Rhode Island Injury Lawyer Blog

The battle over tort reform is being fought on every front, namely, media and public opinion, federal and state legislatures, and the judicial system. In Illinois, at least, the Supreme Court has stood up for its citizens civil rights and rejected a state law capping damages in medical malpractice lawsuits, finding that such a statute violates the separation of powers between the judicial and legislative branches. More specifically, it was determined that legislative caps on pain and suffering interferes with the Courts rights and discretion to reduce jury verdicts.

The Illinois law in question sought to cap damages against Hospitals at $1 million dollars and $500,000 against doctors and other health professionals. The case, Lebron v. Gottlieb Memorial Hospital, is one of many similar cases being fought across the Country right now.

Medical malpractice caps do not work, result in substandard medical care, and is not the magic fix-all for the healthcare crisis that certain interest groups deem it to be. Furthermore, several studies show that doctors actually pay less in malpractice premiums, when adjusted for inflation, than they did decades ago. The latter study stemming from our own Commonwealth of Massachusetts.

I have indicated in previous posts, here, and here, that tort reform is not the answer to this Country's health care problems. For one, the Congressional Budget Office has declared that malpractice costs are minimal in the large scheme of things. Second, medical malpractice attorneys, despite large potential reward, will only accept a very small percentage of cases. This is because it costs tens of thousands of dollars to bring a medical malpractice lawsuit, and many medical malpractice cases are unsuccessful. Therefore, if only the most obvious of medical errors are being challenged in the court systems, a great many errors go unpunished. This seems to combat the impression that doctors face countless "frivolous" lawsuits at the hands of greedy plaintiff attorneys.

Let's hear it for the Illinois Supreme Court. They have recognized that the judicial system is the best vehicle for protecting innocent doctors while awarding victims truly harmed by medical error. Let's hope that all States will follow their lead.

As a result of a new case, I had to conduct some research on the tolling (or lack thereof) of the statute of limitations in Massachusetts as it pertains to medical malpractice and children. Rhode Island General Law 9-1-14.1 allows for a tolling of the statute of limitations until the victim turns 18. The plaintiff then has three years from that date in which to file suit.

Massachusetts' law is not as kind as Rhode Island's law. Massachusetts General Law, Chapter 231, Section 60D states:

Notwithstanding the provisions of section seven of chapter two hundred and sixty, any claim by a minor against a health care provider stemming from professional services or health care rendered, whether in contract or tort, based on an alleged act, omission or neglect shall be commenced within three years from the date the cause of action accrues, except that a minor under the full age of six years shall have until his ninth birthday in which the action may be commenced, but in no event shall any such action be commenced more than seven years after occurrence of the act or omission which is the alleged cause of the injury upon which such action is based except where the action is based upon the leaving of a foreign object in the body.

In summary, the statute of limitations does not toll for minors in Massachusetts unless the child victim was under the age of 6 at the time of the negligence. In which case the child has until his ninth birthday in which to bring a lawsuit. In no situation, however, can a lawsuit be brought more than seven years after the occurrence of the negligent act.

Continue reading "Massachusetts Statute of Limitations for Injuries to Children" »

Despite several weeks of litigation, the jury will not make a determination in the case of Michael Woods vs. Kent County Hospital. Prior to closing arguments, the two sides have agreed to settle the matter.

Actor James Woods and his family brought the lawsuit against Kent County Hospital alleging that their emergency room staff was medically negligent and ultimately caused the death of Michael Woods in 2006.

The full details of the settlement were not released to the public, however, the Providence Journal reports that the settlement will include the creation of the Michael J. Woods institute at Kent Hospital. Per the settlement agreement, the hospital has promised to invest 1.25 million dollars over the next five years in the institute with the intent of improving hospital care and procedure, particularly in the emergency room. In addition, the settlement provides financial support to Michael Woods surviving children, which according to James Woods, will leave them financially secure.

Following the settlement, a spokesperson for Kent admitted that mistakes were made. Michael Woods entered the emergency room shortly after 4pm with acute onset vomiting. An EKG showed an abnormal heartbeat and he was ordered to be placed on a heart monitor by the treating physician. The nursing staff, however, never followed through with this instruction. Instead of being placed in a room, Michael Woods remained on a gurney parked in the hallway. James Woods stated that no one in his family knew where his brother was for over an hour and a half. At 7:10pm, Michael Woods suffered a heart attack and was pronounced dead shortly thereafter.

The NY Times published this piece by David Leonhardt, which I believe does a great job of avoiding the emotion of the subject and examining the matter on the facts alone.  Tort reform is on everyone's lips as we discuss changes to our health care system, but there is no valid reason why.  Our health system is a mess for a number of reasons, the least of which is the plaintiff bar.  Mr. Leonhardt cites economists who say:

The direct costs of malpractice lawsuits -- jury awards, settlements and the like -- are such a minuscule part of health spending that they barely merit discussion...

...All told, jury awards, settlements and administrative costs -- which, by definition, are similar to the combined cost of insurance -- add up to less than $10 billion a year. This equals less than one-half of a percentage point of medical spending.

I have made the point in previous posts, that very few medical malpractice cases are accepted by attorneys and/or go to trial.  The high cost of a lawsuit and the difficulty in proving medical malpractice prohibits excessive lawsuits.  Mr. Leonhardt supports my opinion:

After reviewing thousands of patient records, medical researchers have estimated that only 2 to 3 percent of cases of medical negligence lead to a malpractice claim.

Contrary to the perception of some, we do not have a court system backlogged with frivilous medical malpractice lawsuits which are causing the death of our health care system.  The number of cases and costs attributed to medical malpractice litigation is astonishingly low in comparison to the total cost of our health care system.

Mr. Leonhardt does criticize the current system by pointing out that fear of malpractice leads to defensive medicine which is often wasteful.  Unfortunately, there is no solution to combatting defensive medicine.  States that have medical malpractice caps, or other legislation meant to curb litigation, often have similar amounts of spending.  One reason could be that doctors are paid more for doing more, and the excess testing and treatment is as much financial opportunism as it is defensive medicine.

It's only been a few short months since a major Rhode Island Hospital was in the news because of wrong-site procedures, but today the Providence Journal is reporting that the interventional radiology department at Kent Hospital has been placed on 6 months probation by the Rhode Island Department of Health. 

Kent County reported to the Dept. of Health that a patient had a long term IV catheter inserted into the wrong arm and reported a second incident while the first was still being investigated!   The second incident concerned a patient who had X-ray dye injected into the wrong hip. 

The detailed report from the Department of Health is located here.

Our own Senator was quoted in a recent op-ed piece in the Wall Street Journal written by Philip K.  Howard.   In the piece entitled, "Health Reform Requires Lawsuit Reform," Mr. Howard advocates for the creation of a special health court akin to Workers Compensation Courts to replace the jury in medical malpractice trials.

As a plaintiff attorney and member of the American Association for Justice, my opinion on the matter is obvious.  Not only is the jury system necessary to our system of justice, but numerous reports have shown that changes to the malpractice system can not and will not save our battered health care system.  In 2008, the Congressional Budget Office reported that the "CBO has not found consistent evidence that changes in the medical malpractice environment would have a measurable impact on health care spending." 

The scare tactics of tort-reformers overstates the situation greatly suggesting that there are countless frivilous suits filed daily to shake down doctors.  Anyone who has approached an attorney with a potential malpractice claim knows that quite the opposite is true.  Unless the damages are staggering and the negligence somewhat clear, no attorney in the world is going to attempt to file a lawsuit because of the prohibitive cost.

Tort reform costs us all our constitutional right to civil compensation for the wrongs suffered and this cost far outweighs the meager benefit to our health care system.  I want to applaude our Senator for protecting our rights for as he states himself, the jury trial "our protection against tyranny of the majority."

A study published in the Archives of Internal Medicine shows that doctors and medical centers often fail to inform patients of clinically significant test results.  The test included a review of over 5000 randomly selected patients from a variety of clinics and medical centers.  The findings show "the rate of apparent failures to inform or to document informing the patient was 7.1%."

Failure to diagnose an illness or medical condition has often been determined to be medical negligence.  I expect to see a growing number of medical malpractice cases based on failure to properly inform a patient of clinically significant results.   These clinics must understand that if a patient does not hear from their doctor after a test or blood work is done, he or she will assume that everything was normal.  Any patient who fails to seek or obtain medically necessary treatment because he or she was unaware that it was needed, should have a case for malpractice.  If you or a loved one believes that you have been harmed by a failure to be informed of clinically significant test results, please contact our office for a free consultation.

Special thanks to thepoptort.com for bringing this article to my attention.

The Rhode Island Supreme Court in an opinion authored by retiring Chief Justice Williams, upheld a $500,000 medical malpractice settlement against a Barrington urologist.  The plaintiff Woon Kam Youngsae sufferred from kidney disease and ultimately had to undergo a kidney transplant. 

One of the issues on appeal was Dr. Jacques Susset's inability to produce certain diagnostic and visit reports pertaining to the plaintiff.  In her instructions to the jury, trial Justice Gibney stated:

"Under certain circumstances, spoliation of evidence may give rise to an adverse inference that the missing or spoliated evidence evidence would have been unfavorable to the position of the party unable to produce it. A showing of bad faith is not required before the jury will be permitted to draw this inference."

Attorneys for the defense argued that such an instruction unfairly prejudiced the jury, but Williams writing for a unanimous Court said that the instructions did not so prejudice the defendant as to warrant reversal. 

It is only reasonable that juries be allowed to make a negative inference when doctors are unable to produce records because medical malpractice cases are built on the records written and in the possession of the defendant.  A plaintiff's only chance at justice requires truth and accuracy in medical reporting.

A surgeon at Hasbro Children's Hospital began operating on the wrong part of a patients mouth before realizing the error and performing the required surgery on the appropriate area of the mouth.  It is unclear what injuries the child may have suffered as a result of the mistake, but at the very least I am sure he will endure additional scarring and pain.

One would think that such mistakes are impossible, after all this is as obvious as medical malpractice gets, yet this is the fifth time that a surgeon at a Lifespan hospital has operated on the wrong part of the body in just the last two years.   Following the investigation, the surgeon and surgical team has been placed on administrative leave.

UPDATE: On October 23, the Rhode Island Department of Health is reporting another incident of wrong site surgery at Rhode Island Hospital.  Appears that it has happened again.

A surgeon at Hasbro Children's Hospital began operating on the wrong part of a patients mouth before realizing the error and performing the required surgery on the appropriate area of the mouth.  It is unclear what injuries the child may have suffered as a result of the mistake, but at the very least I am sure he will endure additional scarring and pain.

One would think that such mistakes are impossible, after all this is as obvious as medical malpractice gets, yet this is the fifth time that a surgeon at a Lifespan hospital has operated on the wrong part of the body in just the last two years.   Following the investigation, the surgeon and surgical team has been placed on administrative leave.

UPDATE: On October 23, the Rhode Island Department of Health is reporting another incident of wrong site surgery at Rhode Island Hospital.  Appears that it has happened again.

When we think of medical malpractice cases it is natural to think of missed diagnoses, improper treatment, etc.  But a Long Island Court has upheld a medical malpractice award of $416,500 against a psychiatrist accused of sleeping with his patient whom he was treating for depression and anxiety.  The woman initially sought treatment after her child was born with cerebral palsy.  As a result of the psychiatrists abuse of trust, the woman claimed that her husband divorced her, she lost partial custody of her daughter, and her anxiety and depression skyrocketed.

The jury, interestingly, found the plaintiff 25% at fault which raises difficult legal questions.  The plaintiff argued, of course, that because of her mental state and the nature of the doctor-patient relationship, she should not be held at all responsible for the inappropriate relationship.  Justice Rebolini disagreed:

[G]iven the plaintiff's age and experience and notwithstanding the defendant's professional status and the nature of the parties' relationship at its inception (doctor/patient), it remained that the plaintiff was possessed of a will of her own and was not utterly bound by defendant's influence or choices but, rather, free to exercise her judgment and to engage in such conduct as she chose.

In response to plaintiff's post-verdict motion, Judge Rebolini further stated:

Plaintiff was not denuded, by virtue of the physician patient relationship, of an ability to control her own conduct and to exercise her own adult judgment given the extended period of and the palpably apparent consequences of the conduct in question herein, an affair where both parties were married to others.

The defense argued that this was not a medical malpractice case at all, but rather, a claim for seduction or alienation of affection, both of which have been abolished by state law.  Rebolini reasoned that a jury could conclude that the prescription of medications could have had an impact on the plaintiff which in view of the inappropriate relationship is rightfully medical malpractice.

Hospitals have long been required to report adverse events that occur on the premises, but now Massachusetts is compiling this information and releasing it to the public in the hope of reducing preventable accidents and injuries.  In 2008, Massachusetts hospitals reported over 300 serious events with falls as the leading category (over 200!)  The other categories include surgical error, patient care error, and product or device failure.

I applaud the State's efforts to identify the cause of such serious errors and to work towards elimination of unnecessary injury.  I have provided a link to the press release here.

If you or a friend or family member have been injured through hospital negligence, it is in your best interest to speak to an attorney.  Our office is able to guide you through the process and inform you of your legal rights and remedies.

Hospitals have long been required to report adverse events that occur on the premises, but now Massachusetts is compiling this information and releasing it to the public in the hope of reducing preventable accidents and injuries.  In 2008, Massachusetts hospitals reported over 300 serious events with falls as the leading category (over 200!)  The other categories include surgical error, patient care error, and product or device failure.

I applaud the State's efforts to identify the cause of such serious errors and to work towards elimination of unnecessary injury.  I have provided a link to the press release here.

If you or a friend or family member have been injured through hospital negligence, it is in your best interest to speak to an attorney.  Our office is able to guide you through the process and inform you of your legal rights and remedies.