- Alleged wife murderer “sues J.P. Morgan for cutting off his home equity line of credit.” Reason cited: “imprisonment”. [Joe Weisenthal, Business Insider via Fountain]
- Charles Krauthammer on the need to “reform our insane malpractice system. … I used to be a doctor, I know how much is wasted on defensive medicine.” [Der Spiegel interview]
- Popehat looks back on turning two, in customarily entertaining fashion [unsigned collective post]
- Sigh: “Chamber of Commerce Sues ‘Yes Men’ for Fake News Conference” [ABA Journal]
- Coverage mandates explain a lot about why health insurance is so much costlier in some states than others [Coyote] More: Tyler Cowen (autism treatment)
- Watch out for those default judgments: PepsiCo hit with $1.26 billion award in Wisconsin state court, says word of suit never got to responsible officials within the company [National Law Journal]
- Ohio appeals court: characterizing incident as “Baby Mama Drama” is not prosecutorial misconduct [The Briefcase]
- Ideological tests for educators? On efforts to screen out would-be teachers not seen as committed enough to “social justice” [K.C. Johnson, Minding the Campus]
Posts Tagged ‘defensive medicine’
“Wasting Billions, Doing Injustice”
Stuart Taylor, Jr. on the need for malpractice reform:
Whatever the number, surveys of doctors and anecdotal evidence — even allowing for self-serving exaggeration — suggest that the occurrence [of defensive medicine] is high. A stunning 93 percent of Pennsylvania specialists in high-risk fields admitted practicing defensive medicine, according to a 2005 survey by the Journal of the American Medical Association. So did 83 percent of high-risk specialists in a 2008 Massachusetts Medical Society survey. That study also found that respondents’ fear of liability accounted for almost 30 percent of the CT scans and MRIs they ordered and had spurred 28 percent of them (including 44 percent of OB-GYNs) to avoid treating high-risk patients. …
Similar considerations explain why we already have specialized courts without juries for vaccine liability, workers’ compensation, bankruptcy, and tax cases.
(cross-posted from Point of Law)
Defensive medicine and hospital admissions
Unnecessary testing and prescribing is often the first example that comes to mind in discussions of defensive medicine, but Stuart Turkewitz, M.D., explains why needless hospital admissions, especially of older adults and those with chronic medical problems, should also be seen as a prime example. Just to lend interest, Dr. Turkewitz, an internist and geriatrician, contributes the views as a guest blogger at the New York Personal Injury Law Blog, published by his lawyer brother Eric.
“Reasons why doctors practice defensive medicine”
Happy Hospitalist has a four-box chart (via KevinMD).
September 25 roundup
- “Highly embarrassing …ugly”: Florida Justice Association apologizes for race-baiting mailer intended to sway state senate race [Miami Herald, Orlando Sentinel]
- Fanny-state regulation: they wouldn’t really ban soft toilet paper, would they? [Washington Post via Logomasini, CEI “Open Market”]
- Update on David Michaels OSHA nomination [Carter Wood, PoL] More: Fox News.
- Library of Congress has expanded its law research website, includes archiving project for legal weblogs including this one;
- David Leonhardt, NYT economics columnist, looks at defensive medicine debate [“Economic Scene”]
- “Republicans denounce identity politics, except when they engage in it themselves.” [Heather Mac Donald, Secular Right]
- Aw: Ron Coleman recalls “one of my proudest weeks of blogging”. [Likelihood of Success]
- Dewey Decimal System owner sues NYC’s Library Hotel [six years ago at Overlawyered — link fixed now]
Straight talk in medical reports
Throckmorton is losing patience with pathology and radiology reports that hedge and dodge instead of laying things out straight:
Oh, I miss the days when you got a radiology report that said, “fracture right 3rd rib, no pneumothorax”. Because of frivolous lawsuits radiologists have learned to be vague, noncommittal and to pass the buck of possible litigation. So now you get a 2 page report that says “linear lucency in right 3rd rib, clinical correlation recommended, underinflated lung fields cannot exclude underlying interstitial disease and or masses. CT recommended for further evaluation, if condition warrants.” along with several other paragraphs of lawyer imposed legalmedspeak….
“The unintended consequences of preventing patient falls”
Falls are considered “never events” under Medicare guidelines and of course are the subject of litigation against hospitals and other providers. The costs of overreaction to fear of being charged with error are not so readily measured, but are only too real:
If hospitals are scrutinized for the occurrence of falls, the natural tendency will be to focus on such events even at the expense of competing (and perhaps more important) outcomes. Unintended consequences are likely to include a decrease in mobility and a resurgence in the use of physical restraints in a misguided effort to prevent fall-related injuries.
Update to Tennessee medmal verdict
Update to the Hamilton County medical malpractice case we discussed in May. Four jurors have signed affidavits claiming that they were “coerced” by the judges’ instructions demanding a verdict into finding for the plaintiff rather than deadlocking the jury; one or two others deny that this happened. (Chattanooga Free Press, Jun. 14, Jun. 24, and Jun. 28; h/t J.T.)
While the “Allen charge” the judge gave appears to violate Tennessee law (which, unlike federal law, disapproves of such instructions), reading between the lines of the news stories, it seems that the defendants sandbagged any objection. As one can see, the journalist did not know enough law to ask the follow-up question “Did you object at the time to the jury instruction?”, which would be the critical inquiry. (Though it is possible that she did know, but had that part of her story cut by editors.) If this is the best grounds of appeal for the defendants, and plaintiff’s lawyers are correct that there was no objection at the time, the defendant is facing a steep uphill battle. Generally, courts don’t like to go wading elbows deep to scrutinize the jury deliberations; otherwise, every trial would be followed by a collateral trial into the claims of jurors, and losing parties would have the incentive to lobby jurors to testify against their verdict. (I learned this the hard way in my first appellate briefing as a junior associate.)
Tennessee jury demands defensive medicine
One out of ten colonoscopies result in nausea and vomiting; about one in 1000 colonoscopies will accidentally perforate the intestine, with potentially life-threatening side effects if not treated in a timely fashion. Kristen Freeman was one of the unfortunate one in 1000. While she complained of nausea and vomiting, she disregarded the instructions given to her about reporting her other symptoms, and so medical staff treated it like a more common case of nausea. By the time she admitted that her situation and pain was more dire, complications set in, and she suffered cardiopulmonary arrest, which in turn led to severe brain damage.
I won’t quibble with the jury’s assessment of damages of $12 million: Freeman was 33 and is now disabled for life, and in the randomness of noneconomic damages, $12 million isn’t the craziest award out there. But that the Hamilton County, Tennessee jury found gastroenterologist Michael Goodman 51% liable seems arbitrary. If doctors are required to assume that every patient reporting nausea but denying their situation is an emergency might be hiding more serious symptoms, and require them to go to the emergency room for testing (as the plaintiffs’ attorney argued Goodman should have done here), then that’s 100 wasteful emergency room cases for each real case—and not even a prevented case, since most patients follow instructions and report to the ER on their own when symptoms specific to perforation appear.
The article is on the Chattanooga Free Press web site, but the interesting discussion is in the comments, with friends of Freeman and seemingly knowledgeable doctors kibitzing. Freeman’s supporters argue that she did not actually experience any emergency symptoms and thus was not at fault at all. Even if true, that implies that they feel Goodman should be held responsible because he did not anticipate that Freeman was actually having an emergency when she presented asymptomatically: again, a demand for defensive medicine.
“Just to be sure”
White Coat begins taking notes on how many times he practices defensive medicine in the course of a day in his emergency room, and concludes that, no, the whole phenomenon isn’t just a figment of his imagination the way so many lawyers say it is. More: Max Kennerly takes an opposing view, and White Coat returns for a followup post.