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Hospital’s immunity bars recovery for sexual abuse

A hospital which employed a doctor accused of sexually abusing a patient in the late 1960s is protected by the doctrine of charitable immunity, the Massachusetts Court of Appeals ruled in Doe v. Levine.

In 2006, the plaintiff, John Doe No. 4 (Doe), brought a medical malpractice and negligence action against Melvin D. Levine, and his employer, Children’s Hospital Medical Center (hospital). Doe alleged that Levine sexually assaulted him while he was Levine’s patient from 1967 to 1969 and that the hospital was negligent in its hiring, training, and supervision of Levine with respect to Doe. The hospital moved to dismiss Doe’s negligence claim on the ground that the doctrine of charitable immunity, as it existed under the common law at the time the alleged sexual assaults occurred, bars recovery. The hospital argued that the doctrine of charitable immunity, in effect at the time, precluded Doe’s claim.

The trial court denied the hospital’s motion to dismiss, but the Appeals Court overturned the decision, ruling that the discovery of the damages in 2006 is not relevant, but the date of the alleged abuse is. “Doe’s negligence claim arose no later than 1969, which is the year in which he alleges he was last treated by Levine.” Thus, the negligence claim arose no later than 1969, which was when the patient was last treated by the doctor. At that time, the hospital had the benefit of absolute charitable immunity.

In 1969, the common-law doctrine of charitable immunity precluded any tort liability against a charitable organization. However, in 1971, the Legislature abolished absolute charitable immunity and replaced it with limited liability. See G. L. c. 231, § 85K, , which provides that: “It shall not constitute a defense to any cause of action based on tort brought against a corporation . . . that said corporation . . . is or at the time the cause of action arose was a charity; provided, that if the tort was committed in the course of any activity carried on to accomplish directly the charitable purposes of such corporation . . . liability in any such cause of action shall not exceed the sum of twenty thousand dollars.”

The decision in this case highlights the inequities that follow the introduction of any type of immunity in the law. Rather than being accountable for egregious conduct, this hospital gets to walk away from its responsibility. How can it be said that the interests of justice are well served by such laws?

What happens in Vegas……hospitals?

Patients in Las Vegas hospitals have unknowingly encountered thousands of cases of injury, death and deadly infection associated with stays in hospitals there. This was revealed as part of a two-year investigation, by Las Vegas Sun reporters Marshall Allen and Alex Richards who obtained a record of every Nevada hospital inpatient visit going back a decade — 2.9 million in all.

The information, coupled with interviews with more than 150 patients and health care insiders, has yielded a sweeping and detailed portrait of hospital care in Las Vegas. Over a two-year period — 2008 and 2009 — patients suffered preventable injuries, life-threatening infections, or other harm 969 times during their stays in Las Vegas hospitals. The investigation also found that Las Vegas hospitals “have higher than expected rates of accidental punctures and lacerations, blood clots, and deadly blood infections. Hospital insiders tell the Sun that a dangerous culture of mediocrity has become the status quo.”

You can read the full report by clicking here. In the meantime, if you are planning a trip to Vegas and need medical assistance, take heed of this running joke about hospitals there:

“Where do you go for great health care in Las Vegas?”

“The airport.”

Immunities for faulty medical devices drive up costs

Faulty medical devices are costing taxpayers billions of dollars that should be paid by the manufacturer, but because of the complete immunity status device manufacturers enjoy from a Supreme Court decision, taxpayers are left with the bill. While many medical professionals argue that lawsuits have been driving up healthcare costs, the truth remains that it is this lack of legal accountability which is actually taxing consumers.

A new study, prepared by Professor Dennis Tolley, a consulting actuary and statistician revealed that one such device, the Sprint Fidelis defibrillator lead, caused Medicare to pay up to $1 billion in additional claims. These expenses would be paid by the manufacturer had the U.S. Supreme Court, through the Riegel v. Medtronic decision, not provided complete immunity from liability to medical device manufacturers of Class III devices. You can read the complete research report by clicking here.

Medtronic’s Sprint Fidelis defibrillator lead, a wire that connects the defibrillator to the heart, was recalled in 2007 because it is prone to fracture and send electric shocks throughout the body. You can obtain more information about the recall by clicking here. More than a quarter of a million Sprint Fidelis leads were implanted worldwide, 150,000 in the United States. The video below shows how several consumers have been impacted by the device. It further urges action by Congress to repair the damage.

The Medical Device Safety Act (S. 540/H.R. 1346) has been introduced to restore injured patients access to the courts. Congress must pass the Medical Device Safety Act (MDSA), legislation that would restore the right of patients to hold manufacturers of medical devices accountable in court when their devices have malfunctioned.

Even the New England Journal of Medicine has urged passage of this bill, noting that patients and physicians deserve to be fully informed about the benefits and risks of medical devices, and the companies making the devices should be held accountable if they fail to achieve this standard. Click here to read the editorial from the April 9, 2009 journal.

Five minute defense verdict upheld

How much time should it take a jury to render a decision in a medical malpractice case? There is no set rule, but according to one appellate court, five minutes was enough time for a jury to reach its verdict in favor of a Manhattan ophthalmologist who had been sued.

The plaintiff had sought to appeal a decision issued in December by the Appellate Division, First Department, which had also ruled the jury’s quick deliberation had not undermined the plaintiff’s right to a fair trial. Citing Lopez v New York City Transit Authority, 60AD3d 529 (2009) and other cases, the state appeals court found that “the verdict was based on a fair interpretation of the evidence,” and that the jury could reasonably have concluded, based on the evidence and testimony presented, that the “defendant had not departed from acceptable standards of care and treatment” in his area of medical specialty.

“The brevity of the jury’s deliberations alone did not undermine plaintiff’s right to a fair trial,” the court stated in its decision. “We reject plaintiff’s contention that the judgment is inconsistent with the evidence.”

For more on this case, click here.

Tribunal must be convened even for simple negligence

The widow of a man killed when an elderly woman plowed her car into Brockton Hospital in October 2007 may only sue the driver’s doctors by going through the state’s Medical Malpractice Tribunal, the state Supreme Judicial Court ruled Tuesday.

Plaintiff Kathleen M. Vasa’s lawyers contended that her claims were not subject to the malpractice tribunal requirement because the claims are based on “simple negligence” rather than “medical malpractice.” The plaintiff argued further that the medical malpractice tribunal statute is inapplicable absent a doctor-patient relationship between the plaintiff and defendant. But the medical defendants who treated driver Jane Berhold over a four-year stretch before the accident argued that the malpractice tribunal should handle the matter.

Beginning in March, 2003, the four defendant physicians treated Berghold for dizziness and lightheadedness. She experienced these symptoms up to four times daily, including while driving. She suffered also from diabetes, stroke with lingering congestive heart failure, and hypertension. The four defendant physicians prescribed her various medications and modified the prescriptions she received from other physicians. On October 15, 2007, Berghold lost control of her motor vehicle and drove into the Brockton Hospital building, crushing to death Mark Vasa, an employee of Brockton Hospital.

Vasa’s widow, acting individually and as executrix of Vasa’s estate, sued Berghold in the Superior Court, eventually settling those claims. The plaintiff then amended her complaint to add Compass Medical, P.C. (Compass), and Compass’s employees, the four treating physicians, as defendants. The amended complaint alleges that the defendants knew or should have known that the medications they prescribed, alone or in conjunction with Berghold’s age and existing illnesses, were likely to impair her physical and mental abilities to operate a motor vehicle safely. Additionally, the amended complaint alleges that the defendants committed a breach of their duty to Berghold and the public by failing to advise Berghold not to drive. The complaint also contains claims for wrongful death and punitive damages.

The Supreme Judicial Court concluded that, because the claims are related to the medical treatment the defendants provided to Berghold, they are subject to the malpractice tribunal requirement of G.L. c. 231, § 60B. Although the medical malpractice tribunal statute does not define an “action for malpractice, error or mistake,” Massachusetts case law has defined the phrase broadly to encompass “all treatment-related claims.”

To view a copy of the full opinion and ruling, click here.

Durbin debunks medical malpractice myths at White House summit

Senator Dick Durbin offered a stunning rebuke of medical malpractice myths and an impassioned defense of the civil justice system at the White House summit on health care earlier this week.

Senator Durbin has a lot of credibility relative to this discussion. Before he went to Congress, Durbin worked in a courtroom. For years, he defended doctors and hospitals, and for years he sued them on behalf of people who were victims of medical malpractice. He has represented interests on both sides of the table.

As he pointed out, if medical malpractice deform is included in the health care bill, we will lose accountability. And because of that, 4,800 people will die each year according to the Congressional Budget Office. The Institute of Medicine tells us that currently 98,000 people a year die in America because of medical malpractice. Rather than increase that number, we should be looking at ways to reduce medical errors.

You can view the remarks of Senator Durbin by clicking on the image below or clicking here. You can review the text of his remarks by clicking here. For a primer on medical malpractice issues in the healthcare debate, click here.

Damage caps ruled unconstitutional in Illinois

The Illinois Supreme Court struck down the state’s $500,000 cap on awards for pain and suffering in medical malpractice lawsuits against doctors, finding that the limits set by the Legislature violate the state constitution’s separation of powers principle. The court threw out a law passed by the Illinois General Assembly in 2005 which was designed to protect healthcare, but did so at the expense of injured people. We blogged about this case in December 2008 (click here to read that post).

The ruling involved a case filed on behalf of Abigaile Lebron, whose lawsuit was later combined with two other actions challenging the damages cap. Lebron suffered a brain injury as she was being delivered by a doctor and nurse at Gottlieb Memorial Hospital in the Chicago suburb of Melrose Park. The lower court ruled that the cap on damages “operates as a legislative remittitur which ‘disregards the jury’s careful deliberative process in determining damages that will fairly compensate injured plaintiffs who have proven their causes of action'” and thus violates separation of powers. The Illinois Supreme Court affirmed the lower court ruling.

We applaud this decision as it reaffirms the importance of juries in deciding disputes. And it is a great victory for injured consumers. As we have said repeatedly, capping malpractice suits will not make healthcare cheaper and robs injured persons of their rights to be compensated for what has been taken away from them. This continuing effort to blame lawsuits for spiraling health costs is puzzling and unwarranted. The focus should shift to efforts on curbing negligent treatment of patients. Indeed, wouldn’t safer practices eliminate lawsuits and lower premiums?

You can read the full Illinois Supreme Court decision by clicking here.


AAJ report debunks med mal myths

The American Association of Justice (AAJ) released a new report entitled, “Five Myths about Medical Negligence” that debunks the myths about medical malpractice reform including:

  • there are too many frivolous suits;
  • medical malpractice lawsuits drive up healthcare costs;
  • doctors are fleeing because of medical malpractice lawsuits;
  • medical malpractice claims drive up premiums; and
  • tort reform will lower insurance rates.

Calls for tort reform in the context of health care reform are an unwelcome distraction. As we have noted in several posts on this topic, in this debate, no one is speaking about the victims. This continuing effort to blame lawsuits for spiraling health costs is puzzling and unwarranted. The focus should shift to efforts on curbing negligent treatment of patients. Indeed, wouldn’t safer practices eliminate lawsuits and lower premiums?

You can view AAJ President Anthony Tarricone’s article on the report by clicking here. You can link directly to the report by clicking here.

Doctor rejects notion of limiting lawsuits

“The doctors’ lobby says capping malpractice suits will make healthcare cheaper. I’m an M.D. and I don’t believe it.” Those are the words of Dr. Rahul K. Parikh, a doctor who believes, like most of us, that lawsuits are not the reason we have a healthcare crisis in this country.

In an op-ed at Salon.com, Dr. Parikh wrote, “Proponents of reform say that defensive medicine, frivolous lawsuits and high premiums are behind the surge in healthcare expenses.” But “there’s nothing ‘sure or quick’ about changing medical liability laws that will improve healthcare or its costs. Defensive medicine adds very little to healthcare’s price tag, and rising malpractice premiums have had very little impact on access to care.” Parikh discusses several studies on the subject, concluding, “Instead of a swamp of frivolous lawsuits, what the data shows is a system that functions.” He argues, “Tort reformers neglect the fact that malpractice reform won’t save one extra life. To make that difference, insurers, doctors and their lobbyists like the AMA need to find ways to improve patient safety.”

You can read the full text of the article by clicking here.

Dead by Mistake site focuses on medical errors

“Every year approximately 200,000 Americans die from preventable medical errors and healthcare-associated infections as tools to fight these needless deaths go unused at many hospitals.”

That’s from an online report by a team of Hearst journalists called Dead by Mistake which focuses on the plague of fatal but preventable hospital errors. These journalists recognized that part of the problem “in seeking some solution to the unrelenting number of preventable deaths each year was that there was no comprehensive reporting of medical errors around the country.” With Dead by Mistake, they set out to change that by gathering information and presenting it in newsprint and online.

The site contains a number of resources, including stories from the families of victims, strategies for obtaining safe health care, and ways to demand change in the healthcare delivery system. In one recent story from the site, the Heart journalists noted that the proposed medical malpractice reforms “would only save 0.5% of all health care costs, and leave injured patients with practically no legal recourse. But reducing medical errors means healthier patients and lower costs.” You can read the full article by clicking here.

In another analysis presented on the site, they noted that Congress may be wrangling over measures to extend health insurance to more Americans and lower the costs of medical care, but few lawmakers are concerned with making our health care system safer for patients. Indeed, the three health care reform bills under consideration by Congress do not include key solutions long ago envisioned in “To Err Is Human” and lobbied against by the health care industry ever since. You can read more on that by clicking here.

You can see the full Dead by Mistake report by clicking here.