Recently, the Supreme Court of Ohio heard oral arguments in the case of Cromer v. Children’s Hospital Medical Center of Akron. The case addresses the issue of whether the precise harm to the patient in a medical malpractice case must be foreseen by the defendants, in order for negligence to be shown. One case cited by the parties arguing Cromer was Needham, another case involving foreseeability of harm. Having served as trial attorneys in Needham, it is important to note some facts from that case that may be relevant to the outcome in Cromer and its implications on medical malpractice cases.
Needham involved a woman who died from necrotizing pancreatitis following a procedure performed for improper indications. The plaintiffs alleged it was negligent to have performed the procedure, contending the procedure should not have been done. There was no evidence that the procedure was performed in a negligent manner; the complication that developed was a known risk and complication of even a properly performed procedure. Plaintiff’s expert argued it was below the standard of care, as defined by medical guidelines, to expose the patient to the risk of a known possible injury by performing a procedure that was inappropriate.
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In Estate of Johnson v. Smith, Supreme Court of Ohio recently addressed Ohio’s “apology statute” (R.C. 2317.43) which prohibits the use of a physician’s statement of sympathy to a victim as evidence of an admission of liability, and prohibits the statement’s use in medical malpractice cases. The protected statements are those expressing sympathy, empathy, or condolence to the patient. For example, a statement from a doctor to a patient that the doctor is “so sorry this happened to you,” is protected by the statute.
In Johnson, the Court determined that a doctor’s statement that he “took full responsibility” for the patient’s injury, was covered by the apology statute, and prohibited from being used as evidence. Such a decision means that the Supreme Court is getting ever closer to protecting a doctor’s statement that the injury was his or her “fault” or that he or she “messed up.” Unfortunately, the Johnson decision clouded the waters between sympathetic-type statements and admissions of fault.
There is nothing wrong with excluding expressions of sympathy, empathy, or condolence, since those can be misconstrued to be admissions of fault. That was the true intention of the apology statute from the outset in Ohio and other states. However, there is no way to misconstrue acknowledgement of “responsibility” as an expression of sympathy, empathy, or compassion. A doctor only has “responsibility” for an outcome if he caused the outcome. This is not the purpose of the apology statute, yet the Supreme Court has expanded the statute’s definition to include such statements.
The big question remains, will any statement by a doctor to a patient be protected? If a doctor says “I’m sorry, your injury is my fault” or “I caused your injury,” is that inadmissible as well? What if the statement was in writing or recorded somehow? Would this still be inadmissible to show the doctor’s expression of fault? Unfortunately, if the Court is protecting statements accepting “responsibility” for an outcome, can a statement acknowledging “fault” for an outcome be that far from protection?
While this article is written about the medical malpractice verdicts in California, the content is equally applicable to Ohio’s tort reform laws. The authors explain quite clearly why limitations on damages in medical malpractice cases are harmful to citizen rights.
For decades, advocates of tort reform have pushed to limit the amount that courts can award for noneconomic damages such as pain and suffering. The California Legislature first capped this type of damages in medical malpractice lawsuits in 1975, and roughly half the states have followed California’s lead.
This summer, however, nearly 40 years after California’s Medical Injury Compensation Reform Act first limited noneconomic damages in malpractice cases to $250,000, trial lawyers and consumer groups have unveiled a ballot initiative that would relax the cap considerably. If the measure qualifies for the ballot and is approved by voters next year, the allowable amount for noneconomic damage payouts for victims of medical malpractice would be quadrupled.
Relaxing the $250,000 cap, which has never been adjusted for inflation, is a wise move. As a reform idea, noneconomic damage caps have never made much sense.
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A jury in one of New York’s most conservative counties recently returned a $130 million verdict in a medical malpractice case, the second-largest in the state’s history. Lawyers for the losing hospital decried a “jury out of control” and called for more tort reform. Before the case went to trial, their offer of an $8 million settlement was turned down.
What the defense lawyers seemed not to realize is that tort reform hasn’t worked for 25 years. And large verdicts may be the most effective drivers in making health care safer.
The case, Reilly v. St. Charles Hospital, centered on the birth of Shannon Reilly in 2002. The jury determined that the Long Island hospital and the obstetric nurse had failed to properly monitor the pregnant mother and her fetus, missed important signs that the baby was in distress, and then failed to take corrective action. When interviewed, jury members said that they agreed with plaintiff’s attorney Thomas Moore that the child — who was born with severe brain injury and has a form of cerebral palsy — is a “prisoner in her own body” and that the medical errors were avoidable.
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Medical Malpractice Lawyers Gerald Leeseberg and Anne Valentine have been selected as two of the Best Lawyers in America for Personal Injury Litigation for 2014. This honor marks the 16th consecutive year Mr. Leeseberg has been granted such distinction, and the 10th straight year for Ms. Valentine. Both continue to prove themselves as consistent and dedicated members of the legal community and this recognition is certainly deserved.
Selection of Best Lawyers is based on an exhaustive and rigorous peer-review survey comprised of more than 4 million confidential evaluations by the top attorneys in the country. The annual Best Lawyers publication has been described by The American Lawyer as “the most respected referral list of attorneys in practice.” Because no fee or purchase is required, being listed in Best Lawyers is considered a singular honor.
Leeseberg and Valentine focus their practice on representing those injured by medical malpractice and the negligence of others. Their work as medical malpractice lawyers, wrongful death lawyers, and personal injury lawyers continues to be recognized and we are proud to congratulate Mr. Leeseberg and Ms. Valentine on being selected by their peers for inclusion in the 2014 Best Lawyers of America listing.
For more information on the Best Lawyers in America listing, please visit Best Lawyers’ Website.
A 2013 study conducted by Public Citizen has concluded that medical malpractice payments on behalf of doctors are not contributing to any increase in health care costs. Specifically, the study determined that the number of medical malpractice payments on behalf of doctors in 2012 was the lowest on record. Further, the 2012 medical malpractice payment amounts were the lowest recorded. Despite these decreases, health care costs continue to increase as does the financial burden on patients.
This study debunks some common misconceptions that there are too many medical malpractice lawsuits, those who are filing lawsuits are walking away with substantial sums of money, and medical malpractice lawsuits are driving up the costs of health care. In reality, none of these statements are true.
To read more, click here and read about the study, entitled “No Correlation: Continued Decrease in Medical Malpractice Payments Debunks Theory that Litigation Is to Blame for Soaring Medical Costs.”
COLUMBUS DISPATCH – LAW CUTS DAMAGES AWARDED TO SEX-ASSAULT VICTIM
By: Laura Arenschield
DELAWARE, Ohio — A jury decided in June that a 21-year-old woman, sexually assaulted by her pastor when she was 15, should get upwards of $3.6 million for the post-traumatic stress she’d endured in the years since he attacked her.
Because of a state law that went into effect in 2005, though, she’ll get less than a sixth of that amount.
A judge ruled in Delaware County Common Pleas Court this week that the woman could receive no more than $500,000 because of the state’s limit on compensatory damages for emotional stress in civil cases. The limit was a key element of an effort to rein in lawsuits, a priority of Republicans’ in the state legislature in the mid-2000s. Critics of the caps accused the Republicans of targeting trial lawyers, a group of donors to political campaigns that leaned toward Democrats.
The woman’s attorney, John Fitch, said the law and the outcome of the woman’s lawsuit are “a moral outrage.”
“We don’t need to protect people who cause or contribute to children being raped,” Fitch said. “ And that’s exactly what this statute does.”
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By: Kyle Cheney, Politico, August 1, 2013
The health care safety world is chock full of airplane crash clichés. Now, a real-life pilot-hero is flying to the rescue.
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.
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Medical malpractice and medical negligence within nursing home facilities represents a very real and growing problem. This month, the Ohio Attorney General announced an increase in allegations of nursing home abuse and neglect in Ohio. In 2013 alone, over 130 cases of nursing home abuse and neglect have been reported due to, primarily, inadequate medical care. This is an increase by almost 60 cases from 2012.
Unfortunately, nursing homes are often the site of negligent, inadequate, or substandard medical care. This negligence often leads to inadequate medical, personal, or nutritional care. Ohio has laws to protect nursing home residents, but having an attorney on your side to assert those rights can be critical in the seeking for justice for your injuries. Leeseberg & Valentine is committed to helping victims of medical malpractice and nursing home abuse, as well as their families, and to holding the nursing home and medical profession responsible for their negligent care.