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Exposing Myths About Medical Malpractice

Steve Klearman — Tue, 17 Nov 2009 11:15:58 GMT

The American Association for Justice, in its efforts to promote health care reform, has attacked health care reform opponents' arguments that reform will be a heavy financial burden on the health care system.

“All the facts and evidence show that tort law changes will do practically nothing to lower costs or cover the uninsured,” said AAJ President Anthony Tarricone. “It’s no wonder the tort reformers, insurance lobby, and other corporate front groups have to gin up lies and phony stats, since no legitimate data or research supports their claims. Our focus should be on reducing the 98,000 deaths by medical error that occurs every year, not limiting patients’ legal rights.”

The American Association for Justice takes a look at the misconceptions behind the most common positions of health care reform opponents in its Five Myths About Medical Negligence:

Myth #1: There are too many “frivolous” malpractice lawsuits.

Fact: There’s an epidemic of medical negligence, not lawsuits. Only one in eight people injured by medical negligence ever file suit. Civil filings have declined eight percent over the last decade, and are less than one percent of the whole civil docket. A 2006 Harvard study found that 97 percent of claims were meritorious, stating, “portraits of a malpractice system that is stricken with frivolous litigation are overblown.”

Myth #2: Malpractice claims drive up health care costs.

Fact: According to the National Association of Insurance Commissioners, the total spent defending claims and compensating victims of medical negligence was just 0.3% of health care costs, and the Congressional Budget Office and Government Accountability Office have made similar findings.

Myth #3: Doctors are fleeing.

Fact: Then where are they going? According to the American Medical Association’s own data, the number of practicing physicians in the United States has been growing steadily for decades. Not only are there more doctors, but the number of doctors is increasing faster than population growth. Despite the cries of physicians fleeing multiple states, the number of physicians increased in every state, and only four states saw growth slower than population growth; these four states all have medical malpractice caps.

Myth #4: Malpractice claims drive up doctors’ premiums.

Fact: Empirical research has found that there is little correlation between malpractice payouts and malpractice premiums paid by doctors. A study of the leading medical malpractice insurance companies’ financial statements by former Missouri Insurance Commissioner Jay Angoff found that these insurers artificially raised doctors’ premiums and misled the public about the nature of medical negligence claims. A previous AAJ report on malpractice insurers found they had earnings higher than 99% of Fortune 500 companies.

Myth #5: Tort reform will lower insurance rates.

Fact: Tort reforms are passed under the guise that they will lower physicians’ liability premiums. This does not happen. While insurers do pay out less money when damages awards are capped, they do not pass the savings along to doctors by lowering premiums. Even the most ardent tort reformers have been caught stating that tort reform will have no effect on insurance rates.

For Five Myths About Medical Negligence in its entirety, click here

Originally posted at InjuryBoard by Steve Klearman

Toyota and Lexus floor mats causing unintended acceleration

Steve Klearman — Tue, 24 Nov 2009 16:54:25 GMT

On September 29, the National Highway Traffic Safety Administration alerted consumers about Toyota and Lexus vehicles experiencing unintended acceleration due to the accelerator becoming stuck.

According to the NHTSA press release, floor mats in certain Toyota and Lexus models have caused the accelerator pedal to catch, causing rapid acceleration after releasing the pedal.

Toyota began mailing letters to owners of potentially affected vehicles. For the time being, NHTSA and Toyota urge vehicle owners to take out any removable floor mats. The mats should not be replaced with any other mat.

Toyota and Lexus vehicles affected by this consumer alert are:

2007-2010 Camry

2005-2010 Avalon

2004-2009 Prius

2005-2010 Tacoma

2007-2010 Tundra

2007-2010 ES 350

2006-2010 IS 250 and IS350

Kurt Niland, of Beasley Allen Legal News offers more information on the recall and Toyota's remedial measures:

The recall is the largest ever for Toyota and the fifth largest recall of a consumer product in the United States.

Toyota formally notified the NHTSA of the recall in a letter on October 5. Owners of the recalled vehicles, which include eight Toyota models manufactured in the last six years, are being notified by first-class mail in a mailing that was sent out on Friday, October 30th.

This first mailing will alert owners to the potential dangers posed by the floor mats but will not announce a fix. When Toyota decides on a solution, it will contact owners about the availability of a free remedy in a second mailing.

Some early reports indicated that rather than focusing on the floor mats, Toyota was researching on-vehicle countermeasures such as a "smart pedal" that would tell the vehicle to ignore the gas pedal if the brakes were applied simultaneously. Such a measure, which is standard in most German-made vehicles and Chryslers, would enable drivers to regain control of their vehicles easily and instantly despite the cause of unintended acceleration.

However, retrofitting 3.8 million vehicles with smart pedal technology would be extremely costly. A modification to the pedal in the affected vehicles would cost as much as $440 million, according to a Tokyo Shimbun report cited by Reuters.

A recall involving redesigned floor mats, on the other hand, would cost about $100 million. New reports say that the latest Toyota recall will indeed be a floor mat fix of some kind.

Toyota's largest recall comes during its toughest financial time. The company expects to lose $4.7 billion for the year ending March 31 -- its second consecutive annual loss. The economic downturn and a poor exchange rate are obvious culprits, but according to Toyota President Akio Toyoda, the troubles run even deeper.

"Toyota has become too big and distant from its customers," President Akio Toyoda, he told journalists in Tokyo last month. "We are grasping for salvation," he added, after apologizing for an accident that occurred in San Diego last August, which investigators say was caused when a floor mat jammed the accelerator pedal in a Lexus ES 350. The horrific accident claimed the lives of a California Highway Patrol officer and three of his family members, finally prompting the massive recall.

Originally posted at InjuryBoard by Steve Klearman

AAJ Clarifies: MMSEA's Section 111 Does Not Require Set-Asides in Liability Cases

Steve Klearman — Thu, 13 Aug 2009 16:43:53 GMT

The Medicare, Medicaid and SCHIP Extension Act of 2007, or MMSEA, affects judgments and settlements involving Medicare liens. Plaintiffs and Defendant attorneys should be aware of the changes. The AAJ released a clarification about the MMSEA:

In cases involving Medicare beneficiaries, attorneys for both the plaintiff and defendant are required to report certain information to the Centers for Medicare and Medicaid Services (CMS). In addition, any case settlement or judgment must reimburse Medicare where the Trust Fund has made conditional payments for medical costs. Under the Medicare Secondary Payer Act, attorneys have been settling cases involving liability claims without completing a Medicare Set Aside (MSAs) to account for future medical costs. However, attorneys representing claimants in workers' compensation cases have been preparing MSAs on a case-by-case basis.

It has come to our attention that some defense firms and insurance providers are now claiming that CMS requires MSAs in liability cases pursuant to Section 111 reporting requirements included in the Medicare, Medicaid & SCHIP Act of 2007 (MMSEA), Public Law No. 110-173. This is false.

Section 111 contains reporting requirements for responsible reporting entities (RREs) only. Section 111 does not impact or change the requirements for plaintiffs' attorneys.

Moreover, statements from CMS, and other federal entities, make clear that the agency does not require set-asides for liability claims. Since the MMSEA's passage, CMS has held several Town Hall teleconferences to discuss the Section 111 requirements. During the March 24, 2009 call, Barbara Wright, CMS' Acting Director of the Division of Medicare Debt Management, made several statements reiterating that Section 111 has no impact on liability MSAs. For example:
- In response to a question as to whether liability set-asides will be required under Section 111, she said "the point is the set-aside process is totally separate from the Section 111 reporting process. As we've said in more than one call we don't anticipate changing our routine recovery process." (Transcript, pg. 24)
- When explaining that worker's compensation agreements use a formal review process which makes set-asides recommended, she said that was in contrast to liability agreements. Liability "does not have the same formal review process although our regional offices will consider review of proposed liability set-aside amounts depending on their particular work load and whether or not they believe significant dollars are at issue." (Transcript, pg. 24).

In addition, CMS also has released several Alerts explaining Section 111, which do not indicate any intent to require MSAs for liability claims. For example:
- "Unless you are a business entity which qualifies as [a required reporting entity (RRE) for purposes of Section 111, you do not need to initiate any specific actions in connection with Section 111." (CMS Alert, 2/23/09).
- "The new Section 111 requirements do not change or eliminate any existing obligations under the MSP statutory provisions or regulations." (CMS Alert, 2/23/09).

Moreover, the Congressional Research Service (CRS) provided Congress with an "objective and non-partisan analysis" analysis of the MMSEA. As there was no legislative history regarding the bill, the CRS research report is the most reliable analysis of the MMSEA, including the Section 111 reporting requirements.

CRS' analysis of the Section 111 reiterates that it is a reporting requirement, and makes no mention of the need for set-asides in liability cases. The Section 111 analysis states, in part: This provision requires an insurer or third-party administrator for a group health plan (and in the case of a group health plan that is self-insured and self-administered, a plan administrator or fiduciary) to (1) secure from the plan sponsor and participants information required by the Secretary for the purpose of identifying situations where the group health plan is or has been a primary plan to Medicare, and (2) submit information specified by the Secretary. If an insurer or third-party administrator for a group health plan fails to comply, then a $1,000 per day civil monetary penalty will be imposed for each individual for which information should have been submitted.

If CRS believed that the legislative language implies any Congressional endorsement of liability setasides, it would have been included in this analysis.

More information on the MMSEA can be found at the Centers for Medicaid and Medicare website

Originally posted at InjuryBoard by Steve Klearman

Twittering: harmless messaging or juror misconduct?

Steve Klearman — Wed, 18 Mar 2009 09:37:12 GMT

Twitter.com is a website that allows members to record their thoughts in 140 character-blogs, twenty four hours a day. Similar to "status" postings on Facebook, Twitter blogs allow a member to share with the rest of the Twitter world, what he is doing or thinking at that moment in time. A recent $12.6 million jury verdict against Stoam Holdings could be overturned because a juror posted blogs on Twitter during the trial, an indication of just how powerful this seemingly harmless practice could be. Johnathan Powell, a juror in the Arkansas case against the building materials manufacturer, posted potentially biased blogs on Twitter from his cell phone.

Before Powell appeared for jury duty, he posted a message saying that he was "trying to learn about Jury duty for tomorrow, but all searches lead me to Suggestions for getting out of it, instead of rocking it." A message posted the day he appeared for jury duty stated, "I guess I'm early. Two Angry Men just won't do."

Messages sent during trial included, "oh and don't buy Stoam. Its bad mojo and they'll probably cease to exist, now that their wallet is 12m lighter" and "So Johnathan, what did you do today? Oh, nothing really, I just gave away TWELVE MILLION DOLLARS of somebody else's money." The first of these also included a link to Stoam's website.

Stoam Holdings's attorney has filed a motion requesting a new trial, alleging that Powell sent as many as eight Twitter messages during the trial and that he was not impartial. In his motion, Drew Ledbetter argued that "Juror Jonathan's public statements show us that he arrived at jury duty with the desire to get on the jury and 'rock' the jury. He researched this topic in advance. He arrived as a self described 'angry' man."

There is some speculation as to the actual timing of Powell's messages. The plaintiff's attorney, Greg Brown argues that a message that was time stamped 2:43 p.m. probably occurred after Powell was done with the trial. Drew Ledbetter, argues, on the other hand, that the time stamps speak for themselves. Powell contends that the time stamps correlate to the viewer's time zone settings, not the messenger's.

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Originally posted at InjuryBoard by Steve Klearman

Does Nevada Have Jurisdiction? Part II

Steve Klearman — Fri, 18 Jan 2008 07:58:02 GMT

This is the second part of what will be a three-part blog. See yesterday's blog for the issue that the following argument addresses:

A. The Fiduciary Shield Doctrine Is Not Law In Nevada And Even If It Were It Would Not Preclude An Exercise Of Jurisdiction

The fiduciary shield doctrine, a flawed legal theory that has generated confusion and countless inconsistent exceptions, provides that acts performed by an individual in his capacity as a corporate officer may not form the predicate for the exercise of jurisdiction over him as an individual. Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 901 (2d Cir. 1981). The primary rationale in support of this doctrine is that "it is unfair to force an individual to defend a suit brought against him personally in a forum with which his only relevant contacts are acts performed not for his own benefit but for the benefit of his employer." Id. at 902.

The purpose of the fiduciary shield doctrine is to protect individuals from unreasonable and unjust subjection to personal jurisdiction, not to protect them from liability. Merkel Assocs. v. Bellofram Corp., 437 F. Supp. 612, 618 (W.D.N.Y. 1977). Therefore, the issue that the fiduciary shield doctrine addresses is where a claim can be litigated, not whether a claim can be asserted. See The Fiduciary Shield Doctrine: Minimum Contacts in a Special Context, 65 B.U.L. Rev. 967 (1985).

Many legal commentaries assail the fiduciary shield doctrine as a product of misanalysis and mistake and advocate its total abandonment. Id. at 967.

Courts have sometimes stated that acts performed on behalf of a corporate employer cannot supply minimum contacts for the purpose of jurisdiction over the actor. See Personal Jurisdiction and the Corporate Employee: Minimum Contacts Meet the Fiduciary Shield, 38 Stan. L. Rev. 813 (1986), citing Marine Midland Bank v. Miller, 664 F.2d 899, 902 (2d Cir. 1981); Wilshire Oil Co. v. Riffe, 409 F.2d 1277, 1281 & n.8 (10th Cir. 1969); Allen v. Toshiba Corp., 599 F. Supp. 381, 384 (D.N.M. 1984); Bulova Watch Co. v. K. Hattori & Co., 508 Supp. 1322, 1347 (E.D.N.Y. 1981).

While this approach has been termed the "fiduciary shield rule," the label is misleading for three reasons. First, this approach is usually applied to corporate employees alone, who comprise only a limited subset of all fiduciaries recognized in law. Id., citing Grove Press, Inc. v. CIA, 483 F. Supp. 132, 135-36 (S.D.N.Y. 1980) (fiduciary shield rule does not protect CIA agents from jurisdiction based on wrongful acts performed in their official capacity). See also Idaho Potato Comm'n v. Washington Potato Comm'n, 410 F. Supp. 171, 180-83 (D. Idaho 1975) (fiduciary shield rule does protect state potato commissioners). Second, this approach can operate in a variety of ways, not all of which actually shield an employee from jurisdiction that might otherwise exist. Third, and contrary to Petitioner's contention, the uncertain authority for this approach, and its random application, make it far less than a settled rule.

In fact, several U.S. Supreme Court opinions seem to reject outright the constitutional underpinnings of the rule.
In Calder v. Jones, 465 U.S. 783, 790 (1984), the Court upheld California's exercise of jurisdiction over a reporter who lived in Florida and who was employed by a Florida-based newspaper. The reporter had written an allegedly libelous article about a California resident, which the newspaper published and distributed in California. The Court said that the reporter's acts directed at California justified jurisdiction there. The Court also held that California had properly exercised jurisdiction over the newspaper's president, who had edited the article. In reaching these results, the Court stated that each defendant's contacts with the forum must be "assessed individually." The Court recognized that an employee is not subject to jurisdiction merely by virtue of the employer corporation's contacts with the forum. But it does not follow from this proposition, according to the Court, that an employee is never subject to jurisdiction when he acts in a corporate capacity. The Court did not mention the fiduciary shield rule by name, but held that defendants' "status as employees does not somehow insulate them from jurisdiction." Id.; See also Personal Jurisdiction and the Corporate Employee: Minimum Contacts Meet the Fiduciary Shield, 38 Stan. L. Rev. 813 (1986).

In the companion case of Keeton v. Hustler Magazine, Inc., 465 U.S. 770 (1984), the Court reversed a lower court decision that it did not have jurisdiction over a corporate publisher in a libel action. In a footnote, the Court discussed whether the individual owner and publisher of the magazine might also be subject to jurisdiction. The Court stated, "[i]n Calder v. Jones.... we today reject the suggestion that employees who act in their official capacity are somehow shielded from suit in their individual capacity. Id. at 781, n. 13; See also Personal Jurisdiction and the Corporate Employee: Minimum Contacts Meet the Fiduciary Shield, 38 Stan. L. Rev. 813 (1986)

Courts have frequently expressed dissatisfaction with the results of a blanket application of the fiduciary shield rule. Some courts have recognized that the fiduciary shield rule may represent an improper deviation from minimum contacts analysis. Others have stated that the fiduciary shield is an equitable doctrine that should be applied with discretion. Still other courts have articulated various explicit exceptions to the rule. See Personal Jurisdiction and the Corporate Employee: Minimum Contacts Meet the Fiduciary Shield, 38 Stan. L. Rev. 813, 823 (1986).

One thing that is clear is that the fiduciary shield doctrine is not the law of Nevada. Under Nevada law, the inquiry as to whether a state may assert personal jurisdiction over a nonresident defendant entails a two-pronged analysis. First, a court must determine whether Nevada's long-arm statute authorizes the assertion of jurisdiction under the given set of facts. Second, the application of the long-arm statute to those facts must satisfy the constitutional demands of due process. If both requirements are met, then jurisdiction over the nonresident defendant exists.

In its Order denying Defendant's Motion to Dismiss, the District Court held that Plaintiff must establish a prima facie showing of personal jurisdiction and cited to Trump v. Eighth Judicial Dist. Court, 109 Nev. 687, 694, 857 P .2d 740, 744-745 (1993). See Order Denying Motion to Dismiss, p.2.

The District Court further recognized that "[d]ue process requires 'minimum contacts' between the defendant and the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." Order, p. 2;109 Nev. at 694. The defendant must have sufficient contact with the forum such that he or she could reasonably anticipate being haled into court there. Id. The defendant must purposefully avail herself of the privilege of acting in the forum state or of causing important consequences in that state. The cause of action must arise from the consequences in the forum state of the defendant's activities, and those activities, or the consequences thereof, must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable. Id.

A state may exercise specific personal jurisdiction only where: (1) the defendant purposefully avails herself of the privilege of serving the market in the forum or of enjoying the protection of the laws of the forum, or where the defendant purposefully established contacts with the forum state, and (2) the cause of action arises from that purposeful contact with the forum or conduct targeting the forum. Id.

The guarantee of due process contained in the fourteenth amendment has been construed as limiting the jurisdiction of state courts to enter judgments affecting the rights or interests of nonresident defendants. Kulko v. Superior Court, 436 U.S. 84, 91 (1978). The parameters for such a constitutional exercise of jurisdiction have been set by the minimum contacts standard.

Originally posted at InjuryBoard by Steve Klearman

Nevada Supreme Court Rejects Application of Anti-Stacking Rules for Concurrent Negligence

Steve Klearman — Thu, 05 Nov 2009 15:16:39 GMT

In Delgado v. American Family Ins. Group, 125 Nev. Adv. Op. No. 44 (October 1, 2009), the Nevada Supreme Court was faced with the question of whether the passenger in an automobile who is injured by the concurrent negligence of the drivers in a two-car accident "may recover under the permissive driver's insurance policy both liability benefits based on the policyholder's negligence and underinsured motorist benefits based on the other driver's underinsured status."

The plaintiff passenger had made a claim against both at-fault drivers' insurance policies and recovered the liability limits under those policies. She then made a claim against the permissive driver's underinsured motorist policy, alleging that the at-fault policies did not cover the extent of her damages.

The Court rejected the application of the anti-stacking rules under the Nevada case law. In Nevada, once a passenger has recovered under the vehicle owner's liability policy--whether that policy is the permissive driver's policy or the passenger's own policy--the passenger may not also recover under the owner's uninsured/underinsured motorist policy, although the guest passenger may stack their own UM/UIM coverage with the benefits they receive from the owner's policy. Baker v. Criterion Insurance, 107 Nev. 25, 805 P.2d 599 (1991).

Distinguishing the anti-stacking situation, the Court concluded that "a passenger who is injured by two concurrently negligent drivers may recover from both the permissive driver's single insurance policy liability benefits based on the permissive driver's negligence and underinsured motorist benefits based on the other driver's underinsured status."

The Court clarified that the antistacking rule under Nevada law was not implicated by this case. Thus, a passenger whose injuries are attributable to two jointly negligent drivers and who exhausts the liability limits of the permissive driver's policy without satisfying his damages may seek recovery under the permissive driver's underinsured motorist policy based on the other driver's underinsured status.

Originally posted at InjuryBoard by Steve Klearman

Beware of Unapproved H1N1 Products

Steve Klearman — Tue, 17 Nov 2009 10:53:53 GMT

The FDA urges caution when searching for H1N1 products on the internet because many unapproved H1N1 products purport to prevent, diagnose, or treat H1N1.

The FDA warns consumers of the potential danger of these products and cautions consumers that they should use only FDA approved products from licensed pharmacies. The potential dangers of using unapproved FDA products include an "increased risk of suffering life-threatening adverse events such as side effects from inappropriately using prescription medications, dangerous drug interactions, contaminated drugs, and impure or unknown ingredients found in unapproved drugs."

Currently, Tamiflu and Relenza are the only two FDA-approved antiviral drugs to treat H1N1.

With unapproved products, you can't be sure what you're getting. For example, the FDA, in monitoring the web for unapproved products, ordered a shipment of what was purported online to be Tamiflu. The FDA received an an unmarked envelope postmarked from India. The envelope contained "unlabeled, white tablets taped between two pieces of paper." The tablets were analyzed, and it was determined that they contained talc and acetaminophen (fever reducer and pain reliever). The tablets did not contain oseltamivir, the active ingredient of Tamiflu.

Among the products that the FDA has targeted:

a shampoo said to protect against the H1N1 flu virus
a dietary supplement said to protect infants and young children from contracting the virus
a "new" supplement said to cure H1N1 flu infection within four to eight hours
a spray that claims to leave a layer of ionic silver on one's hands that kills the flu virus
several diagnostic tests that have not been approved to detect the H1N1 flu virus
an electronic instrument whose sellers claim uses "photobiotic energy" and "deeply penetrating mega-frequency life-force energy waves" to strengthen the immune system and prevent symptoms associated with H1N1 viral infection

For more info from the FDA, click here

Originally posted at InjuryBoard by Steve Klearman

Medical Malpractice Reform Does Not Deliver in Texas

Steve Klearman — Thu, 08 Nov 2007 13:13:45 GMT

Rural Texas is still waiting for the doctors tort reform was supposed to deliver. This comes from the American Association of Justice quoting Suzanne Batchelor writing for the Texas Observer:

The flood of beguiling baby photographs began cascading into mailboxes across Texas as the 2003 fall election drew near. Gracing the cover of a slick brochure, the infant smiled as a stethoscope--held by an unseen but presumably kind physician--was pressed to its chest. "Who Will Deliver Your Baby?" the mailer asked.

The direct-mail pitch was one of many churned out by insurance and medical interests as they spent millions urging voters to pass Proposition 12, a constitutional amendment that would limit the amount of money patients or their survivors could recover in medical malpractice lawsuits.

Swaddled in the glossy brochures was a dire threat. Greedy lawyers were besieging doctors with unwarranted lawsuits that were making malpractice insurance rates skyrocket. Doctors were fleeing Texas, leaving scores of counties with no obstetricians to deliver babies, no neurologists or orthopedic surgeons to tend to the ill. Without Proposition 12, the ad campaign warned, vast swaths of rural Texas would go begging for health care.

Choosing between greedy trial lawyers and cuddly babies was no contest for most Texas voters. Proposition 12 passed. Four years later, vast swaths of rural Texas are going begging for health care.

Proposition 12, and the far-reaching changes in Texas civil law that it dragged behind it, was built on a foundation of mistruths and sketchy assumptions. The number of doctors in the state was not falling, it was steadily rising, according to Texas Medical Board data. There was little statistical evidence showing that frivolous lawsuits were a significant force driving increases in malpractice premiums.

Perhaps the most insidious sleight of hand employed by Proposition 12 backers was their repeated insistence that medical malpractice insurance rates were somehow responsible for doctor shortages in rural Texas.

"Women in three out of five Texas counties do not have access to obstetricians. Imagine the hardship this creates for many pregnant women in our state," Gov. Rick Perry told a New York audience in October 2003 at the pro-tort-reform Manhattan Institute for Policy Research. "The problem has not been a lack of compassion among our medical community, but a lack of protection from abusive lawsuits."

The campaign's promise, that tort reform would cause doctors to begin returning to the state's sparsely populated regions, has now been tested for four years. It has not proven to be true.

Since Proposition 12 passed, insurance companies--many grudgingly--have lowered their rates. More doctors are coming to Texas, as a recent New York Times article trumpeted. That is proof, say Proposition 12's backers, that so-called tort reform is working.

"Texas has seen a tremendous success in luring doctors to practice in our state thanks to tort reform passed in 2003," says Krista Moody, Perry's deputy press secretary. Moody noted that the Texas Medical Board is having to add staff to handle a backlog of doctors applying for state licenses.

Those doctors are following the Willie Sutton model: They're going, understandably, where the better-paying jobs and career opportunities are, to the wealthy suburbs of Dallas and Houston, to growing places with larger, better-equipped hospitals and burgeoning medical communities.

On a Texas map inside the beguiling-baby mailer, blood red marked the 152 counties in Texas that did not have obstetricians in 2003. Rural doctor shortages were kept front and center as the state's physicians, led by the Texas Medical Association and the Texas Association of Obstetricians and Gynecologists, campaigned for Proposition 12.

A flier printed by the TMA in English and Spanish and posted in waiting rooms across the state told patients that "152 counties in Texas now have no obstetrician. Wide swaths of Texas have no neurosurgeon or orthopedic surgeon. ... The primary culprit for this crisis is an explosion in awards for non-economic (pain and suffering) damages in liability lawsuits. ... vote "YES!" on 12!"

As of September 2007, the number of counties without obstetricians is unchanged--152 counties still have none, according to the Observer's examination of county-by-county data at the state Medical Board.

Nearly half of Texas counties--124, or 49 percent--have no obstetrician, neurosurgeon, or orthopedic surgeon. Those specialists aside, 21 Texas counties have no physician of any kind. That's one county worse than before Proposition 12 passed, when 20 counties had no doctor.

The TMA counts 186 new obstetricians in Texas since Proposition 12 passed, and President Dr. William Hinchey offers that as proof of tort reform's effectiveness.

No independent study has shown what caused the increase, though Texas medical schools have graduated increasing numbers, by the hundreds, of physicians every year since 1997, the earliest year for which TMB posts data. And the state's growth probably played some part. According to the U.S. Census Bureau, Texas' population grew 12.7 percent between 2000 and 2006, compared with 6.4 percent for the country as a whole. The number of obstetricians in Texas increased only 4.27 percent over the same six years, including three years under tort reform.

More telling is where the new obstetricians--and neurosurgeons and orthopedic surgeons--decided to go.

The Medical Board's latest obstetrician data for the 254 Texas counties reveals that several counties led the gains.

Collin County, the Dallas suburb that is the wealthiest in Texas in terms of per capita income, gained the most obstetricians. Its 34 new ones increased its obstetrician ranks by an impressive 45 percent since Proposition 12 passed.

In second place is Montgomery County, Houston's northern neighbor along the booming Interstate 45 corridor, and the state's fourth-fastest growing county, according to the U.S. Census 2006 estimate. Montgomery gained 19 obstetricians. Tarrant County followed with 17.

Next, at 12 each, are Galveston and Hidalgo counties. Among the rest, a few counties gained in single digits, a few lost, and the majority of counties--two thirds--remained the same.

With well-equipped, well-staffed hospitals, plenty of colleagues, and insured patients, it's not hard to see why Collin County would attract the most obstetricians or offer them the most jobs. Collin's population grew 42.1 percent from 2000 to 2006; the county encompasses Plano, Carrollton, and a small part of Dallas.

The county's Presbyterian Hospital of Plano alone has 73 obstetricians and 30 neonatologists for newborns. Two allied hospitals serve nearby Allen and Dallas, and the three are far from Collin's only hospitals.

Margot and Ross Perot gave $6 million last October to the Presbyterian Hospital of Plano for maternal and infant care. The Margot Perot Center for Women and Infants has been named "Best Place to Have a Baby" by DallasChild magazine 11 years in a row. The Presbyterian system has even been honored locally for its baby sign-language classes.

The pattern of doctors' opting to practice in more affluent, urban areas holds true for Texas' overall gains in neurosurgeons (36) and orthopedic surgeons (185) since 2003.

The number of neurosurgeons statewide increased 8.8 percent in the past four years. The biggest share, again, went to Collin County, which gained seven. Bexar and Harris counties each gained five, while Lubbock gained four, and Tarrant, three. At last count 216 counties, or 85 percent, have no neurosurgeon.

Texas has added 185 orthopedic surgeons since 2003, a 10.3 percent increase. Harris County gained the most with 25, followed by Dallas County with 21, Tarrant County with 19, Travis County with 16, and Collin County with 15. There are no orthopedic surgeons in 169 Texas counties.

For more information on this subject, please refer to the section on Medical Malpractice and Negligent Care.

Originally posted at InjuryBoard by Steve Klearman

Dissecting the History of the Statute of Limitations in Personal Injury Cases in Nevada

Steve Klearman — Tue, 21 Apr 2009 13:47:03 GMT

NRS 41A.097 provides the limitations period for filing lawsuits regarding medical malpractice and wrongful death claims, among others. The statute has gone through a complicated series of amendments.

Statutory History, from NRS 41A.097:

Until 2002, the statute of limitations for medical malpractice and wrongful death was on a 4 year/2 year scheme. A lawsuit must have been filed within 2 years of discovering the injury, but in any event, no later than 4 years after the date of the injury. The statute read, in part:

An action for injury or death against a provider of health care may not be commenced more than 4 years after the date of injury or 2 years after the plaintiff discovers or through the use of reasonable diligence should have discovered the injury, whichever occurs first.

2002 Amendments. In 2002, NRS 41A.097 was amended. The 2002 amendment created a 4/2, 3/2 scheme. If malpractice occurred before Oct 1, 2002, it was under the 4/2 scheme discussed above. If after October 1, 2002, the lawsuit instead was under a 3/2 scheme. For 2 years, the statute read in part:

An action for injury or death against a provider of health care may not be commenced more than 4 years after the date of injury or 2 years after the plaintiff discovers or through the use of reasonable diligence should have discovered the injury, whichever occurs first, for injury occurring prior to October 1, 2002

An action for injury or death against a provider of health care may not be commenced more than 3 years after the date of injury or 2 years after the plaintiff discovers or through the use of reasonable diligence should have discovered the injury, whichever occurs first, for injury occuring on or after October 1, 2002

KODIN Amendments The "Keep Our Doctors in Nevada" initiative led to a further amendment to the statute of limitations in medical malpractice and wrongful death claims. KODIN changed the two year inner limit to one year for injuries accruing after October 1, 2002. So, if malpractice occurred before Oct 1, 2002, it is still 4/2. If after October 1, 2002, it is 3/1. However, in order that the statute not be applied retroactively, the KODIN only applied to actions accruing after KODIN became effective on November 23, 2004. So, if malpractice occurred on November 22, 2004 (so, under section 2, but pre-KODIN), the 3/2 rule applies, not the KODIN 3/1. If malpractice occurred on November 24, 2004, however, the 3/1 rule applies. The statute now reads, in part:

An action for injury or death against a provider of health care may not be commenced more than 4 years after the date of injury or 2 years after the plaintiff discovers or through the use of reasonable diligence should have discovered the injury, whichever occurs first, for injury occurring prior to October 1, 2002

An action for injury or death against a provider of health care may not be commenced more than 3 years after the date of injury or 1 year after the plaintiff discovers or through the use of reasonable diligence should have discovered the injury, whichever occurs first, for injury occurring on or after October 1, 2002

Check back for more information about statute of limitations in Nevada!

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Originally posted at InjuryBoard by Steve Klearman

Nevada Supreme Court Reviews Dram Shop Liability

Steve Klearman — Tue, 10 Nov 2009 13:29:17 GMT

The Nevada Supreme Court addressed the liability of a hotel for injuries occurring in an automobile accident after evicting intoxicated persons from the hotel premises in Rodriguez v. Primadonna Company, 125 Nev. Adv. Op. No. 45 (October 1, 2009).

In Rodriguez, 17 year old Fabian Santiago had been drinking with his two adult uncles, Manuel and Daniel Garibay, on hotel property where they were checked in as guests. They became disruptive, and hotel security intervened. The hotel security officers' requested that Fabian and his uncles leave the property. Hotel security accompanied the three men as they retrieved their belongings. Manuel told another guest that the three of them were going to their car in the parking lot to "sleep it off." Manuel had not intended to drive, as he did not have valid license and he believed he was too intoxicated. When the men were escorted to their vehicle, Manuel told Daniel he was sober enough to drive. Hotel security personnel informed the men, seated in their car, that they had to leave the hotel parking lot and exit hotel property. After leaving the property, Manuel rolled the vehicle while driving at approximately 80 miles per hour. 17 year old Fabian suffered extreme spinal injuries and, as a result, is quadriplegic.

In addressing the claim of negligent eviction, the Court was faced with the issue of whether the hotel owed an affirmative duty to ensure Fabian's safety after he was evicted from hotel property. The Court reviewed Nevada law regarding intoxicated patrons:

In Nevada, hotel proprietors have the statutory right to evict from the premises anyone who acts in a disorderly manner or who causes a public disturbance in or upon the premises. NRS 651.020.[1]

In Nevada, commercial liquor vendors, including hotel proprietors, cannot be held liable for damages related to any injuries caused by the intoxicated patron, which are sustained by either the intoxicated patron or a third party, including when the intoxicated patron is a minor.

Nevada subscribes to the rationale underlying the nonliability principle--that individuals, drunk or sober, are responsible for their torts.

The Court concluded that "when a hotel proprietor rightly evicts a disorderly, intoxicated patron, the hotel proprietor is not liable for any torts that an evicted patron commits after he or she is evicted that result in injury." The proprietor does not have the duty to prevent injuries caused by the intoxicated patron that are sustained either by the patron or by third parties after the eviction has been executed.

The Court did recognize that hotel proprietors do have a duty to act reasonably under the circumstances. The Court stated, however, that in accordance with the principles underlying Nevada's rejection of dram-shop liability, so long as a proprietor does not use unreasonable force in evicting a patron, the hotel proprietor is not required to consider a patron's level of intoxication in order to prevent speculative injuries that could occur off the proprietor's premises.

Thus, although the hotel may have known that Fabian's step-uncle was intoxicated and could not safely drive, the Court concluded, "as a matter of law, that Primadonna did not have the duty to arrange safer transportation, prevent an intoxicated driver from driving, or prevent Fabian, a passenger, from riding with a drunk driver."

Originally posted at InjuryBoard by Steve Klearman