One North Carolina doctor’s story.

Our editor, Walter Olson, has covered this territory before, but it’s worth revisiting as Kerry and Edwards make their way across key states in their bus caravan campaign. The report on the men behind John Edwards at EdwardsWatch makes for interesting reading.:

According to published reports, Edwards received $4.65 million from 3,220 lawyers, 29 paralegals, 17 legal assistants and 555 people with the same address as a personal injury attorney contributor (such as a spouse or close relative). The $4.65 million represents 63% of the total money raised by Edwards. Over one-third of those contributors gave the maximum $2,000..

His biggest contributors include patron, friend, campaign finance director, and asbestos-litigator extraordinaire Fred Baron, Silicon Valley litigator William Lerach (see also this), and the mysterious Stephen Bing.

He also has close ties to the law firms Girardi and Keese and Chitwood and Harley. And that’s just the tip of the special interest iceberg.

Other tidbits from the EdwardsWatch site include the discount air travel Edwards gets from his trial lawyer friends and the money he’s gotten from every state trial lawyers association in the country. Has there ever been a candidate so beholden to one special interest?

More: See also details at Rantburg and Edwards’ PAC donors from OpenSecrets.org.

There may be good news on the horizon for physicians in John Edwards’ home state. No, the state didn’t pass sweeping tort reform. It’s market magic:

Unlike the last survey, business-related cases didn’t just lead the top of the list. In a dramatic change from past years, they made up more than a quarter of all the entries for 2003, with 14. That’s more than double the number of business recoveries reported to Lawyers Weekly in 2002 ? and matches the tallies in medical malpractice and auto negligence.

Another telling statistic: In 2003, six business-related cases resulted in recoveries of $7 million or more, according to the survey. There were only three reported in that range in 2002 ? and only one in 2001. In contrast, no contested personal injury recoveries reached $7 million in 2003.

Why is that good news for physicians and what does it have to do with the free market? It means that lawyers will be expending their energies on business cases instead of malpractice cases. This may not be good for the economy of North Carolina, but it would give doctor’s and hospitals a reprieve. As one lucky winner, I mean attorney, puts it:

“In my view, in terms of making a living, business misconduct cases in today’s environment are becoming almost as profitable as personal injury, where you traditionally have had more high-end verdicts and settlements,” said Hunt.

And I thought they were in this to champion the little guy.

Click here to see a list of the top 55 verdicts for 2003 in North Carolina, none of which were under one million dollars.

The medmal crisis isn’t just affecting doctors, it’s having an impact on nurses, too:

Kimberly Ridpath was shocked to learn earlier this year that the malpractice insurance policy for her 150 health care workers had been canceled.

“I cried. I couldn’t eat. I couldn’t sleep,” said Ridpath, a registered nurse.

(Could this be the woman Senator Edwards was talking about?) She eventually found a policy, at roughly ten times the price of her original. It’s the nursing home work that makes her company such a high risk. But the problem isn’t confined to nurses who staff nursing homes. Midwives and nurse practitioners, who often serve the underserved, are finding their malpractice insurance premiums rising, too. As result, they can no longer afford to staff public health clinics on the cheap as they once did. Tort reform. It really should be a bipartisan issue.

Residents of central Ohio fear and loathe the town of New Rome. Most people, including the state’s Attorney General, suspect it exists only to line the pockets of a few people who live in its three block radius. The tiny town (pop. 60) has a per capita income of $12,983, but takes in $300,000 a year in traffic tickets. (Take a virtual tour of the town here.) It’s almost impossible to pass through New Rome without getting stopped for a violation, be it speeding or a broken tail light.

Ohio residents can breathe easy now. New Rome was dissolved this week by court order. Sometimes, the system works.

The Association of Trial Lawyers of America has decided to cultivate friends on both sides of the aisle. Long viewed as a friend of Democrats, the organization is beginning to see the wisdom of courting Republicans, too:

ATLA stepped up its courting of Republicans — particularly in the Senate — about three years ago. David Casey Jr., a Democrat who at the time was ATLA’s vice president, invited Mr. Parkinson, the Republican lawyer, to his San Diego law office….Mr. Parkinson went to see Sen. Hatch, who, he says, told him, “Not all Republican senators and House members favor the wholesale dismantling of the civil-justice system, but the view is that you’re completely Democratic.” If ATLA “would just try to be fair to both sides, they’re going to find the reception” among Republicans more welcoming, Sen. Hatch says in an interview.

How “fair” do they have to be to get a warm welcome? Let’s look at the numbers for the politicians mentioned in the article: Orrin G. Hatch, Saxby Chambliss, Lindsey Graham, and John T. Doolittle. Evidently, their work is paying off:

The trial bar’s Republican push again showed results last month, when Sen. Kyl tried once more to pass his attorney-fee cap for tobacco cases. This time, 15 Republicans opposed it, two more than last time.

Money talks. And trial lawyers have no shortage of money.

Doctors in Pennsylvania had high hopes for the possibility of caps on non-economic damages in their state. They had managed to get a bill for an amendment to the state constitution that would allow the caps, only to see it killed in committee by opponents of tort reform. Evidently, the legislators don’t want to take the issue to the people, who would have had to vote on the amendment. Will they be willing to answer to the consequences of their inaction? Young doctors already view Pennsylvania as a state to avoid :

In 2003, only 17% of residents who trained in Pennsylvania stayed there, according to the Pennsylvania Medical Society. The state had a net loss of 507 physicians from 2002 to 2003, and it dropped into the bottom 10 states for the number of young physicians in the state, PMS data show.

Many people volunteer for medical trials for the hope of a cure that they offer, no matter how remote. The disappointment they suffer when the experiment fails is understandable, but one group of volunteers is suing to keep a failed experiment going. Hope springs eternal. (More details at RangelMD)

An Overlawyered reader makes a point worth debating about second hand smoke and the law:

In the case of smoking, I am one of those who thinks someone smoking around me (in public, of course - they can do as they like as long as the smoke stays on their own property) is a form of assault.

You want to dip? Chew? Snuff? Take tobacco intravenously? Knock yourself out - but leave me out of it! And if the legislature won’t protect my rights, then the lawyers are all I have left… Ouch, that’s a terrible choice.

It certainly is a terrible choice. But, is the case for second hand smoke really analogous to chlorine gas? Chlorine gas is highly caustic and causes immediate damage to the lungs. Lung damage can occur with doses as low as 9 parts per million.

Second hand tobacco smoke, on the other hand, is a little more complex. It’s composed of many different components, for one thing, kind of like smoke from a fire. One of its deadliest components is, perhaps, carbon monoxide, which can kill at concentrations of 2000 ppm and cause symptoms at doses of 200ppm. The amount of carbon monoxide in second hand smoke will vary depending on the concentration of the smoke, but even in a submerged submarine filled with smokers, the amount of carbon monoxide produced in three days is only 6.6 ppm, well within OSHA’s work-safety standards.

A better analogy of second hand smoke would be perfume. As crazy as this may sound, I have never had to admit someone for an exacerbation of their asthma or emphysema because their neighbor or a relative was smoking outside on their porch. But, I have had to admit patients whose asthma or emphysema was aggravated by perfume or incense. So where do we draw the line? If the smoker commits assault with his second hand smoke, then so, too, do the heavily perfumed with their Chanel No. 5.

Rural Madison County, Illinois has a widespread reputation as a lucrative trial venue, even for people who don’t live or work there. The state legislature has not been helpful in pushing tort reform, so tort reform groups are taking their cause straight to the people - at the fair. Now that’s a populist venue if ever there was one.

JibJab, creator of that popular This Land Is Your Land political parody has been warned that they are infringing on Woody Guthrie’s copyright (see letter here.) As the Wired story notes, this action is the antithesis of the spirit of Woody Guthrie, who had this to say about copyrights:

This song is copyrighted in U.S., under Seal of Copyright #154085, for a period of 28 years, and anybody caught singin it without our permission, will be mighty good friends of ourn, cause we don’t give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that’s all we wanted to do.

UPDATE: Much discussion of the issue can be found at The Volokh Conspiracy. Just keep scrolling.

Opponents of medical malpractice tort reform often argue that malpractice premiums are on the rise because insurance companies made bad investments, not because of out-of-control jury awards. But, if that’s so, then why do premiums vary so widely by geography? Consider the rates in Cleveland, Ohio, a city that can lay claim to some of the most aggressive trial lawyers in the state, as well as some of the most generous juries:

A comparison of standard, non-discounted rates the American Physicians Assurance Corporation charges in Ohio, Illinois and Michigan shows doctors in Cuyahoga County paying the highest rates in almost every category, and nearly double the Columbus tariff.

‘The fact is, a day doesn’t go by when a Northeast Ohio doctor doesn’t get sued for multimillions of dollars,’ says Myers.

Retired history professor, and former smoker, Robert Zangrando is suing his next door neighbor for smoking. The neighbor, who isn’t allowed to smoke inside her rented condominium, smokes outside on her patio, where the fumes evidently waft into the professor’s condo. The lawsuit, filed in January, was slated to begin this month, but has been delayed until September. In those intervening months, his neighbor has agreed to smoke in her backyard during only the first fifteen minutes of every hour. She’s also decided to move her family to a new neighborhood. Conflict resolved, right? Wrong. Zangrando is still pursuing his case. He’s charging her with battery and trespass and wants $50,000 in damages. The former smoker blames his neighbor’s smoking, not his own, for his declining lung capacity.

The report in the The Cleveland Plain Dealer notes that there has been an increase in these second-hand smoke lawsuits:

Secondhand smoke often leads to conflicts, and more than 420 lawsuits involving secondhand smoke have been filed in the last 25 years, according to research by Edward Sweda Jr., senior attorney for the Tobacco Control Resource Center at the Northeastern University School of Law in Boston.

“There have been an increasing number of lawsuits in recent years that corresponds to people’s increased awareness of secondhand smoke and the physical harm it can cause,” he said, “and the gradually increasing societal disfavor of tolerating such exposure.”

Well, it’s not just due to an increased awareness, it’s also due to the work of legal activist groups like this one.

A North Carolina woman sued a hospital for failing to correctly diagnose her husband’s cancer. Except they did diagnose it correctly:

Punta Gorda resident Linda Brown filed the medical malpractice lawsuit in 2001 after her husband, Gerald, died in November 2000. Linda Brown alleged that Charlotte Regional contaminated tissue samples during a lung biopsy in 2000 which resulted in the wrong cancer diagnosis of small cell lung cancer. The plaintiff’s attorneys also say that Gerald Brown never had small cell lung cancer. He had only a recurrence of non-Hodgkin’s lymphoma and wasn’t treated appropriately for that disease before his death.

The hospital’s attorneys argued during opening statements last week that the chances of Gerald Brown’s DNA being contaminated was 1 in 1.09 quintillion. In fact, the chances of that happening may be even greater since that one-in-a-quintillion person would have to be in Punta Gorda, inside Charlotte Regional, having a lung biopsy at the same time and have small cell lung cancer. But no one else in the hospital was undergoing a lung biopsy at the same time as Gerald Brown on March 22, 2000.

The jury ruled in favor of the hospital, but the case took four years and several hundreds of thousands of dollars to defend. That’s OK with Mrs. Brown, because now she knows “the truth.” Apparently, neither she nor her lawyers, thought of having an autopsy to discover the truth. But then, autopsies cost money, with nary a chance of making money. Not even a 1 in 1.09 quintillion chance. (More: letter to the editor Aug. 16).

Point of Law points to the latest Congressional Budget Office report on tort reform, which concludes that non-economic damage caps do result in lower malpractice insurance premiums. They also decreased the practice of defensive medicine, at least when it comes to treating heart disease, without increasing mortality:

The authors found that the adoption of direct reforms led to a 6 percent drop in hospital expenditures for heart attack patients and a 9 percent decline for heart disease patients, with no significant change in mortality rates or cardiac complications.

They defined direct reforms as such measures as caps on punitive damages. Although it did take a few years to see the change in behavior and the reduction of malpractice insurance premiums, it appears from the report of this nonpartisan arm of the government, that tort reform works. Now can we give it a chance?

The practice of obstetrics is not easy. Doctors who deliver babies face long, late hours, life-threaatening complications that can spring up in a split second without warning, and the constant threat of litigation for events beyond their control. Now, the malpractice crisis is making it even harder, with doctors in crisis states like Pennsylvania finding themselves in a manpower crunch thanks to the exodus of obstetricians from the state. Not only are doctors leaving, but hospitals are shutting down their obstetrics departments:

According to the 2003 American College of Obstetricians and Gynecologists Survey on Medical Liability, 12.5 percent of OB/GYNs in Pennsylvania have stopped practicing OB and 57.5 percent have made some change in their practice because of issues with affordability or availability of liability coverage, including relocating, retiring, dropping OB, reducing number of deliveries, reducing amount of high-risk OB care, or reducing gynecological surgical procedures.

Those statistics, however, do not come close to revealing the extent of the current problem of obstetrician supply in the five-county Philadelphia region, which lost 25 percent of its staffed OB beds between 1993 and 2003, according to Delaware Valley Healthcare Council President Andrew Wigglesworth. Within the past 18 to 24 months, he says, the region lost 10 hospital OB departments, including those at MCP, Methodist, Nazareth, Warminster, Mercy Fitzgerald, Episcopal and Elkins Park; while OB services were also lost from hospital closures including City Line, Sacred Heart in Norristown and Community Hospital in Chester.

That means longer hours and a greater proportion of riskier cases for the hospitals and doctors who remain. Which means they’re more prone to errors. It also means that they can no longer spread themselves as thinly as they once did. Hospitals that once staffed inner city public health clinics are can no longer spare the staff to do so, leaving the poor without easily accessible prenatal care. Remember that the next time you hear John Edwards say that he has spent his career helping the down and out.

One of the most frustrating aspects of the medical malpractice business from the physician’s perspective is the seeming carelessness with which malpractice attorneys launch suits. It usually works like this: Someone has a bad outcome, say, in the hospital. The attorney gets the medical record, but he doesn’t use it to determine who is at fault. He uses it to collect all the physician names within it, from the doctor who saw the patient in the ER to the resident who ordered a Tylenol for a fever. The suit is then filed, naming every last doctor with a legible name. It’s only after the suit has been filed - and defense attorneys get involved - that the names are whittled down to who is deserving of being sued - a process that often takes months and thousands of dollars. In some cases, the lawyers don’t even make an attempt to determine if they have the right doctor, as in the case of this family physician from rural Oklahoma who was willing to share his story with Overlawyered:

I was served at my university job (where I was an academic fellow at the time) with papers for a lawsuit that at first blush looked absolutely horrific.? I think that there in fact were material questions of possible physician negligence that resulted in a patient’s death.? I was devastated, and began racking my brain trying to recall the specifics of this case (I had been an attending physician for a residency at the time I practiced there so it could have been any of a number of patients I had passing involvement in).? I went home and called my fiance and began to get very depressed.? Then I noticed something…the dates of the alleged incidents.? I HAD BEEN GONE FROM THAT HOSPITAL FOR OVER A YEAR AND A HALF BEFORE THIS PATIENT WAS EVER ADMITTED!!!? Apparently the order in question read “telephone order from Dr. A”.? It hadn’t been signed off, and the lawyer for some reason decided that I must be the “Dr. A” in question.?

There were about a dozen docs named in that suit initially. All but two were dropped within two months of the intial filing. My experience was apparently not unique.

Unfortunately, it isn’t unique, but all too commonplace. It is, in fact, the “standard of care” for plaintiff’s attorneys. When asked about the practice, even defense attorneys shrug and explain it’s a necessary evil. If a plaintiff’s attorney fails to name someone in the original suit, they can’t go back and add him. No one wants to explain to an angry client that they overlooked the person truly responsible.

And yet, this strikes us as a poor excuse for actions that have such far-reaching consequences for so many innocent bystanders. Prosecutors have to have fairly good evidence that they’re charging the right person before they file a criminal case. They don’t bring charges against everyone who ever encountered the crime victim. Shouldn’t malpractice attorneys have to live by the same standards?

MORE: Fellow medical blogger and Georgian surgeon Bard-Parker notes that doctors with illegible signatures get sued, too - as Dr. John Does (scroll down to “Itinerant Blogging”.

Michigan’s Supreme Court overturned a $21 million verdict in the kind of case that made John Edwards the man he is today. The Court ruled 6-1 that the basis of the jury’s decision in the original 1997 trial was faulty, because the expert witness testimony was faulty. Not that this means that the courts now recognize that cerebral palsy is rarely caused by birth injuries. Rather, the lower court failed to allow the defense an opportunity to object to the admission of the expert’s testimony. (An expert that they maintained had “novel” theories about the origin of cerebral palsy.) Still, it might be a step in the right direction toward correcting much that’s wrong with today’s malpractice litigation - “experts” who aren’t really experts.