’t have any preconceived notion of what this would look like,” Kitzhaber said. “I think the result is an innovative piece of legislation that meets all three of these metrics, and also allows physicians and patients to get together to try to address these issues.” Kitzhaber was flanked at the ceremony by Dr. William “Bud” Pierce, a Salem oncologist who is president of the Oregon Medical Association, and…

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Legislators Wrestle With Revamping Oregon’s Health Care System

As Oregon attempts to revamp its health care system, the state legislature will have to make all kinds of changes. One goal, which has plagued lawmakers for years, is to reduce the cost of medical malpractice lawsuits. Governor John Kitzhaber set up a workgroup this summer to come up with a few ideas. Kristian Foden-Vencil talked to a couple of workgroup members who say they're developing a process that would allow doctors, patients and hospitals to talk about mistakes — before everything ends up in court. When he's at the capital, Republican Senator Jeff Kruse wears a jacket and tie. But he's a farmer and today he's dressed in ripped jeans and covered head-to-toe in dust. Climbing out of a pickup, he snaps off an ear of corn out his field, shucks it and starts eating. Jeff Kruse: "We start picking at six in the morning, about daylight. You want to get it when it's cool and it stays fresh longer." Kristian: "And you're not boiling it or anything like that. It's just right out of the field." Jeff Kruse: "I will take some home and eat it for dinner too." When he's not harvesting corn, Kruse sits on the…

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EDITORIAL: A start on malpractice

Republicans in the Oregon Legislature are getting their first look at what they won in exchange for their support for Democratic Gov. John Kitzhaber’s health care transformation plan. It’s not the overhaul of rules for medical malpractice lawsuits the Republicans hoped for, but it’s significantly more than nothing. For a few tense days in February, it looked as though a dispute over malpractice would keep lawmakers from allowing Kitzhaber’s health care plan to move forward. Republicans, who with Democrats jointly control the House of representatives, wanted tough malpractice reforms, including a $570,000 cap on damages awarded in lawsuits against doctors and other health care providers. The Republicans were in a strong position. The state’s current budget is built on an expectation that the health care transformation will achieve significant savings. By withholding their support Republicans threatened to derail the central achievement of Kitzhaber’s current term while also throwing the budget out of balance, with consequences for state programs favored most strongly by Democrats. But in the end, the Republicans dropped their opposition. What they got in return was a promise by Kitzhaber to appoint a work group that would bring proposals for malpractice reform to the Legislature in 2013. The…

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