Med Mal News

Judge: FL Law Compelling Permission for Ex Parte Interviews Oversteps

U.S. District Judge Robert Hinkle has issued an injunction against imposition of the dictates of a Florida law which says that those planning to sue for medical malpractice must first agree to permit their health care providers to be interviewed by the defense outside the presence of the plaintiff's attorney. The rationale for the law, which took effect on July 1, is that if defense counsel have the whole story from a plaintiff's medical care providers they will be in a better position to determine early on whether settlement is the best option. The judge was not against encouraging settlement but explained his objection to the law: “It is virtually certain that if an ex parte interview occurs, private information otherwise protected from disclosure by federal law … will be disclosed.”

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CT Supreme Court Will Consider Viability of Suit Against Social Worker

A man convicted of possessing child pornography is attempting to sue the social worker who failed to act after he told him, at the age of 14, that he was viewing child pornography. He claims that if the social worker had intervened at a crucial time in his own adolescence, he could have avoided, as an adult, engaging in the behavior that led to his criminal conviction. A trial court dismissed the suit on public policy grounds, finding that the plaintiff's injuries, being caused by his own wrongful conduct, could not form the basis of a claim for damages.

The Connecticut Trial Lawyers Association is coming to his aid in the appeal, but advocates for the defendants, including the Connecticut Defense Lawyers Association, have weighed in against reinstatement, arguing that a plaintiff verdict could permit criminals to shift blame to former medical care providers. That would a legitimate outcome, says the plaintiff's lawyer, James P. “Jim” Brennan, of the Brennan Law Firm in Waterbury, CT: “The health care provider in this case knew or should have known that his failure to address the plaintiff's very serious anti-social behavior could lead to the plaintiff's addiction, arrest and incarceration. In other words, it was foreseeable.”

NJ Supreme Court Mulling Whether Documents Are Discoverable

New Jersey's highest court is currently considering the appeal of a decision holding that only documents specifically prepared by a hospital in compliance with the State's 2004 Patient Safety Act are privileged and not discoverable by injured patients. The Act, which exempts certain documents from discovery in litigation, was passed in response to a string of murders tied to one nurse who worked at several different care facilities. The legislation is meant to encourage hospital workers and their employers to openly discuss medical mistakes and mishaps without fear.

The plaintiffs in the birth injury medical malpractice suit are seeking access to two documents: a post-incident analysis from the director of patient safety, and the ob-gyn department's quality assurance response. The lower court exempted only the post-incident analysis from discovery, concluding that self-analysis documents are privileged but' investigations of facts are discoverable. On appeal, the hospital's representative, Douglas Eakeley of Roseland, NJ's Lowenstein Sandler, argued that the fact investigation was made as a predicate to the self-analysis that the hospital intended to conduct, so it too should be privileged from discovery by the plaintiffs.

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Judge: FL Law Compelling Permission for Ex Parte Interviews Oversteps

U.S. District Judge Robert Hinkle has issued an injunction against imposition of the dictates of a Florida law which says that those planning to sue for medical malpractice must first agree to permit their health care providers to be interviewed by the defense outside the presence of the plaintiff's attorney. The rationale for the law, which took effect on July 1, is that if defense counsel have the whole story from a plaintiff's medical care providers they will be in a better position to determine early on whether settlement is the best option. The judge was not against encouraging settlement but explained his objection to the law: “It is virtually certain that if an ex parte interview occurs, private information otherwise protected from disclosure by federal law … will be disclosed.”

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CT Supreme Court Will Consider Viability of Suit Against Social Worker

A man convicted of possessing child pornography is attempting to sue the social worker who failed to act after he told him, at the age of 14, that he was viewing child pornography. He claims that if the social worker had intervened at a crucial time in his own adolescence, he could have avoided, as an adult, engaging in the behavior that led to his criminal conviction. A trial court dismissed the suit on public policy grounds, finding that the plaintiff's injuries, being caused by his own wrongful conduct, could not form the basis of a claim for damages.

The Connecticut Trial Lawyers Association is coming to his aid in the appeal, but advocates for the defendants, including the Connecticut Defense Lawyers Association, have weighed in against reinstatement, arguing that a plaintiff verdict could permit criminals to shift blame to former medical care providers. That would a legitimate outcome, says the plaintiff's lawyer, James P. “Jim” Brennan, of the Brennan Law Firm in Waterbury, CT: “The health care provider in this case knew or should have known that his failure to address the plaintiff's very serious anti-social behavior could lead to the plaintiff's addiction, arrest and incarceration. In other words, it was foreseeable.”

NJ Supreme Court Mulling Whether Documents Are Discoverable

New Jersey's highest court is currently considering the appeal of a decision holding that only documents specifically prepared by a hospital in compliance with the State's 2004 Patient Safety Act are privileged and not discoverable by injured patients. The Act, which exempts certain documents from discovery in litigation, was passed in response to a string of murders tied to one nurse who worked at several different care facilities. The legislation is meant to encourage hospital workers and their employers to openly discuss medical mistakes and mishaps without fear.

The plaintiffs in the birth injury medical malpractice suit are seeking access to two documents: a post-incident analysis from the director of patient safety, and the ob-gyn department's quality assurance response. The lower court exempted only the post-incident analysis from discovery, concluding that self-analysis documents are privileged but' investigations of facts are discoverable. On appeal, the hospital's representative, Douglas Eakeley of Roseland, NJ's Lowenstein Sandler, argued that the fact investigation was made as a predicate to the self-analysis that the hospital intended to conduct, so it too should be privileged from discovery by the plaintiffs.

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