September 2019 Newsletter

Longer statutes of limitation could invite in lawsuit abuse

A challenge to Kentucky’s longstanding statute of limitations on medical liability lawsuit filings could open the door for additional litigation – and medical lawsuit abuse.

A case is currently pending before the Supreme Court of Kentucky, seeking permission for a lawsuit to continue outside the statute of limitations under a narrow doctrine intended to apply in situations where continuous care is provided after an instance of negligence. In this case, the plaintiff is challenging that the statute of limitations should be waived anytime a patient is receiving follow up care from any health care provider at the same institution.

Ruling in support of expanding that window would have negative repercussions.
The Litigation Center of the American Medical Association and State Medical Societies, along with the Kentucky Medical Association, filed an amicus brief with the court. The brief detailed the effect overturning current law would have in permitting patients with lifelong conditions such as diabetes or asthma who receive continuous follow up care to be able to file lawsuits indefinitely.

“Such a result would destroy the predictability and certainty essential to the ‘peace and welfare of society’ that the General Assembly sought to provide,” the brief states.

Limiting the time frame for bringing forth a lawsuit is essential because “the more time that elapses … the more challenging it becomes to determine whether the physician failed to meet the appropriate standards of care and whether any such failure caused the alleged injury.”

To read more about the unintended consequences the ruling could have on Kentucky patients, click here.

Electronic health records could be risky business

While the number of liability lawsuits that result from issues with electronic health records (EHRs) is still low, the number is growing – and may pose more of a risk in the future.

Liability insurance provider The Doctors Company recently analyzed closed claims to understand how EHRs have contributed to liability issues.

Reviewing 216 claims closed from 2010 to 2018 indicates claims grew from a low of seven in 2010, to an average of 22.5 cases per year in 2017 and 2018.

Electronic health records “are typically contributing factors rather than the primary cause of claims, and the frequency with an EHR factor continues to be low (1.1 percent of all claims closed since 2010),” says the study by Darrell Ranum, vice president of patient safety and risk management at The Doctors Company.

“Still, as EHRs approach near-universal adoption, they may become a more prevalent source of risk.”

One reviewed claim came about when a female patient was prescribed Flomax (a treatment for an enlarged prostate) instead of the intended prescription of Flonase nasal spray, because the system automatically selected the wrong medication following entry of the first three letters. The patient later went to the emergency room for dizziness.

The Doctors Company made a number of recommendations in their report to avoid EHR-related liability claims, including avoidance of copying and pasting except when describing the patient’s past medical history; contacting the information technology department if the auto-population feature causes erroneous data to be recorded; reviewing entries after making a choice from a drop-down menu; reviewing all available data and information before treating a patient; and positioning the computer so the patient can view the screen.

Click here to read more about The Doctors Company’s findings.

Success of pretrial screenings evident in Louisiana

A research study published in Neurosurgery on behalf of the Council of State Neurosurgical Societies (CSNS) shined a light on how pretrial screenings and effective reforms have dramatically improved the liability climate across Louisiana.

The study, titled “The Medical Review Panel in Louisiana Neurosurgery and Beyond,” details how the system has become more efficient for neurosurgeons – and deserving patients.

Liability claims in Louisiana have long been screened prior to trial by three physicians and one attorney, expediting credible claims from deserving patients and filtering out those without merit.

The state is one of 14 requiring liability lawsuits be heard by a medical review or screening panel prior to trial, and is coupled with a $500,000 limit on total damages (excluding medical expenses).

The benefits of the pretrial screening, particularly when additional liability reforms are in place, were evident in the conclusion of the research.

“In Louisiana, these factors have likely contributed to the occurrence of zero malpractice trials with a judgment against a neurosurgeon in the past decade,” the study’s authors conclude. Additionally, the average payout for a neurosurgical settlement in Louisiana is lower than the national average.

To read the research study and in-depth comparison of various state medical review panels in full, click here.

MICRA repeal could be back on the ballot in California

Five years after voters resoundingly opposed changes to the landmark MICRA medical liability laws in California, personal injury attorneys are again seeking the dissolution of the law that serves as a nationwide model for patient access to care.

Trial lawyers, under the guise of a coalition called Consumer Watch, are seeking to pass a November 2020 ballot initiative that would index non-economic damage limits for inflation, starting at $1.2 million – nearly five times the current limit.

Additionally, the initiative seeks to raise the amount lawyers could take from their injured clients, eliminate collateral source rule reforms, mandate that all large liability payouts are paid in a lump sum rather than over time, and extend the statute of limitations.

As an insufficient compromise, those seeking to undo MICRA have offered to enact a certificate of merit requirement provision in place of the reforms that have been effective for decades.

Longtime supporter of MICRA, Californians Allied for Patient Protection (CAPP), warned of the higher health care costs the changes would bring. CAPP brings together a range of organizations representing doctors, dentists, insurers and hospitals, among others in the health industry.

“…What I can tell you is that last time there was an initiative to lower MICRA protections, California voters realized that changes to MICRA would ultimately increase costs and decrease access to health care and resoundingly rejected the proposition by a 2-1 margin in every county across the state,” said Lisa Maas, executive director of CAPP.

To read more about the potential ballot initiative that could come before California voters next year, click here.