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The Joint Commission on Accreditation of Healthcare Organizations (JCAHO) issued an alert on Oct. 6 cautioning health care providers about the dangers of "anesthesia awareness." The organization asserts that tens of thousands of patients undergoing surgery each year remain partially awake while under general anesthesia during surgery, but are unable to communicate this problem to their caregivers. JCAHO's alert aims to make health care providers more aware of this phenomenon so that they can reduce the risks of its occurrence and better support patients when it does happen.
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Patients in hospitals and nursing homes sometimes get injured, perhaps when they become disoriented and try to get out of bed unassisted or are being moved by hospital staff from a gurney to a bed. Patients can experience cerebral hypoxia (<i>ie</i>, a deficient oxygen supply to the brain) from anesthesia or surgical complications. Medical malpractice lawsuits often follow, with plaintiffs asserting that the hospital, nursing home staff or physicians failed to properly monitor and maintain the patient's safety. These plaintiffs may claim to have suffered acquired brain injuries (ABIs) or traumatic brain injuries (TBIs) that continue to hinder their ability to function in their everyday lives. However, while these assertions may be true, they call for further investigation on the part of the defense. Plaintiffs in medical malpractice actions have a financial incentive for exaggerating their symptoms, so an evaluation should be made to determine if the plaintiff is malingering.
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The California Court of Appeal recently interpreted the scope of California Business & Professions Code ' 809.05, subdivision (a) in the case of <i>Weinberg v. Cedars-Sinai Medical Center</i>, 119 Cal. App. 4th 1098; 15 Cal. Rptr. 3d 6; 2004 Cal. App. LEXIS 1017 (5/28/04). <i>Weinberg</i> is the first published opinion dealing with the law, which requires that a hospital governing body give "great weight" to a peer review committee's recommendations regarding disciplinary proceedings against a physician, but authorizes the body to reject those recommendations, provided it does not do so arbitrarily or capriciously. The California Court of Appeal applied this statute to the review of physician disciplinary charges by the governing board of Cedars-Sinai Medical Center after four peer review committee members identified deficiencies in a physician's performance, but nonetheless recommended against terminating his staff privileges.
In recent years, many states have enacted punitive damage limitations on medical malpractice actions to help doctors, nurses and other health care workers stay in business and to stem the tide of medical insurer defections from high-risk states to states offering lower exposure to loss. However, depending on the way the punitive damage cap provisions are written, states may or may not be affording health care workers and insurers the protections they intended to give. Case in point: <i>Johannesen v. Salem Hospital</i>, 336 Or. 211, 82 P.3d 139 (2003). In this case, the Oregon Supreme Court issued a decision that broadens the scope of punitive damages claims against health care providers in Oregon beyond those that the legislature presumably intended.
On Sept. 14, the Republican-led House passed a bill dubbed the Lawsuit Abuse Reduction Act of 2004 that aims to do just that: deter attorneys and their clients from bringing unfounded suits. The vote was 229-174 for the bill that would impose sanctions on lawyers who bring suits that are deemed unfounded.
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Recent news of importance to you and your practice.
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Times have changed. Depositions, used at trial for impeachment purposes, are now more than just dry words on a page. Increasingly, they are on videotape and the courts are happy about that. <i>Weseloh-Hurtig v. Hepker</i>, 152 F.R.D. 198, 201 (D. Kan. 1993). Should medical malpractice lawyers feel the same way? Well, it depends on whether you are the attorney taking the deposition or if you are the one whose client's deposition is being captured on video. It can be a blessing or it can be the death knell for your case. Let's look at this developing trend.
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In the previous months' newsletters, we looked at two of the three significant cases interpreting the Health Insurance Portability and Accountability Act, Pub. L. No. 104-191, 110 Stat. 1936 (1996) (HIPAA). <i>Northwestern Memorial Hospital v. Ashcroft</i>, 2004 U.S. App. LEXIS 5724 (7th Cir. 2004), a case decided by the U.S. Court of Appeals for the Seventh Circuit, rejected the idea that HIPAA created a new federal privilege regarding abortion medical records. In <i>South Carolina Medical Association v. Thompson</i>, 327 F.3d 346, 2003 U.S. App. LEXIS 7940 (4th Cir. 2003)(cert. denied 2003 U.S. LEXIS 8010 (U.S., Nov. 3, 2003)), the Fourth Circuit held the HIPAA regulations themselves to be constitutional. The third case of note on the subject of HIPAA interpretation, which we look at this month, is <i>Law v. Zuckerman</i>, 307 F. Supp. <b>Part Three of a Three-Part Article</b>.
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The latest happenings in the world of medical malpractice.