Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘medical’

The Nataline Sarkisyan case: I’m just shocked, shocked, to learn Edwards has lied again

To the surprise of no one sensible, it turns out that John Edwards’s and Daily Kos’s claims about Nataline Sarkisyan, the 17-year-old California woman who recently died awaiting a liver transplant, are false:

  • Independent reviewing doctors unanimously recommended against the liver transplant as too risky, which is why CIGNA refused to grant approval.
  • CIGNA changed its mind in response to political pressure and publicity, but their delay in approval probably would not have affected Sarkisyan, as several reports indicate her treating medical institution, UCLA, would not have waited for insurance approval if a donor organ became available. (For example, Forbes.)
  • And, of course, US patients are far more likely to get organ transplants (and survive organ transplants) than patients in single-payer health care systems—so Edwards has absolutely no solution for the problem of people getting sick and dying in a world of scarcity.

Scott Gottlieb has details in the Wall Street Journal. Attorney Mark Geragos has been retained to sue CIGNA, though CIGNA was only administering Sarkisyan’s health insurance plan, and would have suffered no financial repercussions from approving the transplant.

(Disclosure: I own between $15,000 and $50,000 in stock in CIGNA.)

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The evils of food

Kim Severson of the New York Times has this article on the growing interest among parents of food allergies:

Record numbers of parents are heading to doctors concerned that their children are allergic to a long list of foods. States are passing laws requiring schools to have policies protecting children with food allergies. But no one knows why the number of allergies seems to be on the rise, or even if they are rising as fast as some believe.

Ms. O’Brien and leading allergy researchers agree that few reliable studies on food allergies exist. The best estimates suggest that 4 to 8 percent of young children suffer from them, though the reactions tend to grow less serious and less frequent as children grow older.

Even though the science is weak, new laws and policies are enacted under the banner of child safety. Yet as David Bernstein points out, we’ve been down this road before.

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The confused world of child psychiatry

There’s been a lot of news lately involving child psychiatry. As noted by others, the Supreme Court may grant cert in the case of Pittman v. South Carolina which has the interesting twist that the defendant, age 12 at the time of the crime, was taking antidepressants when he killed his grandparents. Yet, as I mentioned the link between antidepressants and violence is tenuous at best.

On the heels of the Pittman case, comes this weeks Frontline program which explored the explosive growth of children being diagnosed with bipolar disorder. Unlike ADHD, bipolar disorder is generally treated with antipsychotic medications which can have profound and lasting side-effects. Yet, the desire to place the blame at the foot of the pharmaceutical industry is misplaced; the psychiatric community has a long tradition of capturing behaviors within their diagnostic net and transforming them into pathologies. All of the pharmaceuticals in the world do nothing to our children without a mental health culture which favors medicine as the first line of treatment for troubled children. And that mental health culture is not just a product of myopic physicians or Big Pharma, but very much one of our own creation.

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Cometh the Regulation

Ed Silverman reports that pharmaceutical reps will now have to be licensed in D.C. From the story in the Washington Business Journal:

The measure makes D.C. the first in the country to license pharmaceutical company sales representatives, able to revoke that license if a salesperson’s activities were deemed fraudulent… The bill, dubbed SafeRx, also mandates that drug reps have a bachelor’s degree, adhere to a code of ethics and refrain from giving doctors gifts.”

As the Journal alludes to later in the story, the lawsuits have begun.

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Lawyer liable to both client and opponent

As one of our reader/informants sums up this litigation against a Kentucky surgeon filed by (and backfiring against) a Tennessee attorney: “Plaintiff lawyer (who is a JD/MD) gets sued by both his plaintiff client and the defendant doctor and he loses to both.” (Andrew Wolfson, “Attorney is loser in malpractice lawsuit”, Louisville Courier-Journal, Nov. 28; Childs, Dec. 27). More on countersuits by doctors: Point of Law, Dec. 20.

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When is it nobody’s fault?

I’d like to thank Walter Olson for inviting me to contribute to one of my favorite blogs, Overlawyered. As an attorney and psychologist, I’ve worked in a number of different hospitals across the country. Health care institutions are unique places to work for in many respects because the decisions made there can directly lead to serious or even fatal outcomes. Of course this is obvious, as should be the fact that despite the best intentions of everyone involved in a patient’s care, bad outcomes occur.

Alison Cowan has this article in last Friday’s New York Times highlighting a recent case involving the suicide of Ruth Farrell. By all accounts Farrell had been quite depressed for a very long time. As is the case with some people who struggle with chronic depression, Ms. Ferrell was admitted to the hospital for care and observation related to her depression and suicidal ideation. Sadly, Ms. Farell hanged herself with her own pants between the standard 15 minute “checks” performed by staff on psychiatric wards. In turn, her estate sued her doctors and the hospital claiming improper care.

Read On…

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Mississippi wrong-doc-sued case

Robert Loblaw’s Decision of the Day blog, on appellate decisions, has this update (and somewhat longer write-up) on a case briefly noted by guestblogger Jason Barney in this space in October:

Ratliff v. Stewart, 06-61018 (5th Cir., Dec. 6, 2007)

The facts in this Fifth Circuit decision reflect rather poorly on the practice of law in the Southern District of Mississippi. The underlying case arises from injuries that plaintiff Sarah Ratliff allegedly suffered from the drug Stadol. Although Ratliff eventually settled her claims, her litigation took some strange turns, resulting in this appeal.

To start, Ratliff’s attorney named the wrong doctor as a defendant. The attorney knew that Ratliff had been prescribed Stadol by a Dr. Stewart with an office in McComb, Mississippi. Without investigating further, the lawyer found a defendant who fit the bill: Dr. Lawrence Stewart. But Lawrence Stewart had never prescribed Stadol to Sarah Ratliff. Although he did have a patient named Sarah Ratliff, she insisted that she had not filed a lawsuit against him.

As it turns out, the plaintiff had been treated by Lawrence Stewart’s father, Edsel Ford Stewart, who by this point had passed away. But Lawrence’s protests fell on deaf ears, as did his motion to dismiss, complete with an affidavit stating that he had never treated the plaintiff. After filing their opposition to this motion, the plaintiff’s attorneys finally bothered to check with their client and, lo and behold, she told them that they had sued the wrong guy. Just for fun, the attorneys waited another month before confessing error and letting Lawrence off the hook.

Did they learn from their mistake? Not really, as they then filed a suit against the estate of “the elder Lawrence Stewart.”

Could it get any worse? Maybe a little. Five months after being dismissed from the case and nine days after the rest of Ratliff’s case was reassigned to a different judge, Lawrence Stewart’s attorney sent a letter to follow up on an earlier request for attorney fees. But he sent it to the old judge. And, in an even bigger blunder, the old judge decided to award attorney fees for a case that was no longer on his docket.

The mess eventually got cleaned up: the old judge vacated his order and the new judge adopted it. Ratliff appealed, but the Fifth Circuit rejects his arguments and largely affirms the fee award.

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Stories that shouldn’t get away, part I

A guestblogger will be joining us momentarily, and I’ll be posting less over the holidays. Meanwhile, my pipeline is still backed up with items from the past year that deserve a more serious treatment than a hurried roundup mention permits. Here are four of them:

  • More docs moving to Texas? Watch out, they must be quacks! After the New York Times reported that doctors seemed to be showing fresh interest in practicing in Texas since its enactment of litigation reforms, our frequent sparring partner Eric Turkewitz of New York Personal Injury Law Blog quickly countered by noting that disciplinary actions in the state are way up, and — quite a jump here — concluded with a suggestion that the newly arriving docs must be causing quality problems. Among bloggers who took this idea and ran with it: Phillip Martin of Burnt Orange Report. Then Prof. Childs had to spoil the fun by asking whether the doctors being disciplined were in fact newcomers to the state and found that, to judge by an initial sampling, no, they’re not. And the medical blogs then knocked the remaining props out from under the reform-made-care-worse theory by linking to coverage documenting how the increase in disciplinary actions reflected the Texas medical board’s concerted recent effort to get tough on doctors — too tough, said many critics. In other words, the Texas medical profession was doing exactly what many skeptics demanded it do — submit to stricter oversight in exchange for liability reform — and now that very submission was being cited as if it proved that standards of care were slipping.

  • Uninjured car owners can sue GM over seatbacks. No class members claim to have been injured, but Maryland appeals court allows class action over cost of replacing allegedly weak seatbacks in GM cars. [DLA Piper; opinion, PDF; Maryland Courts Watcher]

  • The litigious stylings of Jonathan Lee Riches. We mostly ignore litigants who file handwritten pleadings from prison cells complaining of obviously hallucinated events, but there’s no getting around it: the South Carolina convict has become a pop culture phenomenon with his scores of lawsuits against sports figures, President Bush, Perez Hilton, William Lerach and Elvis Presley over a host of imagined legal injuries. Some of the coverage: The Smoking Gun, Dreadnaught, Deadspin, Justia, Above the Law. He even has several Facebook fan groups.

  • Taxpayers and vaccine-compensation lawyers. Under the federally enacted vaccine-compensation program, notes Kathleen Seidel, “a petitioner who brings a claim in good faith is entitled to reimbursement for reasonable attorneys’ fees and costs, regardless of whether the claim is successful.” (Forget about loser-pays; this ensures that taxpayer-defendants can win but pay the other side’s fees anyway.) What sorts of bills do you think attorneys file for reimbursement under those circumstances? Yep, very optimistic bills, in which they expect taxpayers to shell out for their attendance at “advocacy group meetings, and attendance at a conference of trial lawyers representing autism plaintiffs”. In this case, HHS successfully appealed (PDF) an order that it pay the fees. Seidel’s Neurodiversity blog offers a remarkable trove of insight into litigation relating to autism causation theories, vaccines and thimerosal, and this post is no exception. (Updated to include links.)
More stories that shouldn’t get away in another post to come.

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The next wave of defensive medicine

The Massachusetts Supreme Judicial Court has held that a doctor may, in some circumstances, be liable for a patient’s auto accident if the plaintiff can prove that he failed to adequately warn his patient about the risks of driving under medication. (Coombes v. Florio; Childs; Klein blog; update: also Liz Kowalczyk, “SJC ruling adds to doctor liability”, Boston Globe, Dec. 11 via Childs).

The obvious dynamic result from this gigantic expansion of liability, unnoted by the majority: doctors will simply overwarn, and tell all of their patients not to drive. (After all, patients can’t sue their doctors for the damages caused by their being unable to drive.) Some patients will routinely ignore the advice because they won’t be able to distinguish the legitimate warnings from the defensive warnings; other patients will stop taking medication that they should be taking because of the additional unnecessary personal costs; still other patients who could have driven safely will impose huge costs because they obey the defensive warning. None of these indirect expenses caused by the expansion of liability will be measured in accounts of the costs of the tort system.

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