December 12th, 2019

A Feres Doctrine Repeal? Not so Fast…(Updated)

Lt. Rudolph Feres, for whom the Feres doctrine was named, parachuted into the darkness in the first hours of D-Day in 1944. He was killed later in a stateside barracks fire and his estate was barred from bringing suit. Photo via NY Times.

The rule is as old as government itself: You can’t sue the King.

The concept of “sovereign immunity” protects governments from suit unless they specifically consent. In the U.S. we are permitted to do so by various statutes, and in the case of the federal government, under the Federal Tort Claims Act.

Well, sometimes, anyway. Because there’s a big, fat hairy exception to that rule, and that exception is for those on active duty in the military. You can’t bring suit for acts “arising out of combatant activities.” The problem here is that it’s been extended to plain old negligence away from the battlefield.

Did your stateside barracks burn down? Sorry Charlie. Or in this case, sorry Rudolph Feres. We’re you raped by your drill sergeant? Tough noogies. Your wife died from blood loss after child birth because of a looooong delay in giving blood? You get our condolences and we wish you well raising the kid as a single parent.

The Feres Doctrine prevents all suits, because the U.S. Supreme Court extended the prohibition on suits from “combatant activities” to all situations. It has long been an unfair abomination of the law.

And so, as I took the train home yesterday and read in the NY Times that a portion of the Feres Doctrine was to be repealed for medical malpractice under the pending National Defense Authorization Act, I was elated for those that had been victimized twice.

But. And you knew there had to be a “but,” didn’t you? According to the Military Times, most claims are limited to $100,000. And the military doesn’t pay the legal fees. And it doesn’t happen under the Federal Tort Claims act, but under some kind of (not yet written) administrative procedure. You can find the text here.

If the claims are limited to $100,000 this medical malpractice exception is virtually useless. Because in order to prove the claim experts will be required. The military wouldn’t be responsible for the original illness, after all. Only for that which was caused by medical malpractice. And you need experts for that.

And experts cost money. As do depositions and medical records. And with military personnel involved, probably lots of travel too.

The military, of course has unlimited resources to defend and hire experts. And all medical malpractice cases are vigorously defended.

Even a simple medical malpractice case can cost a plaintiff $25,000 – $50,000 when you figure in experts for liability, causation and damages. And that doesn’t include a trial.

And more — the legal fee is capped at 20%.

The soldier or sailor is unlikely to have that money. It will be lent by the attorneys. But which attorneys are going to pony up so much money with so much risk for so little fee? It’s a path to bankruptcy.

A $100,000 limit is a shonda. A shame. An embarrassment. It’s like putting a band aid on an amputated limb. Few people will ever find a lawyer to handle such a small case at such great risk and cost.

The text of the bill says that the Secretary of Defense can create regulations that allow them to pay more. Regulations that haven’t been written.

So what is the purpose of setting that $100,000 bar? Will future Secretaries of Defense be paying those damages out of their own budgets? Who shall they take the money from?

Why is Congress allowing the Secretary of Defense to set its own rules? Why isn’t this done under the existing rules of the Federal Tort Claims act? Why wouldn’t the Judiciary handle such a claim?

Congress should treat our soldiers and sailors better. If they are mistreated by the military doctors they are compelled to use they should have access to justice. Real justice. Not this pretend crap.

It’s often said that perfect is the enemy of the good, but I can’t see how this will end out as good if this bill is so watered down that the Secretary of Defense can so easily circumvent Congress.

See also:

Addendum: The following press release came from Rep. Jackie Speier, who spearheaded the campaign to fix the Feres Doctrine. She asserts that there will be congressional oversight of the rule making and that the potential recovery is “unlimited.” The devil, it is often said, is in the details:

December 10, 2019  Press Release 

Washington, D.C.- Last night, the House and Senate Armed Services Committees released a conference report for the fiscal year 2020 National Defense Authorization Act (NDAA) that included an administrative claims process that will compensate servicemembers harmed by medical malpractice in military facilities. As Chair of the House Armed Services Military Personnel Subcommittee, Congresswoman Jackie Speier (D-CA) has led the campaign to achieve justice for victims of military medical malpractice over the last year.

“Today will be remembered as a landmark day in the fight for justice for servicemembers and their families,” Rep. Speier said. “After nearly 70 years of the FeresDoctrine, servicemembers and their families finally have a path forward in seeking compensation for medical malpractice committed by military health care providers, and the Defense Department will have to take their claims seriously. This victory belongs to the hundreds if not thousands of injured servicemembers and their loved ones who have spoken out about this injustice and forced Congress to listen. In particular, today belongs to Army Green Beret and SFC Richard Stayskal, who, after receiving a terminal cancer diagnosis that stemmed from military medical malpractice, forged a bipartisan coalition to achieve this legislative breakthrough through his countless visits to DC and heroic advocacy.”

Though this provision will not create an exemption to the Feres doctrine nor will it allow servicemembers to sue the Department of Defense (DOD) for medical malpractice in federal court, it will allow servicemembers to receive uncapped monetary compensation under the Military Claims Act for malpractice. It also forces the DOD to document and respond to these cases. The legislation also contains provisions to enable congressional oversight of DOD’s rulemaking and administration of the claims process so that it can be improved in future years.

“Though today’s conference report was an accomplishment in many respects, this fix is far from perfect,” Rep. Speier added. “Servicemembers – like their families, federal civilian employees, and even prisoners – who suffer from malpractice deserve their day in federal court. And I have serious concerns about allowing the DOD to run the entire claims process as they will write the rules, investigate malpractice incidents, and adjudicate claims. But it was important that we seize this unique political moment, created by the hard work of Richard Stayskal and other victims and their loves ones, as well as the availability of funds to pay for claims under Congressional budget rules. Rest assured that I will closely oversee the implementation of these changes and continue to work to address the myriad injustices that remain due to the Feres doctrine.”

Rep. Speier chaired a Military Personnel Subcommittee hearing on the impact of the Feres doctrine and prospects for reform after meeting with SFC Stayskal in late 2018. Subsequently, she introduced H.R. 2422, the SFC Richard Stayskal Military Medical Accountability Act of 2019, which passed as part of the House’s NDAA bill.

 

August 26th, 2019

Vigilantes and Juries and Justice, Oh My!

Over the weekend, I guest-blogged at Kevin, M.D. It is republished here for wider distribution:

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Last week I was struck by a post by Dr. Saurabh Jha at Kevin, M.D., about his views of the jury system — as some of his comments mirrored things I’ve said to juries in the past.

Some things he got right, which go to the core our civil justice system. Some things, however, not so much.

His perspective comes from growing up in India, which doesn’t exactly have the most efficient of justice systems. And because of a lack of confidence in that system, folks sometimes take matters into their own hands. Like burning people alive:

One of my most harrowing memories in India as a child was when I saw a mob pour kerosene on a bus. My grandfather pulled me away before the bus was set alight, but I knew what was happening. The mob had tied the driver and conductor to the steering wheel. The mob was angry because the bus had crashed into a pedestrian fatally injuring her. The mob formed spontaneously and dispersed spontaneously. Mobs are as capricious as India’s legal system.

Dr. Jha writes because this concern over vigilante justice isn’t limited to crimes and motor vehicle fatalities, but to something that I’ve never heard of in the United States — retribution against doctors for bad results:

…doctors face a new tide – mob attacks for undesirable patient outcomes. The strike by doctors in Calcutta in protest of a junior doctor seriously injured by an angry family of a seventy-five-year-old patient who passed away, is just the tip of the iceberg. There’s more trouble brewing.

While we see vigilantism from time to time here when crimes are committed — think relatives seeking revenge on a rapist or killer — rarely do we see if for matters generally handled in the civil system such as bus collisions. And certainly not for medical malpractice, which is the heart and soul of his concerns as he discusses a family member’s decision on whether to go into medicine.

So Dr. Jha brings a different perspective. And the first part of that perspective is that there’s a price to be paid for a justice system that works to sift through and clarify the facts behind an incident in a manner that doesn’t involve guns, knives, fists or kerosene:

It was only years later that I understood the price of stopping mobs. When I arrived in Philadelphia for my medical training, I couldn’t afford a car because I couldn’t afford auto insurance, which was unaffordable because the costs of litigating auto-accidents were so high, which were high because of the generous compensation for a range of injuries including the nebulous “whiplash.”

Leaving aside his assumption that costs were high because compensation was “generous” for “nebulous” soft tissue injuries, was this increased cost worth it? Dr. Jha is clear in his opinion that, because mobs are more likely to exist when the justice system isn’t trustworthy, it is definitely worth it. And society becomes safer as a result:

Mobs attempt to correct for failures of institutions to make systems safer. Though mob violence is a blunt tool, unhelpful at making systems safer, their expression signals a void – the paucity of confidence in civil courts. If patients’ families had confidence in the legal system and were sufficiently compensated, over time they’d be less likely to be violent against doctors when they perceived real or imaginary medical negligence. Compensation doesn’t bring back the deceased, but it’s an apology of sorts. Though dreadfully cynical to say – money is balm to the grieving soul. In its absence, retribution rears its ugly head. Mobs exact retribution in lieu of compensation.

This mirrors, in part, some of my standard spiel in voir dire — particularly when I see a run on the room with all kinds of BS excuses to get out of jury service. Our system of justice, while imperfect in that money can compensate for, but not heal, an injury, stands as a substitute for the alternative of vigilantes.

Dr. Jha is likewise clear in his opinion that justice isn’t cheap, because safety costs money:

The mob problem faced by doctors in India won’t be cheap to solve. The government must invest a fair amount in courts, medical malpractice insurance, and hospital infrastructure. Due process is expensive. Safety costs.

But there’s a second part of his posting that also caught my eye, and that was the assumptions that he used about costs, particularly with respect to medical malpractice. He used at least three well-worn tropes, just assuming them to be true:

The United States is famously litigious, particularly in medical malpractice, where millions are awarded for bad patient outcomes which may or may not be caused by negligence.

This one statement isn’t accurate on multiple levels. First, one really can’t bring small medical malpractice cases because cases are expensive to bring. By definition complex cases must be larger than simpler matters. Who’s going to risk $50,000 in expenses and a couple hundred hours of time on a case with a $100,000 value? For smaller matters, the medical community enjoys de facto immunity.

Second, money doesn’t get awarded for cases not caused by negligence. While a jury may, from time to time award damages on insufficient proof (and, conversely, sometimes tosses out a case despite overwhelming proof) a judge can toss that verdict if the facts aren’t there to support it. And after that, there’s an appellate court to do the same. There are, therefore, two additional layers of protection against what Dr. Jha merely assumes to be true.

Next up is the trope about “defensive medicine” driving up costs due to the fear of litigation:

The net effect of litigation is defensive medicine where doctors over-order tests to avoid lawsuits. Defensive medicine has made healthcare costlier.

This was demonstrated in an empirical study to be false. In 2003 Texas passed a law that capped malpractice payments at a paltry $250,000, with the predicable result that fewer cases were brought and that doctors would feel “safer.”

So fewer “unnecessary tests,” right? Less “defensive medicine?” Wrong. Medicare spending in Texas went up 13% more quickly per beneficiary than the national average. The idea that fear of malpractice cases was a driver of increased medical costs was demonstrably false.

America, unlike every other westernized country, doesn’t have universal medicine. It is fee for service. There is a financial incentive to order more tests. Whether that is a driver of our escalating health care costs I don’t know, but it certainly isn’t a fear of malpractice suits, which are just 2.4% of our overall healthcare costs.

So, in response to Dr. Jha, you got it partly right, in that a functioning and trustworthy justice system beats the hell out of vigilante justice (which has its own costs). And it makes society safer. But you missed the mark on some of your underlying assumptions about our justice system. Those well-worn tropes that you (and many others) use is something to rethink.

 

January 25th, 2018

Doctor Hit for Punitive Damages After Destroying Records in Child’s Death

Six-year-old Claudialee Gomez Nicanor died. And when her family’s lawyer asked the child’s doctor for her medical records, she destroyed the originals. That’s a problem.

Last week in a case of first impression in New York, our Appellate Division (Second Department) upheld an award of punitive damages in a medical malpractice case — not for the conduct that led to the death, but rather, for the effort to evade liability.

Little Chaudialee had Type 1 Diabetes and died from diabetic ketoacidosis, which results when the body can’t produce enough insulin. (It is Type 2 diabetes that’s often related to excess weight.)

The underlying medical malpractice case dealt with Dr. Arlene B. Mercado‘s failure to diagnose and treat the diabetes. The doctor is a pediatric endocrinologist and the child had arrived in her office via her pediatrician.

Mercado saw Claudialee three times, October 31, 2009, November 14, 2009, and December 12, 2009. Meanwhile, the pediatrician saw Claudialee in late November 2009, and on January 9, 2010. But:

“On January 21, 2010, Claudialee returned home from school complaining that she was tired and did not feel well, and brought with her a note from the school nurse describing her symptoms. The child vomited that evening and said that she had a stomach ache. The next day, after having tried, unsuccessfully, to have Claudialee seen by Cabatic, the child’s mother took Claudialee to a hospital. Claudialee remained hospitalized until her death on January 24, 2010.”

After the child died, and after the lawyers asked for the records, the good doctor thought it would be a great idea to type up the scribbled notes she originally made and destroy the originals for the November and December visits.

The problem is that on the last visit to Mercado on December 12th, the family was told to bring her back on February 13th. And they had the appointment card showing it.

The typed notes, however, claimed something else: That the child was to come back in just four weeks (before the child was ultimately hospitalized). Those are the same notes that were typed up after the child had died and after the lawyers asked for the records:

“Q. Now, you told us that you created the typed written part for the Halloween, the 10/31 visit after you got the letter from my office, did you do all three of them at the same time?

“A. Yes.

“Q. So this one was done without the help of any squiggly notes; is that right?

“A. No.

“Q. No?

“THE COURT: You had notes?

“THE WITNESS: I have like piece of paper, but after typing—

“THE COURT: Where is it[?]

“THE WITNESS:—I throw them out. After typing I will throw them out.

“THE COURT: Four months later you throw them out?

“THE WITNESS: Yes.”

The doctor also gave conflicting claims as to when she typed up the first set of notes, which was important because the typed version included information not reflected in the handwritten record of that visit.

The underlying malpractice claim was that the doctor committed malpractice by “not teaching the child’s family about symptoms of diabetes—such as weight loss, tiredness, lightheadedness, excessive thirst, and excessive urination—and by not recommending that Claudialee’s family perform home testing to measure the child’s blood sugar and ketones.”

The doctor was  also faulted for assuming that the child was developing type 2 diabetes and not even considering that the child was developing type 1 diabetes.

The jury found that Mercado was negligent, that the negligence caused injury and death, and awarded $400,000 in pain and suffering and $100,000 in monetary loss. (New York is one of only a few states that does not allow an award to grieving families for the loss of a family member.)

But this was the kicker: $7.5M in punitive damages. While that award was reduced by the trial court to $1.2M, and further reduced by the Appellate Division to $500K, it was the very issue of punitive damages for the destruction of evidence in order to evade liability that lit up the decision.

The court was firm (and unanimous) in stating — and this is the entire point of this post — that punitive damages serve to deter the wrongful conduct of destroying records to evade liability.

[W]e now hold that where, as here, a plaintiff recovers compensatory damages for a medical professional’s malpractice, a plaintiff may also recover punitive damages for that medical professional’s act of altering or destroying medical records in an effort to evade potential medical malpractice liability. Allowing an award of punitive damages for a medical professional’s act of altering or destroying medical records in an effort to evade potential medical malpractice liability will serve to deter medical professionals from engaging in such wrongful conduct, punish medical professionals who engage in such conduct, and express public condemnation of such conduct.

And the fact that there might be also be disciplinary action should not deter a court from submitting this to the jury. As the court noted:

However, the possibility of other consequences, such as professional disciplinary action or spoliation sanctions, should not preclude medical professionals from being subject to punitive damages for altering or destroying medical records in an effort to evade potential medical malpractice liability. … the present case illustrates that the availability of disciplinary proceedings is not sufficient to protect plaintiffs from such conduct, since Mercado was clearly not deterred by the possibility of such disciplinary action.

Finally, the court rejected the argument that there was no damage from the destruction of the records, since the plaintiff was able to prevail despite it. In other words, the defendant argued that there should be no penalty for her action. The court was not amused at this request for immunity from wrongful conduct:

We also reject Mercado’s contention that punitive damages cannot be recovered because her destruction of original records did not prevent the plaintiff from successfully prosecuting this action. The fact that the plaintiff was able to prove the medical malpractice cause of action against Mercado, despite Mercado’s destruction of original records, should not insulate Mercado from liability for punitive damages. Undesirable results likely would flow from a conclusion that punitive damages cannot be awarded for the destruction of medical records in an effort to evade liability where a plaintiff is able to establish liability nonetheless; specifically, medical professionals fearing malpractice liability might feel emboldened to alter or destroy medical records, knowing that they will face no added liability in tort. Indeed, it has been observed that “[i]f the act of altering and destroying records to avoid liability is to be tolerated in our society, we can think of no better way to encourage it than to hold that punitive damages are not available” in such circumstances.”

Going forward, this case won’t be limited to medical malpractice cases. I foresee this case being used and cited in any kind of case dealing with spoliation of evidence. For such cases all deal with the same concept of punishing a party for trying to evade liability by destroying evidence.

While one tool in the judge’s toolbox is simply to strike the answer of a defendant for having engaged in such practices, that merely puts plaintiffs where they otherwise would have been anyway had the malfeasance not taken place. There was no downside. Now there is.

The case is Gomez v. Cabatic


See follow-up (1/26/18): A NY Court’s Thin Reasoning on Punitive Damages

 

January 19th, 2018

Lavern’s Law Will Save New Yorker’s Money (Updated!!!)

Lavern Wilkinson, who lost her chance for justice before she even knew she had that chance.

Dear Gov. Cuomo:

A couple of weeks ago I wrote a piece about why you should sign Lavern’s Law, which has been sitting on your desk for weeks now as the only bill out of 600+ that you’ve failed to act on from last year’s legislative session.

But in my list of reasons to sign a bill that starts the statute of limitations in failure-to-diagnose-cancer cases from the date the malpractice is discovered (as opposed to when the malpractice happens) I neglected to mention one thing.

Lavern’s Law will save taxpayer funds.  As it stands now, if someone loses the right to sue before they ever even knew that malpractice occurred, there’s a pretty good chance that Medicaid will pay out much of the medical expenses. And those kinds of expenses can add up.

But if suit is permitted then much of the money can be recovered from the people actually responsible for the unnecessarily diminished health of the patient.  Medicaid often recoups money paid out from such lawsuits.

And the best part, from Medicaid’s perspective, is that a private attorney is doing all the work. There is virtually no cost to the state other than contacting us every so often to find out the status of the suit, and settling up if the recovery is partial.

So the question is — aside from the moral and public policy issues I already addressed — who should bear  responsibility for the medical costs of malpractice? The party that was negligent? Or the taxpayers?

There are reasons this bill enjoyed wide support from both Democrats and Republicans and why similar laws exist in 44 states. Yes, that’s right, even deep red states have such laws.

But not New York.
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Updated (1/30/18)!  Gov. Cuomo has agreed to sign Lavern’s Law and it will happen today!

As with many laws, there is an issue of, “When does this become effective?” The very powerful health care lobby was concurred that malpractice from 5 years ago — if it hadn’t been discovered until after the statute of limitations had expired — would now become actionable.

The bill was, therefore, tinkered with a bit for past acts of malpractice, so that it would no longer allow patients to revive already-expired claims that occurred up to seven years prior. Instead, a patient could file for a cancer claim that expired within the last 10 months and file the claim for an additional six months.

But on the whole, a big victory for civil justice. The Daily News, which has long championed this legislation, has an editorial celebrating the event, writing:

It took too long — indeed, far longer than the time stingily allotted Lavern — but first the Assembly, then the Senate had the wisdom to open New York’s lawsuit window despite opposition from the hospital lobby.

The version of the legislation to earn Cuomo’s signature will include adjustments to be passed this week at the governor’s insistence. Albany being Albany, the bill that passed both houses of the state’s Legislature wasn’t good enough for the governor, so Cuomo brokered a deal with legislative leaders to force through amendments.

Oddly, the law will only cover malpractice related to cancer. Why? Malpractice comes in all forms. Fix that, stat.

It’s also a shame that Cuomo doesn’t dare open the door to past patients, beyond 10 months ago.

Still, take comfort that Lavern smiles down on all who trust their lives to medical professionals sometimes fatally imperfect. Her law and legacy demand they do better.

 

 

January 2nd, 2018

Will Gov. Cuomo Sign Lavern’s Law?

Yes, a real case. Yes, the x-ray hangs in my office.

There is one bill on Gov. Andrew Cuomo’s desk from last year. Just. One. Bill.

There were 606 bills that passed by both of New York’s legislative houses. All have been signed, or vetoed.

Except for Lavern’s Law. A law that Cuomo previously stated that he supported and would sign.

It was finally sent to the Governor during the holiday week for signature. He has 30 days to sign it.

As I bang on this keyboard, it sits on his desk.

Lavern’s Law, for those that don’t know, mimics the law in 44 other states, extending the statute of limitations in certain medical malpractice cases from the time the discovery of malpractice was made, or could reasonably have been made, instead of when it occurred

In the final hours dickering over the bill last June, it was watered down to apply only to cancer cases, leaving all other “failure to diagnose” cases, where the patient didn’t even know s/he was victimized, hanging out in the cold.

But still, even in its watered down state, it is something for those that have not only been victimized by malpractice, but didn’t even find out until the time to bring suit had expired.

As I previously described it:

The law is named for Lavern Wilkinson, who went to Kings County Hospital on February 2, 2010 with chest pain. A radiologist saw a suspicious mass on the x-ray. But Wilkinson wasn’t told.

When it was found again two years later when her complaints worsened, the 15-month statute of limitations had expired. As per the Daily News summary of the incident:

A chest X-ray found the cancer had spread to both lungs, her liver, brain and spine. The disease was now terminal.

She left behind family including an autistic daughter.

Lavern Wilkinson, who lost her chance for justice before she even knew she had that chance.

The bill passed the Assembly. Then it passed the Senate 56-6, that being the tougher of the two houses.

Why hasn’t the bill been signed?

It can’t be due to insurance premiums because, after all, the state’s largest insurer is being sold to Warren Buffet because it’s so damn profitable.

And at just 2 ½ years for suits against non-governmental medical facilities, we already have one of the shortest statutes of limitations in the country (and 15 months against governmental facilities) since we have no date of discovery statute.

And with some of the lowest legal fees for attorneys, the medical community has already been granted widespread de facto immunity for most acts of malpractice — since taking smaller suits simply isn’t financially economical.

And it can’t be because of a lack of caps on malpractice cases, because we not only have them, but have had them for over 200 years.

New York has become, with some of the best medical care in the world, one of the absolute worst places with respect to finding justice when that care goes wrong.

And all this happens despite medical liability insurance premiums and premiums continuing to plummet, and the costs of insurance as a percentage of healthcare costs likewise continuing to drop. From a Public Citizen study in 2017 (The Medical Malpractice Scapegoat), look at these three charts:

Under what justification does a state close the courthouse doors on its citizens before they even knew they were injured?

Under what logic do we grant further immunity to those that commit preventable harms?

For what public policy reason do we continue to withhold justice?

This bill enjoys widespread support among voters, as demonstrated by the overwhelming vote in the Senate.

It is long past time that New York get a date of discovery law. There are no reasons not to do it.

Gov. Cuomo, please sign that bill.

See also (1/19/18): Lavern’s Law will also save New Yorkers money