Public Citizen wrote a report about New York medical malpractice that said:

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.

This is technically true, but wildly misleading; we previously refuted this precise statistic as a natural statistical consequence of any randomly distributed set of payouts–and given that doctors in high-risk professions such as neurosurgery or ob/gyn are far more likely to be sued than dermatologists or gerontologists, the random concentration effect is going to be even more pronounced, so the Public Citizen statistic is meaningless without a showing of speciality-adjusted correlation between time periods–something no study has ever found.

But note how blogger Eric Turkewitz writes an op-ed in a small-town New York newspaper that isn’t even satisfied with simply misleading the public, and says something that is out-and-out false:

4 percent of the state’s doctors contribut[e] to half of the malpractice suits [emphasis added]

Not remotely true. “Nearly half of payments” has been turned into “half of malpractice suits.” Justinian Lane, who knows or should know that the latter statistic isn’t true, because his blog posted about the original statistic, then repeats the lie either thoughtlessly or deliberately:

Maybe doctors should discipline the four percent of doctors that make up half of all malpractice claims.

Will either of them retract the false claim with the same fanfare that they made it? Stay tuned. (They certainly won’t explain that there’s nothing damning about the accurate statistic–though I have been refuting this for over three years, Public Citizen and trial lawyers and their fans continue to regurgitate the data as if it means something.)

In a key victory for plaintiffs and their lawyers, the Massachusetts Supreme Court has for the first time adopted the “loss of a chance” doctrine, which allows plaintiffs to recover money without having to show that it was more likely than not that the charged medical negligence made the difference in their recovery or survival. (Denise Lavoie, “Doctor held liable for a ‘loss of chance’”, AP/Boston Globe, Jul. 24). When Medical Economics surveyed the field two years ago, they found that about half the states had accepted the more liberal doctrine, which runs counter to the Anglo-American “more likely than not” prerequisite for establishing causation. More on the inexact and contradictory standards used in such cases here.

Readers of this site will not be the least surprised to learn that American courts have shown little or no interest in extending the “loss of a chance” doctrine for the benefit of plaintiffs in legal malpractice cases filed against attorneys whose inattention might have (but probably didn’t) deprive their clients of a favorable outcome in court proceedings.

• “The accusatory legal document begins with several remarks defaming the skills, education, ability, integrity, and honesty of the physician being charged.” [Donald May, State Policy Blog] But hey, don’t take it personally, lawyers say [Mark Crane, Medical Economics] Good luck with that [Chiaramonte/Examiner, KevinMD, more]
• Law throwing open Florida doctors’ peer review to lawyers was bad enough, but now state high court has applied it retroactively to records created before law was enacted [KevinMD guest post; background at PoL here, here, and here]
• Even the New York Times hails as “sensible” laws encouraging medical apologies by making them inadmissible as evidence of wrongdoing [editorial]; but see counterexample to the usual reportage [Berlin/Am. Journal of Roentgenology via Buckeye Surgeon]
• A med-mal defense attorney says plaintiffs would win more often in proposed “health courts” than they do in the cases he handles [Medical Economics, more, and similarly]
• More evidence, this time from study of orthopedists, that docs rated as cold or callous attract far more than their proportionate share of suits [Orthopedics Today]
• EMTALA, the law forcing emergency rooms to take all comers, “has created the very conditions it sought to avoid” [Edwin Leap, M.D.O.D.] Watch for “free-standing” ERs that dodge mandate by refusing federal dollars [Scalpel or Sword?, Health Care BS] Semi-defense of law [Over My Med Body]
• Besieged state of dispersed emergency rooms and specialists is one reason for use of those risky helicopters that fly patients to the big city [Williams/Health Business Blog, M.D.O.D.]
• Docs should stand up to family members demanding futile or inappropriate end-of-life care [Musings of a Dinosaur] Relatedly, daughter on dying father: “if you give him any more morphine, I will sue you.” [Fat Doctor]

Before depositions are even taken, a plaintiff agrees to accept $7500 on a dubious case arising from an allegedly undiagnosed pregnancy, and the defense lawyer is delighted to have made the case go away for essentially nuisance value. But the real costs go far beyond the cash (The Blog That Ate Manhattan, Jul. 7, via Notes of an Anesthesioboist).

• Texas probate and estate lawyers seldom prosecuted when they steal funds, clients told they should just sue to get it back [Austin American-Statesman investigation]
• About a third of the way down the center strip, then just a bit to the right, you’ll find us on this much-linked map of the campaign season’s most influential websites [Presidential Watch '08]
• Given the enormous liability exposure, would a doctor rationally want a major celebrity as a client? [Scalpel or Sword via KevinMD]
• The loser-pays difference: Canadian franchisees pursue failed class-action claim against sandwich shop Quiznos, judge orders them to pay costs of more than C$200,000 [BizOp via ClassActionBlawg]
• Annals of extreme incivility: judge condemns “heartless attack” at deposition on opposing lawyer’s pin honoring son killed in Iraq [Fulton County Daily Report]
• You keep an open wi-fi connection at home and your neighbor uses it to download music improperly. Are you an infringer too? [Doctorow via Coleman]
• As you’ve probably heard if you read blogs (but maybe not otherwise), one Canadian “human rights” tribunal has dropped action against Mark Steyn and Maclean’s; another still pursuing case [SteynOnline]
• Prison-overcrowding lawsuit could lead to early release of 27,000 California inmates [TalkLeft]
• “He absolutely would’ve gotten this DOJ job but for the anti-liberal bias … and he can’t land any other jobs?” [commenter KenVee on lawsuit over politicized Department of Justice Honors/Intern programs, Kerr @ Volokh, background]

Likely occasion for an awkward conversational pause: a patient wants to thank the doctor who helped pull him through, but also needs to warn that his lawyers want to comb through the records looking for grounds on which to sue. (Jim Eichel, “If You Sue Me, I Can’t Be Your Physician”, San Diego Reader, Jun. 11)(via KevinMD).

• Educator acquitted on charges of roughness toward special ed student sues Teacher Smackdown website over anonymous comments criticizing her [NW Arkansas Morning News, Citizen Media Law Project, House of Eratosthenes]
• Lorain County, Ohio judge who struck down state’s death penalty has Che Guevara poster in his office, though Guevara wasn’t exactly an opponent of killing [USA Today]
• Privatization of U.S. Senate food service is a parable for wider issues [Tabarrok]
• Low-end strategies for acquiring criminal-law clients include trolling the attorney visiting area at the federal lockup, paying the hot dog guy in front of the courthouse [Greenfield]
• A Canadian Senator on why his country’s medical malpractice law works better than you-know-whose [Val Jones MD leads to audio]
• U.K.: convicted rapist sexually assaults and murders teenage girl after housing authority is told evicting him would breach his human rights [Telegraph]
• No word of legal action (yet, at least) in Salina, Kansas car crash that driver blames on “brain freeze” from Sonic restaurant frozen drink [AP/K.C. Star]
• In Michigan, some mysterious entity is trying to drop an electoral anvil on two of our favorite jurists [PoL]

• 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]

Mississippi medical examiner Dr. Steven Hayne, under fire relating to his forensic contributions to the state’s criminal justice system, has “also done plenty of damage to the state’s tort system, particularly in the area of medical malpractice. … ‘Lots of money can exchange hands over a cause of death determination,’ [Clarksdale cardiologist Dr. Roger] Weiner told me. ‘I wanted to make sure it exchanged hands for the right reasons. Everyone down here knows about Dr. Hayne. Tens of millions of health insurance dollars have gone to plaintiff’s lawyers down here because of him.’” Incendiary headline on the post: “In Mississippi, the Cause of Death Is Open to the Highest Bidder”. (Radley Balko, Reason “Hit and Run”, Jun. 5) (via Glenn Reynolds).

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.

Well, at least some doctors are hoping to discern such a trend on the strength of two data points: the case Ted has covered in which the Ohio Supreme Court struck down a $30 million verdict because of the shenanigans of attorney Geoffrey Fieger, and a Michigan case from March in which an appeals court overturned a $500,000 verdict against a Flint doctor and ordered a new trial. In the latter case the appeals court “noted the trial judge ‘valiantly and repeatedly attempted’ to restrain Konheim [Southfield, Mich., plaintiff attorney Joseph Konheim]. ‘There is a point, however, when an attorney’s deliberate misbehavior becomes so repetitive and egregious that it necessarily impacts the jury, notwithstanding the judge’s efforts. That point was reached here,’ the unanimous opinion states. It also says that Konheim belittled witnesses on the stand and made ‘irrelevant’ and ‘disparaging’ statements that diverted the jury’s attention from the case’s merits. Konheim is asking the court to reconsider.” (Amy Lynn Sorrel, “Lawyers’ misconduct triggers new liability trials”, AMedNews (AMA), May 5).

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.

Trial lawyers like to repeat statistics similar to this (Bizarro-Overlawyered just did so this week) as an argument for medical malpractice being a problem of the doctors, rather than the lawyers. The problem is, as I noted three years ago, that the statistic is fallacious.

Some small X% of doctors responsible for large Y% of payouts is always going to be true simply by random chance. It’s going to be true over any time period: the problem is that if you take that time period and divide by two, the X% in the first half of the time period are going to be almost entirely different than the X% in the second half of the time period. Even if you were to fire every single one of those doctors in the tail in the first time period, all you have is X% fewer doctors; the very next year, it’s going to be a different small A% of doctors responsible for large B% of payouts, and you’ve solved nothing. With very rare exceptions medical malpractice payouts have absolutely nothing to do with the quality of the doctor, and everything to do with the risk profile of their practice.

It’s worth noting Eugene Volokh’s excellent explication of the issue:

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The lowest medical malpractice insurance rates are found in Minnesota, Wisconsin, Iowa and the Dakotas. Why is that? Probably not because doctors there have managed to achieve anything resembling error-free practice; and probably not because the five states, taken as a whole, are distinguished by any unusually pro-defendant set of tort laws. MedInnovationBlog takes up the question here and here, and speaks with a mutual insurer executive in search of explanations, which may include (among others) a “culture of collegiality among doctors and society as a whole”, a hard line against doubtful claims, and a paucity of giant verdicts of the John Edwards variety. (cross-posted from Point of Law).

• John Ritter’s family has already received $14 million in settlements, seeking $67 million more in medical malpractice litigation for ER failure to diagnose rare heart condition. Dr. R.W. Donnell thinks they’re wrong. [LA Times; USA Today; Kevin MD; Turkewitz; Overlawyered Sep. 2004]
• Speaking of the celebrity bonus in litigation: as M.E. e-mailed me, “Cheek rides again”; Wesley Snipes acquitted of tax felonies, though convicted of misdemeanors, and still on the hook for $17 million in taxes plus penalties. [NY Times; earlier]
• California AG Jerry Brown continuing bogus carbon dioxide “public nuisance” lawsuit against automakers [Stirling & Sandefur @ Investor's Business Daily; earlier]
• Words-only criminal obscenity prosecution. [WSJ Law Blog (and farewell to Peter Lattman)]
• In the category of gambits we’re sympathetic to, but are unlikely to succeed: East Texas burger restaurant tries mandatory-arbitration-by-posted-window-notice [TortsProf]
• Mikal Watts puff piece [Corpus Christi Caller-Times]

• Professors debate fourth-amendment implications of Supreme Court’s use of videotape evidence. Orin seems to have the better of it by my eyes, but perhaps that’s just my confirmation bias. [Kerr @ Volokh; Kahan/Hoffman/Braman; Youtube; Concurring Opinions] (And update: rejoinder by Braman @ Concurring Opinions)
• Repeat after me: medical errors or complications are not always medical malpractice. [Dr. Wes; Medical Progress Today]
• NC court speaks out for judicial restraint before creating new cause of action. [Beck/Herrmann]
• California proposes allowing government to remotely set your thermostat [Walter Williams; Cafe Hayek]
• Old problems not getting any better: “a New York Times article in 1897 (!), which reported that The Committee for Remedial Legislation in Regard to Expert Testimony called for all physician witnesses to be paid by the county.” [PlasticSurgery101]
• Remember Lionel Tate, the 12-year-old who murdered a 6-year-old, and then provoked outrage when he was sentenced to life at the age of 14? His sentence was reversed, he was given probation, and promptly violated it by committing armed robbery, it seems. Now he wants to blame his lawyer for the resulting 30-year-sentence. [ABA Journal]

We’ve been on top of this outrage of a medical malpractice case since it was in trial—Aug. 2004, Oct. 2004, Nov. 2004, May 2006, Apr. 12—but Roger Parloff has such a comprehensive post about the Ohio Supreme Court’s 5-1 (corrected:) 6-1 decision to strike down an intermediate court’s reinstatement of a bogus $30 million verdict that we defer to him. Even the dissenter would have found Fieger’s shenanigans problematic, but would have merely reduced the award to $10 million. Still, on remand for a new trial, Justice Paul Pfeifer recommended that “it would be wise for the trial judge to deny any motion for admission pro hac vice filed on behalf of Mr. Fieger.”

NB that among the tactics condemned by the Ohio Supreme Court are the tactics that trial lawyer John Edwards used when he successfully tried a medical malpractice case—pretending to channel the baby in the womb to the jury.

Among the victorious attorneys: one of our favorite bloggers, Mark Herrmann.

Reader J.B. points us to Tampa physician David Lubin writing in the Tampa Tribune June 11 on the Lucia med-mal verdict we discussed in May. The column is must-read:

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