Posts tagged as:

medical

“It’s Doctors’ Duty to Promote Gun Safety With Patients” [Art Caplan, Medscape via Bill of Health] Next step: giving patients a hard time about kitchen or camping knives? [A. Barton Hinkle]

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Medical roundup

by Walter Olson on April 17, 2014

  • 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]

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Farm and food roundup

by Walter Olson on February 18, 2014

Medical roundup

by Walter Olson on February 10, 2014

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Medical roundup

by Walter Olson on October 25, 2013

  • Sen.-elect Cory Booker (and Mayor Bloomberg too) on liability reform and fixing health care [NJLRA] How plaintiff’s lawyers get around caps [Alex Stein, Bill of Health] Missouri protects health volunteer workers [John Ross]
  • Like an Ayn Rand novel: Massachusetts ballot initiative pushes confiscation of private hospital profits [Ira Stoll, NY Sun]
  • Advice: plan now to lower your 2014 income to get valuable ObamaCare subsidies [San Francisco Chronicle]
  • Medicare comes off poorly: “Quality Of Care Within Same Hospital Varies By Insurance Type” [Tyler Cowen]
  • Revisiting a panic over alleged mass drug injury: “Avandia’s posthumous pardon” [David Oliver, earlier here and at Point of Law]
  • Louisiana lawmakers use malpractice statute to discourage abortion [Alex Stein, Bill of Health]
  • Georgia committee looks at plan to replace med-mal suits with administered compensation [Georgia Report via TortsProf, Daily Report Online (constitutionality), Insurance Journal]
  • Uwe Reinhardt on professional licensure and doctors’ monopoly [David Henderson]

“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).

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“Kentucky claims that writing an advice column that appears in a newspaper in the state — in the specific case of their complaint, the Lexington Herald-Leader, though it appears in others as well — is not an act of freedom of the press, but rather practicing psychology without the required license.” [Brian Doherty] “John Rosemond has been dispensing parenting advice in his newspaper column since 1976, making him one of the longest-running syndicated columnists in the country.” The Kentucky Board of Examiners of Psychology had its attention called to Rosemond by a local complaint about a column in which he advised parents about how to handle a sullen teen but did not recommend they seek professional help. The Board, along with the state’s attorney general, proceeded to demand that he submit to a cease-and-desist order on such matters as whether he can be bylined as a “psychologist”; Rosemond is licensed as such in his home state of North Carolina, but not in Kentucky. The Institute for Justice is defending Rosemond and has filed an action against the state. [AP]

Update from the Kentucky AG’s office: don’t blame us, we let our lawyers lend themselves out for state agency work and it was by inadvertence that our letterhead was used on what went to Rosemond. As Caleb Brown notes, this opens up new questions even if it answers some others.

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Caleb Brown of Cato interviews me:

Official DNA database use and obligatory testing is now sure to expand; where might it be headed? “If states are using DNA to verify paternity on births to underage women, why not use it to verify paternity on all births?” [Glenn Reynolds] “The 2018 Ezra Klein column on how it’s insane we’re not testing all this DNA for public health purposes writes itself.” [@andrewmgrossman] Michelle Meyer also has some ideas. Earlier here.

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Asking existing employees about their family medical history might offer safety benefits in the workplace, both by indicating vulnerabilities that might be countered by protective measures, and by helping to distinguish ailments with a strong congenital influence from those that might signal occupational disease. However, the Equal Employment Opportunity Commission says that such questioning is “genetic discrimination” and unlawful under the Genetic Information Nondiscrimination Act (GINA), which became law in 2009. Fabricut, a decorative fabrics firm, will pay $50,000 to settle charges that it improperly asked about family medical history and also that it improperly engaged in disability discrimination by refusing to employ as a clerk a woman it regarded as having carpal tunnel syndrome. [EEOC press release]

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They were seeking a second opinion on whether the baby needed heart surgery, and didn’t trust the care they were getting from Sutter Memorial Hospital in Sacramento, so parents Anna and Alex Nikolayev went over to Kaiser Permanente to get a second opinion. Police and Child Protective Services then showed up at their house to seize five-month-old Sammy. “A judge ordered Monday that the child be moved to Stanford Medical Center in Palo Alto, a decision which the Nikolayevs consider a win,” and also ordered that they obey all medical advice. [KSL, Today, Good Morning America (auto-plays)]

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A New Jersey man claims that he was injured by an insomnia therapy recommended on TV by the high-profile Dr. Mehmet Oz, involving the use of microwave-heated raw rice in a bag to warm the feet. Instead the man got third-degree burns, according to his lawsuit. [Associated Press/NJ.com]

The Minnesota Supreme Court ruled that a Duluth physician was not defamed by a contributor to a consumer-review site who criticized his bedside manner and referred to the doctor as a “real tool.” [Minneapolis Star-Tribune, ABA Journal, earlier here, etc.]

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“In the topsy-turvy world of health care, doctors and hospitals have a very powerful influence on how you are treated,” he [a university investigator] said. [San Jose Mercury-News] Topsy-turvy indeed — who would have guessed such a thing? (& InsureBlog)

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August 1 roundup

by Walter Olson on August 1, 2012

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A unanimous Supreme Court has struck down a patent over diagnostic methods in medicine, the latest in a series of controversies over the bounds of patentable subject matter. [Mayo v. Prometheus Labs; Marcia Coyle/NLJ, SCOTUSBlog, Timothy Lee/ArsTechnica] As I noted last fall, my Cato Institute colleagues Ilya Shapiro, Jim Harper and Timothy Lee filed an amicus brief on behalf of the side that prevailed yesterday, arguing against the spread of “a dangerous exception to traditional patent law… the Court should reject medical-diagnostic patents as impermissibly restricting the freedom of thought.”

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Thanks to reader Hugo Cunningham for spotting this in a new Boston Globe report on the failure of the Massachusetts state medical board to post physicians’ disciplinary problems and other performance issues online:

Another major omission has resulted from a Catch-22-like requirement in state law. Russell Aims, the … chief of staff
[of the Massachusetts Board of Registration in Medicine], said the board used to post digital copies of its disciplinary orders [for medical malpractice]. But an online accessibility law requires that documents be available in a text-to-speech format for the visually impaired.

Because the PDF format of the disciplinary records is not compatible with text-to-speech software, Aims said, the law dictates that such records cannot appear in the database. If the visually impaired cannot access the information, then no one can.

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No one caught on

by Walter Olson on March 6, 2012

A Newburyport, Mass. attorney formerly with the big personal injury firm of Kreindler and Kreindler has been suspended from practice for two years “after Suffolk County judges ruled she falsely claimed she was also a medical doctor.” The firm reportedly was unaware of the imposture (no one checked, then? ) and cited her nonexistent credential in its promotional materials. [Newburyport News]

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