Oklahoma Injury Lawyer Blog

One of the recent changes to our tort system is that, to file a medical malpractice case, an expert affidavit has to be attached to the Petition. The attorney must attest that:

1) Plaintiff has consulted with a qualified expert
2) Plaintiff has obtained a written opinion from the expert and that the expert believes that a reasonable interpretation of the factors supports a finding of professional negligence
3) Based on the consultation with the expert, plaintiff believes the claim is meritorious and based on good cause.

The law goes into effect November 1, 2009.
Here's the full statute: 12 O.S. § 19 . Professional Negligence Action - Expert Opinion Affidavit Requirements - Exemption

The Pop Tort cites a recent report on medical malpractice and the increased malpractice insurance rates for doctors.  The conclusion of the report:

"[D]espite rising malpractice insurance premiums over the past several years there has actually been a drop in medical malpractice payouts made by New York doctors."

Today's Huffpost has an article on the American Medical Association Lobbyists' efforts to cap medical malpractice damages:  Doctors' Lobby Attack on Reform Aimed at Forcing Malpractice Caps on Obama.

The article also mentions the maximum damages allowed in medical malpractice cases out in California.  They're unchanged for the last 30 years! 

AllGov reports that military personnel cannot sue the government for medical malpractice.  The article stems from the story of Cindy Wilson.  Ms. Wilson was in the U.S. Air Force when she gave birth to her first child at Langley Air Force Base.

The doctors handling the delivery performed a cesarean section, and inadvertently, severed Ms. Wilson's uterine artery causing massive internal bleeding.  Two surgical sponges were even left inside Wilson's body.  The baby survived, while the mother died 12 hours later.

Military families that are the victims of medical malpractice may soon be able to hold the military liable for negligent medical care.  Congressman Hinchey (D-NY) has authored a bill that will Reverse Military Medical Malpractice Injustice.  Hinchey states that, "[t]his legislation provides members of the military and their families with a way of holding their medical providers accountable for negligent care.  They will no longer have nowhere to turn should something terrible happen."

This could be great news for the service men and woman of our country.  I'm interested in seeing what the expected additional cost would be.

I'm currently reading Blink: The Power of Thinking Without Thinking by Malcolm Gladwell.  The book takes a look at snap judgments and what we do in an instant.  Gladwell also compares snap decisions with slow analytical decision making.  He leads with an example of a sculpture.  All the evidence, such as testing the material, shows that the sculpture is authentic.  This is contrasted to a group of experts that immediately thought something was wrong.  They couldn't put their finger on it, but something didn't seem right.  The first word that popped into the mind of one of the experts was "fresh."  Which way is more accurate?  After a year of testing it was determined that the sculpture was in fact a fake.  

Besides being a good storyteller, Gladwell discusses the likelihood of a doctor getting sued for medical malpractice.  He gives the example of you, the reader, working for a medical malpractice insurance company.  You're given two choices to decide how prone a doctor is to committing medical malpractice:  1) Do you examine the doctor's training and previous records to see how many errors they've made over the last few years? Or 2) Listen in on a brief conversation between the doctor and a patient?

According to Gladwell, listening in on the doctor/client interaction is much more predictive than where the doctor went to school and how error prone he/she is:

Analyzes of malpractice lawsuits show that there are highly skilled doctors who get sued a lot and doctors who make losts of mistakes and never get sued.  At the same time, the overwhelming number of people who suffer an injury due to the negligence of a doctor never file a malpractice suit at all.  In other words, patients don't file lawsuits because they've been harmed by shoddy medical care.  Patients file lawsuits because they've been harmed by shoddy medical care and something else happens to them. 
(underlining added).

Gladwell states that the something else is the human interaction element.  How was the patient treated on a personal level?  In other words, people don't sue doctors they like.

Today's Journal Record reports that the Oklahoma Legislature has reached a compromise with a new civil justice bill.  The bill mainly affects Oklahoma personal injury and medical malpractice lawsuits. 

Some of the changes:

• Noneconomic damages are capped at $400,000 unless willful misconduct is proven in court.  (There was a push for a "hard" cap of $300,000 which could not be removed).
• In cases where the judge and jury decide that noneconomic damages in excess of $400,000 are warranted, the additional money would be provided by a state-created indemnity fund. This begs the question: who's funding the additional damages?
  
• Concerning "bad actors" in the medical community - The bill prevents information from peer review proceedings from being discovered by a plaintiff in a lawsuit except in very limited circumstances.
• Class actions: Republicans dropped their attempt to make all parties to a class-action lawsuit opt in to participate.  The civil justice bill sets specific guidelines for certifying a class and for determining attorney fees.
• The "certificate of merit" requirement is back for professional liability cases.  The previous certificate of merit requirement only applied to medical malpractice cases (and was thus unconstitutional).  This requirement now applies to other professionals.
• Joint and several responsibility: Allows a defendant who is more than 50 percent at fault to pay an additional portion of the damages.

The AP (5/5, Juozapavicius) reports, "A 15th medical negligence complaint has been filed against an Oklahoma City surgeon who made international headlines after performing a risky operation in 2006 that left a Russian teen brain dead." Of the other cases, "as many as 11...against" Paul Christopher Francel "could go to mediation this month."

From the American Association for Justice News Brief.

Jeff Raymond's article, "Doctors flee state is simple a myth," was published yesterday in the Muskogee Phoenix.

He backs up his assertion with some relevant facts:

Oklahoma had 193 physicians per 100,000 people in 2003, according to American Medical Association statistics. By 2007 the ratio had grown to 200 per 100,000 people.

In 1998 Oklahoma had 6,412 physicians. By 2007 the number had grown to 7,245, an 11.5 percent increase.

The Seattle Times ran a story today detailing the Oklahoma Bar Association's response to the recent attacks/proposed changes to our civil justice system.  The proposed changes would limit damages available to Oklahoma personal injury and medical malpractice victims. 

Our OBA president's take on the proposed legislation:

"I call upon the Legislature to produce facts -- not myths or urban legends -- but proof of the necessity of the measures that have been introduced."

"Some of the supporters of this legislation know that Oklahoma does not have a tort crisis."

"Like they say where I'm from: 'That dog don't hunt."

The article also cites a survey of Oklahoma trial judges that found that 90 percent of judges believed there was no litigation crisis requiring legislative changes.  The survey also found that there was no severe problem in Oklahoma with frivolous lawsuits. 

NYTimes.com recently reported a study, included in The New England Journal of Medicine, that tracked surgical teams following a checklist during surgery.  The "Checklist Reduces Deaths in Surgery" article states that the year long study tracked eight hospitals implementing a 19-item checklist.  Complications with surgery fell by about a third while the average patient death rate fell more than 40%!  Wow. 

Today's Sunday Oklahoman reports that the Oklahoma State Board of Medical Licensure and Supervision conducted 10 hearings this month that resulted in licensing actions, fines, and probation.  Five of the licenses were revoked.  The article goes on to state:

According to board meeting records since November 2007, nearly 30 percent of the disciplinary hearings this year were related to drug or alcohol abuse. Almost 20 percent were a result of alleged sexual misconduct, and 11 percent involved improper prescription practices for medication.

I wonder how many of the hearings were also involved with medical malpractice lawsuits. 

The Oklahoma Supreme Court recently heard the medical malpractice case, Frank Artist Woods v. Unity Health Center Inc.  The lawsuit involved a special statute that was only imposed on medical negligence lawsuits.  Insurance companies will continue to lobby for restricting access to justice for accident and negligence victims.  But, for now, Janice Francis-Smith, a reporter for The Journal Record, has good news for Oklahomans injured because of medical malpractice:

The court found the law meets the definition of an unconstitutional special law because it "targets for different treatment less than an entire class of similarly situated persons or things," creating preference and establishing inequity between similarly classes of litigants, according to precedential court rulings.

The High court strikes down portion of tort law article also states that the ruling in Frank Artist Woods v. Unity Health Center Inc. was unanimous.