Evidence Archives - The Thompson Law Firm

The Standard Is The Standard

Bill Thompson — Mon, 06 Nov 2023 14:55:42 +0000

My favorite football coach is famous for his mantra: “The standard is the standard”. In court, however, proving negligence often depends upon establishing a “standard of care” that may be vague. In medical malpractice cases, expert witnesses often testify to a national minimum standard 0f care that applies in all communities. In this interesting Florida case against a tire repair shop, the appellate court considered the application of a med mal precedent to a situation where evidence of the “standard of care” was a little more vague. Trial lawyers with experience know that this is more than just a theoretical problem – cases can be prepared to minimize if not eliminate the issue.

In Friday’s opinion, the panel for the Fifth District Court of Appeal wrote that Moyer — which concerned a medical malpractice wrongful death suit — may have found that testimony of internal policies could be admissible, but that such evidence “does not conclusively establish” a standard of care.

Read more at: https://www.law360.com/personal-injury-medical-malpractice/articles/1740726?nl_pk=029cff45-637f-44e3-babf-75563f8e0bfd&utm_source=newsletter&utm_medium=email&utm_campaign=personal-injury-medical-malpractice&utm_content=2023-11-06&read_main=1&nlsidx=0&nlaidx=13?copied=1

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Discovery of Hospital Incident Reporting and Peer Review Privilege

Bill Thompson — Fri, 15 Sep 2023 14:26:28 +0000

I have had cases like the one below with both anonymous and signed reports removed from medical charts. In one case, a doctor met me in a restaurant across the street from the hospital and delivered to me his copy of a report that had been removed from the patient’s chart. I have also been involved in cases challenging peer review privileges asserted by Hospitals. I have even secured a court order compelling a Hospital to produce JCAHO sentinel event reports. These are extraordinarily difficult issues to litigate – factually and legally. They require patience, resources, experience, and – most importantly – persistence.

This Pennsylvania case in the news today made me think of the hard work required by trial lawyers.

A Pennsylvania Superior Court panel on Thursday told a University of Pittsburgh hospital that it must make an effort to identify the author of an anonymous report regarding the treatment of a patient who died, saying the whistleblower protections of the state’s Medical Care Availability and Reduction of Error Act don’t block the hospital from revealing the author’s identity.

Read more at: https://www.law360.com/personal-injury-medical-malpractice/articles/1721860?nl_pk=029cff45-637f-44e3-babf-75563f8e0bfd&utm_source=newsletter&utm_medium=email&utm_campaign=personal-injury-medical-malpractice&utm_content=2023-09-15&read_main=1&nlsidx=0&nlaidx=3?copied=1

Click here to view the Supreme Court’s ruling in our case, Charles v. Baptist Hospital on peer review privileges.

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Univ. Of Wash. Hospital Sued Over Allegedly Lost Tumor

Bill Thompson — Thu, 06 Jul 2023 16:11:54 +0000

I’m curious because the news report doesn’t mention it – wasn’t there a repeat biopsy once they realized the first specimen was lost?

“Defendant UW lost the surgically removed tumor prior to conducting the requisite pathological review and left plaintiff without a clear diagnostic or care plan,” according to the complaint seeking medical negligence damages.

Read more at: https://www.law360.com/personal-injury-medical-malpractice/articles/1696219?nl_pk=029cff45-637f-44e3-babf-75563f8e0bfd&utm_source=newsletter&utm_medium=email&utm_campaign=personal-injury-medical-malpractice&utm_content=2023-07-06&nlsidx=0&nlaidx=17?copied=1

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Iowa Court Overturns $6M Nursing Home Negligence Verdict

Bill Thompson — Fri, 23 Jun 2023 13:09:52 +0000

On appeal, Timely Mission argues that a new trial is warranted because the jury heard improper testimony from nursing home staff members that a certified nursing assistant, Melanie Blakesley, had physically and verbally abused residents other than Weaver.

Read more at: https://www.law360.com/personal-injury-medical-malpractice/articles/1691891?nl_pk=029cff45-637f-44e3-babf-75563f8e0bfd&utm_source=newsletter&utm_medium=email&utm_campaign=personal-injury-medical-malpractice&utm_content=2023-06-23&nlsidx=0&nlaidx=6?copied=1

From the website page summarizing my experience in nursing home injuries

The health care of our elderly, particularly our parents, is an issue of growing concern. Advances in medicine continue to prolong life. About 1.6 million US citizens are functionally dependent and living in nursing facilities. That figure is expected to climb to 5 million in thirty years.

One report estimates that 250,000 people currently die each year in the US because of mistakes made by medical professionals. According to Dr. Donald Berwick of the Institute of Medicine, these figures are an “underestimate”. The Committee Chairman who wrote the Institute of Medicine’s Report had this to say:

“These stunningly high rates of medical errors – resulting in deaths, permanent disability and unnecessary suffering – are simply unacceptable in a medical system that promises first to “do no harm.”” William Richardson, Chief Executive Officer of the WK Kellogg Foundation of Battle Creek, Michigan.

Link here

My Nursing Home Abuse Page

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The Line Between Relevance and Privacy for Plaintiffs Can Be Thin (but still exists in some places)

Bill Thompson — Thu, 11 May 2023 14:23:02 +0000

An Illinois court ruled that a defendant doctor’s legal team could not have access to the plaintiff’s mental health records because they were not relevant to the claims.

“From the limited record, Dr. Rao practices at a clinic that specialized in lung issues. Plaintiff was there presumably seeking treatment for lung issues. Nowhere in the 18-count complaint do the allegations even remotely touch upon any mental health conditions, and we fail to see how Ursitti’s purported depression and anxiety would impact a failure to diagnose lung cancer,” said the opinion, penned by Justice Eileen O’Neill Burke.

Read more at: https://www.law360.com/personal-injury-medical-malpractice/articles/1606489/doc-can-t-use-patient-s-mental-health-records-in-suit?copied=1

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OR ‘black boxes’: How hospitals are borrowing from airplane technology

Bill Thompson — Tue, 18 Apr 2023 13:00:22 +0000

Whenever I read an operative report in a surgery gone bad, I wonder about the accuracy of the surgeon’s descriptions. Sometimes, the outcome and physical evidence make the descriptions untenable. We may be on the verge of something closer to a true, contemporaneous account of every surgery.

The OR Black Box system, which was developed by Surgical Safety Technologies (SST), consists of sensors and software that record video, audio, patient vital signs, and data from surgical devices. It provides multiple perspectives on an operation rather than just relying on team members’ memories. The system analyzes data and creates graphs, comments, timelines, videos, and audio claps for hospital personnel.

Here’s the link:

OR ‘black boxes’: How hospitals are borrowing from airplane technology

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‘Kindness’ Isn’t a Priority in Trial Lawyering and It Should Be

Bill Thompson — Mon, 30 Jan 2023 15:53:49 +0000

When I was coming up as a trial lawyer, I stayed hyper-focused on maintaining a variety of skills during discovery to get at the truth. My Dad used to say, “You need more than one arrow in your quiver.” More often than not, whether in depositions or hearings, combat was the rule of the day. But different people (witnesses, opposing counsel, judges), respond differently to different approaches. Reading the room is a critical part of being an effective advocate.

I’ve seen and made witnesses cry. I have angered and pleased judges. I’ve done favors for and shivved opposing counsel where I thought it was necessary.

The least valued and most underrated quality in the highly emotional world of the trial lawyer is kindness. I’ve been tough on witnesses in deposition who held out on the truth or misrepresented what I knew to be fact. I’ve taken witnesses who thought they were the smartest in the room for long rides until their fanciful arguments took them so far out of sight they couldn’t find their way back home. Over time, I learned that kindness – applied judiciously and not gratuitously – can be just as effective and rewarding. And why not be kind if you can?

“A single act of kindness throws out roots in all directions, and the roots spring up and make new trees.”

Amelia Earhart

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Hey, Pharma: What if cholesterol is not related to serious heart disease? Would you even tell us?

Bill Thompson — Thu, 13 Oct 2022 13:20:52 +0000

A BMJ study published in 2015 concluded that

High LDL-C is inversely associated with mortality in most people over 60 years. This finding is inconsistent with the cholesterol hypothesis.

You can find the BMJ study here:

Lack of an association or an inverse association between low-density-lipoprotein cholesterol and mortality in the elderly: a systematic review

While guidance for prescribing statins remains unchanged, more and more questions are being asked. The influence of Big Pharma on these decisions cannot be understated. Statin use is now so prevalent that a cottage industry has built up around studying their side effects. Dr. David Healy is a conscientious and responsible professional to follow if you are interested in the effects of Big Pharma on the FDA. Here is one of his excellent articles on the subject of randomized controlled trials and how they are run.

The Evidence that Counts for FDA

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Young Thug’s song lyrics are being used as evidence in his gang indictment

Bill Thompson — Mon, 12 Sep 2022 14:12:40 +0000

Not everyone supports allowing prosecutors to use lyrics as evidence. In “Rap on Trial: Race, Lyrics and Guilt in America” by Erik Nielson and Andrea L. Dennis, rapper Killer Mike argues that rap as an art form is a safe space where raw emotions can and should be expressed.

“Left unchecked, it has the potential to silence a generation of artists who are exercising their First Amendment right to express themselves,” he wrote. “These are voices we should be encouraging, yet our criminal justice system has consistently looked for ways to punish them.”

Celebrities have rights also. It reminds me of the campaign to silence heavy metal recording artists back when I was young. Late last week, the prosecutors started using tweets from the Defendant’s “official account” (managed by his PR team) even though he has no access to a phone in jail. The tweet at issue alleged Michael Phelps to swim 100 miles. What that has to do with the RICO case is anyone’s guess.

From the CNN story found here.

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Peer Review (still) doesn’t work

Bill Thompson — Thu, 18 Aug 2022 13:46:59 +0000

I’ve been writing about how peer review privilege encourages medical error for years now. But it keeps coming up in the news. It’s almost like nobody in charge listens to trial lawyers. lol.

The false premise that secrecy encourages patient safety measures at any level of hospital administration is a myth that should not be allowed to persist. Medical error continues to contribute to an unacceptable level of mortality in health care and there isn’t anything happening in these secret proceedings to curtail or limit the deaths and injuries. More transparency can only help.

From my 2021 post, Peer Review Privilege is Built upon a Bogus Myth

Here’s a link to the news:

Medical error: An epidemic compounded by gag laws

And here’s a link to some of my older posts on peer review.

Peer Review (my challenges to it in court)

Peer Review Privilege is Built upon a Bogus Myth (Convince Me I’m Wrong)

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