In the season’s highest-profile case of alleged medical negligence, 13-year-old Jahi McMath, described as suffering from sleep apnea, went in to Oakland Children’s Hospital for surgery. After the surgery she began bleeding profusely, went into cardiac arrest and suffered brain death.
A hundred press accounts have described the procedure McMath underwent as a “routine tonsillectomy.” Not so, according to Brandon Peters, M.D. at About.com:
There is a paucity of known facts in this situation. The family and their lawyer have released few specific details. Oakland Children’s Hospital, bound by the privacy restrictions of the Health Insurance Portability and Accountability Act (HIPAA), has offered even less. Jahi underwent three surgical procedures for the treatment of her sleep apnea. This included a tonsillectomy, uvulopalatopharyngoplasty (UPPP), and removal of nasal turbinates. Though initially described as a “routine tonsillectomy,” this degree of surgery in children is not routine. It is extensive. When performed on a child, the risk is high.
More here and on uvulopalatopharyngoplasty (or “UP3″) and its indications and risks here. It should be apparent that with the sparsity of facts agreed on it is still extremely early to begin speculating what went wrong in McMath’s case and what kind of medical negligence if any might have been involved. (& Alkon)
“A federal appeals court has shot down a Massachusetts consumer protection case against two doctors, a medical journal and its publisher over an allegedly flawed article cited by defendants in birth-injury medical malpractice cases. That means plaintiffs’ attorneys will have to challenge the article’s validity in each case in which the defense wishes to cite it.” The First Circuit did not reach the issue of constitutional free speech, but upheld a lower court’s ruling that the plaintiff had not shown adequately that expert testimony reliance on the allegedly faulty article had resulted in the loss of the litigation in question. [Sheri Qualters, NLJ] Earlier on A.G. v. Elsevier here.
A plaintiff’s lawyer is suing a medical journal and two doctors for publishing a case report that makes it harder to win some birth-injury lawsuits.
Here are the details, as reported by Sheri Qualters of the National Law Journal. Some newborns are found to be suffering from brachial plexus injury, a type of harm to a child’s shoulder, arm, or hand that in a minority of cases results in permanent disability (so-called Erb’s palsy or a number of related conditions). A large volume of birth-injury litigation goes on as a result, in part because courts have tended to accept the idea that the only medically recognized cause of those conditions in newborns is excessive or traumatic use of physical force by clinicians (“traction”). In 2008, however, the American Journal of Obstetrics & Gynecology published a case report of a delivery in which an infant was found to be suffering such injury although the physician by her own account had not applied any excessive traction during the birth. If instead natural forces of labor could cause the dislocation resulting in the condition, many lawsuits might rest on shakier ground. Since then, defense lawyers have cited the report — by Henry Lerner of Harvard Medical School and Eva Salamon of the Bond Clinic in Winter Park, Fla. — in litigation.
A Boston lawyer who claims to have debunked the Lerner-Salamon case study has proceeded to sue its two authors, Elsevier — which publishes AJOG and many other medical and scientific journals — and Dr. Salamon’s clinic for publishing and refusing to retract it. The damages are said to be $3 million each to two families of infant plaintiffs whose lawsuits did not succeed allegedly because of the case report. The lawsuit invokes a Massachusetts consumer protection law which allows treble damages, and also asks for a court order forbidding the report to be entered as evidence in future litigation. A trial court dismissed the case, in part on the grounds that the plaintiffs had not shown that the article was a material cause of the families’ failure to prevail in the suits. Now the case is on appeal to the First Circuit, where defense lawyers are arguing, inter alia, that if there are weaknesses in the article the remedy for plaintiffs is to introduce evidence to that effect to counter it in trials. “As for its own role, Elsevier argued that applying a state consumer protection law to its published material would violate its free-speech right under the First Amendment.”
First Amendment? Let’s not go to extremes. If we start applying the First Amendment, how are lawyers supposed to silence publications that inconvenience them?
Our “watch what you say about lawyers” tag — which perhaps we should rename as “watch what you say about lawyers or their cases” — is here (cross-posted at Cato at Liberty; & welcome readers from Jesse Walker, Reason, Prof. Bainbridge).
That’s former Obama Administration budget director Peter Orszag’s view [Bloomberg]:
Most of the costs in the U.S. health-care system are incurred in a small number of expensive cases. The top 25 percent of Medicare beneficiaries ranked by cost, for example, account for 85 percent of total spending. And the expenses in those cases are driven significantly by the recommendations that doctors make to pursue one treatment path and not another.
In making these choices, doctors are influenced by various things, including medical-school training, traditions among their peers, financial incentives (which are distorted by fee- for-service payments) and, yes, the medical-malpractice system. Improving the criteria for what constitutes appropriate care could significantly change doctors’ behavior and also save money, recent research by Michael Frakes of Cornell Law School suggests.
The Jacksonville, Fla. paper runs a dramatic photo from a lawyer’s office arising from a medical malpractice lawsuit. White Coat finds evidence that the circumstances of the photo-taking were less than ideally spontaneous [EP Monthly]