The idea that a witness testifying at a deposition would not be entitled to have an attorney is somewhat startling. But that is, in fact, what the Appellate Division, Fourth Department held earlier this month in Thompson v. Mather, when they firmly established that "counsel for a nonparty witness does not have a right to object during or otherwise to participate in a
pre-trial deposition."

The issue arose during a medical malpractice case involving obstetrical and gynecological treatment and the prescription of oral contraceptives. Plaintiff claimed they were contraindicated. The patient suffered an acute myocardial infarction.

Plaintiff wanted to video the testimony of the treating cardiologists, who were not defendants. The doctors showed up with lawyers provided by their own medical malpractice insurers, who then proceeded to obstruct the questioning. The deposition was abandoned and motion practice ensued.

The lower court, in one of the most bizarre rulings I've ever heard of, suggested that these doctors who had never been sued should be released from liability before unrestricted testimony was to take place! The court suggested that plaintiff and defendants are to

"consider providing general releases to the [physicians] . . . with respect to their initial treatment of [plaintiff]" and that, if such releases are provided, plaintiff will "be entitled to have a videotaped deposition of [the physicians] during which deposition the attorneys for the [physicians] shall not be permitted to speak. . . ."

Holy mackerel. In reversing the lower court, the Appellate Division called that "repugnant."

But first they addressed the issue of having counsel at the deposition, and came down firmly against it. Why? Because CPLR 3113 (c) provides that the examination and cross-examination of deposition witnesses "shall proceed as permitted in the trial of actions in open court." The parties can object later, but the witness isn't a party. If this was a trial, the witness would not have a lawyer in the well of the courtroom to object.

And then they kicked the lower court judge but good with respect to that nonsense about providing a release to a witness before testimony could ensue:

...we note that the practice of conditioning the videotaping of depositions of witnesses to be presented at trial upon the provision of general releases is repugnant to the fundamental nonparty obligation of every citizen to participate in our civil trial courts and to provide truthful trial testimony when called to the witness stand. Contrary to nonparty respondents' contention, the fact that the statute of limitations has not expired with respect to a nonparty treating physician witness for the care that he or she provided to a plaintiff provides no basis for such a condition.

The unanswered question that I have, given that the lawyers for the cardiologists were provided by their medical malpractice insurance carrier. Is it the same carrier as the defendants?

And that question was answered by one of the attorneys involved: No. But certainly something to look for if the situation should arise elsewhere, as may well happen with this ruling if such non-party depositions become more common.

Labels: Depositions, Medical Malpractice

Rep. John Murtha (D-PA) died yesterday, a week after routine gall bladder surgery (cholecystectomy). He was a powerful congressman with his finger on the button of Pentagon appropriations.

And with his high-profile death comes an opportunity to explore some medical malpractice issues.

So let's do this in Q & A form:

What is the first reaction as to why this happened?

First up is the most common reason for malpractice litigation with gall bladder surgery: That the common bile duct was mistakenly cut. I don't know what happened here, of course, since I don't have the medical records or the autopsy results, but you can bet that is one of the first places people will look.

As basic background, the liver produces bile that helps us digest. It is transmitted to the intestines via ducts. The gallbladder stores bile. A schematic is seen here at left.

Was this due to infection, instead of a common bile duct injury?
Some are claiming that the death occurred because the intestine was mistakenly cut during surgery, and that this caused an infection. Someone investigating the case would then naturally ask the following questions:

Was the cut intestine noticed during surgery, and if not, why not? Cutting something that you're not supposed to cut is one thing. But failing to notice that it was cut is a whole different thing. This is often the dividing line between when a malpractice case is successful or not. Bad results by themselves don't mean malpractice. Failing to recognize mistakes, however, is a different concept entirely.

If noticed during surgery, what was the response? This surgery was done via a laparoscope, in which the scope is passed through a small incision, with surgery done with a camera-assist. Depending on when and where the bad surgical cut happened, and whether it was noticed at the time, the logical questions are who, if anyone, was called in to assist in the repair and how was it done?

When were the first signs and symptoms of infection noticed and reported and what was done about it? If the cut was noticed during surgery, then in addition to any potential antibiotics that may have been given, would have been very strict discharge instructions to the patient on the signs and symptoms of infection and the critical nature of prompt action.

If this is a known risk of the procedure, why blame the doctor?
This one is a classic, and defendants love it in the courtroom. But it is the wrong question to ask. The issue is not whether something was a known complication or risk, but whether it was avoidable with good care.

Think of it this way: Is a car accident a risk of driving? Does the fact that accidents are a risk of driving mean that the guy who ran the stop sign is not responsible?

Was Murtha just one of up to 98,000 estimated deaths from malpractice in the US each year (Study: To Err is Human)? Time will tell on that one. And we will see to what extent if death has an effect on the health care debate in Congress and the desire by some to grant certain immunities to the medical industry for malpractice.

On a last note, not only was Murtha deeply involved in political-military issues, but the surgery took place at the National Naval Hospital in Bethesda, MD. This adds another potential political element to any investigation or legal action in the event that family moves in that direction.

Labels: John Murtha, Medical Malpractice

There was an extraordinary decision late last week out of the Second Department that I was getting ready to blog, but John Hochfelder beat me to the punch.

Short version: At a Brooklyn medical malpractice trial the defendant, at some point, offered 150K to settle. Then, while the jury was deliberating, the plaintiff tried to accept. But a note had been passed to the clerk that the jury had reached a verdict.

Did the judge quickly confirm an agreement between the parties and put the settlement on the record? Nope. She did the opposite. And not only did the judge insist on the verdict being taken, but defense counsel remained silent, perhaps smelling a defense verdict after a short deliberation.

This exchange ensued in open court between plaintiff's counsel and the judge:

Mr. Jordan: Could I put my request on the record?
The Court: Once I have a verdict, I take the verdict, and then the parties are free to do what they agreed to. An agreement is an agreement, counsel.
Mr. Jordan: Why can't we put the agreement to settle the case for $150,000 on the record?
The Court: Because I said what I have to say. Let's proceed

The jury came back with a $1.45M verdict. The judge then proceeds to toss out the verdict and asserts that the settlement -- the one defense counsel refused to confirm and she refused to put on the record -- controlled.

What do you think the appellate court did?

You can read the decision in Diarassouba v Urban or go to Hochfelder's site for his analysis of the case.

Labels: Medical Malpractice

Generally speaking, one can't sue a doctor that does a medical-legal exam for the other side. These exams come up in the context of Workers' Compensation trying to cut off a worker's benefits, Defense Medical Exams for personal injury suits where too many doctors seem to claim that every injury under the sun is one that pre-existed the accident, or cutting off benefits under the wreck of legislation that we call No-Fault.

Historically, the bar to such suits takes place because there is no duty of care between the examiner and the examinee.

But last week New York's Appellate Division First Department said that these doctors can, in fact, be sued, if three conditions are met. This is based on "an implied physician-patient relationship" if the examiner gives advice.

In Badalto v. Rosenberg, a unanimous panel of the First Department wrote that

"In the context of a physical examination conducted for the purpose of rendering an evaluation for a third party, such as an employer or insurer, an implied physician-patient relationship may arise if the physician either affirmatively treats the examinee or affirmatively advises the examinee as to a course of treatment."

The three conditions set forth by the court are:

1. that the advice was incorrect,
2. that it was foreseeable that the plaintiff would rely on the advice, and
3. that the plaintiff detrimentally relied on the advice.

So if then, hypothetically, a doctor does an exam for a Workers Compensation carrier, and claims the worker can go back to work -- advice for which the physician had previously been immune -- and the worker relies on that advice to go back to work and is injured, the doctor can be held liable.

Can you see where this is going? All those 5-10 minute quickie exams done by doctors on behalf of insurance companies may now subject those doctors to liability. If a doctor is going to cut off benefits, s/he will now have to write that the worker can go back to work, but also write that the worker shouldn't actually rely on this opinion. The physicians will have to write, essentially, that their opinions are actually worthless and should not be relied upon. If an injured party shouldn't rely on it, why should a judge or jury?

Of course, there is the other option. Doctors can actually do legitimate exams instead of selling their souls to the insurance companies.

Labels: Insurance Industry, Medical Malpractice

Last month, Kevin Pho, M.D., of Kevin, MD fame, had an op-ed in USA Today on potential solutions to medical malpractice litigation issues.

I've responded to that piece, and he has it as a guest blog today:

How a personal injury lawyer views the medical malpractice system

Dr. Pho runs the most widely followed doctor's blog in the medical blogosphere, and he appears frequently on op-ed pages.

Labels: Medical Malpractice

When I last touched the often imperceptible dividing line between medical malpractice and general negligence, it was because the difference in the statute of limitations was crucial to survival of the case. In that matter, there was trauma to the leg that resulted in death as the patent's leg slammed into a bed rail. With a statute of limitations of three years for general negligence, but two and one-half years for malpractice, it's easy to see how this can create litigation. (See: Medical Malpractice (So You Think You Know What It Is?)) A divided First Department decision ensued with Justice Catterson doing a lengthy analysis of the difference in Friedman v. New York Hospital-Cornell Medical Center.

The issue arose again last week, now in the Second Department, in Spiegel v. Goldfarb. This time the issue was the legal fee. You see, in New York, the legal fees are substantially lower in malpractice cases than in general liability, as a result of tort "reform" measures in the '80s. These "reforms" resulted in de facto immunity for many medical professionals, and made it difficult for many victims to found counsel. In addition to a shorter limitations period, the legal fees were cut. Rather than a 1/3 fee, the malpractice legal fee (discussed further in one of my first posts on this blog) is:

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.

In Spiegel v. Goldfarb, the underlying case was a about a failure to diagnose endocarditis, an infection of the heart valves. One of those that settled was a lab. These are the magic words that make up the standard, but they don't exactly give bright line definitions, which leads inevitably to litigation:

In distinguishing whether conduct may be deemed malpractice or negligence, the critical factor is the nature of the duty owed to the plaintiff that the defendant is alleged to have breached. A negligent act or omission by a health care provider that "constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician constitutes [medical] malpractice." More specifically, an alleged negligent act constitutes medical malpractice when it can be characterized as a "crucial element of diagnosis and treatment" and "an integral part of the process of rendering medical treatment to [the plaintiff]."

The fault for this, of course, is not with the appellate division. Because the difference is often impossible to define. Rather, the solution is doing away with this artificial difference.

Malpractice cases are both more expensive and more difficult to handle. There is no compelling reason that the statute of limitations should be shorter or legal fees lower. If anything, the statute should be longer and the fees should be greater. And that is because many acts of malpractice are not even known at the time they occur (unlike an auto accident) and due to the complexity of the litigation.

There are some occasions, of course, when the reduced legal fee benefits the litigants. Those cases arise when they can actually find a lawyer to take the matter. (Though the 10% legal fee at the top end is often used by insurers in an attempt to drive a wedge between the plaintiffs and their counsel, by creating an incentive to take a smaller settlement because the risk-reward of going forward has become so unfavorable.) For many potential litigants, there is simply no lawyer to be found.

How do I know there is no lawyer to be found? Because I get these types of calls all the time. After I've declined the case because of the economics involved, many of these callers tell me that they've heard this before from several others that they've tried.

Frankly, it's time New York stopped crapping on the victims of malpractice -- and that is what those "reforms" are" -- and restore fairness to the law.

Labels: Medical Malpractice

One of my brothers is a doctor. Internist. Geriatrician. You may not have expected that given the many decades both my father and I spent prosecuting medical malpractice claims, but thems the facts.

Today he guest blogs in my humble little corner of cyberspace. He wrote this letter in response to an NPR broadcast on defensive medicine. They didn't air his views, but I will. (My prior comments on Defensive Medicine v. Medical Greed are here, so that, if you choose, you can compare some of the intra-family views on the subject.)
----------------------------------------------------------------------
By Stuart Turkewitz, M.D.

I listened with interest to your NPR interview regarding the estimated portion of health care costs attributable to malpractice expenses, and especially to the practice of defensive medicine. Both you and the host, Robert Segal, made repeated reference to unnecessary "tests and prescriptions" before arriving at a conclusion that a “very small portion” of the total health care bill results from practicing defensively.

Unfortunately, your reference to "tests and prescriptions" omits a major component of unnecessary health care expenditures: hospital admissions of older adults, and particularly adults with chronic medical problems.

I am an internist and geriatrician, and my patients occasionally go to or are sent to the emergency room, usually because a test is needed to urgently rule out a condition: a CT scan to rule out subdural hematoma, a lower extremity Doppler to rule out deep venous thrombosis, cardiac enzymes and EKG to rule out a heart attack.

Once a dangerous condition is ruled out, there is every reason not to admit an older patient to the hospital: people do best in familiar surroundings with familiar caregivers and food. The hospital subjects them to multiple new faces, irregular sleep cycles and sleep deprivation, risk of infection, and relative immobility, often precipitating a substantial decline in function.

Once in the emergency room, however, patients are confronted with physicians and other staff with every incentive to admit the patient, and little incentive to send him or her home. The infection, confusion, and insomnia that often accompany admission are at least a day or two in the future , and are not a consideration of the ER physician. On the other hand, the ER physician feels that he or she will be held to account for any misfortune that befalls the patient sent home from the ER. In addition, chronic medical problems can often look acute to physicians and staff unfamiliar with a particular patient's "baseline." The urge to recommend admission is overwhelming. The attending physician (that would be me), often at the other end of the phone, however skeptical of a true change in condition, is ill-prepared to argue against the physician who actually saw the patient moments earlier.

There is no question that the fear of malpractice suits influences physicians, particularly ER physicians, to admit patients unnecessarily, and I believe that the magnitude of this dwarfs the "tests and prescriptions" that you mention. This not only drives up the national health care bill enormously, but is detrimental to the health of most patients.

I believe that if the true "costs" of a hospital admission, including temporary and permanent decline in function, were truly and fairly accounted for, then it would be more evident how much the fear of lawsuits was truly costing us all.

Labels: Guest Blog, Medical Malpractice, tort reform

Back in May I wrote about two top neurosurgeons that were suspended for leaving a brain surgery patient on the operating room table at North Shore University Hospital. That woman has now sued them.

The patient, Jennifer Ronca of Pennsylvania, had undergone the first of a two-part brain surgery. But the surgeon for the second part, Paolo Bolognese, failed to appear and operate. He remains on staff at the hospital.

A second neurosurgeon, Dr. Thomas Milhorat, refused to step in when called. He has now retired.

The first thought on reading the story is: So what were the damages? And defense counsel Tony Sola of Martin, Clearwater & Bell, one of the talented "regulars" of the malpractice defense bar here in New York, echoed that very thought when asked for a quote, saying that Ms. Ronca was "not injured" as her surgery was completed several weeks later.

But Ms. Ronca was, of course, injured. At the barest minimum she had an additional surgery and had her recovery delayed by those several weeks, in addition to any deficits that might have occurred due to the delay. There seems to be little doubt that trying to demonstrate (and defend against) such deficits will be the crux of the damages portion of the case.

On Ms. Ronca's side is Mark Bodner, one of the regular plaintiff's malpractice attorneys. Both sides are well represented here.

And it's well worth noting that the damages sought are "unspecified" in accordance with New York law, notwithstanding that some lawyers break that rule. And even when pressed by the reporter for a number, because reporters love putting those numbers in headlines, he declined.

There is a demand for punitive damages also, and as both Bodner and Sola realize, such a claim has a very high hurdle indeed. I'm not sure if any punitive damage award has ever been upheld against a doctor in New York. While the conduct here might look particularly egregious, if there was a scheduling or communications snafu that caused it, such damages are unlikely to be awarded.

(hat tip to Scott Greenfield for picking this up out of Newsday)

Labels: Medical Malpractice

So you think you know what medical malpractice is? Well, last week a panel of appellate judges in New York split on the subject in Friedman v. New York Hospital-Cornell Medical Center.

The following scenario presented itself on a motion for summary judgment:

A patient died of blunt trauma to the right leg after her leg struck a bed rail while aides were preparing her for dinner and adjusting her bedding. The victim was bedridden and had fragile skin that was prone to rupture as a result of medications she took for her numerous ailments.

The majority concluded that this was an action in simple negligence because the alleged negligent act may be readily determined by the trier of fact based on common knowledge, and therefore, no special expertise was needed. Thus, on a motion for summary judgment, it was readily apparent that the court should not summarily dismiss the case as issues of fact existed for a jury to determine, and that an affidavit from an expert was not needed for such a purpose.

On the other hand, Justice James Catterson wrote in a long, analytical dissent that this was a malpractice case, because the harm to the patient -- the rupture of her right leg, and a massive loss of blood resulting in death after her leg was allegedly knocked into a bed rail by an aide -- was not foreseeable by the average, reasonably prudent person. Malpractice, from this perspective, is not just about diagnosis and treatment. The dissent pointed out that the Court of Appeals had not yet addressed what categories of health-related activity constitute medical treatment or bear a substantial relationship to the rendition of such treatment.

Catterson broke the arguments down like this, in determining that this was a malpractice case:

Silvercrest's failure to realize or assess that her leg would rupture from being bruised on a bed rail involves diagnosis of her condition at the time, and therefore requires the special knowledge and skills of a health practitioner. The plaintiff, on the other hand, argues that "shifting a patient in bed does not require specialized medical knowledge." But the plaintiff then further argues: Silvercrest "[d]ue to its knowledge of her physical condition, [...] owed decedent a higher duty of care in its treatment of her. The breach of this duty resulted in foreseeable injury and ultimately, her demise."

The dividing line between malpractice and simple negligence is sometimes easy to see, but sometimes not. And the place where it is difficult usually occurs in the hospital setting, often with falls that occur. Justice Catterson notes in his long dissent that falls from hospital beds due to a lack of bed rails were found to be negligence while another fall from an exam table was found to be malpractice. He also notes that the decisions seem, sometimes, to be arbitrary.

Is the issue an important one? You bet. The statute of limitations for medical malpractice cases was changed from the 3 years to 2 1/2 years as a result of pressure from the medical lobby. So if the case is brought after 2 1/2 years, and before 3 years, you can bet that the defense will claim the action is really one for medical malpractice and therefore time-barred.

The question, ultimately, may be one for a jury and not a court. I tried one case many moons back where a patient with a ruptured aneurysm in the brain fell off the angiogram table. On to her head. There were two issues for the jury regarding how she was secured to the table with tape:

1. Was it a departure from medical practice to use tape to secure this patient? (The malpractice question.)
2. Was the technician negligent in the manner in which the tape was used ? (General negligence.)

The jury answered the first question no (it was not malpractice) but the second question yes (it was negligence).

The lesson from this dispute? If you aren't sure whether the case is malpractice or simple negligence, plead it both ways in the Complaint. And don't wait until the 2 1/2 year statute of limitations on medical malpractice has expired. For the answer may well depend not only on what the Court of Appeals does one day on this issue to further define the concepts, but on the testimony of the defendants themselves as to who, when and where a particular action was ordered and the way that order was carried out (if at all). This is often beyond the knowledge of the plaintiff when a suit is started.

Labels: Medical Malpractice

In the news yesterday comes speculation that Michael Jackson's mother, Katherine Jackson, might bring a wrongful death action on behalf of Michael's children. An obvious target is Dr. Conrad Murray. But promoter AEG Live might be in this too, and that would add a whole other dimension to any potential suit. This came from the AP story (Jackson's mother considering wrongful death suit):

"The possibility of a wrongful death action has been floated," [Jackson attorney Burt] Levitch said. "In that regard, no decision has been finalized ... Dr. Murray's name has been floated because he is under investigation."

Authorities investigating Jackson's June 25 death have been focusing on Murray, who they believe administered a powerful anesthetic to the pop singer the day he died. Levitch wouldn't say whether concert promoter AEG might also be a defendant.

On the day after he died I analyzed the possibility of a malpractice suite (Michael Jackson: The Mother of All Malpractice Suits?) based on the little information that was available. I thought it unlikely if the only assets that the doctor had were a million dollar insurance policy.

When I followed up on this theme two weeks ago (Michael Jackson: Malpractice or Manslaughter (Or Something Else)?) I added that a suit might well go forward, not because of any immediate financial gain from the potentially limited pot of money, but to prevent Murray from profiting by selling his story. Knowing he would lose any book proceeds due to a judgment against him would be a pretty big disincentive to sit down and write, or to subject himself to interviews that could be otherwise profitable, if not painful to endure.

But....if Dr. Murray was employed by the promoter, and I don't know who signed his checks but that is one possibility, then the promoter could be on the hook for any judgment against Murray if he was acting within the scope of his employment with them. The concept of respondeat superior is well known to all who litigate, and the deep pocket of the employer is often sought when an employee hurts someone. I can easily foresee a fight here over whether Murray was an employee of AEG, or of Jackson, or was an independent contractor.

Now if the promoter was, in fact, the employer, I would guess that they bought a larger insurance policy on Jackson then the customary million, or demanded that Murray do so on his own. If they are found to be the employer, and therefore responsible for a judgment, we could be talking again about a whopper of a malpractice case.

But wait! There's more! For while the death of Jackson would seem on first blush to create one of the largest potential personal injury cases in the nation's history for any one individual, how does one calculate the loss? For in Jackson's untimely death the estate is reaping millions of dollars that would seem to offset a large part, or even all, of the award. Is Jackson a better earner dead then he would have been alive? Lawyer-blogger Hans Poppe addressed this issue a few weeks back.

This is, of course a helluva tough question to answer for any entertainer, let alone one of Jackson's stature. He did sell out 50 shows at The O2 Arena in London, but he also carried a huge amount of baggage due to issues regarding inappropriate contact with children. How much could he have made? And how much of that would he have consumed if he lived? He didn't exactly live a life of modesty.

So the potential for AEG to be found an employer of Dr. Conrad Murray opens up a can of legal issues, and a potential lawsuit, the likes of which no medical malpractice attorney has ever seen.

Assuming the investigation brings evidence of negligence by Dr. Murray, will this suit be brought? Or not?

(Photo from from Extra, Rio de Janeiro)
------------------------------

Related:

• Dr. Conrad Murray speaks via Youtube (Popsquire, via ATL)

• Michael Jackson: Wrongful Death Lawsuit Possible (Popsquire)

• Michael Jackson's 'very unusual problems' surprised his new doctor, lawyer says (Anderson Cooper 360)

• Of Death and Profit (Eduardo Porter in NYT Editorial Notebook, 8/19/09):

  The reported $100 million that Michael Jackson's estate made in the first seven weeks after he died easily surpassed the $52 million generated last year by the estate of Elvis Presley, formerly the highest-grossing dead celebrity, according to Forbes magazine. It is way ahead of Marilyn Monroe's $6.5 million last year, James Dean's $5 million and John Lennon's $9 million.
  
  Death has long been a savvy financial move in the visual arts: it guarantees that the supply of new works has come to an end, conferring scarcity value upon the existing oeuvre.

Labels: Medical Malpractice, Michael Jackson

A new study has come out from the Center for Justice and Democracy debunking medical malpractice myths. The PopTort has the story.

Labels: Medical Malpractice

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, Michael Jackson

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