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: