Sorry, docs: former South Dakota Senator Tom Daschle, reported as Obama’s HHS pick and indeed a “health czar” charged with pushing comprehensive health care reform through Congress, was known as a particularly close ally of the trial lawyers as Majority Leader, and drew on them as his most important donors in his final (2004) race. In 2004 he won an award from the New York Trial Lawyers Association for his work in blocking liability reform at the national level. (CNN, Patterico, American Prospect).

More from Carter Wood who notes the NAM vote tabulation: “On the identified 10 votes [between 1999 and 2004], Sen. Daschle voted against the tort-reform position 10 times. (Included were four health-care, medical liability-related votes.)” (& Dr. Wes).

“Dr. Steven Hayne, the man who performed most of Mississippi’s autopsies for 20 years, has filed a defamation lawsuit against The Innocence Project.” (Howard Ballou, WLBT, Oct. 30).

Hayne has been criticized because he said he conducted about 1,500 autopsies a year, much higher than the recommended standard [of fewer than 250 -- ed.].

His testimony in two murder cases from Noxubee County turned out to be inaccurate and both men convicted in those cases were released from prison earlier this year.

One of the men had spent 15 years on Death Row for a crime he didn’t commit.

A third man has confessed to both slayings.

(”Investigation changes are needed”, Hattiesburg American, Oct. 22). As part of its campaign against Hayne, the Innocence Project sent more than 1,000 pages of material documenting its complaints to the Mississippi state medical licensure board and also denounced him to the national College of American Pathologists. (Jerry Mitchell, “Embattled doc suing Innocence Project”, Jackson Clarion-Ledger, Oct. 31). Radley Balko at Reason has been a longtime critic of Hayne (”Hit and Run”, Nov. 7), as has Lotus @ Folo. On Jun. 6, we reported on charges that Dr. Hayne’s forensic work has been of extensive assistance to plaintiff’s lawyers in Mississippi liability suits.

• M.D.s and J.D.s in cahoots: when neuroradiologists over-read MRIs in search of “disc herniations” and “cord compression” [ER Stories]
• Lawyer burns his Harvard law diploma, and stop with that joking in the back row about whether there’s some way to burn all of them [ABA Journal]
• Latest lawsuit arising from fad for photos of “Hot Chicks with Dorky Men” (that’s a paraphrase) [TMZ, QuizLaw, earlier]
• Kid draws scary Hallowe’en mask, and next thing you know the police are called [Savannah Morning News]
• Great moments in international human rights: “Modern European navies are now so mindful of the legal loopholes they face in tackling pirates that they often instruct commanders to simply let them go.” [Telegraph; earlier here, here]
• China has four times the number of people we have in the U.S., while we have seven times the number of lawyers [Elefant]
• “Vaccine injury” lawyer Clifford Shoemaker fails in effort to curtail public access to fee information, so we get to learn more about his $211,663.37 bill to the government [Seidel, Neurodiversity; related here and here]
• More about that Milberg basketball team and its 6′ 8″ ringer [Supreme Dicta]

On the campaign contributions front. (Dr. Wes, Oct. 29).

• Anyone suing over anything dept.: Kansas City attorney Mary Kay Green sues McCain, Palin, for supposed hate speech against Obama [KC Star, Feral Child, Above the Law; related, my article the other day for City Journal]
• Got $331K from victim fund claiming severe injuries from Pentagon 9/11 attack, yet “kept playing basketball and lacrosse and ran [NYC] marathon in under four hours two months after the attacks” [Maryland Daily Record]
• Krugman claims Fannie/Freddie not big culprits in mortgage meltdown, but Calomiris and Wallison show him wrong [Stuart Taylor, Jr., National Journal; also note this Goldstein/Hall unlabeled opinion piece from McClatchy pushing the Krugman line]
• Government bailout of newspapers? Who’s trying to float this idea, anyway? [Bercovici/Portfolio via Romenesko] Update: maybe this?
• Colluded with chiropractor to generate bills for imaginary treatment, then pocketed clients’ insurance settlements without telling them [Quincy, Mass., Patriot-Ledger; Bruce Namenson sentenced to 5 years and "cannot practice law for at least 10 years after he gets out of jail"]
• Ontario: “Killer awarded $6K over wrong shoes in prison” [National Post]
• “Is there any doubt that Lucy grew up to be a lawyer?” [Above the Law on Doyle Reports, Judge Robertson ruling in patent case]
• Jury hits Jersey City, N.J. rheumatologist with $400K verdict (including $200K punitives) for not hiring sign language interpreter at his own expense for deaf patient [NJLJ, Krauss @ PoL]

Throckmorton is taken aback by the impressive list of symptoms and preconditions brought in by a patient who, it seems, is being prepped for a disability filing or some other sort of legal claim. The result: one of my favorite blog post titles ever. (Sept. 21)

They’ll have to assist unmarried women in giving birth even if doing so violates their religious scruples, according to a new California Supreme Court decision involving a lesbian applicant. As Bookworm Room points out (Aug. 19), and as we noted in the earlier Bay Area conscience controversy over gender-switch breast surgery, it makes a practical difference (if not one of libertarian principle) that there are plenty of other fertility clinics around San Diego that would be happy to step into the gap. The doctors in the case at hand might still escape liability because a ban on marital-status discrimination as such was not yet part of state law at the time they rejected Guadalupe Benitez; Benitez will win if she shows that the true motivating factor was her lesbianism. (Egelko, SF Chronicle, Recorder). The ruling also allows doctors to excuse themselves on the basis of religious scruples if there is a second doctor within the same practice — but not, apparently, a doctor across town at a different practice — willing to perform the work in question. And of course the legislature in Sacramento could readily help bring peace to the culture war by inserting into the law a generously drafted conscience clause — if it wanted to. More: Miller, IGF; opinion, PDF.

• Lawyers’ contingency fee is temptation to ethical corner-cutting in consumer debt collection, too [Miami Daily Business Review, Popehat; Orlando's Palmer Reifler & Associates, mass mailing of demand letters to accused shoplifters]
• Discussion continues on loser-pays with me and many others at NewTalk, and note comment from Ontario lawyer [through today]
• Age bias suit by Hollywood writers gains traction. Next, actors? [Ink Slingers via Class Action Blawg weekly review]
• Class action against Quebec lottery on behalf of problem gamblers finally set for trial [CP/Yahoo, Lee Distad via Class Action Blawg, earlier]
• Should we and other commentators avoid mentioning litigants’ real names so as not to intrude on their Google legacy? [comments at Ron Miller/Md. Injury]
• California lawmakers OK feel-good “Donda West Law” but it won’t do much to keep impulsive clients from rushing into plastic surgery [GruntDoc, Cameron Turner/EURWeb, Truth in Cosmetic Surgery Blog]
• Probably not a swift career move for lawyer to tell bar disciplinary panel “Go to hell.” [ABA Journal]
• Class action forces HUD to allocate more to some Indian recipients, so it cuts other programs, bad news for North Carolina’s Lumbee tribe [Fayetteville, N.C. Observer courtesy US Chamber]
• Environmental authorities won’t press charges against man who shot protected rattlesnake that had just attacked and bitten him [eight years ago on Overlawyered]

Blood should never clot, microorganisms should never happen, and one doc-blogger is on a tear (Aug. 14, more, Aug. 17) over the sometimes absurd hype being given to the concept:

“Never events” are and always have been “all about the Benjamins.” Look at this news release. The “background” section states that the “never events” were “required” pursuant to Section 5001(c) of the Deficit Reduction Act. Medicare wants to stop paying for things not because they “should never happen” but because it’s trying to save money. The whole “never event” moniker is just a spin they put on the cuts to make it look like someone else’s fault. Do “never events” never occur at government run hospitals? We’ll never know because CMS doesn’t even include government run hospitals on the “hospital compare” list.

In hospitals; medical; Medicare; never events

“Naomi Gadian, 21, from Manchester, claims that multiple choice testing discriminates against people with dyslexia” and is suing Britain’s General Medical Council and her college, the Peninsula College of Medicine and Dentistry in Plymouth, under the Disability Discrimination Act 1995, the U.K. equivalent of the Americans with Disabilities Act. (”Dyslexic medical student takes legal action against multiple choice exams”, Plymouth Herald, Jul. 30).

The story of well-meaning regulation, part 37,281: “Is an ignorant doctor really better than a tired one?” (Sandeep Jauhar, “The Nightmare of Night Float”, Slate, Jul. 30).

We hear frequently that the medical profession doesn’t do enough to police its own. Cases like that of Lawrence Poliner might explain why. In 1997, in response to complaints by nurses at Presbyterian Hospital of Dallas, and the allegation by a doctor that Poliner had performed an angioplasty on the wrong artery, the hospital asked Poliner to stop work while they investigated. These limited privileges lasted 29 days, followed by a unanimous decision to suspend, a five-month suspension from echocardiography privileges, and then reinstated Poliner five months later subject to conditions that he consult with other cardiologists.

For this, Poliner sued for defamation and under federal antitrust law, alleging that other cardiologists were trying to dominate the market and prevent his competition. The five-month suspension had federal immunity under the Health Care Quality Improvement Act, 42 U.S.C. § 11101 et seq. (just one of many federal tort reforms that promote safety), but the trial court held that the 29-day limited-privileges created a cause of action that should go to a jury. Poliner lost $10,000 in income over that time “but was awarded more than $90 million in defamation damages, nearly all for mental anguish and injury to career. The jury also awarded $110 million in punitive damages”–despite the fact that Poliner would have to prove damages were caused by the allegedly unprivileged temporary limitation rather than by the five-month suspension. We covered the initial $366 million verdict in 2004, the outraged medical blogosphere reaction, and the remittitur to a still ludicrous $22.5 million in 2006.

Continue Reading »

A doctor writes on the Kevin MD blog: “[M]eaningful control of the cost of medicine will have to go hand in hand with tort reform.”  Read the comments, also.

A Health Affairs paper by Suffolk University Law Professor Marc Rodwin et al. has been generating a lot of press and blog attention for its claim that there is no medical malpractice crisis in Massachusetts.  He and I have been debating the paper at Point of Law (Frank; Rodwin; Frank); as I show, that conclusion is highly suspect and seems divorced from the underlying data.

“Here’s one of their secrets: They’re not looking merely for cases of physician error; they’re also looking for unsympathetic defendants — for physicians who seem unfeeling.” (Shirley Grace, “The Law: Trial Lawyers Tell All”, Physician’s Practice, Apr. 1 (via KevinMD).

More: Coincidentally, the Times covers the “medical apology” movement this morning: Kevin Sack, “Doctors Say ‘I’m Sorry’ Before ‘See You in Court’”, New York Times, May 18.

Tort reform, of course, resulting in substantially lower medical malpractice premiums and expenses, and an influx of 7000 doctors, including into many underserved regions. One indirect benefit: with less money spent on medical malpractice lawyers, self-insuring hospitals can spend more on doctors and on medical practice:

Take Christus Health, a nonprofit Catholic health system across the state. Thanks to tort reform, over the past four years Christus saved $100 million that it otherwise would have spent fending off bogus lawsuits or paying higher insurance premiums. Every dollar saved was reinvested in helping poor patients.

Also of relevance: the amusing results when Texas added evidentiary standards of medical harm to their asbestos and silicosis docket. Suddenly, over 99% of the cases went away because so few suing plaintiffs had a doctor willing to certify harm. (Joseph Nixon, WSJ, May 17). Related: POL Nov. 6, 2006 and POL Nov. 7, 2006, where I debate Texas law professor Charles Silver on these issues. Suffice it to say that the last year and a half has provided more support for my position than his.

Update: more data at Texas Medical Association website.

Why they might be giving you a parting x-ray whether or not anyone thinks you strictly need one (Dr. Val, Apr. 2).

An important all-day conference at AEI next week:

In the last several years, nearly every major pharmaceutical company has paid hundreds of millions of dollars to settle allegations of illegal “off-label” marketing of drugs. There has been a growing trend of actions by federal prosecutors, state attorneys general, and cooperating trial lawyers to litigate against pharmaceutical manufacturers for allegedly doing too much to promote off-label use of prescription products. Citing recent legal changes mandating exclusion from federal programs after a conviction, many manufacturers say they are forced to settle rather than risk defending themselves–even as prosecutions against individual executives have foundered in front of juries.

At this AEI Legal Center event, experts on both law and health care will present papers on the law, economics, medicine, and public policy of off-label marketing, discussing everything from the abuse of class action mechanisms to implications for the First Amendment and medical malpractice. Speakers include former Food and Drug Administration chief counsel Daniel Troy; former Cephalon general counsel John Osborn; former deputy attorney general George Terwilliger; principal deputy assistant attorney general and acting assistant attorney general for the Civil Division Jeffrey Bucholtz; attorneys Brian Anderson, James Beck, Mark Herrmann, Richard Samp, and Kyle Sampson; law professor Margaret Johns; and AEI scholars John E. Calfee, Theodore H. Frank, and Scott Gottlieb.

Panel I: Off-Label Marketing, R&D, and Medical Practice

Panel II: The Legal Environment from Federal Regulation and Enforcement

Panel III: Distortions from State and Private Enforcement

Panel IV: Legal Implications for Commercial Speech and Medical Practice

Register here. Earlier discussion on POL: Feb. 1; Feb. 19; Mar. 24; Dec. 17; Aug. 31; Aug. 22 (Richard Epstein); Aug. 1, 2006 (state AGs); Mar. 19 (InterMune indictment).