Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘hospitals’

Blogs on Poliner

The medical blogs are naturally talking about the Poliner litigation, where a doctor who had privileges suspended for allegations of improper care sued everyone involved in the peer review decision and eventually got a jury verdict of $366 million (Aug. 30). Dr. Rangel (Sep. 1) takes an interesting and nuanced view based in part on personal experience with the plaintiff; db’s MedRants blog (Aug. 31) calls for a “barf bag”; Bard-Parker (Aug. 31) suggests that one solution may be more systematic use of outside review, but notes that fear of litigation may not make that reform feasible.

Commenters are focused mostly on the liability decision, but one thing that immediately strikes the eye is the complete divorce from reality of the damages figure of $366 million. Even if one assumes that Poliner’s career was completely ruined notwithstanding a different peer review’s exoneration and throws in a million dollars for psychic injury, the figure is off by at least a factor of ten; if one more realistically limits damages to the few months he was out of practice, at least a factor of 100; if one limits damages to the month between the initial suspension and the privileged decision of the peer review committee, even more. Usually the remedy for excessive damages is “remittitur,” a fancy Latin word for the process where the judge makes up his or her own damages figure and tells the plaintiff to agree to that reduced figure or a motion for a new trial will be granted. But if a jury’s damages determination was the irrational product of passion, why presume (and, often, essentially assume) that the liability decision was reasoned?

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From the “damned if you do, damned if you don’t” files

In three separate cases in 1997, nurses at Presbyterian Hospital of Dallas’s cardiac catherterization lab expressed concerns about Dr. Lawrence R. Poliner’s care of patients. When the director of the lab, Dr. John Levin, alleged to the hospital’s chief of cardiology, Dr. John Harper, that Poliner had also recently performed an emergency angioplasty on the wrong artery, the chair of department of internal medicine, Dr. James Knochel, confronted Poliner, and told him to voluntarily stop performing cardiac catheterizations while his privileges were reviewed or face termination. A six-doctor peer review committee met the next month, decided that Dr. Poliner had given substandard care in 29 out of 44 cases, and voted unanimously to suspend Dr. Poliner’s privileges at the lab.

So far, so good, right? After all, we’re told by the plaintiffs’ bar that the medical malpractice crisis would go away magically if the medical profession would just police its own, and that’s exactly what happened here. Can you imagine what a trial lawyer would do with the peer review committee’s conclusions if the hospital did nothing and had been sued for Poliner’s work afterwards?

Dr. Poliner eventually got his privileges reinstated a few months later in a hearing held before a different peer review committee of doctors after a number of prominent cardiologists spoke on his behalf; another appellate committee at the hospital found no wrongdoing by the initial peer review committee, who Poliner accused of seeking to eliminate him as “competition.” Not satisfied with exoneration, Poliner sought retribution. He, with the help of medical malpractice attorney Charla Aldous, sued the hospital, Knochel, Harper, Levin, and the six doctors on the peer review committee for supposed antitrust and “consumer fraud” violations, breach of contract, defamation, interference with contractual relations, and intentional infliction of emotional distress. The antitrust and consumer fraud claims were thrown out (BNA, “Antitrust Claims Are Eliminated From Physician Suspension Case”, Antitrust & Trade Reg. Rep., Nov. 7). So were the claims against the six peer review committee doctors, who had immunity under Texas Peer Review Immunity Statutes, which the state trial lawyers’ association had fought hard against in the legislature.

But the case against the other three doctors and the hospital proceeded. A jury found in favor of Dr. Poliner’s conspiracy theory that competitive malice motivated the entire affair. The jury’s proposed payday for six months’ missed work by the 60-year-old? $366 million: “$141 million to be paid by Dr. Knochel, $32 million each from Dr. Harper and Dr. Levin and $161 million from Presbyterian.” The hospital announced that it would appeal: “From time to time, hospitals and members of the medical staff leadership must make decisions relating to patient care and safety, and these decisions sometimes affect an individual doctor’s privileges at that hospital.” (Terry Maxon, “Dallas doctor awarded $366 million in damages”, Dallas Morning News, Aug. 28).

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Lost luggage lawsuit

What do you think of when you hear someone has been killed in an airplane accident? Earlier this year, in Olympic Airways v. Husain, the Supreme Court (in a Justice Thomas opinion over a Justice Scalia dissent) expanded the definition of “accident” in the Warsaw Convention (which allows damages recovery for international air travelers) to include an “event” where a flight attendant refused to reseat someone having an allergic reaction to cigarette smoke (though permitting the person to move himself). Olympic Airways is perhaps best understood as the epitome of the cliche “hard cases make bad law.” It is already bearing fruit for plaintiffs with even more remote claims.

On December 14, 1997, 75-year-old Caroline Neischer, a trained nurse and former smoker with chronic respiratory problems (including, claims the defense and some medical reports, emphysema), flew from Los Angeles to Guyana. At her connecting flight, she permitted an airline employee to check her carry-on suitcase, which contained a nebulizer and medication. When the flight arrived on December 15, the suitcase (along with four other checked bags) didn’t; they didn’t arrive until 6 a.m. on December 17. Though medicine and a substitute nebulizer was available in Guyana (apparently for $2), Neischer and her family waited for the luggage to arrive, and didn’t take Neischer to a doctor. On December 18, Neischer went to the hospital with breathing problems, and died on December 23, with the plaintiffs claiming she made a deathbed declaration blaming her death on the airline. Though the Guyana hospital lost some of the medical records, the plaintiffs won the battle of the experts, even though their theory had to account for the fact that it was inconsistent with the cause of death listed on Neischer’s death certificate. (Interestingly, though this was a federal case involving an international treaty, the Ninth Circuit referred to state law standards of “competent medical testimony” in dismissing the defense’s challenge to the expert.)

This, according to the plaintiffs, district court, and Ninth Circuit, qualifies as “wilful misconduct” by the airline. Under the Warsaw Convention, the airline cannot defend itself by pointing to the substandard care provided by the Guyanese hospital. The district court simply awarded damages; the Ninth Circuit asked the lower court to consider what degree Neischer was responsible for her own death for not spending $2 on another nebulizer. (“Court Finds Airline at Fault in Woman’s Death”, Reuters, Aug. 19; Prescod v. AMR, Inc.).

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Update: Derrick Thomas responsible for own crash

After less than a day of deliberations, jurors rejected a lawsuit claiming that General Motors was responsible for the death of former Kansas City Chiefs linebacker Derrick Thomas, who was speeding on ice without a seat belt at the time of his fatal crash four years ago (see Nov. 28, 2000). The ruling was a setback to attorney Michael Piuze (Jun. 19, 2001, Sept. 24, 2001, Oct. 4-6, 2002), who argued the case for the plaintiffs. (“GM Wins In Derrick Thomas Wrongful Death Trial”, KansasCityChannel.com, Aug. 17).

The family, as we noted in our earlier item on the case, had also sued local ambulance service Emergency Providers Inc. and Liberty Hospital, both of which tried to save Thomas after the accident. The ambulance company settled, as did a Chevrolet dealership. “There was no dispute that the Suburban’s roof was far stronger than federal standards, but the family contended that those standards were insufficient and needed to be changed. … Almost whispering to the jury, [Piuze] asked them for from $75 million to more than $100 million in damages, saying he did not want to put an upper limit on it.” We’ll bet he didn’t (Joe Lambe, San Jose Mercury News, Aug. 17).

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Edwards and jury selection

The Washington Times does some reporting on John Edwards’s trial practice in North Carolina. (“Edwards’ malpractice suits leave bitter taste”, Aug. 16). Reporter Charles Hurt talks to local doctors about Edwards’ cerebral palsy cases and also relates the following story about the role of jury selection in one of the future senator’s prominent cases:

“In 1991 [in Wake County], he won $2.2 million for the estate of a woman who hanged herself in a hospital after being removed from suicide watch. … During jury selection, Mr. Edwards asked potential jurors whether they could hold a doctor responsible for the suicide of their patients.

“I got a lot of speeches from potential jurors who said they did not understand how that doctor could be responsible,” Mr. Edwards recalled in an interview shortly after the trial. Those persons were excluded from the jury.

The article doesn’t say whether Mr. Edwards had to use up his peremptory challenges against the skeptical jurors or was able to get them purged for cause. Either way, it’s a reminder of one way the political process is both more open to diversity and more responsive to public opinion than the trial process: you can’t eject citizens from the voter pool just for holding the wrong sorts of views.

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Another med-mal insurer collapses

This time it’s the Hospital Casualty Co. of Oklahoma, a subsidiary of the Oklahoma Hospital Association founded in 1977 by 12 local hospitals, capsized by nursing-home suits and by the general Sooner-get-sued atmosphere in its home state. Must have been mismanaged, our friends in the plaintiff’s bar will say. Earlier this year, the Physicians Liability Insurance Co., owned by the Oklahoma Medical Association and the state’s largest med-mal insurer, “was placed under formal supervision of the Insurance Department because the company didn’t have money to pay anticipated claims.” Another mismanaged outfit, no doubt. More details at Point of Law, where I also discuss the anguish felt by California insurance regulators over the relative lack of interest among low-income drivers in taking advantage of a scheme to rob Peter in Pacific Palisades to pay Paul in Pico-Union.

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“$112 Million Medical Malpractice Verdict Dismissed”

“A Brooklyn, N.Y., judge [last month] dismissed a $112 million medical malpractice verdict — the third-largest in the state’s history — saying a local hospital could not be blamed for an aneurysm that left a man a quadriplegic. Brooklyn Supreme Court Justice Melvin S. Barasch said that although the case was ‘one of the saddest’ he had heard, the jury had no rational basis for its verdict.” David Fellin’s lawyer had played the jury a “day-in-the-life” video of his disabled client “in a nursing home, where he needs constant care. He also told the jury about Fellin’s mother, whose life, according to Barasch, now revolves around visiting and caring for her son. The judge said the film ‘brought tears to everyone’s eyes.'” However, the judge said, that’s no substitute for showing that defendant Long Island College Hospital had negligently caused Fellin’s injuries, which he said the plaintiff’s side hadn’t shown. (Tom Perrotta, New York Law Journal, Jul. 15).

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Market Influence

There may be good news on the horizon for physicians in John Edwards’ home state. No, the state didn’t pass sweeping tort reform. It’s market magic:

Unlike the last survey, business-related cases didn’t just lead the top of the list. In a dramatic change from past years, they made up more than a quarter of all the entries for 2003, with 14. That’s more than double the number of business recoveries reported to Lawyers Weekly in 2002 ? and matches the tallies in medical malpractice and auto negligence.

Another telling statistic: In 2003, six business-related cases resulted in recoveries of $7 million or more, according to the survey. There were only three reported in that range in 2002 ? and only one in 2001. In contrast, no contested personal injury recoveries reached $7 million in 2003.

Why is that good news for physicians and what does it have to do with the free market? It means that lawyers will be expending their energies on business cases instead of malpractice cases. This may not be good for the economy of North Carolina, but it would give doctor’s and hospitals a reprieve. As one lucky winner, I mean attorney, puts it:

“In my view, in terms of making a living, business misconduct cases in today’s environment are becoming almost as profitable as personal injury, where you traditionally have had more high-end verdicts and settlements,” said Hunt.

And I thought they were in this to champion the little guy.

Click here to see a list of the top 55 verdicts for 2003 in North Carolina, none of which were under one million dollars.

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A 1 in 1.09 quintillion chance

A North Carolina woman sued a hospital for failing to correctly diagnose her husband’s cancer. Except they did diagnose it correctly:

…Linda Brown alleged that Charlotte Regional contaminated tissue samples during a lung biopsy in 2000 which resulted in the wrong cancer diagnosis of small cell lung cancer. … Brown’s attorneys argued that due to hospital technicians not wearing gloves or due to unsanitary conditions, Gerald Brown’s tissue was contaminated with someone else’s DNA.

The defense argued that’s nearly impossible because someone would have had to actually have lung tissue containing the cancer cells on his fingertips while when he handled the sample.

The hospital’s attorneys argued during opening statements last week that the chances of Gerald Brown’s DNA being contaminated was 1 in 1.09 quintillion. In fact, the chances of that happening may be even greater since that one-in-a-quintillion person would have to be in Punta Gorda, inside Charlotte Regional, having a lung biopsy at the same time and have small cell lung cancer. But no one else in the hospital was undergoing a lung biopsy at the same time as Gerald Brown on March 22, 2000.

The jury ruled in favor of the hospital, but the case took four years and several hundreds of thousands of dollars to defend. That’s OK with Mrs. Brown, because now she knows “the truth.” Apparently, neither she nor her lawyers, thought of having an autopsy to discover the truth. But then, autopsies cost money, with nary a chance of making money. Not even a 1 in 1.09 quintillion chance. (More: letter to the editor Aug. 16).

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