By Alex Stein When Sir Henry Maine wrote (here, on page 389) that early substantive law was “secreted in the interstices of procedure,” he did not know that he was coining a long-lasting adage. Even less did he anticipate that this adage will aptly describe our today’s system of medical malpractice. This system normally requires plaintiffs…
By Alex Stein This method was pioneered by South Dakota and Indiana that set up special “informed consent” requirements for abortion procedures, SDCL § 34-23A-10.1 and IC 16-34-2-1.1. Under these requirements, physicians must tell the pregnant woman (inter alia) that “the abortion will terminate the life of a whole, separate, unique, living human being” with whom…
By Alex Stein Damage caps are widespread. A typical cap provision precludes medical malpractice victims from recovering more than a specified sum for pain, suffering and other noneconomic harms. These caps vary between $250,000 (as in California that might soon increase its cap by a referendum) and a $1,500,000-$500,000 scale (as in Florida). Some state supreme…
By Alex Stein Can a healthcare provider make an arbitration agreement with patients for resolving future malpractice disputes? This question has no straightforward answer. As an initial matter, one needs to separate individual arbitration agreements between doctors and patients from group health plans for employees. A group health plan that obligates employees to arbitrate medical malpractice…
By Alex Stein An aggrieved patient files medical malpractice suit against a hospital in which he was treated. The hospital and the patient subsequently settle the suit. Their settlement agreement states that the hospital settles the suit “for the benefit of” a physician who treated the patient. Because the patient did not sue the physician, the…
By Alex Stein The DC Court of Appeals has ruled last week that the laches defense does not apply in actions for medical malpractice: Naccache v. Taylor, — A.3d —-, 2013 WL 3820942 (D.C. 2013). The Court reasoned that laches is only available in equity proceedings but not in actions at law. For actions at law,…
By Alex Stein Similar to many other states, Oklahoma has a statute prescribing that suits alleging medical malpractice must be verified by an affidavit from a qualified medical expert. Suits unaccompanied by a proper affidavit must be stricken out. This statute is part of what I call – and commend – as a procedural tort reform:…
By Alex Stein Two days ago, Georgia’s Court of Appeals decided Georgia Clinic v. Stout, — S.E.2d —-, 2013 WL 3497703 (Ga. App. 2013). This tragic case features an elderly patient with an arthritic knee. Her doctors injected that knee with medication drawn from a multi-dose vial. They did so at their clinic under non-sterile conditions that…
By Alex Stein Connecticut’s Appellate Court ruled in yesterday’s decision that hospitals and doctors can successfully sue their patients’ attorneys for filing a vexatious malpractice suit. The Court also ruled that the trial judge’s decision that the patient’s suit was vexatious will often create an estoppel against the attorney. The attorney will consequently be precluded from…
