23 May Virginia: Medical Malpractice – a Lawyer’s Records
Trial is the monthly journal of the American Association for Justice (“AAJ”), formerly the American Trial Lawyers Association (“ATLA”). Its issue for May, 2016, is dedicated to “Medical Negligence”.
Under “CAPPING Plaintiffs’ Rights,” two articles in Trial cover statutory caps on damages of medical malpractice victims, whereby “insurance industry and tort reform supporters continue to thwart injured patients’ ability to hold medical professionals fully accountable”. Id. at 2. The first is “A Tale of Two Caps,” an introduction to constitutional challenges. Id. at 22-25.
The second Trial medical malpractice cap article is “FAILED EXPECTATIONS,” subtitled: “Caps have failed to achieve their proponents’ goals and instead put patients at greater risk.” Id. at 25-27. Among other things, it tracks that 9 states laudably still have no cap (Maine, Vermont, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Minnesota, and Iowa) and that 12 states insightfully have struck down caps as unconstitutional (New Hampshire, Pnnsylvania, Illinois, Knetucky, Georgia, Florida, Alabama, Arkansas, Arizona, Wyoming, Oregon, and Washington). Id. at 26.
A third May 2016 Trial article is “CLEARING THE PATH TO PATIENTS’ MEDICAL RECORDS,” which delineates patient rights under the federal HIPPA and HITECH statues. Id. at 28-34. “Patients are entitled to their medical records but often face delays and high costs for electronic copies. Federal regulations intended to streamline the process can help ensure healthcare providers comply with your client’s request.” Id. at 28. “HEALTHCARE PROVIDERS AND THEIR MEDICAL RECORDS CONTRACTORS OFTEN ARGUE THAT THE SIMPLE TASK OF PLACING ELECTRONIC RECORDS ON A CD IS DIFFICULT, COMPLEX, AND EXPENSIVE.” Id. at 34. However, in one documented case: “The Department of Health and Human Services, Office of Civil Rights (DHHS OCR) investigated and found that the hospital could put any number of pages on images from electronic health records onto a CD for only $6.50.” Id. at 29 n. 3 (emphasis added). “THE GOAL OF HIPPA AND HITECH IS TO SHOW ANY PATIENT WHETHER REPRESENTED BY AN ATTORNEY OR NOT, TO REQUEST MEDICAL RECORDS WITH EXTRANEOUS FORMALITIES.” Id. at 30. Patients and their lawyers can resort to notices of violation to the healthcare providers and their contractors and to complaints with DHHS OCR. Id. at 30, 34.
The fourth May 2016 Trial article is “MED MAL 101 FOR SMALL FIRMS,” a primer for sole and other small practitioners navigating the rocky shoals of medical negligence cases. Id. at 36-38, 41-43. Trial’s fifth article is “PROVING FUTURE DAMAGES FOR THE ELDERLY,” sub-headed: “When the defense argues that your client’s injuries and damages are negligible, here is how you can fight back.” Id. at 40.
Mr. Waterman has been a member of AAJ/ATLA for three decades, and focuses his practice on medical malpractice, vehicle accidents, and other case of wrongful death and serious personal injury. In Virginia, he is at the forefront of patient advocacy for obtaining electronic and other patient records routinely vigorously withheld by healthcare providers, including by use of the alternative state record collection statue and expeditious private enforcement by Va. Code §5.01-413(C) Subpoena Duces Tecums, Motions to Enforce the same, and adversarial hearings.
THE VIRGINIA STATE BAR REQUIRES ALL LAWYERS TO POST THE FOLLOWING DISCLAIMERS ON ALL CASE-RELATED POSTS. MR. WATERMAN’S CASE RESULTS AND CLIENT TESTIMONIALS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE. THEY DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE BY HIM.