We’ve previously reported on this case and the underlying Hollins v. Jordan $30 million trial verdict (in 2004 on Nov. 20, Oct. 11, and Aug. 31) blaming an obstetrician and hospital for microcephaly in a four-pound, five-ounce birth. The case is scheduled to be heard by the Ohio Supreme Court May 23, and the more recent briefing is on line; the Dr. Jordan merits brief is especially interesting. Of note, and not previously mentioned:
- Plaintiffs attorney Geoffrey Fieger has already twice asked the entire Ohio Supreme Court to recuse itself.
- Plaintiffs are seeking $50 million in prejudgment interest.
- The claim that the caesarean was delayed is entirely bogus; plaintiffs’ experts deliberately confused the “emergency” (i.e., non-scheduled) caesarean with a “crash” caesarean.
- Plaintiffs sandbagged the damages claim by claiming before trial they would only seek $4 million, and then changing the estimates on the stand by making hypothetical assumptions not supported by any expert evidence.
- Fieger’s opening argument regularly made references to evidence excluded in limine.
- Fieger had an anesthesiologist opine on neurological matters.
- Fieger’s prejudicial conduct at trial, including race-, religion-, and class-baiting, has to be read to be believed. How there wasn’t a mistrial or a revocation of pro hac vice status is jaw-dropping.
- Counsel of record for two of the co-defendants is Drug and Device Law co-blogger Mark Herrmann.
Again, the lengthy dissent in the appellate court is worth reading.
No, this case isn’t going to get messy: in 2004, a Long Island couple went to a fertility clinic to help them get pregnant with a biological child. Apparently, the clinic botched the procedure by using the wrong sperm (Oops!); the couple figured it out when they noticed that the child was black and they weren’t.
So they sued the clinic for malpractice and infliction of emotional distress. (Just for good measure, they sued their obstetrician, who had nothing whatsoever to do with the actual fertilization; the court dismissed that claim. Gee, I wonder why medical malpractice insurance rates are so high.) The court rejected the emotional distress claim, ruling that (as most courts do) a baby being born is not an injury to the parents, but it allowed the malpractice claim to proceed.
Speaking of emotional distress, the judge handling the case quoted the parents as saying things every child wants to hear from her parents:
“[W]e are reminded of this terrible mistake each and every time we look at her.”
“We are conscious of and distressed by this mistake each and every time we appear in public.”
[click to continue…]
A New Brunswick jury awarded $14 million to the Sharad family against their obstetrician, who failed to test for a rare genetic blood disorder, thalassemia major (Cooley’s anemia), that their son was born with. Newspaper coverage mentions neither the doctor’s defense nor even the words “wrongful birth.” $8 million of the award is for emotional distress, meaning the family will be millionaires even after attorneys’ fees and medical expenses. (Sue Epstein, “Couple gets millions for son’s blood disorder”, Star-Ledger, May 23). More on wrongful birth suits: Apr. 9, etc.
We had the story about lawsuit-averse obstetrics wards Oct. 18, 2000 and Apr. 9, 2005, and Newsweek has it this week (Karen Springen, “Hospitals: No Candid Camera”, Feb. 20).
And Norm Pattis and Mike Cernovich think it hypocritical. I’m mystified: did anyone think that Edwards attacked obstetricians and manufacturers for reasons other than money? I just hope the folks writing his paycheck give him a persuasive lecture on how much his opposition to litigation reform hurts business.
Use of the procedure seems to be following the American path, “and could soon hit a record of 32 per cent of deliveries — far higher than in countries such as Britain and New Zealand.” Among the factors:
Andrew Pesce, consultant obstetrician at Westmead Hospital in Sydney, told the conference litigation was a factor in the caesarean rates.
No obstetrician had ever been sued for doing a caesarean, while some of the largest medical negligence payouts — including the $11 million Calandre Simpson case in 2001- – followed claims the doctor should have performed a caesarean section earlier, Dr Pesce said.
(Adam Cresswell, “Midwives left ‘powerless’ by soaring caesar births”, The Australian, Sept. 5). See Nov. 29, 2004; Jul. 18 and Aug. 13, 2003; and Feb. 5, 2001.
Back in the news again, with the president of the AMA saying malpractice-suit fears are the reason obstetricians veto videotaping (AP/WTSP, Apr. 5). See Oct. 18, 2000.
Dr. Benjamin Brewer, who writes the Wall Street Journal’s “The Doctor’s Office” column, discusses the OB shortage caused in Illinois by the medical malpractice problem. Trial lawyers like to blame the insurance industry’s investments and “business practices,” but the leading insurer in Illinois, ISMIE, has only 3% of its funds in the stock market. (Moreover, ISMIE is a mutual insurer–profits go back to its member doctors. The doctors aren’t conspiring to charge themselves too much; ISMIE’s rates reflect the payouts it makes in malpractice cases.) Large swaths of southern Illinois and nearly half the counties in the state have no obstetrical hospital services at all. Brewer concludes “it may take a federal law to stimulate the reform process in Illinois, where entrenched proponents of our broken system hold political and judicial sway.” (“When a Pregnant Patient Struggles to Find Care”, Jan. 4). Our sister site, Point of Law, comments on tomorrow’s Presidential visit to Madison County, where Bush will discuss his litigation reform agenda for the upcoming Congress. (Krysten Crawford, “Bush heads to ‘Judicial Hellhole'”, CNN/Money, Jan. 4; Ryan Keith, “Bush to Highlight Tort Reform in Ill.”, AP/Newsday, Jan. 4; Caleb Hale, “Doctors Are Eager To Hear What Bush Will Say About Crisis”, The Southern, Jan. 4; Mark Silva, “Bush’s tort reform efforts to start at ‘judicial hellhole'”, Chicago Tribune, Jan. 3).
“Women around the country are finding that more and more hospitals that once allowed vaginal birth after Caesarean, or VBAC (commonly pronounced VEE-back), are now banning it and insisting on repeat Caesareans. About 300,000 women a year have repeat Caesareans. The rate of vaginal births in women who have had Caesareans has fallen by more than half, from 28.3 percent in 1996 to 10.6 percent in 2003. …
“On a practical level, many women prefer vaginal birth because they recover more quickly and with less pain than they do from a Caesarean. In addition, each Caesarean increases the risk of complications in the next pregnancy, so women who want more than two or three children often hope to avoid the operation.
“Some doctors and hospitals freely acknowledge that fear of being sued has driven their decisions. Hospitals say they cannot comply with guidelines issued in 1999 by the American College of Obstetricians and Gynecologists, which call for a doctor to be available ‘immediately’ throughout active labor during such a birth, to perform an emergency Caesarean if needed. Previous guidelines had called for them to be ‘readily’ available.” (Denise Grady, New York Times, Nov. 29)(via Lone Star Times). We covered the issue Jul. 18, 2003.
Another blow to the theories that have proved such a fertile source of litigation over the past few decades: “A new study undermines the long-held belief among obstetricians that oxygen deprivation, or hypoxia, is the main cause of cerebral palsy in premature infants. The study, published in the October issue of The American Journal of Obstetrics & Gynecology, found that the brain injury that leads to cerebral palsy was much more commonly associated with infection than with hypoxia.” (Nicholas Bakalar, New York Times, Nov. 2). Virginia Postrel comments (more on stored Google search page — note the nature of most of the advertising).
The IssuesPA/Pew Poll has found that a remarkable 26 percent of Pennsylvanians polled “said rising malpractice insurance costs have forced their family to change doctors in the past year”, and that state residents polled also favored a constitutional cap on pain and suffering damages by a margin of 68 percent to 24 percent. (The state legislature has refused to allow such a measure to reach the ballot.)(doctor availability survey, Sept.; caps survey, Aug.). The Scranton Times Tribune, a newspaper heretofore known for skepticism about the extent of a malpractice crisis, now credits reports that the number of local doctors practicing in key specialties “has declined sharply in recent years” and that specialties with high legal risk are disproportionately affected (Jeff Sonderman, “Area losing its specialists”, Sept. 12). And in a Sept. 3 speech in Scranton, President Bush “cited the tale of Carbondale physician Neal Davis … Dr. Davis, a longtime family practitioner, stopped delivering patients’ children in January because he could no longer afford obstetrics insurance.” The result, said Bush, was that “then-expectant mother Mary Coar of Honesdale [was] out in the cold”; she wound up driving 50 miles each way to see different doctors. (Chris Burk, “Bush stresses liability reform by tale of Carbondale doctor”, Scranton Times Tribune, Sept. 4). More on Pa. malpractice: Jul. 16, May 20, Jan. 18, 2004; Sept. 12 and Jul. 23, 2003, etc.
Yorba Linda, Calif.: The basic fact pattern underlying this wrongful-birth suit will be familiar to longtime readers of this site (Aug. 22-23, 2001, Jul. 1, 2003, etc.): little Leilani Duff’s parents say they love her, but also say they’d have aborted her if they’d realized she was at risk of spina bifida, so they’re suing their obstetrician, Dr. William Dieterich, for unspecified damages. (Claire Luna, “If Only We’d Known, Parents Say”, Los Angeles Times, Sept. 9). The L.A. Times’s account includes the following comment about the incentives this burgeoning field of litigation may be sending to doctors practicing in the field:
The rise in wrongful-life suits and the threat of legal responsibility for a child’s defects puts obstetricians in the uncomfortable position of recommending, if not insisting on, abortion when there is the slightest doubt, said one physician.
“On one side you have a liability mess that puts you on the hook for the rest of the child’s life,” said Dr. T. Murphy Goodwin, chief of maternal-fetal medicine at USC’s Keck School of Medicine [and also, as the article notes, a member of the American Assn. of Pro-Life Obstetricians and Gynecologists].
“The other side, you have carte blanche to avoid the potential for these kinds of problems by shading the discussion to advocate abortion. There’s almost no adverse reaction if a doctor tells someone to terminate a pregnancy based on faulty information.”
Four more entries from our correspondence stack on our letters page. Topics include: why autopsies don’t figure more prominently in malpractice cases, whether the legal climate deserves all the blame for the shrinkage in Philadelphia obstetrics, what happens when you tell your homeowners’ insurance company that you run a controversial website, and another lawsuit challenging the 1998 tobacco settlement.
The practice of obstetrics is not easy. Doctors who deliver babies face long, late hours, life-threaatening complications that can spring up in a split second without warning, and the constant threat of litigation for events beyond their control. Now, the malpractice crisis is making it even harder, with doctors in crisis states like Pennsylvania finding themselves in a manpower crunch thanks to the exodus of obstetricians from the state. Not only are doctors leaving, but hospitals are shutting down their obstetrics departments:
According to the 2003 American College of Obstetricians and Gynecologists Survey on Medical Liability, 12.5 percent of OB/GYNs in Pennsylvania have stopped practicing OB and 57.5 percent have made some change in their practice because of issues with affordability or availability of liability coverage, including relocating, retiring, dropping OB, reducing number of deliveries, reducing amount of high-risk OB care, or reducing gynecological surgical procedures.
Those statistics, however, do not come close to revealing the extent of the current problem of obstetrician supply in the five-county Philadelphia region, which lost 25 percent of its staffed OB beds between 1993 and 2003, according to Delaware Valley Healthcare Council President Andrew Wigglesworth. Within the past 18 to 24 months, he says, the region lost 10 hospital OB departments, including those at MCP, Methodist, Nazareth, Warminster, Mercy Fitzgerald, Episcopal and Elkins Park; while OB services were also lost from hospital closures including City Line, Sacred Heart in Norristown and Community Hospital in Chester.
That means longer hours and a greater proportion of riskier cases for the hospitals and doctors who remain. Which means they’re more prone to errors. It also means that they can no longer spread themselves as thinly as they once did. Hospitals that once staffed inner city public health clinics are can no longer spare the staff to do so, leaving the poor without easily accessible prenatal care. Remember that the next time you hear John Edwards say that he has spent his career helping the down and out.
Who’s going to be left delivering babies? Maybe foreign medical graduates, who still perceive themselves as having fewer options than the U.S.-born medical students who are increasingly steering clear of obstetrics as a specialty. Of course there’s also the option of departing a state like Maryland, where the prevailing insurance premium for an ob/gyn is slated to rise this year to $160,130, and starting up practice instead in a state like Wisconsin, where tough tort reforms keep the corresponding figure to an average of $45,000 to $50,000, according to Dr. Douglas Laube, head of an American College of Obstetricians and Gynecologists panel on obstetrics residency. (Jonathan Bor, “Obstetrics is failing to draw new doctors”, Baltimore Sun, Jul. 11).
The litigation lobby has worked hard to advance the theme (accepted at face value in places like the New Republic) that a few bad apples in the medical profession account for most malpractice claims. On the other hand, some medical observers (see Apr. 10-13, 2003) have pointed out that if it’s true that five percent of doctors account for a majority of malpractice payouts, the most accurate description of that five percent would be not “incompetent M.D.s who should not be in practice” but rather “members of high-risk specialties in litigious localities”.
Reinforcing this latter view, a Pew Foundation project has surveyed 1,333 Pennsylvania specialists and drew responses from 824 physicians in high-risk fields including emergency medicine, general surgery, neurosurgery, orthopedic surgery, obstetrics/gynecology and radiology. “Eighty-six percent of specialists had been named in a malpractice suit at least once during their careers, and 47 percent had been sued in the three years prior to the survey.” Details today at Point Of Law, which also has new posts on Eliot Spitzer and on John Kerry’s Pennsylvania fund-raising.
…won the enactment of far-reaching liability reform in their state last year. How they did it (“The story of tort reform in West Virginia”, David A. Kappel, M.D., Bulletin of the American College of Surgeons, May (PDF)). See also “Malpractice Liability in West Virginia” (survey), U.S. Chamber of Commerce Institute for Legal Reform, Nov. 19, 2002 (PDF); American College of Obstetricians and Gynecologists, “Ob-Gyns Praise West Virginia’s New Law On Medical Liability Reform” (press release), Mar. 19, 2003. For the other side’s views, see Public Citizen, Jul. 9, 2003, and Stephanie Mencimer, “Malpractice Makes Perfect”, Washington Monthly, Oct. 2003 (& see Howard Kurtz, “Fox’s Middle Man”, Washington Post, Apr. 5 on publishing history of last-named piece, which was nominated for a National Magazine Award although the New Republic had “rejected it as flawed after a couple of rounds of rewriting”).
Consider having your baby somewhere else: hit hard by the state’s malpractice crisis, the “five-county Philadelphia region [lost] 25 percent of its staffed OB beds between 1993 and 2003, according to Delaware Valley Healthcare Council President Andrew Wigglesworth. Within the past 18 to 24 months, he says, the region lost 10 hospital OB departments, including those at MCP, Methodist, Nazareth, Warminster, Mercy Fitzgerald, Episcopal and Elkins Park; while OB services were also lost from hospital closures including City Line, Sacred Heart in Norristown and Community Hospital in Chester.
“Liability issues have put extraordinary pressure on OB programs in southeastern Pa., while well over 50 percent of practicing obstetricians in the region, perhaps closer to 75 percent, have become employees whose liability coverage is paid for by hospitals, says Wigglesworth, who adds that the trend toward employed OB status in southeastern Pa. has accelerated over the past three and a half years. ‘It is clear that, without the intervention of hospitals to employ and cover obstetricians in the region, we would have an extraordinary crisis, in terms of availability of OB services,’ he says…
“Wigglesworth [notes] that liability costs alone have approached two-thirds of the reimbursement level. …’Surviving’ OB programs in the region are mostly represented by teaching hospitals, including Hospital of the University of Pennsylvania (HUP), Pennsylvania Hospital, Einstein, Hahnemann, Jefferson and Temple.” (Christopher Guadagnino, “Obstetrician scarcity in Pennsylvania”, Physicians News Digest, May)(via Donna Rovito) (& letter to the editor Aug. 16).