Archives: July 2019

July 2019 Newsletter

Opportunity for ACCESS: Liability reform introduced in Congress A new bill introduced in Congress offers the opportunity to limit the patchwork of medical liability laws and bring certainty to patients across the country seeking access to care. The Accessible Care by Curbing Excessive LawSuitS Act (ACCESS Act) is a comprehensive medical liability reform bill introduced by Representative Richard Hudson (R-NC) and modeled after proven reforms already in place in Texas, California, and many other states around the country. Rep. Hudson was joined in introducing the bill by Representatives Roger Marshall, MD (R-KS) and Larry Bucshon, MD (R-IN). The bill, H.R. 3656, ensures full and unlimited recovery of economic damages to deserving patients for expenses such as lost wages, past and future medical expenses, rehabilitation costs, and other out-of-pocket expenses. The legislation also permits the additional recovery of up to $250,000 for non-economic damages, such as damages awarded for pain and suffering, and the bill also protects states’ rights in the process. Recent estimates from the Congressional Budget Office (CBO) and the staff of the Joint Committee on Taxation (JCT) estimate that the provisions included in the bill would reduce federal spending by about $14 billion over five years, and almost…

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Kentucky Enacts Certificate Of Merit Requirement For Filing Medical Liability Cases

SOURCE: Mondaq The Kentucky General Assembly has enacted KRS 411.167 which now requires a claimant commencing any civil action against a healthcare provider, or long-term care facility, to file a “certificate of merit” when the complaint is filed. This new requirement applies to any new lawsuits against healthcare professionals including doctors, nurses, or hospitals, filed after June 27, 2019. A copy of the statutes can be found here. The new statute requires that the plaintiff must file a certificate of merit which reflects that they consulted with at least one expert who is qualified to give expert opinions as to the standard of care or negligence and that the expert concluded that there is a reasonable basis to commence the action. A single certificate of merit is sufficient even if there have been multiple defendants named. Like any statute, there are exceptions. The claimant does not have to file a certificate of merit if the claimant was unable to obtain the expert consultation required because the applicable statute of limitations was about to expire. In that case, the certificate has to be supplemented regarding the consultation of an expert within 60 days after service of the complaint. A certificate of…

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Pennsylvania Supreme Court Holds that Evidence of Risks and Complications is Admissible in Medical Malpractice Cases

SOURCE: JD Supra This week, in the decision of Mitchell v. Shikora, the Pennsylvania Supreme Court held that evidence of risks and complications of a medical procedure is admissible, overturning a decision by the Superior Court. Two years ago, the Superior Court held that a new trial was warranted following a defense verdict in a case involving a bowel injury during a laparoscopic hysterectomy. The plaintiff argued that the injury was due to the surgeon’s failure to appropriately identify the patient’s anatomy prior to making an incision, but defendants’ expert opined that the bowel injury is a common complication and does not indicate one way or the other whether negligence has occurred. Seizing on that testimony, the plaintiff argued on appeal that discussion of the risks and complications in a laparoscopic hysterectomy were immaterial to the issue of whether the surgeon breached the standard of care in performing the surgery, with which the Superior Court agreed. The Superior Court held that informed consent evidence is not admissible in a medical negligence case that does not involve an informed consent claim. In a decision by Justice Todd, joined by three other justices (with a fourth concurring justice), the Supreme Court explained…

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Strong physician-patient relationships improve care, ward off malpractice suits

SOURCE: AAP News As experts in prevention, pediatricians need to know essential strategies to prevent medical liability claims. Ample research shows that communicating skillfully and fostering effective physician-patient relationships can help pediatricians avoid malpractice litigation. The literature also provides insights on how pediatricians can enhance communication skills. Communication differences between physicians and surgeons with malpractice histories and those with none are revealing. A sentinel study found that primary care physicians with no malpractice claims employed the following communication techniques: oriented patients about what the visit would entail, solicited opinions and concerns, verified patient understanding, and spent more time during office visits. No such differences were identified among surgeons with malpractice claims and those without (Levinson W, et al. JAMA.1997;277:553-559). A recent analysis of 24,000 medical liability claims from 2009-’13 by CRICO, a program that insures Harvard medical institutions and their affiliates, revealed that communication failures were factors in 30% of malpractice suits. More than half of those cases resulted from communication problems between providers and patients/families. Another study found that one-third of malpractice litigation was related to communication problems manifested by the physician appearing inattentive, discourteous or providing inadequate information (Roter D. J Health Care Law Policy. 2006;9:304-314). Research shows…

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