Personally liable in Philadelphia: “A Pennsylvania lawyer has been ordered to pay nearly $1 million in attorney fees for allowing an expert witness to refer to a lung cancer victim’s history of smoking in a May 2012 medical malpractice trial. Defense lawyer Nancy Raynor of Malvern, Pennsylvnia, told the Legal Intelligencer that insurance would not pay the sanction and her personal assets are at risk.” [ABA Journal]
- ObamaCare challenge: D.C. Circuit vacates Halbig decision for en banc rehearing [Roger Pilon, earlier]
- ACLU and SEIU California affiliates oppose trial lawyers’ higher-damages-plus-drug-testing Proposition 46 [No On 46, earlier] As does Sacramento Bee in an editorial;
- Rethinking the use of patient restraints in hospitals [Ravi Parikh, Atlantic; legal fears not mentioned, however]
- Certificate of need regulation: “I didn’t know the state of Illinois had a standard for the maximum permissible size of a hospital room.” [John Cochrane]
- In China, according to a study by Benjamin Liebman of Columbia Law School, hired malpractice mobs “consistently extract more money from hospitals than legal proceedings do” [Christopher Beam, The New Yorker]
- Overview of (private-lawyer-driven) municipal suits on painkiller marketing [John Schwartz, New York Times, earlier] More: Chicago’s contingency deal with Cohen Milstein on opioid lawsuit [LNL] More: Rob Green, Abnormal Use.
- “So In The End, The VA Was Rewarded, Not Punished” [Coyote]
- Congress responds to Veterans Administration health care scandal by throwing huge new sums at care [Nicole Kaeding, Chris Edwards, Cato] “Every Senior V.A. Executive Was Rated ‘Fully Successful’ or Better Over 4 Years.” [NYT via Instapundit] “VA Hospitals aren’t included on the federal government’s Hospital Compare web site” [White Coat]
- Canadian judge quashes as vexatious suit over non-admission to medical school [Winnipeg Free Press]
- Brain-damaged child cases: “14.5 Million Reasons Physicians Practice Defensive Medicine” [White Coat, Cleveland] “North Carolina Jury Deadlocks in John Edwards’ Malpractice Trial Against Doctor” [Insurance Journal, emergency medicine]
- “Medical Licensing in the States: Some Room for Agreement — and Reform” [Charles Hughes, Cato]
- “NY Launches Statewide Med Mal Settlement Program” [NYDN via TortsProf]
- “Unlucky Strike: Private Health and the Science, Law and Politics of Smoking” [John Steddon and David Boaz, Cato program] Here’s the long-awaited segue to complete prohibition: British Medical Association recommends banning tobacco permanently for persons born after 2000 [WaPo]
- Sneaky: California ballot language undoing MICRA liability limits “buried in an initiative titled The Troy and Alana Pack Patient Safety Act of 2014.” [Yul Ejnes, KevinMD]
MICRA, approved by California voters in 1974, limits noneconomic damage payouts in medical malpractice cases and has been the main reason medical liability insurance rates in the state are only in the middle of the pack nationally despite the state’s long-earned reputation as one of the most litigious in general. Focus-group research led trial lawyer advocates to tack on a provision prescribing drug testing for doctors to improve the measure’s chances [James Hay, San Diego Union-Tribune; Legal NewsLine and more; ABA Journal] Some predict that the impending lawyers-vs.-doctors battle, with various allies brought in on both sides, will be the most expensively fought ballot measure in history. Earlier coverage of MICRA here.
- Academics have underestimated sensitivity of medical system to liability pressures [Michael Frakes, SSRN via TortsProf]
- “Nobody has gone out and bought a new home” — Mark Lanier talks down his verdict knocking $9 billion out of Takeda and Lilly after two hours of deliberation by a Lafayette, La. jury [Reuters] Japanese drugmaker says it had won three previous trials [ABA Journal]
- Nursing home in living-up-to-its-name town of West Babylon sued over hiring male strippers to entertain residents [NYP, more (wife of complainant attended display), ABA Journal]
- “Reining in FDA regulation of mobile health apps” [Nita Farahany, Volokh/WaPo]
- Another setback for plaintiffs as Arkansas tosses $1.2 billion Risperdal marketing case against Johnson & Johnson [AP/Scottsbluff Star-Herald, Eric Alexander/Drug and Device Law, earlier here and here]
- “Spacecraft collision injuring occupant”: docs scratch their heads at new revamp to billing codes [Steven Syre, Boston Globe via Future of Capitalism]
- FDA preclearance, drug litigation: “Most [patients] never know they were harmed, because we never know what we might have had.” [John Stossel]
- Latest don’t-blame-the-regulators shortage of a generic medical supply is nitroglycerin for acute cardiac care [New York Times, ACSH]
- “Does Medical Malpractice Law Improve Health Care Quality?” Maybe not so much [Michael Frakes and Anupam Jena, SSRN via Tyler Cowen]
- “Affordable Care Act opening doors to IT security attacks” [Ponemon via Fierce CIO] “States Barred from Requiring Obamacare Navigators Carry Error and Omission Insurance” [Craig Gottwals, Benefit Revolution] On suspension of statutory dates, Rule of Law has scanty constituency [Ramesh Ponnuru]
- “Video Debate: Richard Epstein and Ryan Abbott on FDA, Off-Label Drug Use” [Bill of Health]
- “Trial lawyers helped FDA with rule opening generic drug firms to lawsuits” [Paul Bedard, Washington Examiner]
- Everyone including the agency itself discontented with FDA’s handling of new sunscreen ingredients [WaPo via Alex Tabarrok]
- Does writing up a more careful patient chart help keep a doctor from getting sued? [White Coat]
The charts in this Washington Post article get steadily more interesting as they go along, and the most informative is the last: the top nine states or state-equivalents for per-capita medical malpractice outlays are, in order, New York, Pennsylvania, New Jersey, Massachusetts, Connecticut, the District of Columbia, Maryland, Rhode Island, and New Hampshire. Basically, that describes the Boston-Washington corridor with the exception of Delaware (Vermont makes for an even more notable break in the pattern because its outlays are among the lowest.) Most states outside the Northeast have reformed their malpractice law; most states in the Northeast have too powerful a trial lawyers’ lobby to let that happen.
Fortunately for residents of the rest of the country, the inconveniences of an unreformed high-litigiousness system — things like $100,000 premiums for doctors with good records who practice high-risk specialties — seem mostly to be borne by residents of the states in question. Overall, incidentally, as the chart previous to that shows, national payouts went through a decade-long decline but now have resumed climbing.
Until recently, Florida would have been a likely pick when enumerating states with the highest medical malpractice exposure, but the Sunshine State legislature finally got tired of being a target of the derision of the national medical profession and reformed its malpractice system. Or perhaps the better phrase would be, “thought it reformed”; the Florida Supreme Court, dominated by justices cozily allied with the plaintiff’s bar in re-election campaigns, just annihilated that reform. No one will be particularly surprised if Florida vaults up to top-ten status in future payout lists.
- Oscar-winning “Dallas Buyers Club” should please libertarians and FDA reformers [David Boaz/Cato, Jack Hunter/Rare, Kyle Smith/Forbes]
- Don’t assume patent trolls won’t threaten pharma/biotech [Nicholson Price, Bill of Health]
- “Why are patients shut out of the debate over prescription pain medicine?” [Maia Szalawitz]
- A retrospective on the Satanic abuse panic [Richard Noll, courtesy Maggie McNeill] And why you haven’t read it at Psychiatric Times [Gary Greenberg]
- High-profile medical and custody dispute in Massachusetts over teenager Justina Pelletier appears to pit hospital against hospital [Boston Globe (autoplays), CBS Boston, J.D. Tuccille/Reason]
- Actual fertility procedure under FDA consideration doesn’t live up to hype about supposed “three-parent babies” [Nita Farahany]
- Study points to benefits of easing licensing constraints on nurse practitioners [Jeffrey Miron, Cato]
- More: Florida Supreme Court, long elected with support from plaintiff’s bar, invalidates medical malpractice limits [Miami Herald, Alex Stein/Bill of Health]
- Trial lawyer push to weaken MICRA, the medical damages cap, could spark most expensive ballot measure struggle in California history [Legal NewsLine]
- Why the FDA should lay off 23andMe [Robert Green and Nita Farahany, Nature via Volokh, earlier]
- SEIU to West Coast hospitals: play ball with our organizers or we’ll arrange to cap your execs’ pay [Bloomberg]
- Video of panel discussion on new book A Conspiracy Against ObamaCare [Randy Barnett et al., more]
- Louisiana high court throws out $330 million award to state, federal governments over marketing of Risperdal [NOLA.com/Times-Picayune, Eric Alexander/Drug and Device Law]
- “If Obamacare Doesn’t Kill Small Medical Practices, Bureaucratic ICD-10 Coding Requirements Might” [Tuccille]
- FDA goes after antibacterial soap. Wisely? [White Coat]
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.
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)