Update to the Hamilton County medical malpractice case we discussed in May. Four jurors have signed affidavits claiming that they were “coerced” by the judges’ instructions demanding a verdict into finding for the plaintiff rather than deadlocking the jury; one or two others deny that this happened. (Chattanooga Free Press, Jun. 14, Jun. 24, and Jun. 28; h/t J.T.)
While the “Allen charge” the judge gave appears to violate Tennessee law (which, unlike federal law, disapproves of such instructions), reading between the lines of the news stories, it seems that the defendants sandbagged any objection. As one can see, the journalist did not know enough law to ask the follow-up question “Did you object at the time to the jury instruction?”, which would be the critical inquiry. (Though it is possible that she did know, but had that part of her story cut by editors.) If this is the best grounds of appeal for the defendants, and plaintiff’s lawyers are correct that there was no objection at the time, the defendant is facing a steep uphill battle. Generally, courts don’t like to go wading elbows deep to scrutinize the jury deliberations; otherwise, every trial would be followed by a collateral trial into the claims of jurors, and losing parties would have the incentive to lobby jurors to testify against their verdict. (I learned this the hard way in my first appellate briefing as a junior associate.)
Tagged as:
defensive medicine,
juries,
medical malpractice,
Tennessee
One out of ten colonoscopies result in nausea and vomiting; about one in 1000 colonoscopies will accidentally perforate the intestine, with potentially life-threatening side effects if not treated in a timely fashion. Kristen Freeman was one of the unfortunate one in 1000. While she complained of nausea and vomiting, she disregarded the instructions given to her about reporting her other symptoms, and so medical staff treated it like a more common case of nausea. By the time she admitted that her situation and pain was more dire, complications set in, and she suffered cardiopulmonary arrest, which in turn led to severe brain damage.
I won’t quibble with the jury’s assessment of damages of $12 million: Freeman was 33 and is now disabled for life, and in the randomness of noneconomic damages, $12 million isn’t the craziest award out there. But that the Hamilton County, Tennessee jury found gastroenterologist Michael Goodman 51% liable seems arbitrary. If doctors are required to assume that every patient reporting nausea but denying their situation is an emergency might be hiding more serious symptoms, and require them to go to the emergency room for testing (as the plaintiffs’ attorney argued Goodman should have done here), then that’s 100 wasteful emergency room cases for each real case—and not even a prevented case, since most patients follow instructions and report to the ER on their own when symptoms specific to perforation appear.
The article is on the Chattanooga Free Press web site, but the interesting discussion is in the comments, with friends of Freeman and seemingly knowledgeable doctors kibitzing. Freeman’s supporters argue that she did not actually experience any emergency symptoms and thus was not at fault at all. Even if true, that implies that they feel Goodman should be held responsible because he did not anticipate that Freeman was actually having an emergency when she presented asymptomatically: again, a demand for defensive medicine.
Tagged as:
defensive medicine,
medical malpractice,
noneconomic damages,
Tennessee
- “The Boston Public Health Commission has just banned the sale of all tobacco products at colleges. Not high schools. Colleges.” [Saletan, Slate]
- Sometimes the case caption seems to tell a little story all by itself [Lorraine Hodges v. Mt. Zion Temple d/b/a Zero Gravity Skatepark Oakland County, Mich., 12/1/2008 08-096435 NI Chabot (Pontiac), slip-fall on snow and ice]
- Consumer complaint site Ripoff Report is magnet for lawsuits [Citizen Media Law, Eric Goldman and again]
- EEOC hearing on English-in-the-workplace issues [Clegg, NRO "Corner"]
- Wiretapper Anthony Pellicano, helpful gnome behind the scenes for many powerful Hollywood lawyers, sentenced to 15 years behind bars [CNN, Patterico]
- “Hungary’s Constitutional Court says it has annulled a law giving rights to domestic partners because it would diminish the importance of marriage”; now just watch how many folks on both sides flip their opinion of judicial activism [AP/WHEC]
- No teaser rates for you! Harvard’s Elizabeth Warren wants new law empowering federal government to order withdrawal of “too-risky” consumer credit products [Consumer Law & Policy]
- Major new study of defensive medicine, conservatively estimated to waste $1.4 billion in Massachusetts alone [KevinMD, Boston Globe; Massachusetts Medical Society]
Tagged as:
Anthony Pellicano,
banks,
Boston,
defensive medicine,
domestic partners,
language bias,
Massachusetts,
tobacco
It’s enough to exasperate WhiteCoatRants (Oct. 20):
…Utter the terms “chest pain” and “trouble breathing” in the same sentence and with some doctors you’re getting a chest CT. It doesn’t matter that you have a cough, runny nose, that the chest pain is burning and only occurs when you cough, or that half the people in town have influenza because they didn’t get their flu shots. Even if bronchitis is the clinical diagnosis, there is still a 0.0001% chance that you could have a pulmonary embolism along with your bronchitis and we don’t want to miss it, because if we do, it may cause you to die and result in a lawsuit against the physician. Some doctors aren’t willing to take even the 1 in 1,000,000 chance that they’ll be sued. …
If a doctor doesn’t get every conceivable test on a patient and there is a bad outcome, then the doctor gets smacked with a lawsuit because the doctor didn’t do enough. Unless something changes, more and more patients coming to the emergency department will get megaworkups so nothing gets “missed.”
Then I read that some pompous plaintiff’s attorney said somewhere that “defensive medicine” was a myth. His theory was that if doctors do an extra test that catches a disease while it’s still treatable, then it is “good medicine,” not “defensive medicine.” Either he doesn’t get it because he is ignorant or he doesn’t get it because that attitude helps him afford his chalet in the Swiss Alps.
Medicine will never be perfect.
While on the subject, prominent health economist Uwe Reinhardt has cited our medical liability system as an important reason costs are significantly higher in the U.S. than elsewhere (PoL, Nov. 16). And KevinMD’s excellent section on defensive medicine has numerous posts in recent months we still haven’t gotten around to linking, including: guest take by “Dr. SSS” on the “two most expensive words in medicine” (”Sometimes it is difficult for me to understand if I am really treating myself or the patient.”); background on the $210 billion estimate that has been bandied about; E.R. visit + chest pains = obligatory catheterization?; quote from PandaBearMD (”Why risk our own money when we can use somebody else’s to protect us, even if it costs millions?”; a British visitor’s view of immobilization collars; don’t put the doc’s name on the chart!; and more reader reactions (”even if a patient has a good relationship with a physician and is willing to forgo various diagnostic tests, the family can decide to sue later if there is a bad outcome. … it is far easier to just order the test”)
Tagged as:
cardiology,
defensive medicine,
emergency medicine,
emergency services
We’ve often touched on the subject of lab testing and defensive medicine, but as Happy Hospitalist points out [Oct. 11], ordering needless testing is by no means the only way the various parties endeavor to avoid liability. Another is the superfluous communication of not-really-urgent abnormal test results, sometimes on a doctor’s pager at 4 a.m.:
Unfortunately, patient safety is rarely an issue. It’s a giant game of shifting liability. The lab documents they notified the nurse–>lab off the hook if something bad happens. The nurse notifies the doctor —> nurse off the hook if something bad happens. Doctor is left with a critical value called 10 or 20 times a day, interrupting the entire flow of patient evaluations and discharges. Every time, I must stop what I’m doing and answer a page for a critical lab value, I lose valuable face time with patients. And it all adds up over the course of a day. I wouldn’t have a problem with the system, except that critical thinking has been removed from the equation. The nurse is not allowed to make judgments as to whether a phone call is warranted or not.
As a default protocol of calling all critical lab values, the liability is shifted up the educational food chain, landing ultimately on the physician’s lap. Often times a nurse is not allowed to not call a critical lab value. The problem is, what the hospital has defined as critical, does not apply to the vast majority of critical lab values reported. What’s considered critical by hospital standards, is a normal or chronic value for [that particular] patient.
Whole thing here.
Tagged as:
defensive medicine,
hospitals,
testing
University of Iowa professor Arthur H. Miller (who is not the NYU Law professor Arthur Miller) allegedly traded grades and offered to trade grades for second-base action with female students, appropriately resulting in criminal charges and being placed on leave by the university. Paul Caron points us to this Chronicle of Higher Education blog post that says Iowa has ordered all of its professors to undergo sensitivity training to avoid sexual harassment. Because obviously a professor who would demand students let him fondle their breasts for a grade would never have engaged in such a behavior if only he had an additional hour of sensitivity training.
What this is really about is lawsuit prevention. Just as a doctor fearful of being sued will order an inefficient, wasteful, and possibly counterproductive medical test, an employer fearful of being sued will insist upon inefficient, wasteful, and possibly counterproductive sensitivity training.
Tagged as:
crime and punishment,
defensive medicine,
harassment law,
schools
- Are plaintiffs’ attorneys judge-shopping by filing and dismissing and refiling identical class-action complaints in the highly-publicized restaurant menu case against Applebee’s? [Cal Biz Lit]
- You won’t be surprised that most of the nine worst business stories picked by BMI involve spoon-feeding by plaintiffs’ attorneys to a credulous press. [Business & Media Institute]
- “There’s no justification whatsoever for the agency to take any kind of action,” said Julie Vallese, a spokeswoman for the Consumer Product Safety Commission. “The claims being made about the dangers of shower curtains are phantasmagorical. It’s ridiculous.” Yeah, but the lawsuits are bound to happen anyway. [NY Daily News]
- Jack Thompson stays in the news when U.S. Marshals pay him a visit after a letter to a judge. [GamePolitics (h/t J.L.)]
- “A City lawyer who is demanding £19 million in compensation for work-place bullying faked a nervous breakdown to secure a larger payout, an employment tribunal was told.” [London Times via ATL]
- Did defensive medicine almost kill a patient when doctor worries more about potential lawsuit than whether nurse could save patient’s life? Heck if I know, but the underlying medicine is debated in the comments. [EM Physician blog]
- Hair-stylist fined £4,000 for “hurt feelings” after refusing to hire a Muslim stylist who wouldn’t show her hair at work. [Daily Mail (h/t Slim); earlier on Overlawyered]
- Disturbing turn in the Adam Reposa disciplinary hearing over his obscene gesture in court: state bar introduces satirical magazine as evidence because they “thought it was indicative of Reposa’s lack of respect for the law and the court system.” [Texas Lawyer/law.com] Mind you, this is the same Texas legal discipline system that refused to take action against Fred Baron and gave a slap on the wrist to the lawyers who tried to fake evidence in a product liability suit against Chrysler. As long as your priorities are straight.
Tagged as:
class actions,
defensive medicine,
forum shopping,
free speech,
Jack Thompson,
legal discipline,
media bias,
religious discrimination,
Texas,
United Kingdom,
workplace
- As I type this post, I’m listening to Andrew Frey argue Conrad Black’s appeal before Judge Posner and the Seventh Circuit. Posner seems to be confused over whether incorrect jury instructions can be prejudicial in a general verdict. [Bashman roundup; earlier]
- “For years families bogged down in Harris County [Texas] probate courts have accused judges of bleeding estates of tens of thousands of dollars to pay high-priced lawyers for unnecessary work.” [Houston Chronicle; Alpert v. Riley (Tex. App. Jun. 5, 2008) (via)]
- Company sets policy. Employee violates policy. Is corporation criminally responsible for employee’s act? [POL; FCPA blog; Podgor]
- Merrill Lynch banker asks for investigation of Enron Task Force withholding of exculpatory evidence [Bloomberg]
- When calculating the costs of medical malpractice suits, let’s not forget the noneconomic costs. “In the [John] Ritter case, the jury agreed with the defendant physicians and exonerated them of any liability. They were lucky. How lucky? They were able to spend four years with attorneys worrying about their future, including the potential that they would be ordered to pay tens of millions of dollars and be left penniless. So, they didn’t really win. They just lost less.” [EM News via Kevin MD via Dr. RW]
- Nor should we forget the defensive medicine costs. [Kevin MD]
- Legal reform = job creation. [American Courthouse]
- According to Justinian Lane, if you’re reading this post, you’re a “spineless sycophant.” [Bizarro-Overlawyered]
Tagged as:
crime and punishment,
defensive medicine,
Enron,
feeing frenzy,
John Ritter,
Justinian Lane,
medical malpractice,
nonmonetary costs of litigation,
Texas,
tort reform
- Telemarketers working for lawyers and chiropractors “line up every day” at police and public records offices to buy car-crash records [Dallas Morning News]
- Nice work if you can get it: Bernardine Dohrn’s terrorist-to-lawprof career track [Kass, Chapman @ Chicago Tribune, Ed Morrissey/HotAir, PoL, Horowitz/DtN, Daily Northwestern/FrontPage, Malkin, Power Line]
- Mystery of embattled Florida debt-relief law firm Hess Kennedy (Mar. 6) deepens as whereabouts of lawyer Edward Kennedy are questioned [ABA Journal]
- Criticism mounts of Calif. AG Jerry Brown’s lawsuits using global warming theories to force higher-density development [Stewart/LA Weekly, Walters/SacBee, via Kaus, scroll]
- Kevin Pho (KevinMD.com) on defensive medicine [USA Today]
- Colorado firm says lawsuit’s “settlement mill” allegations are concocted “by a competitor who doesn’t like (Azar’s) advertising.” [Colorado Springs Gazette]
- Hey, you can rig up a disposable camera to give you a little shock; it might also give you a D felony record under school zero tolerance [WTNH via Greenfield]
- One good thing about those anonymous snitchlines for domestic abuse, you don’t have to worry about bogus calls or anything like that [Colorado Springs Gazette on Texas polygamist raid backstory]
- Lawyers get $2 million in fees in Netflix class action [WSJ law blog; earlier]
- Supreme Court refuses cert on that very curious $112 million (originally $1 billion) land-contamination verdict from Louisiana [Exxon v. Grefer, Dow Jones/Fortune; CalPunitives link roundup; earlier; more background at Laura Hart/Louisiana Law Blog]
- Cow-pie bingo event falls victim to liability fears [three years ago on Overlawyered]
Tagged as:
attorneys general,
attorneys' fees,
Bernardine Dohrn,
chasing clients,
class action settlements,
Colorado,
Dallas,
defensive medicine,
Exxon,
global warming,
Hess Kennedy,
jackpot justice,
Jerry Brown,
Louisiana,
Netflix,
punitive damages,
regulation through litigation,
roundups,
zero tolerance
- Schadenfreude overload: Eliot Spitzer fighting with Bill Lerach’s old law firm. You see, Spitzer returned Lerach firm’s money after the indictment (unlike many other Democrats); when Lerach left the firm, Spitzer hit them up for cash again; now, they’re the ones seeking money. [WSJ Law Blog; NY Sun]
- Breakthrough on Keisler nomination. [Levey]
- Sued for accurately saying government employee was a Mexican. [Volokh]
- Global warming lawsuit finds conspiracy in free speech. [Pero]
- Yet another free speech lawsuit: 50-Cent sued for “promoting gangsta lifestyle.” [Torts Prof]
- 3-2 decision in NY Appellate Division: Not a design defect for tobacco companies to sell cigarettes that aren’t light cigarettes. [Rose v. Brown & Williamson Tobacco Co.; NYLJ/law.com via Prince]
- Meanwhile, tobacco companies are also being sued over light cigarettes. Second Circuit tosses Judge Weinstein’s novel class certification (Point of Law); Supreme Court grants cert in Altria Group v. Good.
- Defensive medicine one of many reasons that health-care costs so much in US [New York Times]
- Eyewitness testimony: you can’t always believe your eyes. [Chapman]
- First-hand report on Obama’s views on guns. [Lott]
- Ethical problem for law firm to be representing judges in litigation seeking pay raise? [Turkewitz]
Tagged as:
Barack Obama,
Bill Lerach,
Coughlin Stoia,
defensive medicine,
Eliot Spitzer,
eyewitness testimony,
free speech,
global warming,
light cigarettes,
Peter Keisler,
roundups,
tobacco
There is no shortage of examples of medical malpractice litigation where plaintiffs blame doctors for failing to perform a CT scan. E.g., Oct. 2006 and Feb. 2004. This plainly raises costs far more than the direct costs of medical malpractice insurance that you see when the trial bar claims that malpractice reflects only 1-2% of health-care expenses. Tom Baker, among others, argues that defensive medicine has to be viewed as good with bad, because of improved health-care outcomes from the additional care. But not all defensive medicine is positive; it can be irrelevant, or, worse, adversely affects health results.
Malpractice litigation does change doctors’ incentives, but only with respect to short-term results. Because doctors won’t be sued for long-term consequences of defensive medicine, there is a substantial risk of overexposure to radiation in the course of defensive CT scans—a problem identified in a study in the latest issue of Annals of Emergency Medicine (Winslow, et al., Quantitative Assessment of Diagnostic Radiation Doses in Adult Blunt Trauma Patients; Reuters summary), finding that standard trauma treatment—1005 chest X-ray equivalents—results in an additional 322 cases of cancer per 100,000 treated because of use of CT scans. Earlier: Feb. 2004.
(Update: Walter writes in to note that “the problem of needless or avoidable CT and MRI scans has been getting a fair bit of discussion at the medical blogs lately, e.g. White Coat Rants, GruntDoc, and KevinMD.”)
Tagged as:
CT scans,
defensive medicine,
medical,
safety
- Ethical questions for Vioxx lawyers [WSJ law blog] And who’s going to make what? [same; more from Ted at PoL]
- American lawyers shouldn’t get all self-congratulatory about the courage shown by their Pakistani counterparts [Giacalone; more]
- Just another of those harmless questionnaires from school, this time about kindergartners’ at-home computer use. Or maybe there’s more to it [Nicole Black]
- Probe of personal injury “runners” bribing Gotham hospital staff to chase business nets another conviction, this one of a lawyer who stole $148,000 from clients [NYLJ; earlier]
- Facebook sometimes sends text messages to obsolete cellphone numbers relinquished by its users, so let’s sue it [IndyStar]
- Series on defensive medicine at docblog White Coat Rants [first, second, third]
- Arm broken by bully, student wins $4 million verdict against Tampa private school; bully himself not sued [St. Petersburg Times]
- Washington, D.C. reportedly doing away with right to contest a
traffic parking ticket in person [The Newspaper, on "the politics of driving"]
- “Walking headline factory” Scruggs to be arraigned November 20 [Rossmiller]
- More on whether government’s refusal to alter paper currency discriminates against the blind [Waldeck, ConcurOp via Bader; earlier]
- Eric Turkewitz hosts a truly marathon Blawg Review #134 [NY Pers Inj Law Blog]
Tagged as:
ATRA,
bullying,
chasing clients,
defensive medicine,
Dickie Scruggs,
Facebook,
hospitals,
paper currency and the blind,
roundups,
third party liability for crime,
Vioxx
“Flea”, who practices as a pediatrician in the Northeast, gets a letter from his professional liability insurer instructing him “to maintain a high index of suspicion for the worst possibility” when patients present themselves, “even when the clinical presentation does not automatically lead one to [the] conclusion [that their lives or long-term health are in jeopardy]“. His response (Feb. 13):
I’m sorry, ProMutual, I cannot practice medicine this way. Let me give the most trivial of examples.
The worst that a child with a fever could have is sepsis or leukemia. I simply cannot maintain a high index of suspicion and do appropriate testing to rule out sepsis and leukemia (i.e., draw a complete blood count and blood culture) on every one of my patients with fever, without regard to the patient’s clinical appearance.
Tagged as:
defensive medicine,
medical
