With Michael Jackson's sudden death yesterday at 50 have come swirls of rumors about prescription medications he was taking for dancing related injuries. And if toxicology tests show over-medication being a substantial cause of death, that leads to the inevitable questions regarding potential medical malpractice as well as potential criminal liability.

So these are the issues and questions that would/should float about if those rumors prove accurate:

1. Were the medications all provided by a single doctor? If the self-proclaimed King of Pop was getting all the medication from one place, then the prescribing doctor ought to have a good lawyer due to issues of criminal prosecution (possible but unlikely), action against the medical license (much higher probability) and civil suit (discussed below).

2. If there was more than one doctor, did they know about each other and what the other was prescribing?

3. Did all the drugs all come from one pharmacy? Did that pharmacy have an internal system to tickle the pharmacist if there is an inordinate amount of medication going to one person or that some of the drugs are contraindicated given the other meds? If so, did that pharmacist make a call to the doctor(s) issuing the prescriptions?

4. Where were the prescriptions written and filled? This would be a jurisdictional issue that could be particularly important for a pharmacist, who may have immunity if s/he simply followed the doctor's orders. There is no way to know at the moment if the drugs were prescribed, or even filled, in the U.S. given that Jackson spent a substantial amount of time overseas.

5. Who has standing to bring such a suit? That is a two-part question, as his personal property may be governed by an executor or administrator. But he also has three kids that are all minors and need a legal guardian. Will the mother of two of them, who reportedly gave up legal rights to the kids, be seeking that position in a fight with family members? (This also assumes proper paternity.)

6. From the point of a medical malpractice suit, does it even matter? Jackson was allegedly in debt to the tune of over $300 million, though I suspect a forensic accounting may take some time. But if this was the case of one or two doctors/pharmacists, then there would likely not be much more than a million dollar (or two) insurance policy. When you are that steeply in hock, a malpractice suit may be too insignificant to matter (assuming a limited insurance policy). The estate's executor and creditors may be unlikely to have an interest, concentrating on the big picture.

7. You can toss out #6 above if the investigating authorities make a slam-dunk decision on liability. That makes a lawsuit easy, and no one would give up an easy million if it were there.

8. In a wrongful death suit, by contrast, the losses suffered by the children would likely go directly to them, bypassing the estate. And if the estate itself is bankrupt, then the kids might actually need the money depending on how Jackson managed his affairs and the nature of any trusts he did (or did not) set up for his children. You'd like to think he was a savvy music mogul, but if he also saw himself as a forever young child, then estate planning could well be something he put off for the future. No one really likes to make decisions about their death, least of all someone with a child's view of the world.

Best guess from my perch in the cheap seats:


A. Criminal liability is the big concern if there was one doctor prescribing a bucket load of drugs to Jackson without having the nerve to cut off the famous patient. While prosecutors don't generally bring these kinds of actions, they also don't usually deal with such a high profile figure. That could alter the decision-making process of prosecutors. That doctor would also have separate licensing concerns.

B. Civil liability in a medical malpractice suit on behalf of the estate is not likely to garner much of a return relative to the debt. It only comes if authorities find an easy case against someone.

C. The kids will pursue a wrongful death case (via their guardian, whoever it may be) only if: Jackson failed to provide for them; there is little left in the estate after the creditors tear it to pieces; and the case is an easy one.

Update:

• Did Demerol Cause Michael Jackson's cardiac arrest and death? (Kevin, M.D.)

• LAPD 'searching for Michael Jackson doctor' (TimesOnline)

(Top photo courtesy of Rolling Stone, with more here. Headline from Extra, Rio de Janeiro)

Labels: Interesting Cases in the News, Medical Malpractice

It's happening again. A doctor is live-blogging his/her medical malpractice trial.

Regular readers will remember that Dr."Flea" had live-blogged his under his pseudonym two years ago, only to have the plaintiff's lawyer find out and confront him on the witness stand with some writing that contradicted his trial testimony. The world found out when his blog disappeared, and two weeks later his name and picture were blasted across the front page of the Boston Globe, above the fold.

But since the content is so compelling -- a physician under the gun during a trial -- it was inevitable that it would happen again. And so it has.

From this first installment at Emergency Physicians Monthly comes The Trial Of A White Coat - Part 1. In it we learn of the doctor's surprise after being served with the suit:

The rest of my shift that day sucked. I looked at patients as adversaries rather than as people needing help. I ordered more tests than I probably needed to. Wasn't for defensive medicine purposes or anything like that. Everyone knows that defensive medicine doesn't exist. Maybe it helped me feel better about "not missing anything." Maybe I didn't want to get named in another lawsuit a few years from now. My head wasn't in the game at that point. My brain was full and I wanted to go home. The shift couldn't end quick enough.

There is much more at the link, and I won't kill the story by letting it all out here. Suffice it to say that it is compelling reading.

But does it come with risks? You bet, unless the trial is already over and this is being published on delay. If plaintiff's counsel discovers the blog, every word becomes potential fodder for cross-exam if there are contradictions with trial testimony.

And here is an interesting thought/risk: The doctor writes that some of the details have been obscured for the purposes of publication:

This is the first in a series of posts I'm going to do about my malpractice trial.
Names and minor facts about the patient and his family have been changed.
Everything else is the real deal

But could that act of obfuscation also be a source of cross-exam?

If you ask me, this is another doctor playing with fire if this case has not already been resolved. But I will also say this, the style of writing seems to be much more deliberate then the fiery passion with which Flea wrote. So it could be that we are looking at a significantly more cautious person this time around.

Hat tip Shadowfax @ Movin' Meat
===========================================
Update: In a new post, Whitecoat confirms what many had wondered: The trial is over. The live-blog is not a contemporaneous view of events.

There were some interesting notes in the comments of the blog, by the way, about fears of violating HIPAA by publishing information about the case. But that is not a real worry. The physician-patient privilege was waived when suit was filed in the public courthouse. And certainly anything that took place at any trial (if it got that far) would have been in the public domain.

Labels: Medical Malpractice

Another year, another survey, and once again physicians are found to take home the biggest paydays in America. In fact, out of the ten top paying jobs, nine go to medical professionals.

It's something to think about when doctors complain about malpractice premiums. Complaining about an expense is OK, but it is only relevant if the complainers also disclose their income. Saying an insurance premium is 20K means one thing if a person nets out 45K, but it means something else entirely when the person nets out 150K.

This is not to say that doctors don't deserve the big paychecks. Some do, some don't, it depends on the individual. And many doctors do carry extra debt from four years of medical school and low-wage residencies.

But if a medical professional is going to complain about an expense of working, they should nevertheless be prepared to also disclose their income. Because expenses have no context without knowing what it means in terms of income.

Labels: Insurance Industry, Medical Malpractice

New York's high court today threw out a plaintiff's verdict in a medical malpractice case because the court refused the request of the plainitff to poll the jury at the time the verdict was rendered.

The decision in Duffy v. Vogel, authored by our new Court of Appeals Chief Judge Jonathan Lippman, came after a plaintiff's verdict of $1.5M in a medical malpractice case. He wrote:

In New York, we have long recognized that affording jurors a last opportunity individually to express agreement or disagreement with the reported verdict, is, when requested by a litigant, indispensable to a properly published, and thereby perfected, verdict.
...
Inasmuch as, under New York law, the honor of a request for a jury poll is a necessary condition of a "finished or perfected" verdict, it follows that in this State's courts the failure to poll a jury may never be deemed harmless. Harmless error analysis is a judicial device employed to sustain an already perfected verdict, not to perfect a verdict in the first instance.
...
The proper publication of a verdict in open court, so long deemed essential to assure the integrity of the verdict, is not to be cast aside as a mere formality on the theory that jurors are prospectively bound to act in accordance with their verdict sheet signatures.

The dissent would have held this to be harmless error.

Labels: Inside The Jury Room, Medical Malpractice

Yesterday, budget negotiations between the Governor and legislative leaders failed with respect to reforming New York's medical malpractice laws. This leaves thousands of people without attorneys who may have legitimate claims for malpractice, but no one to investigate them.

New York has some of the lowest medical malpractice legal fees in the nation. As a result of mid-80's legislation, countless people who have been harmed by malpractice over the years have been unable to obtain representation. But reform of that law, that was part of the budget negotiations just concluded, failed according to a source I spoke with earlier today.

Unlike most negligence cases, where the top legal fee 1/3 of the recovery, malpractice legal fees are substantially lower. New York's "sliding scale" fee structure looks like this:

30% of the first $250,000 of the sum recovered;
25% of the next $250,000 of the sum recovered;
20% of the next $500,000 of the sum recovered;
15% of the next $250,000 of the sum recovered;
10% of any amount over 1,250,000 of the sum recovered.

Thus, while malpractice cases are significantly more difficult to bring, and cost a great deal more (due to the necessity of hiring additional experts), the fees are lower than in other personal injury matters. Essentially, the lower fees, greater expense and significant technical difficulty of bringing such suits have given de facto immunity to the medical profession for many claims.

The New York Post, in an opinion column last week, claimed such a change in the legal fee structure was a "bonanza" to lawyers. The piece by Post columnist Fredric U. Dicker claimed that there would be "windfall" earnings to lawyers, evidence that he really doesn't have much clue as to what he is writing about. He clearly knows nothing of the actual economics of bringing a malpractice claim and proving it, or that they rarely settle easily. Nor does he appear aware the largest cases almost always need to have any fee approved by a judge.

While I've never met him, I have no doubt Dicker would change his tune in a hear beat if he was the one who was injured by the negligence of others, just like these other people. He also probably doesn't know that the medical malpractice "crisis" has been debunked as a hoax (and yet more here) and probably doesn't know why malpractice premiums for New York doctors jumped dramatically recently. He might, perhaps, be interested in the price gouging by some medical malpractice insurers, or how malpractice gets covered up, or even about the White Coat of Silence, but he would only be interested if he had an open mind.

Dicker didn't report that most malpractice victims are without recourse and forced to bear all of the loss. Time and again I receive phone calls from people desperately trying to find counsel, and learn that I am but one attorney in a long list that has rejected the matter simply because of the economics of the matter.

Once upon a time in America we believed that people should be held responsible and fix their mistakes. But the right wing Post has apparently dropped that in favor of political partisanship.

If medical practitioners want to put malpractice lawyers out of business, there is a way to do it. But it isn't by victimizing the patient a second time.

More on the subject at Point of Law supporting the Post editorial.

Labels: Medical Malpractice

When medical care costs go up, tort "reformers" love to scream "defensive medicine" and blame medical malpractice attorneys for the rising costs. All those unnecessary tests, they rationalize, must be due to the doctors' fear of being sued.

Except, of course that there are other reasons for unnecessary tests. Like greed. Because doctors and hospitals, for example, gets paid more money for more surgeries. Expensive surgeries.

And so comes this story in the Wall Street Journal (Doing a Volume Business in Liver Transplants), not exactly a friend to consumer groups, about the University of Pittsburgh Medical Center and the way they increased their liver transplant business. They had once been leader in the field, lost it, and sought to reclaim it by hiring Amadeo Marcos, a transplant surgeon who promised to double the number of liver transplants the hospital did.

And he did do that. But it came at a price. In order to get all those transplants done, they had to change the rules about which patients get them and where the livers come from. From the WSJ article:

To overcome a perennial shortage of organs, he used more livers from older donors. He transplanted some of these into relatively healthy patients for whom the risk-reward calculation was less certain. He used partial livers from living donors, and then understated complications from the controversial procedure.

It's worth noting here that, while the hospital is ostensibly a non-profit and therefore evades most taxes, it's mucky-mucks don't treat themselves that way:

Its chief executive, Jeffrey Romoff, earned $4 million in the fiscal year ended June 30, 2007, and 13 other employees earned in the roughly $1 million to $2 million range. For their transportation, UPMC leases a corporate jet. Earlier this year, UPMC relocated its headquarters into Pittsburgh's tallest skyscraper, the 62-story U.S. Steel Tower.

How much is a transplant? About $400,000-$500,000. There's a lot of money is those livers, if one only knows how to mine them.

According to two doctors that worked with Dr. Marcos:

Dr. Marcos put some of these organs into patients who were in the early stages of liver disease, say Dr. Fung and Howard Doyle, who then worked in UPMC's transplant intensive-care unit. These were patients, they say, who sometimes didn't need a transplant.

"For the first time in years, we had people dying on the operating table or in the ICU," says Dr. Doyle, now director of surgical critical care at Montefiore Medical Center in New York. At times, according to him, patients healthy enough to walk into the hospital before being transplanted died "because they had a high-risk liver put into them."

Next week, or perhaps the week after, there will be yet another report, someplace, somewhere, about the high cost of medicine, and someone will scream "blame the lawyers" and this story will be forgotten.
-------------------------------------

Hat tip to Kevin, M.D. ("This is revenue-driven medicine at its extreme").

Another synopsis (if you don't get WSJ) by Buckeye Surgeon Dr. Jeffrey Parks at Transplants Run Wild. He has this nugget, but the whole post is worth reading:

Well, it became evident that Dr Marcos was putting bad livers in patients who weren't that sick. Let's say your patient is number 25 on the MELD list. A liver becomes available. But it's a bad liver (old patient, prolonged ischemic insult prior to harvest, steatotic, etc) and transplant surgeons representing patients 1-24 on the list have all turned it down. It's a terrible liver, they say. Odds are, it won't work all that well. Your patient isn't that sick. In fact, said patient is living independently at home and was buying groceries for her family when you called her to tell her a liver was available. Nevertheless, you book her for the OR that night and stick that liver in her anyway.

Labels: Medical Malpractice

Medical blogger Shadowfax over at Movin' Meat has been sued for malpractice. He announced it on his blog.

The information came to him like this:

Nothing good ever comes via certified mail, and it was with a sense of dread that I took the envelope, noting the return address from a law firm. I opened it and was hit in the gut by the block type at the top reading "NOTICE OF INTENT TO SUE," with my name underneath.

While Shadowfax remains a pseudonym, he is ever mindful of the story of Flea, who had blogged his own malpractice trial under a pseudonym. When plaintiff's counsel found out, and confronted him on the witness stand, it made front page news.

You might guess that the doc is not happy. He writes:

So I'm not scared. I am pissed. Not at the plaintiff. Just in general, that I am going to have to do the whole deposition-discovery-negotiations-trial thing. I didn't want to go through this, and it's going to be painful and annoying. I'm buoyed by the belief that my care was not deficient, and that the case is defensible. In fact, I look forward to making my case that the care was superior

Will Shadowfax blog details of the suit? Read on at his blog to find out...but do it quick since he has threatened to delete it.

Labels: Medical Malpractice

Are doctors ratcheting up the protectionism for those that commit medical malpractice, according to an article in USA Today. (Medical malpractice battle gets personal.) The article ledes with a story of a nurse who was fired from her job simply because her husband works at a firm that does medical malpractice litigation. [Update, the story is from 2004, not yesterday as originally posted, but the tension between the two camps of physicians described below still exists.)

Apparently, some aren't too thrilled that there are lawyers out there trying to hold medical personnel accountable if they commit negligence. It was almost a year ago that I wrote a piece about the White Coat of Silence, regarding a Massachusetts General Hospital and Harvard Medical School study that found 46% of doctors admitted they knew of a serious medical error that had been made but did not tell authorities about it.

According to the USA Today story:

Some doctors are refusing medical treatment to lawyers, their families and their employees except in emergencies, and the doctors are urging the American Medical Association to endorse that view. Professional medical societies are trying to silence their peers by discouraging doctors from testifying as expert witnesses on behalf of plaintiffs. And a New Jersey doctor who supported malpractice legislation that his colleagues opposed was ousted from his hospital post.

This is, of course, appalling conduct. And continuing to discourage investigations and bury the mistakes will ultimately lead to a medical system that is worse off.

Thankfully, this conduct is not universal, as others have taken a vastly different tactic: They apologize for mistakes. And the result of those apologies is that lawsuits have dropped. (See: How to Put Medical Malpractice Attorneys Out of Business on 5/22/08 and More Doctors Encouraged To Say "I'm Sorry" on 4/11/07).

How effective are apologies? According to a May 18, 2008 story in the New York Times (Doctors Say 'I'm Sorry' Before 'See You in Court'):

At the University of Illinois, for example, of 37 cases where the hospital acknowledged a preventable error and apologized, only one patient filed suit. At the University of Michigan Health System, existing claims and lawsuits dropped from 262 in August 2001 to 83 in August 2007, and legal costs fell by two-thirds.

One particularly clueless surgeon quoted in today's paper, Chris Hawk of Charleston, S.C., doesn't seem to understand that basic human concept of the apology. Instead, he attacks the lawyers, as if this will stop malpractice from occurring. According to the article:

In South Carolina, Hawk says he first urged fellow doctors to refuse non-emergency treatment to lawyers, their families and employees in a speech at the state medical association's convention in March.

With that attitude, one has to wonder what Hawk and his ilk would tell a patient if they realized that a medical problem was caused by another doctor. Would Hawk be able to fulfill his ethical obligation to be honest with his patient under those circumstances? Is this the type of physician that a patient would want to have? He might do well if he first tried to understand why patients call lawyers to begin with.

And so the internal battle that the physicians are having continues to rage on. On one side are the protectionists who seek government intervention to afford various immunities for acts of negligence. Personal responsibility is, apparently, not their mantra.

And on the other side are the far savvier, and human, physicians that have come to realize that cover-ups create a whole host of problems. These range from inaccurate medical records and therefore improper treatment, to protecting bad doctors despite the risks to future patients, to resentment by patients who feel they have not had the level of candor that they deserve. And they have come to realize the simple human gratefulness of a distressed patient that has simply been told the truth.

(hat tip to Carolyn Elefant)

Labels: Medical Malpractice

Talk about weird. Down in Galveston, Texas a man had a piece of his skull removed due to brain swelling after a stroke. He was supposed to have it put back after the swelling went down. But, as you may have guessed from the headline here, the hospital lost that part of his skull. That's not supposed to happen.

And it doesn't seem to be a small piece of skull that got lost. This was an eight inch by four inch piece. That's a lot of head bone, as one of my kids might say. Three times he was scheduled for surgery and three times it was cancelled before hospital officials finally admitted they couldn't find the piece of skull that should have been sent to the bone bank. Instead, he had to have titanium mesh implanted.

Suit was filed yesterday against the University of Texas Medical Branch on behalf of 53-year-old Marvin Simmons. Interestingly, plaintiff's counsel Tony Buzbee wrote in the suit, "This is not a case for medical malpractice."

Why go out of your way to say it wasn't malpractice but just plain vanilla negligence? My guess is the 2003 tort "reform" in Texas that provides protection for doctors and hospitals for any non-economic verdict over $250,000 for each of them, forcing the victims of malpractice to bear the burden of serious injuries themselves. So given a case that might be malpractice or might be negligence, depending on how the bone was lost, the attorney opts out of the malpractice choice in the suit.

Since I don't practice in Texas, I can't comment on that choice. Brooks Schuelke down in Austin would be better on that part. But if it happened in New York, I would plead the case both ways and decide after discovery how to proceed.

Update: Here is a copy of the Complaint: Simmons-v-UTMB.pdf

Labels: Medical Malpractice, Personal Injury

Today's New York Times has an editorial on doctors saying they are sorry for mistakes, and the dramatic decrease in litigation that results. This philosophy of apology is anathema to many doctors, who according to a study, still cling to the White Coat of Silence in covering up their mistakes and those of their colleagues.

A couple dramatic examples from the Times editorial, which follows a May 18th story on the subject:

At the University of Illinois, for example, of 37 cases where the hospital acknowledged a preventable error and apologized, only one patient filed suit. At the University of Michigan Health System, existing claims and lawsuits dropped from 262 in August 2001 to 83 in August 2007, and legal costs fell by two-thirds.

This drop in claims comes as no shock to me, since one of the primary reasons people make that first call to a lawyer is anger at being mistreated or being unable to get information. That doesn't mean they have a viable lawsuit of course -- any decent medical malpractice attorney will decline 95% or more of the inquiries -- but it is often the reason for the call.

I wrote about this subject a year ago (see: More Doctors Encouraged To Say "I'm Sorry") and said:

I've always believed, based on the manner in which calls come in to my office, that poor communication (bad bedside manner) is the primary reason patients call attorneys. They are angry, or confused, or both.

So empirical evidence is now supporting the anecdotal evidence that I have acquired over the past 20+ years of medical malpractice litigation.

Just as in politics, and so many other things, the cover-up is often much worse than the initial mistake. Because while the accident may be negligence, the cover-up is an intentional act of deception. And when that deception comes from someone that you have trusted your life with, the sense of betrayal is profound. There are few emotions in this world that can compete with the sense of betrayal.

So if doctors and hospitals want to put me out of business, then say you're sorry and act like the decent people you likely are when things are going right. But if you want to keep me practicing medical malpractice litigation, then keep turning your backs on the patients when things go wrong, and let them make that upset and angry phone call to me.

Labels: Medical Malpractice

I'd previously written of how Dennis Quaid's newborn twins were victimized by malpractice when they received a massive overdose of heparin.

And I'd also written how he sued Baxter Healthcare over the mix up.

Today he testified before Congress. This is the most important quote:

"Like many Americans, I believed that a big problem in our country was frivolous lawsuits. But now I know that the courts are often the only path to justice."

Those who advocate tort "reform" generally have this in common: They've not been seriously hurt by someone else's negligence and never imagine it can happen to them.

Labels: Dennis Quaid Lawsuit, Medical Malpractice

Ever wonder how those urban legends get started about crazy lawsuits that somehow find their way into the hands of tort "reformers" who repeat them as true? Read on, my friends.

On a blog called ER Stories, an anonymous individual who calls himself an emergency room doctor in the northeast sets forth this set of facts, but without a single link or method of authentication:

A woman comes into the ER with a claim of a fish bone stuck in her throat, and has an x-ray. The radiologist says its an osteophyte, a small bit of bone. So she gets scoped two days later and, lo and behold, a fish bone comes out, not an osteophyte.

Now the good part, our anonymous doctor continues the story with the good stuff:

A few weeks later, all three doctors get the dreaded ", esq" singed letter - they are being sued for missing the bone. Now, here is the ridiculous part. Her suffering? Severe pain? Infections? Scarring? Worse? No, SHE SUED BECAUSE SHE COULD NO LONGER PERFORM ORAL SEX! Yes, that is right.

The case subsequently settles, allegedly, for $60,000 due to the misdiagnosis.

And so the story spreads. Kevin, M.D., aggregator extraordinaire for medical blogs, picks up the posting and spreads it far and wide with this headline and one-liner:

Unable to perform oral sex, sue the doctor

Read it to believe it.

So Kevin has bought the story. And at least two other highly-rated bloggers have also linked:

• Patient sues as she can no longer perform oral sex..and wins
• Woman unable to perform oral sex sues the doctor
  

While each of these bloggers no doubt linked to it in good faith, it must be noted that the original story has no case name, no documents or docket number, nor even a state where this allegedly happened.

The original author responded to the challenge of the unsourced material in the comments of Kevin's blog, in order to "authenticate" the story, with this whopper:

Actually I posted this story. I heard it first hand from a physician (who works with me) who was a partner with the doctor that was sued. He knew the details as they unfolded. Unless he was lying through his teeth to me, it is how it happened.

So the story hits the Internet third-hand:

1. The defendant
2. Defendant's partner
3. Anonymous Blogger

And that is how an urban legend is born. Not to mention a really good fish story.

Labels: Medical Malpractice

New York's medical malpractice insurance situation has been in the news quite a bit, due to a 14% increase in premiums. (See, Why New York Medical Malpractice Insurance Jumped 14%) Of course, even before that there had been no shortage of complaints that doctors would leave New York out of fears of high malpractice premiums. Every year the doctors go to Albany to lobby for tort "reform" and every year consumer groups rebut the stories they bring with them.

So here's the latest empirical evidence, as opposed to anecdotes used for propaganda. A recent exit survey of medical residents that have completed their training, from the SUNY Albany School of Public Health, says the the number of doctors leaving New York due to malpractice concerns was just 1.8%:

Forty-eight percent (48%) of the graduates with confirmed practice plans were staying in New York to begin practice, although there were substantial differences by specialty. The in- state retention rate has been relatively flat over the last four years of the survey. For graduates in 2007 who were subspecializing, 53% were planning to do so in New York compared to 52% in 2005.

• When respondents who were planning to practice outside of New York were asked why they were leaving, the most common reasons were proximity to family (26%) and inadequate salary (21%). Thirteen percent (13%) of respondents indicated that they never intended to practice in New York.
• Less than 2% of respondents reported that the principal reason for them practicing outside of New York was the cost of malpractice insurance (1.8%) or the lack of job opportunities for spouse/partner in New York (1.4%).

The number of doctors in New York is the highest that it has been in a decade.

hat tip: PopTort

Labels: Medical Malpractice

New York's new governor, David Paterson, was sent a joint letter yesterday by several consumer groups over the state's medical malpractice insurance issues. Contention arose when former Gov. Eliot Spitzer, in response to a 14% malpractice rate hike (see: Why New York Medical Malpractice Insurance Jumped 14%) created a task force under the supervision of Insurance Superintendent Eric Dinallo to come up with solutions. The commission, however, was stacked with more than 20 medical and insurance interests and just three consumer interests.

A press release was issued yesterday from the Center for Justice and Democracy indicating that the groups were "gravely concerned that any recommendations that are the product of such process will not serve the public interest" due to the stacked deck.

The letter itself details a failure by the task force to turn over information to consumer advocates and that a "major reform proposal" will be unveiled shortly despite the fact there have been no meetings for months. Consumer groups, it appears, are only superficially a part of the task force. The groups claim they are "mere window dressing, to be used as stage props to create the illusion of inclusion."

Given Spitzer's pro-physician bias, the conduct of the task force comes as no surprise (see Eliot's Mess: The Ramifications for Medical Malpractice "Reform" in New York). Hopefully, Gov. Paterson will deal with issues with an even hand.

The letter was sent by: Center for Justice & Democracy, Center for Medical Consumers and Citizen Action of New York (members of a task force) as well as by the statewide consumer group NYPIRG, medical malpractice victim group PULSE, and CURE-NY, a statewide coalition of 13 public interest groups.

See also: It's Not Just Wall Street That's Happy To See Spitzer Go (Mother Jones Blog)

Labels: Insurance Industry, Medical Malpractice

There are several different reasons that patients (or next of kin) call lawyers regarding potential medical malpractice. Understanding the motivation for the call is important in evaluating the merits of a case during the vetting process.

Two of those reasons are on display now at NY Emergency Medicine, in an extraordinary post by Dr. Brian Fletcher, a fourth year emergency medicine resident recounting a story from his internship. It involves a horrifying code that occurred while he was doing a bedside procedure on a 70 year old man who had undergone surgery some days before. Read that post and come back. It's very much worth a few minutes of your time.

OK, welcome back. Two possible reasons why a medical malpractice attorney might be consulted popped right out at me during the story, and I've added two more to a short list below.

1. An unexpected result and a betrayal of trust: We don't know from the story about what transpired after the code with respect to the patient's family. It is strictly a post through the eyes of the young doctor that went through it. But if a family isn't leveled with, if they think information is being held back from them, then a family may feel a betrayal of trust. It's pretty darn rare to get a call from someone that trusts their doctor, so something must have happened not only with respect to the medicine but with respect to the personal relationship between doctor and patient. (This is one reason doctors are urged to apologize for errors.) One of the most important questions any lawyer asks a potential client regarding the prospect of litigation is, "What will the other side say is the reason this happened?" This will often lead to clues as to whether the matter is worth the time and money to investigate further by paying for the medical records.

2. The hospital rumor mill. A substantial number of calls are generated by nurses, technicians, doctors or others whispering into the ears of the family about what they heard and urging that a lawyer be consulted. As can be seen from Dr. Fletcher's story, a lot of people with no first hand knowledge like to talk. It's old fashioned gossip that often should be appropriately discounted. The important question here is trying to find out what the storyteller really knows.

3. Money, money, money. This is not part of Dr. Fletcher's story, but it tacked on here because I'm rounding up the reasons for the initial inquiry to the lawyer. Money is an easy motivation to discover because, during the initial consult before you even have a chance to evaluate the case, the person asks, "What's the case worth?" Anyone with a lick of common sense knows that all parts of the story must then be appropriately discounted, and if the client's testimony is essential to proving the case (as opposed to being documented on medical records) it is likely a case not worth taking.

4. Outrage. This is usually motivated by a desire to make sure that other patients don't undergo the same fate. The Dennis Quaid case of his twins getting overdosed with heparin is a classic example. Nobody expects that the Quaids need the money from any suit. They have a point to make. And they are not alone. Many, many people, struck by tragedy from the loss of a close family member or injury to a child, will make the call based on nothing less than raw emotion.

Since investigating and litigating potential medical malpractice cases is long, expensive and difficult, any lawyer that is doing their job properly is declining inquiries at a rate of 95-98%. But that initial call is how it all starts.

Other posts on the subject:

• Medical Malpractice - Vetting the Case
• Medical Malpractice Economics
• Medical Malpractice - A Primer
• No, Your Medical Malpractice Case Will NOT Settle Fast

Addendum 3/19/08 -- From TortsProf Sheila B. Scheuerman: "Sorry Works!" - Apology to Prevent Med Mal Claims

Addendum 3/21/08: Why we've never been sued for medical malpractice (Ralph Caldroney @ Medical Economics via Kevin, M.D.)

Labels: Medical Malpractice

A defense verdict was handed down by a California jury today in a medical malpractice trial concerning the death of actor John Ritter from an aortic dissection. (Previously: The Medical Malpractice Trial of John Ritter)

The family had previously settled with other defendants for $14M, according to press reports, and had continued on with respect to a radiologist that had done a study two years before his sudden death, and a cardiologist in the emergency room.

The jury found with respect to the radiologist that he had been advised two years earlier to follow up after the study (but also alleged that it wouldn't have made a difference.) The case against the cardiologist revolved around the failure to do a radiological study that had been ordered when he presented to the emergency room.

When I wrote about the case a few weeks back, I noted:

My personal view: Suits against emergency departments are very difficult, though not impossible. Jurors will, if given half a chance, give the benefit of the doubt to emergency room physicians, often times even if their own protocols are violated. I have no idea what will happen in this particular case since I won't be in the courtroom hearing the evidence, but I say with some confidence that the scenario presented in the news media presents a difficult factual pattern if the hospital was the culprit in failing to get the CT scan done.

(hat tip to TortsProf)

More: Ritter Lawsuit Demonstrates How Medical Malpractice Caps Discriminate On Basis Of Wealth (David Lowe, InjuryBoard:Milwaukee)

Labels: Interesting Cases in the News, Medical Malpractice

In case anyone wondered why a personal injury blogger was covering the Eliot Spitzer scandal -- aside from the fact that his New York office is two blocks away from me and news helicopters are buzzing overhead as he prepares to resign -- it's because it may have deep ramifications for medical-legal issues here.

Just two days ago, before the scandal broke, I wrote about 1,500 doctors rallying in Albany. I debunked the myths that the New York Medical Society was using to support artificial one-size-fits-all caps on medical malpractice suits in their discussions with elected officials.

Part of the Medical Society press release, which I didn't discuss at the time, has this quote from Spitzer:

"I look forward to standing with you when we sign these medical liability changes into law."

So Spitzer, who's brother is also a neurosurgeon, was an important ally of the physicians in trying to limit patient rights. Victimized patients will not be sorry to see him go if this was the issue that they held most dear to their hearts.

Assembly Republican Leader Jim Tedisco (R,C,I-Schenectady-Saratoga) had this to say about incoming Governor David Paterson, as he set the bar high:

"David Paterson's life story is, in a word, inspirational. His public record is one of overcoming obstacles, showing true character in the face of daunting adversity and being able to bridge Albany's bitter partisan divide that has, regrettably, widened into a chasm in recent years."

"Governor Paterson knows the meaning of honor and has shown in both his deeds and words that he is a man of the highest public and personal integrity. His inherent decency and desire to put advancing the interests of the 18 and a half million New Yorkers we represent ahead of political partisanship will truly be a breath of fresh air."

Addendum on 3/13/08: Last year, after a 14% medical malpractice insurance hike, Spitzer enacted a medial malpractice liability task force to suggest solutions. It remains to be seen what will happen to it.

More (3/19/08): The National Association of Manufacturers gives its take here: On the Tort Reform Angle, Too Bad about Spitzer

Labels: Eliot Spitzer, Medical Malpractice, tort reform

New York's doctors, led by the state Medical Society, rallied last week for tort "reform," blaming lawsuits for the increase in insurance premiums. According to a medical society press release, 1,500 physicians traveled to Albany last Tuesday to protest on the steps of the State Capitol. The issue they brought to the legislators was high medical malpractice premiums, which I reported last July jumped 14% (see: Why New York Medical Malpractice Insurance Jumped 14%).

As you can see from that link (You did read that link, didn't you? I hope so because it's important), the jump was related to artificially low rates set by the New York Insurance Department for years combined with the state swiping almost $700M from the rainy day fund.

But when the doctors rallied in Albany, it was injured patients that were their targets. In a surreal moment, Dr. Robert Goldberg, the head of the Medical Society, offered up in a press release this humdinger of Doublespeak:

Physicians firmly believe that patients who truly suffer injury due to medical error should be fully reimbursed for economic damages, but non-economic awards must be reined in and the litigation process must be made equitable.

In other words, caps on lawsuits must be imposed on the most badly injured individuals because it would be inequitable to fully compensate them. Equity, it appears, demands giving some level of protectionism to the person that caused the injury. George Orwell would certainly be proud.

One of the reasons this bit of propaganda is important is because payments to the injured had nothing to do with the rate hike. In fact, both the number of malpractice case and the amount of payments made have been relatively flat nationwide since 1991.

And the nationwide trend does not differ in New York. In November 2007, Public Citizen put out a report (that I discussed previously here: Will NY Doctors Be Hit With $50,000 Surcharge?) that reached these conclusions, among many others:

• There have been fewer medical malpractice payments in the past five years than in any five-year period on record;
• Amounts paid out, when adjusted for inflation and population, have either risen slightly in the past five years or declined slightly, depending on the measure used;
• Only about 1 percent of New York's doctors are enrolled in the state's program for physicians deemed too risky by commercial insurance providers. Yet these doctors' payments have been so massive that they and other losses have drowned the program in more than $500 million in red ink this decade;
• A sliver of doctors are responsible for nearly half of the dollars paid out for medical malpractice in New York. Physicians who made three or more malpractice payments between 1990 and 2006 -- accounting for no more than 4 percent of New York's doctors -- were responsible for nearly half (49.6 percent) of medical malpractice dollars paid out on behalf of doctors in the time period.
• Costs for cases involving brain damage, blamed by some for rising insurance rates, are in fact modest in comparison with other types of cases. The category for injuries including brain damage ranks 5th of 10 in total amounts paid out. This fact exposes the lunacy of the radical proposal to deprive newborn babies of their legal rights and cede their care to a state-run fund.
• Researchers have found that premiums consistently make up only a small percentage of doctors' total expenses and that rising premiums have not, historically, depressed physicians' incomes.

Has any of this stopped the doctor's lobby from claiming that hitting victims a second time, by depriving them of a right to fully recovery, will help? Of course not. The only real questions are these:

• Will the doctors abandon the White Coat of Silence that stops them from turning in bad physicians?
• Will the doctors finally help to rid the state of the of the small percentage of doctors that are responsible for the majority of malpractice payouts?
• Was the medical society's propaganda known to the doctors who answered their call to lobby, or where they snookered by their own people?
  

--------------------
Full disclosure: I have lobbied New York's legislators several times in the past to keep the courthouse doors open for the injured, and am currently scheduled for a return visit in May with the New York State Trial Lawyers Association.
--------------------

Addendum - see also:

• Patient Safety Express (The PopTort):

  "Only 4% of New York's doctors are responsible for half of all of the state's medical malpractice payouts. How many more people have to be infected by deadly diseases, or killed by incompetent practitioners before the state will act?"

• Patient Safety Express, Day Two (The PopTort):

  This morning, the "Patient Safety Express" made its way to Albany. The 15-foot syringe and handful more medical malpractice survivors made it through the metal detectors at the State Capitol to tell their stories to the media....

Labels: Insurance Industry, Medical Malpractice

New York plastic surgeon Michael Evan Sachs has finally surrendered his license. As of 2005 he had settled an astonishing 33 malpractice suits, according to this New York Times story.

One of those suits concerned the highly publicized death of Kathleen Kelly Cregan who had flown to New York from Ireland for a face lift.

In a long 2005 investigative piece in the New York Times, it noted that he had settled 11 cases in 1999 alone, and that the Daily News had stated back in 2000 that he was a list of the "most sued doctors in New York." (Sachs is seen here in an image from his promotional video.)

According to the article he specialized in rhinoplasties (nose jobs) and sometimes did as many as 10 in one day according to a former employee. "Appearing in 2003 on a broadcast of 'Ireland AM,' the country's most popular morning television show, he stated he had done 42,000 rhinoplasties," which would have been an average of four every day since he graduated medical school. He once did a free face lift in exchange for publicity in an Irish newspaper.

And it was that article that brought Kathleen Kelly Cregan to New York where she died.

Commenting about his web site, Dr. Scott L. Spear, the president of the American Society of Plastic Surgeons when the 2005 New York Times article appeared, said of Dr. Sachs's curriculum vitae and biography: "This thing is full of puffery, self-aggrandizement and not professional. This is not a surgeon of high professional standing."

In May 2005 New York City medical examiner said that Dr. Sachs's surgery "was a significant contributing factor" to Ms. Cregan's death.

Simply being sued, of course, doesn't mean one did anything wrong. There are, after all, some bad lawsuits. But you would think that after the first dozen the Health Department would catch on that there might be a problem, investigate quickly, and not let things get out of hand. A list of 27 settlements from the past 10 years can be found in this document: MichaelSachsSettlements.pdf

It was just last week that I discussed the idea that the tort "reform" of capping malpractice judgments for the most badly injured was a horrible idea. And that if we wanted to do anything about reducing malpractice payments we should take note of the fact that one study showed that 7% of doctors were responsible for 68% of the payouts. (And in the comments of that post, another study, apparently using different years, found 5.9% of doctors responsible for 57.8% of the payouts. The study also found that 82% of doctors had never had a payout.)

So along comes Dr. Michael Evan Sachs to help prove the point. If medical malpractice insurance premiums are a problem, perhaps the medical groups should think less about maintaining a White Coat of Silence, and do more to exorcise the bad doctors from their ranks.

Dr. Sachs apparently got his medical malpractice insurance, by the way, through a guaranteed malpractice risk pool that spread his risk out to others. It was this very same risk pool that was raided by the State of New York of $691M to balance the budget, and helped to cause the recent 14% malpractice insurance rate hike.

The Cregan case is still pending, and is being defended by Mark Aaronson, one of New York's top medical malpractice defense attorneys.

See also: Manhattan plastic surgeon in accused of patient death loses his license (New York Daily News)

Labels: Medical Malpractice

OK, maybe this American Medical Association article didn't have quite the same headline I used. But according to them, tort "reform" in the form of capped damages means there will be lower insurance rates.

In other words, if the burden of a terrible loss is heaped upon the victim and not the tortfeasor, then the person that caused the injury will be better off.

So why have a cap? I bet if we lowered the cap to zero, that premiums will go down even further. Really great, huh? Especially if you are the insurance company or the person that caused the injury.

Of course, there are also other ways to bring down premiums. Like getting rid of bad doctors and not engaging in a white coat of silence. In New York, 7% of doctors are responsible for 68% of the malpractice payouts.

Does this mean there should be no damage caps at all? Of course not. New York doesn't have a one-size-fits-all cap on damages, and we do just fine (see How New York Caps Personal Injury Damages). The question of artificial damage caps really boils down to this: Who should bear the burden of a loss, the one that caused it or the one that suffered it?

(hat tip to Kevin M.D. for the link, though I'm guessing he has a slightly different view)

Labels: Medical Malpractice

Talk about chutzpah. First the doctor operated on the wrong side before correcting himself and operating on the right side. Then the patient was billed for both surgeries.

While 10 states will no longer allow billing for "never events" such as wrong site surgeries, 40 states still allow it.

But still, even if the state allows it, what goes through the mind of the person submitting that bill? Operate on the wrong side and then bill for it? Good grief. MSNBC has the story.

Labels: Medical Malpractice

Last year Mercy Medical Center out on Long Island did a double mastectomy on a woman in her 30s. The problem was that she didn't actually have breast cancer, as her test results were mixed up with another patient. She died from complications the day after the surgery.

According to today's New York Times, and the New York Post from yesterday, the hospital is under investigation by the Health Department. The hospital was being investigated for the failure in the pathology lab with respect to the tissue mix-up that led to the woman's death, but apparently led to a doctor's complaint that "a physician's assistant had improperly inserted catheters, chest tubes and pacemakers into patients. Three such patients died, the doctor said: a 65-year-old man and a 64-year-old woman last summer, and a 19-year-old woman in October."

It is worth noting, I think, that the investigation apparently comes at the behest of a physician. So that while some folks in the hospital may be trying to cut corners with the use of physician's assistants when not appropriate, others are apparently not willing to remain silent on the subject. This reminds me to some degree of the nurse who wrote two days ago about her refusal to remain silent on which doctor's were reviewing fetal heart monitor strips while covering for another (see: How Medical Malpractice Gets Covered Up).

It's good to see when medical personnel push back against the very disturbing White Coat of Silence that was documented last year in a study. Having the doctors go the way of the police and their blue code of silence would be just awful for patients.
-----------------------------------------------

Note: Last year I covered a case of a woman with a double mastectomy after a lab screw-up, but there is no reference to Mercy Hospital or death in the story, and I am unclear if this is the same case. See: Long Island Woman Has Unneeded Double Mastectomy.

Labels: Medical Malpractice

Ever wonder how malpractice gets covered up or why it doesn't appear in the medical records? Well, an anonymous obstetrical nurse from Pennsylvania opened that little door for us today.

Writing at the blog At Your Cervix (perhaps one of the most creative medical blog names around), she writes how she was reprimanded for documenting in the medical chart the name of a covering doctor that had reviewed the external fetal monitor strip. You read that right: Folks were actually mad at her for being accurate with her notes and writing down in the chart who had reviewed important information regarding the patient.

Now the covering of a patient by another physician can be fairly common. No one works 24-7, and even during working hours there may be other patients or emergencies to attend to. This is particularly true in obstetrics. But apparently, the Powers That Be at this large teaching hospital where she works would like this to remain a mystery. She writes:

Dr So-And-So's colleague feels that we should only chart "attending aware of EFM strip" or something along those lines - and not actually document the physician's name on the record.

What does this mean? A couple things. First, and most importantly, it means that when a subsequent physician or nurse comes on the scene they won't necessarily know who read the strips and who is aware of the situation. That is one less person with actual knowledge of the patient for the next doctor to talk to. Second, it means that if something does go wrong, it is the nurse in the hot seat.

The nurse goes on to write:

Apparently the physician colleague went on to say that if it was every subpoenaed for court, he would refuse to hand over the list of attending physicians on duty during that time period.

Isn't that darling? Now this nurse is one tough cookie. Because this was her ultimate response:

I told my nurse-manager, in no specific terms, that I will continue to document as I do, to cover MY ass. I'm not out to harm anyone - patients, women, babies, physicians, midwives, fellow nurses, etc - but so help me, I will document completely and thoroughly for not only accuracy in the chart, but for best recall for myself if I am ever taken to court.

Now here is the kicker: It was just last week that I was in a debate with Ted Frank over at Point of Law about Bush's statement in the State of the Union about "junk medical lawsuits" and I said that Bush never cites empirical evidence that this was an actual problem. Ted responded with a study in the New England Journal of Medicine that showed there were some suits for which claims were paid that, based on the documentation, didn't have merit. And while I responded that the authors of the study said this was not a significant problem, here is one more thing for those tort "reformers" to consider: Sometimes there are reasons malpractice isn't revealed in the chart, and that is deliberately lousy charting by those involved. They are thinking about themselves instead of the best interests of the patient.

Thanks to Elizabeth for the link to At Your Cervix.

[Addendum 2/11/08 - I wrote about malpractice cover-ups two months ago in Medical Malpractice and the White Coat of Silence, which deals with a Harvard study done in conjunction with Mass. General Hopsital. The study found that 46% of doctors admitted they knew of a serious medical error that had been made but did not tell authorities about it.]

Labels: Medical Malpractice

Four years ago comic actor John Ritter suddenly died from an aortic dissection after being rushed to the emergency room from the set of his sitcom, 8 Simple Rules ... For Dating My Teenage Daughter. A medical malpractice action ensued. The defendants include a radiologist that did a scan two years before and failed to note any enlargement of the aorta in the 54-year old actor, and a cardiologist that saw him in the emergency room at Providence St. Joseph Medical Center in Burbank, California.

According to this story in USA Today:

[T]he cardiologist [was] summoned to the emergency room at Providence St. Joseph Medical Center in Burbank after Ritter was taken there complaining of nausea, vomiting and chest pain. Plaintiff's lawyers say a chest X-ray should have been performed before Lee treated Ritter.

The doctor's lawyers say that there wasn't enough time for that and that a chest X-ray ordered earlier inexplicably was not done. They say Ritter's symptoms were more consistent with a heart attack than anything else and had to be treated quickly.

Kevin M.D. has previously written on this case. But, not being in the courtroom, he has to work from public accounts. He offers us this along with a longer analysis at the link:

Was it malpractice? Tough to say. The question I'd be interested in would be how long it took for the ER to order that chest CT scan.

His family says that he likely would have survived with prompt treatment and that the treatment for the aortic dissection is the opposite of treating him for a heart attack. The hospital, by the way, has already settled.

My personal view: Suits against emergency departments are very difficult, though not impossible. Jurors will, if given half a chance, give the benefit of the doubt to emergency room physicians, often times even if their own protocols are violated. I have no idea what will happen in this particular case since I won't be in the courtroom hearing the evidence, but I say with some confidence that the scenario presented in the news media presents a difficult factual pattern if the hospital was the culprit in failing to get the CT scan done.

With respect to the radiology films from two years earlier, that will be a classic "battle of the experts" that cannot be evaluated by people outside the courtroom unless they have seen the actual films at issue.

Jury selection starts today.

Labels: Interesting Cases in the News, Medical Malpractice

When I wrote this morning that Bush complained, once again, about "junk medical lawsuits" in the State of the Union, I wrote that he never cites any studies to support the claim. Nor for that matter, do tort "reformers." Ted Frank jumped up at Point of Law to claim, however, that a study reveals that 28% of patients who suffered no medical error received compensation. So let's look at the study he cites to that was published in May 2006 in the New England Journal of Medicine, which was conducted by the Harvard School of Public Health and the Harvard Risk Management Foundation (Claims, Errors, and Compensation Payments in Medical Malpractice Litigation). But I'll give you a quick peak at the conclusion: The authors clearly disagree with Ted as to whether there is a problem of frivolous medical malpractice suits.

My perspective in doing this analysis is 20 years of doing mostly medical malpractice cases, having reviewed hundreds of filed cases (and vastly more of potential claims that were rejected), deposed many hundreds of medical witnesses and tried my share of cases. Ted brings to the table a career in academia, BigLaw and conservative think tanks. That doesn't make either one of us right or wrong, it just shows our perspective.

In looking at how the numbers were arrived at, the first thing that jumped out at me from the study is the fact that the analysis was from the perspective of the defendant doctors/hospitals since closed insurance company claims files were the source of the materials the investigators used. This meant, almost by definition, that the defense claims will be more fully presented in the files than the plaintiffs' claims.

Take this simple example: A woman complains of a hard lump in the breast at a January exam. The lump is dismissed by the doctor as fibrocystic disease, and that note is made in the chart. A year later, the lump is finally biopsied due to continuing complaints and the cancer is found. The patient says one thing about that January visit while the doctor, relying on her notes, says something else.

Thus, a finding of liability by an investigator is damning in any one particular case because it is likely based on the records, but a finding of no liability does not carry the same weight. Why? Because many cases present raw issues of fact that can't be decided by a review of files such as the breast cancer case above. A doctor says one thing and a patient says something else. If the medical notes are skewed, they are skewed toward the defense. (The authors concede this problem, writing: "Agreement was especially difficult to obtain among claims involving missed or delayed diagnoses.")

Resolving these disputed issues of fact is a jury function. They do their best by looking people in the eye when they testify to make their determinations in conjunction with direct and circumstantial evidence mustered by both sides. It may take anywhere from several days to several weeks to hear that evidence.

But these investigators, the report authors wrote, spent just 1.6 hours per claim. Just 96 minutes to read the medical chart (and decipher the handwriting), claims memos, deposition transcripts and other evidence? That's one way to get a skewed result. How, exactly, were the investigators to evaluate a doctor that kept giving evasive answers? Or a plaintiff that did the same? The reviews are only as good as the information being reviewed.

The reviewers, it should be noted, had a high confidence rate for their results in only 44% of the cases. There was 30% with moderate confidence and 23% were close calls.

Notwithstanding that, the study found that: Overall, 73 percent of all claims for which determinations of merit were made had outcomes concordant with their merit. Discordant outcomes in the remaining 27 percent of claims consisted of three types: payment in the absence of documented injury (0.4 percent of all claims), payment in the absence of error (10 percent), and no payment in the presence of error (16 percent). Thus, nonpayment of claims with merit occurred more frequently than did payment of claims that were not associated with errors or injuries.

According to the researchers, therefore, there was a payment in the absence of error just 10 percent of the time when looking at 1452 cases. How did Ted get the 28% number above? Because he elected to work only from the smaller subset of 515 "no error" cases instead of the entire pool, and the 145 payments made. That gets filed in the Fun With Numbers Department.

According to the researchers, even with imperfect information it appears that the existing medical malpractice liability system works well.

But don't take my word for it. The two conclusions of the study, done by doctors not plaintiffs' attorneys, and you can read the study yourself, were:

1. [P]ortraits of a malpractice system that is stricken with frivolous litigation are overblown; and
2. The malpractice system performs reasonably well in its function of separating claims without merit from those with merit and compensating the latter.

I find it odd that Ted would cite to the study, since the authors have stated quite bluntly that his portrait of a system stricken with frivolous litigation is overblown and that the system works reasonably well. Was this some type of Orwellian up-is-down reformspeak?

Finally, Ted writes in his piece that, "perhaps Turkewitz sincerely thinks that the plaintiffs' lawyers' decision to bring a lawsuit is little better than a coin-flip in determining whether a doctor committed medical error." For the record, I have never said anything even remotely like that. I have, however, said the exact opposite on how such cases should be approached in order to lower the risk of inadvertently taking on a bad case. My views on the vetting of medical malpractice cases as well as the brutal economics involved in such cases might make for better sources of material if one needs to attribute thoughts to me. This is especially true since juries tend to favor doctors.

Given that, according to the study, the "non-error" claims were more likely to go to an expensive trial, significantly less likely to result in compensation, and when compensation was paid it was significantly lower than average, only the biggest of fools would bring a claim that they thought was without merit. Such a course of conduct would quickly lead to bankruptcy for the attorney.

See also regarding this study:

• The Truth About Medical Malpractice Litigation (Center for Justice and Democracy);
• The Great Medical Malpractice Hoax (Public Citizen);
• A Study To End the Frivolous Malpractice Lawsuit Myth (Medical News Today)
• The Myth of Frivolous Litigation (this blog)

And more regarding the Bush comment:

• Another View of Medical Malpractice Lawsuits (Wash Square Prophet)
• President Bush Continues to Bash "Junk Lawsuits" But Where is the Meat? (ZiffLaw)
• Where Do the Candidates Stand on Health Care? Conclusions (Drum Major Institute)
• So What's the Real State of the Union (TortDeform)
  

Labels: Medical Malpractice, tort reform

It happens like clockwork. Every State of the Union George Bush has given I remember him making comments about junk medical malpractice suits of some kind. Last night he, unsurprisingly, did it again.

And every State of the Union speech follows the similar pattern of failing to provide any empirical evidence to support "junk" suits being an actual problem. I've never seen a study showing frivolous suits to be a problem. Have you?

In fact, just the opposite is true. Empirical research shows that the medical tort system works, except for those times that it actually favors doctors. But it doesn't stop certain politicians from trying to perpetuate the myth of frivolous litigation.

And it's worth noting that the contingency fee is a strong disincentive to bring bad suits, as the attorneys generally must take the risks with their own money, and since the suits are militantly defended bringing bad suits leads to attorney bankruptcy. The medical community already enjoys de facto immunity for medical malpractice in many jurisdictions for all but those instances with exceptionally bad injuries. And the federal government, and every state that I know of, also has rules in place to sanction frivolous suits when they are brought.

So there is a good reason you won't see Bush and the tort "reformers" tout any kind of empirical evidence. Because their agenda is driven by anecdotes of the occasional bad cases brought by a bad lawyer. Not by actual studies.

On the political front, I've always found it odd that tort "reform" comes from the right wing of politics, since taking personal responsibility for one's actions (or mistakes) is such an important concept. But it falls by the wayside, without explanation as to the obvious hypocrisy to political theory, when it comes to big business and medicine. Instead, the victims are asked to bear the brunt of a burden caused by others.

So too have the concepts of states rights and limited government fallen to the wayside when it comes to looking for ways to lend protections and immunities to business and medicine when they have fouled up and hurt someone. It's certainly not the way a capitalistic society is built.

Maybe, someplace and somewhere, someone has come up with a rationalization for the political hypocrisy. If there is one that actually makes sense -- a justification for giving government protections and immunities to the wrongdoers at the expense of the victims -- I'd like to see it.

Addendum: Ted Frank commented on this piece at Point of Law, and I have responded here: More on Bush's Frivolous Claim of "Junk Medical Lawsuits"

Labels: Medical Malpractice, tort reform

That headline above is the title of a story currently running on CNN's web site. It comes out of Atlanta about a patient that believes malpractice was committed on her during the course of a hysterectomy, and has necessitated three additional corrective procedures. Her allegation is that the surgeon erred by nicking a ureter, causing urine to accumulate in her abdomen. The patient, as it happens, is also a physician.

But when the doctor-patient tried to find an attorney to handle her case, she struck out. Why? Because the difficulty and expense of medical malpractice litigation results in de facto immunity for the medical profession in a great many cases. Without a catastrophic injury, it becomes very difficult when looking at the costs and benefits to undertake representation. The story is remarkably similar to one I wrote about the other day, about a California doctor seeking out a medical malpractice attorney (see: Another Tort "Reformer" Sees The Light).

The two stories point to a brutal reality of medical malpractice litigation and the contingency fee system. As a business model, it sucks. Big time. An attorney must lay out many thousands of dollars for years on end, while still paying the overhead of an office (not to mention the mortgage, car, kids, etc.) for a risky endeavor. Perhaps many such risky endeavors. Calling this a significant cash flow problem is an understatement. Then, if the case is won or settled favorably, you have to listen to people who are ignorant of the economic realities pretend that the legal fee is some kind of easily made gravy. One thing is for sure, it is not the road to any kind of economic security. I wrote about this months ago in Medical Malpractice Economics.

And so, the lawyers that get the inquiry of the type you see in this CNN story are faced with the same kind of decision those of us in the profession deal with every day. Turning away inquiries at a rate, if their experience is like mine, of probably 95-98%. Most won't make it past the telephone interview, and if they do, past the office interview. I wrote about the mechanics of vetting the medical malpractice case back in May.

So these stories make headlines every so often. But for those that deal with this stuff, they come as no surprise at all.

The other day Susan Cartier Liebel made a request for stories about starting up your own practice, in a type of Letter to A New Lawyer. So here's my advice. Think twice about any field where you spend your own money for years on end for a future result with no current cash flow. Line up your financial resources in advance. Start a line of credit with a bank now. Don't wait for the time when you actually need it. Banks only want to lend money to people who already have money, not to those that are cash-strapped.

And I'm willing to bet that not a word of this was taught in your law school.

Labels: Medical Malpractice

An epic medical malpractice battle that is shaping up in West Virginia has two attorney brothers squaring off against each other. The case involves injury to over 100 patients due to the reckless hiring of Dr. John King without checking his credentials. The doctor, it seems, never actually finished his residency. A jury has already found against the nation's largest for-profit hospital chain, HCA Inc. on liability.

The battling brothers are Tyler and Todd Thompson of Louisville, Kentucky. The story can be found at their local paper, the Courier-Journal. (hat tip: Kentucky Law Review)

Now here's the kicker to this story: Dr. King -- who falsely boasted that he had been director of spine surgery for the famed Cleveland Clinic and team doctor for the New York Yankees, operated on the limbs and spines of 500 patients in seven months and has 122 suits filed against him -- has had his license stripped from him in ten different states. But he is still practicing medicine in Kentucky.

Labels: Interesting Cases in the News, Medical Malpractice

Is yesterday's headline a real issue, is it a scare tactic from the Superintendent of Insurance, or does it come from the NY Sun taking something out of context to help push immunity legislation for doctors?

The headline in the Sun reads: N.Y. Doctors Could See $50,000 Fee: 'Surcharge' Would Rescue Malpractice Insurers.

The scary headline comes from an interview with Superintendent Eric Dinallo, who is running a task force to address the insurance "crisis" that hit when New York jumped its medical malpractice premiums 14% this year. The reasons for the jump are an issue I addressed earlier, and are a function of state mis-management during the George Pataki years (see: Why New York Medical Malpractice Insurance Jumped 14%.) Among the many reasons were artificially low rates (set by the state) and Governor Pataki taking (with legislative approval) about $700 million from a malpractice rainy day fund to help balance the state budget.

The screaming headline in the paper (front page, above the fold) it should be noted, had nothing whatsoever to do with rising malpractice claims or payouts. Those have remained stable for many years. No, the reason for the headline is the state-created shortfall, and the ways they are trying to fix the system they broke.

One method of trying to "fix" the system, of course, is to break it further by trying to blame lawsuits for the problem. We see these types of complaints all the time. If only the health care workers would be given some form of immunity for negligence, it is argued, all would be well with our health care system. Because, as everyone knows, nothing forces a person to act responsibly better than grants of various forms of immunity or protection.

Public Citizen recently put out a report on the faux crisis. It is a devastating indictment of the state's mismanagement and puts to bed the phony claims that problems are related to lawyers and lawsuits. It also points the finger where it belongs and makes its own suggestions on how to remedy the problems.

Some more facts from the Public Citizen report:

• There have been fewer medical malpractice payments in the past five years than in any five-year period on record;
• Amounts paid out, when adjusted for inflation and population, have either risen slightly in the past five years or declined slightly, depending on the measure used;
• Only about 1 percent of New York's doctors are enrolled in the state's program for physicians deemed too risky by commercial insurance providers. Yet these doctors' payments have been so massive that they and other losses have drowned the program in more than $500 million in red ink this decade;
• A sliver of doctors are responsible for nearly half of the dollars paid out for medical
  malpractice in New York. Physicians who made three or more malpractice payments
  between 1990 and 2006 -- accounting for no more than 4 percent of New York's
  doctors -- were responsible for nearly half (49.6 percent) of medical malpractice
  dollars paid out on behalf of doctors in the time period.
  
• Costs for cases involving brain damage, blamed by some for rising insurance rates,
  are in fact modest in comparison with other types of cases. The category for injuries
  including brain damage ranks 5th of 10 in total amounts paid out. This fact exposes
  the lunacy of the radical proposal to deprive newborn babies of their legal rights and
  cede their care to a state-run fund.
• Researchers have found that premiums consistently make up only a small percentage
  of doctors' total expenses and that rising premiums have not, historically, depressed
  physicians' incomes.
  
  

The state's Department of Health's Office of Professional Medical Conduct has been notoriously lax when it comes to doctor discipline. Just last month it was revealed that it waited three years to alert hundreds of people that a doctor had been reusing syringes with multi-dose vials, thereby contaminating the vials and exposing hundreds of people to infections. According to the Public Citizen study, New York's comptroller found that the Office of Professional Medical Conduct failed to investigate about 175 doctors for whom investigations should have been triggered based on the agency's existing criteria.

Frankly, if we have an insurance crisis because the state took $700 million to balance the budget in tough years, and we have a small percentage of doctors responsible for so much of the damage, then it is a no-brainer on how to equitably fix the problem. It isn't by a $50K surcharge on doctors, a scare tactic if ever I saw one. And it isn't be restricting access to the courts for those that have been injured by negligence.

It's by doing two basic things: Taking the money back from the general fund where it had disappeared to and investigating the few bad doctors that do so much of the damage and putting them out of business. It means a responsible government engaging in good health policy by policing the medical force and using sound budgetary policy instead of shell games.

Fault here lies not with the vast majority of doctors, nor with the patients that were injured or their representatives. It lies with former governor and the legislature. The problems have been identified and the proper solutions offered. The state should do the right thing and fix the problem appropriately, without injuring those that are most involved.

Labels: Medical Malpractice

See that clamp to the right? It was left inside a patient. Think it's unusual? Studies show that about 1,500 times a year surgical objects are left behind by mistake in the U.S.

This, of course, isn't supposed to happen. The surgical team is supposed to count all that goes in, and then count all that comes out. If the counts don't match, something is wrong.

The prior technology to find the missing equipment, which is most often a sponge or pad, is to have a radio opaque filament inside so that it shows up on an x-ray. An example of that can be seen at the film below left. (Some folks collect baseballs, some collect figurines, but a medical malpractice attorney collects, well, this stuff.)

Now a new technology is coming out where the sponges and pads will be bar coded, according to this article. The sponges are supposed to be scanned when they go in and re-scanned when the come out, and the scanning machine is supposed to set off a racket if everything is not accounted for. Will this help cut down on the human error that accounts for the current state of things? Perhaps.

The medical euphemism for these forgotten objects, by the way, is that the object was "retained," as if the body itself demanded it be left behind. And that is one of the ways that language is subtlety used to shift blame away from the medical team for its failure to keep track of the instruments.

Labels: Medical Malpractice

A New York medical malpractice defense firm has demanded permission to conduct 76 private interviews regarding the plaintiff's medical care. The request came in the immediate wake of Arons v. Jutkowitz, a Court of Appeals decision that permits informal interviews with treating physicians, a discovery tactic not previously permitted under New York law. The defense request goes well beyond treating physicians, and seeks broad based interview authority for entire institutions as well as inanimate objects.

On the day Arons was decided, I wrote that "This is a bad decision that will inevitably result in a mountain of litigation." I specifically pointed to the statement by Judge Read (pictured), author of the majority, that:

"it is of course assumed that attorneys would make their identity and interest known to interviewees and comport themselves ethically"

The "just trust me, I'm a defense lawyer" rationale, however, is not a substitute for HIPAA. It is a setup for abuse.

And so now the abuse of the decision has started, served on December 4th, less than a week after the decision. The first recorded instance comes in the request for 76 authorizations for ex pate interviews in a medical malpractice case concerning a failure to diagnose and treat breast cancer in a 40+ old woman. Among the requested interviews (document here: 76-Interviews.pdf) are requests for 27 interviews that don't even pertain to human beings, including:

• "Pathology slides;"
• "Clove Lakes Entity;"
• "Methodist Hospital Lab;"
• "Qwest" (another lab);
• "GHI" (health insurer);
• "Alpha Neuro" (Your guess is as good as mine)
  

In an interview I conducted with plaintiff's counsel in this case, Bob Vilensky, he wondered aloud as to what the buildings, laboratories and pathology slides would say. (The demand is not for medical records or for physical inspections, but for interviews.)

In contrast to my concerns about the problems that would ensue with the Arons decision, Beck/Herrmann at the Drug and Device Blog, extolled the virtues of the decision and in the comments disputed my view of the dangers, saying, "Most defense types bill by the hour, so the clients don't want to pay for irrelevant rummaging ... "

Well, I think this conduct, which was easily predictable, should put that argument to rest. And I don't think this will be the only outrage, only the first of many. And it should also give pause to those that claim the high cost of litigation is due to the actions of plaintiffs' attorneys.

The judges are going to have their hands full.

(Eric Turkewitz is a personal injury attorney in New York)

Labels: Medical Malpractice

Actor Dennis Quaid has brought suit against Baxter Healthcare. Last week I wrote of the medical malpractice that had been committed against his hospitalized newborn twins and the labelling issues, when an adult dose of the blood thinner Heparin was used instead of an infant dose. There was a 1,000x difference in the dosages. The labels are similar, the adult dose was apparently stored in the pediatric area, and someone didn't look close enough at the vials.

Now, according to TMZ, Quaid has sued. But only sued Baxter, and not the hospital. The Complaint is here: Quaid-Complaint.pdf. There are two causes of action: One for strict liability and one for negligence.

A few thoughts on this:

• Quaid's kids presumably don't need the money from any suit, so it isn't "just about the money." This makes life much more miserable for Baxter;
• The twins, while critical for awhile, are apparently OK now. So it really isn't about the money;
  
• By not also suing the hospital where it happened (Cedars-Sinai in Los Angeles), the defense has the "empty chair" defense easily at hand. That is, you point the finger at any party that is not in the courtroom. (That's why so many people often get sued after an incident. To make sure the empty chair defense isn't available to defense counsel.)
  
• The case was brought in state court in Illinois, not out in Los Angeles. Illinois is the location of Baxter's corporate office. Since California has tort "reform" that provides immunities for many defendants (or at least they do in med mal) this might be the rationale for the choice of court. (I'd like to see what California attorneys have to say on that.)
  

So why wasn't the hospital sued? My guess is that it's because they apologized. While many doctors/hospitals still cover-up mistakes (see: Medical Malpractice and The White Coat of Silence) others have come to realize that the simple human acknowledgement of error goes a long way. On the subject of apologies, I wrote back on April 11:

I've always believed, based on the manner in which calls come in to my office, that poor communication (bad bedside manner) is the primary reason patients call attorneys. They are angry, or confused, or both.

Now, from an AP story, we find that the hospital had acknowledged the error and apologized. But what did Baxter do? Well, it seems they issued a warning letter to healthcare workers earlier this year. But starkly missing appears to be the human elements of accountability, contrition and acknowledged wrongdoing. And I'm guessing that the Quaid family will start pushing till they get that. Publicly. Because that's one of the best ways to see that it doesn't happen to someone else's kids.

(hat tip: TortsProf)

Labels: Dennis Quaid Lawsuit, Medical Malpractice

A study released today shows that almost half the nation's doctors fail to report unethical, incompetent or dangerous colleagues. According to the study by Massachusetts General Hospital and Harvard Medical School, 46% of doctors admitted they knew of a serious medical error that had been made but did not tell authorities about it.

Some of the data from the survey:

Up to 96 percent of those surveyed said they should report all instances of significant incompetence or medical errors to the hospital clinic or to authorities. The exception was among cardiologists and surgeons, with just about 45 percent agreeing.

Why cardiologists and surgeons are more prone to cover-ups isn't something I know, but I'm certainly curious about the answer.

There was also a disconnect among doctors about what they felt should be done, and what they actually do:

While 93 percent of doctors said they should provide care regardless of a patient's ability to pay, only 69 percent actually accepted uninsured patients who cannot pay.

In 2000, the U.S. Institute of Medicine reported that up to 98,000 people die every year because of medical errors in hospitals alone.

And so, while some states have been doing what they can to encourage apologies for errors (see: More Doctors Encouraged To Say "I'm Sorry"), there are still many doctors that feel burying the mistakes is better.

Labels: Medical Malpractice

Out on Long Island, the name Harvey Finkelstein is now widely known. The anesthesiologist has been the subject of several articles this past week concerning a three-year investigation that revealed he had potentially exposed hundreds of patients to blood-borne diseases by routinely reusing syringes in multi-dose vials. This exposed patients to Hepatitis and HIV/AIDS.

While Finkelstein used only one syringe per person, he would stick the syringe into a multi-dose vial that would also be used by others, thereby contaminating the remainder of the vial.

Aside from the conduct of the doctor, this story has a kicker: The state's investigators waited three years to let patients know, sending out 628 letter just this past week. Why is that significant? Two reasons, one medical and one legal.

First, and clearly of paramount importance, if someone was infected they didn't get prompt treatment. Second, because the statute of limitations in medical malpractice in New York is 2 1/2 years, those that may have been infected not only didn't learn about it in a timely manner, but may not be able to institute legal action to redress their grievances. In New York, the statute of limitations is not governed by when the negligence was discovered, but by when it happened or by end of the continuing treatment by that physician.

In today's news, Newsday writes of the secret procedures in New York that keep disciplinary issues as far from the public eye as possible. New York, it seems is one of only five states out of 42 that were surveyd last year in which no parts of the proceedings were public. From the article:

It is among a handful of states that conducts the entire probe in private and withholds a doctor's name unless the complaint is upheld. And even after an investigation is concluded, doctors are not required to notify patients if they are practicing under sanction. What information is available is found on a state Web site that critics argue few people know about.
...

The entry on the Office of Professional Medical Conduct Web site about Finkelstein is this: "Nondisciplinary order of conditions issued pursuant to New York State Public Health Law Section 230. for three years including conditions relating to infection control."

Well, that description tells you a lot, doesn't it?

Finkelstein, by the way, has had 10 malpractice settlements. That makes him one of 127 of New York's 70,000 physicians with a similar history.

See also:

• PATIENTS NOT TOLD ABOUT POTENTIAL DANGER FROM SYRINGES (Legal Medicine)
  
• Dix Hills Doctor Medical Malpractice Investigation Grows, Leads to Finger Pointing (News Inferno)
  
• THE SYRINGE MESS: State Seeks A Remedy; Handling Of Dix Hills Doctor, Hepatitis Scare Prompt Commissioner Of Health To Consider Institutional Changes (Accountability Central)
• After Hepatitis Case, New York State Acts to Speed Alerts to Patients at Risk (New York Times)
• DA investigating needle scare centered on Long Island doctor (Newsday)
  

(Eric Turkewitz is a personal injury attorney in New York)

Labels: Medical Malpractice

Medical malpractice can happen to anyone. And last week while we celebrated Thanksgiving, actor Dennis Quaid was running back and forth to the hospital because it happened to his two-week old twins when they received a massive overdose of a drug. And it happened at the well-regarded Cedars-Sinai Hospital in Los Angeles.

Now the kids will hopefully be OK despite this, as the overdose was realized and an antidote given. But it's a good lesson on how to make improvements in the mechanic of how hospitals work and how drug companies package their products. If only people would listen.

The kids had IV lines flushed with Heparin, a blood thinner. They were supposed to be flushed with an infant's dose of 10 units/ml. But they got an adult's dose of 10,000u/ml instead. So they received a 1,000x overdose. Oops.

And worse yet, the hospital had previously been warned by the FDA of the potential for mix ups between these two doses.

Here are the questions for the hospital and the drug manufacturer:

What were the adult strength drugs doing in the neonatal unit?
Why do the bottles look the same?
Why weren't there precautions in place to separate out different dosages?
Why were FDA warnings ignored?

At EverythingHealth (via Grand Rounds at Prudence), Dr. Toni Brayer writes:

The way to prevent these errors and "near-misses" is to put processes into place in health care like we do in aviation safety. Make it hard to do the wrong thing. Labels should have "red alerts" to show different strengths. The background colors on the bottles should be different and the font size needs to be increased. Look alike drug names should be differentiated by using TALL LETTERS. (glipIZIDE vs. glyBURIDE). The bottles should look completely different so it is obvious to every care giver...whether stocking a med cart or administering a medication.

If you think this is a rare occurrence, think again: Each year there are over 1.5 million medication errors in the United States, and as many as 7,000 people will die from them. And our children are the most likely victims (see: Children Are Most Likely Victims of Surgical Medication Errors).

But sometimes, it takes celebrity misfortune to bring home the reality of the problem.

For more:

• Medical errors are not always doctors' fault (Malpractice via Kevin, M.D.)
• Heparin Overdose in Three Infants Raises Safety Questions (MedPage Today)
• Medication Errors (FDA)
• Dennis Quaid Twins Update: Hospital Was Warned About Heparin Dangers (Babble)
  

(Eric Turkewitz is a personal injury attorney in New York)
-------------------------------------------------------------------------------
Update (12/4/07): Dennis Quaid Sues Baxter Healthcare Over Heparin Label Mixup for Twins

Labels: Dennis Quaid Lawsuit, Medical Malpractice

Over at Point of Law, Walter Olson points to a story on medical malpractice panels in New Hampshire and Maine. So I wanted to share New York's experience with the panels before they were disbanded in the mid-1980s shortly after I started practicing law. I did a few of these before they hit the trash heap.

These panels included a judge, an attorney experienced in handling medical malpractice cases, and a doctor from each speciality that was sued. If there was a unanimous finding, the finding would go to the jury.

The first, and most significant, problem was finding doctors to sit on the panels, which is what caused years of delay to an already protracted litigation system.

The second problem was that, unlike jurors, there was no way to question panelists regarding any biases they might have, the way a juror might be questioned.

The third problem was that that no live witnesses appeared before the panels and there was no cross-examination. Submissions were made confidentially, and a short hearing was held that might last an hour at most. This format made it it impossible to resolve disputed issues of fact.

The fourth problem arose when, if a unanimous panel finding went to the jury, the losing side would invariably subpoena the doctor that appeared, and then cross-examine the physician on the flaws in the hearing that took place. Essentially, that the panel never saw a single witness and was therefore unable to resolve disputed factual issues. (This, in turn, made it even less likely that doctors would want to sit on panels.)

The end effect was years of delay, more expense, and more complicated trials.

It was, in essence, a resounding failure.

Labels: Medical Malpractice

An article that appears today in Legal Times by Stewart Weltman (via Law.com) is chock full of good practice tips. I'd like to highlight two. Since the article's vantage point is what defense lawyers can learn from plaintiff's lawyers, it is equally good reading for both sides.

1. [T]he most direct route to obtaining a favorable settlement is to ignore the prospect of settlement and instead prepare from the outset as if your case is going to be tried.

Since I come from the world of medical malpractice, I know that very few cases settle early (see: No, your medical malpractice case will NOT settle fast). If settlement occurs it is often only after a trial has started. And the defendant can see if you are truly ready or not. So my training was always to prepare for trial, because any other type of lawyering was too risky. If I ignored the possibility of settlement and was ready for verdict, I could negotiate from strength if the other side starts to talk about resolutions. Conversely, if you aren't really ready, you panic and may be forced to take the inadequate offer.

2. Many top plaintiffs lawyers will jump-start this process from the outset by articulating out loud a short statement of their best case in a minute or so to see how it sounds, perhaps running it past their assistant, paralegal, associates, or co-counsel. It is a simple yet powerful process that can and should be used in defense matters.

Actually, a minute is too long. Your case should be boiled down to a single sentence, particularly in the personal injury field. When the judge asks what the case is about -- and yours is one of hundreds she is handling -- she will want the nutshell version. If you don't know it, you don't truly know your case. It should look something like this:
"Failure to biopsy a hard nodule in the breast of a 54 year old woman leading to 10-month delay in diagnosis, with bilateral mastectomy and metastasis, instead of lumpectomy." If judges want and need more details, they will ask. More importantly, the issues have been isolated.

The article is a great little primer on keeping the focus for defense lawyers and keeping costs down by following our methods.

Labels: Medical Malpractice, Personal Injury

Poor communication is a major cause of medical malpractice, especially among staff in training, according to a study in today's edition of the Archives of Internal Medicine. (See Medical News Today.)

Researchers examining 889 closed medical malpractice cases found that 27 percent involved trainees whose role in the error was considered to be at least moderately important, of which 87 percent involved residents. According to the Medical News Today summary:

Cognitive factors contributed to the majority of trainee errors, according to the study. Nearly three-fourths (72 percent) involved errors in judgment, more than half (58 percent) were caused by a lack of technical knowledge, and more than half (57 percent) were due to failure of vigilance or memory. Teamwork factors, notably lack of supervision and handoff problems, were also a significant issue, accounting for 70 percent of the cases involving trainee errors. A lack of supervision accounted for more than half (54 percent) of the trainee errors, and handoff problems accounted for nearly one-fifth (19 percent). Because multiple factors contributed to trainee errors, the percentages do not add up to 100 percent.

Further, attending physicians' failure to oversee the work of trainees was identified as a factor in 82 percent of the 129 cases where a lack of supervision contributed to a medical error.

None of this comes as a surprise to medical malpractice practitioners, as the failure to properly communicate and supervise often comes up. The degree to which this is due to the high pressure of managed care, systems breakdowns, or simple sloppiness varies from case to case.

Since hand written notes in medical charts are a primary tool of communication from doctor to doctor, and since such writing is often unintelligible (sometimes even to the doctor that wrote it) you can be sure that communications problems will continue to exist to the detriment of patients.

On the web:
Archives of Internal Medicine (article not yet available online)


(Eric Turkewitz is a personal injury attorney in New York, most of whose practice has been medical malpractice for the past 20 years.)

Labels: Medical Malpractice

Both breasts were removed. Why? Because a lab technician admitted to cutting corners while labelling tissue specimens.

According to an ABC News report, a 35-year old woman underwent a double mastectomy after being told she had breast cancer, when in fact, she did not. The Long Beach, Long Island victim has now filed suit in Nassau County Supreme Court.

If, in fact, the technician was cutting corners either to save time or money, then we may be looking at a very rare beast: A matter of punitive damages in a medical malpractice case (though this could also be a matter of general negligence if done by the lab and not medical malpractice). The standard here in New York for punitive damages is reckless conduct that endangers the health, safety and well-being of the public (as opposed to negligent conduct). And this must be proven by clear and convincing evidence (as opposed to preponderance of the evidence).

In fact, just last week the Appellate Division Second Department (where this case resides) issued an opinion on the subject of punitive damages in the context of an abortion case. In Randi A. J. v Long Is. Surgi-Center, the defendant disclosed to the mother of the patient that her daughter had been in, allowing the mother to deduce her daughter had an abortion. While the case was sent back to the trial court on other grounds, it is a good discussion of the state of punitive damages law in New York.


(Eric Turkewitz is a personal injury attorney in New York)

Labels: Medical Malpractice, Punitive Damages

Does Rhode Island Hospital have a problem? For the third time in six years (and the second time this year) a surgeon has operated on the wrong part of the brain, the Insurance Journal reports.

The latest act of medical malpractice occurred on an 86 year-old man who was bleeding between the brain and skull, but the surgeon operated on the wrong side. (It was not the same surgeon as the other patients.)

As a result, the state's Health Department has required the hospital to hire an independent consultant to review its neurosurgery practices and to have a second physician double-check surgery plans.

According to Dr. Peter Angood of the Joint Commission on Accreditation, wrong site surgery is "a persistent problem in American healthcare," despite years of efforts to combat it. "No patient wants to have the wrong procedure, and we need to do whatever we can to prevent that."

Rhode Island Hospital, by the way, is the larges in the state and affiliated with prestigious Brown University. One would think a place like that would have some pretty well-oiled procedures to make sure such mistakes do not occur.

So why, then, does it continue to occur?

See also: Wrong-site surgery case leads to probe (Boston Globe)

Labels: Medical Malpractice

You may have seen the screaming New York headlines: Doctors hit with 14% increase in medical malpractice rates! Doctors in high risk specialties paying 6-figure insurance premiums! Insurance reserves so low carriers may become insolvent! Blame the lawyers! came the cry from the doctor's, for surely it must be due to medical malpractice cases. A little protectionism called tort "reform" would go a long way to curing the problem. Right?

Ahh, but truth is another matter. Was it really medical malpractice lawsuits that lead to this increase? Let's take a candid look at some actual facts:

• New York's Superintendent of Insurance, who sets the amount of rate increases, says this jump comes "After years of artificially low rate increases" and that "the rate increase comes after years of setting rates below what was needed." He did it now in order to avert a possible "irreversible crisis." (Did doctors previously complain that their rates were too low?) So, the Superintendent says, New York must play catch-up with a big rate hike;
• The State of New York had previously "appropriated" $691M of medical malpractice insurance reserves to balance the state budget from the Medical Malpractice Insurance Association. This association had been established by the state to satisfy any deficiencies attributable to the premium levels for malpractice policies, and for reinsurance. That surplus would have been used (if not taken for other purposes) for maintaining the solvency of New York's three medical malpractice insurance carriers.

OK, so the "crisis" was caused by lousy state policy under the George Pataki administration, by setting artificially low rates while also swiping the rainy day fund. Surely, however, the problem was also caused in part by increasing medical malpractice cases and payouts, right?

Well, no. In fact a study has shown that the number of medical malpractice cases in New York has remained static, and the amount of payouts has kept pace with other health care costs. When premiums go up, but the payouts are flat, you know you have a problem. But not one created by those who were injured by negligence.

And have high medical malpractice insurance rates in downstate counties chased away physicians, as the fear-mongers suggest? Not even close. It seems the number of doctor in New York jumped by 16% from 1995 to 2003, an increase greater than our growth in population. And the New York Times reported just last week in Few Young Doctors Step in as Upstate Population Ages, that while there was 6 percent growth in the number of doctors from 2001 to 2005, for a total of about 77,000 doctors, the way they are spread throughout the state is wildly uneven. The Times wrote:

While newly licensed doctors flock to New York City, Long Island and Westchester County, where there is already a glut, far fewer choose to practice in the vast upstate region.

As the article makes clear, and as New Yorkers know, upstate has suffered economic woes in past years, much of which was related to the loss of industry. This isn't a doctor issue. People move to the big city for a multitude of reasons, just as they always have.

Perhaps the problem is an onslaught of frivolous litigation? Nope, not that either, according to a report in the New England Journal of Medicine that disproves the myth of frivolous malpractice litigation.

Here's a suggestion for the new Eliot Spitzer administration: Government clearly created this insurance problem, as your Superintendent admits. You therefore need insurance reform. So don't try to fix it on the backs of the most badly injured of New Yorkers with some type of "tort reform" because that won't fix a government created problem. Even insurance company insiders will tell you that "tort reform" will not bring on lower rates.

And while the governor's brother is a neurosurgeon in a downstate county, and therefore probably both at the top end of malpractice rates along with his colleagues and in a good position to lobby his brother, it's hard to evaluate the significance of such expenses without also knowing what their income is. Complaining about a low-six figure premium while taking home a seven-figure income for a high-risk specialty will not bring too much sympathy.

Now here is a reform that the doctor's may want to entertain: With up to 98,000 people per year dying from medical errors, and with 68% of New York's medical malpractice payouts coming from just 7% of the doctors, maybe, just maybe, a little more gazing in the mirror might be in order? Perhaps the medical lobby should inform their physician-constituents about the facts, instead of simply handing them propaganda to put in their waiting rooms?

So what do I expect from all this? Not insurance reform, for that would be the obvious thing. And not greater enforcement from the State Health Department on recurrently problematic doctors. It hasn't happened yet, so why expect it now? No, I believe many will use this governmentally created mess as an excuse to strip rights away from those most severely injured by malpractice. You can almost hear the screams for caps (even though we already have them) and health courts coming from the protectionists who want to shield the negligent from taking responsibility for their mistakes.

While New York's physicians already enjoy wide immunity from litigation payouts due to the horrible economics of taking medical malpractice cases, except in the most disastrous of matters, I fully expect their lobbyists will want more, more, more. And the facts be damned.
-------------------------
Addendum, after Eliot Spitzer resigns: Eliot's Mess: The Ramifications for Medical Malpractice "Reform" in New York

-------------------------
(Eric Turkewitz is a personal injury attorney in New York)

Labels: Eliot Spitzer, Insurance Industry, Medical Malpractice, tort reform

Charlie Weis has lost. The crew cut head coach of the Notre Dame football team had brought a medical malpractice case against the surgeons that had performed gastric bypass surgery on him, based on a failure to promptly diagnose and treat post-operative bleeding that had sent Weis into a coma.

The verdict was delivered today after two hours of jury deliberations, according to news accounts. The Wizard of Odds college football blog had been live-blogging the trial. This was the second trial, as the first had ended in mistrial when a juror fell ill and the defendant physicians ran to assist in full view of the rest of the jury.

Nationwide, approximately 2/3 of all malpractice verdicts favor the defendants. This occurs because, generally speaking, it is usually the most difficult of cases that go to verdict, and due to juries favoring physicians over patients according to a recent Michigan Law Review study.

------------------------------------------------------------------------------
Other links:

• Doctors cleared in Weis case (Boston Herald)
• Charlie Weis Loses Medical Malpractice Trial (Massachusetts Personal Injury Law Blog)
• Notre Dame coach Charlie Weis loses malpractice suit (Boston Globe)
• Jury finds doctors not negligent in malpractice lawsuit (AP via ESPN)
• Weis Loses Battle of the Bulge (Wizard of Odds)
  

(Eric Turkewitz is a personal injury attorney in New York)

Labels: Medical Malpractice

The medical malpractice trial involving Notre Dame head football coach Charlie Weis is now starting again. When we last left the Weis story on February 16th, a mistrial had been declared when a juror fell ill while Weis was on the witness stand, and the two defendant physicians rushed over to assist.

Defendants' counsel vainly tried at that time to claim the trial should continue and that the jury had not been unfairly prejudiced by the conduct of the physicians, though I don't know how they kept a straight face while making that argument.

The story behind the lawsuit is that Weis decided to have gastric bypass surgery in June 2002. He claims that the defendants acted negligently by failing to recognize life-threatening internal bleeding and infection two days after the surgery.

According to this AP story:

In opening statements to the jury, Weis’s lawyer, Michael Mone, said the doctors acted negligently by allowing Weis to bleed internally for 30 hours after the surgery before performing a second operation to correct the complication. Weis was in a coma for two weeks and nearly died.

But William Dailey Jr., a lawyer for Ferguson and Hodin, said internal bleeding was a well-known complication of gastric bypass surgery. Dailey said Ferguson, Hodin and several other doctors who cared for Weis believed the bleeding would stop on its own, as it does in most cases following such surgery.

Claiming a particular bad result is a "complication" of surgery, by the way, is a common defense tactic. The proper response from the plaintiff's side is asking whether this is an avoidable complication, if proper care is exercised.

This trial, by the way, is being live-blogged by a college football blog, The Wizard of Odds (Hat tip, TortsProf).

OK, now here is the weird part: The live-blogging of the trial will come out of Suffolk Superior Court in Massachusetts. Why is that weird? Because that is the same court that Flea was live-blogging his own medical malpractice case from earlier this year.

Addendum:
7/17 -- See Battle Lines Are Drawn in Day 1 (Wizard of Odds, after first day of trial).
7/18 -- The Return of Weis' Hired Hand (plaintiff's expert testifies it was malpractice to give Weis the blood thinner Heparin post-operatively while he was hemorrhaging) (Wizard of Odds)
7/19 -- The Big Guy Takes The Stand (Wizard of Odds)
7/19 -- Weis Takes Stand in Lawsuit (AP via Forbes)
7/20 -- Team Weis Scores A Major Victory (Wizard of Odds)
7/20 -- Doctor: Weis went against my medical advice (Boston Herald via Kevin, M.D.)
7/24 -- Hodin Takes Stand, Defends Decisions (Wizard of Odds)
7/24 -- Doctors not backing down against Weis in malpractice suit (ESPN)


(Eric Turkewitz is a personal injury attorney in New York)

Labels: Interesting Cases in the News, Medical Malpractice

"Hell at Woodhull," blasts New York's Daily News today from the front page of the dead tree edition. Woodhull Hospital is a public city hospital here in New York.

A 10 year old girl had died there of asthma after what appears to be spectacular mismanagement over 4 1/2 hours in the emergency department. A $3.5M jury personal injury verdict was the sad ending.

And so, while tort "reformers" race around trying to make "Pants" Pearson the reason to close the courthouse doors to legitimate claimants, the Daily News is reporting on these nuggets from the trial that recently ended on the asthmatic girl:

• Doctors and nurses put a breathing tube down the girl's throat without giving her proper sedatives.
• Her hands and feet were tied to her bed.
• After leaving her bucking and screaming for at least an hour, they improperly pulled out and reinserted her endotracheal tube, then pumped so much air into her lungs that they burst.
• Finally, after she became unresponsive, they administered huge overdoses of an adrenaline drug to keep her heart beating.
  

A state Health Department investigation of the girl's death in April 1999 also concluded that Woodhull had failed to meet "generally acceptable standards of professional practice" in its treatment of the girl.

According to the Daily News story:

A nurse who was in the room when Anna died testified that while the girl's body was still on the bed, officials from the hospital's risk management unit suddenly appeared and began scooping up X-rays and medical charts - several of which were never found afterward.

(Eric Turkewitz is a personal injury attorney in New York)

Labels: Medical Malpractice

This comes from the Philadelphia Inquirer:

In one case, doctors removed a patient's healthy thyroid after a laboratory mix-up led to an incorrect cancer diagnosis.

In another, a neurosurgeon halted a procedure after making an incision on the wrong side of the patient's head.

In yet another, a surgeon inserted a needle into a patient's right knee before realizing that the operation was planned for the other leg.

Those surgical misadventures are examples of the 175 errors made by hospitals and surgery centers in Pennsylvania, according to a report released Tuesday from the state's Patient Safety Authority. The survey, the first of its kind, covered the 21/2 years that ended Dec. 31.

Much more at the link above.

(Eric Turkewitz is a personal injury attorney in New York)

Labels: Medical Malpractice

John Edwards appears to have completely capitulated to the tort "reformers" that seek to close the courthouse doors to those injured by medical malpractice. In a 26-page Health Care policy statement issued today, buried on page 13, is this bit (hat tip to TortsProf):

Stop Frivolous Lawsuits: To discourage frivolous suits, Edwards will require lawyers to have an expert testify that actual malpractice has occurred before bringing a suit. There will be mandatory sanctions for lawyers who file frivolous cases, and any lawyer who files three frivolous cases will be forbidden from bringing another suit for the next 10 years. (emphasis mine)

Now Edwards is a former medical malpractice trial lawyer so he should know better. A few points need addressing:

1. It is often impossible to prove prior to discovery that malpractice has taken place. It is one thing to require a physician's review prior to suit, and have a doctor state that based on the available records there is a reasonable basis to proceed. That's good practice when vetting the claim. It is another thing entirely to require that malpractice be proven before discovery, or even suit, is undertaken. This would result in the absurd situation of immunizing those doctors who have lousy records.
2. Testify before whom? If there is no suit, there is no one to testify in front of. Does the potential defendant have to testify too, to help reconstruct events from poorly written notes? Is there a trial before the suit starts?
   
3. If there must be testimony pre-suit, it requires significant additional funding, thereby granting even more immunity to the medical profession than they have now. Currently, the economics of malpractice litigation immunize the medical profession for most mistakes. Basically, it means a mini-suit before a real suit.
   
4. If doctor-experts are forced to testify, and therefore disclose their identities before necessary, it will make it even more difficult for injured parties to retain experts, due to peer pressure physicians face when they become known as someone willing to testify. They also will be forced to testify based on incomplete information.
   
5. The Federal Rules of Civil Procedure already have sanctions in place for frivolous conduct. It's called Rule 11.
   

I have no problem with sanctions for those that bring frivolous suits. And for those that bring frivolous defenses (like blaming the patient for an injury that happened while she was under anesthesia.) Frivolous claims of any kind hurt everyone concerned and should be sanctioned.

But the concept that a case must be proven before it is even started will work only to close the courthouse doors even further.

Either Edwards has completely capitulated to the money of the health care industry at the expense of the downtrodden he claims to represent, or he needs someone to proof-read the policy statements that go out under his name.

Labels: Medical Malpractice, Political Action, tort reform

Not all suits are good ones, as we've seen with some of the claims of Judge Robert Bork (as well as the $67M pants story, now on trial), and here is another fine example:

A couple of doctors, including Dr. Michael Zeide pictured at right, who do a lot of work examining claimants for an insurance company, were called P.I.M.P.S., as in Professional Independent Medical Practitioners. So they sued the personal injury attorneys who made the comments.

The full report is in the Palm Beach Post (via Kevin.M.D.).

A bizarre part of the suit is that they sued as "John Does," a tactic attorneys usually reserve for sexual assault types of cases.

I'm betting the First Amendment will make very swift work of this matter. I would also note that people who routinely bend over backwards to make claims as an expert are often referred to as, ahem, the employee of the pimp.

Labels: Frivolous Claims, Insurance Industry, Medical Malpractice

(In Part 1, I discussed how a plaintiff's attorney discovered the identity of medical blogger Flea, and used it during his medical malpractice trial.)

When this trial ended in settlement many people wanted to know: Was the existence of the blog and the Boston Globe's description of a "Perry Mason" moment a factor in the settlement?

The answer I come up with, after discussing limited facets of the case with plaintiff's attorney Elizabeth Mulvey, is that while I doubt the blog or the Perry Mason moment made a big difference, the reality is that only the jurors would ever know. And they didn't hear all the evidence.

While Mulvey wouldn't discuss the facts of the case -- the agreement is confidential and I doubt either the parents of the boy that died or Flea want to talk about it -- I did learn that there had been five witnesses before the settlement, including Flea and two experts.

The trial started with Flea on the stand. It is a common tactic for the defendant to be called first by the plaintiff's attorney. There was then a break in his testimony after Mulvey had done her direct exam so that the experts could testify, with Flea to return later. (This is not unusual, as scheduling expert witnesses is always a problem unless they are retired.) The blog outing occurred on the fifth day of trial. In addition to more testimony from Flea, there were still likely to be a couple more witnesses, with the defense team having another expert ready that could have testified if the trial continued.

Thus, even if a synopsis of the facts were available by someone, they would likely have been disputed. That's why we have juries to look in the eyes of the witnesses and consider all of the available evidence placed before them. It is difficult for a summary by a newspaper or blogger to fully capture two weeks of trial for an in-depth analysis.

(As to the timing of the settlement, it is not at all unusual to have cases settle mid-trial, after the attorneys can evaluate the evidence. In fact, I've had four medical malpractice cases settle while the jury was deliberating on the verdict.)

And about that "Perry Mason moment?" Mulvey told me that while it was certainly interesting, it hardly amounted to the melodramatic rendering of it by the Boston Globe. Trial attorneys, you see, routinely confront witnesses with prior inconsistent statements. Sometimes it means something to jurors. And other times they shrug it off.

Just a few weeks ago Anne Reed wrote on this very subject at Deliberations, in The Overrated Prior Inconsistent Statement. From that posting, which has many links to original sources:

But are jurors really going to throw out a witness's testimony because of one inconsistency, or even one lie? Think about it. Do you have a co-worker who has lied to you but with whom you still manage to work well? A family member who has lied to you whom you still love? Perhaps you yourself might have told a lie once, long ago? For most of us, the idea of falsus in uno is too simple to be useful in real life. [The latin phrase means that someone who lies about one thing is likely to lie about another, and a jury is therefore permitted to disregard all the testimony of the witness -- ET]

Jurors are often forgiving and practical when a witness lies. That's the conclusion of an empirical study by Jones Day lawyer Richard Stuhan, and trial consultants Melissa Gomez and Daniel Wolfe of TrialGraphix, Inc, collecting data from over 800 mock jurors in "over a dozen states." Stuhan, Gomez, and Wolfe authored an extensive post about their study (and its limitations) at the Drug and Device Law blog, and plan to publish it in full in the April 2007 edition of DRI's For the Defense magazine.

And so, while the confrontation with the blog may have been presented in the Boston Globe as exceptional, it appears that the only exceptional thing was where the prior statement came from.

This article was blasted across the front page a full two weeks after the trial was over. So the guy who wrote it, and the editors that placed it above the fold on the first page, weren't even there.

Tomorrow, my final bit on the trial of Flea. But it really isn't about him. It's about the Boston Globe.

Labels: Blogging, Flea Medical Malpractice Case, Medical Malpractice

(This is a follow-up to Doctor "Flea" Settles Malpractice Suit After Blog Exposed In Court. regarding a pediatrician that was live-blogging his own trial. I first discussed the legal ramifications of doing so on May 8, in Medical Malpractice Trial Starting For Med-Blogger)

Were you wondering how Flea was exposed in court and how his blog would be used? So was I. Curiosity got the better of me, since the details weren't in the Boston Globe story from last week.

So I called plaintiff's counsel, Elizabeth Mulvey, of Crowe & Mulvey to find out. She told me she was tipped off to his blog by another attorney. How did the other attorney know? Because Flea had blogged about a subject that Mulvey had spoken on some time back and the other attorney realized that she had the case. Flea had unwittingly given out the identifying information when he discussed her talk. On this cached version of Flea's site, you can see his comments discussing Mulvey on April 28th.

With that information in hand Mulvey scoured his blog for helpful information, much the way any attorney would review writings produced by a witness for the other side. She found a post where Flea referred to Nelson's Pediatrics as the bible of pediatrics. (I have the 11th ed. from 1979 on my own bookshelf.) So she asked him on the witness stand if he considered Nelson's the bible for pediatrics. He said no. Lawyers call that a "prior inconsistent statement" that allows us to confront the witness with the other statement. That meant asking him if he was Flea and confronting him with the blog posting.

This testimony came out during the direct exam of Flea by Mulvey (she called him as her own witness making it "direct" even though he was adverse and it more realistically resembles cross-examination). She did not use the comments about the meetings with jury consultants that I discussed back on May 8th, but then, she still had another opportunity to examine him when his own attorneys were done. The tips he received on how to conduct himself on the witness stand could still have come up.

She never got to that second part of her exam, however, because the case settled. The details are confidential.

Mulvey considered this just another type of prior inconsistent statement. The most frequent use is when deposition testimony deviates from trial testimony. It could also come out if a witness has published an article where the contents of the article differ from the testimony. That it came out on a blog was novel, but the concept was not. (William Childs at TortsProf hit this point on May 31st.)

Tomorrow, more details concerning the trial...

Addendum 6/5/07 - Part 2 now available at this link.

Addendum 6/6/07 -- Flea, The Boston Globe and Morality in Journalism and Blogging

Labels: Blogging, Flea Medical Malpractice Case, Medical Malpractice

I was updating the blog postings on Flea's outing, and was stunned at how many there are...and they continue to pour in and are now expanding beyond the legal and medical blogospheres.

But this particular posting is important for Flea, if he or his friends are reading this: Blog Scandal Hits Home

When I got home I found an email from a friend requesting an urgent referral to a new pediatrician. I emailed back and said, oh, so-and-so loves her pediatrician, ask her. My friend then replied, yeah, so-and-so has the SAME one and is also looking for a new one - see sordid story on front page of Boston Globe. So I read the story, and there was that blogger scandal again. I couldn't believe it - a Law and Order type of story in my friends' lives...

...Judging from my friends' responses, I imagine his entire practice scurrying to jump ship. It's scary to think that someone who had some good qualities as a clinician, judging from what my friends told me, and from some stuff he has written for his practice's website, might have his career ruined by poor judgment (or perhaps hubris? or a false sense of security behind a pseudonym?) about where and how to vent his frustrations / indignation / contempt / stress.

With the Globe's decision to blast Flea's name on the front page, Flea has, as I see it, two choices as his practice that will no doubt undergo a substantial drop-off in the coming months:

1. Crawl under a rock and hide;
2. Find a good crisis manager to help go public by saying:

• It was really stupid to blog this stuff in real time;
• I should not have let my distress at being sued get the better of me in my writings;
  
• This was a tragic case that not only devastated the parents of the child, but has caused me endless sleepless nights due to the death of a patient. But it settled due to my blogging and not my medical conduct;
• Do not say anything that, in any way, requires a response from the parents;
• Read Kevin, M.D.'s post on the importantance of your Google reputation, and start a plan to take back your name so that this story doesn't pop up on the first page of Google three years from now when new patients pop your name into the search box.
  

Labels: Blogging, Flea Medical Malpractice Case, Medical Malpractice

The outing of Flea's real identity in the Boston Globe is now generating an immense amount of comment in the blogosphere. (For those new to the story, see Doctor "Flea" Settles Malpractice Suit After Blog Exposed In Court): So I'd like to add a few additional observations and links:

First, I learned of Flea's outing yesterday when Jonathan Saltzman of The Boston Globe called me for comment. To say I was stunned would be an understatement. While I had discussed the risks of his posting confidential trial prep work back on May 8th, I told Saltzman I was surprised to see it actually happen.

Second, I wrote this morning's lengthy post last night, and then held it for today, since the story belonged to the Globe, and not me.

Third, I picked up a hard copy of the Globe. The story is front page, above the fold. Which is to say, his patients and colleagues will all see it.

Fourth, the Globe story said the outing was on May 14th, and the settlement was the 15th. Flea took down his blog in totality on the 16th. So the blog came down after it was all over.

Fifth, while I hadn't appreciated it before, the Flea photo from his blog (with guitar, above) is apparently that of the musician by the same name. (Hat tip to Michael Grant.)

Addendum -- Sixth, Saltzman informed me during our conversation yesterday that Flea's attorneys were unaware of the blog, which means of course, that Flea didn't tell them and he wasn't prepped by his attorneys on the subject on how to deal with it if it should come up.

Below are some of the medical and legal blogs that have already picked up various parts of this story today:

• The Flea Settles Down (Simple Justice)
• Flea (Kevin, M.D.)
• Blogging Defendant Blows Defense (Volokh Conspiracy)
  
• Flea Collared (Odd Time Signatures)
• Cross-examination reveals the defendant was that anonymous blogger who's been writing about the trial (Althouse)
• A Law Blog First? Defendant Blogs His Own Trial (WSJ Law Blog)
• Flea's Fall Sobering For Other Bloggers (White Coat Notes - Boston Globe)
• Fleased (symtym)
• Days of Fame (symtym)
  
• Flea Collared (Drums and Whistles)
• An attorney weighs in on Flea’s malpractice settlement (Notes from Dr. RW)
• Un(settling) End In The Case Of The Disappearing Flea (Dr. J's House Calls)
• Rich People Blog Too (The Hub)
• Flea Outed In Court (Universal Health)
• Flea, flea as fast as you can (Legal Antics)
• Updates, May 31 (Overlawyered)
• Stand By Your Flea (Health Business Blog)
  

There will be others and I will try to update later...

More:

• Flea: Another Argument for Tort Reform? (Health Care BS)
• Kevin M.D.: Flea (GruntDoc)
• Blogging MD Defendant Exposed (ZiefBrief)
  
• "Aw Sh*t!": My Reaction to the Flea Debacle (Musings of a Dinosaur)
• Paging Dr. Flea (MetaFilter)
  
• On Flea (OnThePharm)
• Flea Revealed in Boston Newspaper (Ami Chopine)
• Dr. Flea Blogged His Malpractice Trial, Settles When Outed (Clinical Cases and Images)
• The Flea Flicker: Risks of (anonymous) blogging (Health Care Law Blog)
• Flea-ting Thoughts (Massachusetts Liberal)
• A Fool for a Client (Discourse.net)
• More Blogging Thoughts (Evil HR Lady)
• Dr. Strangeblog (The Paperback Museum)
• (Yet) Another Object Lesson in Blogging Biting Back (Infinity Ranch)
• For Med-Mal Doc, Blogging Proves Bad Medicine (Law.Com Blog Network)
• The strange case of the arrogant physician, and related musings on the propriety of physician blogging and other online behavior (HealthBlawg)
• A Small Thought About Flea (TortsProf)
  

Somehow, I don't think we have seen the end of this...

Addendum 6/1/07 -- More:

• Details unfold about Flea’s day in court (Notes from Dr. RW)
• The Doctors' Revenge (plus the Flea Feeding Fenzy) (Simple Justice)
• Doctor Flea exposed in court (The Angry Dad)
• Elsewhere: Of Fleas, Blogs, and Client Control (Kentucky Law Review)
• The Flea Saga and WOM (The Independent Urologist)
• More On Litigants Blogging (The Divorce Law Journal)
• Is there a flea in the house? (Manic Mommies)
• Blog Obsession (MotherThoughts)
• Malpractice Suit Defendant Unmasked as Anonymous Blogger; Settles Case (The Blog Herald)
• Flea Bites (QuizLaw)
• The Blogocratic Oath: First, Do No Harm (The Opinionated Marketers)
• Blogging Doctor Reveals Secret Identity Under Oath (PR Communications)
• Blogging Your Own Trial - Transparency is the Verdict (VisInsights)
• Blog Scandal Hits Home (Notes of an Anesthesioboist)
• Self-immolation on the witness chair via the power of the internet (BeldarBlog)
• Blogging malpractice defendant exposed : Case settled (Real Lawyers Have Blogs)
• Blogging Your Court Case Is A Very Bad Idea! (Feminist Law Professors)
• The Blog as Public Record (Magnosticism)
• Don't Blog Your Court Appearances (PsychCentral)

Addendum 6/4/07 -- More:

• The Malpractice Cast Net (Scalpel)
• Random Thoughts (Catscanman)
• "Flea" Bite (Not My Second Opinion)
• Could Have Lied (Blogborygmi)
• There's Flea! And the news is not good (ScienceBlogs)
• The Dr. [] / "Flea" anonymous blog outing - Blogging HARMS! (Infothought Blog)
• A Flea Squashed: Bloggers Sweat After Court Case (Bostonist)
• Why Didn't Anyone Warn Flea? (I'm a blogaholic)
• Flea Outed and Settles Malpractice Case (OBGYN Tips)
• Do I feel bad (?) (The BFC Computing Weblog)
• Some thoughts on Flea (Tales From the Womb)
• About Dr. Flea (Cathy's Place to blog)
• "Flea" Proves to be His Own Biggest Pest in Boston Personal Injury Lawsuit (The Injury Blog)
  
• Pediatric Grand Rounds 2:4 (Adventures of an awesome (sometimes) mother)
• Dr. Flea, Pediatrician blogs his own med-mal suit, learns the perils (The blawgraphy)
• On Flea and Fishing (Dr. Wes)

Last Addendum: After interviewing plaintiff's counsel, I wrote three more posts on the subject:

• Deconstructing the Trial of Flea - Part 1
• Deconstructing the Trial of Flea - Part 2
• Flea, The Boston Globe and Morality in Journalism and Blogging

Labels: Blogging, Flea Medical Malpractice Case, Medical Malpractice

A Boston pediatrician blogging under the pseudonym Flea has been outed. It happened in court. During cross-examination. On his own medical malpractice trial. And now it is the top story in the Boston Globe.

Flea had written several posts about the upcoming trial, a wrongful death case involving a child. In the process he discussed his private prep sessions with his attorney, explaining how he had been coached to answer questions to be appealing to the jury, how he had been videotaped, and what materials his lawyers told him to read.

After seeing this, I wrote of the extraordinary risks of such disclosures, even under cover of pseudonymity. (See, Medical Malpractice Trial Starting For Med-Blogger.) The issues I raised, in the event plaintiffs' counsel discovered his blog, ran to the risks of losing his attorney-client privilege for all such communications. If this happened, he could be cross-examined on how he was coached by his defense team to act in front of the jury and the advice they gave him. He also ran he risk of his own insurance carrier trying to disclaim coverage if it thought he was hindering the defense.

Shortly after, he took down three blog postings (Med-Blogger, On Trial For Malpractice, Takes Down Trial Posts), asserting he was superstitious and didn't want to jinx things that were going well. Then he took down the entire blog, without explanation (Med-Blogger Flea, Previously Live-Blogging His Trial, Takes Down Entire Site).

Dozens of medical and legal bloggers had commented on the live-blogging of the trial, as well as the subsequent, unexplained disappearance of the popular, award-winning doctor-writer.

Well, as revealed in today's Boston Globe, it appears that plaintiff's counsel did find out about the blog. And at the end of the day when Flea was on the witness stand in "a Perry Mason moment," the questions came:

Do you have a medical blog?
Are you Flea?

As per the Boston Globe article, court adjourned for the day, and the case quickly settled.

Why did he do it? While I don't know Flea, and have no connection to him other than these postings, my best guess was this: He loved writing and this was great material. The subject was, simply put, irresistible. I know that I found his activity fascinating, not only for its raw content, but also for the walking-a-high-wire-without-a-net danger of what he was doing. As seen in the links below, I clearly wasn't the only one rubbernecking.

How many people took note of this ongoing saga? These links help tell the tale (and there are others), both for the uniqueness of a doctor live-blogging his own malpractice trial and also due to the huge popularity of the blogger:

• Liveblogging a malpractice trial (Overlawyered);
• Getting Inside a Medical Malpractice Case (Law.com Blog Network - Carolyn Elefant)
• MD Blogs Own Med-Mal Trial (Law.com Blog Network - Robert Ambrogi)
  
• Jury Notes From Elsewhere, May 11: Trial through the defendant's eyes (Deliberations)
• Through the Eyes of a Flea (Simple Justice)
• Flea's trial blogging catches a lawyer's attention (Kevin, M.D.)
• Blogging Your Own Med Mal Trial (TortsProf)
• Medical Malpractice Defense Lawyers' Nightmare Client (Hans Poppe, with archived Flea posts:
• Flea Takes A Screen Test (April 24th)
  
• What do malpractice juries care about (April 26th)
  
• Flea on Trial-Day One, Jury Selection (May 9th)
  
• The Flea Circus (symtym)
• On the blogs: malpractice trial prep (Boston Globe Blog, White Coat Notes)
  
• Black Wednesday: A dark day for the medical blogosphere (Kevin, M.D.)
  
• The Flea Bite (or lessons learned from angry fans) (Simple Justice)
  
• Medical Bloggers: Held to a Privacy Double Standard? (Dr. Wes)
• FEAR NOT: Picking Up The Gauntlet In The Medical Blogosphere (Dr. J's House Calls)
• Medical Blogging and the Tragedy of the Commons (Stranger Than You Can Imagine)
• Dr. Flea Disappears (Doctor Anonymous)
  
• One Injustice After Another (Moof)
• The Dearth of Physician Bloggers (intueri: to contemplate)
  
• Flea Gone (Scalpel)
• The Death of a Flea (Tales from the Emergency Room)
  
• Where Have All The Medical Bloggers Gone? (From Medskool)
  
• Farewell and Goodluck (Tales from Health Records)
• What happened to Flea? (Scanman)
• In Memorandum (Highlight Health)
• 2 Medical Blogs Shut Down (Revolution Health)
  
• Dark Days in the Medical Blogosphere (MSSP Nexus Blog)
• The "Butterflying" of the Medical Blogosphere (Mexico Medical Student)
• I am a blogger. I am a doctor (Musings of a Distractible Mind)
• What is Happening to Medical Blogs (Tales from the Womb)
• The Medical Blogosphere (It's all about the walls)

Finally, this case was a tragedy for two parents, and a nightmare for a doctor. If the parents had lost the trial, it would have added yet another layer of extraordinary emotional trauma. If Flea lost, it would no doubt have been emotionally difficult for him. A settlement allows each to move on with their lives without the additional fallout of a jury's verdict. The parents might feel they had their day in court and that the settlement was based on the merits, while Flea might feel it was based on his own carelessness with his writing and the concerns a jury might not like the way his legal team was trying to manipulate the jury. Neither won and neither lost. And sometimes that is all for the best.

Addendum: Here is a cached version of Flea's old site before it was taken down. (Hat tip to Hub Blog)

2nd Addendum: More on Doctor "Flea" Being Outed On The Witness Stand


(Eric Turkewitz is a personal injury attorney in New York)

Labels: Blogging, Flea Medical Malpractice Case, Medical Malpractice

Legislation that would provide federal funding for experimental "health courts" for medical malpractice cases has once again been introduced in both houses of Congress.

The bill calls for the federal government to fund experimental programs, yet to be devised, in numerous states. If the current version is like the last version from two years ago, several different models of courts are proposed, each of which raises various issues:

1. The first "Purpose" of the act is to "to restore fairness and reliability to the medical justice system." Given that research shows the current system works remarkably well, starting with a false premise probably doesn't help. (See, The Myth of Frivolous Litigation)
2. The Seventh Amendment to the U.S. Constitution guarantees jury trials, and at least some of these models clearly look to do away with the jury.
   
3. While details are lacking there are a few that appear, and this includes the effort to limit non-economic loss (pain and suffering). Instead of a jury doing what is fair and reasonable under the unique circumstances of a case, the government will create "a defined payment schedule." This is an inherently unworkable and unfair system for it is silly to assume that all injuries can be neatly placed into categories. It will, of course, adversely affect those most seriously injured who do not fit into the neat little government boxes that are created.
4. One of the other rules provides for, "payment for the net economic loss of the patient, on a periodic basis." But if a person lost something today, why should they be forced to wait for their compensation? This statement looks like it was drafted by the insurance lobby so that they could write annuity policies for the future payments.
   
5. A least one of the models discourages fair offers of settlement. How? By this provision: "provide immunity from tort liability to any health care provider or health care organization that offers in good faith to pay compensation." Good faith is a malleable concept. By merely making a token offer -- not one of fair value but just good enough to get past "good faith" -- they are rewarded with immunity from suit.
6. And finally a political question: Why is the federal government extending its powers even more into matters that are almost always strictly state issues?

See also frm this blog, Medical Malpractice - Vetting the Case and Medical Malpractice Economics)
(hat tip to Sui Generis)

Addendum, 5/30/07: Why Health Courts Are Unconstitutional (Center for Justice and Democracy); Health Courts: Bad for Patients and Unconstitutional (Center for Justice and Democracy, via TortDeform)

Labels: Medical Malpractice

From today's New York Post:

May 23, 2007 -- Dr. Sherrell Aston, one of the world's most acclaimed cosmetic surgeons, is being sued by a Connecticut man who claims the renowned doctor's "gross negligence" led to his wife's death.

Susan Malitz, 56, had gone to Manhattan Eye, Ear and Throat Hospital in 2004 for what was supposed to be a routine face-lift operation by Aston, whose patients have reportedly included Tipper Gore, Anna Wintour and Catherine Deneuve.

Two hours later, Malitz was dead - the second patient to die during cosmetic surgery at the hospital in a two-month period.

The claim is lidocaine toxicity, as found by the New York Medical Examiner. Dr. Aston says the medical examiner is wrong. An article from 2004 in the New York Times on the matter is here.

Addendum 5/25/07 - The case has now settled for $3.1M, with the anesthesiologist, Dr. Gary Mellen, paying $2.7M and the hospital $400K. Settlement also appears in the New York Post.

Labels: Interesting Cases in the News, Medical Malpractice

Any trial attorney knows the phrase that must be asked of the medical expert: Do you have an opinion, with a reasonable degree of medical certainty, that...

This may now change. According to a blog posting by John Day (Day on Torts) late yesterday, the American Law Institute is scrapping that phrase for the Restatement of Torts, 3rd. According to Day:

Among the actions taken by the ALI at the meeting in San Francisco this past week was the rejection of the need for the magic words "reasonable degree of medical certainty."

The following language was approved for Section 28(a) of the Restatement of Torts Third:

"Subject to Subsection (b), the plaintiff has the burden to prove that the defendant's tortious conduct was a factual cause of the plaintiff's physical harm."

Subsection (b) describes the circumstances under which the burden of proof is shifted to the defendants.

Comment (e) rejects the need for an expert to state an opinion to a "reasonable degree of medical [or scientific] certainty" or a "reasonable degree of medical [or scientific probability." The Comment states that "[t]here is a troubling inconsistency in imposing a higher threshold for the admissibility of expert testimony than is required for a party to meet the burden of proof" and that "the reasonable-certainty standard provides no assurance of the quality of the expert's qualifications, expertise, investigation, methodology, or reasoning."

The Reporter's Note cites with approval Judge Cain's opinion in Bara v. ClarksvilleMem'l Hospital Sys., Inc., 104 S.W.3d 1 (Tenn. App. 2002) ( holding instruction to the jury requiring plaintiff to prove causation to reasonable degree of medical certainty was erroneous and required reversal.).

Labels: Medical Malpractice

Pediatrician and med-blogger Flea, who had been chronicling his own medical malpractice trial regarding the death of an infant, has apparently taken down his site. Not just a few posts as he did last week, but the whole thing. My initial thoughts on the risks of his losing the privileged nature of his contact with his attorneys and the risks to his own insurance coverage if his pseudonymous identity were revealed, were first published in Medical Malpractice Trial Starting For Med-Blogger. He was believed to be the first person to live-blog his own trial.

Best guess from here? He told his attorneys what he was doing and their heads exploded due to the risks I had discussed. But win, lose or settle, I think we'll see his award-winning blog reappear when the litigation is over.

On a side note, posts can still be seen in my RSS reader, probably due to his having deleted them instead of "modifying" them. Had he modified (by simply by substituting anything else), I think that all RSS readers and caches would then have been updated to show only the new content. Something to think about if any of us wants to delete a post for any reason.

Addendum 5/31/07 - Doctor "Flea" Settles Malpractice Suit After Blog Exposed In Court

Labels: Blogging, Flea Medical Malpractice Case, Medical Malpractice

Medical blogger Flea has removed blog postings for his own medical malpractice trial. The blog had generated great interest throughout the medical and legal blogospheres, as he became the first person to live-blog his own trial. I had covered the subject in Medical Malpractice Trial Starting For Med-Blogger, listing the posts and their subject areas. The postings had also been cited at Overlawyered, Kevin, M.D., Law.com , Deliberations and Simple Justice, among other places.

The pseudonymous Flea -- a pediatrician in the northeast currently in the midst of a wrongful death case regarding a child -- ran risks with what he was doing, as he had publicly discussed the private counsel he had with his legal team. This opened the door to questions on that otherwise privileged subject at trial if his identity was discovered by plaintiff's counsel, and potentially could jeopardize his insurance coverage if his carrier thought this hindered the defense of the action. His postings have included, among other things, advice on what to read, and a prep session where he had been taped and given a copy of the tape for review.

While the most recent postings about the trial are now gone, the older ones remain. Inexplicably, these remain regarding prep sessions with a trial advisor and contact with his lawyer: What Do Malpractice Juries Care About?, Flea Takes a Screen Test and Flea Gets His Syllabus.

There is no explanation from Flea as to why at least three of his recent postings came down, though it is reasonable to conclude that he had second thoughts on the subject and sought legal advice. I don't understand why, however, if some of them came down, the others did not. Frankly, I can't think of any lawyer allowing a client to take such risks, though it was fascinating to watch.

The questions are, has he been cross-examined yet (jury selection was two days ago and he was likely the first witness), and did plaintiff's counsel know about the blog?

My own guess...we'll see an explanation from Flea when the trial is over.

Addendum: Flea has now explained that he took down the three posts about the trial because he is superstitious, and doesn't want to jinx what he sees as a good game in progress. (for him).

Second Addendum (5/16/07): The site was taken down completely on May 15, 2007, without explanation.

Third Addendum (5/31/07) Doctor "Flea" Settles Malpractice Suit After Blog Exposed In Court

Labels: Blogging, Flea Medical Malpractice Case, Medical Malpractice

Flea is a pediatrician. One of Flea's little patient's died. Flea was sued.

Except that Flea is not just a doctor, but a blogger. An award winning blogger.

So he's doing something a bit different than other doctors that have been sued. Flea (photo at right) is blogging his experience as it happens, including contacts with his own attorneys, attorney-client privilege be damned. Make that a lot different than other doctors.

In what may be the most compelling and extraordinary story being played out in either the legal or medical blogospheres, the pseudonymous doctor discusses his experiences and emotions in depositions and trial preparation, including some advice and communications with his defense team.

In opening the door to the legal sanctuary however -- that is, the special place where all contacts with one's lawyers are protected -- he is running two giant risks:

First, if his cover is blown and plaintiff's counsel finds out he has been blogging, he can be cross-examined on those contacts and advice that he wrote about, for the privilege disappears when the substance is discussed publicly. Second, by opening that door, he runs the danger of his insurance carrier disclaiming against him in the event of a verdict on behalf of the plaintiff, on the claim that discussing his trial prep hindered the defense. The man is, if nothing else, a risk-taker in that regard.

His decision to walk this high-wire without a net brings us to a third issue: If plaintiff's counsel finds out about the blog, should it be used at trial? A lawyer's gut reaction may be yes, in order to claim to the jury that what they are seeing is a well-rehearsed act.

But if the risk is that the insurance carrier uses it as an excuse to disclaim on a plaintiff's verdict, it may be entirely counterproductive. In this sense, Flea shares a common goal with his nemesis: They both want the insurance company standing there in case of a plaintiff's verdict.

With jury selection starting tomorrow, I expect we will see quite a bit more on the subject. Some of the posts on Flea's experiences, starting with the most recent:

• Dress Rehearsal (Flea spends two hours on the phone with his lawyer, and gives us some details);
  
• A Witness for the Prosecution (regarding the testimony of another doctor expected at trial);
• In Her Own Words (Flea Googles plaintiff's counsel);
• What Do Malpractice Juries Care About (Flea opens the door on the attorney-client privilege to write about his trial prep);
• Flea Takes A Screen Test (describing his experiences being videotaped in a mock trial setting);
• Flea Gets His Syllabus (He lets us know what his lawyer told him to read);
• Another Day At The Office (Flea's 2nd post on being deposed);
• God Was Watching Out For You Today (The 1st of 2 posts on being deposed);
• Something About The Law (The 2nd of two posts on the Complaint);
• Negligent, Careless and Unskillful (About the Complaint)
  

Addendum, 5/11/07 - Flea has now taken down the three most recent posts. See: Med-Blogger, On Trial For Malpractice, Takes Down Trial Posts

Second Addendum (5/16/07): The site was taken down completely on May 15, 2007, without explanation.

Third Addendum (5/31/07) Doctor "Flea" Settles Malpractice Suit After Blog Exposed In Court


(Eric Turkewitz is a personal injury attorney in New York)

Labels: Blogging, Flea Medical Malpractice Case, Medical Malpractice

A few snippets from the article available at Reuters:

WASHINGTON (Reuters) - Medical mistakes as basic as hospital workers spreading infections by not washing their hands hurt millions of people worldwide each day, the World Health Organization said on Wednesday in launching an effort to curb such errors.

...

The WHO said medical errors affect one in 10 patients worldwide and that at any given time more than 1.4 million people suffer from infections acquired in hospitals.

...

Unsafe injections with reused and unsterilized equipment are believed to occur most often in South Asia, the Middle East and Western Pacific regions.

In sub-Saharan Africa, up to 18 percent of injections are given with reused syringes or unsterilized needles, increasing the risk of hepatitis and HIV, the WHO said.

The article focuses on how to reduce the mistakes.

Labels: Medical Malpractice

Two weeks ago I wrote Medical Malpractice - A Primer, directed toward members of the medical community due to a recurring theme I saw on medical blogs: The idea that such suits are brought cavalierly. (You can this in the comments section of blogs such as Flea, GruntDoc, and Kevin, M.D.)

I promised a follow-up on how cases are selected by a plaintiff's attorney, but first want to deconstruct the time and money needed if the matter is taken. For only by understanding the time and money risks can one appreciate the importance of careful screening for potential litigation.

Though all cases are different, let's assume this simple fact pattern: A 10 month delay in diagnosing and treating breast cancer in a 50 year old woman with a husband and two kids, one of whom is a minor. Her cancer has now spread to two lymph nodes. She has a part time business. All parties and witnesses are local.

The following time and money costs must be assumed to take such a case to verdict:

1. Obtain all medical records of any kind for her;
2. Expert review on the issue of negligence (perhaps a radiologist or OBGYN, depending on the facts of why the cancer was allegedly missed) prior to taking the matter, intermittent reviews as needed during litigation, and a day in court for trial;
3. Expert review on the issue of causation and damages (likely an oncologist), and a day in court for trial;
4. Expert review on the issue of lost wages or household services (economist or vocational economist) and a day in court for trial;
5. Cost of depositions (doctors, nurses and other witnesses);
6. Possible videotaping of depositions for those who may not be present for trial;
7. Daily copy of transcripts from trial;
8. The purchase or creation of demonstrative evidence to explain the medicine, facts of the incident or injuries to the jury. This could be anything from enlargements of documents and x-rays, to medical models, custom illustrations or video footage, as warranted; and
   
9. Due to personal circumstances of the sick woman and her family, they can't pay the out-of-pocket costs.
   

Since the case will always be thrown out without an expert (with the exception of the rare res ipsa case, such as the retained clamp above), the liability and causation experts are not optional.

The attorney's time involved for litigating the case for a few years will entail record reviews, expert discussions, document drafting, depositions (and prep), possible motion practice, and 5-10 court conferences. It will probably be a two week trial if all goes very smoothly -- but depends on the judge's schedule, the schedules of the experts on both sides, and the longwindedness of the attorneys -- and can very easily go longer. It will, in sum, likely be several hundred hours, though it could be more. The opposing attorneys will be top-notch medical malpractice litigators because the insurance companies don't hire a jack-of-all-trades for this sort of thing.

The out of pocket costs will easily be $30,000 -- $50,000, and quite possibly higher depending on the particulars of the case.

If the case is lost at trial -- perhaps because of a defense expert who "goes the extra yard" for a fellow physician, a plaintiff less attractive than the defendant doctor, "bad facts" you didn't know about at intake, a tendency for juries to favor doctors, an unexpected scheduling problem that prevents a witness from appearing, or a plain old dispute as to the standard of care -- your money and time should all be assumed to be gone. It is unlikely you will recoup the disbursements from the client. You still have to pay the rent, personnel, utilities, computers and other costs of running a business.

One should never assume that the case will settle, of course, but if it does it will probably only be after you have prepared for, or even started, the actual trial. (See: No, your medical malpractice case will NOT settle fast.)

If you win and get paid back your disbursements and receive a fee, it will still likely take a few years. (You may want it to go quicker, but defendants do not, and the court may not be able to.)

From a cash flow standpoint, this is not an attractive business model. And in New York, those fees if you are successful start at 30% and slide down to 10% as the recovery increases. And if another attorney did some work on the file and then forwarded it on to you, you will be sharing that fee with others.

This, of course, assumes no appeals. If the trial court or appellate thinks the verdict is too high, it will be thrown out. (see, How New York Caps Personal Injury Damages)

In short, the economics from a business standpoint are quite poor, which is why case selection becomes so important for the careful practitioner. It is also why the average malpractice recovery is so high, since the medical community enjoys de facto immunity for smaller cases based on these economics.

To call this a high-risk endeavor would be a significant understatement. The vetting process for such a case is therefore critical, and will be the subject of a future blog posting. [This link added 5/22/07]

Labels: FAQ-Medical Malpractice, Medical Malpractice

A bill being considered by Rhode Island could mean they will join the ranks of other states that encourage doctors to apologize for mistakes. The story is here.

I've always believed, based on the manner in which calls come in to my office, that poor communication (bad bedside manner) is the primary reason patients call attorneys. They are angry, or confused, or both.

Which is why I found this particular quote at the end of the article really interesting...an insurance company that encourages more of the same thing that has gotten docs into trouble in the past...

Boston-based ProMutual Group, which insures 18,000 doctors, dentists and health care facilities in the Northeast, warns its clients against apologies that admit guilt -- even in states that have laws protecting doctors who say they are sorry.

It distributes a tip sheet cautioning doctors against uttering the words "error," "mistake," "fault" or "negligence."

"We encourage physicians to apologize about the outcome, not necessarily for any error that may have occurred," ProMutual spokeswoman Nina Akerley said. "Apology is not about confession."

Some folks never learn.

Labels: Medical Malpractice

Just because you read about that verdict in the papers doesn't mean the plaintiff will actually get the money. This is another example of how verdicts get reduced by the courts.

In this case, a New York trial court reduced the award for future pain and suffering from 200K to 20K, because the plaintiff did an insufficient job of justifying the damages. The appellate court affirmed that reduction:

The result of plaintiff's nasal reconstructive surgery was cosmetically not to her satisfaction. The court found no medical support for future pain or difficulty in breathing. Reduction of damages for future pain and suffering was thus warranted because the amount awarded by the jury deviated materially from what would be reasonable compensation under the circumstances (CPLR 5501[c]).

As I had discussed earlier in How New York Caps Personal Injury Damages, one should never accept the verdict in a newspaper as the amount the person will get. Because there is a good chance they will not see that amount.

The case can be found here: Nardella v. Gerut

Labels: Medical Malpractice

This comes from Americans for Insurance Reform, released today:

NEW YORK -- Americans for Insurance Reform (AIR) announced today the release of Stable Losses/Unstable Rates 2007, a new study that examines fresh insurance industry data to determine what caused the most recent medical malpractice insurance crisis for doctors. The study by AIR, a coalition of over 100 consumer and public interest groups representing more than 50 million people, finds that the insurance crisis that hit doctors between 2001 and 2004 was not caused by claims, payouts or legal system excesses as the insurance industry claimed. Rather, according to the industry's own data:

• Inflation-adjusted payouts per doctor not only failed to increase between 2001 and 2004, a time when doctors' premiums skyrocketed, but they have been stable or falling throughout this entire decade.
• Medical malpractice insurance premiums rose much faster in the early years of this decade than was justified by insurance payouts.
• At no time were recent increases in premiums connected to actual payouts. Rather, they reflected the well-known cyclical phenomenon called a "hard" market. Property/casualty insurance industry "hard" markets have occurred three times in the past 30 years.
• During this same period, medical malpractice insurers vastly (and unnecessarily) increased reserves (used for future claims) despite no increase in payouts or any trend suggesting large future payouts. The reserve increases in the years 2001 to 2004 could have accounted for 60 percent of the price increases witnessed by doctors during the period.
  

There is much more at the links, including a copy of the study.
(hat tip to TortDeform)

Labels: FAQ-Medical Malpractice, Insurance Industry, Medical Malpractice

Misdiagnosis occurs in 15 to 20 percent of all cases, according to a new book out by Dr. Jerome Groopman called "How Doctors Think."

In an op-ed in today's Boston Globe (The Mistakes Doctors Make) based on the book, Dr. Groopman writes:

Why do we as physicians miss the correct diagnosis? It turns out that the mistakes are rarely due to technical factors, like the laboratory mixing up the blood specimen of one patient and reporting another's result. Nor is misdiagnosis usually due to a doctor's lack of knowledge about what later is found to be the underlying disease.

Rather, most errors in diagnosis arise because of mistakes in thinking.

In the piece, he deconstructs how a tumor was missed for years in a woman who had just given birth.

The book is reviewed at this link to Time. The Time lead is for an overlooked tumor in an 8-year old. According to the review,

[Groopman] learned that about 80% of medical mistakes are the result of predictable mental traps, or cognitive errors, that bedevil all human beings. Only 20% are due to technical mishaps--mixed-up test results or hard-to-decipher handwriting--that typically loom larger in patients' minds and on television shows.

The result of Groopman's journey is How Doctors Think (Houghton Mifflin; 307 pages), an engagingly written book that is must reading for every physician who cares for patients and every patient who wishes to get the best care. Groopman says patients can prompt broader, sharper and less prejudiced thinking by asking doctors open-ended questions and learning to identify some of their common thinking mistakes.

While some have a knee-jerk reaction to the attorneys who initiate suit on behalf of patients injured by malpractice, it's nice to know that some doctors are thinking about the actual problem. Because shooting the messenger, a time-honored way of changing the subject, is a lousy way of fixing a problem.

(Globe op-ed via David Williams at Health Business Blog)

Addendum 3/21/07 -- Dr. Groopman on The Colbert Report.

Labels: FAQ-Medical Malpractice, Hospital Malpractice, Medical Malpractice

For the last few years in New York a dispute has existed with respect to the right of a defense firm to privately interview the treating doctors of a plaintiff after the matter has been certified ready for trial.

Last year, one of New York's four intermediate appellate courts (the Second Department) said that such interviews were not permitted (Arons v Jutkowitz).

Now, the Fourth Department, in a decision dated this past Friday, has agreed with the Second, albeit in a 3-2 decision, protecting patients from having their treating physicians cold called by defense lawyers or investigators, and protecting plaintiffs from being forced to authorize such interviews in writing.

Thus, the case seems destined for New York's Court of Appeals. The majority and dissenting opinions in Kish v Graham can be found here.

Addendum: Curious as to ultimate fate of the first of these decisions (Arons), I checked and found that leave to appeal to the Court of Appeals was just granted on March 8. (Since Arons was unanimous, it could not be appealed as of right.) Thus, the issue is going up.

Second Addendum (12/5/07) - The Court of Appeals has reversed. See: NY Court of Appeals Allows Defendants to Privately Question Plaintiffs' Doctors (11/27/07)

Labels: Medical Malpractice

Medical malpractice attorneys will not be surprised. A study released yesterday in the New England Journal of Medicine finds a higher death rate for people who go the hospital for heart attacks on the weekends than during the week. The reason is that fewer invasive cardiac procedures are performed.

The study tracked over 200,000 patients and found about a 1% difference. And the reason for the difference, the authors suggest, may be due to a difference in staffing levels.

These staffing concerns do not surprise me. I'm not sure if it's been studied, but I would bet the worst time to go a hospital is the July 4th weekend. And I think few doctors would disagree. New residents are created on July 1st, and existing residents move up a year to new responsibilities. Match that with many attending physicians taking off time for a holiday week, and a problem is created.

When hospital staffing levels drop, patients suffer.

Labels: FAQ-Medical Malpractice, Medical Malpractice

Surgery related medication errors are most likely to affect children, according to a new study.

From today's New York Times (sub. req.):

The current study did not try to estimate total error rates. Instead, it analyzed 11,000 mistakes that had been voluntarily and anonymously reported to the pharmacopeia by hundreds of hospitals since 1998.

The study was confined to errors made on patients undergoing surgery, and the rate of harm, 5 percent, was much higher than is typical for medication errors. Among children it was 12 percent.

Problems were found with a lack of communication as patients moved from pre-op, to surgery to post-op and back to their rooms.

A study back in 1999 found that as many as 98,000 people die each year as a result of medical errors. (Institute of Medicine, National Academy of Science To Error is Human: Building a Safer Health System (National Academy Press, 1999).

Causes of the problem come as no surprise to those who litigate medical malpractice cases. From the NYT story:

Typical dangerous mistakes were failures to administer antibiotics before surgery, failures to note allergies, errors in setting pumps that dispense blood thinners or painkillers, and giving overdoses to infants.

In several cases described in the report, poor penmanship, careless listening or bad arithmetic caused patients to get doses 10 or even 50 times as high as they should.

These are the types of institutional problems that can be fixed and should not exist in a modern hospital.

The study was done was done by the United States Pharmacopeia, which sets standards for the pharmaceutical industry, and by the Uniformed Services University of the Health Sciences in Bethesda, Md., and two nurses' associations.

More links:

• Pharmacopeia Press Release;
• Medication Errors During Surgeries Particularly Dangerous (WCAX-TV - Vermont - HealthDay News)
• Are Electronic Health Records Coming Soon? (This blog, 12/15/06)...Often, medical malpractice occurs for the simplest of reasons: One health care practitioner did not effectively communicate a problem to another. And often, this is simply because of sloppy record keeping or illegible handwriting....more at link
  

Labels: Medical Malpractice

An article appeared last week in the Kingston Daily Freeman (Doctors put lawyers on defensive) about a postcard/poster campaign by the Medical Society of New York State, accusing trial lawyers of causing excessive malpractice insurance rates and driving doctors out of practice.

About those posters and fliers? It's a bad idea for doctors for three reasons:

First, the single biggest reason that unhappy patients call lawyers, based on my 20 years experience representing patients, is bad bedside manner. A complication or bad result of some type occurred, and the patient didn't get answers they deemed satisfactory. They are angry. (The subject of doctor apologies cutting down on such legal inquiries was posted last night by Paul Levy at Running a Hospital) Brochures complaining about lawyers is not what unhappy patients want -- they want answers.

Second, a lawsuit is not the first thing on many patients minds when something goes awry. There is no shortage of people who contact lawyers years after the acts they complain of, often after the statute of limitations has passed, and only after a discussion with a friend or neighbor put the idea in their head. Placing the idea of malpractice front and foremost while they wait to see a doctor may be very counterproductive for these patients.

Third, complaining about an expense of the medical practice (insurance, which is the subject of the political campaign) simply invites a discussion of revenues. An expense that is 3% of revenues, for example, is different than one that is 30% of revenues. Do doctors want to answer questions about their revenues?

Just a few things to think about, all of which become ever more important depending on the amount of time spent in the waiting room, and the amount of face time spent with the physician. If waits are long and face time is short, the physicians may be doing themselves a disservice with this type of politicking. Their next stop might be my office.

(article tip via Overlaywered)


(Eric Turkewitz is a personal injury attorney in New York)

Labels: Medical Malpractice, Political Action

Out of Rio de Janeiro comes this story about a 23 year belly ache, and the forgotten 2" long scalpel that was found on x-ray that was causing the problem.

I've seen cases with retained sponges, clamps and a broken surgical scissor blade, but never a scalpel.

She's lucky to be alive.

(hat tip to Kevin, M.D.)

Labels: Interesting Cases in the News, Medical Malpractice

I'm not sure if this is a record, but if not it would seem to be awfully close. As per this article in the Charleston Gazette, the surgeon not only has 110 pending suits against him, but just lost his 3rd legal malpractice case against his lawyers.

It reminds me that in a recent study, 5.9 percent of U.S. doctors were found responsible for 57.8 percent of the number of medical malpractice payments.


(Thanks to Andrew Bluestone at the New York Attorney Malpractice Blog for the story. )

Labels: Medical Malpractice, tort reform

Notre Dame football coach Charlie Weis was mid-trial for his medical malpractice action when a juror collapsed, and the two defendant doctors rushed in to assist. I posted about the trial the other day.

The story is here. Not surprisingly, defense counsel attempted to argue the case should go on despite several jurors having seen the doctors minister to the fallen juror.

But in the eyes of the judiciary, I would have say that a mistrial is a no-brainer.

See also: Medical Malpractice -- Litigating the Surgical Error Case

Labels: Interesting Cases in the News, Medical Malpractice

From The Washington Post (reg. req.):

Despite the potential risks, Notre Dame football coach Charlie Weis decided to have gastric bypass surgery in June 2002 because he said he was afraid he would "drop dead" if he didn't lose weight.

Weis suffered life-threatening complications and nearly died after the surgery. Yesterday, he testified in his medical malpractice case against two surgeons that he has struggled with his weight all his life.

...

Weis claims in his suit that Massachusetts General Hospital physicians Charles Ferguson and Richard Hodin acted negligently by failing to recognize life-threatening internal bleeding and infection two days after the surgery.

Defense attorneys have said the doctors cared for Weis properly and that he experienced one of the known complications of the surgery.

Labels: Interesting Cases in the News, Medical Malpractice

New York's statute of limitations is just 2 1/2 years in medical malpractice cases, which is brutally short when it comes to the "failure to diagnose" cancer cases. Often the malpractice is not even known (because the diagnosis was missed) until after the statute of limitations has passed.

A few days ago, the Appellate Division decided Trimper v Jones, and this demonstrates how medical practitioners get immunity from suits regarding a failure to promptly diagnose a cancer:

[D]ecedent sought treatment from Dr. Jones for a flare-up of eczema and that he subsequently showed her a mole on his left shoulder that concerned him because it seemed to be growing. Dr. Jones excised the mole and had it biopsied in October 1999. Dr. Jones advised decedent on October 29, 1999, through plaintiff, that the lesion was a minor nevus and was not malignant. Decedent next saw Dr. Jones in January 2001, when he experienced another flare-up of eczema, and he again saw Dr. Jones in March 2002 for a flare-up of eczema. At that time, he pointed out a lump under his left arm, and Dr. Jones referred him to his internist. Upon removal of the lump by a surgeon, it was determined that decedent had metastatic melanoma. Decedent did not see Dr. Jones again, after his appointment in March 2002. Plaintiff commenced this action in February 2003, and defendants thus met their burden of establishing that the statute of limitations, which began to run in October 1999, had expired.

While New York does allow for some exceptions to the time limitations rule, they are not applicable in this type of matter. One could conceivable extend the statutory period under the "continuous treatment doctrine" if treatment was continuing for the same condition that gave rise to the lawsuit. But if the diagnosis was missed there is unlikely to be any treatment for that condition.

New York, unlike some other states, does not have the time limitation starting to run from the date of discovery of the malpractice. The effect is to give immunity to medical care providers who miss a diagnosis, tell a patient all is well, and such error is not discovered until the 2 1/2 year period has elapsed.

In a prior post I had discussed the need for speed sometimes in contacting an attorney. Sadly, it is sometimes impossible.

For other FAQs on New York medical malpractice, click this link.

Labels: FAQ-Medical Malpractice, Medical Malpractice

Since others had already pointed out the Public Citizen report exposing the hoax of a medical malpractice "crisis" I wasn't going to bother. But there was Pres. Bush last night at his State of the Union speech once again leading people astray, when he said:

And to protect good doctors from junk lawsuits, by passing medical liability reform.

Good doctors, however, don't seem to be the problem. Since 1991, according to the report, 5.9 percent of U.S. doctors were responsible for 57.8 percent of the number of medical malpractice payments. That is an extraordinary statistic.

A few other points from the report, and things to think about when someone advocates closing the courthouse door to those injured by negligence:

• The number of malpractice payments declined 15.4 percent between 1991 and 2005.
• Adjusted for inflation, the average annual payment for verdicts declined 8 percent between 1991 and 2005.
• Payments for million-dollar verdicts were less than 3 percent of all payments in 2005.
• Over 64 percent of payments in 2005 involved death, or major or significant injuries.
• Payments for "insignificant injury" were less than one-third of 1 percent of payments in 2005.
  

The Public Citizen study follows a report last year in the New England Journal of Medicine entitled "Claims, Errors, and Compensation Payments in Medical Malpractice Litigation." This was based on a study by the Harvard School of Public Health and the Harvard Risk Management Foundation.

Is our society litigation crazy? Apparently not. It appears from the Public Citizen report that only 5-10% of those killed by medical errors had any recovery from a malpractice suit. From the report:

"One-third of malpractice cases resulting in a malpractice payment in 2005 (4,504) involved the death of a patient. Yet, as a 1999 landmark study by the Institute of Medicine showed, an estimated 44,000 to 98,000 patient deaths occur each year as a result of preventable medical errors in hospitals."

Public Citizen took their data from the National Practitioner Data Bank (NPDB), which contains data on malpractice payments made on behalf of doctors as well as information about disciplinary actions against them by state medical boards or hospitals.

Just reading the table of contents of this report is enough to make anyone think twice about the propaganda spewed by advocates of tort "reform."

Key Findings
Part I: The Medical Liability System Produces Rational Outcomes

a. Annual Number of Malpractice Payments Is Down
b. Medical Malpractice Payments per Population Continue to Decline
c. Total Value of Malpractice Payments Flat Since 1991
d. Judgments Are Not Irrational
e. Million-Dollar Judgments Are Less Than 1 Percent of the Total Number of
Payments
f. Million-Dollar Judgments Were Less Than 3 Percent of Total Value of Payments
in 2005
g. Severe Injuries Account for a Majority of Payments
h. Medical Liability System Is Rational In Outcomes
i. 82 Percent of Total Value of Payments Compensate Most Severe Injuries
j. The Proportion of Surgical and Obstetrics Payments Flat Since 1991

Part II: Patient Safety and Doctor Discipline
k. Some Common, Preventable Errors Are Increasing
l. Easily Preventable Errors Show a Marked Increase Since 2003
m. Since the Beginning of the NPDB, 5.9 Percent of U.S. Doctors Were Responsible
for 57.8 Percent of the Number of Medical Malpractice Payments
n. Doctors with Repeated Malpractice Payments Experience Few Consequences
o. Many Serious Repeat Offender Doctors Are Not Disciplined

Labels: FAQ-Medical Malpractice, Medical Malpractice, tort reform

Yesterday I posted regarding the Oklahoma Supreme Court declaring a tort "reform" law unconstitutional with respect to the additional burdens placed on medical malpractice claimants. The court's decision is now available in its unofficial form. It is an important decision for all states since similar attempts to place hurdles in front of claimants takes place on a daily basis around the nation.

The court decision was based on the need for an affidavit from a doctor when bringing a medical malpractice suit. The statute was a general law (as opposed to a special one under OK law), and therefore all claimants had to be treated equally. But, the court found:

The affidavit of merit requirement immediately divides tort victims alleging negligence into two classes -- those who pursue a cause of action in negligence generally and those who name medical professionals as defendants. ...The pleading code does not require negligence claimants generally to have an affidavit supporting the facts alleged and the anticipated basis for the right of recovery to be filed along with the petition. Plaintiffs alleging anything other than medical negligence need only file a petition giving fair notice of the plaintiff's claim and the grounds upon which it rests. These claimants have no affidavit requirement and may commence a cause of action with the filing of a petition, while those alleging medical malpractice must obtain a professional opinion that their cause is meritorious as a prerequisite to pursuing suit or be subject to dismissal.

What's more, the court found, since some medical malpractice claimants can proceed without an affidavit under the doctrine of res ipsa loquitor (the thing speaks for itself - like a retained sponge after surgery), there were actually now three different classes of claimants.

Since OK law mandates uniformity of procedure, all citizens of the state must have equal access to its legal institutions for teh application of the general ordinary forensic process. And this did not happen with the procedures employed.

A second ground for tossing the law was that it created an unconstitutional monetary barrier to the access to courts guaranteed by the Oklahoma Constitution. The court found that:

[T]he additional certification costs have produced a substantial and disproportionate reduction in the number of claims filed by low-income plaintiffs. The affidavit of merit provisions front-load litigation costs and result in the creation of cottage industries of firms offering affidavits from physicians for a price. They also prevent meritorious medical malpractice actions from being filed...Rather than reducing the problems associated with malpractice litigation, these provisions have resulted in the dismissal of legitimately injured plaintiffs' claims based solely on procedural, rather than substantive, grounds.

One comical note in the opinion - though not apparently intended that way -- was this part:

Another unanticipated result of statutes similar to Oklahoma's scheme has been the creation of a windfall for insurance companies who benefit from the decreased number of causes they must defend but which are not required to implement post-tort reform rates decreasing the cost of medical malpractice insurance to physicians. These companies happily pay less out in tort-reform states while continuing to collect higher premiums from doctors and encouraging the public to blame the victim or attorney for bringing frivolous lawsuits.

The funny part is the assertion that the dramatic drop-off in claims, and the insurance company profits that went with it, was somehow "unanticipated." The court's rip at "tort reformers" coming from an 8-1 majority in a very red state, is stunning.

The court was emphatic about the unfair burden that was placed on those of modest means:

Access to courts must be available to all through simple and direct means and the right must be administered in favor of justice rather than being bound by technicalities. Claimants may not have the fundamental right of court access withheld for nonpayment of some liability or conditioned on coercive collection devices. Here, medical malpractice plaintiffs are singled out and must stand the cost of an expert opinion, which may range from $500 to $5,000,83 before they may proceed to have their rights adjudicated. In at least one instance, an affidavit of merit cost the litigant $12,000. A statute that so conditions one's right to litigate impermissibly denies equal protection and closes the court house doors to those financially incapable of obtaining a pre-petition medical opinion. Therefore, we determine that 63 O.S. Supp. 2003 §1-1708.1E creates an unconstitutional monetary barrier to the access to courts guaranteed by art. 2, §6 of the Oklahoma Constitution.

An interesting decision, of which other courts around the nation will surely take notice when efforts to close the courthouse door take place under the pretext of "reform" in their own jurisdictions.

Labels: Medical Malpractice, tort reform

This case in yesterday's New York Law Journal demonstrates once again the single most important aspect of any medical malpractice case: The need for an expert.

In Doe v. Torres (05 Civ 3388), a prisoner attempted to represent himself regarding an allegation of failing to properly treat an injured knee. The facts are almost irrelevant, for the plaintiff violated the cardinal rule of malpractice cases. He didn't have an expert to state that the defendant doctor had deviated from customary and usual practice. He will not make it to trial, with Magistrate Judge Gorenstein recommending a grant of summary judgment to the defendants.

In deeming such expert testimony required, the magistrate judge concluded that plaintiff's case was not a 'rare' instance in which a juror could conclude either that the defendants departed from accepted practice, or that if there was a departure, it proximately caused any injury to plaintiff. Because nothing in the medical records would allow a reasonable juror to conclude that either of the two elements of a medical malpractice claim had been proved, plaintiff failed to make a prima facie showing of medical malpractice.

Labels: Medical Malpractice

Often, medical malpractice occurs for the simplest of reasons: One health care practitioner did not effectively communicate a problem to another. And often, this is simply because of sloppy record keeping or illegible handwriting.

So it is worthy to note from this AP story last week, that the era of electronic medical records may well be here:

WASHINGTON - Five of the nation's largest employers plan to soon give their workers an unusual health-care benefit: their very own electronic medical records that they can take when they travel, change jobs, or see a new doctor.

About 2.5 million workers and their dependents would have access to their health records through their computers. The records would be compiled by an independent, nonprofit organization. The information would be stored in a database that only the employee would supposedly be able to access.

The companies providing the electronic health records are Applied Materials Inc., BP America Inc., Intel Corp., Pitney Bowes Inc., and Wal-Mart Stores Inc.

The companies hope that cutting out the paperwork in health care will reduce administrative costs, duplicative care and medical errors.

Of course, this will raise another problem, that of privacy if too many folks can snoop through the records. But if that issue can be addressed, we may solve one of the many problems that bedevil our healthcare system.

Labels: Hospital Malpractice, Medical Malpractice

Some accept as gospel that frivolous lawsuits are a big part of medical malpractice litigation: Baseless claims brought by uninjured people, or whose injuries were not caused by negligence. Not so, according to "Claims, Errors, and Compensation Payments in Medical Malpractice Litigation," a study by the Harvard School of Public Health and the Harvard Risk Management Foundation that was published earlier this year in the New England Journal of Medicine.

The results, in fact, are the opposite of what the tort "deformers" claim, based on results from 1,452 randomly selected, closed medical malpractice files. The reviewers found that 97 percent had indeed suffered harm. In about one-third of these patients, the damage wasn't clearly attributable to negligent medical treatment, a wrong prescription, or a misdiagnosis. Most of those claims were correctly denied compensation, the team reports.

According to the study, 73 percent of plaintiffs whose claims had merit received compensation.

The study also found that just six people had received compensation that were uninjured and 145 had injuries that had not been convincingly linked to medical error. On the other hand, 236 plaintiffs who did suffer an injury from medical error received no compensation. The authors wrote:

One in six claims involved errors and received no payment. The plaintiffs behind such unrequited claims must shoulder the substantial economic and noneconomic burdens that flow from preventable injury. Moreover, failure to pay claims involving error adds to a larger phenomenon of underpayment generated by the vast number of negligent injuries that never surface as claims.

Eighty percent of the claims involved injuries deemed to have caused significant or major disability or death. In only 3% of the claims, no adverse outcomes from medical care were evident.

Since the majority of payments from insurance companies went to people who had been harmed by medical errors and not to people with baseless claims, the authors said that the "moves to combat frivolous litigation will have a limited effect on total costs."

Taking direct aim at politicians and business lobbyists, the authors wrote that:

"The profile of non-error claims we observed does not square with the notion of opportunistic trial lawyers pursuing questionable lawsuits in circumstances in which their chances of winning are reasonable and prospective returns in the event of a win are high. Rather, our findings underscore how difficult it may be for plaintiffs and their attorneys to discern what has happened before the initiation of a claim and the acquisition of knowledge that comes from the investigations, consultation with experts, and sharing of information that litigation triggers. Previous research has described tort litigation as a process in which information is cumulatively acquired."

It is not the first time that a Harvard study has debunked the popular myths spread by insurance companies or politicians with respect to medical malpractice. It had happened back in 1991 by the Harvard Medical Practice Study that found that only eight percent of those injured by medical negligence brought lawsuits. But that is a post for another day.

[Addendum, 1/29/07 -- This blog was cross-posted to TortDeform on January 25, 2007, resulting in much spirited commentary]

Labels: Frivolous Claims, Medical Malpractice, tort reform

The following comes from the December 2006 issue of Trial Magazine, put out by the Association of Trial Lawyers of America. I would provide a link, but it is members only so this synopsis will have to do:

Following the lead of at least one other judge in his state, a Pennsylvania trial court judge recently refused to seal a settlement in a medical malpractice case, citing the public's right to know that money from a state fund would be used to pay the widow of the patient who died. (Bryk v. Wilcox, No. 9254 (Pa., Luzerne Co. Com. Pleas settled Aug. 30, 2006).) Amanda Bryk considered filing a claim after her husband, Walter, died shortly after undergoing aortic valve replacement. The surgeon allegedly failed to properly tie off sutures in Walter's heart, causing a fatal rupture. Before she filed suit, the case was settled, with part of the settlement to be paid from the state's Medical Care Availability and Reduction of Error Fund (Mcare Fund). The fund provides excess medical malpractice coverage through the state's insurance department and is financed by fees assessed on health care providers, moving-violation surcharges, and cigarette tax monies.

In an interview, the judge explained that, since this was public money, the public had a right to know how it was being spent. In addition, he indicated that doctors had complained that the system wasn't open enough to know what was going on. So, the judge reasoned, if they want to have public disclosure, then it should not be limited to only what the doctors want disclosed, but should instead be full public disclosure.

Labels: Medical Malpractice

I learned at Tortdeform.com that Senator Trent Lott, a long time proponent of reducing the rights of consumers, may be having a change of heart.

The reason? Seems his home got wiped out by Katrina and State Farm won't pay him what he thinks he is owed after they took his premiums. The shoe, it appears, is suddenly on the other foot for Senator Lott, as he now must do battle with his insurance company. He was victimized once by the storm, and doesn't want to see it happen again.

He therefore hired high-profile plaintiff's attorney Richard Scruggs.

The turnabout in personal fortune reminds me of Frank Cornelius, who wrote an op-ed piece for the New York Times back in 1994. Mr. Cornelius tells his story in this excerpt better than I could:

Crushed By My Own Reform By Frank Cornelius
In 1975, I helped persuade the Indiana Legislature to pass what was acclaimed as a pioneering reform of the medical malpractice laws: a $500,000 cap on damage awards, and elimination of all damages for pain and suffering. I argued successfully that such limits would reduce health care costs and encourage physicians to stay in Indiana -- the same sort of arguments that not underpin the medical industry's call for national malpractice reform.

Today, from my wheelchair, I rue that that accomplishment. Here is my story.

On February 22, 1989, I underwent routine arthroscopic surgery after injuring my left knee in a fall. The day I left the hospital, I experienced a great deal of pain and called the surgeon several times. He called back the next day and told my wife to get me a bedpan. He then left on a skiing trip. I sought out another surgeon, who immediately diagnosed my condition as a reflex sympathetic dystrophy -- a degenerative nervous disorder brought on by trauma or infection, often during surgery. * * *

At the age of 49, I am told that I have less than two years to live.

My medical expenses and lost wages, projected to retirement if I should live that long, come to more than $5 million. Claims against the hospital and physical therapist have been settled for a total of $500,000 -- the limit on damages for a single incident of malpractice. The Legislature has raised that cap to $750,000, and I may be able to collect some extra damages if I can sue those responsible for the August 1990 incident that nearly killed me. But apparently because of bureaucratic inertia, the state medical panel that certifies such claims has yet to act on mine.

The kicker, of course, is that I fought to enact the very law that limits my compensation. All my suffering might have been worthwhile, on some cosmic scale, if the law had accomplished its stated purpose. But it hasn't.

Indiana's health care costs increased 139.4 percent from 1980 to 1990 -- just about the national average. The state ranked 32nd in per capita health spending in 1990 -- the same as in 1980.

It is understandable that the damage cap has done nothing to curb health care spending; the two have almost nothing to do with each other. In 1992, the Congressional Budget Office reported that medical malpractice litigation accounted for less than 1 percent of total healthcare spending. I doubt that the percentage in Indiana is much different.

Make no mistake; damage caps are arbitrary, wholly disregarding the nature of the injury and the pain experience by the plaintiff. They make it harder to seek and recover compensation for medical injuries; extend unwarranted special protection to the medical industry; and remove the only effective deterrent to negligent medical care, since the medical profession has never done an effective job of disciplining negligent doctors.

Medical negligence cannot be reduced simply by restricting consumers' legal rights. That will happen only when the medical industry begins to effectively police its own. I don't expect to see that day.

Labels: Medical Malpractice, Personal Injury, tort reform

Labels: Medical Malpractice, Personal Injury

When starting a New York medical malpractice case many folks invariably ask, "How long will it take?" I'd love to give a good answer about how fast the courts move, or how quickly insurance companies offer a quick settlements, but that's not the way it works.

It will take years. Even if a surgical team leaves a clamp or sponge inside you, the defendants are unlikely to even discuss a settlement until the time of jury selection. The reasons are not terribly complex, and are related in part to the fact that the defendants' insurance companies will hire the defense lawyers and plot the strategy:

• If the insurance companies make your life miserable -- even on slam dunk cases of retained surgical equipment as shown in the link above -- then attorneys won't take smaller suits because it isn't worth the immense amount of time and money needed, thereby decreasing the overall number of malpractice cases;
• Defense lawyers bill by the hour and have no incentive to reach a quick disposition; and
  
• If you get a judgment in your favor in New York, then interest on the money starts to run from the time of the judgment, not from the time of the incident. Thus, the insurance companies continue to hold and use the money for investments in the interim.

So there it is, short and not-so-sweet. Nothing is likely to happen fast.

And because of this, any medical malpractice case that is taken must be prosecuted and prepared with the intent to take a verdict. It would be foolish to hope for a settlement offer that may never come.

Labels: Medical Malpractice

In part one of this FAQ, I discussed 1) the need to find a lawyer in your area, and; 2) concerns one should have if they are solicited by an attorney. Now we turn to legal fees:

3. How much are the legal fees in a negligence case?

Most New York personal injury law firms operate the same way:

First, there is no legal fee for an initial consultation. If the case is taken it is usually done on a contingency basis, which means that the lawyer gets paid only if the client gets paid. This is an incentive for the lawyer to only take good cases with serious injuries, and it relieves a burden from clients who would not otherwise be able to afford a good attorney.

Legal fees are governed by the Judiciary Law, which establishes a limit of 1/3 of any recovery as the fee, with the exception of medical and dental malpractice cases where the fee is lower (see below).

Over the course of the representation, there will be expenses that most attorneys will generally advance on behalf of the client, such as for medical records, experts, stenographers, and certain court filings. There may be exceptions to this, and a good attorney will candidly discuss them with you. (For example, if a settlement offer is made that the attorney recommends accepting, and the client refuses, the client might be asked to front any additional expenses.)

At the time of recovery, the firm will first reimburse themselves for the cash outlay for expenses and then do an apportionment of the remaining recovery. For example, if a case settles for $100 and there was $10 in expenses paid by the attorneys on behalf of the client, then the $10 would be paid back to the attorney and the remaining $90 would be used to determine the legal fee.

4. What are the fees in New York medical malpractice and hospital malpractice cases?

Medical, dental and hospital malpractice cases are also governed by the Judiciary Law, which sets forth a legal fee "sliding scale" structure that looks like this:

30% of the first $250,000 of the sum recovered;
25% of the next $250,000 of the sum recovered;
20% of the next $500,000 of the sum recovered;
15% of the next $250,000 of the sum recovered;
10% of any amount over 1,250,000 of the sum recovered.

Thus, while malpractice cases are significantly more difficult to bring, and cost a great deal more (due to the necessity of hiring additional experts), the fees are lower than in other New York personal injury matters. In fact, they are some of the lowest in the nation. Because of this, many New York firms have a much higher threshold barrier in taking malpractice cases. Essentially, the lower fees, greater expense and significant technical difficulty of bringing such suits has given virtual immunity to the medical profession for smaller claims. Samples of some of the New York medical malpractice cases my firm has handled can be viewed at this link, and they demonstrate the complexity of many matters.

In future FAQs, I hope to cover the need for speed in certain things, the issues around how to "value" a potential case, and other subjects.

Labels: FAQ-Medical Malpractice, FAQ-Personal Injury, Medical Malpractice, Personal Injury