Wednesday, October 2, 2019
"Med Mal 101: Back to Basics" is 12-part series produced by Friday, Eldredge & Clark. Written by the attorneys in the Medical Malpractice Group, the content will be delivered monthly via email and is designed to give physicians and other healthcare providers information they need to know about malpractice litigation.
Part 9 of 12:
Why Some Cases Resolve Before Trial
According to at least one study of more than 10,000 cases involving obstetric and gynecologic procedures between 2005 and 2014, approximately sixty percent of lawsuits filed against doctors were dropped, withdrawn or dismissed prior to trial.  [1] Why do so many cases end before a trial takes place?   [2]
First, some cases are dismissed on pre-trial motions where there is a legal deficiency with the case. For example, a case may be dismissed if it was filed after the expiration of the statute of limitations , if it is not filed in the proper jurisdiction, or if the parties are not properly served with legal process . Also, the case should be dismissed if the complaint fails to state facts, even if true, that would entitle the patient to legal relief.  [3]

Second, some cases are dismissed because after discovery, it is apparent that the patient does not have evidence to support his or her claim.  For example, to prove that a medical care provider has committed malpractice, there must be testimony from experts to show that the care provider's actions were below applicable standards . There must also be expert proof that the injury that occurred would not have happened anyway . If the plaintiff cannot produce such evidence prior to trial, his or her case will be dismissed because under these circumstances, there is no dispute for a jury to hear.  [4]

Finally, some cases are resolved by agreement between the parties. A "settlement" occurs when both parties agree to certain terms that are mutually agreeable to all involved. This can happen early in a case, but typically occurs once full discovery has taken place so that the parties are well advised of all of the facts and circumstances surrounding the case before it is resolved. In this way, the parties are able to work out their differences prior to going to court. 

There are many legal and factual considerations that may cause a case to end prior to trial. When faced with litigation, it is always best to consult your attorney who can advise you as to whether pre-trial resolution is appropriate.   
[1] L.M. Glaser et al, Trends in Malpractice Claims for Obstetric and Gynecologic Procedures, 2005 through 2014 , 217 American Journal of Obstetrics and Gynecology 340 (September 2017).
[2] See Jeffrey Q. Smith & Grant R. MacQueen, Going, Going, But Not Quite Gone, 101 Judicature 26 (2017) (citing Marc Galanter & Angela Frozena, Pound Civil Justice Inst., The Continuing Decline of Civil Trials in American Courts 23 (2011)). This 2002 study found that civil cases were resolved by juries in state court less than one percent of the time. This study was focused on civil cases as a whole, rather than exclusively those dealing with medical malpractice.
[3] See, e.g. Ark. R. Civ. P. 12.
[4] See, Ark. R. Civ. P. 56.  
The information was written by the attorneys in the  Medical Malpractice Group  at Friday, Eldredge & Clark, LLP.

This information is not a substitute for legal advice and should be considered for general guidance only. 

For more information, please contact one of our   Medical Malpractice Attorneys.
Medical Malpractice
Why Back to Basics?
In a recent study published in The American Journal of Surgery, the majority of general surgery residents surveyed felt that they were not aware of resources available to them in case of litigation. [1]

This is an unfortunate statistic since according to the American Medical Association, one in three physicians have been sued at some point in their career, and nearly half of physicians age 55 and older reported having been sued. [2]  

With this series, we will provide medical personnel practicing in Arkansas with a general overview of the legal process. We hope to dispel some common myths and to aid in a better understanding of what actually happens when a medical care provider is sued for malpractice. 
These articles are intended to provide general educational information only and cannot take the place of experienced legal advice.

For a complete schedule of future articles, click here.
[ 1]  Beiqun Zhao, Luis C. Cajas-Monson, & Sonia Ramamoorthy, Malpractice Allegations: A reality check for resident physicians, 217 American Journal of Surgery 350-355 (2019).

[2]  Kevin B. O'Reilly, 1 in 3 physicians has been sued; by age 55, 1 in 2 hit with suit,  The American Medical Association (Jan. 26, 2018).
OCR Reduces Annual Penalty Caps For Certain Violations Under HIPAA

Published in   Arkansas Medical News   (September/October)

On April 30, 2019, the U.S. Department of Health and Human Services (HHS)’s Office for Civil Rights (OCR) issued notification that it is lowering the maximum total penalties it may assess against covered entities and business associates for multiple violations of HIPAA Privacy, Security, Breach Notification and Enforcement Rules in a single year.

The HITECH Penalty Scheme

Under these rules, Congress initially authorized HHS to impose a maximum Civil Money Penalty (CMP) of $100 for each violation, subject to a calendar year cap of $25,000 for all violations of an identical requirement or prohibition.

Congress enacted the Health Information Technology for Economic and Clinical Health (HITECH) Act in February 2009 as part of the American Recovery and Reinvestment Act of 2009. The HITECH Act strengthened HIPAA enforcement by increasing minimum and maximum penalties. It also established different categories of HIPAA violations, with increasing penalty tiers based on the level of culpability associated with the violation.

Medical Malpractice Group

When faced with a medical malpractice claim, healthcare providers require respected, experienced counsel they can trust to defend their practices and reputations. The attorneys in our Medical Malpractice Group are devoted to the defense of physicians, nurses, practice groups and hospitals in malpractice cases, which provides unique insight into the complexities of this type of litigation. 

At Friday, Eldredge & Clark, we are focused on providing our healthcare clients with consistently talented, ethical and efficient representation before state licensing boards and in all stages of litigation though jury trial and appeal. 
About the Firm

Friday, Eldredge & Clark, LLP serves business, non-profit, governmental and individual clients in Arkansas and across the United States. It is one of the oldest law firms in the state and has been the largest Arkansas-based law firm for more than 50 years. The firm has practice areas focusing on General Litigation; Class Action and Business Litigation; Railroad; Labor and Employment; Medical Malpractice; Public Finance; Healthcare; Estate Planning and Probate; Employee Benefits; Real Estate and Commercial Transactions; and Merger and Acquisitions. Friday, Eldredge & Clark has offices in Little Rock, Fayetteville and Rogers, Arkansas.
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