Suits for nursing-home neglects sound in general negligence rather than medical malpractice, and are consequently not subject to damage caps

By Alex Stein

The West Virginia Supreme Court has recently delivered a super-important malpractice decision, Manor Care, Inc. v. Douglas, — S.E.2d —- (W. Va. 2014), holding that suits for nursing-home neglects sound in general negligence, rather than medical malpractice, and are consequently not subject to damage caps. This decision is very well reasoned and I expect it to be followed in other states that cap medical-malpractice damages.  Read More

Medical Malpractice: FTCA’s Trap for the Unwary

By Alex Stein

Anyone interested in medical malpractice must read the First Circuit’s decision in Sanchez v. United States, 740 F.3d 47 (1st Cir. 2014).

Mr. Sanchez’s wife died in a Massachusetts hospital shortly after delivering her third child by c-section. She died from arguably preventable hemorrhaging. Mr. Sanchez and his lawyer thought that they had a 3-year window for filing medical malpractice suit in connection with that death, as prescribed by Massachusetts law, Mass. Gen. Laws Ch. 260, § 2A. Unbeknownst to them, however, the hospital was a federally qualified health center, which made the doctors who treated Mrs. Sanchez “federal employees” under the Federally Supported Health Centers Assistance Act of 1992, 42 U.S.C. § 233. As a result, Mr. Sanchez could only sue the United States under the Federal Tort Claims Act (FTCA). He wouldn’t mind doing so, but his ability to file such a suit had expired in two years pursuant to FTCA. This predicament is known as FTCA’s trap for the unwary: see here. Read More

The Law & Economics of the VA Fiasco

By Alex Stein

Over at the CATO blog, Roger Pilon discusses the unfolding VA fiasco that involves hospitals covering up their failures to provide acutely needed services to veterans and doctors working in a slowdown mode (as illustrated by an eight-person cardiology department that “sees as many patients in a week as a single private practice cardiologist sees in two days”). He describes this fiasco as a paradigmatic example of government failure and proposes a remedy: the government should steer away from actually  providing medical care; instead, it should give veterans vouchers towards purchasing medical services on the competitive private market.

This proposal does not take into account the economies of scale and scope that the government can realize from centralizing the purchase of medical work, facilities and equipment, and from self-insuring against medical malpractice instead of buying expensive liability coverage. These economies dramatically reduce the cost of medical care and increase its affordability. Our market for medical care sets prices that many people, including veterans, cannot afford. The voucher system cannot bring those prices down.  Making this system work without shortchanging veterans would therefore cost the taxpayers a fortune. Read More

The Law of Breast Cancer

By Alex Stein

During an annual mammogram screening for breast cancer, the radiologist detects a nodule in the patient’s breast. The nodule is large enough to require a biopsy, but the radiologist prefers to schedule a follow-up appointment with the patient for six months later. This appointment reveals that the nodule had grown and the radiologist refers the patient to a biopsy. The biopsy is carried out four days later by a surgeon. The surgeon determines that the nodule was malignant and diagnoses the patient with breast cancer. The patient consults two breast cancer specialists who unanimously recommend mastectomy and chemotherapy. These procedures and the ancillary treatments prove successful. They make the patient cancer free in one year. The chemotherapy caused the patient to experience hair loss, pain, nausea, headaches and fatigue, but all these symptoms are now gone as well.

The patient is happy with the result but is still upset. She believes that a timely discovery of her cancer would have given her a far less painful and less disfiguring treatment option: lumpectomy followed by radiation therapy.

Can the patient successfully sue the negligent radiologist? Read More

Fixing California’s Tort Reform

By Alex Stein

California’s referendum initiative to make an inflation-based adjustment to the state’s 39-years old $250,000 cap on noneconomic damages for medical malpractice moves forward. See here.

The California Medical Association (CMA) unsurprisingly opposes this initiative. According to CMA, “The $250,000 cap on non-economic damages is an effective way of limiting frivolous lawsuits.”

This is hilarious. I am yet to see a frivolous plaintiff who looks down at a $250,000 windfall. Discouraging frivolous suits by capping noneconomic compensation is as good as deterring hypochondriacs and malingerers by kicking them out of the doctor’s office after five consecutive visits. The best way to deter frivolous medical-malpractice suits is to set up a categorical rule that requires plaintiffs to file an affidavit from a qualified medical expert that verifies the complaint against the defendant physician by specifying her deviation from the medical profession’s practices and protocols. This suit-screening rule has proved most effective both in theory and as an empirical matter. Unlike many other states, California has not yet implemented it, though. Therefore, instead of trying to defend California’s unreasonable cap, CMA will do well to urge the legislature to implement this rule. Read More

Suits against labs sound in ordinary negligence rather than medical malpractice

By Alex Stein

Last week, the Supreme Court of Rhode Island decided that suit against a lab for failure to identify illness or genetic disorder sounds in ordinary negligence and not in medical malpractice.  Ho–Rath v. Rhode Island Hospital, — A.3d —-, 2014 WL 1765421 (R.I. 2014). The “ordinary negligence” sound is music to the plaintiffs’ ears: it exempts them from statutory caps on damages, from the restrictive limitations and repose provisions, from demanding requirements for expert testimony, and from other procedural burdens. See here.

This ruling was based on Rhode Island’s statutory definition of healthcare provider. The Court held that this definition excludes labs because they do not treat patients and have a separate licensing system. In the case at hand, the Court’s ruling enabled the plaintiffs to toll the statute of limitations by invoking the broad undiscoverability exception not available in suits for medical malpractice.

Doctrinally, this precedent exposes labs to an increased prospect of tort liability, but I doubt that it will affect lab prices. The lab industry follows established protocols that minimize errors. Compliance with those protocols indicates adequate care that virtually guarantees the lab an immunity against suit. Also: the vast majority of lab errors result from mistakes made by clinicians and hospital administration. See here.

Medical Malpractice or General Negligence? A Redux

By Alex Stein

Whether a tort action sounds in “medical malpractice,” as opposed to “general negligence,” or vice versa, is often critical. Medical malpractice actions must satisfy special requirements that include shortened limitations periods, statutes of repose, expert affidavits, and merit certificates. Suits sounding in ordinary negligence need not satisfy those requirements. Filing and prosecuting those suits is therefore not as onerous and expensive as filing and prosecuting medical malpractice actions.  Read More

Mental Therapist’s Duty to Prevent Patient’s Crime

By Alex Stein

A clinical social worker hears from his patient about the patient’s interest in child pornography, but does nothing to solve the problem. Later on, the police raids the patient’s house to find evidence that he illegally downloaded, viewed and possessed child pornography. The patient now faces criminal charges.

Can he sue the social worker for malpractice? Would a similar suit be available against a psychiatrist? Read More