In spite of the United States Senate’s recent rejection of proposed medical malpractice reform, Senators Rick Santorum and Bill Frist were recently in Scranton again urging such reform. The American Trial Lawyers Association, whose stated goals are promoting justice for injured persons, defending the right to jury trials, and strengthening the civil justice system by disclosing information critical to public health and safety, issued a statement accusing the two senators of hypocrisy and deception.
All too often, medical negligence kills a patient. In Pennsylvania, lawsuits to recover for the death of a loved one consist of two separate actions, i.e., a “wrongful death” action and a “survival” action. Both of these actions had to be created by legislative action because neither was recognized by the common law. The survival action is the action that the decedent could have brought had he or she lived and compensates for damages sustained by a decedent before death. As a result, any recovery under a survival action is considered a part of the decedent’s estate, subject to Pennsylvania inheritance taxes and claims of the decedent’s creditors. If a decedent died with a Last Will and Testament (“testate”), any survival recovery and the decedent’s other assets will be distributed according the Will. On the other hand, if a decedent died without a Will (“intestate”), the survival recovery and remaining assets will be divided as required by Pennsylvania intestacy laws.
Dr. Lisa Marcucci, a trauma surgeon formerly associated with Geisinger Medical Center, has written a book entitled “Avoiding Common Surgical Errors.” In it, she identified 186 medical mistakes, some of which could involve serious consequences to patients. Dr. Marcucci’s stated goal-to help prevent such errors in the future.
At the invitation of the University of Pittsburgh Medical Center’s risk manager and director of patient safety, Neil Rosen recently spoke to physicians associated with UPMC about being deposed as a defendant during the discovery phase of medical malpractice litigation. Rosen, who almost exclusively represents plaintiffs in medical malpractice cases, cautioned those in attendance that they should take their deposition very seriously, as a poor performance makes defense of the case more difficult and increases the value of the case from the victim’s perspective.
The North Carolina Court of Appeals has ruled that the North Carolina Medical Board did not have grounds to suspend the license of a physician who testified as an expert witness for plaintiffs in a medical malpractice case against two North Carolina physicians. In a unanimous decision dated June 6, 2006, the court of appeals ordered the trial court to dismiss all disciplinary actions the medical board had filed against Dr. Gary J. Lustgarten, a board certified neurosurgeon from Miami, Florida.
(In addition to representing the victims of medical malpractice, this office represents injured parties in a number of other contexts. As a result, this blog will at times contain entries that are not directly related to medical malpractice, and this is one of those entries. Almost all of us have been involved in automobile accidents. All to often, people injured in an auto accident are severely prejudiced and not allowed to make a full recovery because of decisions made when purchasing automobile insurance. The information contained here should allow you to make reasoned decisions about your auto insurance.)
Proponents of reforming the medical malpractice litigation system often claim that reform is needed to curb frivolous lawsuits. The proponents of reform argue that frivolous lawsuits are the primary reason for high malpractice insurance rates, which are causing physicians to leave Pennsylvania. However, a study conducted by a number of health professionals and recently published in the prestigious New England Journal of Medicine suggests that such claims are greatly exaggerated.
While the concept of medical malpractice normally connotes mistakes made by highly-trained medical professionals, the Pennsylvania Supreme Court has recently made clear that the failure to properly perform a normal, every day activity such as bathing a patient can be medical malpractice. In Strine v. Commonwealth of Pennsylvania, a four-member majority of the court has ruled that the act of bathing a totally-dependent-elderly patient is a medical service under Pennsylvania law, thus triggering insurance coverage from Pennsylvania’s former Medical Professional Catastrophe Loss Fund (CAT Fund).