June 21, 2006

Medical Malpractice News: NY Judge Denies Disclosure of Surgeon's Medical Records

N.Y. Judge Denies Disclosure of Surgeon's Records

Daniel Wise
New York Law Journal
June 21, 2006

A medical malpractice plaintiff, who claims her doctor was suffering from a physical condition that caused him to botch her face-lift, may not compel the doctor to disclose his medical records, a New York judge has ruled.

The defendant doctor's medical records remain privileged, unless he has taken some affirmative step to put his medical condition in issue, Manhattan Supreme Court Justice Eileen Bransten ruled in Brower v. Beraka, 109514/03.

Although Bransten refused to require Dr. George J. Beraka, a plastic surgeon, to disclose his medical records, she did order him to submit to a deposition where he could be asked questions about the facts and circumstances of his condition during the 40 days following the plaintiff's surgery.

Law.com - N.Y. Judge Denies Disclosure of Surgeon's Records.

June 13, 2006

Medical Malpractice Essentials: Sentinel Event and Root Cause Analysis

If you have handled medical malpractice cases in and around Kentucky you have no doubt practiced a case with Kirsten Daniel. She spent the last 8 years defending doctors and hospitals in Kentucky medical malpractice cases and gained extensive trial experience in the process. I am pleased and proud to say that she recently made the switch from the dark side and joined our firm.

On our way to meet with clients yesterday, Kirsten and I started talking about Sentinel Event and Peer Review materials and their importance in med mal litigation. She informed me that many plaintiff's lawyers don't even request Sentinel Event or Peer Review materials, which came as a big surprise to me. I can only assume this is because these lawyers don't know about the JCAHO's Sentinel Event policy. And that is a big problem, as these materials often contain a wealth of information which is not discoverable by any other means.

It is essential that any lawyer handling medical malpractice cases have a firm grasp of Sentinel Event, Root Cause Analysis and Peer Review procedures. The JCAHO website is a great place to start educating yourself on the subject.

Sentinel Event Links

Joint Commission Sentinel Event Main Page

Sentinel Event Policy and Procedures - Joint Commission

Joint Commission website search for "Sentinel Event"

JCAHO Sentinel Event Flow Chart

Here are two books which should be in the library of any medical malpractice lawyer:

Sentinel Events: Evaluating Cause and Planning Improvement, Second Edition

Root Cause Analysis in Health Care: Tools and Techniques, Third Edition

June 1, 2006

Preparing for the defense medical expert’s deposition

A very helpful resource for any Kentucky injury attorneyJanabeth Evans Taylor, R.N., R.N.C co-aouthered a wonderful article for ATLA's TRIAL Magazine on preparing for defense medical expert's deposition.

Brief excerpt:

Here is a general list of information to collect for the medical expert’s deposition. Consider adding these items to your subpoena duces tecum for deposition. Request copies of

• the expert’s license to practice medicine

• certificates, memberships, and awards

• applications for continuing medical education credits for seminars and courses attended

• the expert’s Ph.D. thesis

• published abstracts and articles

• materials presented at professional meetings covering the issue in your case

• patents held by the expert or his or her employer (The Statement of Claims in patent documentation may explain what hazard the invention should ameliorate; for example, a needle guard may be intended to prevent perforation of vital organs.)

• a list of authorities in the lawsuit’s subject that the expert deems to be reliable

• all documents provided to the expert for review in the case.

—Betsey Herd and Janabeth Evans (Taylor)

READ THE ENTIRE ARTICLE: Preparing for the defense medical expert’s deposition

May 30, 2006

For the Kentucky Medical Malpractice Lawyer: Motion to Compel Sentinel Event and Peer Review Materials

Kentucky medical malpractice attorneys: Do you request sentinel event and peer review information in all your medical malpractice cases? You should.

All hospitals eligible for federal funding are accredited by the Joint Commission on Accreditation of Healthcare Organizations (the “JCAHO”). As part of its accreditation survey, the JCAHO reviews its members’ processes for identifying, reporting and responding to “sentinel events”. The purpose of these guidelines is to improve patient outcomes and avoid malpractice resulting in serious personal injury or wrongful death.

In 1996, the JCAHO promulgated “Sentinel Event Policy and Procedures”. They state in part:

I. Sentinel Events
In support of its mission to improve the quality of health care provided to the public, the Joint Commission includes the review of organizations’ activities in response to sentinel events in its accreditation process . . .

◆ A sentinel event is an unexpected occurrence involving death or serious physical or psychological injury, or the risk thereof. Serious injury or loss of limb or function.
◆ Such events are called “sentinel” because they signal the need for immediate investigation and response”

II. Goals of the Policy

“The goals of the policy are four-fold:
◆ To have a positive impact in improving patient care.
◆ To focus the attention of an organization that has experienced a sentinel event on understanding the causes that underlie the event, and on making changes in the organization’s systems and processes to reduce the probability of such an event in the future.
◆ To increase the general knowledge about sentinel events, their causes, and strategies for prevention.
◆ To maintain the confidence of the public in the accreditation process”

As part of the sentinel event policy, the JCAHO requires health care organizations to perform a “root cause analysis” when a sentinel event occurs, and to use “the information from the data analysis to identify changes that will improve performance or reduce the risk of sentinel events.” To maintain JCAHO accreditation, healthcare organizations must also “ensure that the processes for identifying and managing sentinel events are defined and implemented.”

Click here for a sample Motion to Compel Production of Sentinel Event and Peer Review Documents

May 24, 2006

For the Kentucky Trial Lawyer: Do you Bates Stamp Your Documents?

I was reading the blog DayOnTorts.com (pubished by John Day, trial lawyer extraordinaire from Nashville, Tennessee) today and noticed an interesting blog entry which asked the question:

Do You Bates Stamp Documents ?
You should. Or should do something like it.

I agree wholeheartedly with John’s answer.  In all our medical malpractice cases, I scan records in and use an Adobe Acrobat PlugIn (what's that?) called StampPdf to electronically “Bates Stamp” documents in as many cases as possible.

To read his rationale, click below and read the rest of the post:

Day on Torts: Managing Your Practice.

May 23, 2006

For the Kentucky Accident Lawyer: Louisville Seelbach Hilton Hotel to host KATA convention; David Ball to speak

2006 KATA Annual Convention and Seminar

Sept. 6-8, 2006 at the

Seelbach Hilton Hotel Louisville, Ky.

Featuring a half-day session with Trial Consultant and Author David Ball

David Ball’s frankly delivered, out-of-the-box, “unlawyerly” lessons will revolutionize the way you present a damage case to a jury. Whether you have tried dozens of cases or have yet to try even one, this presentation will have a profound impact on your ability to connect with a jury.

David Ball, PhD., a nationally known jury consultant and trial skills trainer, is a leading authority on adapting audience persuasion techniques from theater and film to in-court use. Trained in communications, theater, and film, his credits as a director, producer, and playwright include the Guthrie Theater, Broadway and off-Broadway, Carnegie Mellon University, and Duke University, where he chaired Drama.

He has taught law students at Duke, the universities of North Carolina, Minnesota, and Pittsburgh, and Campbell University as Adjunct Professor of Law. He writes for a variety of law publications, and his NITA book Theater Tips and Strategies for Jury Trials is a national best-seller.

May 3, 2006

For the Louisville Injury Lawyer: LBA posts HIPAA compliant forms for download on website


On April 14, 2003, the Health Insurance Portability and Accountability Act (HIPAA) privacy regulation took effect and created standards that most every entity and provider in the medical industry must adopt in order to protect the privacy of patient information.

One section of the regulation will have a significant impact on the process by which attorneys may obtain patient information from medical providers. In the past, attorneys have provided medical providers with a subpoena or written request for such information, and in many cases patients have signed a short authorization to release such records to attorneys.

HIPAA, however, changes the rules by which attorneys may obtain patient information. If the patient signs an authorization to release records to an attorney, the authorization must contain specific language. If an attorney sends a subpoena to obtain the documents, there must be additional action taken before the records can be released.

If patient information is released without the proper steps being taken, there could be potential violations of HIPAA. That is why the Louisville Bar Association (LBA), the Kentucky Academy of Trial Attorneys, and other groups have taken action action to address this issue. The LBA hosted a seminar on this subject where attendees obtained sample forms and additional information in an attempt to standardize, as much as possible, the process by which attorneys obtain patient information. This seminar is available on video from the LBA.

The LBA wanted to make you aware of this material so you will know what must be done in order to release patient information. Forms are available for download from the right column of this page. We encourage you to provide a link to this information on your website.

The LBA believes that this information may assist both attorneys and health care providers in complying with HIPAA and preventing significant disruptions of needed disclosures of patient information.

Should you have any questions about this matter, please do not hesitate to contact Kimberly Farmer by phone, (502) 583-5314, or email (kfarmer@lba.win.net).