medical malpractice

A California ballot initiative to raise the cap on medical malpractice damages for pain and suffering was defeated, the Associated Press' Michael R. Blood reports. The battle over the initiative resulted in $60 million in donations and was the most expensive campaign in the state. If enacted, it would have raised the cap from $250,000 to $1.1 million.

The initiative also attracted national attention because it would have imposed random substance abuse tests on doctors.

The National Law Journal's Amanda Bronstad provides an overview of ballot initiatives affecting the courts that voters will be deciding to accept or reject:

In California, voters will decide if the $250,000 statutory cap on noneconomic damages in medical malpractice cases should be annually adjusted for inflation. If approved, the cap would be raised to $1.1 million.

In Tennessee and Florida, there are initiatives to change those states' constitutions regarding the selection of judges. In Florida, the governor would be allowed to prospectively fill some judicial vacancies. In Tennessee, the governor would be able to select nominees for the appellate courts.

In Louisiana, there is an initiative that would end the requirement that judges retire at the age of 70.

In Nevada, there is an initiative to establish an intermediate court of appeals.

According to Medscape Medical News' Ken Terry, several experts says that electronic health records need to be verified before being admitted into evidence. Terry, reporting on a law review article in Ave Maria Law Review, writes that "the central contention of the authors, Barbara Drury, Reed Gelzer, MD, MPH, and Patricia Trites, MPA, is that EHRs are designed to maximize payments to providers and therefore do not necessarily reflect the care that was actually provided to patients." Without verification, electronic health records are hearsay, the authors said. One takeaway is that there should be an audit function in all EHRs and healthcare providers shouldn't be able to turn that function off or erase audit logs.

ProPublica reports on a little-covered problem: some people harmed by medical malpractice can't find any attorneys to take their cases.

This is a phenomenon that many plaintiffs lawyers told me about when I was regularly reporting on medical-malpractice litigation for The Legal Intelligencer. Med mal cases are very expensive to work up because they require expert witnesses and scientific-oriented discovery, and many firms will not take cases in which the injury is less catastrophic or their are low economic damages because the return on investing in the case is so low.

ProPublica reports on the "problem faced by many who are harmed in a medical setting: Attorneys refuse their cases, not because the harm didn’t happen but because the potential economic damages are too low." This includes the elderly who have low incomes because they are retired, because their medical bills are picked up by Medicare and they typically have no dependents, ProPublica further reports.

The Connecticut Supreme Court is considering whether petitioner Charlotte Stacey is entitled to loss of consortium even though she was not married to her female domestic partner, who allegedly died from medical malpractice, The Hartford Courtant reports. While Connecticut only allows loss of consortium for legally married spouses, Stacey argues that her constitutional rights were violated because she and her deceased partner wanted to be married but could not wed until the Connecticut Supreme Court ruled that the state law banning same-sex matrimony was unconstitutional, The Courant further reports. Oral arguments in the case were held this week.