Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘hospitals’

“Repeat Caesareans Becoming Harder to Avoid”

“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.

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Legal hazards of medicine-by-phone

Many physicians in Alaska sighed with relief this summer when a jury for the second time ruled in favor of Anchorage general surgeon James O’Malley, finding that O’Malley “had given enough information to patient Vicki Marsingill over the phone for her to make an informed decision about whether to go to the hospital emergency department. Marsingill experienced complications after she decided not to follow Dr. O’Malley’s advice.” An initial verdict in Dr. O’Malley’s favor was thrown out because of improper jury instructions. The case raised questions about how forcefully doctors are expected to respond when counseling a potentially noncompliant patient to seek treatment. In Alaska, a state where consultation-by-phone is common given the great geographical distances, the case also “sparked debate …over how much information doctors should give patients over the phone and how much responsibility falls to patients. Some physicians have stopped taking phone calls after hours and instead instruct patients to go to an emergency department or call 911.” (Tanya Albert, “Alaska physician wins case on ignored medical advice”, American Medical News (AMA), Jun. 7; “Alaska bill offers immunity when advice is ignored”, Mar. 22-29; more on case).

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Also at Point of Law

All sorts of other stuff is going on at our sister website:

* An all-new featured discussion on medical liability has just begun, proceeding from the publication of an important new empirical study by Stanford prof Daniel Kessler;

* Legal ethicist and law prof Lester Brickman has a commentary on a Manhattan judge’s questioning of legal fees in 9/11 cases;

* The Manhattan Institute is seeking applications for a research fellowship on legal issues;

* Law prof Michael DeBow, familiar to many readers for his guest postings here, is joining the Point of Law blog as a regular contributor, with comments already on flu vaccine, the dismissal of a charity hospital suit, FDA jurisdiction over tobacco, and a new antitrust blog;

* Ted Frank contributes items on malpractice by expert witnesses and on a new study suggesting that experts suffer from some of the same biases as lay observers in high-damage cases, on whether much “pro bono” litigation really helps the public, and on “Robin Hood” school-finance suits;

* Jim Copland welcomes a new and improved website, LegalReformNow;

* I’ve got posts on sanctions for wrongful litigation (did you know federal judges liked the sanctions in their old, stronger form?), collective business guilt, ski slope disclaimers, Sarbanes-Oxley, Judge Posner’s view that both Sherlock Holmes and law reviews are much overrated, liability’s burden on small businesses, and insurance broker scandals (posts in progress). Much more, too; bookmark the site today.

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Medmal reform at the debate

NORMA-JEAN LAURENT: Senator Kerry, you’ve stated your concern for the rising cost of health care, yet you chose a vice presidential candidate who has made millions of dollars successfully suing medical professionals. How do you reconcile this with the voters?

KERRY: Very easily. John Edwards is the author of the Patients’ Bill of Rights. He wanted to give people rights. John Edwards and I support tort reform. We both believe that, as lawyers — I’m a lawyer, too. And I believe that we will be able to get a fix that has eluded everybody else because we know how to do it.

KERRY: It’s in my health-care proposal. Go to johnkerry.com. You can pull it off of the Internet. And you’ll find a tort reform plan.

Now, ladies and gentlemen, important to understand, the president and his friends try to make a big deal out of it. Is it a problem? Yes, it’s a problem. Do we need to fix it, particularly for OGBYNs [sic] and for brain surgeons and others? Yes.

But it’s less than 1 percent of the total cost of health care. […]

CHARLES GIBSON: Mr. President, a minute and a half.

BUSH: Let me see where to start here. […]

BUSH: And what are his health programs? First, he says he’s for medical liability reform, particularly for OB/GYNs. There’s a bill on the floor of the United States Senate that he could have showed up and voted for if he’s so much for it.

Secondly, he says that medical liability costs only cause a 1 percent increase. That shows a lack of understanding. Doctors practice defensive medicine because of all the frivolous lawsuits that cost our government $28 billion a year. […]

GIBSON: Senator Kerry, we got several questions along this line, and I’m just curious if you’d go further on what you talked about with tort reform. Would you be favoring capping awards on pain and suffering? Would you limit attorney’s fees?

KERRY: A follow-up…

GIBSON: Yes. A follow-up on this for…

KERRY: Yes, I think we should look at the punitive and we should have some limitations.

But look, what’s really important, Charlie, is the president is just trying to scare everybody here with throwing labels around. […]

GIBSON: […] Thirty seconds, President Bush.

BUSH: You’re right, what does matter is a plan. He said he’s for — you’re now for capping punitive damages?

BUSH: That’s odd. You should have shown up on the floor in the Senate and voted for it then.

Medical liability issues are a problem, a significant problem. He’s been in the United States Senate for 20 years and he hasn’t addressed it.

We passed it out of the House of Representatives. Guess where it’s stuck? It’s stuck in the Senate, because the trial lawyers won’t act on it. And he put a trial lawyer on the ticket.

As the Washington Post notes, “Kerry glossed over his opposition to” medical malpractice caps. Unfortunately, the Post’s “Debate Referee” adjudicated that Bush exaggerated the effect of caps–and then proceeds to make the same mistake Bush criticized Kerry for, by omitting the effect of caps on defensive medicine costs by taking a statement in a CBO report out of context. As I noted on Point of Law,

What the CBO says is that, assuming medical malpractice expenses are 2%, reducing those expenses 25% will, as a matter of simple arithmetic, reduce total health care expenses by 0.5%. But, as Dr. Chusid acknowledges, that 2% assumption for medical malpractice expense is a great underestimate. There’s more than just insurance premiums: there’s the billions spent on inefficient defensive medicine, on hospital in-house lawyers, on time doctors spend with lawyers instead of with patients, on time doctors spend papering the record to protect themselves in event of suit, and on self-insurance–many hospitals don’t use a middleman insurance company. And for a number of disciplines, the malpractice insurance rate is unquestionably higher than 2%–the average OB/GYN pays a quarter of her net income in premiums.

The Post didn’t referee–they took sides in a controversial public policy debate, and did so on inaccurate information.

Mickey Kaus calls Kerry’s “I’m a lawyer too” the “worst-polling line of the night.”

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Texas Watch: San Antonio State Hospital v. Cowan

James Roy Cowan, Jr., committed to the San Antonio State Hospital, hung himself with his own suspenders. His family sued the state-run hospital for not preventing the suicide. Problem: Texas law prohibits lawsuits against state entities. Plaintiffs’ creative solution: an exception permits lawsuits against the state when the state injures someone by “using” “tangible personal property”–for example, if a state employee negligently drives an automobile. Thus, plaintiffs argued, the hospital “misused” the suspenders by permitting them to remain in Cowan’s custody. A trial court and appellate court were prepared to let this theory go to trial, but the Texas Supreme Court unanimously reversed last January.

Reasonable minds may differ as a matter of public policy whether Texas taxpayers should be on the hook for damages for failing to prevent a suicide, but it hardly seems controversial that the Texas Supreme Court correctly held that the Texas legislature has not made that decision.

Except that “Texas Watch,” a plaintiffs’ lawyers’ front group (see Mar. 11), issued a report complaining that the Texas Supreme Court was “anti-consumer.” It came to this conclusion by tallying various pro- and con votes in 52 cases, and noting that the Texas Supreme Court votes against plaintiffs in 82% of that sample.

Of course, this is hardly sufficient to prove any such thing. Perhaps, as in Cowan, the problem is that the lower courts are too aggressively activist and pro-plaintiff. If so, the Texas Supreme Court’s ratio reflects that it’s simply being more reasonable than the decisions of the courts it was reviewing.

One might complain that I’m nitpicking at the Texas Watch report — except that that same report included a “Terrible Ten”, and Cowan was singled out as the most terrible of the ten at the top of the list, as the anecdote that Texas Watch thought most helpful to their argument. Leave aside for the moment whether a decision that protects Texas taxpayers is “against the public” as Texas Watch portrays it. It is telling that Texas Watch believes that it is the responsibility of the Texas Supreme Court to create rights for plaintiffs where the legislature has refused to do so; while newspapers printed rebuttals from a Texas Supreme Court spokesperson, they did little to evaluate the relative truth claims of the competing soundbites and let Texas Watch dictate the headlines. (Christy Hoppe, “High court rarely backs consumer, study says”, Dallas Morning News, Oct. 6; John Moritz, “Court goes largely against public, group says”, Star-Telegram, Oct. 6; Tama Swan, “Report finds past year’s Texas high court rulings lopsided”, Daily Texan, Oct. 7) (via Bashman).

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New at Point of Law

If you’re not reading our sister site PointOfLaw.com, you’re missing out on a lot. I’ve been doing about half my blog writing over there, on topics that include: a powerful new St. Louis Post-Dispatch investigation of asbestos litigation in Madison County, Ill. (here, here and here, with more to come, and note this too); the busy borrowings of Harvard’s Larry Tribe; when “not-for-profits” organize employment suits; Erin Brockovich’s respectability; crime without intent; experts and the CBS scandal; stay open through a hurricane, go to jail; suits over failure to put warnings on sand (yes, sand); West Virginia legal reform; Merrill Lynch/Enron trial; Hayek and the common law, reconsidered; getting creative about tapping homeowners’ policies; AdBusters sues to have its ads run; plaintiff’s lawyers represent criminal defendants to put drugmakers behind the eight ball; update on the law firm that competes on price; Spitzer and investors; Ohio med-mal crisis (and more); a welcome Schwarzenegger veto; dangers of firing your lawyer; ephedra retailer litigation; churchruptcies (if banks can do it…); and hardball in nonprofit hospital litigation.

Plus Ted Frank on tort reform in Mississippi and Jim Copland on California’s Proposition 64 (which would reform the notorious s. 17200 statute); the federal tobacco trial and Boeken; gender bias at work; and Rule 11 revival.

Better bookmark PointOfLaw.com now, before you forget.

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Medical education constricted

Symptoms of the medical liability crisis are less severe in North Carolina than in many other states; “Dr. Edward Halperin, vice dean of Duke’s medical school, said the issue is not cited as a major factor in Duke students’ decisions to pick a medical specialty,” which is not the case in some other parts of the country. “The malpractice issue has had a negative influence, however, in the kinds of learning opportunities medical schools offer. In years past, Halperin said, schools routinely let students do training stints at hospitals around the country. Now this practice is being curtailed, because medical schools are leery of carrying the liability for students working outside their hospitals.

“Such subtle problems seldom get mentioned in the debate, but Halperin said the effect is long term. ‘It’s inhibiting access to educational opportunities,’ he said.” (Sarah Avery, “Malpractice debate hides subtleties”, Raleigh News & Observer, Sept. 7) (via Common Good).

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Ritter family’s malpractice suit

The family of John Ritter has sued Burbank’s Providence St. Joseph Medical Center, charging failure to diagnose and treat the late comedian’s aortic dissection in timely fashion, and medblogger Galen reacts in a less than sympathetic manner (Sept. 9, strong language; “Ritter family files wrongful death lawsuit”, SignOnSanDiego, Sept. 9). KevinMD (Sept. 10), Sydney Smith (Sept. 10) and Chris Rangel (Sept. 11) also weigh in, and the latter adds thoughts about the hospital death of Bee Gees member Maurice Gibb.

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Malpractice insurance: around the country

In West Virginia, insurer NCRIC was paying out $1.07 in claims for every $1 in premiums collected; it almost left the state until regulators allowed them to raise rates to make up the difference. Of course, some doctors can’t afford the new rates, and have had to stop practicing at hospitals and nursing homes that require insurance. ATLA once again blames the insurance companies for failing to invest premiums in such a way to pay the rising claims. The insurer’s problems were exacerbated when a D.C. jury levied a $18 million countersuit verdict against NCRIC when it tried to collect $3 million in unpaid premiums from the defunct Columbia Hospital for Women Medical Center. (Dina ElBoghdady, “D.C. Malpractice Insurer Feels Squeeze”, Washington Post, Sep. 6).

In Illinois, the political debate continues over the need for tort reform, as doctors continue to flee the state. Ed Murnane, of the Illinois Civil Justice League, notes that 40% of the doctors in St. Clair and Madison Counties have been named as defendants in lawsuits between 2000 and 2003; even though the overwhelming majority of plaintiffs collect nothing from such cases, the costs of defense are high. (Mark Samuels, “Group: Tort Reform Can Stop Malpractice Crisis”, The Southern, Sep. 3; Rob Stroud and Herb Meeker, “Illinois physicians say insurance rates are driving them out of state”, Journal Gazette/Times-Courier, Sep. 3).

An editorial signed by 25 Washington County, Maryland doctors protests the legislature’s failure to reform the medical malpractice system. (“Lawsuits will drive doctors away”, The Herald-Mail, Sep. 5).

In Nevada, the trial lawyers groups are trying to obstruct reform by putting forward faux reform measures on the initiative ballot that would wipe out the real reform measure, Question 3. For example, Question 5, proposes penalties for filing or defending “frivolous” lawsuits–but redefines “frivolous” to narrow the classification as to be meaningless. At the same time, it bars the legislature from ever implementing caps. An earlier attempt to stop Question 3 with a last-minute lawsuit failed. (Tanya Albert, “Nevada tort reform ballot fight now brewing”, American Medical News, Sep. 13; AP, Aug. 25; No on 4 and 5 website).

Washington state doctors are traditionally politics-free, but the medical malpractice crisis could change that and force them to lobby for the reform Initiative 330. “‘Physicians in the main have an aversion to mixing politics with their professional medical practice,’ said Dr. Kevin Ware, president of the county medical society. ‘But under the current circumstances, the need for malpractice insurance reform is so desperate that physicians are having to look seriously at departing from that custom.'” (Sharon Salyer, “Doctors may lift ban on politics”, The Herald, Sep. 6; Wallace blog, Aug. 31).

Wyoming has lost 10 percent of its doctors in the last eighteen months, and the state’s largest malpractice carrier will stop renewing policies October 1. A constitutional amendment is necessary for reform there. (Lee Lockhart, “Lawmaker predicts heated debate over damage caps”, Casper Star Tribune, Aug. 27).

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Oz: mom’s car crash caused my cerebral palsy

From Australia, more evidence that the presence of liability insurance may tend to lead ineluctably to the alleged causation of cerebral palsy:

An Adelaide teenager suffering from cerebral palsy is suing his mother after she crashed into a tree when he was a foetus. Supreme Court documents claim Sylvia Neave, of Ferryden Park, was negligent and breached her duty of care as a mother to her unborn child.

Under law, Graham Neave, 16, has to sue his mother and [the state of South Australia’s] compulsory third party insurer, the Motor Accident Commission, in his bid to gain an estimated $3.5 million compensation.

The Queen Elizabeth Hospital also is part of his claim for allegedly failing to treat him “sufficiently early or at all” before his emergency delivery.

— “Boy sues mum in $3.5m bid”, The Advertiser/News.com.au, Aug. 22.

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