Lamson, Dugan and Murray, LLP, Attorneys at Law

No Sweeping Under the Rug

Posted in Health Care Law, Litigation Tips, Medical Malpractice, Risk Management, Tort Reform

It happed in California several weeks ago.   After 2 ½ days of jury deliberation, the jury awarded a $4 million verdict against a hospital for allegedly covering up the cause of the post-operative death of a patient.  The jury did not find that the hospital committed malpractice and did not award punitive damages (which cannot be awarded in Nebraska).

The patient had a surgical cervical disc.  Post operatively he had trouble with swallowing and breathing and his voice changed.  The attorneys for the patient alleged these are classical signs of hematoma.  The surgeon treated the patient for a sore throat but the bleeding condition progressed to the need for emergency surgery and the patient ultimately died in the ED.  Allegedly the surgeon told the wife the patient’s heart stopped.  The risk manager of the hospital requested an autopsy which concluded the patient died of a fatty liver.  This was told to the surviving spouse.  A second autopsy requested by the family revealed the cause of death was the post-op bleed.

The jury voted 10-2 that the hospital conspired to commit fraud and awarded the damages as emotional distress.  The unsuccessful malpractice claim vote was 8-4 (plaintiff needed nine votes to prevail).

We can deal with the facts, good or bad.  It is impossible to deal with untruths and juries will see through them more often than not.

Who is getting the money?

Posted in Medical Malpractice, Tort Reform

When it is determined that a medical malpractice / professional negligence lawsuit or claim needs to be settled, or when one of the few times a jury sides with the patient, money is paid.   Don’t be dismayed by what actually happens to the money.  Between contingent fee lawyer contracts paying the plaintiff’s lawyers up to 50% (these actually happen in Nebraska), to exorbitant expert witness fees to huge health are liens, med mal payments are not the “lotteries” many patients/plaintiffs think they may get when they are dissatisfied with what are oftentimes acceptable and known medical outcome that they surmise is negligence.

Case in point, The Indianapolis Court of Appeals ruled on Wednesday, July 30th that an Indianapolis law firm that was sued by its former med mal client was allowed to keep fees of $337,001 in settling a case.  That amount was double of the statutory limit in Indiana when the state’s guarantee fund was involved.

The client sued the firm claiming breach of contract and illegal fee collections after his then-wife gave birth to a child in May 2001 who died less than a year later while receiving medical care. The couple retained the law firm to sue their son’s doctor.  The case was settled in 2008.  The Court of Appeals reasoned that although there was a limit to the amount the attorneys could take of the state fund money, the contract between the client and the attorneys authorized a larger award such that more than attorney cap could be paid to their counsel.


Doctors beware: tax-fraud scheme targets the medical profession.

Posted in Risk Management

Tax fraudAn increasing number of doctors have reported that they have been targets of tax fraud.  Here’s what happens: you, happy that it is April 15, go to file your tax return.  The IRS kindly informs you that your return has already been filed.  What is this, you think?  Has my accountant already handled this?  The IRS then gives you some odd news: you were awarded a large refund.  As reported by Krebs on Security, 111 doctors in New Hampshire have reported this occurring.

The scam involves stolen social security numbers, which allows for the refunds to be filed and claimed.  The refunds typically are issued via prepaid debit cards.

There have been reports of this type of fraud from Arizona, Connecticut, Indiana, Maine, Michigan, North Carolina and Vermont.

There is speculation that some sort of database was breached/hacked as the claims all involve clinicians, as opposed to support staff such as HR or marketing.

Resolving the issue will take time and the always pleasant idea of working with the IRS.  If this has happened to you, a call to your accountant and attorney would be a good idea.

A success story: one clinic’s reduction of med-mal claims.

Posted in Health Care Law, Litigation Tips, Medical Malpractice, Risk Management, Tort Reform

iStock_000004391035SmallA hospital in Connecticut recently reported a drastic drop in both claims made and settlements paid after a safety training regime aided by the hospital’s med-mal insurer.

In 2004, the hospital joined with its med-mal insurer in an effort to increase patient safety and in turn decrease claims made and amounts paid.

Here’s what they did:

–          standardized care,

–          implemented new teamwork protocols, and

–          enhanced oversight of clinical work.

These efforts were in place for five years and compared to the prior five.  The results are astounding.

Forty-four claims were filed during the 10-year study period.

Annual cases per 1000 deliveries decreased significantly over the study period.

Claims (30 vs 14) and payments ($50.7 million vs $2.9 million) decreased in the 5-years after the program’s inception.

Compared with before program inception, median annual claims dropped from 1.31 to 0.64 and median annual payments per 1000 deliveries decreased from $1,141,638 to $63,470.

John Hopkins to pay $190 million for spying doctor.

Posted in Health Care Law, HIPAA, Medical Malpractice, Risk Management

Lawsuit form with a stethoscopeA recent report by CNN indicates that John Hopkins has agreed to a whooping $190 million settlement in a case involving a gynecologist who was alleged to have secretly photographed and recorded his more than 7000 patients.

Dr. Nikita Levy was fired in February 2013 after the Baltimore based health care system discovered he had been using a pen-like camera around his neck to snap photographs of patients.  A diligent co-worker suspected that he had been using the “pen” for nefarious purposes.

Generally speaking, hospitals are liable for the negligent acts of their employees, if those negligent acts are committed within the course and scope of the employee’s conduct.  From the employer’s perspective, criminal acts such as sexual misconduct are well outside the scope of employment.  However, if the employer knew or should have known of the conduct, liability can still flow to the employer, here the hospital.

This case only underscores the importance of a thorough review of prospective employees, and the need to keep one’s eyes open.

Will Obamacare increase the cost for med-mal insurance?

Posted in Health Care Law, Tort Reform

iStock_000004391035SmallA recent report by the Rand Corporation, sponsored by the U.S. Department of Health and Human Services, concludes that the cost of medical malpractice insurance may actually increase under the Affordable Care Act a/k/a Obamacare.  The increase could be up to 5% in some areas, although this is an early and inexact estimate.

According to David Auerbach, the study’s lead author and a policy researcher at RAND, “the Affordable Care Act is unlikely to dramatically affect liability costs, but it may influence small and moderate changes in costs over the next several years.”

The major premise of the article is that the Act will lead to an increase in the number of individuals with health insurance, which will lead to more people seeking medical care, which will in turn lead to more malpractice claims, which could drive malpractice costs higher.

One variable from state to state: whether medical costs are deducted from liability awards.  In Nebraska, if a health care provider pays all or a portion of a claimant’s medical bills, those amounts are presented to the jury, who knows nothing of the fact that the bills were forgiven, and the judge later deducts that amount.  Long term changes in the cost of malpractice insurance will depend on a number of factors, including:

– modifications of tort law,

– changes in the pricing structure for health care,

– changes in the number of practicing physicians, and

– increased efforts by Medicaid to recover a portion of injury payments.

Stay tuned as we watch for how this develops.

Florida throws out caps in med mal cases

Posted in Health Care Law, Litigation Tips, Medical Malpractice, Nebraska Hospital-Medical Liability Act, Tort Reform

It’s time for my somewhat regular update regarding the latest state to address the constitutionality of caps on damages in medical malpractice lawsuits.  Previously, I have discussed Kansas and Missouri and their judicial treatment of such caps.

In its recent decision, the Florida Supreme Court threw out the state’s statutory cap on non-economic damages in medical malpractice cases as violating the Equal Protection Clause of Florida’s Constitution.  In a blistering opinion, the court in McCall v. U.S., No. SC11-1148 (Fl. 2014), decried the creation of an “alleged medical malpractice crisis.”

The court explained that the cap on non-economic damages (pain, suffering, distress, etc.) failed because it imposes an unfair burden on injured parties when there are multiple claimants (the case involved the birth of a healthy child and the death of the mother due to excessive blood loss).  In such a situation, the court found, medical malpractice claimants do not receive the same rights to full compensation as do other claimants in different types of lawsuits.

How was the statute described?Head

– inherently discriminatory

– invidious discrimination

– irrational

– exacting an irrational and unreasonable cost.

Critical to the court’s analysis was that the damages suffered by the children’s parents were determined to be $750,000 each, and the surviving son sustained damages determined to be $500,000. Applying the cap, the federal court then reduced the amounts of damages so each claimant would receive only half of his or her respective damages.  In other words, if the mother had been survived only by her son, he would have recovered the full amount of his noneconomic damages: $500,000. Here, the cap limited the recovery of a surviving child (and surviving parents) simply because others also suffered losses.

As my prior article noted, this is not the first Court to so rule.  Stay tuned for further updates on how other states address this issue and whether they are as harsh as Florida.

Heineman vetos bill to give NPs more freedom

Posted in Health Care Law, Risk Management

Gov. Dave Heineman vetoed Legislative Bill 916, which would have allowed nurse practitioners to practice  without a supervising doctor.  Currently, Nebraska state law requires nurse practitioners to have a practice agreement with a doctor.  Gov. Heineman iStock_000020593175Smallhas made sure that continues.

According to the Omaha World Herald, the supporters of LB 916 claim that the current model – requiring NPs to have a supervising doctor – contributes to a shortage of primary and mental health care in rural areas.  And of course, this is Nebraska we are talking about.

Heineman explained that although he expects NPs to obtain more independence in the future, that time was not yet here.  He was also concerned with patient safety, claiming he would have signed the bill if it required NPs to have at least 4000 hours of clinical experience.

The governor’s veto came despite LB 916 passing by 43-0.  It only takes 30 votes to override a veto.  But the bill was passed on the last day of the legislative session and there will not be a chance to actually override his veto.

One of the main opponents to the bill was physician groups who were concerned with patient safety.


Mandatory Vaccinations?

Posted in Uncategorized

iStock_000011003532LargeVaccinations or rather, the lack thereof – has been a hot topic in the news lately. The media is reporting increased outbreaks of communicable diseases with the finger pointed at those individuals who choose to not vaccinate out of a fear, amongst others, that vaccinations cause autism.

Studies conducted in the scientific community have largely discredited any association between vaccinations and autism.  Most recently, a March 2013 study published in the Journal of Pediatrics concluded that there is no causal relationship between vaccines administered in the first two years of life and autism.

So with this in mind, can anyone be legally forced to vaccinate? In Nebraska, school age children attending private or public school are required to be immunized for Diptheria, Tetanus, Pertussis, Polio, Measles, Mumps, Rubella, Hepatitis B, and Varicella (Chicken Pox). Nebraska hospital employees are required to be vaccinated for various diseases including Influenza and Hepatitis B.

Currently, all 50 states, including Nebraska, require certain vaccinations for children entering public and private schools. All states except for Mississippi and West Virginia permit religious exemptions for vaccinations and twenty states allow exemptions for philosophical reasons.  Nebraska does not include an exemption for philosophical reasons but allows exemption for medical reasons or religious beliefs.  As a result of recent outbreaks of previously controlled diseases, many have urged for religious and philosophical exemptions to be eliminated or severely limited in scope.  (There may be constitutional issues with limiting such exemptions.  I will leave this discussion for another day).

There is no federal legislation requiring vaccinations. When necessary, the federal government uses quarantine and isolation to halt the spread of communicable diseases.

Dr. Kristen Feemster, a pediatric infectious disease physician at the Children’s Hospital of Philadelphia writes in a New York Times Op-Ed that it is the “scientific and public health community’s responsibility to … ensure the health of the communities in which they live.” In order to close the “vaccine confidence gap” she encourages the public health community to provide accurate and clear information on vaccinations:

“We are fortunate to live in an era when we rarely see many vaccine-preventable diseases — the risk of these diseases seems minimal while the perceived risk of vaccination becomes larger. This is compounded by the proliferation of misinformation, readily available from the news media and other sources. This has resulted in what many describe as the ‘vaccine confidence gap.’ There is no doubt that this gap needs to be addressed. It is the responsibility of the scientific and public health community to ensure that vaccines are safe. It is that community’s responsibility to listen to concerns and provide accurate and clear information.”

I think Dr. Feemster’s message is spot on – the public health of our communities continues to be at risk unless the “vaccine confidence gap” is bridged.




He said she said he heard it from a friend….

Posted in Health Care Law, HIPAA, Litigation Tips, Medical Malpractice

iStock_000004391035SmallREO Speedwagon might have been discussing the Nebraska Supreme Court’s recent opinion in C.E. v. Prairie Fields Family Medicine, P.C., 287 Neb. 667 (2014) in their famous song, “Take it on the Run.”

The Prairie Fields case dealt with the issue of whether a patient could sue a medical provider for intentional and negligent infliction of emotional distress for the alleged unauthorized disclosure of that patient’s testing positive for HIV.

In a ruling that should concern any health care provider, the Nebraska Supreme Court allowed the patient’s lawsuit to continue.

The patient offered the following evidence:

– that an ex-boyfriend contacted her the day after she had learned about the positive results;

– the ex learned about the test result from one of his friends;

– the ex’s friend admitted that he called the patient’s ex; and

– this same friend testified that he overheard a rumor to this effect from strangers while at a bar, but did not remember what day he purportedly heard this rumor in a bar.

The Nebraska Supreme Court held that if a jury believed the patient’s testimony, then the ex’s friend heard a rumor about the patient contracting HIV less than 24 hours after the patient learned the test results herself and despite her testimony that she did not disclose the information to anyone else.

Additionally, the health care provider did not present evidence to refute the patient’s testimony that no one at the diagnostic laboratory or insurance company would have known about her test results.

So, REO Speedwagon may have had it right.  But on a serious note, this case underscores just how serious is HIPAA compliance.