Darla Morris broke her left ankle while working as a nursing assistant in 2005. Over the next five years, she underwent four surgeries to correct the problem.

All of the surgeries failed, leading to the amputation of her leg below the knee in 2011.

Beth Mullens had surgery in 2007 for what she had thought were heel spurs. Eight failed surgeries later, she underwent a below-the-knee amputation of her left leg in 2010.

The two women are among eight patients with active medical-malpractice lawsuits against Dr. Leonard Janis, a Hilliard podiatrist, in Franklin County Common Pleas Court. Four of the patients had complications from ankle surgeries that led to amputations. Janis also is a defendant in a wrongful-death action.

Nine active lawsuits against one doctor “is virtually unheard of,” said Columbus lawyer Anne Valentine, who represents two of the plaintiffs and has handled civil cases for nearly 30 years.

Five of the lawsuits also name Grant Medical Center or its parent company, OhioHealth, where Janis performed surgery for nearly 26 years until he resigned his privileges in February. Janis also resigned his privileges at Doctors Hospital, an OhioHealth facility with which he had been affiliated since 1979.

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September 20, 2014, Los Angeles Times,  by Michael Hiltzik

Tort reform,” which is usually billed as the answer to “frivolous malpractice lawsuits,” has been a central plank in the Republican program for healthcare reform for decades.

The notion has lived on despite copious evidence that that the so-called defensive medicine practiced by doctors merely to stave off lawsuits accounts for, at best, 2% to 3% of U.S. healthcare costs. As for ”frivolous lawsuits,” they’re a problem that exists mostly in the minds of conservatives and the medical establishment.

A new study led by Michael B. Rothberg of the Cleveland Clinic and published in the Journal of the American Medical Association aimed to measure how much defensive medicine there is, really, and how much it costs. The researchers’ conclusion is that defensive medicine accounts for about 2.9% of healthcare spending. In other words, out of the estimated $2.7-trillion U.S. healthcare bill, defensive medicine accounts for $78 billion.

As Aaron Carroll observes at the AcademyHealth blog, $78 billion is “not chump change … but it’s still a very small component of overall health care spending.” Any “tort reform” stringent enough to make that go away would likely create other costs, such as a rise in medical mistakes generated by the elimination of the oversight exercised by the court system.

Since it doesn’t appear that “tort reform” would have any effect on this spending, Carroll says, “there seems little reason to pursue it as a means to dramatically reduce health care spending in the United States.”

The prevalence of defensive medicine may be overestimated by doctors themselves, Rothberg and his colleagues found, because many procedures are ordered in part defensively, but partially or mostly for legitimate diagnostic or therapeutic reasons. “Tort reform” would only eliminate orders made purely because of fear of litigation — that is, 100% defensively — and that’s a tiny percentage of the total.

Tort reform has seldom been about reducing healthcare spending. For Republicans, it’s about de-funding a bloc of reliable Democratic Party supporters — trial lawyers.

That’s why the suppression of malpractice lawsuits has remained part of Republican and conservative orthodoxy despite the evidence that its impact on healthcare spending would be minimal. Even in conservative healthcare pundit Avik Roy’s supposedly objective proposed alternative to the Affordable Care Act (which we examined here), malpractice “reform” retains its pride of place.

Roy acknowledges the findings that defensive medicine accounts for only 2% to 3% of spending, but writes, “nonetheless, reform is warranted.” He asserts, curiously, that “the U.S. health care system is uniquely vulnerable to frivolous malpractice lawsuits.” But if the numbers don’t validate that claim, what does?

The minimal impact of defensive medicine on healthcare costs demonstrates the injustice of the stringent limits on malpractice lawsuits advocated by doctors, insurance companies and Republican policymakers.

As we’ve pointed out in the past, “pain-and-suffering” damage caps and other stratagems to discourage malpractice lawsuits benefit mostly insurers. Their impact falls disproportionately on women and families with infants, because their economic damages, which remain subject to jury awards, are hard to estimate and typically underestimated.

As for “frivolous lawsuits,” defined as cases that should never have been brought at all, they’re a lot rarer than most tort reform advocates admit. Studies have documented that the vast majority of them don’t yield a payment to the plaintiff. The converse is a bigger problem — genuinely injured patients who can’t get redress because the courthouse doors have been shut to them. The victims there are often lower-income or unemployed patients.

The quintessential tort reform law is California’s MICRA, to the state’s shame. The Medical Injury Compensation Reform Act capped noneconomic and nonmedical damages in malpractice to $250,000 in 1975. Inflation has eroded that sum to the equivalent today of about $57,000 in 1975 dollars.

To have retained its value, the MICRA limit would have to be raised to about $1.1 million today. That’s the goal of Proposition 46 on the November ballot. Even though the MICRA increase has been yoked to a silly plan for drug testing of doctors, it’s worth your vote.

Roy’s proposal would impose the same $250,000 limit on noneconomic damages for any patient receiving a federal health insurance subsidy under the Affordable Care Act or enrolled in Medicaid, Medicare or any other federal program.

Why them? Apparently only because they’re within the grasp of federal law. Roy all but acknowledges that there’s no legitimate economic reason for this punitive approach. It won’t save a significant amount of money. It won’t change the direction of healthcare costs. It’s just nastiness, and as is usual with conservatives approaches to healthcare, it punishes the most defenseless members of society. Healthcare policy should do just the opposite.

 

One of the most well-publicized and most misunderstood cases in history is the “McDonald’s coffee case.” To understand more about the case, and the woman so severely injured, check out this video.

 

Untreated Heroin Withdrawal Results in Death and Civil Rights Lawsuit

Cleveland, Ohio.  March 7, 2014.  A federal civil rights lawsuit was filed today against Richland County jail officials who failed to treat Corey Tolar’s heroin withdrawal which resulted in his death on September 29, 2012.  The lawsuit alleges that Tolar suffered excruciating, painful and wrenching withdrawal symptoms in full view of jail medical staff.  No meaningful treatment was provided before his death.  By coincidence the case was filed on the same day that state officials are holding a public hearing to consider relaxing regulations regarding Ohio jail standards.  Co-Counsel Al Gerhardstein stated, “These tragic deaths can be avoided.  All Sheriffs need to stay vigilant and provide inmates the basic treatment needed to avoid death through withdrawal.”  Drug addiction is a common problem in Richland County and the family hopes through this case to ensure that citizens get the help they need when they experience withdrawal.  Attorneys Gerald Leeseberg and Craig Tuttle of Columbus are co-counsel on the case.  A copy of the lawsuit is available here: Complaint.  A copy of Mr. Gerhardstein’s objections to the relaxation of standards governing Ohio’s jails is available here: Public Comment.

The case is pending in federal court in Cleveland, Ohio and assigned to judge Donald C Nugent.

Once again, the medical malpractice lawyers and personal injury lawyers at Leeseberg & Valentine have earned the distinction of being named one of the “Best Law Firms” in the country by U.S. News & World Report’s 2014 Best Lawyers publication. Leeseberg & Valentine was named a Tier 1 law firm for personal injury litigation, which is the highest distinction given by the publication. This honor is especially rewarding in that the “Best Law Firms” are determined by a rigorous evaluation of a combination of client feedback and our firm’s reputation among other lawyers in the legal community.

The Columbus medical malpractice lawyers and personal injury lawyers at Leeseberg & Valentine are honored to be named a “Best Law Firm” and look forward to continuing to fight for justice on behalf of those injured from the negligence of others.

 

Once again, the medical malpractice lawyers and personal injury lawyers at Leeseberg & Valentine have earned the distinction of being named “Super Lawyers.”  Congratulations to Gerald Leeseberg and Anne Valentine for being named Super Lawyers.

Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations, making it a truly special honor.

The Columbus medical malpractice lawyers and personal injury lawyers at Leeseberg & Valentine are honored to be named “Super Lawyers” and look forward to continuing to fight for justice on behalf of those injured from the negligence of others.

By Meghan Connolly and Dennis Mulvihill, January 20, 2014, Cleveland.com

Dr. Michael Kirsch’s column (“Litigation fever causing headaches for able physicians,” published in The Plain Dealer Jan. 12) is the epitome of a double standard. While he says that we, nondoctors, should take more responsibility for our own mistakes, nowhere does he suggest the medical community should take responsibility for medical mistakes that cause serious injury and death to patients. Nowhere does he acknowledge that preventable medical errors are the leading cause of accidental death nationwide, and third leading cause of death from all causes — killing as many as 400,000 patients annually, according a study in the September 2013 Journal of Patient Safety. Or that one-third of hospital patients fall victim to medical negligence each year, as reported in the April 2011 issue of Health Affairs. Or that doctors are currently pressing the Ohio General Assembly to pass House Bill 276, a law that would allow doctors to lie to a civil jury about having previously admitted to the patient at the hospital that they made a mistake. Are these examples of the medical profession taking responsibility for its errors?

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Source: The Pop Tort – December 3, 2013

Hey kids, it’s December and that means finals!  (You remember our last exam, right?)  So get out those #2 pencils again.  Actually, what year is this? Get out those laptops – and begin:

Medical errors in the U.S. rank where as a cause of death?

a. 50th
b. 25th
c. 10th
d. 3rd

Answer: “d”!  According to the report, published in the Journal of Patient Safetyand reported by Pro Public, “between 210,000 and 440,000 patients each year who go to the hospital for care suffer some type of preventable harm that contributes to their death, the study says.  That would make medical errors the third-leading cause of death in America, behind heart disease, which is the first, and cancer, which is second.”

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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?

Raise the Cap on Medical Malpractice Verdicts – L.A. Times

October 9, 2013

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. LA Times, August 13, 2013 – By Nora Freeman Engstrom and Robert L. Rabin For [...]

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