Features
Marcia Coyle
A federal appeals court is weighing whether to review a controversial tax decision in which a unanimous three-judge panel struck down as unconstitutional the federal income tax on nonphysical, compensatory damages awards. (<i>See</i> 'Court Tosses Federal Tax Statute Covering Emotional Damages,' <i>Medical Malpractice Law & Strategy</i>, Nov. 2006). Claiming the case is one of 'exceptional importance' to the execution of the nation's tax laws, the Bush administration recently asked the full U.S. Circuit Court of Appeals for the District of Columbia to rehear <i>Murphy v. U.S.</i>, No. 05-5139. In October, the court, on its own motion, ordered lawyers for Marrita Murphy to respond to the government's rehearing petition, a signal that the court is interested, according to some circuit watchers.
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Living victims of medical malpractice are almost always, by definition, not in the best of health. Some have lingering problems, such as scars or recurring pain, but others will have sustained injuries that will eventually lead to their demise. Some may not have suffered life-threatening injuries at the hands of their medical providers, but they are expected to die soon anyway from an unrelated terminal illness, or merely old age. In these situations, the necessity of a speedy resolution to the plaintiff's claim is evident; without it, any benefit the victim might have gained from an award will go to his or her heirs rather than to claimant. In addition, the loss of the claimant's personal testimony at trial may prejudice the outcome of the case.
Jerome M. Staller
I began offering my services as an expert economist more than 25 years ago and have testified in literally thousands of cases. This experience qualifies me, I hope, as an expert in the use of experts, especially the use of expert economists. Here, I offer a few insights I have garnered over the years that I hope will be useful to medical malpractice attorneys. I guarantee that if you heed most of the 'rules' below, you will have helped your economist do the best job he or she can do for you and your client.
Features
Michael D. Brophy
During the late summer and early autumn of 2006, the medical community began to express second thoughts about the safety of drug-coated cardiac stents, which have in recent years been given credit for reducing the frequency of complications arising from the use of a previous generation of stents. The publicity generated by the news media interested me in my professional role representing health care providers, and for personal reasons as well.
Features
Barry B. Cepelewicz
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James R. Denlea
While most physicians today have yet to make the leap into using electronic health records (EHR), more and more physicians are implementing EHR technology in their practices. As a result, physicians and their counsel are now confronting the various hurdles relating to e-discovery in their defense of medical malpractice claims.
David M. Axelrad
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Jeremy B. Rosen
Hospitals trying to assemble a peer review committee to review another practitioner's record and perhaps impose sanctions for substandard performance have their jobs cut out for them because physicians are often reluctant to pass judgment on a colleague. In addition to this natural reticence, those who sit on or testify at a peer review proceeding have another reason to want to avoid it: the threat of lawsuits brought by the medical practitioner facing discipline. The scope of the problem is obvious: without willing and honest participants, the peer-review system that helps keep patients safe is compromised.
Debra Sydnor
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Joshua Becker
If a doctor's mistakes can be broadcast over the Internet for all the world to see, will he or she be more or less likely to settle a claim? What about plaintiffs? What are the implications for them should their suits against doctors and hospitals some day become public knowledge?
Features
Charles Harvey
The classic vicarious liability claim goes something like this: The patient is referred to the local hospital, receives treatment from a physician who is not an employee of the hospital, and now that an adverse outcome has arisen from the treatment, the patient brings a claim against both the physician and the hospital. The foundation of the vicarious liability claim is that the hospital has held out the physician as having 'apparent authority' to act as an agent of the hospital, thereby inducing a reasonable reliance by the patient on that agency. With this year's publication of the new Restatement of the Law (Third) of Agency (2006), there may be subtle changes in store in some courts' inquiry into this aspect of liability assignment; therefore, review of the case law as it now stands and analysis of the change in the Restatement are in order.
