Articles Posted in Medical Malpractice

The 11th Circuit Court of Appeals decided whether a debtor’s claims for legal relief that arose after the confirmation but before the completion of his plan to pay creditors are property of the estate, under Chapter 13 of the Bankruptcy Code.

Here, after the debtors’ joint Chapter 13 plan was confirmed, the joint-debtor husband was involved in a car accident and suffered personal injuries. The bankruptcy court approved the $25,000 claim against the at-fault driver. Debtors then sought authority to settle the uninsured motorist claims arising out of the car accident without further approval from the bankruptcy court because the car accident happened after the confirmation, and the claims vested in the debtor and were not subject to the bankruptcy proceedings.

The court addressed two distinct issues: (1) whether the husband’s underinsured-motorist benefits are property of the estate, and (2) whether the bankruptcy court erred when it required both the husband and the wife to amend their schedules of assets to disclose the husband’s claim and partial settlement.

The Baltimore Sun reports today the medical malpractice rates continue to fall. My favorite line from the article: “Since that deal was struck, claims payouts have fallen sharply, sparking debate over whether a malpractice crisis ever existed.” Hmmm, I hadn’t thought about that.

I’m preparing for trial on Monday and I don’t want to completely flush out this issue, but this article made me think of something. If we will offer state subsidies to doctors for their malpractice insurance – which I don’t oppose but I’m not sure I believe are necessary – couldn’t we make financial necessity a variable in the equation? Could we make a rule that a doctor who makes less than $300,000 a year be eligible for a subsidy? Would MedChi or Medical Mutual oppose this? If so, on what basis?

I have no problem with doctors making a boatload of money. By all means. They should. But if you are making a half million a year, should you be able to claim that the state should subsidize you or, far worse, that victims of medical malpractice be under-compensated to subsidize your business expenses?

While I was on vacation, I promised more commentary on Matsuyama v. Birnbaum, a landmark medical malpractice opinion on loss of chance from the Massachusetts Supreme Judicial Court.

In Matsuyama, the 42-year-old Plaintiff’s decedent, Mr. Matsuyama, saw the Defendant doctor, a board-certified internist, and his primary care doctor, for a physical in July 1995. Mr. Matsuyama’s medical records from that visit showed disclosure of complaints of gastric distress for the last seven years and that Mr. Matsuyama’s prior doctor had noted that he might need additional tests to evaluate his symptoms.

The Defendant doctor testified that Mr. Matsuyama complained of “heartburn and difficulty breathing associated with eating and lifting.” The Defendant also knows Mr. Matsuyama was a smoker at high risk for developing gastric cancer. Without further testing, the doctor diagnosed Mr. Matsuyama with gastrointestinal reflux disease.

Plaintiff’s expert testified that at this point the doctor committed medical malpractice by failing to order the right tests, and, over a year later with the same symptoms and facts available to him, he continued his diagnosis despite complaints that Mr. Matsuyama’s heartburn was worse and that he had gastric pain after eating. A year later, Mr. Matsuyama again visited his doctor and asked about moles that been developing. The doctor diagnosed “benign seborrhea keratosis.”

I’m getting deeper into the medical facts here than I would like, but you get the point. Mr. Matsuyama went back to the doctor with more symptoms consistent with gastric cancer, and his doctor failed to test more thoroughly for cancer. But in May 1999, when his symptoms went through the roof, the doctor ordered a gastrointestinal series and an abdominal ultrasound, which quickly revealed a two-centimeter mass in Matsuyama’s stomach. He died in October 2000, leaving behind a wife and child.

After a six-day trial in Norfolk County Superior Court, the jury found the doctor negligent and found that the doctor’s medical malpractice was a “substantial contributing factor” to Mr. Matsuyama’s death and awarded Matsuyama’s estate $160,000 for pain and suffering caused by the negligence. Then, in response to a special jury question, the jury awarded damages for “loss of chance.” They calculated the damages to be $875,000 as “full” wrongful death damages and found that Matsuyama was suffering from stage-2 adenocarcinoma at the time of doctor’s initial negligence and had a 37.5% chance of survival at that time. The Norfolk jury awarded the plaintiff “final” loss of chance damages of $328,125 ($875,000 multiplied by .375) for $488,125. Continue reading

The Massachusetts Supreme Judicial Court – Massachusetts’ highest court – ruled yesterday that courts can hold medical doctors liable for medical malpractice that reduces a patient’s survival chances even if the patient’s chances of recovery was already less than 50 percent.

Maryland also has a loss of chance case pending before the Maryland Court of Appeals, although few Maryland medical malpractice lawyers expect Maryland will go as far as Massachusetts has in this case.

I’m on vacation this week, but I’ll read and report on this important opinion next week.

Medical Justice is what appears to be a new organization whose aims are to “‘prevent, deter and respond’ to frivolous malpractice lawsuits.”

This seems like a goal we—including good plaintiffs’ medical malpractice lawyers—can agree on, right? Frivolous lawsuits hurt everyone. For a cost of $625 to $1990 a year, Medical Justice will give you:

•Pursuit of counterclaims against expert witnesses in their professional societies and state licensing boards

Medical malpractice lawyers in New York today released incredible surveillance camera video from Kings County Hospital in Brooklyn, New York, showing a 49-year-old woman dying on the floor of a psychiatric emergency room while being completely ignored by the hospital staff.

The video shows the woman keeling over and falling out of a chair on June 19, 2008, and lying facedown on the floor, then thrashing wildly before going limp. A full hour passes before anyone bothered to help.

An incredible video that reminds me of the Rodney King incident. If it was not on video, no one would ever believe that it happened as the plaintiffs’ lawyers will argue.

Medical malpractice victims suffered a setback in Kentucky last week when the Supreme Court of Kentucky reversed the Kentucky Court of Appeals ruling adopting the “lost or diminished chance of recovery” in medical malpractice cases in Kemper v. Gordon. (This defense verdict was, however, reversed on other grounds because the trial court erred in excluding evidence that an expert has reached the opposite conclusion in another case.)

Sad Facts of Kemper

lost diminished chanceThe facts of Kemper are tragic. A 38-year-old mother in otherwise good health presented at the emergency room with chest pain, shortness of breath, severe nausea, and dizziness. For a year, these and related symptoms appeared. The court dismissed all as anxiety or panic attacks. Finally, the woman was diagnosed with metastasized gastric (stomach) cancer. After her death, her family brought a medical malpractice lawsuit. At various points along the way to the jury, she settled with five of the six doctors that treated her. The jury returned a defense verdict.

The University of Chicago Journal of Legal Studies published an interesting article on medical malpractice tort reform. Current Research on Medical Malpractice Liability: Medical Malpractice Reform and Physicians in High-Risk Specialties, 36 J. Legal Stud. 121 (2007). The article supports the plaintiff’s view of medical malpractice tort reform… with a very notable exception.

The article concludes that introducing medical malpractice reform in response to the fear of losing doctors may be misguided because the “relationship between medical malpractice reform and physician labor supply suggest that the effects are modest.” The article suggests that many doctors are likely to be indifferent to medical malpractice reform “because their likelihood of being sued is low.”

Interestingly, the article references one study by Eric Helland and Mark Showalter titled, “The Impact of Liability on the Physician Labor Market,” which showed that medical malpractice damage caps induce physicians to work more hours in a year.

The Maryland Daily Record reports today that The Law Offices of Peter G. Angelos intends to file an appeal in a Baltimore City medical malpractice case in which the Plaintiff’s $10.2 million jury verdict against University of Maryland Medical Center was capped at $632,500.00 because that is the limit on non-economic damages.

The Daily Record reports that the Plaintiff’s counsel intends to argue that: (1) the limitation on damages has not accomplished its purported legislative aim of reducing medical malpractice insurance rates for doctors; (2) the Maryland cap on non-economic damages is pre-empted by the ADA; (3) that it violates equal protection and due process; and (4) that it deprives the jury of the information necessary to make an informed decision.

Baltimore City Circuit Judge Carol E. Smith denied Plaintiff’s motion to overturn the cap and reduced the Plaintiff’s verdict to his medical expenses and $620,000.00 in non-economic damages (the malpractice must have occurred between October 2002 and September 2003).

I read over the weekend an interesting decision from the Connecticut Supreme Court that came out last week. The case, Monti v. Wenkert, is an awful medical malpractice case involving a seventeen-year-old girl who presented with significant but subjective symptomology that her GP, physician’s assistant, and the hospital’s emergency room staff dismissed as psychological.

This diagnosis continued even after she collapsed at her doctor’s office with “blueish, purple” lips. The teenage girl died of acute respiratory distress syndrome caused by a viral infection. Like I said: awful. I don’t suspect this case will show up on the cover of Tort Reform Monthly soon. It is anyone’s guess how this case made it to a verdict.

At trial, after the close of Plaintiffs’ case, Plaintiff and one defendant agreed to a high-low agreement not disclosed to the other Defendant. After an adverse verdict, the Defendant kept in the dark appealed his case.

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