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Medical Malpractice, Professional Liability, and Health Care

The Michigan Supreme Court has overruled the Michigan Court of Appeals in the case of Greathouse v. Rhodes, M.D. (see news item below), finding no justification in either the statute or the court rule for its ruling that a challenge to an expert's qualifications must be made within a reasonable time. This represents a decision in favor of the plaintiff on this issue. Added October 27, 2001

The Michigan Supreme Court has ruled, in the case of Wickens v. Oakwood Hospital, that the cause of action for "loss of a chance to survive", as limited by the Michigan tort reform statute, applies only to death claims (i.e., those in which the damage has in fact been incurred) and not to those by living plaintiffs (those for whom the damage has not yet been incurred). Added July 27, 2001

The Federal Department of Health and Human Services has issued final regulations, accompanied by a mammoth set of comments, governing the release of medical information by medical providers, insurers, and managed care organizations. We have posted our own version of the collection.

Rep. Tom Bliley has introduced the Patient Protection Act of 2000, a bill to open the National Practitioner Database to the public, patterned after the state program in Massachusetts. Added October 8, 2000

The Michigan Court of Appeals has ruled that a defendant who waited until the time of trial to object to the qualifications of an expert witness to testify had waived the objection. In Greathouse v. Rhodes, M.D., the Court stated that the challenge must be mounted within a reasonable time after the witness is disclosed. NOTE: This aspect of the decision was overruled by the Michigan Supreme Court in 2001. See above. Also of interest is the fact that this case is the first time to our knowledge that a Michigan court has addressed the admissibility of HHS Clinical Practice Guidelines. The ruling: this issue will be handled in the same fashion as the use of learned treatises in general, under the Rules of Evidence. Added September 15, 2000

Sens. Sessions and Grassley have introduced a bill to modify the current bankruptcy law to place a cap (a sliding amount from $250,000 to $1 million, depending on the age of the debtor) on the amount within a pension or retirement account that can be protected from creditors in bankruptcy proceedings. Currently, the bankruptcy law protects assets according to state law criteria, and Michigan protects all retirement accounts without any cap. Added May 14, 2000

The National Institute of Medicine, an arm of the National Academy of Sciences, has published a report entitled To Err Is Human: Building a Safer Health System as the first publication of its Committee on the Quality of Health Care in America. This publication has garnered a tremendous amount of publicity.

The Michigan Court of Appeals has decided in the case of Taylor v Kurapati that Michigan will no longer recognize a cause of action for "wrongful birth". This decision has overturned numerous previous cases which had tried to walk a careful line between "wrongful life" cases (never recognized in this State) and wrongful birth claims, which have been recognized up to this point. The Court has decided to apply this case prospectively only. The opinion provides an extensive analysis of the development of this area of the law of damages. It is remarkable for having come to its decision without the issue having been raised and briefed by the parties to the case.

The Ohio Supreme Court has overturned that state's tort reform statutes, primarily on separation of powers grounds. The case is State ex. rel Ohio Academy of Trial Lawyers v. et al v. Sheward, Judge et al., and was released on August 16, 1999.

The Michigan Supreme Court has issued a ruling overruling the Michigan Court of Appeals and reinstating the 1996 tort reform restrictions on the qualification of expert witnesses in medical malpractice cases. The opinion in McDougall v Schanz was released on July 30, 1999.

The Illinois Supreme Court has declared unconstitutional that state's 1995 tort reform statute which had placed a $500,000 cap on non-economic damages in medical malpractice cases. See a discussion posted by Chicago's McCullough, Campbell & Lane. Item updated 10-22-98

A jury in New Haven, Connecticut has awarded $12.2 million to a physician who was infected with HIV by pricking herself with a needle after being directed to draw blood from an AIDS patient. This incident occurred while she was working as an intern in August 1988. Her claims were based on failure to properly train and supervise interns and residents on the proper approach to drawing blood from patients known to have AIDS. See a sample news report. The defendant was Yale University, which sponsored the residency program through its medical school. The intern's employer, the Yale/New Haven Hospital, was also a party plaintiff, aligned against the medical school, for recovery of its workers' compensation lien. This case has some lessons for medical education programs on the relative responsibilities of sponsoring medical schools and placement hospitals when issues of medical safety are involved. (Added December 20, 1997)

News reports (an example) disclose that a nurse has been fired from a Bay City hospital after an incident involving a retained foreign body, and the incident has given rise to public wrangling and finger-pointing between the physician and the nurse over the question of who was to blame. The publicity over this incident provides a prime example of how not to handle medico-legal events in advance of litigation, and why. (Added November 9, 1997)

The New York Court of Appeals has issued a ruling holding that a maker of a polio vaccine may be held liable to a non-patient who contracted polio from contact with his infant daughter after she was vaccinated. The case is Tenuto v. Lederle Laboratories. An article about the case is available at the Law Journal Extra site. (Added October 25, 1997)

The Federal Government's Health Resources and Services Administration, Bureau of Health Professions, has posted its 1996 Report on the operation of the National Practitioner Data Bank. Among its findings: by the end of 1996, the Data Bank had reports on over 145,000 payments or adverse actions involving 99,925 practitioners. Cumulatively, the mean malpractice payment was $154,404 ($165,225 adjusting for inflation) and the median payment was $52,250 ($57,604 adjusting for inflation). Both the mean and the median payment for 1996 were above these figures. During 1996, as in previous years, obstetrics-related cases, which represented 7.0 percent of all malpractice payment reports had the highest mean and median payment amounts ($363,206 and $200,000 respectively). (Added October 14, 1997)

The Ninth Circuit Court of Appeals has held, in the case of In re: Robert Z. Gergely, that a judgment for malpractice may not be dischargeable in bankruptcy. The claimed negligence involved alleged fraud in inducing a patient to undergo amniocentesis. No intentional or willful wrongdoing was involved. The Court determined that claims based on fraud are non-dischargeable under the U.S. Bankruptcy Code.

The Michigan Court of Appeals has issued its decision in the case of National Bank of Detroit, P.R. v Barry, reaffirming the rule previously announced in Hill v Kokosky, 186 Mich App 300 (1990), that a physician who provides informal advice to a patient's physician, but who does not see the patient or provide any treatment, has no physician-patient relationship, owes no duty of due care, and cannot be held liable to the patient for alleged negligence in providing advice. "The opinions were not in the nature of a prescribed course of treatment, but were recommendations, to be accepted or rejected as the treating doctor saw fit." The Court thus reaffirms the protection afforded to non-treating physicians, who otherwise would refuse to accept phone calls from their colleagues for fear of liability. Imposition of liability would result in disaster in our rural areas, whose primary care doctors would be cut off from the expertise of nearby specialists. (Added June 8, 1997) See also Commentary: Curbside Consultations: A Closer Look at a Common Practice, F. A. Manian, D. A. Janssen, JAMA 1995:275:145-147

The dismantling of Michigan's 1986 and 1993 tort reforms continues with the adoption of amendments to the Michigan Court Rules, deleting the provisions for participation by health care providers on pretrial mediation panels effective July 1, 1997. (Rule 2.403(D)). Is this a signal on how the Supreme Court will rule on the McDougal case? (Added May 3, 1997)

What do you know about the Department of Justice's new "72-hour Window" program for hospitals? Read Kutak Rock's analysis of this new enforcement initiative. (Added September 14, 1996)

Michigan Court of Appeals issues decision in McDougal v Shantz striking tort reform provisions restricting expert testimony in medical malpractice cases. (Added September 9, 1996)

See our new Alert on new disciplinary actions being taken by the Department of Licensing and Regulation against physicians. (Added August 26, 1996.)

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