Pleasant Law Blog (Insurance Claims, Medical Misakes, and Nursing Home Claims)

Some doctors take a reasonable position regarding patients' right to sue

A recent New England Journal of Medicine Article (link attached to title of this blog entry) discusses the dangers of federal "preemption" of state remedies for injuries and death related to defective medical devices. These physician authors acknowledge the importance, for purposes of furthering patient saftey, of preserving the people's right to legal redress for their injuries in the medical context. It's about patient safety, and common sense tells us that accountability is critical to ensure behavior changes where behavior changes are necessary. Sometimes, unfortunately, the reality is that a complaint or lawsuit (through an attorney) is the only way to get fair compensation for a medical mistake. This is true whether one is hurt or killed by medical negligence (surgical mistakes, failure to diagnose, birth injuries, etc.) nursing home abuse or neglect, or other injury or wrongful death situations. The preemption issue involved in this article is about medical devices, but the principles of preemption have been twisted by certain federal agencies during this curent presidential administration. Particularly, the preemption assertion here is that, if the FDA has approved a medical device, a person injured by that device cannot sue under traditional state remedies. The nuances are a bit more complicated, but the gist is that preemption takes away peoples real right to a trial by jury. So, a person injured in North Carolina would not be able to pursue "regular" injury or wrongful death claims through his or her attorney.