A federal rule, published on January 28, by the Department of Health and Human Services, expands the scope of the NPDB to include disciplinary information not just on physicians, but on
all
licensed health care professionals. The new rule covers nurses, chiropractors, podiatrists, and physician assistants. A copy of the new rule, published in the Federal Register is available online. The rule took effect on March 1. It requires additional entities, such as peer review and private accreditation organizations to report adverse actions against health professionals.
As noted here previously, New Hampshire recently considered the question of whether a plaintiff could state a claim for “loss of a chance". “Lost Chance Doctrine” allows a plaintiff to claim damages for a lost “chance” at survival, even if s/he cannot demonstrate that he would have survived if an alternative treatment had been rendered. The New Hampshire Supreme Court recently ruled that a plaintiff could state such a claim and proceed to trial, even if her pre-trial “chance” of a better outcome was less than 50%. The New Hampshire legislature promptly amended the applicable statute: the law in New Hampshire is now that “loss of chance” is a cognizable claim only when the plaintiff can demonstrate that her initial chance for survival was greater than 50%, meaning that more likely than not the alleged negligence was the cause of her adverse outcome.
Now, Ohio has joined the fray. In a recent decision, an Ohio appeals court ruled that a plaintiff was entitled to a jury instruction on loss of chance, even when his chances of survival were less than 50%. Interestingly, in that case (Geesaman v. St. Rita’s Medical Center), the court found the plaintiff was entitled to the instruction even when he had proceeded to trial on a traditional negligence theory, and loss of chance had not been raised until expert testimony at trial.
Although there are many different approaches to lost chance doctrine, and states vary, this is an area of activity that bears watching.
The Massachusetts Board of Medicine ("Board") has been without one public member and one physician member for over a year. The Board has also been functioning without an appointed Exceutive Director - the Chair of the Board, John Herman, MD, has been serving as an interim director. However, the Board’s public listing of appointed members is now under revision, implying that new members will be announced. As you may recall from previous posts, the Board delayed promulgating new regulations until a full panel of new Board members had been appointed and an executive director named. The Board’s proposed regulations, which dramatically expanded the Board’s investiture in certain aspects of enforcement, were removed from the Board’s web site after the Notice and Comment period. The filling of Board vacancies and the appointment of a new Executive Director could reactivate the promulgation of new regulations. Stay tuned.
On 2/4/10 the Supreme Court of the State of Illinois overturned the State’s cap on non-economic damages in medical malpractice cases, finding the cap to be unconstitutional. In Lebron v. Gottlieb Memorial Hospital , the court declared the health care reform statute constitutionally unenforceable since its limitation on non-economic damages in medical malpractice actions ($500,000 for doctors and $1,000,000 for hospitals) violated the separation of powers doctrine by limiting courts’ ability to correct jury verdicts.
The New Hampshire Supreme Court answered the “$110 million question” last week, ruling on the issue of whether the state can tap the reserves of the New Hampshire Medical Malpractice Joint Underwriting Association, which is funded by health providers’ premiums: the high court ruled the state cannot take such funds for other use, in its ruling issued last Thursday.
Governor John Lynch’ budget had included the $110 million, which was addressed by an Act of the legislature requiring transfer (over the fiscal years of 2009, 2010, and 2011), of that amount to the State’s general fund.
Health providers who insure themselves through the JUA sued to block the use of the money. They won at the Superior Court level in July, and the state’s appeal was argued at Supreme Court in October, 2009.)
The New Hampshire Supreme Court upheld Belknap County Superior Court Justice Kathleen McGuire’s July ruling, the Act was “a retrospective law that results in impairment of contract rights in violation of the New Hampshire Constitution.” The Court split on the issue, 3-2 (with Justice Carol Ann Conboy writing the decision, joined by Chief Justice John Broderick and Justice Gary Hicks; Justices Linda Dalianis and James Duggan dissented),
The Union Leader ran an editorial supporting the decision yesterday.
Had the state succeeded in reaching into the Joint Underwriting Association’s coffers and withdrawing $110 million for the stated goal of using it for a more publicly beneficial purpose, other raids on private funds might have followed.
In a post that William Safire surely would have relished, the legal blog “Volokh Conspiracy” noted in a post this week “the first appearance of the word ‘blog’ in a [US] Supreme Court opinion.” So the world evolves….
(The post addressed yesterday’s ruling in Citizens United v. FEC, which addressed corporate First Amendment rights. The decision is here.)
The Volokh Conspiracy is a “group blog,” authored by a variety of thoughtful, provocative law professors, such as Randy Barnett (Georgetown), Orin Kerr (GW Law), David Bernstein (George Mason Law), and Eugene Volokh (UCLA Law).
N.B. “Law Student” adds, in the comments section, that “Youtube also gets a special shoutout in the conclusion” of the Supreme Court opinion. No word yet from the NKMS Excom on any coming Firm-sponsored Youtube efforts….
LANDYA BOYER McCAFFERTY SELECTED AS
NEW UNITED STATES MAGISTRATE JUDGE
Chief Judge Steven J. McAuliffe announced today that Landya Boyer McCafferty, Esq., has been unanimously selected by the judges of the court as the next United States Magistrate Judge for the District of New Hampshire. Attorney McCafferty will replace retiring Magistrate Judge James R. Muirhead in the late spring of 2010.
Attorney McCafferty performed her undergraduate studies at Harvard University and received her law degree from Northeastern University in 1991. Upon graduation she served as a law clerk to the Honorable Norman H. Stahl, both in the District of New Hampshire and in the United States Court of Appeals for the First Circuit, and later to the Honorable A. David Mazzone in the District of Massachusetts. She practiced law at McLane, Graf, Raulerson & Middleton, PA and then served as a staff attorney and assistant appellate defender with the New Hampshire Public Defender Program for over 8 years. Attorney McCafferty currently serves as Disciplinary Counsel to the New Hampshire Supreme Court’s Committee on Professional Conduct.
Chief Judge McAuliffe commented on her appointment: “Attorney McCafferty’s good judgment, legal acumen, litigation experience, and temperament all qualify her for this critical federal judicial office. The judges of this court are very confident that she will be well received and respected by both the public and the bar, and will serve the nation with distinction. We all very much look forward to her arrival.”
The Union Leader reports that a successor to long-time Federal District Court Magistrate Judge James Muirhead has been named: Landya Boyer McCafferty.
McCafferty , who received her law degree from Northeastern University in 1991, practiced law in Pennsylvania and then served as a staff attorney and assistant appellate defender with the New Hampshire Public Defender Program for over eight years.
She currently serves as disciplinary counsel to the New Hampshire Supreme Court’s Committee on Professional Conduct.
New Hampshire’s House defeated a bill on Wednesday that would have allowed the legalization of assisted suicide for terminally ill patients.
The House voted 242-113 against the bill, which would have allowed the terminally ill to obtain lethal prescriptions, with safeguards to prevent abuses. Supporters argued the bill would give people the dignity they deserve in their final days. Opponents argued was a prescription for abuse for the elderly and disabled. Among the unresolved areas were who would be covered by the bill and who would gain immunity from prosecution for assisting in the death.
The Associated Press had an interesting report this week on Norway’s national effort to reduce infection rates in the medical care context. (Hat Tip: Yahoo, by way of Instapundit)
Forty years ago, a new spectrum of antibiotics enchanted public health officials, quickly quelling one infection after another. In wealthier countries that could afford them, patients and providers came to depend on antibiotics. Trouble was, the more antibiotics are consumed, the more resistant bacteria develop.
Twenty-five years ago, Norwegians were […] losing their lives to this bacteria. But Norway’s public health system fought back with an aggressive program that made it the most infection-free country in the world. A key part of that program was cutting back severely on the use of antibiotics.
Now a spate of new studies from around the world prove that Norway’s model can be replicated with extraordinary success, and public health experts are saying these deaths — 19,000 in the U.S. each year alone, more than from AIDS — are unnecessary.
The results are pretty dramatic: in Norway, MRSA has accounted for less than 1 percent of staph infections for years. That compares to 80 percent in Japan, the world leader in MRSA; 44 percent in Israel; and 38 percent in Greece. In the U.S., rates have gone up from 2 percent in 1974 to 63 percent in 2004. And in the United Kingdom, they rose from about 2 percent in the early 1990s to about 45 percent, although an aggressive control program is now starting to work.
In addition to an impact on health, the program can save money. Medication costs money, and treating an increasing load of infection cases with more medication makes it worse. According to the article, MRSA cost $6 billion last year in the U.S.
Doctors who feel pressured to “do something!” (i.e. prescribe an antibiotic to patients with various symptoms) may take courage from these results.
As you may recall from previous postings here on our web log, the Massachusetts Board of Registration in Medicine is transitioning to an on line license renewal system . It was initially unclear how this system would allow (or require) physicians to report investigations, lawsuits, and disciplinary actions - each of which requires the production of supporting documentation. Experience in the last quarter of 2009 suggests no documents can be electronically attached using the system. Instead, disclosures prompt a written request by the licensing unit for additional information. How this will intersect with the Board’s existing stance on alleged failure to provide “complete” renewal application information remains unknown. Stay tuned!
