Anne E. Mitchell, the Texas nurse who had been charged with a felony for reporting the actions of a doctor to the state medical board, was acquitted after a jury deliberated for less than an hour about the case.

Her attorney focused everyone on the pending litigation that Ms. Mitchell and the other accused nurse have against the county, the hospital, the doctor, and other officials.

“We are glad that this phase of this ordeal has ended and that Anne has been restored to her liberty … but there was great damage done in this case, and this does not make them whole.”

Go get ‘em.

When you’re driving down the field in opposing territory in the fourth quarter with more than three minutes left, why would you ever throw a pass?

Keep to the ground game and run down the clock so they can’t get the ball back and have time to drive down the field and score again.

If Manning hadn’t thrown that horrible pass that got picked off by Tracy Porter and returned for a touchdown, the Colts would have undoubtedly won the Super Bowl. The whole Indianapolis Colts football team and their fans were irreparably damaged by Manning’s negligent actions.

Sound crazy?

This Monday morning quarterbacking is the same thing a lot of doctors go through when they make a judgment call and are sued for malpractice due to a bad outcome.

I wonder … can fans who lose money on bets on a pro football team sue the professional football players for their negligent decisions? I bet those multimillion dollar salaries could pay for a lot of damages.

Today, the Illinois Supreme Court agreed with an earlier trial court’s decision to abolish caps on medical malpractice judgments in Illinois, calling the legislation “facially invalid” due to a separation of powers issue with the Illinois Constitution. Apparently only the judicial branch of Illinois government has the ability to reduce verdicts.

Because of an inseverability clause contained in the legislation, the entire medical malpractice reform statute was declared invalid.

When presented with the number of other states that have enacted noneconomic damage caps and the number of states that have rejected the separation of powers argument under the same circumstances, the Illinois Supreme Court justified its decision by stating “That ‘everybody is doing it’ is hardly a litmus test for the constitutionality of the statute.”

The Supreme Court’s opinion is here.

Also read an article about the legislation in the Chicago Tribune.

Hear all those papers rustling? That’s all the doctors in Illinois flipping through medical journals and newspapers looking for jobs in other states. It will be interesting to see the effect that this decision has upon Illinois citizens’ access to medical care in the coming years.

UPDATE
Some good insights and additional links to the story from Walter Olson at Point of Law. Interesting to imagine how the Court would back out of its corner if hospitals and doctors required that patients agreed to a limit for damages as a requisite for medical care – contracting around the statute as potential medical malpractice plaintiffs are often requested to do with attorney fee limits in Florida.

Also … a picture of young Abigaile Lebron, the child whose birth negligence case sparked the Supreme Court’s decision.

As a special thanks for inciting the wrath of everyone favoring tort reform who reads this blog, I present to you a money-saving link. Seriously.

http://scholar.google.com/

Back in November, Google Scholar started making case law searches available for free.

Now you can type in a case citation or a search topic and can get cases mentioning the topic as well as citations to the cases and links to other related topics. See the screen grab below when I clicked on the first link from a search using the term “tort reform.” Going to the Advanced Search allows you to limit your search to specific jurisdictions.

Maybe now you can drop those subscriptions to WestLaw and Lexis. The yacht payments are coming due soon, you know.

By the way, the site isn’t just for attorneys. Anyone can use the site to find case law information that has been unavailable or difficult to obtain up until this point.

And … the site also does a great job at searching scientific papers as well.

Here’s a good one from WLBT News in Mississippi.

Mississippi Governor Haley Barbour wrote this on his Twitter page, “Glad the Legislature recognizes our dire fiscal situation. Look forward to hearing their ideas on how to trim expenses”.

An administrative assistant at the University Medical Center School of Nursing who had apparently heard from several UMC employees that the governor scheduled off-hour appointments for medical care then twitted back: “Schedule regular medical exams like everyone else instead of paying UMC employees over time to do it when clinics are usually closed.”
Several days later, the administrative assistant was accused of violating HIPAA laws and was “encouraged to resign.”

C’mon. The administrative assistant was passing on second hand information and didn’t even mention the governor by name.
And besides, it’s not like she told the world that Haley Barbour was going to a psychiatric clinic appointment to learn how not to make stupid suggestions on his Twitter page.

The hospital is stretching HIPAA laws way too far. False and/or uninformed allegations of HIPAA violations are becoming the new quick and easy way to get rid of employees. The lawyers providing the hospital with advice should be the ones fired.

Am I violating HIPAA if I redisclose that Lindsay Lohan is in rehab? I am a covered entity and the fact that she is/was in rehab is protected health information. How is this different from the Haley Barbour case?
Oh yeah, guess my job is in jeopardy because I mentioned that Conrad Murray provided propofol to Michael Jackson.
Oh, and I saw a patient … in the gift shop at my hospital … buying … throat lozenges … for a sore throat! Shhhhhhh. Don’t tell.
Then my car got hit in the parking lot, but I couldn’t call my insurance company to file a claim because, according to MUMC attorney logic, it is a HIPAA violation to disclose that the patient’s car was in the hospital parking lot.
So when families call University of Mississippi looking for a patient, do hospital operators tell you “we can neither admit nor deny the existence of this patient in our facility” to avoid further HIPAA violations?

Hey – rules are rules. [eye roll]

P.S. Mississippi Governor Haley Barbour allegedly goes to the UMC clinics after hours and the University has to pay overtime to employees for his routine physical examinations. Pass it on.

This story concerns me.

On one hand, there is an emergency physician who, by some accounts, had a “sex addiction” and was accused of drugging intoxicated females and then groping their breasts.

On the other hand, the females were so “incapacitated” that they were “unable to resist” or presumably to even yell for help when the physician was doing these things.

I don’t know all the facts, so I can’t comment upon the merits of the case or upon the jury’s verdict.

From a patient’s perspective, it is pathetic to think that a physician would even consider doing things like this.

From a physician’s perspective, it is scary that the accusations by patients rendered “incapacitated” by alcohol or medications could cause you to be investigated by the state, get dragged through a trial, and possibly be thrown in prison for 10 years. This whole propofol side effect issue hits closer to home, now.

I have been involved in one investigation where a physician was accused of physically assaulting a patient by pushing her to the ground. The patient was upset that she didn’t get the medications she wanted and she and her husband filed a formal complaint against the physician the day after her emergency department visit. Fortunately, in that case, the patient was already being verbally abusive to the emergency department staff and security was called. Security witnessed the entire “event” from behind the curtain in the room while the door was open and confirmed that the patient was upset about not receiving medications and that the patient was never pushed to the ground.

Another physician with whom I worked was accused of fondling the breasts of women because he lifted their left breasts up to listen to their hearts.

In another incident, I was accused of raping a patient.

An elderly patient fell down a flight of stairs and was complaining of hip pain. I examined her entire body to look for other injuries. I routinely palpate the entire body, including the head, neck, ribs, back, stomach, pelvis, arms, and legs. The woman called administration several months later to complain that I had “raped” her. I had no idea who she even was by that time.

When I heard about the patient’s allegations, I made a copy of her chart, went straight to the police station after work, and reported what the patient had stated. One of the investigators immediately went to the patient’s house and took a statement from her. Her only accusation was that I “squeezed her hips” – which I routinely do during my exam to assess for a pelvic fracture. After talking with the investigator, the patient declined to file a complaint.

So what do you do?
Examine only the portions of a patient where the patient has pain and risk missing an injury? Or fully examine the patient and risk being accused of sexual assault and a jail sentence?
Do we start videotaping all patient encounters to maintain evidence that we didn’t do something inappropriate?
Do we have a nurse follow us into all the rooms as witnesses and take them out of their patient care roles?

And what should happen to people who file false reports?

Scary times for all involved.

With health care reform being heavily debated about the country, trial lawyers are trying to preserve one of their cash cows.

Medical malpractice plaintiff attorneys continue to press their argument that lawsuits are essential to the nation’s health care. In fact, the trial lawyers created a web site called 98000reasons.org and are putting ads for the web site all over the Washington subway system to show our legislators some link between tort liability and the alleged 98,000 patients who die each year from medical mistakes. The logic on the front page of the AAJ web site states

“If less people need to seek legal recourse, that means patients are getting safer. Patients that are safer also means lower costs to the health care system. Everyone can support this.”

It will probably take a lawyer to explain that logic to me, but I digress.

The “98,000″ number is taken from a study called “To Err is Human” done by the Institute of Medicine more than 10 years ago.

There are multiple criticisms of the IOM study. The method in which “deaths due to error” were determined was suspect. The patient population was composed of skewed samples. See here, here, and here to learn more about the criticisms of the study.
Regardless of the reliability of the statistics, those with an agenda cite the statistics as hard facts.

“The equivalent of two full jumbo jets are blowing up every day of the year due to medical malpractice and the only thing that can save us is more lawsuits!”

It’s obvious that patients die from medical errors. Whether that number is 98 per year or 98,000 per year, medical providers can always take steps to improve upon the care that they provide. Focusing on the imperfect nature of the humans who provide medical care is not the point of this post. Humans will always make mistakes – even lawyers.

The trial lawyers want us to believe that they are there to help our nation minimize mistakes. The American Association for Justice is pushing the concept that any attempts to reform the nation’s medical malpractice tort system would have disastrous effects upon the safety of our health care.

A quote on the AAJ site states “The simple truth is that any reduction in the risk of civil liability would remove a critical safety incentive.”
Phrase it however you want to …
The threat of liability improves safety.
Making doctors fearful of losing millions of dollars makes doctors practice better medicine.
We can sue our way to better health care.

Lawyers want doctors running scared.

The trial lawyers got their wish. Doctors are afraid of being sued for millions of dollars and getting dragged through a multi-year lawsuit. So a vast majority of doctors have responded by practicing “defensive medicine.”

Health care providers spend hundreds of billions of health care dollars per year on low yield testing that is fueled by the fear of malpractice lawsuits — a fear that lawyers assert is beneficial to create.

Then lawmakers started questioning whether our health care system could put the vast amounts of money spent on defensive medicine to better use.

Suddenly the trial lawyers started singing a different tune.

Trial lawyers created a “report” titled “The Truth About ‘Defensive Medicine‘”
The report contained multiple assertions, including …
“Direct costs associated with medical malpractice are a tiny fraction of health care costs.” Technically the AAJ statement is correct, but it is misleading. Direct costs of medical malpractice litigation and payouts may be a small fraction of the health care pie, but defensive medicine is an indirect cost that, by some estimates, adds hundreds of billions of dollars to health care costs each year. That’s not so small.
“There are little or no savings to be gained from reforms aimed at eliminating such tests.” In other words, tort reform won’t save the system any money. Would you like grape Kool Aid or fruit punch?
“Extra testing provides benefits to patients.” Hey – it’s good for patients when doctors perform expensive low yield testing to protect themselves from lawsuits. Nothing bad happens from all the radiation. There are no complications or extra costs incurred from false-positive testing. Pay no attention to that man behind the curtain.

If you don’t believe any of the above, then the AAJ report tries to convince everyone that defensive medicine is a figment of the imagination of all the doctors who say that they perform testing to protect themselves from lawsuits. Headings in the “Defensive Medicine” report include “Academics question the existence of defensive medicine” and “President Obama’s Budget Director Doubts the Existence of Defensive Medicine.”
The report states that

One government agency found that doctors chose not to order any tests or diagnostic procedures 95 percent of the time. Doctors who ordered tests almost always did so because of medical indications, and only one half of one percent of all cases involved doctors who ordered tests due solely to malpractice concerns.

If “defensive medicine” occurs in only 0.5% of all medical cases, then obviously the “risk of civil liability” isn’t having its intended effect. All of us doctors are hardly doing anything to protect ourselves from civil liability. We’re not scared enough.

On one hand, the AAJ asserts that we should increase/maintain the threat of liability to maintain the safety of our health system. On the other hand, the AAJ asserts that the doctors are not responding to the threat – which is apparently why 98,000 people per year are allegedly dying from medical mistakes.

If the threat of civil liability makes doctors practice better medicine, the threat of criminal liability would be lead to even better health care. Doctors who allow patients to become ill or die should be considered felons. With doctors so afraid of being thrown in jail, the medical profession would find a way to make patients live forever. The  practice of medicine would be perfect.

Problem solved.

Funny, though. If the AAJ assertion that “any reduction in the risk of civil liability would remove a critical safety incentive” is true, I don’t see the lawyers plastering the subways with advertisements advocating legal malpractice suits as a way to improve the practice of law in this country. Or advocating that we implement judicial malpractice to improve the practice of court proceedings in this country.

I know. The Democrats are just waiting to pass health care reform before putting legal and judicial malpractice on next year’s agenda.