They’ll have to assist unmarried women in giving birth even if doing so violates their religious scruples, according to a new California Supreme Court decision involving a lesbian applicant. As Bookworm Room points out (Aug. 19), and as we noted in the earlier Bay Area conscience controversy over gender-switch breast surgery, it makes a practical difference (if not one of libertarian principle) that there are plenty of other fertility clinics around San Diego that would be happy to step into the gap. The doctors in the case at hand might still escape liability because a ban on marital-status discrimination as such was not yet part of state law at the time they rejected Guadalupe Benitez; Benitez will win if she shows that the true motivating factor was her lesbianism. (Egelko, SF Chronicle, Recorder). The ruling also allows doctors to excuse themselves on the basis of religious scruples if there is a second doctor within the same practice — but not, apparently, a doctor across town at a different practice — willing to perform the work in question. And of course the legislature in Sacramento could readily help bring peace to the culture war by inserting into the law a generously drafted conscience clause — if it wanted to. More: Miller, IGF; opinion, PDF.
Posts Tagged ‘medical’
August 20 roundup
- Lawyers’ contingency fee is temptation to ethical corner-cutting in consumer debt collection, too [Miami Daily Business Review, Popehat; Orlando’s Palmer Reifler & Associates, mass mailing of demand letters to accused shoplifters]
- Discussion continues on loser-pays with me and many others at NewTalk, and note comment from Ontario lawyer [through today]
- Age bias suit by Hollywood writers gains traction. Next, actors? [Ink Slingers via Class Action Blawg weekly review]
- Class action against Quebec lottery on behalf of problem gamblers finally set for trial [CP/Yahoo, Lee Distad via Class Action Blawg, earlier]
- Should we and other commentators avoid mentioning litigants’ real names so as not to intrude on their Google legacy? [comments at Ron Miller/Md. Injury]
- California lawmakers OK feel-good “Donda West Law” but it won’t do much to keep impulsive clients from rushing into plastic surgery [GruntDoc, Cameron Turner/EURWeb, Truth in Cosmetic Surgery Blog]
- Probably not a swift career move for lawyer to tell bar disciplinary panel “Go to hell.” [ABA Journal]
- Class action forces HUD to allocate more to some Indian recipients, so it cuts other programs, bad news for North Carolina’s Lumbee tribe [Fayetteville, N.C. Observer courtesy US Chamber]
- Environmental authorities won’t press charges against man who shot protected rattlesnake that had just attacked and bitten him [eight years ago on Overlawyered]
White Coat Rants on “never events”
Blood should never clot, microorganisms should never happen, and one doc-blogger is on a tear (Aug. 14, more, Aug. 17) over the sometimes absurd hype being given to the concept:
“Never events” are and always have been “all about the Benjamins.” Look at this news release. The “background” section states that the “never events” were “required” pursuant to Section 5001(c) of the Deficit Reduction Act. Medicare wants to stop paying for things not because they “should never happen” but because it’s trying to save money. The whole “never event” moniker is just a spin they put on the cuts to make it look like someone else’s fault. Do “never events” never occur at government run hospitals? We’ll never know because CMS doesn’t even include government run hospitals on the “hospital compare” list.
U.K. medical student: multiple-choice exams unfair to disabled
“Naomi Gadian, 21, from Manchester, claims that multiple choice testing discriminates against people with dyslexia” and is suing Britain’s General Medical Council and her college, the Peninsula College of Medicine and Dentistry in Plymouth, under the Disability Discrimination Act 1995, the U.K. equivalent of the Americans with Disabilities Act. (“Dyslexic medical student takes legal action against multiple choice exams”, Plymouth Herald, Jul. 30).
Limiting docs’ work hours
The story of well-meaning regulation, part 37,281: “Is an ignorant doctor really better than a tired one?” (Sandeep Jauhar, “The Nightmare of Night Float”, Slate, Jul. 30).
Update: Lawrence Poliner v. Texas Health Systems appeal
We hear frequently that the medical profession doesn’t do enough to police its own. Cases like that of Lawrence Poliner might explain why. In 1997, in response to complaints by nurses at Presbyterian Hospital of Dallas, and the allegation by a doctor that Poliner had performed an angioplasty on the wrong artery, the hospital asked Poliner to stop work while they investigated. These limited privileges lasted 29 days, followed by a unanimous decision to suspend, a five-month suspension from echocardiography privileges, and then reinstated Poliner five months later subject to conditions that he consult with other cardiologists.
For this, Poliner sued for defamation and under federal antitrust law, alleging that other cardiologists were trying to dominate the market and prevent his competition. The five-month suspension had federal immunity under the Health Care Quality Improvement Act, 42 U.S.C. § 11101 et seq. (just one of many federal tort reforms that promote safety), but the trial court held that the 29-day limited-privileges created a cause of action that should go to a jury. Poliner lost $10,000 in income over that time “but was awarded more than $90 million in defamation damages, nearly all for mental anguish and injury to career. The jury also awarded $110 million in punitive damages”–despite the fact that Poliner would have to prove damages were caused by the allegedly unprivileged temporary limitation rather than by the five-month suspension. We covered the initial $366 million verdict in 2004, the outraged medical blogosphere reaction, and the remittitur to a still ludicrous $22.5 million in 2006.
Defensive medicine debate
A doctor writes on the Kevin MD blog: “[M]eaningful control of the cost of medicine will have to go hand in hand with tort reform.” Read the comments, also.
Marc Rodwin and the Massachusetts medical malpractice crisis
A Health Affairs paper by Suffolk University Law Professor Marc Rodwin et al. has been generating a lot of press and blog attention for its claim that there is no medical malpractice crisis in Massachusetts. He and I have been debating the paper at Point of Law (Frank; Rodwin; Frank); as I show, that conclusion is highly suspect and seems divorced from the underlying data.
Medical liability case selection
“Here’s one of their secrets: They’re not looking merely for cases of physician error; they’re also looking for unsympathetic defendants — for physicians who seem unfeeling.” (Shirley Grace, “The Law: Trial Lawyers Tell All”, Physician’s Practice, Apr. 1 (via KevinMD).
More: Coincidentally, the Times covers the “medical apology” movement this morning: Kevin Sack, “Doctors Say ‘I’m Sorry’ Before ‘See You in Court'”, New York Times, May 18.
“Why Doctors Are Heading for Texas”
Tort reform, of course, resulting in substantially lower medical malpractice premiums and expenses, and an influx of 7000 doctors, including into many underserved regions. One indirect benefit: with less money spent on medical malpractice lawyers, self-insuring hospitals can spend more on doctors and on medical practice:
Take Christus Health, a nonprofit Catholic health system across the state. Thanks to tort reform, over the past four years Christus saved $100 million that it otherwise would have spent fending off bogus lawsuits or paying higher insurance premiums. Every dollar saved was reinvested in helping poor patients.
Also of relevance: the amusing results when Texas added evidentiary standards of medical harm to their asbestos and silicosis docket. Suddenly, over 99% of the cases went away because so few suing plaintiffs had a doctor willing to certify harm. (Joseph Nixon, WSJ, May 17). Related: POL Nov. 6, 2006 and POL Nov. 7, 2006, where I debate Texas law professor Charles Silver on these issues. Suffice it to say that the last year and a half has provided more support for my position than his.
Update: more data at Texas Medical Association website.