Today the Utah Court of Appeals issued its decision in Harper v. Evans, 2008 UT App 66, --- P.3d ---. The court upheld a trial court's ruling that the patient had delayed in bringing her claim to court, and the statutory time limit for doing so had expired.
Statutes of limitation--laws that place limits on how long an injured person has to sue--are just one of the many legal pitfalls facing malpractice victims. There are some narrow exceptions and statutory tolling provisions, but as Harper illustrates, courts are generally strict in enforcing the time limits.
If you believe you have been injured by medical error, do not delay in seeking legal advice. Even if your claims have merit, you can be precluded from any recovery if you wait to long. You should seek legal assistance immediately.
Thursday, March 6, 2008
Friday, February 1, 2008
Utah Supreme Court Protects Patient Confidentiality
Today the Utah Supreme Court issued its decision in Sorenson v. Barbuto, 2008 UT 8, --- P.3d ---, which upheld important patient confidentiality rights.
In Sorenson, Nicholas Sorenson was injured in a car accident. He sought treatment from Utah physician Dr. Barbuto. When Mr. Sorenson brought a personal injury claim, his treating physician, Dr. Barbuto, went to work for the defense lawyers. Dr. Barbuto told the lawyers confidential information about his patient; information that was different from what he'd put in the medical records. The defense lawyers even tried to use Dr. Barbuto--the patient's own physician--as an expert witness in the case.
The district court disallowed it, however, and Mr. Sorenson prevailed on the merits of his personal injury claim. He then brought a separate action against Dr. Barbuto for violating his duty to protect the confidentiality of the physician/patient relationship. At first, the district court dismissed Mr. Sorenson's claim against Dr. Barbuto. But the Utah State Court of Appeals reversed that decision, and held that doctors cannot engage in ex parte, or "one-way," communications with anyone--including defense lawyers--about their patients, without violating their duties to the patient.
Dr. Barbuto took the Court of Appeals' decision to the Utah Supreme Court, which affirmed the lower court's ruling, and went one step further. The Utah Supreme Court also declared that it is unethical for defense lawyers to initiate or engage in ex parte communications with a patient's treating physicians, even when the patient is involved in a lawsuit.
This is an especially important decision in Utah, and for medical malpractice cases. The Utah Medical Insurance Association (UMIA) insures the vast majority of doctors in the state. If you have a medical malpractice claim against one doctor, and are seeing another one for treatment of your injuries, chances are, UMIA insures both of them. The defense lawyers that work for the insurance company can no longer call treating physicians and ask them for help in defending another physician's negligence.
This is a good decision, because it ensures that when you are seeing a doctor for treatment--even for injuries caused by another negligent health care professional--your communications will not be used against you. Further, it guarantees that any information treating physicians have will be disclosed under court supervision, pursuant to an oath of honesty.
In Sorenson, Nicholas Sorenson was injured in a car accident. He sought treatment from Utah physician Dr. Barbuto. When Mr. Sorenson brought a personal injury claim, his treating physician, Dr. Barbuto, went to work for the defense lawyers. Dr. Barbuto told the lawyers confidential information about his patient; information that was different from what he'd put in the medical records. The defense lawyers even tried to use Dr. Barbuto--the patient's own physician--as an expert witness in the case.
The district court disallowed it, however, and Mr. Sorenson prevailed on the merits of his personal injury claim. He then brought a separate action against Dr. Barbuto for violating his duty to protect the confidentiality of the physician/patient relationship. At first, the district court dismissed Mr. Sorenson's claim against Dr. Barbuto. But the Utah State Court of Appeals reversed that decision, and held that doctors cannot engage in ex parte, or "one-way," communications with anyone--including defense lawyers--about their patients, without violating their duties to the patient.
Dr. Barbuto took the Court of Appeals' decision to the Utah Supreme Court, which affirmed the lower court's ruling, and went one step further. The Utah Supreme Court also declared that it is unethical for defense lawyers to initiate or engage in ex parte communications with a patient's treating physicians, even when the patient is involved in a lawsuit.
This is an especially important decision in Utah, and for medical malpractice cases. The Utah Medical Insurance Association (UMIA) insures the vast majority of doctors in the state. If you have a medical malpractice claim against one doctor, and are seeing another one for treatment of your injuries, chances are, UMIA insures both of them. The defense lawyers that work for the insurance company can no longer call treating physicians and ask them for help in defending another physician's negligence.
This is a good decision, because it ensures that when you are seeing a doctor for treatment--even for injuries caused by another negligent health care professional--your communications will not be used against you. Further, it guarantees that any information treating physicians have will be disclosed under court supervision, pursuant to an oath of honesty.
Wednesday, January 23, 2008
Hospital Commits Tragic Error, But Lawyers Deny Wrongdoing
According to Texas newspaper the Star-Telegram, Kourtney McGee, who experienced bleeding during her second trimester of pregnancy, went to the hospital to receive care and attention. Tragically, however, her infant was stillborn.
As if that weren't bad enough, the hospital literally added insult to injury by losing the little baby's body. Unbelievably, the body was sent to the cleaners along with the hospital's dirty laundry.
Surely you would expect the hospital to do the right thing. Certainly, they would recognize the gravity of their error, and the nightmare that they had put this poor mother through.
But the hospital's lawyer said it all: "[W]e deny that the hospital has done anything inappropriate."
People like to joke about "ambulance chasers," and many are concerned about the perceived "malpractice crisis" and "frivolous lawsuits." But this tragic example out of Texas illustrates the real crisis--health care corporations and insurance companies that refuse to do the right thing; that refuse to be accountable for their mistakes.
But mistakes happen. And when responsible people make a mistake, they take responsibility for the consequences. As this most recent example shows, the health care industry is unwilling--even in the clearest of cases--to take responsibility. That's the reason that medical malpractice attorneys who represent injured persons are necessary--to fight the big companies on behalf of people that have already lost so much, and to hold such irresponsible companies accountable for their negligence.
Our sincerest condolences go out to Ms. McGee for her loss.
As if that weren't bad enough, the hospital literally added insult to injury by losing the little baby's body. Unbelievably, the body was sent to the cleaners along with the hospital's dirty laundry.
Surely you would expect the hospital to do the right thing. Certainly, they would recognize the gravity of their error, and the nightmare that they had put this poor mother through.
But the hospital's lawyer said it all: "[W]e deny that the hospital has done anything inappropriate."
People like to joke about "ambulance chasers," and many are concerned about the perceived "malpractice crisis" and "frivolous lawsuits." But this tragic example out of Texas illustrates the real crisis--health care corporations and insurance companies that refuse to do the right thing; that refuse to be accountable for their mistakes.
But mistakes happen. And when responsible people make a mistake, they take responsibility for the consequences. As this most recent example shows, the health care industry is unwilling--even in the clearest of cases--to take responsibility. That's the reason that medical malpractice attorneys who represent injured persons are necessary--to fight the big companies on behalf of people that have already lost so much, and to hold such irresponsible companies accountable for their negligence.
Our sincerest condolences go out to Ms. McGee for her loss.
Tuesday, January 22, 2008
Compulsory Arbitration - A New Twist on a Bad Idea
Today the Salt Lake Tribune reported that State Rep. Stephen Urquhart (R. St. George) will be presenting a new proposal that would attempt to close the doors of the courts to victims of medical malpractice.
Mandatory medical arbitration involves taking a patient's claims out of the courthouse, where a neutral judge and jury adjudicate the merits of the case, and places the issues before paid arbitrators, whose decision is binding. Under Rep. Urquhart's proposal, parties could appeal an arbitrator's decision, but would be forced to pay the opposing parties' costs and fees if unsuccessful.
When mutually agreed to by both parties to a dispute, arbitration can be a valuable form of alternative dispute resolution. Compulsory arbitration, however, forces patients to waive numerous constitutional rights, such as the right to a jury. Additionally, the practice forces patients--many of whom are already struggling under the wight of lost income, disability, and unpaid medical bills--to pay the costs of the private arbitrators out of their own pockets. While this isn't a problem for huge health care companies, this additional cost can be financially devastating to someone struggling to make ends meet.
Rep. Urquhart is an insurance defense lawyer with Snow Christensen & Martineau, a law firm that defends negligent hospitals and doctors. He knows that big businesses, including the health care industry and its insurance companies, favor arbitration as a remedy for "frivolous" lawsuits and the health care "crisis." The truth, however, is that corporations and insurance companies favor arbitration for one simple reason: it gives them an advantage.
As Harvard Law Professor Elizabeth Warren recently remarked, "Arbitration may seem like the Andy of Mayberry form of dispute resolution--folksy, cheap, and fair. The data suggest, however, that it is Darth Vader's Death Star--the Empire always wins."
Health care corporations can easily outspend injured victims in an arbitration setting. Additionally, health care arbitrators know that if they rule against the health care companies, they will be "blacklisted" from ever arbitrating another case. This gives them an incentive to rule in the companies' favor, something known as the "repeat player bias."
This new legislation is just the latest in a series of attempts by the insurance and health care industries to make it more difficult for people to recover for their injuries. Thankfully, Utah's constitutional framers deemed it appropriate to protect citizens' access to judicial relief. Article I, Section 11 declares:
Thankfully, this provision should protect Utah's citizens from compulsory arbitration of their medical negligence claims.
And hopefully, Utah's legislators will not try to push through a law that violates the state's guiding charter.
Mandatory medical arbitration involves taking a patient's claims out of the courthouse, where a neutral judge and jury adjudicate the merits of the case, and places the issues before paid arbitrators, whose decision is binding. Under Rep. Urquhart's proposal, parties could appeal an arbitrator's decision, but would be forced to pay the opposing parties' costs and fees if unsuccessful.
When mutually agreed to by both parties to a dispute, arbitration can be a valuable form of alternative dispute resolution. Compulsory arbitration, however, forces patients to waive numerous constitutional rights, such as the right to a jury. Additionally, the practice forces patients--many of whom are already struggling under the wight of lost income, disability, and unpaid medical bills--to pay the costs of the private arbitrators out of their own pockets. While this isn't a problem for huge health care companies, this additional cost can be financially devastating to someone struggling to make ends meet.
Rep. Urquhart is an insurance defense lawyer with Snow Christensen & Martineau, a law firm that defends negligent hospitals and doctors. He knows that big businesses, including the health care industry and its insurance companies, favor arbitration as a remedy for "frivolous" lawsuits and the health care "crisis." The truth, however, is that corporations and insurance companies favor arbitration for one simple reason: it gives them an advantage.
As Harvard Law Professor Elizabeth Warren recently remarked, "Arbitration may seem like the Andy of Mayberry form of dispute resolution--folksy, cheap, and fair. The data suggest, however, that it is Darth Vader's Death Star--the Empire always wins."
Health care corporations can easily outspend injured victims in an arbitration setting. Additionally, health care arbitrators know that if they rule against the health care companies, they will be "blacklisted" from ever arbitrating another case. This gives them an incentive to rule in the companies' favor, something known as the "repeat player bias."
This new legislation is just the latest in a series of attempts by the insurance and health care industries to make it more difficult for people to recover for their injuries. Thankfully, Utah's constitutional framers deemed it appropriate to protect citizens' access to judicial relief. Article I, Section 11 declares:
All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, which shall be administered without denial or unnecessary delay; and no person shall be barred from prosecuting or defending before any tribunal in this State, by himself or counsel, any civil cause to which he is a party.
Thankfully, this provision should protect Utah's citizens from compulsory arbitration of their medical negligence claims.
And hopefully, Utah's legislators will not try to push through a law that violates the state's guiding charter.
Treating Physicians as Expert Witnesses
In its January/February 2008 journal, the Utah State Bar published an interesting article on the ability of treating physicians to offer "expert testimony" in litigation. The article addressed a recent Utah Supreme Court decision, Carbaugh v. Asbestos Corporation Ltd., 2007 UT 65, 167 P.3d 1063. In that case, the state high court recognized grounds by which treating physicians can offer expert testimony.
This follows on the heels of another case, Pete v. Youngblood, 2006 UT App 303, 141 P.3d 629, wherein the Utah Court of Appeals held that treating physicians could testify about medical issues without being required to prepare formal expert witness reports.
These are important holdings, because in Utah, plaintiffs in medical malpractice cases must produce expert testimony in order to meet their burdens of proof. See Nixdorf v. Hicken, 612 P.2d 348 (Utah 1980). Often, treating physicians are able to offer qualified, objective testimony, about the medical issues underlying a case.
This follows on the heels of another case, Pete v. Youngblood, 2006 UT App 303, 141 P.3d 629, wherein the Utah Court of Appeals held that treating physicians could testify about medical issues without being required to prepare formal expert witness reports.
These are important holdings, because in Utah, plaintiffs in medical malpractice cases must produce expert testimony in order to meet their burdens of proof. See Nixdorf v. Hicken, 612 P.2d 348 (Utah 1980). Often, treating physicians are able to offer qualified, objective testimony, about the medical issues underlying a case.
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