Osteopath John King (who now calls himself “Christopher Wallace Martin” in his Alabama practice after surrendering his West Virginia and Texas medical licenses) had a poor record in numerous previous jobs in numerous states, but West Virginia’s Putnam County Hospital, the only acute-care center in the county, wasn’t able to find that out because the former employers were afraid of being sued. King lasted a few months at Putnam before he was dismissed for incompetence after an investigation, and King responded by suing Putnam and the independent expert who testified against him at a private peer review (as well as the newspaper that reported on his problems). Meanwhile, trial lawyers engaged in a feeding frenzy, filing dozens of lawsuits for tens of millions of dollars against the deep pocket (and some against each other), creating enough adverse publicity that Putnam lost nearly half of its business, and was on the verge of shutting down tomorrow before a last-minute deal to save the hospital was negotiated. Martha Montelongo has an overview in the August 17 Human Events Online. (Lawrence Messina, AP/Charleston Daily Mail, Aug. 28; Chris Dickerson, “Druckman sues former clients over work on King cases”, West Virginia Record, Aug. 8; Lawrence Messina, “W. Va. Hospital Says Lawsuits Drive Conversion to Urgent Care Center”, AP/insurance Journal, Aug. 7; Chris Dickerson, “Putnam General blames impending closure on trial lawyers”, West Virginia Record, Aug. 1).
Posts Tagged ‘hospitals’
On “Malpractice Plaintiff” Databases
As consumers, we increasingly have ever more access to information about the enterprises that we may wish to do business with. In the beginning there was the Better Business Bureau, then Zagat Surveys, then BizRate, then online reviews from Amazon, Expedia, iTunes, etc.
In the medical field, patients had indicia such as board certifications and hospital privileges when choosing physicians. There are also services that collect data on malpractice lawsuits — you probably don’t want to retain a doctor (or a lawyer, for that matter) who has lost too many malpractice cases.
Fair enough. But what happens when the professionals turn the tables?
In the latest effort to enable doctors to shun patients who sue, an offshore company has launched an Internet site that lists the names of plaintiffs who have filed medical malpractice cases in Florida and their attorneys.
The site, LitiPages.com, encourages doctors to consider avoiding patients who are listed in the database, and it strongly encourages plaintiffs who have lost their cases at trial to turn around and sue their plaintiffs attorney.
Note: The urls “http://www.LitiPages.com” and “http://LitiPages.com” seem to be inactive. Go figure. I guess we now have to treat this post as a hypothetical. Walter blogged about a similar service long ago.
Let’s clearly delineate the two separate concerns here. I will leave to others (Walter?) the task of explaining why a lost lawsuit is not automatically, or even presumptively, a malpractice claim against your attorney.
Look for the union libel
“A jury ruled Friday that a labor union defamed Sutter Health with a mass mailing of postcards and awarded the Northern California health care organization almost $17.3 million in damages. The Placer County jury found that Unite Here, one of the nation’s largest unions that represents hotel, restaurant and laundry workers, defamed Sutter Health early last year by sending postcards to women of child-bearing age in Northern California claiming the organization’s hospitals used unclean linens. The union was in a labor dispute with the laundry service that cleaned the linens at the time.” (“Jury: Union defamed Sutter Health”, InsideBayArea.com (Hayward Daily Review), Jul. 23; Mehul Srivastava, “Jury award stings union”, Sacramento Bee, Jul. 22).
Chicago subway fire: pay up for terrorism fears
Personal injury lawyers filing the first lawsuits arising from a July 11 fire and derailment on the Chicago Transit Authority’s Blue Line “said their clients’ damages may be greater than normal due to initial fears that the accident was a terrorist attack.” Attorney Dan Kotin of Corboy & Demetrio, representing plaintiffs, “said the timing of the accident might have magnified their emotional distress. ‘Coming just hours after the subway bombings in India, these women were convinced that they were under attack,’ Kotin said.” Kotin’s clients were treated and released at a hospital at the time; how badly hurt are they now? “I think we’re going to learn over the course of time that the emotional suffering is far worse than the physical pain.” Oh. (Michael Higgins, “First lawsuits filed in subway fire”, Chicago Tribune, Jul. 12).
No benefits for alcoholic who drank ethanol
“An Iowa judge has denied unemployment benefits to a man who claimed discrimination after being fired from an ethanol plant for drinking ‘automobile fuel’ produced by the company.” Cory Neddermeyer, 42, was fired after being hospitalized with an almost fatal 0.72 blood-alcohol level after dipping into the 190-proof fuel at his employer, Amaizing Energy in Denison, Iowa. “Neddermeyer argued that his employer shared in the responsibility for the incident because the spill at the plant provided an ‘opportunity’ for him to drink. He also argued that Amaizing Energy was discriminating against him due to his ‘disease of alcoholism.'” (Clark Kauffman, “Man fired for getting gassed on spilled ethanol at work”, Des Moines Register, Jul. 9 (via Romenesko)).
Soup-tampering does not pay
“A federal grand jury indicted a Stockbridge, Ga. man Thursday on charges he poisoned his own children with tainted soup in an attempt to extort money from soup maker Campbell’s.” Prosecutors say William Allen Cunningham, 40, on three occasions in January fed his children, aged 3 years and 18 months, soup spiked with dangerous substances which resulted each time in their hospitalization. Cunningham allegedly told police he planned to sue the Campbell Soup Company for money based on the injuries. (“Man Indicted For Poisoning Soup and Feeding It to His Children”, WXIA/FirstCoastNews, Jul. 7; Priscilla Rodriguez, “Dad accused of tampering with kids’ soup”, KNX NewsRadio, Jul. 7). And in Newport News, Va., Carla Patterson was sentenced to 12 months in jail as punishment for a scam in which she and her son Ricky claimed to have found a dead mouse in the soup at a Cracker Barrel restaurant, for which they sought $500,000 (Jun. 3, 2004); evidence indicated that the mouse had neither drowned nor been cooked, but had died of a fractured skull. (“Woman gets year in jail for mouse-in-soup scam”, WAVY-TV, Jul. 6; Beverly N. Williams, “Mother gets year in mouse soup case”, Newport News Daily Press, Jul. 6).
Protection Against Unanticipated Lawsuits
On Monday, in Arlington Central School District v. Murphy, the Supreme Court limited the court costs recoverable under the Individuals with Disabilities Education Act (IDEA), holding such costs did not include the cost of expert witnesses hired by the plaintiffs. This is an important ruling because IDEA suits are the most common variety of student lawsuit in federal court. Suits under the IDEA dwarf the number of lawsuits brought by students under the Constitution. They also have far more effect on school discipline, since the IDEA makes it very difficult to suspend students with behavioral, emotional, or other disabilities from school for misconduct, even when their misconduct is severe and unrelated to their disability.
The Supreme Court reasoned that the IDEA is a spending clause statute, which only binds school districts that accept federal funds, and that lawsuits against recipients of federal funds should not be allowed unless they have “clear notice” in the statute of their potential liability when they accept federal funds.
This “clear notice” principle, if applied to other laws, could help stem a flood of unanticipated lawsuits and administrative charges against school districts and hospitals. For example, Title VI of the Civil Rights Act forbids racial discrimination by recipients of federal funds. In practice, the Education Department has turned this simple ban on discrimination into an affirmative mandate imposed on schools to provide “oral and written translation services” to non-English speakers in a host of foreign languages free of charge. It interprets the statute as requiring that any parents who do not speak English be given written or oral translations of school information, even if the parents’ language is obscure and spoken by few students at their child’s school.
This duty is not clearly expressed in the Title VI statute, which Alexander v. Sandoval, 532 U.S. 275 (2001) ruled only reaches intentional racial discrimination. Nor is the duty even clear from the Education Department’s codified Title VI regulations, which prohibit not only intentional discrimination but also unintentional, “disparate impact” discrimination. A “disparate impact” discrimination claim requires a lot of affected students or employees, with big gaps between different races, not just language groups, much less a failure to accommodate rarely spoken Third World languages. (Moreover, even banning “disparate impact” may be beyond the Department’s authority under the Supreme Court’s Alexander v. Sandoval decision.)
(Federal agencies’ bilingual education mandates are not easy to satisfy. While working in the Education Department’s Office for Civil Rights, I learned that school districts investigated over their accommodation of non-English speakers are uniformly and invariably found by OCR to be in violation of Title VI).
The Supreme Court’s decision should prompt federal civil rights agencies to revisit their expansive interpretations of federal spending clause statutes like Title VI, Title IX, and the Rehabilitation Act.
By popular demand: the $400,000 permanent erection
You’ve seen the AP press coverage. Charles Lennon had a pre-Viagra surgery to install a prosthesis, but had trouble keeping it in a concealed position; the legal opinion reveals he also complained about the product’s discomfort and noise. He won $400,000 after a jury trial. I don’t know whether the jury was correct. On the one hand, the description is one of a bad product failure. On the other hand, Lennon had trouble meeting federal evidentiary standards, and dismissed with prejudice the case he filed in federal court, rather than face the results of a summary judgment motion; moreover, an Oklahoma case against the manufacturer also suggests that the manufacturer didn’t do anything actionable. (Lennon also sued his doctor and his hospital; they won below.)
What nobody has mentioned is that the case turned on a lawyer’s use of Latin. The reference in the notice of appeal was to “Dacomed Corp., et al.” But Rule 3(c) requires parties to be named with specificity in such a notice. Thus, co-defendant National Union Fire Insurance was not allowed to appeal—and the appeal may very well have been dispositive in its favor, because Dacomed’s appeal—based on res judicata because they had succeeded in a previous federal lawsuit after two First Circuit appeals—was successful. The ruling is correct: better to have a straightforward rule that can be neutrally applied than a vague multi-factor balancing test that essentially permits a judge to let sympathy into play, and the insurer was on the wrong side of the rule. But when so much turns on something so seemingly trivial, judges should not be surprised that appellate briefing costs so much. Lennon v. Dacomed Corp. (R.I. Jun. 23, 2006).
“Erin Brockovich Takes Role as Plaintiff in Medicare Suits”
For those who never expected to see the words “glamourpuss” and “Medicare” in the same sentence: “The onetime legal assistant, whose environmental crusade against a utility company inspired a hit movie starring Julia Roberts, has lent her name as plaintiff in lawsuits against several California hospitals and convalescent homes.” Two law firms, including Wilkes & McHugh, have engaged Brockovich as the public face of bounty-hunting “whistleblower” suits pursuing the adventuresome theory that hospitals defraud the government by accepting Medicare reimbursement for further medical care occasioned by their own earlier errors, even when no legal process has yet determined the earlier medical decisions to have been erroneous. The “lawsuits do not involve specific allegations of wrongdoing “. Ms. Brockovich is managed by the William Morris talent agency. (Daniel Yi, Los Angeles Times, Jun. 7). For much more on her activities, follow links from Nov. 3, 2005. Update Nov. 18: federal judge in San Diego tosses two suits.
“Attorneys Gear Up for Suits Over ‘Virtual Medicine'”
“Attorneys warn that virtual medicine — which has popped up in hospitals and clinics in more than a dozen states in the last two years — could open the floodgates to malpractice claims, privacy disputes and licensure problems.” (Tresa Baldas, National Law Journal, Jun. 9). Reader James Ingram writes:
This is infuriating. One of the understood failings of the U.S. health care system is the poor monitoring of patients with chronic conditions such as asthma, hypertension, diabetes and the resulting poor compliance with proven treatment regimes. Virtual medicine is a very promising solution to this problem, enabling patient and doctor to consult briefly and frequently without the inconvenience (to the patient) of making an office visit. In a five or ten minute web conference patient and doctor can discuss topics such as blood pressure or blood sugar readings, compliance with medication regimes, diet and exercise, symptoms and side effects experienced etc. without either having to leave home or office. Do we think we will get better results with the present system — where the patient must take time off from work, drive to the doctor’s office, wait and wait some more — and therefore doesn’t bother?
And that’s not even to mention the opportunities to reach patients who have difficulty making it to their doctor’s office because of age or disability or the opportunities for patients in small towns and rural areas to consult specialists in distant cities.