I'm used to sitting in depositions in which a medical malpractice defense attorney will hand my client's informed consent over to my client and then proceed with a series of questions intended to confuse. Malpractice victims obviously do not consent to allow a doctor to commit malpractice, but defense attorneys like to use informed consents against a plaintiff in any way possible.

In Nevada, our Supreme Court recently clarified several informed consent issues in the context of a chiropractic malpractice case.

In Bronneke v. Rutherford, 120 Nev. 230, 89 P.3d 40 (2004), the Court held that consent to treatment may
be express or implied. By seeking chiropractic treatment, a plaintiff's consent to the particular technique may be

implied because as a practical matter, health professionals cannot be required to obtain express consent before each touch or test they perform on a patient.

If you are a malpractice victim, ensure that you are properly prepared by counsel with respect to questions that may arise at deposition, and at trial, regarding informed consent.

A pending case in the Texas Supreme Court may reverse a previous reform to medical malpractice suits in the state. This reform places restrictions on pre-trial discovery and postpones discovery until after the defendant gets an expert report confirming negligence.

This reform was originally made in order to quell excessive litigation. Many trial lawyers, however, are opposed to such reform because getting an expert opinion without full discovery can be very difficult.

The entire article from Legal Newsline detailing the pending case about this reform follows:

Lawyers, doctors await Tex. SC med-mal ruling: report

by Rob Luke

AUSTIN -- The Texas Supreme Court is currently mulling a case that could remove a key reform to the Lone Star State's medical-practice lawsuits, writes a prominent legal journal.

Texas Lawyer (TL) reported today that the case (In Re: Jack Jorden, M.D.) will determine whether restrictions on pre-trial discovery in med-mal cases, introduced in 2003, trump a state provision allowing such discovery. An appellate court in Tyler ruled it did not, but similar courts in Houston and Eastland disagreed.

The 2003 reform, which postpones the discovery phase of a med-mal case until after the defendant gets an expert report concluding negligence, was part of the state's 2003 tort-reform bill called H.B. 4. The bill introduced a variety of reforms because of what it called the state's "environment of excessive litigation."

The point of such changes is to cut costs in the system by weeding out weaker cases through limited discovery. Trial lawyers strongly opposed the move, claiming they could not gain an expert opinion without sufficient discovery, TL noted.

Early signs are that the med-mal reforms at issue in the case are beginning to show positive results, the TL piece pointed out, quoting briefs from the Texas Medical Association (TMA) among others. Access to care is improving while non-meritorious claims are decreasing, TMA's attorney pointed out.

But that could be in jeopardy if the Supreme Court follows the Tyler appellate decision and allows both to co-exist. "If you allow the process that the Tyler Court of Appeals allowed, virtually all of the safeguards on discovery that were imposed by H.B. 4 could be bypassed," R. Brent Cooper, an attorney in the case, told TL.

The state's trial lawyers, not surprisingly, have a different take. Texas Trial Lawyers Association President Jay Harvey told TL the case was about whether "the courts will continue to treat the health-care industry as a protected class beyond the legal system."

Assembly Bill No. 133 dated February 20, 2007 will make some important changes to provisions relating to the status of health and dental insurance policies for patients.

Current law allows insurance providers to refuse to pay for claims until the premium on the policy is paid in full by the patient. Amendments to the rules regarding health insurance will require insurance companies to notify health providers of the status of the insurance policy for their patients. In turn, health providers are then required to inform the patients of this status and what actions the health provider must take under those circumstances. Lastly, health providers must reimburse their patients for any expenses that are later covered by their insurance. 

Assembly Bill number 385 dated March 16, 2007 makes some changes regarding the way the State Board of Medical Examiners oversees the practice of medicine.

First, the Board may issue special restricted licenses to graduates of foreign medial schools who want to do research, teach, or practice clinical medicine and the Board may regulate the performance of laser surgery, intense pulsed light therapy and the injection of cosmetic and chemotherapeutic substances. Only licensed physicians, osteopathic physicians or assistant physicians may do the procedures.

Second, the Board has the right to increase some penalties for physicians who fail to provide written notice of change of status or change of address.

Third, the Board can revise the scope of practice authorized for a physician practicing under a volunteer license to include treatment for uninsured persons or persons unable to afford health care. The Board can also give physicians assistants certain duties and immunities generally applicable to other health providers.

Fourth, the Board may discipline physicians for incurring or failing to report disciplinary action against them in another jurisdiction or for failure to obtain informed consent of a patient prior to a procedure.

Lastly, the Board may provide peer reviewers, employers, and volunteers in diversion programs with limited civil immunity. 

Stem cell will create countless new legal issues in coming years.

The following article from Reuters, taken from Yahoo News, describes recent developments in stem cell research in cardiology:

By Maggie Fox, Health and Science Editor

WASHINGTON (Reuters) - A nutritious cocktail helped human embryonic stem cells thrive and repair the damaged hearts of rats, U.S. researchers reported on Sunday.

The experiment provides the best evidence yet that the powerful but controversial stem cells might be used to repair the ravages of heart attacks and heart failure, the researchers said.

Biotechnology company Geron Corp said it would try to develop the cells into a product. "We're developing our cardiomyocyte product, GRNCM1, to address the large unmet need in heart failure," said Dr. Thomas Okarma, president and chief executive officer of Geron.

Stem cells are the body's master cell, acting as a source for the various cells and tissues in the body. Those taken from days-old embryos, called embryonic stem cells, are the most malleable and can produce all of the cell types.

Their use is controversial because some people oppose the destruction of a human embryo. U.S. President George W. Bush has kept strict limits on federal funding of human embryonic stem cell research. There are no restrictions on privately funded researchers.

Okarma said embryonic stem cells were the only human stem cells that had been shown to form cardiomyocytes -- heart muscle cells.

Because embryonic stem cells are so immature, it is very difficult to control what kinds of cells they produce, and the fear is that a tooth could grow inside a heart, for instance.

"We got stem cells to differentiate into mostly cardiac muscle cells, and then got those cardiac cells to survive and thrive in the damaged rat heart," said Dr. Chuck Murry of the University of Washington's Institute for Stem Cell and Regenerative Medicine, who worked on the study.

But the cells died when they injected them into the hearts of the rats, the researchers reported in the journal Nature Biotechnology.

"This problem is not unique to our system. Death of transplanted cells is slowing research progress in cell therapy for diabetes, Parkinson's disease and muscular dystrophy, among other diseases," they wrote.

So the team developed what they dubbed a "survival cocktail" that included various proteins and other compounds to stop the cells from dying.

It worked. When they caused heart attacks in the rats and then injected the new heart muscle cells, every graft survived and integrated into the hearts of the rats.

They beat in rhythm and improved the heart function of the rats, they reported.

"This is one of the most successful attempts so far using cells to repair solid tissues -- every one of the treated hearts had a well-developed tissue graft," Murry said.

This is key to treating someone after a heart attack, known medically as a myocardial infarction, said Dr. Michael Laflamme, who also worked on the study.

"This sort of treatment could help the heart rebound from an infarction and retain more of its function afterwards," Laflamme said in a statement.

An estimated 865,000 people have heart attacks in the United States every year and more than a third eventually develop heart failure, a chronic condition in which the heart fails to pump blood properly. A third of heart failure patients die within two years.

This from D. Garth Sullivan, Esq. at Indox Consulting. Mr. Sullivan writes to attorneys every week with news from legal-medical frontiers:

The incidence of melanoma has steadily increased in the United States, and from 1995 to 2004, the rate of melanoma rose by more than 1% per year. The rising increase in melanoma is not specific to 1 age group, but the incidence was particularly noted among young adults and the elderly, explained Martin A. Weinstock, MD, PhD, professor of dermatology and community health at Brown University, in Providence, Rhode Island, and chief dermatologist at Veterans Affairs Medical Center in Providence. He was speaking last week at a plenary session at the American Academy of Dermatology's Summer Academy Meeting 2007.

"Of the 10 leading types of cancer, other than keratinocyte carcinomas, only kidney cancer and melanoma rates are increasing," Dr. Weinstock told Medscape in an interview.

There are several possible reasons for the increased incidence in younger and older individuals, said Dr. Weinstock. "Possible changes in diagnostic criteria, increased surveillance, and increased UV exposure may all account for it."

Data from a population based study published in 2006 found that despite public education campaigns to reduce sun exposure, there was little improvement in sun-protection practices and reducing sunburns among youths between 1998 and 2004. (Cokkinides V et al. Pediatrics 2006;118:853-864). According to the survey, which examined trends on sunburns, sun protection, and attitudes related to sun exposure among individuals aged 11 to 18 years, 69% of participants reported having been sunburned during the summer in 2004. This rate was only slightly less than the 72% reported in 1998.

However, when the data were broken down by age, there was a significant decrease in the percentage of youngsters aged 11 to 15 years who reported sunburns, while there was a nonsignificant increase among the 16- to 18-year-olds. The proportion of participants who reported using sunscreen on a regular basis in 2004 was also significantly higher than in 1998 (39% vs 31%).

"A [Centers for Disease Control and Prevention] CDC survey also reported that adults were getting more sunburns in 2004, as compared with 1999," said Dr. Weinstock.

The results of this survey (CDC. MMWR Morb Mortal Wkly Rep. 2007;56:524-528) indicated that sunburn prevalence among all participants rose from 31.8% in 1999 to 33.7% in 2004. Men were reported to have a higher prevalence of sunburn than women during 3 survey years: 35.8% vs 28% in 1999, 37% vs 30.2% in 2003, and 37% vs 30.3% in 2004. The incidence of sunburn was also reported among ethnic and racial groups usually considered to be at low risk of getting sunburn, such as American Indians/Alaska Natives (30.4% for men, 21.5% for women), black Hispanics (12.4% for men, 9.5% for women in 2004), and Asians/Pacific Islanders (16% for men and women). 
While the study found only a small 2% increase in the percentage of adults who reported getting sunburned during that time period, it also showed that the occurrence of sunburns was not declining.

Dr. Weinstock also reviewed the effectiveness of different interventions in changing sun-exposure behaviors. One study conducted in Australia evaluated the efficacy of delivering solar UV forecasts and supporting communications in promoting personal sun-protection practices on weekends (Dixon HG et al. Health Educ Behav. 2007;34: 486-502). The researchers involved in the study did not find any significant changes in behaviors such as the use of hats and sunscreen or sun avoidance that was related to solar-UV forecasts.

On the other hand, another study found that found that a multicomponent community-based intervention was able to successfully increase sun-protection behaviors in children entering sixth to eighth grades. The program involved a variety of role models that included school personnel, coaches, pediatricians, teen peer advocates and lifeguards, all of whom actively encouraged the youths to practice appropriate sun-protection practices (Olson AL et al. Pediatrics. 2007;119:e247-256).

Dr. Weinstock also pointed out that there are benefits from UV exposure, in that it is needed to fuel vitamin D production. "Most physical activity also takes place outdoors," he said. "Therefore, it is important that dermatologists do not tell their patients to avoid the sun completely because of the importance of physical activity and its preventive effect against numerous illnesses, as well as obesity."

When people do engage in outdoor activities, they need to protect themselves from overexposure to UV radiation. "There are 3 public health messages that I focus on," said Dr. Weinstock, "the first being that the healthiest color for your skin is the one you were born with."

The belief that suntans make a person more physically attractive is a primary motive for suntanning behavior. "If you have fair skin and try to make it tan, you are setting yourself up for a problem," he explained. "There is a whole psychology of pursuing a tan, and that is not a good thing. I would focus intervention efforts on changing that perception.

"The second message is that supplements are a safer source of vitamin D than UV radiation, if you need more vitamin D," said Dr. Weinstock. "It is a safer to take vitamin supplements than spend more time in the sun getting excessive UV exposure."

Third, when it comes to protecting the skin, Dr. Weinstock advocates "Slip, slop, slap," which is to slip on a shirt, slop on the sunscreen, and slap on a hat. "This sun-protection message has been adopted by the American Cancer Society as a way of encouraging protection from harmful UV radiation without interfering with physical activity," he said.

This from an email to me yesterday from Indox Consulting. More contradictions in medical research:

Results from a new analysis, initially designed to determine whether there was a correlation between the extent to which statins lowered low-density lipoprotein (LDL)-cholesterol levels and liver and muscle toxicity, suggests that the cardiovascular benefits of achieved levels of LDL cholesterol might be offset by an increased risk of cancer. In an analysis of patients enrolled in large, randomized statin trials, investigators observed a "significant and linear relationship" between achieved LDL levels and the risk of new cancer cases.

"The statin trials have clearly shown that statin therapy, overall, reduces cardiovascular risk," said senior investigator Dr Richard Karas (Tufts-New England Medical Center, Boston, MA). "These findings don't change that. They're based on the same studies. But a component of that, perhaps one of the costs of that, is a relationship between the LDL lowering and cancer risk."

Speaking with heartwire, Karas said the cancer association was a surprise and initially wasn't even on his group's radar. The Boston researchers conducted their analysis examining the relationship of the degree of LDL-cholesterol lowering to liver toxicity and rhabdomyolysis in 23 randomized, controlled trials assessing statin therapy, including, among others, the Scandinavian Simvastatin Survival Study (4S), West of Scotland Coronary Prevention Study (WOSCOPS), Long-term Intervention with Pravastatin in Ischemic Disease (LIPID) study, the Heart Protection Study (HPS), and the more recent trials of intensive vs moderate lipid-lowering therapy such as Pravastatin or Atorvastatin Evaluation and Infection Therapy (PROVE-IT), TNT, and Incremental Decrease in End Points Through Aggressive Lipid Lowering (IDEAL).

Investigators also studied the effect of drug dosage on liver and muscle toxicity. In the first analysis, no matter how investigators looked at the extent of LDL reduction, as a relative or absolute reduction or achieved LDL-cholesterol levels, they observed no relationship between how much the cholesterol was lowered and the risk of liver or muscle toxicity. In the second analysis, however, when they looked at muscle toxicity on the basis of the dose of the drugs, they found that the higher the dose of statins used in the study, the higher the risk of toxicity to the liver.

"Overall, statins are very safe, but the safety implication here is that it does matter how you lower LDL-cholesterol levels," said Karas. "In other words, the high-dose statins are associated with a higher risk of side effects. This does then have implications for how we practice medicine, the question being, and it's just a question, as to whether or not we might be better off using multiple medications, all at modest doses, to try to get the cholesterol targets that we want to get to, to minimize side effects and maximize the benefit."

Considering these findings worthy of publication, the group submitted the manuscript to the Journal of the American College of Cardiology, but, as noted in an editorial comment by journal editors Dr Anthony DeMaria and Ori Ben-Yehuda, the researchers were asked to include cancer in the analysis because "this was the other major side effect often feared from statin therapy." Of the 23 statin therapy trials, 13 studies included the number of patients with newly diagnosed cancer. Overall, there was no significant relationship between percent and absolute reductions in LDL-cholesterol levels. There was, however, a highly significant inverse relationship between achieved LDL-cholesterol levels and rates of newly diagnosed cancer (R2 = 0.43, p = 0.009). The researchers found one additional incident of cancer per 1000 patients with low LDL levels when compared with patients with higher LDL levels. The new cancers were not of any specific type or location.

To heartwire, Karas said the findings are paradoxical in light of recent meta-analyses concluding there is no significant increase in the risk of cancer with statin therapy. Karas stressed, however, that the new findings are observational, hypothesis generating, and in no way definitive. "This is an association at this point," he said. "It might have nothing to do with cause and effect. The best analogy is to say that I have a dog, and every time an airplane goes over my house, my dog goes out into the backyard and barks at the plane. That airplane has never landed in my yard. Now we could say there is a very strong association between my dog barking and planes not landing in my yard, but there certainly is no cause and effect. "Even if the risk of cancer is increased with statin use, Karas said clinicians would have to balance the magnitude of that risk with the benefits of statin therapy."

Dr Thomas Pearson (University of Rochester School of Medicine, NY), who was not affiliated with the study, told heartwire that the results should be interpreted carefully.

"In many ways it is déjà vu all over again," said Pearson. "In the 1970s, there were several papers describing higher risks from cancer in those with the lowest cholesterol levels. This is from the prestatin era. Old-time clinicians will tell you that monitoring cholesterol levels is useful, such that when they start to fall, you should look for a cancer. Indeed, the MRFIT study looked at this and showed the shorter the interval between the cancer diagnosis and the blood test, the lower the cholesterol."

For this reason, said Pearson, one should assume the very low cholesterol levels in patients with cancer on statins are due to a cancer-low cholesterol link rather than a statin-cancer association.

In his editorial, LaRosa points out that no single form of cancer predominates, "so the effect of low achieved LDL would have to have been one that stimulates neoplasia in a variety of tissues." In addition, the effect of low LDL-cholesterol levels would have to be unusually rapid, given that most statin trials lasted five years or less, in producing new cancers.

This from Garth Sullivan, Esq. at Indox Consulting:

For the first time, California consumers can find out how individual cardiac surgeons fare on coronary bypass procedures. In a new report, the state has listed bypass death rates for 121 hospitals and 302 heart surgeons. The data is drawn from adult bypasses performed between Jan. 1, 2003 and Dec. 31, 2004. Hospital fees paid for the $1.5 million report, which was mandated by the state legislature in 2003. A prior report released cardiac bypass death rates at specific hospitals across the state.

The research found 95 percent of heart surgeons generally were in line with the expected mortality average of 3.08 percent, though of course some surgeons looked much worse and some much better. Those who got the short end of the stick, as you'd expect, were quick to note their patients were older and sicker than other surgeons would accept. Some of these surgeons are now saying they'll avoid the sickest patients with the most complicated cases to avoid getting a black eye in similar studies in the future. But public policy analysts say if risk adjustments are done properly, the patient mix shouldn't affect a surgeon's overall scores.

Anyone who's spent anytime in Northern Nevada's rural communities knows that healthcare can be an issue. This article comes from John Wheeler, special to the Reno Gazette Journal, and was published on June 24, 2007.

When it comes to economic development, rural communities readily see the benefit in attracting traditional businesses, such as warehouses or processing plants.

But they might get more bang for the buck by recruiting a doctor or some nurses, said Caroline Ford, assistant dean and director of the Center for Education and Health Services Outreach at the University of Nevada School of Medicine.

"Good quality medical care is an important recruitment piece for people moving to a community and for industries to locate in those communities," said Ford, whose duties include directing the Nevada Office of Rural Health.

It wasn't long ago that Nevada's rural hospitals were bleeding money. However, in 2000, rural hospitals received important support from the Nevada Rural Hospital Flexibility Program, a federally funded program administered by the Nevada Office of Rural Health.

"The program helps small rural hospitals receive the designation Critical Access Hospital. It's helped keep doors open and also recruit physicians by offering better salaries, bonuses and enhancements," said program director John Packham.

The key benefit of the designation is that it allows rural hospitals to receive Medicare reimbursement for the actual cost of care, rather than on the traditional set-fee payment schedule, which often cost hospitals money. Nevada certified its first critical access hospitals in 2000 and now has 11 designated facilities.

Matt Rees, administrator of Pershing General Hospital in Lovelock, said that the hospital also has worked hard to change community attitudes.

"Basically changing the perception of people that we're a Band-Aid station and that you have to go out of the area for quality care," he said.

The Flex Program also provides health services research and financial analysis to rural hospitals. This research helps rural hospitals avoid costly mistakes. For example, a 2006 feasibility analysis for a kidney dialysis center at Humboldt General Hospital in Winnemucca concluded that such a center would likely be a money loser.

A Flex Program assessment of payroll and job impact shows that rural hospitals are key economic drivers in their communities.

"County commissions typically think of the health sector being a drain on county budgets, but they not only generate jobs and payroll in their own right, they have added impacts because they purchase goods and services in the local economy," Packham said.

Northern Nevada Medical Center and Universal Health Services, Inc. announced the promotion of Lisa Wilson to chief operating officer for Northern Nevada Medical Center in Sparks.

Wilson was an associate administrator at Northwest Texas Healthcare System, a 489-bed hospital in Amarillo, Texas.

Wilson's previous experience includes more than nine years in various leadership roles.

She received her bachelor's degree from Stephen F. Austin State University in Nacogdoches, Texas, her master's degree in biomedical sciences from the University of Texas Southwestern Medical Center in Dallas; and her Master of Business Administration from Wayland Baptist University, Amarillo, Texas.

This article by Zack Hall from today's Reno Gazette Journal provides detail:

The region's major hospitals want people in Northern Nevada to know that the reasons for leaving Nevada for health care are waning.

Renown Health, Saint Mary's Regional Medical Center, Carson-Tahoe Regional Medical Center and Northern Nevada Medical Center all are in expansion mode, and that means more services are being offered to more people.

In fact, Northern Nevada's three largest hospitals will complete nearly $500 million in new construction by this summer, the product of a three-year building binge at Saint Mary's, Renown and Carson-Tahoe.

Nowhere is that more apparent than at Reno's Renown, which other than changing its name from Washoe Medical Center, soon will open its $240 million patient tower and has plans for future growth in the millions of dollars.

Jim Miller, president/CEO of Renown, the area's largest health care network, says the rapid expansion of all the hospitals has allowed for better service in such fields as oncology and cardiology, areas where a lack of specialists in Northern Nevada previously sent patients to California.

"They don't need to leave as they used to to get their care," Miller said. "Specifically, things that come up are children's services and cancer. We believe that with the services available in the hospitals in our community, we should be able to treat most cases that people have."

With the new Tahoe Tower, Renown also will have more private and amenity-rich rooms, something that Saint Mary's also is looking to include.

Renown also has stepped up its efforts with cardiology, adding a Women's Heart Program, and neurosurgery, becoming one of the first 20 hospitals in the country to offer Novalis Shaped Beam Radiosurgery, which allows non-invasive surgery on such maladies as brain tumors, officials say.

But expansion hasn't stopped with Renown.

Prescriptions for success

Saint Mary's expansion has included its $160 million Center for Health, an outpatient facility that has helped the hospital expand such services as orthopedics as well as preventative care efforts with its three-story fitness center housed inside the building.

Northern Nevada Medical Center, which along with Saint Mary's has struggled to get contracts with health insurance providers that give access to the Sparks facility, has invested in a $1.8 million lab for cardiac services and has plans to expand laboratory services for outpatient treatment and to add an imaging center for Spanish Springs.

Carson-Tahoe, with its new facility in north Carson City, started its cancer center and a cardiac care unit, to give more expansive care to its patients.

"We have cancer patients telling us that in the past they would have chosen to go to maybe Davis (Calif.) or San Francisco or somewhere else," said Diane Rush, marketing coordinator for Tahoe Regional Healthcare. "Now we have the capability of treating that all here in one comprehensive place. And we have gone above and beyond to make sure that we measure up with the technology, with the skilled physicians, getting the (American College of Surgeons) accreditation."

Vital signs

The hospitals in the region are big business, have a huge economic impact in the area and are ultra-competitive.

In total, hospitals account for 9,000 direct jobs and 7,000 indirect jobs, according to a report by area hospitals released in May.

But each hospital is taking a different approach to its growth.

Northern Nevada Medical Center has tried to focus on its patient service, including its guarantee that a staff member will see a patient within 15 minutes of entering the emergency room; it also has added its first urologist to its emergency department.

The Sparks hospital, the smallest of the major hospitals, is trying to get better access to patients by contracting with insurance companies.

Most health-care contracts in Northern Nevada are negotiated exclusively for patients to be treated at either Saint Mary's Health Network or, to a much larger extent, Renown Health. Northern Nevada and Saint Mary's want to change that.

To that end, Northern Nevada entered last year into a contract with Blue Cross/Blue Shield of Nevada, one of the largest carriers in the state, and is in negotiations with carriers such as United Health and Aetna to make its services more widely available.

"We are focused on giving people an opportunity to choose us for their services," said Brandt Wright, chief executive and managing director of the Sparks hospital. "(The Blue Cross/Blue Shield contract) gave about 60,000 people in our immediate service area access to our hospital who didn't have access to our hospital. Obviously, if you are talking about developing new services and investing new capital, people have to have access to your services in order to get a return on that investment."

Healthy competition

Competition with Renown, which has the only Level II-trauma center and neonatal care facility, has been difficult for the two smaller hospitals in the Reno-Sparks area.

Saint Mary's just three years ago fell into financial trouble, losing $10 million in 2004, when it began layoffs and other cuts that eliminated more than 200 jobs.

Like Northern Nevada Medical Center, Saint Mary's is healthier these days and joined Catholic Healthcare West, a network of more than 40 hospitals throughout the West, allowing the hospital to pool resources with other, larger hospitals outside the area.

The hospital has plans to open urgent care centers in Spanish Springs and Fernley to give patients better access to Saint Mary's.

Saint Mary's also has plans to double its emergency room capacity, something all four hospitals are dealing with as the area's population has exploded.

"Doubling the size of our emergency department is really going to be a significant improvement for us," said Lisa Dettling, director of marketing and business development for Saint Mary's. "In our particular ED, we were designed for 30,000 visits a year, and we are seeing 50,000."

Critical collaboration

Tensions are high among the area's hospitals, most commonly in reaction to Saint Mary's and Northern Nevada Medical Center's complaints about Renown's exclusive contracts with insurance providers.

But officials for all four of the hospitals agree they do work together to provide better care.

In fact Renown, Carson-Tahoe and Northern Nevada joined together to launch a marketing campaign this spring named "your hospitals, your community -- together we thrive."

The effort is a campaign to inform the public of the services Northern Nevada hospitals provide, ranging from free health and wellness clinics to subsidized care.

"I believe the level of cooperation among the hospitals is very high," Miller said. "While federal anti-trust laws require us to compete somewhat, when you take a look at quality initiatives, standardizations, creating protocols and so forth, I believe the hospitals in our community are getting together and working through those issues."

The hospitals have partnered for such programs as free immunizations for children and flu shots.

It's not a perfect relationship between the hospitals, but Rush says it works for Northern Nevada patients.

"When we pull together, we have a lot to offer," Rush said. "We are here 24 hours a day, seven days a week. There are not a lot of businesses that are like that. I think we do a pretty good job."

The primary purpose of HIPPA is to outline circumstances in which an individual's protected health information may be used or disclosed by covered entities.

Covered Entities Under HIPPA

- Health care clearinghouses
- Any plan that pays for medical expenses
- Health care providers who transmit health information in connection with certain transactions

Information Protected Under HIPPA

- Past, present, or future physical or mental health condition
- Specific health care treatment provided to an individual
- The past, present, or future payment of health care treatment

How to Obtain Medical Records

- Subpoena or Authorization
- Records can only be subpoenaed once litigation has begun
- If using a subpoena, you must provide notice to the individual whose records you are requesting
- Authorization must be HIPPA compliant in order to obtain an individual's medical records

Information That Makes an Authorization HIPAA Compliant

- Specific information concerning the information to be released
- The person(s) to whom the information is to be released
- Expiration date of the authorization
- Right to revoke (in writing)

OCR Privacy Rule, United States Department of Health & Human Services (May, 2003)

Heather Brochu is an attorney in the law firm of Clark, Long, Werner & Flynn, P.C., where she practices in the area of civil defense litigation. Prior to becoming an attorney, Ms. Brochu worked as a paralegal. Ms. Brochu earned her B.A. degree in paralegal studies from Notre Dame College in Manchester, NH. She became an attorney through a four year clerkship in Burlington and is admitted to the Vermont Bar. She spoke at IPE's "Medical Record Evaluation for Paralegals" seminar 4-10-2007 in Burlington , VT.

D. Garth Sullivan, from Indox Consulting, expands in a recent mass email:

Perceived racial discrimination is not associated with nonadherence to screening mammography guidelines among African American women, according to findings published in the June issue of the American Journal of Epidemiology.

"The mortality rate from breast cancer continues to be significantly higher for African American women than for white women," lead author Dr. Amy B. Dailey explained in an interview with Reuters Health. "Thoroughly investigating factors that may contribute to this persistent racial disparity is crucial in order to find ways to reduce this gap."

To this end, Dr. Dailey, of Yale University School of Medicine, New Haven, Connecticut, and colleagues prospectively studied 1229 women between the ages of 40 and 79 years who underwent an index screening mammography between October 1996 and January 1998 and completed baseline interviews and follow- up interviews an average of 29 months later. Sixty-one percent of the women were white and 39% were African American.

The researchers assessed perceived discrimination using questions regarding lifetime experiences in seven possible situations. These included attending school, looking for employment, obtaining medical care, at work, at home, situations in a public setting, and treatment by the police or the courts.

Nonadherence to screening recommendations was defined as failing to obtain at least one mammogram within 2 years of the index examination for subjects aged 40 to 49 years and failing to obtain at least two screenings within 2 years of the index examination for subjects aged 50 years or older.

Lifetime racial discrimination was reported by approximately 42% of African-American women and 10% of white women. The most frequently racial discrimination episodes were at work, by the police or in the courts.

Overall, 47.8% of the total study population was nonadherent to screening mammography guidelines. African American women were more likely to be nonadherent than white women (odds ratio = 1.48). However, in multivariate analysis no association was observed between perceived racial discrimination and nonadherence to age-specific mammography screening guidelines.

NBCSanDiego.com reports that a skin cancer patient was recently awarded $5.7 million in a failure to diagnose case:

A Superior Court jury awarded $5.7 million in damages to a bedridden man who claimed a doctor failed to diagnose his skin cancer.

The verdict is the largest medical-malpractice award in California this year, but will be cut to $1.9 million under a state statute limiting damages in malpractice suits.

Regis M. Reilly, 53, claimed dermatologist Dr. James C. Powers failed to biopsy a cyst that later metastasized into cancer. Reilly has a family history of skin cancer.

I wanted my clients to hear someone say that what they went through had real value," said Reilly's attorney, N. Denise Asher.

The award included $3 million in general damages for Reilly's wife to compensate for the negative impact on the couple's marriage. Reilly won another $1.6 million for his own mental pain and suffering and $1.1 million for lost income.

Powers' attorney, Nancy Vaughan, could not immediately be reached for comment.

Reilly went through several surgeries to remove the cancer and is now confined to his home where he receives 24-hour care.

The verdict exceeded a $5.3 million settlement in a malpractice case, also in San Diego, involving a brain-damaged infant and a $556,900 award in another misdiagnosis case

The American Association of Justice cites to Dick Dahl's story published at LawyersUSA:

A group of New Jersey ob-gyns has begun asking prospective patients to sign away their right to a jury trial, touching off a debate about the enforceability of the waivers.

Citing the high cost of medical malpractice insurance, more than a dozen ob-gyns have joined Obstetricians & Gynecologists Risk Retention Group of America (OGRRGA), a new Montana-based company that is reportedly reducing their premiums by about 50 percent. As part of their participation in the group, these physicians are requiring patients to sign agreements stating that they will pursue any subsequent disputes through binding arbitration.

They also must agree that pain-and-suffering awards will be capped at $250,000.

The spokesperson for the physicians' group, Ridgewood, N.J. ob-gyn Ruth J. Schulze, has been a longtime proponent of measures to reduce the cost of medical malpractice insurance. She's pushed for legislation to limit the size of malpractice awards, and in 2005 she stopped delivering babies in order to reduce her premiums.

"The medical liability system is irrevocably broken and needs to be changed," Schulze wrote in an op-ed article in a recent issue of a local newspaper, the Bergen County Record. "This crisis has been escalating over the last decade with Bergen County losing more than 30 percent of its practicing obstetricians in the last five years."

A new kind of medical insurer

OGGRGA is a non-traditional insurance group that meets the requirements of a the federal Liability Risk Retention Act of 1986, allowing the creation of self-funded groups with the power to write insurance in all 50 states without having to comply with the insurance laws and regulations in each state.

Since these entities need to be licensed in just one state, they can often operate by a looser set of regulations. For example, Montana law imposes a minimum capital requirement of $750,000 - far less than the $4.2 million minimum in New Jersey.

Eric S. Poe, a lawyer with NJ-PURE, a New Jersey medical malpractice insurer, said the federal statute was intended to provide a means for companies to reduce their insurance costs - not as a mechanism to resolve medical disputes involving individuals.

"It was created to [help] commercial entities that wanted to create their own insurance without having to go to an insurance company," he said. Congress "never anticipated that risk retention groups would be used to start medical malpractice insurance carriers."

The Montana group's pitch to physicians is that it is able to keep their premiums low because of its binding arbitration requirement, which it calls "the heart" of its program.

But is a contract that calls for the signer to waive the right to a jury trial enforceable?

Alive and well elsewhere

Jeffrey S. Badgley, a medical malpractice defense lawyer in Winter Park, Fla., points out that the use of arbitration agreements has expanded throughout the country as a way to reduce tort damages.

"This is a program to come up with a more rational and reasonable way of resolving disputes between physicians and patients," he said. "The tort system has produced some very unsatisfactory results. It's expensive, it's time-consuming, and oftentimes patients must sacrifice half of the money given them by juries."

Badgley cited California as a state where medical insurers have required binding arbitration for years.

Eugene A. Rosov, OGGRA's president, said that Kaiser Permanente, a large health insurer, has required patients to agree to binding arbitration for years.

"Apparently, they haven't run into any significant problems," he said.

He also noted med-mal lawyers are thriving in spite of the new agreements, since arbitrations are frequent and provide rapid payouts.

Redwood City, Calif., attorney Michael J. Brady, who administers the Kaiser Permanente program, predicts growth of arbitration requirements nationwide.

"Since the year 2000, the U.S. Supreme Court has decided three cases dealing with the scope of the Federal Arbitration Act," he wrote on the OGGRA website. "The essence of these cases says this: the [Act] is supreme. ... The effect of the U.S. Supreme Court decisions means that it will be very difficult for a state court to find that a private arbitration contract is unconscionable."

But others are doubtful.

A different story in NJ?

Poe believes the arbitration clauses work in California because the state already has a $250,000 cap on non-economic damages, which limits the effect of arbitration. He also noted that California is the only state he's aware of that requires "statutory notice forms" that explain arbitration agreements to patients. He said that in his opinion the absence of notice requirements in New Jersey will render the agreements unenforceable.

According to Jennifer Arlen, a professor at New York University School of Law, "Most jurisdictions have ruled that physicians and hospitals cannot require patients to waive their rights to recover damages for medical malpractice. One concern was that patients often would not be fully informed about these clauses in advance. Another was that patients might be contracting under duress. There was also the idea that tort liability is important for regulating medical care."

Poe agrees these concrns will make the New Jersey agreements unenforceable.

"The patient has to know that there can be no repercussions of his or her choice not to sign," he said. "These doctors are saying that if you don't sign we may choose not to treat you. That's clearly contrary to case law."

Furthermore, he said New Jersey regulations on binding arbitration don't cover consumer arbitration, "they talk about binding arbitration as something involving two commercial entities, not a doctor and a patient."

In Poe's opinion, "there's no chance ... these things are enforceable in New Jersey. I don't think one trial lawyer in the state is worrying about binding arbitration [in the med-mal context] being enforceable."

He also points to another enforceability problem: there's a second party involved.

Most signers of these ob-gyn arbitration agreements are, presumably, pregnant women. Poe said that most states, including New Jersey, have a two-year statute of limitations for medical malpractice claims that begins to run when a patient knows or should have known he or she had been injured by malpractice or negligence.

But that statute of limitations wouldn't apply to the baby. The statute of limitations on the child's claim wouldn't begin to run until he or she turned 18.

"Does a mother have a right to sign an arbitration agreement that binds the child?" asked Poe. "How can a child be giving up the right to a jury trial when he's in the womb?"

But Schulze emphasized that if patients don't want to sign the agreements they are free to seek medical help elsewhere.

"[B]inding arbitration may not be right for everyone and may not be appropriate for certain medical settings such as emergencies," she told the Record, "but it is completely appropriate for each individual patient to make that personal decision."

A program on the move

OGGRGA was created last year, and its website says it intends to operate in Florida, Illinois, Ohio, Connecticut and Maryland, in addition to New Jersey.

In Florida, the issue has already heated up. The Florida Medical Association is encouraging its members to get patients to sign waivers agreeing that they will limit non-economic damages to $250,000.

Frank Petosa, president-elect of the Florida Justice Association, said some physicians are already doing so.

"Unfortunately, the Florida Medical Association has made restricting the rights of patients in our state its primary focus," he said. "These waivers are potentially illegal and they're clearly unethical."

Plaintiffs' medical malpractice lawyer and M.D. Lee S. Goldsmith of Englewood Cliffs, N.J., doesn't believe the arbitration contracts will hold up in the state's courts. First, he said, the state requires doctors to have $1 million in insurance coverage, and he doubts whether physicians in risk retention groups can meet that.

Second, he said, "This is a contract of coercion. They're saying, 'If you want me to treat you, you have to sign this contract.' Maybe it's good business for the obstetricians and the insurance company, but it's bad medicine."

The lower premiums are based on the $250,000 caps, "but what happens if courts don't honor them?" he asked. "If you have a brain-damaged child, that is a case that anyone would pursue very vigorously."

New risk for doctors?

Poe believes the lower premiums will create some serious risk for doctors.

Because risk retention groups don't need to comply with state insurance regulations, they are also not protected by state guaranty associations, meaning that if a group becomes insolvent the personal assets of the doctors are at risk.

Arlen, at NYU, argues that fighting against the tort liability system isn't the best way to try to cut costs. She noted that a few years ago the medical group with the highest premiums was anesthesiologists.

"But instead of lobbying for tort reform, they did a study to see whether there were systematic things they were doing wrong that harmed their patients. They found that there were, and they fixed the problem - basically by adding some equipment that reduced ... inattentiveness and inattention by anesthesiologists. As a result, their insurance rates plummeted, and today they have among the lowest insurance rates."

Arlen suggested that other specialties take the same approach and look at their practices to find ways to reduce premium costs like the anesthesiologists did.

"There's been too great an emphasis at trying to get out from under the tort system," she said.

Rosov said that in selling plans to ob-gyns, OGRRGA seeks "commitments that they will improve their practices every single day to reduce the need for arbitration.

"My broad view is that there's plenty of blame to go around for everybody, including lawyers and doctors," he said. "Maybe what we're doing is the wrong thing. I hope not; I pray not. But we do know there is a problem. We're trying to fix a broken system."

Questions or comments can be directed to the writer at: dick.dahl@lawyersusaonline.com

I received this description of decubitus ulcers from D. Garth Sullivan at INDOX Consulting, a medical expert service:

Chronic lower extremity ulcers affect approximately 2.5 million to 4.5 million people in the US. In addition to pressure ulcers, this growing clinical problem is most prominent among the elderly. Nonhealing or slow healing wounds represent a major health burden and drain on resources and contribute to substantial disability, morbidity, and costs. Multiple factors have been identified as contributors to impaired wound healing, such as, ischemia, infection, advanced age, malnutrition, diabetes, and renal disease. Other conditions, such as cardiac and lung disease, decreased cognitive function, endocrine disease, GI disease, hematologic disorders, incontinence, musculoskeletal problems, neurological disease, alcohol/drug abuse, immunosuppressives, chemotherapy, steroids, smoking, as well as inadequate wound care have been implicated.

Malnutrition has been specifically associated with the extent and severity of pressure ulceration. Appropriate nutritional support, pressure relieving surfaces, turning schedules, and debridement of slough or necrotic tissue are recommended to promote the healing process. Healing rates depend on pressure ulcer stage with approximately 59% of Stage III ulcers and 33% of Stage IV ulcers healing at 6 months. Thomas reports that as few as 13% of pressure ulcers heal within 2 weeks in acute care settings.

Failure to heal diabetic ulcers has been attributed to infection, tissue ischemia, ill-fitting shoes, and poor management. Standard treatment of diabetic ulcers consists of pressure offloading, correction of nutritional deficits, moist wound dressings, and sharp debridement to remove callus. Management principles also include treating infections and preparing the wound bed by topical applications. Brem et al add to these the need for optimal glucose control and the use of adjunctive therapies such as cell and/or cytokine therapy. However, the evidence supporting use of vigorous sharp debridement, enzymatic or autolytic debridement, iodine-based or silver-based antiseptics, and hyperbaric oxygen remains limited. Reported healing rates vary across studies. Piaggesi et al reported a 79% healing rate at 25 weeks after conventional treatment. In contrast, the healing rates in large multicenter trials are reported at 24% at 12 weeks and 31% at 20 weeks. This meta- analysis also concluded that wound duration, area, and size did not significantly affect the percentage of wounds healed at 20 weeks.

Discussion

This study examined subjects with 1 of 3 types of chronic ulcers to identify those factors that influenced the rate of healing, both timely healing (within 3 months of start of treatment), and nonhealing (after 5 to 6 months of treatment). The subjects, all more than 50 years old, were receiving wound care in a variety of settings with different constellations of staff members, care delivery processes and organization, and treatment preferences. 
No strong relationship was found between most of the comorbid conditions and the healing outcomes. Diabetes, renal disease, cardiac disease, pulmonary disease, endocrine disorders, GI disease, blood disorders, neurological disease, and smoking were not associated with poor wound healing in the present study, while it was found that diagnoses of malnutrition, infection, CVA, and dementia were important. History of stroke and presence of cognitive impairment are likely to be related to poorer functional status and reduced activity levels, making healing more difficult to achieve. Nutritional status has been linked to the development of pressure ulcers, and is considered an important factor in successful healing of chronic wounds. Subjects who received nutritional support can be assumed to have poorer nutritional status and lowered healing capacity, and thus less ability to heal their wounds. Having more than one ulcer and being obese were both associated with healing within 3 months. These factors may have been associated with type of ulcer (venous), which was likely to heal faster than diabetic or pressure ulcers. However, further analyses showed that the percentage of obese patients was similar between diabetic and venous ulcer patients, and the percentage of subjects with more than 1 wound was similar between pressure and venous ulcer patients. Currently, the explanation to support these findings is uncertain.

It is not surprising that specific wound characteristics were associated with healing or nonhealing of chronic wounds. Larger, deeper wounds take longer to heal than shallow, smaller wounds. Although exudate type did not influence healing in the present study, amount of exudate was associated with both healing and nonhealing of wounds. A major focus of chronic wound care in recent years has been the development of dressings that promote a moist environment to assist healing. Wounds with moderate to large amounts of drainage require absorptive dressings while dry wounds require dressings that add or retain moisture. Recommended dressings include films, foams, hydrogels, hydrocolloids, alginates, and hydrofibers. Dressing materials differ in their properties of permeability and wound protection- understanding these differences is key to planning for wound management in individual patients. The many available dressing choices may confuse clinicians who are making these decisions. In addition to these moisture-management dressings, there are topical antiseptic agents being used with gauze, as well as antimicrobial dressings. Although rationale exists for use of these types of dressings, data are limited on their ability to enhance healing. The findings did not support their use, with antimicrobial dressings having a negative impact on healing within 3 months and a positive association with nonhealing after 5-6 months of treatment. Because of the possibility that use of antimicrobial dressings might be related to presence of infection, we conducted further analyses which revealed no association between presence of infection and use of these types of dressings. Greater use of moisture-management dressings in the first 3 months of treatment, and over all 6 months of treatment, reduced the chances of not healing. The use of moisture-management dressings is consistent with evidence-based recommendations. According to NICE35, moisture-management dressings create the optimum wound environment rather than gauze. Interestingly, the use of gauze dressings in the present study did not influence healing at either 3 or 6 months.

Debridement of the amorphous material from the wound bed of chronic ulcers has been used for many years to enhance healing, using surgical, sharp, autolytic, enzymatic or mechanical approaches. Although evidence supports the efficacy of debridement of chronic wounds, none of the specific approaches has gained universal acceptance.[

Debridement in the present study was associated with poorer healing outcomes. It may be partly due to the fact that necrotic debris increases the possibility of bacterial infection and delays wound healing. It may also reflect use of non-recommended approaches, inadequate skill, and inadvertent damage to healthy granulating tissue. Mechanical debridement is contraindicated because it is nondiscriminant, removing both healthy and dead tissue. As might be expected, the repeated use of mechanical debridement over time was found to be associated with the nonhealing of the chronic ulcers. Although widely recommended, it remains unclear whether wound debridement is a beneficial process that results in greater frequency of complete wound healing.

The literature has described the negative impact of wound infections or bacterial burden on wound healing. The authors of the present study were able to document the negative influence of infectious processes on healing as well. However, infection was not well documented in the medical records (very few cultures were performed), so infections were noted through documented signs of infection, identification of purulent drainage, and/or orders for systemic antibiotics. Ulcers that healed within 3 months had significantly fewer data collection points over these 3 months at which infections or potential infections were noted, while nonhealing ulcers had significantly more data collection points at which actual or potential infections were documented. We also found that greater use of systemic antibiotics was associated with nonhealing ulcers. This of course is correlated with the documentation of signs of infection and might also reflect more severe infectious processes. There is a possibility that antibiotics were overused in some cases.

The present study unexpectedly found that the use of a commercial cleansing agent as compared to water, normal saline, toxic agent, or no cleanser, was associated with faster healing. The use of specific cleansing agents varied significantly across sites of care delivery. The 2 sites with the most positive healing outcomes both used commercial cleansing agents, although for a rather small percentage of their subjects (14% and 9%), while neither of the other two sites with poor healing outcomes used any commercial agents. It is therefore difficult to sort out the independent effects of commercial cleansing agents from other site effects, and requires further investigation. The use of cytotoxic cleansing agents, such as Dakin's solution, acetic acid, and hydrogen peroxide, was associated with the nonhealing of wounds. As early as 1994, AHCPR clinical practice guidelines warned against using these cytotoxic cleansers, but their application persists to this day in spite of the evidence-based recommendations against their use.

This means that if you request your medical records from your doctor, you should not let your doctor's office delay provision of records for more than a week or two.

Undue delay in obtaining records could compromise your ability to bring your case.

If you have problems getting your medical records, contact an attorney. Time is of the essence in Nevada medical malpractice cases.

They write, among other things:

When the plaintiff has suffered injury because of a doctor's failure to diagnose cancer or provide adequate treatment, the lawyer can count on jurors to hold certain biases. They have been conditioned to believe that medical negligence plaintiffs bring frivolous claims against heroic physicians who can't be blamed for their inability to save the patient from a disease's inevitable progression. Seasoned plaintiff lawyers know these biases well and welcome the chance to show the jury just how wrong these attitudes are.

Elderly cancer patients regularly face negligence, and when the plaintiff is elderly, another bias enters: ageism. Ageism is directly responsible for incomplete examinations, delayed diagnoses, and undertreatment of these patients.

Many Americans regard the elderly in a less-than-charitable light. People assume that because old people typically don't work, they aren't "contributing to society," and their days of achievement are long over. Their lives are spent watching television, waiting for visitors, and perhaps slipping in and out of dementia, awaiting a fast-approaching death.

This view of the elderly makes every aspect of a medical malpractice case more difficult. It significantly reduces potential damages because a jury's assessment of damages, both noneconomic and economic, is often guided by the patient's life expectancy.

The standard of care is also affected. What is clear malpractice in the case of a younger plaintiff is often less clear when the plaintiff is elderly. Causation, too, becomes cloudier. The presence of other medical conditions, along with the weakness and fragility of old age, can complicate the case.

Defense attorneys often take advantage of ageist attitudes. Obviously, no defense lawyer would overtly disparage an elderly plaintiff because of advanced age or failing health. However, he or she might subtly seek to cultivate ageist thinking among jurors, using rhetoric and the testimony of medical experts to exploit this bias...

We are a nation of ageists. That our laws specifically forbid discrimination against the elderly is a testament to the prevalence of this phenomenon in American society. Indeed, a list of the books in which ageism's influence is discussed would itself fill a book. 
Elderly cancer patients regularly face negligence, and when the plaintiff is elderly, another bias enters: ageism. Ageism is directly responsible for incomplete examinations, delayed diagnoses, and undertreatment of these patients.

Many Americans regard the elderly in a less-than-charitable light. People assume that because old people typically don't work, they aren't "contributing to society," and their days of achievement are long over. Their lives are spent watching television, waiting for visitors, and perhaps slipping in and out of dementia, awaiting a fast-approaching death.

This view of the elderly makes every aspect of a medical malpractice case more difficult. It significantly reduces potential damages because a jury's assessment of damages, both noneconomic and economic, is often guided by the patient's life expectancy.

The standard of care is also affected. What is clear malpractice in the case of a younger plaintiff is often less clear when the plaintiff is elderly. Causation, too, becomes cloudier. The presence of other medical conditions, along with the weakness and fragility of old age, can complicate the case.

Defense attorneys often take advantage of ageist attitudes. Obviously, no defense lawyer would overtly disparage an elderly plaintiff because of advanced age or failing health. However, he or she might subtly seek to cultivate ageist thinking among jurors, using rhetoric and the testimony of medical experts to exploit this bias.

Nationally, plaintiff attorneys have only a 37 percent chance of winning a medical malpractice case.2 Why, then, should a trial lawyer expend resources on a case that is almost certain to be more difficult to win than the average? There are two reasons: because the elderly need us, and because these cases can be won.

We are a nation of ageists. That our laws specifically forbid discrimination against the elderly is a testament to the prevalence of this phenomenon in American society. Indeed, a list of the books in which ageism's influence is discussed would itself fill a book. Knowing this and understanding how ageist attitudes affect the care of the elderly can help your case succeed.

Consider, for instance, the following:

As of 2005, nearly 41 percent of Americans lacked health coverage;

More than half of Americans making less than $20,000 a year have no health insurance.;

Nearly 60% of Americans who were uninsured and have chronic conditions skip their medications or go without them because they were too expensive.

Our system isn't only broken, it's horribly broken. We're the wealthiest country in the world and we've failed and continue to fail our citizens when it comes to healthcare. 

I still do and will continue to. But I've noticed that as medical malpractice lawsuits have become more limited, doctor's expert fees have continued to spiral.

Several days ago I was setting expert depositions in a malpractice case. Defense counsel mentioned that her expert would require $3000 to testify. My expert depositions usually take an hour. Hence, her expert wanted $3000 to testify for an hour. I complained about this and indicated that we would likely seek court intervention to lower the expert's fee.

Then, however, we called our own expert in the case.

He casually mentioned that his minimum deposition fee was $4000.

I guess I won't be contesting the other side's expert fee.

The presidential candidate played by Jimmy Smits had a health plan: take the words "over 65" out of the Medicare statute. Allow Medicare for all.

It's an interesting idea.

Probably 40% of my clients do not have health insurance. Something like 50 million Americans do not have health insurance. Lately, our local hospitals here in Reno are actually turning people away unless they have health insurance.

We spend a lot of money on a lot of things: one would think that we'd find a way to get basic health care to American citizens.

I deal with Medicare quite a lot. It can be a disorganized and frightening bureaucracy.

But providing some form of national allowance to health care is an idea whose time has come.

This blog is no exception and I have one simple message: when it comes to health care, everything is negotiable.

A while back, 60 Minutes did a story about the advantages of having health insurance to cover a hospitalization. We know, of course, that it's better to have health insurance. But what many still don't understand is that health insurance companies pay much less for your health care than you would if you were uninsured.

In other words, when you go into a hospital, without insurance, you get a bill for the retail cost of services.

It's therefore important, and smart as well, to attempt to negotiate such bills directly with hospital. After all, they're getting less for similar services from almost everyone who pays them.

Nearly all hospitals, and most health care providers, too, would rather get something rather than nothing.

It's perfectly appropriate to ask for a 20 to 40 percent reduction in your hospital bill if you are uninsured. And besides, what do you have to lose other than debt?

Here's an initial observation. I received an email today from a national litigation support service informing me that for a price I could discover a 5-year list of all prescription information with respect to a given client or defendant.

Of course, one assumes that releases are necessary. And any such information could have important ramifications on the manner in which a case was handled.

But it's still worth thinking about how your pharmaceutical history is becoming increasingly electronic and widely discoverable.

A recent example: I had a small, simple auto accident case in which my client was the passenger in a vehcle that was hit. Clear liability any way you look at it. My client broke bones. Her only medical claim related to those broken bones.

Nevertheless, opposing counsel felt the need to make her entire medical history (my client was in her 40's) part of an inquiry. That's routine enough for defense counsel, but what wasn't so routine was that opposing counsel obtained 10 years of my client's medical records and then sent them to her client/insured.

Now why does her client, the defendant driver in an ordinary auto accident, need a stack of my client's medical records?

More thoughts on this issue next blog. 

Across the country, standard attorney's fee contingencies in medical malpractice cases range from 33% to 40% of gross or net recovery, and higher contingency fees are not uncommon. Plaintiff's attorneys have long reasoned that medical malpractice cases are especially expensive and particularly risky. Additionally, medical malpractice cases often involve complex issues and require an attorney to have a background in medical issues and an ability to find and work with medical experts.

In Nevada, the medical malpractice insurance industry recently took matters into its own hands and managed to push a broad ballot initiative into law that slashed attorney's fees in all Nevada medical malpractice cases. While arguably of benefit to medical malpractice plaintiffs, the law has had the intended consequence of forcing many attorneys into other areas of practice. Hence, there are now fewer medical malpractice attorneys in Nevada than there were two years ago, and in many parts of Nevada there weren't an abundance of medical malpractice attorneys to begin with.

So what does the new law do to attorney's fees?

N.R.S. 7.095 now provides a convoluted scheme for attorney compensation in medical malpractice cases and provides:

7.095. Limitations on contingent fees for representation of persons in certain actions against providers of health care

1. An attorney shall not contract for or collect a fee contingent on the amount of recovery for representing a person seeking damages in connection with an action for injury or death against a provider of health care based upon professional negligence in excess of:

(a) Forty percent of the first $50,000 recovered;
(b) Thirty-three and one-third percent of the next $50,000 recovered;
(c) Twenty-five percent of the next $500,000 recovered; and
(d) Fifteen percent of the amount of recovery that exceeds $600,000.

2. The limitations set forth in subsection 1 apply to all forms of recovery, including, without limitation, settlement, arbitration and judgment.

3. For the purposes of this section, "recovered" means the net sum recovered by the plaintiff after deducting any disbursements or costs incurred in connection with the prosecution or settlement of the claim. Costs of medical care incurred by the plaintiff and general and administrative expenses incurred by the office of the attorney are not deductible disbursements or costs.

4. As used in this section:

(a) "Professional negligence" means a negligent act or omission to act by a provider of health care in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death. The term does not include services that are outside the scope of services for which the provider of health care is licensed or services for which any restriction has been imposed by the applicable regulatory board or health care facility.
(b) "Provider of health care" means a physician licensed under chapter 630 or 633 of NRS, dentist, registered nurse, dispensing optician, optometrist, registered physical therapist, podiatric physician, licensed psychologist, chiropractor, doctor of Oriental medicine, medical laboratory director or technician, or a licensed hospital and its employees.

Prospective medical malpractice clients often ask me about attorney's fees and my answer is always the same: attorneys in Nevada are now regulated by law and all attorneys are limited, by statute, with respect to what they can charge.

You can find other statutes of interest at http://www.leg.state.nv.us/law1.cfm

In an informed consent case, plaintiff's assertion that he or she would have refused treatment must be reasonable under the circumstances. Smith v. Cotter, 107 Nev. 267, 810 P.2d 1204 (1991).

In determining reasonableness, the court may consider testimony of the patient as well as medical evidence regarding the risks of remaining untreated, the possible alternative treatment and the risks and expected benefits of alternative treatments. No single type of evidence is to be conclusive; rather, all evidence must be considered by the fact-finder in determining whether, had the full extent of the risk been known, plaintiff would have reasonably refused treatment. Smith v. Cotter, 107 Nev. 267, 810 P.2d 1204 (1991).

A qualified nurse may testify regarding the national standard of care for a hospital. Oehler v. Humana Inc., 105 Nev. 348, 775 P.2d 1271 (1989).

When establishing standard of care to be applied in a medical malpractice case, plaintiff must use testimony of expert witnesses with knowledge of the prevailing standards. There is no requirement that the expert medical witness be from the same specialty as defendant; the issue is simply one of the witness' actual knowledge. Rees v. Roderiques, 101 Nev. 302, 701 P.2d 1017 (1985).

In order to recover in a medical malpractice case against a board certified specialist, the patient must demonstrate that the defendant specialist failed to meet the standard of skill and care expected of a reasonably competent practitioner in the same specialty, wherever practicing. Wickliffe v. Sunrise Hospital Inc., 101 Nev. 542, 706 P.2d 1383 (1985); Orcutt v. Miller, 95 Nev. 408. 595 P.2d 1141 (1979).

To prove medical malpractice, plaintiffs must first establish the accepted standard of medical care or practice, and then must show that the doctors' conduct departed from that standard, and legally caused injuries suffered. Fernandez v. Admirand, 843 P.2d 354, 108 Nev. 963 (1992).

To prevail in a medical malpractice action, the plaintiff must also prove that the alleged negligence more probably than not caused the ultimate injury. Perez v. Las Vegas Medical Center, 107 Nev. 1, 805 P.2d 589 (1991).

Under the "loss of chance" doctrine in a medical malpractice action, the injury to be redressed by law is not defined as death itself, but, rather, as the decreased chance of survival caused by the medical malpractice. Perez v. Las Vegas Medical Center, 107 Nev. 1, 805 P.2d 589 (1991).

A doctor has the duty to disclose information that a reasonable practitioner in the same field of practice would disclose; the doctor's duty is measured by a professional medical standard, which the patient must establish with expert testimony. NRS 449.710; Smith v. Cotter, 107 Nev. 267, 810 P.2d 1204 (1991).

A lack of informed consent must be demonstrated through expert testimony based upon NRS 41A.100, which requires expert testimony to prove negligence in medical malpractice actions. Smith v. Cotter, 107 Nev. 267, 810 P.2d 1204 (1991).

To establish proximate cause in an informed consent case, there must first be a showing that the unrevealed risk which should have been revealed by the doctor actually materialized, as well as showing that the patient would have refused surgery had he been informed of the risk. Smith v. Cotter, 107 Nev. 267, 810 P.2d 1204 (1991).

As always, when I list holdings from multiple cases, selections are listed in chronological order starting with more recent cases:

In a medical malpractice case, under the traditional doctrine of res ipsa loquitur, the presumption of negligence arises after plaintiff has established that the event in question is one that ordinarily does not occur in the absence of negligence; whether plaintiff has established this may be within the common knowledge of a lay person. If not, expert testimony is required. Johnson v. Egtedar, 112 Nev. 428, 915 P.2d 271 (1996).

NRS 41A.100 replaces, rather than supplements, the classic res ipsa loquitur formulation in medical malpractice cases where it is factually applicable. Johnson v. Egtedar, 112 Nev. 428, 915 P.2d 271 (1996).

The very fact that Rentnelli's condition continued to deteriorate after treatment by the Reno doctors, but immediately improved after the Santa Barbara doctors' treatment, would lead a reasonable person to believe that the first doctors did not adequately treat Rentnelli's ailments. Dutt v. Kremp, 894 P.2d 354, 111 Nev. 567 (1995).

As a general rule, a plaintiff must use expert testimony to establish medical malpractice. NRS 41A.100; Jain v. McFarland, 109 Nev. 465, 851 P.2d 450 (1993).

The locality rule is not the standard to be applied to board certified specialists in malpractice actions. Mishler v. Nevada Board of Medical Examiners, 109 Nev. 287, 849 P.2d 291 (1993); Orcutt v. Miller, 95 Nev. 408, 595 P.2d 1141 (1979).

This blog I will concentrate on those cases that discuss proving medical malpractice claims in Nevada and in the next two blogs I will finish this discussion of proof.

The following case selections are listed in chronological order starting with some of the most recent cases to touch upon proving medical malpractice. The reader should note that the law of medical malpractice is closely related to the law of negligence. As such, Nevada legal decisions that pertain to negligence sometimes come into play in medical malpractice litigation:

The district court's refusal to allow evidence of the fact that the surgical procedure performed had not been approved by the FDA was within its discretion. Hansen v. Universal Health Services of Nevada, Inc., 115 Nev. 24, 974 P.2d 1158 (1999).

Exclusion of SIIS survey, which consisted of brief descriptions of numerous other cases in which Dr. Thalgott performed surgery, was appropriate. The district court could properly find that injecting these other cases into trial would prolong the trial, confuse the issues and divert the jury to collateral matters. Hansen v. Universal Health Services of Nevada, Inc., 115 Nev. 24, 974 P.2d 1158 (1999).

A prior court case describing similar surgical events was admissible in support of the expert's opinion that patient's condition was medically possible. Born v. Eisenman, 114 Nev. 854, 962 P.2d 1227 (1998).

Under NRS 41A.100, Nevada's medical malpractice res ipsa loquitur statute, the presumption of negligence automatically applies where any of the enumerated factual circumstances are present. All plaintiff need do is present some evidence of the existence of one or more of the factual predicates enumerated in the statute. If the trier of fact then finds that one or more of the factual predicates exist, the presumption must be applied. NRS 41A.100 provides the following circumstances: (a) A foreign substance other than medication or a prosthetic device was unintentionally left within the body of a patient following surgery; (b) An explosion or fire originating in a substance used in treatment occurred in the course of treatment; (c) An unintended burn caused by heat, radiation or chemicals was suffered in the course of medical care; (d) An injury was suffered during the course of treatment to a part of the body not directly involved in the treatment or proximate thereto; or (e) A surgical procedure was performed on the wrong patient or the wrong organ, limb or part of a patient's body. NRS 41A.100; Born v. Eisenman, 114 Nev. 854, 962 P.2d 1227 (1998); Johnson v. Egtedar, 112 Nev. 428, 915 P.2d 271 (1996).

Common-law professional medical standard for informed consent, rather than a patient-oriented standard of informed consent, applies to the chiropractic field. Bronneke v. Rutherford, 120 Nev. 230, 89 P.3d 40 (2004).

Consent to treatment may be express or implied. By seeking chiropractic treatment, Plaintiff's consent to the particular technique may be implied because as a practical matter, health professionals cannot be required to obtain express consent before each touch or test they perform on a patient. Bronneke v. Rutherford, 120 Nev. 230, 89 P.3d 40 (2004).

An attorney had probable cause for filing a malpractice action against physicians, and thus did not commit tort of malicious prosecution, because the reasonable attorney believed that action was legally tenable. The fact that the patient's condition continued to deteriorate after treatment by a first group of physicians, but immediately improved after treatment by a second group of physicians, would lead a reasonable person to believe that the first group did not adequately treat the patient. Dutt v. Kremp, 894 P.2d 354, 111 Nev. 567 (1995).

A mother may maintain a medical malpractice action. 

Plaintiff underwent surgery for treatment to his shoulder, but suffered an injury to his brain, causing his vegetative state. The brain is not directly or proximately related to the rotator cuff surgery. Therefore, the district court did not abuse its discretion when it submitted a res ipsa loquitur instruction to the jury. Banks v. Sunrise Hospital, 120 Nev. 822, 102 P.3d 52 (2004).

Sunrise had a duty to sequester the anesthesia equipment after victim's cardiac arrest. Evidence concerning Sunrise's duty to preserve the evidence assisted the jury in relation to its prerogative to draw a negative inference from Sunrise's consummated sale of the equipment. Banks v. Sunrise Hospital, 120 Nev. 822, 102 P.3d 52 (2004).

Expert admitted that, under the circumstances, he could not determine whether the equipment contributed to victim's injury since he was unable to examine the equipment because Sunrise had failed to properly identify which machines were used during surgery. Expert's testimony and opinions established that it was possible for the subject equipment to malfunction intermittently. His testimony was also helpful to establish the standard of care for preserving the identity of the machines and providing grounds for the imposition of sanctions for failure to preserve evidence. It assisted the jury in understanding how the machines could have malfunctioned and why it was reasonable to draw an adverse inference from Sunrise's failure to identify the machines. Banks v. Sunrise Hospital, 120 Nev. 822, 102 P.3d 52 (2004). 

ATLA in motion: CCL report
July 2006 | Volume 42, Issue 7

The U.S. Supreme Court handed injured plaintiffs a significant victory on May 1, ruling unanimously to limit state Medicaid agencies' claims for reimbursement to the portion of any tort settlement attributable to past medical expenses. The agencies may not claim any part of a plaintiff's recovery for lost wages, pain and suffering, or other nonmedical damages. (Ark. Dep't of Health & Hum. Servs. v. Ahlborn, 126 S. Ct. 1752 (2006).)

Heidi Ahlborn was a 19-year-old college student when she was involved in an automobile accident that left her severely and permanently disabled. The Arkansas Department of Health and Human Services (DHHS), the state's Medicaid agency, paid more than $215,000 for her medical treatment.

When Ahlborn recovered $550,000 for her injuries through settlements with various auto insurers, the agency sought full reimbursement of its Medicaid payments, even though, the state acknowledged, the settlement recovery amounted to only about one-sixth of her total damages. Ahlborn then brought a declaratory judgment action to limit the agency's reimbursement to the portion of the settlement attributable to her past medical expenses.

The federal Medicaid Act requires Medicaid recipients to "assign [to] the state any rights . . . to payment for medical care from any third party" and to "assist the state in pursuing any third party who may be liable to pay for care and services available under the [state Medicaid] plan." The Supreme Court rejected Arkansas's argument--supported by 30 other states and the U.S. solicitor general--that these statutory provisions entitled DHHS to full reimbursement out of any settlement. Moreover, the Court ruled, the state could not itself adopt more expansive reimbursement rules, because any reimbursement out of funds paid to the plaintiff for claims such as lost wages and pain and suffering would contravene the anti-lien provision of the Medicaid Act.

The Court's statutory analysis closely tracked ATLA's amicus brief, written by Louis Bograd and Ned Miltenberg of the Center for Constitutional Litigation (CCL). The Court shared ATLA's concern that any rule granting "absolute priority" to the state's reimbursement claim "might preclude settlement in a large number of cases." It agreed with ATLA that any concern about settlement manipulation to avoid repayment could be eliminated through judicial procedures to allocate settlements when the state and the plaintiff cannot agree on a fair allocation.

Other federally funded health care programs, including Medicare, claim a similar right to full reimbursement out of tort settlements. CCL is undertaking a close analysis of those statutory schemes to determine whether the decision in Ahlborn can be extended to ensure an equitable allocation of recoveries in those contexts as well. 

1. Defendant physician, hospital or employee of a hospital, failed, in rendering services, to use the reasonable care, skill or knowledge ordinarily used in similar circumstances;

2. Defendant's conduct was the actual and proximate cause of plaintiff's injury; and,

3. Plaintiff suffered damages.

NRS 41A.009; See, Prabhu v. Levine, 112 Nev. 1538, 930 P.2d 103 (1996).

In order to prevail in a medical malpractice claim in Nevada each of the foregoing elements must be proved. 

TRENTON, N.J. - For eight months during his infancy, Sean Van Duyn gagged, retched and vomited daily. Now 6, the Winter Haven, Fla., boy still can't eat or drink by mouth, instead being fed by a permanent tube in his belly.

Beset by multiple medical problems in his first months, the boy had to have a breathing tube inserted through a hole cut in his neck. The gagging began and continued until his mother, Susan, discovered the tube was misshaped at the end and had been poking the back of his throat the whole time. The tube was replaced, but by then Sean's developing brain was programmed not to swallow; he still cannot.

The family alleged the injury occurred because the plastic breathing tube's tip had been bent during "reprocessing" -- cleaning and heat sterilization -- done at an Orlando hospital even though the tube was labeled for single use only. They won a confidential settlement from the hospital.

The case has fueled the debate over the safety of reusing surgical blades, forceps and other medical devices. The practice was routine until a couple decades ago, when stronger plastics enabled manufacturers to start making devices designed for single use to cut costs and prevent infection spread in the era of AIDS.

Then hospitals, and eventually specialized companies, started "reprocessing" single-use devices, cutting device costs by about half -- without patients' knowledge.

Federal regulators say reprocessing is safe, but original device manufacturers say they can't guarantee recycled products will work correctly -- and that they are wrongly blamed for malfunctions and patient harm caused by reprocessing.

A federal law taking effect Tuesday, requiring reprocessors to put their company name on recycled devices as well as the packaging, could help determine who's at fault when problems occur. For devices too small to mark, detachable stickers could be transferred to the patient's chart.

"That's like a 'Sue Me!' sticker," and may not be used much, said Josephine Torrente, a lawyer and biomedical engineer who consults for device manufacturers.

Dan Vukelich, executive director of the Association of Medical Device Reprocessors, argues reprocessed products are totally safe because each item is inspected before being shipped.

The device makers and their trade group have been lobbying legislators in several states for bills that protect their interests -- and patients. The battle has a big -- and fast-growing -- financial stake for both sides. Device makers saw combined revenues jump from $48 billion in 2001 to $71 billion last year; reprocessors went from a combined $20 million in 2000 to $87 million in 2004.

Johnson & Johnson subsidiary Ethicon Endo-Surgery is suing the biggest reprocessor, Ascent Healthcare Solutions, for trademark infringement over reprocessing its single-use devices.

"It is impossible to reuse them," said Robert O'Holla, J&J's head of regulatory affairs for medical devices, because they are not designed to be taken apart for cleaning. Yet J&J gets complaints from customers about problems with devices showing excessive wear or bleach on them -- signs of reprocessing.

Ascent Healthcare's regulatory chief, Don Selvey, said only about 2 percent of medical devices -- a category that ranges from MRI machines to reading glasses -- are now reprocessed. He said his company's processes reduce chances of "viable organisms" surviving on devices to one in one million.

Reprocessed devices are soaked in sterilizing solutions, disassembled, blasted clean with a fine powder, reassembled and inspected, then packaged, sterilized and resealed. On average, they're reused three to six times.

"It is as safe and effective as a new device if they meet our requirements," said Larry Spears, compliance chief for medical devices at the Food and Drug Administration.

Since early 2004, when reports of problems with medical devices were first required to note if they had been reprocessed, the FDA has received 13 reports of patient deaths and 421 other trouble reports, including 130 involving serious patient harm, although some may be duplicate reports.

Reprocessors say they must meet stringent FDA standards after first proving they can safely clean and sterilize each type of device. But the manufacturers main trade group, the Advanced Medical Technology Association, notes about half of the reprocessors' applications for reprocessing of individual devices were rejected by FDA, a sign of the difficulty of properly cleaning complex devices.

Rep. Tom Davis, a Virginia Republican who chairs the House Government Reform Committee, said Friday he plans a fall committee hearing to examine the issue.

"It is unclear to us at this time whether FDA is able to accurately track how often something goes wrong because a device meant to be used once was instead reused," Davis wrote in a statement.

Congress also has asked its investigative arm, the Government Accountability Office, to update a June 2000 report which concluded more oversight is needed. GAO is unsure when it will begin investigating.

Ken Hanover, CEO of the seven-hospital Health Alliance of Greater Cincinnati, said his hospitals have used reprocessed devices for about eight years without a problem.

"There's far more risk of medication errors in a hospital than of a problem arising with a reprocessed device," he said, adding that his hospitals "probably" would honor patient requests to have only new devices used on them.

Children's National Medical Center in Washington, on the other hand, doesn't use reprocessed devices, said surgeon in chief Dr. Kurt Newman.

"We want to use the safest and most sterile equipment," he said.

University of Pennsylvania bioethicist Arthur Caplan has "qualms" about the practice, particularly because patients don't give informed consent -- required when deviating from the standard of care raises safety or efficacy concerns.

"I just think people ought to know what's going on," Caplan said.

Susan Van Duyn, Sean's mother, agreed.

"If anybody can learn from the tragedies with Sean, it's worth telling" his story, she said. 

At the same time, though, we live in an amazing age. Medicine, prior to the internet, was once the exclusive province of doctors. Now, virtually all aspects of medicine may be researched and understood by anyone.

Thus, while bringing medical malpractice suits is more arduous than ever, prevailing on basic liability issues is aided by an attorney's access to unlimited medical data. This allows counsel to understand and explain complex medical concepts to juries in ways never before imagined.

If your medical malpractice attorney is not using the internet, you may want to question why. A case can now be made that attorneys and doctors who do not use the internet as an important basis for research are themselves flirting with malpractice.

Proposed Federal medical malpractice reforms are dead (again) and so I'll stop talking about them soon. Not just yet, though.

Bloomberg News reported that Senate Democratic leader Harry Reid of Nevada called the attempt by Republicans to bring up the measures an election-year "political stunt" to curry favor with insurance companies. "There is a health-care crisis, but it has nothing to do with tort laws," Reid said. "The real problem is too much malpractice, not too much litigation."

The American Trial Lawyer's Association published some interesting statistics about the legislation from a variety of sources:

$250,000: Maximum value, under S. 23, of the life of a woman killed by cervical cancer her OB/GYN failed to diagnose.

Unlimited: Maximum value, under S. 23, of the life of a man killed by prostate cancer his urologist failed to diagnose.

1: Number of female sponsors of S. 23.

61.6 Million: Number of women of childbearing age whose rights would be denied and lives devalued by S. 23.

24.8%: Percent increase in number of OB/GYNs in United States since 1990.

Once again, without any hearings and without following normal Senate procedure, the Senate Majority Leader plans to bring to the floor S. 22, the so-called "Medical Care Access Protection Act of 2006." S. 22 contains many of the same limits found in earlier bills, also brought to the floor with no hearings. It contains the same elimination of injured patients' rights to hold wrongdoers accountable, and the same big protections for hospitals and HMOs. Touted as a "new" proposal, proponents hope to trick Congress and the public into believing this bill is significantly better for patients than the bills the Senate voted on, but did not pass, three times in the last Congress. But nothing in this "new" proposal will provide health insurance to the uninsured, lower healthcare costs, increase the availability of affordable medical malpractice insurance, or make patients safer. Their proposal:

Still applies a cap of $250,000 on non-economic damages. Proponents claim this bill is different because it is theoretically possible for a patient to recover up to $750,000 dollars, but only if the patient has the extreme misfortune of being hurt by at least two different "healthcare institutions" as well as a health care provider." If a patient's harm is caused by the negligence of more than one provider however, the aggregate cap is still $250,000. Here is the truth about the "new" cap:

For health care providers: the bill still has a cap of $250,000 on what a patient can recover from all negligent "healthcare providers." So even if multiple providers are at fault, there is still a $250,000 aggregate cap on what a patient can recover. "Healthcare providers" include all physicians, nurses, dentists, pharmacists, optometrists, chiropractors, and podiatrists.

For health care institutions: patients can only recover $250,000 for each "health care institution," such as a hospital, nursing home, or assisted living facility that caused them harm, but only up to $500,000 total, regardless of how many negligent entities were involved. "Health care institution" is broadly defined as "any entity licensed under Federal or State law to provide health care services," and includes hospitals, nursing homes, hospices, assisted living facilities, and ambulatory centers.

What this means for patients: In most cases, a cap of $250,000 will still apply. Only those extremely unfortunate patients who have suffered harm from at least three different entities, two of which must be "healthcare institutions," would be eligible for the $750,000 cap. Limiting compensation for serious injuries-such as the loss of fertility, the loss of mobility, excruciating pain and permanent and severe disfigurement, or the loss of a child--is fundamentally unfair to injured patients and their families.

Still Preempts State Law. Despite its deliberately misleading language, this bill does not ensure "state flexibility" or the "protection of states' rights." In fact, it provides for a sweeping preemption of state law. While S.22 does not preempt state laws which cap damages, S.22 does preempt all other areas of state law covered in the bill, including state rules regarding joint and several liability, the availability of damages, collateral sources, standards for qualifying expert witnesses and periodic payments. These areas that S.22 explicitly preempts are safeguards designed to protect injured patients. Ironically, though, the bill does not preempt any state laws that favor doctors, hospitals, nursing homes, HMOs, and other health care defendants. Furthermore, S.22 would impose the caps on states that do not have limitations on damages, including even states whose limitations were struck down as unconstitutional by state supreme courts.

Still applies to nursing homes, assisted living facilities, and hospitals. Proponents claim their bill is about protecting doctors, but the provisions are broadly drafted to specifically sweep in all cases against nursing home corporations, assisted living facilities, hospitals, and many HMOs. If the proponents were truly focused on doctors, why does this bill cover civil actions against nursing homes, assisted living facilities, hospitals and many HMOs?

Reduced statute of limitations. The legislation reduces the amount of time an injured patient has to file a lawsuit to one year from the date the injury was discovered or should have been discovered, but not later than three years after the "manifestation" of injury. This statute of limitations, which is much more restrictive than a majority of state laws, would cut off meritorious claims involving diseases with long incubation periods. Thus, a mother or baby who contracted HIV through a negligent transfusion during the birth of the baby, but learned of the disease more than five years after the transfusion, would be barred from filing a claim.

Elimination of joint liability for economic and non-economic damages. The bill completely eliminates joint liability, thereby upending the law in many states. Under joint liability, injured patients are compensated fully for their loss. Joint liability enables an individual to bring one lawsuit against the entities responsible for practicing unsafe medicine or manufacturing a dangerous, defective product and have the defendants apportion fault among themselves, if the jury finds for the plaintiff. Our civil justice system has determined that it is the injured patient-not multiple negligent medical providers-who deserves the greatest measure of protection.

Allows evidence of collateral source benefits. The bill gives defendants in medical malpractice cases an absolute right to introduce evidence of "collateral source" benefits. While the plaintiff can then introduce evidence of amounts paid to secure that benefit, this rule allows the wrongdoer to profit from the plaintiff's prudent investment in insurance. If doctors want evidence of the injured patient's collateral sources admitted at trial, then the extent of the doctor's own liability insurance should also be admissible.

Severe restrictions on punitive damages. The bill provides that punitive damages may only be awarded if the plaintiff proves by an impossibly heightened standard of "clear and convincing" evidence that (1) the defendant acted with malicious intent to injure the plaintiff or (2) the defendant understood the plaintiff was substantially certain to suffer unnecessary injury, yet deliberately failed to avoid such injury. The bill does not create punitive damages in those states that don't recognize them. The bill further limits punitive damages to two times the amount of economic damages or $250,000, whichever is greater.

Heightened pleading standards for punitive damages. Punitive damages may not be sought by the plaintiff initially. At the court's discretion, a plaintiff may be allowed to file an amended pleading for punitive damages only after a finding by that court that there is a substantial probability that the plaintiff will prevail.

Periodic payments of all future damages. Allowing all future damages over $50,000 to be paid periodically punishes meritorious plaintiffs who were injured by malpractice and unsafe products and leaves them vulnerable and under-compensated. Meanwhile, large insurance companies reap the interest benefits of a plaintiff's jury award.

Mandatory federal procedures for state courts. The bill mandates that all federal and state courts apply the Federal Rule 11, which deals with attorney sanctions, to all cases covered by the Act. The bill also goes a step further and makes these sanctions mandatory rather than discretionary. First, most states already have already enacted their own version of Federal Rule 11, including sanctions, according to their individual state rules and procedures. These courts should not be forced to apply a mandatory federal sanction that distorts a mechanism they already have in place. Also, federal judges overwhelmingly agree that Federal Rule 11 operates more efficiently and fairly when the rule is discretionary rather than mandatory. Nonetheless, without following normal procedures, the bill would swoop down and simply reverse federal judicially-approved changes, returning Federal Rule 11 to the way it was from 1983 through 1993. For those 10 years that mandatory sanctions were in effect, litigation surrounding Federal Rule 11 significantly increased adding substantial time and cost to all litigation proceedings.

"Whose side are they on?

The thought of a surgeon taking a scalpel to the wrong limb, organ or patient sends chills down the spine of anyone who has been in a hospital.

Eighty-four cases of what's known in the business as "wrong-site surgery" were reported in the USA last year. But that's just the "tip of the iceberg," because many hospitals across the country aren't obligated to account for such blunders publicly, says Dennis O'Leary, who heads a group that inspects health care facilities.

The chances of wrong-site surgery are slim -- about one in 113,000 operations, a study published Tuesday in Archives of Surgery notes. Still, any incident is unacceptable. In one typical case, instead of removing a benign tumor from Doug McCoy's right ear last September, surgeons at Maricopa Medical Center in Phoenix operated on his left ear -- which had no tumor.

In an effort to eliminate such blunders, surgeons have been required since 2004 to mark the spot they plan to cut while consulting with their patient before the operation. Nurses are supposed to call a "time out" in the operating room to conduct a final safety check to ensure that the right procedure is performed on the right patient.

So why do these catastrophic mistakes keep happening? Mainly because systems designed to prevent errors are faulty, or not followed, researchers say.

Some surgeons who think they'd never make such a stupid mistake often ignore safety protocols. Stubborn resistance to standardized conduct is part of the culture of medicine.

Airline pilots overcame this barrier long ago. Even the most experienced pilots must run through a checklist before taking off. It may be embarrassing for surgeons to be asked if they know for sure which side -- or patient -- they're about to operate on. But it's a lot less embarrassing than making a grievous error. Swallowing a little pride may save a limb, or a life.

Hazards in hospitals. Surgical screw-ups are a small part of a much larger patient-safety problem in hospitals.

Incidents such as bedsores, post-operative infections and failure to diagnose and treat conditions that develop in the hospital continued to plague American hospitals, according to a new study of Medicare patients by HealthGrades, a health care ratings company.

The study found that 1.24 million patient safety incidents occurred in nearly 40 million hospitalizations from 2002 to 2004. Those incidents were associated with 250,000 potentially preventable deaths and $9.3 billion of excess costs. For the second straight year, incidents increased slightly.

What can be done? Only 23 states have mandatory error-reporting systems, and standards of measurement aren't consistent. More states need to adopt rigorous reporting systems, and they should publicly release the type and number of patient safety incidents at each hospital. Exposure can spur progress.

That's what Minnesota has done, and it's ranked as the nation's top state for improving patient safety. A unique program there allows fiercely competitive hospitals to work together to share data, highlight best practices and implement tested solutions. As a result, Medicare patients in Minnesota had a nearly 30% lower risk of a safety incident compared with New Jersey, listed as the worst state.

Progress in reducing medical errors has been painfully slow. Speeding improvements requires making safety a top priority, publicly identifying hospitals that miss the grade and rewarding those that exceed it."

In a new book entitled, The Medical Malpractice Myth,Tom Baker, Connecticut Mutual Professor of Law and director of the Insurance Center at the University of Connecticut, uses empirical evidence to dismantle the myths that permeate the national debate over medical malpractice and liability insurance costs.

Baker, who spoke yesterday at a briefing for congressional staff on medical malpractice, writes that the real problem is too much medical malpractice, not too much litigation. Most people do not sue, which means that victims - not doctors, hospitals, or liability insurance companies - bear the lion's share of the costs of medical malpractice

Here are some of Baker's Key Findings:

Medical Malpractice Is An Epidemic

Medical errors kill up to 100,000 Americans each year. (p. 9) 
1 in every 100 hospitalized patients becomes a victim of negligent care. (p.29)

Insurance Costs Are Low

Medical malpractice premiums account for less than 1 percent of all heath care spending. (p.9) 
The average physician paid less than $12,000 for malpractice insurance. (p.66)

Insurance Rate Changes Are Not Related to Litigation

Medical malpractice insurance premiums rise and fall because of the "boom and bust" nature of the insurance underwriting cycle. (p. 51) 
The tort system has "little or nothing to due" with the fluctuations in insurance premiums. (p.45)

Tort Reform Hurts Patient Safety

"All the research that has been done so far points in the same direction: tort reform does not improve hearth-care outcomes" (p. 148) 
"Research suggests that a least some kinds of tort reforms might have a detrimental effect on health." (p. 148)

Doctors Are Not Fleeing

There are more doctors per capita than ever before. (p. 143-144) 
There are isolated access to health care problems, but they do not really have anything to do with malpractice lawsuits. (p.155)

Malpractice Suits are Rare; Usually Meritorious

Less than 3% of malpractice victims file suit. (p.63) 
The rate of malpractice suits has declined over the past 15 years. (p.37) 
"Research clearly rejects the claim that most medical malpractice lawsuits are frivolous.: (p. 86)

Tort Driven Defensive Medicine Is A Myth

"Defensive medicine is a trumpted up charge." (p.155) 
"The overall impacto f this defensive medicine on health-care costs is not very large." (p. 134).

Doctors might answer that no cases would be averted. They might say that our legal system has created an atmosphere in which accepting responsibility for a medical mistake and apologizing only guarantees a lawsuit.

I don't think so. I can't even count how many clients over the years have told me 1) that they have no interest in suing thier doctor, or any doctor; but 2) that they are so frustrated by a doctor's defensiveness, or downright disappearance, after something went wrong that they are motivated to explore a legal solution.

My experience with doctors is that many are honest and caring individuals. But even the most honest doctors often feel that they must conceal mistakes in order to avoid the legal system. Few consider that most patients, even those who are harmed through a medical mistake, want to avoid lawyers and the legal system as much as they do.

Many doctors would be surprised to learn that acceptance of responsibility sooner often avoids the need to deal with the legal system later altogether.

I hear this sort of thing every now and then and I'm always amazed. After all, in Nevada, lawyers don't sue doctors - doctors sue doctors.

Nevada law requires that every plaintiff obtain a medical review from a qualified specialist prior to filing a malpractice complaint. All malpractice complaints must be filed with an appropriate expert affidavit.

In the case at hand, a highly qualified well-credentialed cardiologist opined that the defendant cardiologist was negligent and should have taken corrective action. Our case would not have been filed but for the opinion of another cardiologist.

Medical malpractice lawsuits in Nevada would not exist but for doctors who testify against other doctors.

"Despite years of patient-safety efforts, an increasing number of health care facilities have reported mistakenly removing the wrong limbs or organs, slicing into the wrong side of bodies and performing surgery on the wrong patients. 'It's getting worse,' says Dennis O'Leary, who heads the non-profit Joint Commission on Accreditation of health care Organizations, which inspects more than 15,000 hospitals and surgical centers nationwide and sets patient safety requirements and guidelines. Last year, health care facilities reported 84 operations to the commission that involved the wrong body part or the wrong patient. While some states require hospitals to report such blunders, many hospitals across the nation are not obligated to account for them publicly."

Robert Davis, USA Today, 4/17/06

Dr. Joseph Mercola cites a report from the New England Journal of Medicine for the following thoughts in this regard:

Lower levels of hospital staffing on weekends may increase the risk of death among patients with some life-threatening disorders.

A study of nearly 3.8 million emergency hospitalizations in Canada found that patients with certain medical conditions were more likely to die if they were admitted on a Saturday or Sunday compared with patients admitted from Monday through Friday.

For instance, patients with a ruptured abdominal aortic aneurysm -- a tearing in the artery wall that causes potentially fatal bleeding -- were 28% more likely to die when they were admitted on a weekend, the investigators found.

Also, patients with pulmonary embolism, in which an artery in the lung is blocked with a clot or other material, or acute epiglottitis, an infection that causes severe swelling of the structure that closes the windpipe when a person swallows, were also at increased risk of death if they were brought to the hospital on a weekend.

The findings support the results of previous studies. The rate of death among infants born on a Saturday or Sunday is slightly higher than the death rate among babies born during the week, for instance, while patients who overdose on drugs may fare worse on the weekends.

The researchers note that working on the weekend is unpopular and that people who work on a Saturday or Sunday may have less experience than those who work during the week.

For more, see, The New England Journal of Medicine August 30, 2001; 345:663-668

When a case is large or complex, I tell my clients that we can hire expert doctors, but treating doctors tend to have greater credibility with a jury since they 1) are not paid to provide opinions (even though most demand payment to testify); and 2) have actual "hands-on" contact with the client/patient.

Problems arise, though, when doctors do not chart well. Frequently, doctors will leave certain patient comments or complaints uncharted. Often, doctors simply record a statement incorrectly.

I was in a deposition the other day in which defense counsel showed my client a medical record from a treating doctor that indicated that he had been doing stunts on a motorcycle shortly after the accident. In reality, my client, who didn't own a motorcycle, had attended a stunt motorcycle show.

It's almost impossible to ensure that a doctor charts correctly. Similarly, getting a doctor to change a chart entry can be a recipe for an even bigger problem since many doctors will chart that you asked them to change a chart entry. Changed entries always draw suspicion.

When you see your doctor, make sure that you communicate your complaints clearly, repeat yourself and emphasize primary complaints.

Any thoughts on other ways to ensure that a doctor charts accurately are welcome

Jordan Margolis, a Chicago personal injury lawyer, recently reported on his blog, that new studies show that we are not in a medical malpractice insurance crisis now.

Magolis notes:

Just as consumer rights organizations predicted, the so-called "Medical Malpractice Insurance Crisis" has ended, not because of tort reform, but because of the cyclical nature of insurance underwriting and investment returns.

According to the American Inusrance Reform study, physician premiums increased 0% in 2005, after a modest 3% increase in 2004. Before that, in 2002, they had skyrocket 63%. The stabilization occurred nationwide, not as a result of any "caps" on victim compensation but, rather, as always occurs every 10 to 15 years, when the "hard" market turned "soft."

Here in Nevada we have a relatively new and unfortunately restrictive collateral source statute in medical malpractice cases. This statute is lengthy and can be found at http://www.leg.state.nv.us/NRS/NRS-042.html#NRS042Sec021 .

While this provision is the rightful subject of legal analysis for years to come, basically it does the following:

First, it allows a defendant to introduce collateral source evidence.

Second, a plaintiff may introduce evidence of whatever the plaintiff has paid.

Third, and controversially, it states that collateral benefit sources introduced by the defendant may not recover against the plaintiff.

Fourth, and problematically, it allows for periodic payments after a judgment.

While the entire subject may seem a little dry, the collateral source evidence that is introduced is often key to the amount of the judgment that is obtained.

More on this in future columns.

How much is the lifetime use of a right arm worth?

What is fair compensation for spending 60 years blind because of a doctor's error?

If a surgeon makes a mistake and cuts a nerve during routine surgery, forcing you to eat and drink through a tube for the rest of your life, how much do you deserve in return?

Here are a few personal observations.

First, the Vegas backlog is not the Reno backlog. There is not a court-caused backlog in Reno (or in Northern Nevada) of which I am aware.

We do have a related problem, though, and that has to do with defense attorneys who will not set cases within a reasonable period (12-14 months, for instance).

There's a simple solution to this problem:

NRS 41A.061 states as follows:

Dismissal of action for failure to bring to trial; effect of dismissal; adoption of court rules to expedite resolution of actions.

1. Upon the motion of any party or upon its own motion, unless good cause is shown for the delay, the court shall, after due notice to the parties, dismiss an action involving medical malpractice or dental malpractice if the action is not brought to trial within:

(a) Three years after the date on which the action is filed, if the action is filed on or after October 1, 2002, but before October 1, 2005.

(b) Two years after the date on which the action is filed, if the action is filed on or after October 1, 2005.

2. Dismissal of an action pursuant to subsection 1 is a bar to the filing of another action upon the same claim for relief against the same defendants.

3. Each district court shall adopt court rules to expedite the resolution of an action involving medical malpractice or dental malpractice.

Nevada plaintiffs should not be left to the whims of a defense attorney's preferences when it comes to scheduling. Similarly, plaintiff's attorneys should not have to argue for a fair setting in every case. Rather, district court judges should require the parties to set within a reasonable number of months based upon the court's calendar and the court's availability. 

Doctor's depositions are different, though. Unless a doctor is a defendant in a malpractice action, most doctor depositions take place at the doctor's office. And most doctor's offices aren't particularly big or particularly nice.

I found myself in one such deposition a few days ago. My client (the plaintiff) was present, the defense attorney was there, a court reporter was there, the treating doctor was there. I had a huge notebook with over 1000 pages of medical records, my client, a senior citizen, had her walker, the court reporter had her notebook computer, her stengraphy machine and the rest of her court reporter parapheralia, and there we were, all crammed into some wealthy doctor's hot, messy, crowded space.

And then something mystical occured: the doctor realized that we couldn't all fit and moved the entire show up to his medical group's lavish board room. We all spread out, leaned back, pivoted around in plush leather chairs and the depositon proceeded to conclusion in the inner sanctum.

The surprises, however, weren't finished, because when the deposition ended, and I thanked the doctor (diplomatically) for moving us out of his tiny space, he confessed to me why we were ever crammed together in the first place.

"Doctors," he said, "don't like depositions and they don't want to spend their time with lawyers. The more uncomfortable a lawyer is, the sooner a deposition is likely to end. And that's why we hold depositions in our offices."

As I walked out I wondered why I hadn't realized this perfectly logical fact years ago.