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Currently Viewing Posts Tagged Malpractice

What Do Those Signs Mean?

When I saw this picture, I knew I had to start the blog with it. I think I live by this mantra!



We signed up a new client yesterday, who was hit by a truck while leaving a grocery store parking lot. The grocery store has signs hanging on several of their poles that say, “These premises are under closed circuit camera surveillance for your protection“.

Immediately, our investigator walked into the store to ask about the surveillance video, to help us prove our case. The manager just smiled and then admitted that they really didn’t have any cameras, just the signs. I guess it’s a bit like having a “Beware of Dog” sign… without owning a dog.

The “surveillance signs” seem like a good metaphor to lead into a quick discussion of some legislation being debated in Congress. H.R 1215 has been introduced by Representative Steve King (R-Iowa). It is known as the Protecting Access to Care Act of 2017. For the purposes of this blog, I won’t get into an entire discussion of  the pros and cons of Obamacare or providing health care for the entire country. That would put us into a blog of sleepy time. Instead, I am just going to mention a few highlights of this bill.

The title of the bill relates to health care, but amendments also include (H.R. 382) which indicates the bills intent to “provide improved medical care by reducing the excessive burden the liability system places on the health care delivery system”. That has a special meaning to insurance companies.


(Or just meander through)

A. A federal $250,000 non-economic damage cap on lawsuits to override state laws; B. elimination of naming doctors and drug companies in a single lawsuit that involves a claim relating to a prescription; C. establish a statute of limitations federally that restricts filing a lawsuit after 3 years, even if any state has a longer statute of limitation or even if the person injured did not know that they were hurt from something; a restriction of a percentage that a lawyer can charge for representing someone (although, there is no restriction on what can be charged by lawyers to defend the claims), D. and an elimination of joint liability for economic and non-economic damages in the same claim.


This bill would require PLAINTIFF experts in any malpractice case to meet the following requirements: First, an expert would have to sign an affidavit 90 days prior to filing suit to outline the areas of malpractice by the defendant. Second, the expert must be in the same field of expertise as the defendant. And Third…. and the real amazing item to me: Any expert must be from the same state as the doctor who committed malpractice, or else must be in a contiguous state to the state where the malpractice has been supposedly committed.

Why am I focusing on the Third item, out of all the things I have mentioned? For instance, under this bill, a doctor at Duke, who might even be chairman of the department, cannot testify as an expert in a case in Pennsylvania.

Why do they do this? To restrict the ability to prove malpractice. If an insurance company can restrict experts that can be hired and restrict what lawyers can be paid, then they can restrict malpractice claims. They want to make it hard to hire an expert. And, they know how hard it is to get a doctor to testify against another doctor that they know, in the same state.


That’s why I say that those signs hanging in the parking lot are a good metaphor for such legislation.  I just wanted to give you something to think about. No wonder people want to drain the swamp!

And finally; yes I admit it, I do enjoy cake which causes me to post cake pictures:


English Speaking Dogs Tell Us?

Imagine a politician standing to give a speech on job creation. His proposals to create more jobs include the following :   “We should teach dogs to speak English. It would create more teaching positions and encourage more people to go into fields of education. That would create more jobs in the education field at universities.

It is a wonderful idea to create jobs. Plus no one is arguing against it. Unfortunately, it misses the idea that dogs cannot learn to speak English. Well, except for the few that are on the Internet with such phrases as “Ma Ma” or “I love you”. It reminds me of all the folks who want to believe that they saw the face of Jesus in a grilled cheese.

You can see what you want to see, if you believe enough. I use that thought as a springboard to the Tort reform in Texas. I knew that if I started the blog with tort reform in Texas “you would change the channel”.

Let me make a quick point and make it quick. In 2003, Texas adopted a constitutional amendment that limited payouts in medical malpractice lawsuits. There was a specific cap of $750,000 on payouts for pain, suffering, disfigurement and mental anguish. Later, they capped non-economic damages for malpractice cases to an amount of $250,000.

The basis for enacting the caps was to curb malpractice lawsuits; reduce insurance costs for doctors; lower healthcare costs to patients, which would boost their access to physicians;  encourage physicians to come practice in Texas, as a friendly doctor state; and allow doctors to practice medicine without having to order all those extra tests because of the fear of “those frivolous lawsuits”.

I don’t think I left anything out in the list. Maybe… lower the cost of medical bills since insurance companies could pass the savings on to the consumer…  Well, the results of those 2003 lawsuit caps are in. What are the benefits?

First, according to the Insurance Journal, Texas now ranks number 46 out of 50 states in doctors per Texas residents. So, either that means that doctors can’t stand the thought of living in Texas or, malpractice lawsuit caps have nothing to do with where they practice. Of course, it could also mean that doctors don’t want to hear a word of coverage about the Dallas Cowboys… but I digress.

Did these malpractice caps lower the cost of healthcare for patients? Not according to the Dartmouth Atlas of Health Care. I guess that if insurance companies are saving money on malpractice payouts… that they are not passing it on as a savings to Texas residents. Imagine that.

Not only has healthcare costs not decreased, but there’s more bad Texas news. The federal Agency for Health Care Research and Quality ranked Texas health care as the worst in the nation. (2011) Hmmm.

A little bit of good news though. The Center for Progressive Reform found that “restricting lawsuits might save doctors a negligible amount on malpractice premiums”. Negligible is good, right?  OK, I’ll stop being sarcastic.

I doubt that you are clamoring for some good old late night insurance reading. However, in keeping with this being a legal blog, here’s a book that you will probably never read. From Amazon comes The Malpractice Myth by Tom Baker.  Just as a side note, Amazon wanted me to know that as a Prime Member, I can buy the book at a wonderful discount. I think I’ll pass for now.

This book does recite why insurance companies pretend that insurance caps lower insurance premiums.  Of course, I doubt that anyone truly believes that insurance companies would rather pass on profits than keep them. Just my .02.

The old mantra that cutting taxes creates jobs; drilling for oil is a huge job creator (as long as you don’t count cleaning the oil off the pelicans); and caps on lawsuits lowers insurance premiums. Those all sound wonderful. Wouldn’t that be a wonderful life. Unfortunately, it’s more like staring at the dryer in the spin cycle. It’s all believable as long as we don’t have to look at statistics.

And that’s my Tuesday morning soapbox. I’ll climb off now.

And for pic o’ day, some hiding:




Consent to Bad Treatment

      You walk into a doctor’s office and they hand you a clipboard and pen. Then, they  ask you to fill out the forms. At the end, you usually find a form called a Consent Form that basically advises you that you are consenting to a whole bunch of stuff when you receive treatment from the doctor.

The big question is whether that consent is binding on you if you sign it. Well, the Virginia Supreme Court, in a dental malpractice case, now tells us that it’s not. You are not consenting to malpractice. The case is styled Fiorucci v. Chinn (McClanahan) No. 131869, Oct. 31, 2014; It originated in the Alexandria Circuit.Court.

The facts of the case showed that during trial, the defendant dentist (through his attorney) sought to introduce the risk of surgery discussion that took place before the dental procedure .

During the trial, the circuit court judge ruled that the risk of surgery discussions between dentist and his patient were not relevant. The Judge would not allow that evidence to be presented to the jury.

The Supreme Court agreed with the trial court judge in ruling that Plaintiff’s awareness of the risks of the extractions was not a defense against his claim that defendant deviated from the standard of care in misdiagnosing the condition of plaintiff’s wisdom teeth or negligently performing the surgery. Evidence of the informed consent discussions was neither relevant nor material to the issue of the standard of care.

The case now affirms that just because we sign that form doesn’t mean that we are saying that we are ok with negligence. Something to think about the next time that they slide that clipboard to you through that little window.

And for our pic o’ day… a bit of medicine:



Trusting the Doctor

Dr. Custer was trying to tell us what might be important for an upcoming Bible test. Since we were a class of a bunch of ninth-graders, I am not sure that I can even imagine the expressions on our faces. Then he told us to remember what “walking circumspectly” was describing.

There are many things that I do not remember from school. I still remember the lesson on “walking circumspectly “. Dr. Custer told us it was “walking with eyes in the back of your head”. Then, he physically demonstrated as though he was walking with eyes in the back of his head. Like the old saying, “be alert… we need more lerts!”.

That memory came to mind when I saw a Washington Post story about a trial that was scheduled to start on Wednesday morning in Alexandria, Virginia. It also was a reminder that just because a person has Dr. in front of their name does not mean that they are not susceptible to greed and fraud.

Dr. Amir Bajoghli, owner of Skin & Laser Surgery Center, has been charged with 60 counts of fraud that involved his patients who were seen and treated between the years of 2009-2012. According to his indictment, he also billed insurance companies for surgeries that he did not perform. In addition, it is alleged that he had unlicensed and unqualified medical assistants to close wounds and perform skin grafts while unsupervised.

In fact, Dr. Bajoghli had been named as one of the regions “Best of”, when considering top dermatologists in the area.  He also had multiple offices throughout Virginia and the surrounding D.C. area.

The prosecutors intend to prove that this doctor performed unnecessary surgeries and also was intentionally misdiagnosing his patients with skin cancer. Not only profiting in his billing by intentionally providing insurance codes that allowed him higher reimbursement, but also scaring his patients by  telling them they falsely needed treatment for their skin cancer . Mostly, he was telling elderly people that “you have skin cancer and I have to operate (cut it off or out)”.

Pair that alleged fraud with the charge that he improperly billed and received $31,000 for procedures that were done improperly by a nurse practitioner or assistant.

Because I regularly see a dermatologist, I think that this kind of charge and trial hits close to home. Isn’t it true that we want to trust our doctors and in fact need to trust them? Hence, the reminder of the need of “walking circumspectly”.

We basically have to have eyes in the back of our head today. It’s also why I don’t get excited about “Best of” lists. Instead, there is nothing like a personal referral. I gladly tell anyone to go see my dermatologist. It also reminds me of those Hotel commercials with “Captain Obvious”, who says that you should read the reviews of someone who has actually stayed in the room instead of a review from someone who was paid to write it . That really does seem obvious.

DID YOU KNOW that the Internet was originally called the ARPANet? (Advanced Research Projects Agency Network designed by the U.S. Department of Defense)

And for our pic o’ day, here’s a nod toward decisions for Halloween costumes:


Fighting Medical Errors reports that “Sully” Sullenberger is now on the lecture circuit for patient safety.  I have pulled out a portion of the article. His focus is to get healthcare providers to share information, to help reduce medical errors.


Capt. Chesley “Sully” Sullenberger in 2009 coolly landed his jet safely on the Hudson River in what was dubbed as the Miracle on the Hudson. He has refashioned himself as an expert on reducing medical errors, which by some estimates kill up to 200,000 people a year — “the equivalent of 20 jetliners crashing per week,” he told POLITICO. If tens of thousands of people died in plane crashes, he says, “There would be a national ground stop. Fleets would be grounded. Airports would close. There would be a presidential commission. The NTSB would investigate. No one would fly until we had solved the problems.” But patients die needlessly every day, and it’s barely a blip on the national radar. Click for full article (

     DID YOU KNOW that 90% of US money contains traces of cocaine (CNN) I attached the cite for that because it seems almost unbelievable. I guess there is validity to the term “dirty money”.

     And for pic o’ day I found the adversary to Lawyer Dog:

Lawyer Dog Purr jury cat


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