- Hit by stray bullet, wakes from anesthesia fighting, hospital told to pay $17 million [Georgia; Insurance Journal]
- Study: physician’s previous paid claims history has no impact on odds of catastrophic med-mal payout [Bixenstine et al, JHQ via PoL] Overall, med-mal payouts have fallen steadily in past decade; $3.6 billion figure last year follows strongly regionalized pattern with top per capita figures all in Northeast [Diederich analysis of annual payouts via TortsProf] Florida law now requires that testifying medical witness be in same specialty as defendant [Business Week]
- In lawsuits alleging “wrongful birth,” what’s the measure of damages? [Gerard Magliocca, Concurring Opinions]
- ObamaCare exchanges in D.C., California and Connecticut declare smoking “pre-existing condition,” say insurers can’t base higher rates on it [Kevin Williamson, NR]
- “The Crime of Whitening Teeth with Over-the-Counter Products” [Caleb Brown, Bluegrass Institute]
- How not to die: Jonathan Rauch on end-of-life overtreatment [The Atlantic]
- “I’m going to start a rumor that Sudafed is an abortifacient. Then the feds will finally have to allow reasonable access to it.” [me on Twitter]
Tagged as:
Florida,
Georgia,
hospitals,
medical malpractice,
medical malpractice insurance,
ObamaCare,
wrongful birth and wrongful life
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.
Tagged as:
medical malpractice,
Medicare
- “On Average, Physicians Spend Nearly 11 Percent Of Their 40-Year Careers With An Open, Unresolved Malpractice Claim” [Health Affairs via Pauline Chen, NY Times]
- SCOTUS lets stand Feds’ “accept Medicare or lose your Social Security” edict [Ilya Shapiro, Cato]
- Robot surgery: from the Google ads, you might think lawyers are circling [Climateer via Tyler Cowen]
- New York mandates more aggressive anti-sepsis measures in hospitals, and White Coat thinks it won’t end well [EP Monthly]
- Shortages of generic FDA-regulated sterile injectables begin to take deadly toll [AP/Worcester Telegram, earlier]
- Continuing the discussion of electronic medical records from a few days back: as medico-legal documents, EMRs are under pressure to be something other than candid and spontaneous [Kaus] While other patients wait for critical care, ER docs and nurses enter mandatory data fields for whether the infant is a smoker or the flu victim is a fall risk [White Coat]
- Obamacare part-time-work fiasco “only starting to become news when it hits university professors” [Coyote, David Henderson, earlier]
Tagged as:
emergency medicine,
hospitals,
medical malpractice,
Medicare,
ObamaCare,
pharmaceuticals
- “Blaming doctors for prescription drug abuse” [White Coat] Judge rules victim of pharmacy robbery can proceed with suit against doctor who prescribed painkillers [NYLJ]
- Louisiana Gov. Jindal’s proposal for letting contraceptives be sold over counter has good libertarian pedigree [David Henderson, Jonathan Adler] More: Ramesh Ponnuru.
- FDA vs. antiemetics: “How Long Before Zofran Gets Black Boxed?” [White Coat]
- ObamaCare vulnerable to an Origination Clause challenge? [Sandefur vs. Taranto, via Randy Barnett]
- “When a child drinks cologne, by all means, sue the doctor… ” [NJLRA]
- U.S. v. Caronia: does First Amendment protect promotion of off-label drug use? [Richard Epstein/Hoover, PoL, WSJ Law Blog, D&DL, Shackford]
- Ideas from John Goodman on med-mal reform [Psychology Today]
Tagged as:
FDA,
medical malpractice,
ObamaCare,
pharmaceuticals
- Community college restructures staff to avoid ObamaCare employee mandate [Daniel Luzer, Washington Monthly] New pressure toward part-time employment is a big story [Coyote] But do regulations allow shift to part-time workers as a way of evading 50-employee rule, as seemingly contemplated in above post? [Gunn Chamberlain, P.A.] Why some workers might prefer being dropped from their employer’s health plan if higher pay results [Thom Lambert]
- Eleventh Circuit: hospital can be sued for not providing sign-language interpreter for emergency department visitors [Disabilities Law/Bagenstos]
- Proposition: “Off-label use can be, in many circumstances, the standard of care.” [Drug and Device Law] On Ben Goldacre’s new book “Bad Pharma” [Tyler Cowen]
- Overnight solution to med-mal crisis? Perhaps standard for lawyers’ malpractice should automatically fluctuate to reflect that for doctors [Ted Frank, Point of Law]
- Criminalizing the professions [White Coat]
- Drug shortages persist [ACSH, earlier here, here, etc.] What the FDA could do to speed antibiotic approval [Yevgeniy Feyman, Medical Progress Today, earlier]
- Clearer line-drawing between pharmacy and mass drug-compounding needed after tainted-steroid debacle [Scott Gottlieb/Sheldon Bradshaw, WSJ, earlier] With compounding pharmacy doubtfully able to pay claims, “You’re going to get people suing everyone.” [Boston Globe, David Oliver]
Tagged as:
FDA,
hospitals,
legal malpractice,
medical malpractice,
ObamaCare,
pharmaceuticals
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]
Tagged as:
Florida,
medical malpractice
- Submit to individual mandate, or pay a tax to get out: hey, there’s a precedent for that [Akhil Amar via Magliocca]
- Stare decisis be damned? Missouri high court overturns own precedent to strike down damage caps [Post-Dispatch, PoL, MissouriNet, American Medical News (AMA)]
- Authorities say Florida hospital employee may have wrongfully accessed more than 700,000 patient records; crash victims got lawyer-chiropractor solicitations from someone familiar with nonpublic details of their cases [Jeff Weiner, Orlando Sentinel]
- Time to rethink Certificate of Need supply restrictions [Barton Hinkle, Richmond Times-Dispatch]
- By its legislative author: “What New Hampshire’s ‘early offer’ law really does” [J. Brandon Giuda, Union Leader, earlier]
- Dueling studies on impact of Texas medical liability reform [David Hyman, Charles Silver et al, "Does Tort Reform Affect Physician Supply?", Stephen Magee, "Contrary Evidence" (PDF) and "Rapid Physician Supply Response"; ACEP; Austin American-Statesman on Hyman/Silver, D Magazine and Longview News-Journal on Magee, Gov. Rick Perry] “Liability insurers are noticing an uptick in large verdicts” [Alicia Gallegos, American Medical News (AMA)]
- “Medicare Costs Too Much, So Let’s Make Private Payers Make Up the Difference” [Peter Suderman, Reason; John Walters, Maryland Public Policy Institute]
Tagged as:
Florida,
hospitals,
medical malpractice,
Medicare,
Missouri,
Texas
New research by Michael Frakes of Cornell: “I estimate a small and statistically insignificant relationship between malpractice forces and two metrics of healthcare quality emphasized by the Agency for Healthcare Research and Quality: avoidable hospitalization rates (reflective of outpatient quality) and inpatient mortality rates for selected medical conditions.” [SSRN]
Tagged as:
medical malpractice
On July 12 New York Times columnist Jim Dwyer wrote an extensive story about the death of a 12-year-old boy who had been brought to an emergency room with fever and rapid pulse, sent home, and died of septic shock. Lab test results and other indicators of distress allegedly went unheeded, and the boy’s family is represented by Thomas Moore, perhaps the city’s premier medical malpractice lawyer. Some legal blogs had a field day citing Dwyer’s article as an example of flagrant medical malpractice, as they depicted it; other reactions, some gathered in a Dwyer follow-up column, were more mixed.
White Coat, the blog at Emergency Physicians Monthly, has been resistant to the Dwyer-Moore narrative of the case. Its blog posts can be found here,
here, here, and here.
Tagged as:
emergency medicine,
hospitals,
medical malpractice,
New York Times,
NYC
Overriding a veto from Gov. John Lynch, the New Hampshire legislature on June 27 enacted SB 406, establishing the nation’s first “early offer” system for medical malpractice claims. The law establishes incentives for defendants to make offers early in the litigation process that cover plaintiff’s economic losses such as medical bills and lost wages. The early-offer process is at claimants’ option only; claimants are free not to request such an offer. [Kevin Pho; supportive website; trial lawyers' opposition website]
Importantly, the new procedure also contains pioneering elements of loser-pays in both directions. If a claimant chooses to accept a defendant’s early offer of economic-loss expenses, the defendant will pay an additional sum to reflect a scheduled assessment of pain and suffering, plus the reasonable costs of attorney representation. However, if the claimant invokes the early-offer process but then turns down the offer as inadequate, there is a real risk of a fee shift in the opposite direction:
XII. A claimant who rejects an early offer and who does not prevail in an action for medical injury against the medical care provider by being awarded at least 125 percent of the early offer amount, shall be responsible for paying the medical care provider’s reasonable attorney’s fees and costs incurred in the proceedings under this chapter. The claimant shall certify to the court that bond or other suitable security for payment of the medical care provider’s reasonable attorney’s fees and costs has been posted before the court shall consider the case.
At TortsProf, Christopher Robinette explains in some detail (contrary to an error-filled screed in a Litigation Lobby outlet) why this adds up to a generally good deal for claimants (who, of course, are free not to trigger the process if they disagree) as well as making the system fairer. “Early-offer” proposals have been championed over the years by Jeffrey O’Connell, the distinguished University of Virginia torts scholar, and by Philip K. Howard of Common Good, among others. More on loser-pays here.
[Research assistance: Cato Institute intern Byron Crowe; cross-posted at Cato at Liberty]
More from John Steele Gordon at Commentary: “This looks like a big step in the right direction.”
Tagged as:
loser pays,
medical malpractice,
New Hampshire
Covered it in a roundup a couple of weeks back, but as a reader favorite it may as well have its own post: “A jury has awarded a Georgia woman $3 million over her husband’s heart attack, finding that his doctor should have warned the Atlanta cop against strenuous activity like the three-way sex he was having at the time he died, WXIA-TV reports.” The deceased was not married to either of the other participants in the fatal motel-room encounter. [USA Today/Freep]
Tagged as:
failure to warn,
Georgia,
medical malpractice
- Most embarrassing lawsuit Hall of Fame (plaintiff’s decedent division) [Atlanta Journal-Constitution, cardiology med-mal; more]
- Latest twist in ongoing speech-chilling saga worthy of attention from PEN: attorney Aaron Walker is charged in Rockville, Md. after a court interprets his blogging about an adversary as a violation of a peace order [Hans Bader and more, Eugene Volokh, Scott Greenfield with comments from Maryland lawyer Bruce Godfrey, Patterico, Popehat, and many others; earlier here, here, and here.] And Ken at Popehat, in a perhaps not unrelated development, puts out a call for a pro bono criminal lawyer to protect a blogger in M.D. Fla. and M.D. Tenn.
- California lament: Facebook must pay hefty bribe to be allowed to hire more employees [Coyote]
- “The burdens of e-discovery” [Ted Frank/PoL]
- Strangest judicial campaign video of the year? [Jim Foley, candidate for Washington Court of Appeals, Olympia; Above the Law, followup]
- Massive wave of disability claims among returning vets [AP]
- We keep loading up company compliance/ethics folk with new regulatory responsibilities. How’s that working out? [Compliance Week]
Tagged as:
bloggers and the law,
California,
discovery,
Facebook,
free speech,
medical malpractice,
military,
Washington state
- Government’s hospital care guidelines may be fueling dangerous overuse of antibiotics [White Coat] FDA says fewer drugs are in shortage [Reuters, earlier here, etc.]
- “Post-tort-reform Texas doctor supply” [Ted Frank/PoL and commenters] “Change in Procedures Lets Medical Malpractice [Insurance] Industry Thrive” [PC 360]
- Forcing companies to make politicized disclosures to customers implicates First Amendment [Hans Bader on HHS "must credit ObamaCare" reg]
- Iqbal and Twombly SCOTUS decisions on pleading have helped protect pharmaceutical defendants from flimsily based suits [James Beck, who has changed law firms to Reed Smith]
- How accurate is hospital data coding? Ask thousands of pregnant British men [Nigel Hawkes via Flowing Data]
- Class-action-fed boom in Medicaid dentistry + “let’s put docs in schools” idea = scope for horrific abuse, no matter how it’s financed [Bloomberg via Jesse Walker]
- Suits blaming obstetricians for cerebral palsy rack up $78 million win in Philadelphia, $74 million in California [Legal Intelligencer, Cal Coast News]
- Ninth Circuit: on reflection, let’s not seize control of VA mental health programs [AP, earlier here, etc.]
Tagged as:
hospitals,
medical malpractice,
medical malpractice insurance,
Ninth Circuit,
ObamaCare,
pharmaceuticals,
pleading,
psychiatry,
Texas
According to what seems to be the sense of many in the Florida legal profession, doctors and their patients should not have the right to enter enforceable arbitration agreements before the fact to resolve disputes, but lawyers and their clients should have the right to enter enforceable agreements before the fact to limit liability for excessive charging of legal fees. Thanks for clarifying! [White Coat, scroll; earlier]
Tagged as:
arbitration,
attorneys' fees,
Florida,
medical malpractice
