Making a Record for Appeal

Author: Amy L. Miles

A crucial component of obtaining a judgment in the trial court is the ability to keep favorable judgments when the opposing party seeks an appeal or to overturn unfavorable judgments when the trial court has erred.  While a case is being litigated on the trial level, the focus is most often on just getting to the judgment.  A party and its attorney should be aware, however, that if an appeal must be taken, the appellate courts can consider only the arguments and facts on record in the trial court—and nothing more.  A party cannot go back and “fill in” missing facts or arguments for the appellate court.    Therefore, it is essential to ensure that every argument and fact needed to win your case is presented to the trial court—even when those arguments and facts do not seem to be what will convince the trial court to make its ruling.

The reality is that the same fantastic facts and arguments that may sway a jury—or even a trial judge—may not necessarily be the facts and arguments that will sustain your case through an appeal.  The best way to ensure long-term success in a case is to be familiar with the case law controlling the issues that are disputed in your case.  It is in the case law that a lawyer finds specific interpretations of controlling statutes and contract terms, discussions of specific facts that persuaded the court to rule as it did, and legal reasoning that can point to what must be shown in order to prevail.  Armed with this knowledge, a trial lawyer will be equipped to ask the right questions and get the answers needed to determine the case.  The trial lawyer will also be able to make the specific arguments, based on controlling cases, which will preserve the issues if needed for appellate court consideration.

McCumber Daniels’ appellate practitioners stay abreast of the case law as it is released from the appellate courts.  They are already familiar with controlling case law in many areas, so they are in a position to assist in ensuring that the facts necessary to prove the case and the arguments required to win are being discovered and presented at the trial level.  When novel issues arise, the appellate lawyers have the research experience and skills to quickly and efficiently determine what facts and arguments must be presented to prevail on those issues—or to propose new arguments, if necessary, that are well-grounded in established case law.

This preliminary footwork during the pre-trial and trial stages of a case ensures that the facts and arguments developed are solid and preserved.  It gives you a sound basis on which to make decisions about resolving the case and gives the trial court a solid foundation for its ruling.  Then, if it comes to an appeal, the research is largely done and the facts are well-established, reducing the usual delay and costs that accompany appellate review.  Further, the appellate court has everything in the record it needs to conduct a complete review of the case.  You can depend on our appellate department not only to handle appeals when they arise, but also to assist you and your trial counsel as you progress through the litigation process to accomplish the best results possible in the most efficient and cost-effective manner.

Legal Update: Pennsylvania Dentists are now Required to carry Professional Liability Insurance

As of today, August 21, 2012, all Pennsylvania dentists are now required to carry medical malpractice insurance.  On June 22, Pennsylvania Governor Tom Corbett signed in Senate Bill 388 mandating that dentists purchase professional liability insurance policies of at least $1 million per claim.

Pennsylvania is now the 10th state, including Florida, which requires dentists to carry malpractice insurance.  According to the National Practitioner Annual Report 2010, Pennsylvania had 2,777 reports of dental malpractice and ranked third nationally falling behind only California and New York for the time period of September 1, 1990 through December 31, 2010.

Dr. Bernard Dishler, President Elect of the 5,500 member Pennsylvania Dental Association, said his organization supports the legislation.   “The PDA believes it in incumbent on the dental profession to align with other health care professionals who practice under similar requirements and we support SB 388 as written,” Dishler said.

The bill was unanimously passed by State House, Senate and the Governor.  The goal of the bill is to provide dentists protection from major financial losses in the case of medical error.

Author: Stephanie Hedrick, Client Relations

A Picture is Worth a 1,000 Words

Author: Fred J. Hughes

A recent study published by the Journal of the American Academy of Pediatrics shows that including a patient’s photo on an order verification screen within the Electronic Medical Record (EMR) can significantly reduce the number of orders entered into the wrong patient’s records.

The Children’s Hospital in Colorado conducted a hospital-wide quality improvement program to improve patient identification and verification practices.  In 2009, the placement of orders on the wrong patient’s chart was the second most common reason that care was provided to the wrong patient, and accounted for 24% of reported errors.  Due to these findings, the hospital upgraded their EMR systems to include a computerized order entry verification process which included a centrally placed photo of each patient.  In 2010, the number of errors was dramatically reduced (12 reported cases) and in 2011, only three cases were reported, all of which did not have a photo included in the EMR.

It goes without saying that reducing errors should lead to a reduction in medical-legal actions.  Given the mandate that the health care industry must begin to utilize electronic medical records, all health care facilities are going to face a variety of challenges in implementing and operating such a system.  One major challenge involves treatment errors related to medication orders being placed in the wrong patient’s record and then being carried out for the incorrect patient.  The Children’s Hospital Colorado study shows us that the simple use of a photograph within the record can reduce those errors, improve patient safety, and support better patient outcomes.  This will in turn improve the facility’s community relations and help to avoid the costs, both physical and economic, associated with litigation.  This picture just may be worth much more than 1,000 words.


Disclosure, Apology and Offer

Authors: Starlett M. Miller and Stephanie F. Hedrick

“I’m sorry” – One of the most powerful phrases a person can say.  However, when it comes to medical errors, doctors have been reluctant to admit to mistakes when they inevitably happen due to the potential for a patient or their family bringing a legal action.  Many states are now passing laws commonly referred to as “apology legislation” which is designed to allow medical professionals to express empathy for and take ownership of an unforeseen outcome without the risk of retaliatory litigation based solely on the statements made at the time of the apology.

Recently, Massachusetts joined the growing list of states that have enacted the “Apology Approach” to facilitate the early resolution of medical malpractice cases.  On August 6, 2012, Massachusetts Governor Deval Patrick signed the healthcare cost control bill, known as “Disclosure, Apology and Offer” (“DA&O”), a joint initiative by Massachusetts physicians and lawyers to utilize a more remorseful approach to handling medical errors and malpractice.  “The new initiative is a fundamental shift from the culture of blame and denial that plagues the medical liability system,” said Alan Woodward, MD, chair of the Massachusetts Medical Society’s (“MMS”) Committee on Professional Liability and a past MMS president.  Woodward stated, “It will encourage transparency and honesty, protect the rights of patients who have been harmed by avoidable events, improve patient safety, reduce litigation, and ultimately cut health care costs.”   The new model includes provisions for a six-month, pre-litigation resolution period that affords the time to go through a DA&O process with the sharing of all pertinent medical records by the patient, full disclosure by providers, and makes inadmissible all statements of apology in litigation.   Finally, the organizations work with their liability insurers to give patients a fair and timely offer of financial compensation.  By giving patients the opportunity to receive transparent information and prompt financial recourse, the hope is that the court system would be used only as a last resort.

The enactment of state laws protecting healthcare providers’ apologies in the event of a medical error not only lend more credibility to the profession, but have also shown to provide “the greatest reduction in average payment size and settlement time in cases involving more severe patient outcomes.”   More states may follow the example set by Massachusetts and enact laws that preclude the admissibility of apologies by providers in medical malpractice actions in order to reduce the costs associated with medical malpractice because apologies are a “mitigating factor in whether patients decide to litigate” and allowing these statements without fear of repercussions, “expedites the settlement process.”

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