September 5th, 2014

Joan Rivers Death and ‘Risk of the Procedure’

Joan Rivers in 2010, via Wikipedia

Joan Rivers in 2010, via Wikipedia

The phrase grates on me big time, that a poor medical outcome was a “risk of the procedure.” And so it is now that we see in a couple places with the death of Joan Rivers after she stopped breathing during an out-patient endoscopic procedure, that the phrase “risk of the procedure” is popping up, as if to excuse what happened.

One leading possibility for death, of course, is that it was related to the anesthesia, which Ms. Rivers likely had numerous times considering all the jokes she made about her own plastic surgery.  A sudden allergic reaction wouldn’t exactly be on anyone’s list of possible causes.

At HCP Live, a medical website, they first look at the incidence of cardiac arrest from anesthesia, and it looks positively frightening, by starting out like this:

Although perioperative cardiac arrest due to anesthetics occurs just 10.8% of time, according to the Mayo Clinic, it represents the most serious complication and can have devastating results, as witnessed by the recent death of comedian Joan Rivers.

Wow!!! 10.8% of the time?!?

Well, not quite. That would be 10.8% of all cardiac arrests, which itself are quite rare. Not in the HCP article, but deep into the linked Mayo Clinic article is this:

At the Mayo Clinic, the incidence of arrest primarily attributable to anesthesia was 0.5 per 10,000 anesthetics, which represented 10.8% of cardiac arrests that occurred preoperatively…

So, the incidence of cardiac arrest is actually exceedingly rare.

Moving on, the article starts goes to the potential medical excuses for what might have happened:

The surgery was apparently a minor, elective procedure, but the complications Rivers suffered reminds patients and providers that there are always risks to be considered during surgery. Some of the factors that can increase the risk of cardiac arrest during surgery include coronary artery disease, cardiomyopathy, congenital heart disease, and heart failure.

And what is missing? The failure to properly ventilate or medicate the patient.

Want to know why excusing a bad outcome by simply saying it is a risk of the procedure is so awful? Think about getting hit in the rear by another car while driving. Hey, you knew that others on the road might not be paying attention, didn’t you? Isn’t an auto collision (not an accident) one of the risks of being on the road? Do we excuse that inattentive driver because you knew that being on the road was risky?

Senator Rand Paul pulled a similar stunt with BP’s gulf oil spill, dismissively saying “Sometimes accidents happen.” Sure.  Or maybe the company acted with “conscious disregard of known risks.

Sometimes a deer bolts into the road and can’t be avoided. But sometimes, someone is following too close and rear-ends you because they didn’t leave enough room to stop.

What is the standard here for the Rivers matter in evaluating possible medical malpractice? The standard to look for by investigators, be they New York’s Department of Health (now underway) or the family’s private lawyer, are twofold in looking at the acts or omissions of the medical staff:

Was the act (or omission) a departure from customary and usual medical practice?

Was that departure (or omission) a substantial cause of injury/death?

Simply calling something an “accident” or saying it is a “risk of the procedure” is the type of language that immunity-seekers use (i.e. defense lawyers in the courtroom). But it isn’t the law.

The press should take note in writing stories on the subject, and be careful of the highly dismissive “risk of the procedure” lingo that may flow from some places.


May 24th, 2013

Lawyer Faints During Medical Malpractice Trial; Defendant MD Rushes to Assist

HansPoppeWell, you don’t see this every day — a lawyer trying a medical malpractice case passes out in court. Then the doctor that he sued rushes in to assist him. All in front of the jury.

The lawyer in question is Louisville, Kentucky’s Hans Poppe. You can see the video here, as the lawyers are at the bench discussing defendants’ motion for a mistrial.

The case arose from the negligent removal of a cervical collar that had stabilized a patient’s neck after an auto collision, with the patient then being rendered a quadriplegic. He subsequently died from infections at a long-term care facility. The defendants are the surgeon, Dr. Ryan LeGrand, and University of Louisville Hospital.

Aside from the human-interest element of a lawyer fainting and the defendant doctor rushing to assist, there’s an interesting legal issue here.

The defendants had moved for a mistrial because, on day 10 of the trial,  Poppe had played a portion of videotape deposition that mentioned liability insurance. This part was supposed to be edited out. (Many potential jurors ask the insurance question during the selection process, and we are, of course, forbidden to answer. It is deemed to be unfairly prejudicial to the defendant and not relevant to the issues.)

Poppe said that it was inadvertent that the unedited video was used; the defendants claim he did it on purpose to cause a mistrial because the trial wasn’t going well for him. Then the defendants asked for a whopping $125,000 in sanctions and fees, an astounding amount for a malpractice trial and one that strains the bounds of credibility to me.

What is most interesting, however, is that the point of whether the video-malpractice was intentional or not is actually moot in many respects. And that is because a mistrial would have been necessary anyway after the doctor rushed forward, in the presence of the jury, to assist. Life can be funny sometimes and this is one of those times.

I had a couple questions about all this, so I called Poppe. First off, he said that he fainted from lack of sleep, food and water — a situation anyone that ever stood in the well of the courtroom trying a case can relate to. Walking the proverbial high wire in front of  a jury can be enormously stressful, and the vast majority of lawyers can’t/won’t do it.

I asked if the defendants claimed the fainting was a ruse of some kind, and he said that no such allegation was ever made. It would seem, then, that a mistrial was going to happen regardless of the jurors learning about the insurance.

Finally, about that huge $125K request? He said that the hospital had three lawyers on the case. That is virtually unheard of where I come from in a medical malpractice case, and where I come from is lawyer-central. If there are any “extra” lawyers in cases here they are likely to be young ‘uns who are not there to participate, but to watch and learn.

Of course, if the judge thinks Poppe did this on purpose then a sanction might be forthcoming, but I have to assume that a judge would be viewing the entire conduct of the 10 day trial. An isolated act is likely to be forgiven; repeated acts might well be viewed with a different eye. But because the playing of the unedited video would ultimately be unrelated to the need for a mistrial, it seems the mammoth request for fees will be denied.

In any event, a quirky factual scenario with the fainting/assisting, what appears to be a serious legal issue regarding insurance mostly rendered moot by subsequent events, and a defense team with a legal meter apparently running so fast it’s hard to see the numbers fly by.

As I said, you just don’t see that every day.

(Updated 3/11/15: The insurance carrier proceeded to bring an action against Poppe, and this was the result)


March 20th, 2013

Sen. Rob Portman, Gay Rights, and Tort “Reform”

RobPortmanLast week Ohio Senator Rob Portman made headlines when he reversed his stance on gay marriage. For a Republican, that was pretty big news. He did it after finding out his son was gay and reflecting on the meaning of love, marriage and religion.

But that isn’t why I’m writing.

I’m writing because, in his explanation, he went beyond the love/marriage/religion elements to reflect on the proper role of government in society. He wrote:

British Prime Minister David Cameron has said he supports allowing gay couples to marry because he is a conservative, not in spite of it. I feel the same way. We conservatives believe in personal liberty and minimal government interference in people’s lives.

So if he, as a conservative, believes in minimal government interference in people’s lives, why does he campaign on giving big government protections and immunities with various tort “reform” proposals that close the courthouse doors to those seeking justice?

One of the first things he did as a freshman senator in 2011 was introduce legislation that would impose a new statute of limitations on medical liability lawsuits and cap punitive and noneconomic damages.

His political view is summarized here:

Medical malpractice costs and the mounting costs of defensive medicine must be reduced through sensible legal reform and better health information.
Source: (11/22/2010)

Really Senator? Is that what limited government is all about? Interceding on the rights of people seeking justice by protecting big business and insurance companies?

If someone would be kind enough to forward this to Portman, he might also learn that the artificial caps he supports because of “defensive medicine” have been proven by empirical evidence to be a complete bust. Health care costs in Texas, which instituted artificial one-size-fits-all caps in 2003 didn’t go down. Costs have actually gone up.

So Portman gets a special twofer: His tort “reform” policy contradicts his stance on federal power, and the basis of his policy is factually wrong.

If Portman wants to reign in federal power, as he states in part of his argument favoring gay rights, he may wish to revisit his other positions that call for increasing that power. Especially when increasing it fails to support  his theories.

More on the hypocrisy between conservatism and tort reform  here: Does the Tea Party Believe in Conservatism or Tort “Reform”? (8 Questions)



March 7th, 2013

The Bogus “Risk of the Procedure” Defense

Law-Medicine-773369With great regularity I hear people write off bad medical outcomes as simply a “risk of the procedure.” It happened again today in an email from a company that helps lawyers find medical-legal experts. One of their experts wrote:

A 52 year old woman presented to Hospital and underwent a total hysterectomy. The surgeon perforated her bladder during the procedure….

…The question is whether perforation of the bladder is a known risk of the surgery and, if so, are there ever instances where it is nonetheless a breach in the standard of care?

That is wrong, wrong, wrong, 1,000x wrong. That is not how to frame the question.

And you can appreciate that it is framed wrong if you simply substitute a car accident for the medical procedure. Isn’t getting into an accident a known risk of driving in a car?

The fact that something is a known risk is a game that defense lawyers play. It does not simply absolve a defendant.

But the real question that a jury gets is whether the injury could have been avoided with the exercise of reasonable care. So an auto wreck may be a known risk of driving in a car, or it may not.

An example: You drive on the highway and a deer leaps out of the woods into the path of your car. This may be unavoidable even with reasonable care. Or the deer may have been standing in that spot for 20 seconds but you were busy texting while driving and didn’t see it.

It isn’t any different in medicine, and those magic words “known risk of the procedure” should set off alarm bells. Is having a sponge left behind after surgery a known risk? Yes it is. But it is also negligent because someone wasn’t keeping track of all that went into the body to make sure that all came out.

A doctor might, or might not, have been negligent in the way treatment was rendered, but the fact that something is a “known risk” doesn’t answer the question.

If you ask the wrong question, you might be lead to wrong conclusions.


December 20th, 2012

Oprah Winfrey, Diane Sawyer and My X-Rays

This is a story of two famous women, and a bunch of x-rays that hang in my office. Both wanted to use them on their shows as examples of surgical equipment that had been left behind. One of the films is to the right, and the others on my web site.

A few years ago I received an email from the Oprah Winfrey show. It seemed that some guy named Dr. Oz wanted to use those x-rays for a show on medical mistakes.

Sure, I said, you can use them, so long as you give me credit so that these don’t disappear into the public domain. Interested parties should know their original source. Thus started the most ludicrous negotiation I’ve ever had in my life on any subject. After a few dozen emails over several weeks, they successfully overlawyered the issue to death and they never saw the light of day on the almighty Oprah show.

I confess that, when I finally wrote As Seen On Oprah! (Kinda, Sorta, Almost) I had a lot of fun. More fun than should be legal, perhaps. It never got much in the way of pageviews, but it’s always been one of my favorites.

So this afternoon I get a call from a producer from Diane Sawyer for ABC News. They also want to use the x-rays for show on medical mistakes.

We consummated a deal in about a minute. You can see the clip here as my films have their 15 nanoseconds of fame and glory.

Two different media divas; two different ways of handling a routine matter.