Lawyers try new tacks in malpractice suits

In the Courts. By Tanya Albert, AMNews staff. Feb. 9, 2004.

Just as quickly as medical knowledge and disease treatment options increase, so too do advances in the strategies lawyers use to bring medical malpractice lawsuits.

Last year, an Ohio jury awarded $3.5 million to the family of a man who died of a heart attack.

His family claimed that the physician didn't do enough to help the man lose weight and stop smoking, given that physicians now know how smoking and excess weight contribute to heart disease and given the significant advances in treatment.

It is still rare for a plaintiff to prove that type of medical malpractice, and that case is now on appeal. But even as it winds its way through the system, other new plaintiff strategies are being tested.

And medical advances are not the only contributor to changing courtroom climates.

New laws, including tort reforms passed in Texas and Florida, are influencing what cases lawyers choose to file, as are realizations that torts used in other areas, such as product liability, could apply to how health care is delivered.

"I'm seeing more creative approaches, and I don't mean it in a pejorative sense," said Tampa lawyer Kevin Napper, a shareholder at Carlton Fields law firm and a 20-year veteran who represents physicians, nurses and hospitals.

Florida resident Miriam Kamin, along with her husband and son, filed a medical malpractice claim against Baptist Hospital of Miami and several of its physicians in 2002. Instead of claiming the standard of care wasn't met, the woman argues that she should have been referred to a hospital down the street to have a low-grade pancreatic tumor removed.