St. Joseph Michigan Criminal Defense Blog

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Medical Malpractice Claims

Defensive Medicine

Medical Malpractice Claims

Defensive Medicine: Many Doctors Over-Treat Patients Due to Fear of Medical Malpractice Claims

The skyrocketing cost of medical malpractice insurance premiums has changed the way many physicians practice medicine, prompting some to refuse certain patients with complex medical problems or to order unnecessary tests on other patients. Such defensive medicine can involve unwarranted lab tests or x-rays or even more invasive procedures to help ensure certainty regarding a diagnosis. Even more troubling for the most vulnerable patients, defensive medicine can result in a surgeons refusal to perform a complex operation on a sick patient for fear of a negative outcome and eventual malpractice lawsuit.

A recent study published in the Archives of Internal Medicine revealed that many patients receive too much medical care and treatment. The study found that 42 percent of American primary care physicians believe that patients receive more aggressive medical care than is necessary. The study also revealed that many doctors feel they must provide excessive care to patients, due in large part, to concerns about being the subject of medical malpractice claims.

The study involved 627 physicians, most of whom had practiced medicine for nearly 25 years. Of the doctors surveyed, just 6 percent expressed concern that patients were receiving too little care. Most doctors reason that they could risk medical malpractice lawsuits if they fail to take every conceivable measure to cure or prevent an illness. They admitted over-treating and over-testing, in order to attain clinical performance standards, despite the small amount of time they have to actually consult with each patient.

The vast majority of physicians surveyed a €“ 83 percent a €“ believe they could be sued if they opted not to order every test that is indicated for a particular situation. On the other hand, just over 1 in 5 doctors believe they could be sued for ordering an unnecessary test.

Nearly half of the survey respondents reported that nurse practitioners and physician assistants provided more aggressive treatment than primary care doctors, and 61 percent indicated that sub specialists also provide more aggressive treatment. Experts believe that defensive medicine could be mitigated if doctors more effectively communicated with their patients about their illness and the pros and cons of various tests.

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Medical Marijuana Caregiver Protection

Court Denies Medical Marijuana Caregiver Protection Under Statute

Medical Marijuana Caregiver Protection

A recent Court of Appeals case has put further limits on the already narrow protections of the Michigan Medical Marihuana Act (MMMA). This time the court withdrew the protection of caregivers the ones who many qualified patients turn to for a safe supply of medical marijuana if those caregivers did not meet a certain standard of care previously reserved for medical professionals.

Under the plain language of the statute, qualified patients and their caregivers are entitled to a presumption that their marijuana use was for medical purposes as long as they are complying with the statute. But the court rule that the presumption is only between the patient and the court. Caregivers cannot rely on the fact that a person presents a medical marijuana ID card to assume that presumption will extend to them.

Instead, the court ruled that because the caregiver in the case could not describe the debilitating condition and the treatment regimens for each of his qualified patients, that was sufficient evidence to refute the presumption of medical use. The prosecutor in the case had questioned the caregiver about the patients’ conditions, doctors, and advised treatment. When the caregiver couldn’t answer the question, the trial court and later the appeals court, said that he could not have been assisting them in their medical use without that knowledge.

As a result of this case, licensed caregivers under the MMMA, will now be held to a standard of medical care in order to qualify for protection from prosecution under the statute. In particular, caregivers need to be prepared to ask:

  • Who their patients’ treating physicians are;
  • Whether the physicians are continuing treatment;
  • What the patients’ debilitating conditions are;
  • What the recommended dosage of marijuana is for each patient;
  • How long each patient should receive marijuana treatments.

Without that information, a caregiver may be subject to prosecution even though they carry a medical marijuana ID card and only provide to qualifying patients. If you have been charged with marijuana possession or distribution, call Attorney Peter J. Johnson at 269-982-1100 for a consultation.

*Please note:  Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above. This post is not intended as legal advice and may not apply to your particular case. It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.

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Personal Injury Lawsuits

Mediating Personal Injury Lawsuits

Personal Injury Lawsuits

Mediating Personal Injury Lawsuits

Personal injury cases run the gamut from slip-and-fall accidents to auto wrecks. Insurance companies are often involved, and most parties generally want to resolve cases as economically as possible. Mediation is one option to accomplish this.

Mediation is a form of alternate dispute resolution (ADR), in which the parties voluntarily agree to work with an independent third party a mediator to resolve their disputes. Unlike a court trial where one party is the winner and the other party is the loser, mediation involves finding a workable solution to which all parties can agree. A mediated settlement is formalized with a legally binding contract signed by all parties.

Mediation is a non-binding procedure, meaning that no party can be forced to consent to an agreement. The mediator does not have the decision-making authority that a jury, judge or arbitrator has. Even if the parties previously agreed to mediate their dispute, any party is free to walk away from the process and pursue the matter in the courts.

Mediation also affords the parties a level of confidentiality that is not available in court cases. Parties cannot be forced to disclose information. If a party opts to make admissions or disclose confidential information, those statements or information cannot be introduced in court or otherwise used outside the scope of the mediation itself. This confidentiality enables the parties to freely and productively negotiate their dispute.

Unlike court trials or arbitration hearings, which are determined based on the underlying facts of the incident and the applicable laws, mediation allows parties to make agreements based on their own interests. The parties are free to allow their choices to be guided by business interests or personal preferences. When the dialogue within a mediation is focused on each party as true interests, a mutually satisfying result is often possible.

Parties to a personal injury dispute often choose to mediate the case to avoid a trial involving significant attorney as fees and other costs and an uncertain outcome. When both sides are faced with uncertainties regarding the outcome, a mediated settlement agreement can be a good solution. Furthermore, taking a case to trial can take months or years and usually results in at least one party being unhappy with the outcome.

In mediating a personal injury case, the parties and their lawyers work with the mediator to devise a settlement that everyone can live with. Plaintiffs can be compensated for their property damage, medical costs, lost income, and pain and suffering. On the other hand, defendants and their insurance companies can end up paying far less than it would have spent in legal fees and costs to defend the case at trial, and a potential sizable jury award. A good mediator will help all parties see the strengths and weaknesses in their respective cases, enabling them to compromise and arrive at a result which is acceptable to both.

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