The Conference Room--Answers to Questions on N.C. Law

HIPAA

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With our increasingly interconnected world and the rise of identity theft and other similar invasions of privacy, more and more laws and regulations are being enacted to bolster traditional common law and wall off private information from the public. One such body of law is contained in The Health Insurance Portability and Accountability Act. More commonly known as “HIPAA,” this law was passed by Congress in 1996 to set a national standard for electronic transfers of health data. At the same time, Congress saw the need to address growing public concern about privacy and security of personal health data. The task of writing rules on privacy eventually fell to the U.S. Department of Health and Human Services (HHS). After several modifications, DHHS issued the HIPAA Privacy Rule.

HIPAA set a national standard for the privacy of medical records. A state can enact greater privacy rights, but HIPAA sets the minimum that must be followed. Under HIPAA, the patient has a right to their medical records, although the provider can bill for the cost of copying them.

When you first go to a doctor or other medical provider, they should provide you with a notice of privacy practices that give you more information about how your medical information is shared. Including in that is your right to an accounting of disclosure of your health information, how to file a complaint, and how to ask for special confidential communications (for example telephone calls to your home rather than work for communications regarding your health care and treatment).

Exceptions to the protection of HIPAA are information used for your treatment, drug companies who are issuing recalls or warnings of medications, business associates (for example, if your doctor provides your information to an account for medical billing purposes) The health care provider is supposed to have a contract that ensures that the business associate properly handle the information, but is not required to check and supervise.

The patient can also authorize the health care provider release the information to a third-party. I usually run into this exception when dealing with personal injury and medical malpractice lawsuits. Most people understand that if they are trying to recover for medical bills and injury, they have to show their medical records and bills to the jury. However, the plaintiff is required to turn over medical information before a trial to a defendant if he asks for it in discovery, even for past medical records, if it could possibly lead to discoverable evidence. One common defense is that the injury the plaintiff complains of did not occur due to the defendant’s negligence, but rather, due to a pre-existing condition. Therefore, evidence of a plaintiff’s pre-existing medical condition, including her past medical records, is discoverable. This is thought of as a voluntary disclosure since a plaintiff is not required to file a lawsuit.

If a medical provider releases your information in violation of HIPAA, you can not file a lawsuit. There is no “private right of action” with HIPAA. What you can do, is first complain to the medical provider’s privacy officer. If you are not satisfied, you can file a complaint with the U.S. Department of Health and Human Services. You have 180 days to file such a complaint although the HHS can extend it at need. The HHS can levy fines against the health care provider, but you won’t get the money like you would in a private right of action lawsuit.

While some states may have additional privacy rights that would be actionable in a civil lawsuit (and therefore an aggrieved plaintiff could recover damages), North Carolina is not one of them. However, in North Carolina, a HIPAA violation can be used as the basis for the tort of Negligent Infliction of Emotional Distress. This means that the plaintiff can file a suit and recover damages. However, an NIED suit would have to show more than just a violation of HIPAA. The plaintiff would have to show “severe emotional distress” which North Carolina courts have held to be a diagnosable condition. If the disclosure of your private health records didn’t cause you to have psychiatric or other counseling, then you probably won’t have a case. In addition, the suit would fall under the more strict medical malpractice rules so there will be additional hoops to jump through, including finding an expert in the same specialty to testify as to why the HIPAA violation was a breach of the standard of care.  

--Bradley A. Coxe is a practicing attorney in Wilmington, NC who specializes in Personal Injury, Medical Malpractice, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678. 

Curb Your Enthusiasm

The other night, I was watching an old “Curb Your Enthusiasm” episode on DVD. The episode was a typical half hour of misunderstandings and wild coincidences. Larry’s friend and business agent, Jeff is in the hospital for some surgery to correct his snoring. For several funny reasons I won’t go into here, Larry inadvertently infuriates Jeff’s doctor who then goes to the operating room and shaves Jeff’s head. Jeff then wakes up bald and fails to close a million dollar deal with Ben Stiller. Jeff is convinced that the reason he lost the deal was because he was bald. He shouts to Larry “I’ll sue!”

So that got me thinking. Is this a real case? Is it medical malpractice? What would I do if Jeff walked into my office? Could this be one of those urban legend “frivolous lawsuits?”

First, is this even a medical malpractice case? Shaving somebody’s head doesn’t sound like a medical case and isn’t even negligence if the doctor did it intentionally. However, because shaving is a normal part of some surgeries (but not a snoring surgery) it would be a “medical treatment” and therefore would fall under medical malpractice law.

Now that we know its medical malpractice, we have to see if there is a breach of the standard of care. It would seem obvious that shaving somebody’s head that had nothing to do with the actual surgery and maybe it is. Nevertheless, under North Carolina law, an expert doctor has to give that opinion, even before any lawsuit is filed. That expert has to be in the same or similar specialty and be familiar with the community or a similar sized community.

Contrast that requirement with a normal lawsuit. If Jeff had fallen asleep in a barber chair who had then shaved his head, he could file a lawsuit the next day and argue to a jury that this was not with his permission or not what a reasonable person would do. No need to get an expert barber to testify.

Assuming we have retained an expert doctor to review the medical records and solemnly pronounce a breach of the standard of care that caused the damage (baldness) the real question is one of damages. Unless Ben Stiller will admit that he didn’t hire Jeff because he was bald, the damages will be limited to a few weeks of embarrassment and baldness, and probably the extra medical bills that Jeff had to pay for the failed operation. This is one more factor against medical malpractice. Again if this was ordinary negligence of a barber, just these damages may be worth a lawsuit. But, with the cost of medical experts, I don’t see a jury giving Jeff enough money to make a medical malpractice case worthwhile. I never want to take a case where it costs my client more than what he could win.

As silly as this is, it does show one of the biggest limitations of medical malpractice cases and why cries for tort reform from medical malpractice insurance companies are overblown. Medical mistakes happen all the time, but unless there is serious and permanent injury, lawsuits are simply too expensive to be used to rectify medical negligence.

--Bradley A. Coxe is a practicing attorney in Wilmington, NC who specializes in Personal Injury, Medical Malpractice, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678. 

My Not-So-Hero, Zero

There has been a lot of justifiable backlash over “zero tolerance” policies for weapons at schools. The tale of the cub scout proud of his pocket knife with fork and spoon has prompted many people to cry out “where is the common sense of these school officials?” My practice really isn’t geared to this type of litigation (although I know attorneys who do) but I’d like to make the connection between these zero tolerance policies and some types of tort reform.

Zero tolerance for weapons in schools sounds like a great idea. Don’t let anybody wiggle out of the rule because of their race, wealth, Mom is the principal, or anything else. In practice though it requires a third-grader to be suspended because her grandmother sent a birthday cake to school, and a knife to cut the cake for the teacher. With zero tolerance, there is no room for common sense. It is a robotic and undemocratic rule of law.

Caps on medical malpractice damages or pain and suffering damages is also a form of this zero tolerance. The jury system allows ordinary citizens to come and decide after a judge explains the law, what the facts are of a case. Part of the facts is what actual damages does this person show? Sometimes, if they find maliciousness, they can also answer, what amount would punish this person or corporation enough that they won’t do it again? (punitive damages) Then the judge, after his ruling, can apply his own common sense and order a new trial if the jury’s verdict are far out of line with what the facts are that were presented. A cap on damages is a state legislature deciding, without hearing any facts of a case, and possibly years before the case even occurs, that some amount of money is too much, even if a jury and judge who hear the actual evidence and circumstances think otherwise. A unanimous jury verdict is the purest form of democracy that any of us will experience. An inflexible cap or rule, is the opposite.

-Bradley A. Coxe is a practicing attorney in Wilmington, NC who specializes in Personal Injury, Car Accidents, Medical Malpractice, Contract and Real Estate disputes, and all forms of Civil Litigation.  Please contact him at (910) 772-1678. 

The best way to reduce medical malpractice lawsuits

The North Carolina Medical Board has made positive steps in the past few years to better regulate and discipline doctors in the state.  However, a new bill in the North Carolina Senate is making it harder for the Medical Board to regulate licensed medical doctors.  Among other things, it requires a panel, rather than a single board member to start an investigation; requires two experts rather than one to testify for the Board at a hearing; and allows only one non-physician to sit on the hearing committee.  The Medical Board attorney calls the changes “catastrophic” and some say it amounts to "Legislative Malpractice."

While some doctors may view this as the same fight they have against “frivolous malpractice lawsuits,” in my opinion, the more the Medical Board protects the patients of North Carolina and disciplines and removes bad doctors, the less malpractice lawsuits will occur.  When the Board doesn’t do its job, civil law and medical malpractice lawsuits fill the vacuum.  In fact, the Medical Board, if given enough power and a strong mission, is better suited to govern doctors than the court system.  I turn down medical malpractice cases every month, not because there was not bad, or even horrific, medical care, but just because the patient was lucky enough not to be permanently damaged.  The Medical Board can stop bad behavior from bad doctors, before it causes a future patient permanent damage. 

--Bradley A. Coxe is a practicing attorney in Wilmington, NC who specializes in Personal Injury, Medical Malpractice, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678.  

You are the Brakes on a Runaway Jury

I wrote earlier about medical malpractice cases in North Carolina and why they are so difficult to start and win.  Briefly, there are special procedures in North Carolina to make sure that medical malpractice cases that are brought in the courts have merit.  Aside from those special restrictions, in every civil case in North Carolina, there are several brakes on frivolous lawsuits and runaway juries.  A North Carolina judge in every case in North Carolina has several opportunities through motions to dismiss, motions for summary judgment, and motions for directed verdict, to totally end a “frivolous” lawsuit before a jury decides.  In addition, the judge can even impose sanctions on a party or an attorney who brings a lawsuit without merit. 

 

Aside from the legal professionals, a jury of normal people, chosen by both sides of a lawsuit, hear the relevant facts and rule not only for who is at fault, but how much damages they should get based on the law the judge gives them.  It takes the unanimous consent of 12 people to award both liability and damages.   Think about that.  Get 12 of your friends together to go to lunch and propose some ridiculous extreme lunch idea, like “let’s drive to Raleighand eat at the McDonalds in the RDU airport!”  Do you think you could get all 12 of them to agree?  In a lot of jury deliberations, one or two jurors may want to give a claimant a large amount of money that is close to or outside the most the evidence would suggest, and others may decide that the same claimant get much less than the evidence shows.  What usually happens is the jury comes to a compromise number that is reasonable. 

 

On the rare occasions when they don’t, the judge has yet another opportunity to put the case back on a reasonable road.  He can render a judgment notwithstanding the verdict, or a new trial for an excessive verdict.  Then there is the appeals level, another opportunity for a case to be tossed out and sanctions awarded. 

 

What “tort reform” usually means is politicians in Raleigh decide that no matter what the facts of a case or the law of a case say, somebody’s damages are limited to an arbitrary amount.  With that, they are saying that YOU and your neighbor are not smart enough to listen to a judge, decide what the facts of a case say about how much a claimant should receive, and argue against anybody who is unreasonable, and that locally elected judges are not smart enough to stop a jury if it gets out of control. 

 

Below is a nice video that shows that the system works.  It briefly addresses the famous “McDonald’s coffee cup case” and shows how, once people hear some of the facts that the jury heard, they change their minds, and the “fancy pants” case about the judge who sued the dry-cleaners.  Everybody knows that the case was frivolous, but nobody seems to know that the system took care of it without any additional help from the state government. 

 

--Bradley A. Coxe is a practicing attorney in Wilmington, NC who specializes in Personal Injury, Medical Malpractice, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678.    

Medical Malpractice in North Carolina

      I was at a Continuing Legal Education class the other day on medical malpractice.  One speaker, a gray-haired experienced medical malpractice attorney with many years experience was commenting on cases he would not take.  “I don’t take cancer cases,” he said, “I don’t take infection cases; I don’t like back surgery cases; I don’t like cases with complicated pre-existing medical record; and I don’t like informed consent cases (the doctor did something other than what was agreed to).  Now he was saying this not because he didn’t want to help people with legitimate cases, but because of the difficulty of getting a good result from medical malpractices cases in North Carolina.  The types of medical negligence cases he listed were very difficult to prove the negligence, that the injury came from the negligence, and the recovery at trial would pay back the expenses of the lawsuit. 

       Why are medical negligence cases so hard?  Some of it is built into the facts—medicine in general can get complex.  Some of it is the nature of negligence law in general, and some of it is because of special rules in North Carolina regarding medical negligence. 

      First, to establish Medical Malpractice in North Carolina, an injured patient must show that what the doctor or health care provider did or didn’t do and how that was a breach of the “standard of care.”  Just because a patient has a bad result, does not mean that the doctor breached a standard of care.  In medicine, bad things can happen even if the doctors and nurses did everything they were supposed to do.  This is one reason why my friend doesn’t like to take infection cases.  Bad infections can and do occur even when the doctor and nurses do everything correctly and within the standard of care.

      In North Carolina, the standard of care is what other doctors or health care professionals, with the same type of training and experience, in that community (or a similar community), would have done.  To prove what the standard of care is and how the health care provider breached that standard an expert witness must have reviewed the case and be willing to testify that the care did not comply with the applicable standard of care.  Only in very few cases, such as those dealing with medical instruments left in the body during surgery, is an expert witness not required.  (Presumably because even a lay person could figure out that leaving a scalpel in somebody’s body would be a breach of a standard of care).  This type of pre-filing scrutiny is not required in other types of negligence cases.

      The expert must be in the same specialty or who performs the procedure at issue in his specialty.  For example, an ER nurse can’t testify as to what the standard of care is for an ER doctor; and an ER doctor can’t testify against a neurosurgeon.  The expert must also have been in active practice or teaching in the past year.  Finally, the expert must show that he is familiar with the local standard of care or the standard of care in a demographically similar area with similar health care facilities. 

       The purpose behind requiring an expert opinion and the strict requirements on what the qualifications of the expert have to be, is to prevent cases being filed with little or no merit and to guard against “professional experts,” whose only recent experience is testifying against other doctors.  Whether or not those extra restrictions on a medical negligence claim are needed or effective is a topic for another post. 

      Second, after the patient proves that there was a breach of the standard of care, the injured patient has to show that the breach actually caused damage.  This is another reason why infection cases are very difficult.  Not only can infection occur when the medical professionals follow the standard of care on infection prevention and treatment, but on the times when they don’t follow the standard of care, frequently no infection results.  Causation is also why cancer cases are difficult.  Usually the fact pattern of a possible cancer case is where a doctor failed to diagnose cancer by misreading or failing to order different medical tests.  The patient then discovers the misdiagnosis a few months when she finds out she has and had cancer.  The problem is that even if the first doctor had correctly diagnosed cancer a few months earlier, because cancer is difficult to impossible to treat, an expert can’t say that the delay in cancer treatment made any difference. 

      Third, even if you have a breach of the standard of care that causes damages, a patient considering a medical malpractice action must consider the costs of the lawsuit against the damages and actual injuries from the medical negligence.  Even if your attorney takes a medical malpractice suit on a contingency basis (meaning he gets an agreed upon percentage of the judgment or settlement) the expenses are usually billed to the patient.  In a non-medical malpractice case, these expenses are usually not large and consist of filing fees, copy charges, etc.  But in a medical malpractice case, the experts that both sides are required to have can and do bill at very high per hour rates.  Depending on the number of experts and complexity of the case, the expenses for medical malpractice cases can run into tens of thousands of dollars.  A medical error that results in some additional treatment and even a longer hospital stay would not be economically feasible to file.  You don’t want to spend $30,000 to win $20,000.

      Every case is different, and I encourage everyone to consult with an attorney or several attorneys regarding a possible medical malpractice action as soon as you can.  Medical Malpractice actions, like all other civil actions, have a statute of limitations that limits the time you have to file a legal action. 

--Bradley A. Coxe is a practicing attorney in Wilmington, NC who specializes in Personal Injury, Medical Malpractice, Contract and Real Estate disputes and all forms of Civil Litigation.    

N.C. Medical Board takes a positive step

Both the legal profession and the medical profession are to a certain degree self-regulating.  They both have non-governmental, independant bodies that establish rules, guidelines and professional ethics for their members.  However, the organization governing lawyers, the North Carolina State Bar, has been far more active historically in disiplining its members than the corresponding medical organization.  Recently however, that organization, the N.C. Medical Board, has taken a positive step to share consumer information with the public. 

Under new rules recently approved, they will post malpractice payouts on its Web page, www.ncmedboard.org, starting in fall 2009. According to this article, included will be:

SETTLEMENTS, VERDICTS AND JUDGMENTS OF AT LEAST $25,000. The board originally proposed posting all payouts, but doctors argued that amounts less than $25,000 reflect so-called "nuisance lawsuits" that they say are often settled for expediency rather than merit. The medical board determined that 90 percent of payouts would still be reported.

MALPRACTICE PAYOUTS SINCE OCT. 1, 2007. By adding each year after that start day, the Web site eventually will maintain a payout history that will go back seven years.

KEY DATES, including when the incident occurred and when the payout was made. The information will not identify patients.

WHETHER THE CASE LED TO DISCIPLINE, based on the board's review of the care that prompted the legal action.

AN OPPORTUNITY TO EXPLAIN. Doctors and physician assistants who have made payouts can give a brief statement about the circumstances of the case.

One fear has been that publishing settlement information would discourage future settlements that until now, typically have been confidential between the parties.  However, the N.C. Medical Board has reviewed this practice implemented by other state medical boards and found no evidence that it has a chilling effect on settlements.

In my opinion, the more the N.C. Medical Board does in releasing negative information about its members and holding them to a higher standard, the more likely it is that medical malpractice, and medical malpractice lawsuits, will decrease.      

Medical Malpractice pays well--for insurance companies

This article from the N&O up in the big city of Raleigh (motto:  Where Barney Fife goes to Party), is just one piece of evidence that any medical malpractice "crises" is simply not accurate.  First, consider that North Carolina has mostly resisted the radical "tort reform" wave that is sweeping the county.  Despite that, the article reports how the largest medical malpractice insurance carrier in North Carolina made enough money that it was paying a three million dollar dividend back to its doctors.  So the insurance company was overcharging the doctors and then convincing them it was frivolous medical malpractice suits that were driving up the cost.  The doctors then unwittingly lobby for tort reform that ultimately helps the insurance company bottom line.  Hopefully the fact that the insurance company is paying the doctors back means that they are beginning to figure out the scam.