Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘medical’

New Guest Blogger / Court’s ruling bites

Greetings! Thanks to Walter Olson for allowing me the opportunity to guest blog this week at Overlawyered. I am Jason Barney and have worked for self-insured corporations as a claims investigator, a mid-sized northwest-based insurer investigating casualty and property claims, and now a large, self-insured northwest municipality as a tort claims investigator. All told, I have nearly ten years of claims and litigation management experience.

First things first: I have significant and genuine respect for attorneys and other legal professionals. I don’t take this blog as an opportunity to bash lawyers, but to “[Chronicle] the high cost of our legal system.” And, as it turns out there is a lot of that to be had.

One story that recently caught my eye and has been covered in these pages of late is a Washington Supreme Court ruling that reversed an appeals court ruling in favor of a dentist’s insurer for refusing to defend him for a practical joke gone wrong. The court’s ruling was recently criticized by The Seattle Times here and the insured’s counsel responded via letter to the editor here (scroll down to fifth letter – “The justices get it”.)

Read On…

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Whatever happened to that $217 million verdict?

You may recall the questionable $217 million verdict issued against Florida doctors for allegedly misdiagnosing a stroke after a CT-scan was negative. (Also: Oct. 7.) The attorney, Steve Yerrid, got a lot of publicity from promising to donate the $100 million punitive damages award to charity.

In March, we reported that the case settled, and promised a follow-up from the public-reporting system.

Read On…

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Defensive EMS practice

From the comments to this July 30 post at KevinMD about defensive medicine:

“Spreading to paramedics?”

Doc, it’s been prevalent in EMS for years. Virtually every EMS system in this country is designed specifically to serve less than 1% of its run volume – cardiac arrest patients.

We continue to spinally immobilize (now there’s a misnomer!) trauma patients, despite the evidence that clinical exam criteria can safely clear these patients and other evidence that questions whether pre-hospital spinal immobilization is even beneficial.

We fly people on helicopters based on nothing more than mechanism of injury, despite the mounting number of fatal crashes and the fact that 95% of those patients flown to the ED were discharged home directly from the ED. That’s right – we flew them on a $10,000 flight, and they weren’t even sick enough to be admitted.

Prehospital care is a bastion of defensive medicine. Has been for some time.

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“Suit Charges ‘Inhumane’ Questions at Deposition Caused Emotional Distress”

A medical-malpractice plaintiffs’ lawyer has brought a second suit, this one against the attorney for the defendant, arguing that the questions asked at a deposition inflicted emotional distress on his client. (Lisa Brennan, NJ Law Journal, Jul. 25 (via Scheuerman)).

This suit may well fall into the “Be careful what you ask for” category. If a defense attorney can be liable for exploring whether a plaintiff has responsibility for a decedent’s fatal head injury, why can’t a defendant doctor sue a plaintiffs’ attorney when accused of the same thing? (Note the plaintiffs’-attorney commenter who told one doctor to suck it up.) Odds are the whole matter gets dismissed on grounds of the litigation privilege, the idea that immunity is appropriate lest attorneys be deterred from litigating on behalf of their clients. One only wishes that the same principle would be applied to other situations, such as doctors being deterred from practicing medicine. Earlier: POL Jun. 20, 2006.

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The Wall Street Journal on “Do it Yourself Tort Reform”

In today’s Journal, an article by the people behind Medical Justice:

In 2002, we launched Medical Justice, a membership-based organization designed to complement tort reform and to head off frivolous lawsuits. ….

Our service has two principal components. First, we look at the quality of so-called expert-witness testimony. Behind every frivolous lawsuit there is an “expert” — usually a physician skilled in testifying before juries and often compensated to the tune of $10,000 dollars a day. Put bluntly, many of these “experts” are frauds, as this newspaper has repeatedly shown in cases regarding asbestosis and silicosis claims….

Medical Justice’s second tool is a patient-physician contract. That contract states that in a legitimate dispute, both sides will utilize only those experts who belong to such societies and who strictly follow their code of ethics. This limits the list to reputable and accountable physician experts, thus precluding the use of hired guns or medical “witnesses having other rational explanations” — better known by their acronym.

Does it work? Yes. After five years of collecting data, we know that Medical Justice plan members are sued at a rate of under just 2% a year. The average doctor is sued at a rate of 8%-12% per year. And the company is top heavy with physicians in “high-risk” specialties.
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Private law saves the day? Perhaps — but how long before the plaintiffs’ bar fights back with legislation?

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“Relapses Seen As Patients Abandon Treatment in Response to Negative Law Firm Ads”

A study commissioned by the National Council for Community Behavioral Healthcare and Eli Lilly and Company found that “even when patients were responding well to their prescribed antipsychotic treatment, many requested a medication change because these drugs are featured in law firm advertisements. Other patients stopped taking their medication, often without telling their psychiatrist, for the same reason.”

“Many of our patients already struggle with accepting their illness and staying on their prescribed treatment, and now they are experiencing new levels of fear due to the increasing incidence of these jarring advertisements,” said Dr. Ralph Aquila, assistant clinical professor of psychiatry, Columbia College of Physicians and Surgeons; director, residential community services, St Luke’s-Roosevelt Hospital Center, New York, NY. “This irresponsible advertising is hindering the progress of therapy for many of these patients and disrupting the important relationship between them and their healthcare providers. Plaintiffs attorneys need to consider the consequences that these advertisements may have on patients.”

Twenty-six percent of relapses led to suicide attempts. “Thirty-one percent [of psychiatrists] found patient resistance to starting medication due to concerns generated by law firm advertisements challenging, while 28% are concerned about malpractice risk if they prescribe a drug that’s the focus of product liability litigation.” (Cross-posted from Point of Law)

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$30M verdict against doctor for saving patient’s life?

Sally Lucia was suffering from a massive infection, apparently from an earlier tummy-tuck surgery twenty days earlier. (She settled with the plastic surgeon before trial.) Lucia went to the emergency room already in septic shock, with her fingers and feet turning blue. On-call surgeon Dr. George Haedicke left his children, and arrived at the hospital to find Lucia’s infection so far advanced that her organs were shutting down; he cared for her for four and a half hours, and other doctors removed a grapefruit-sized infection from Lucia’s abdomen before transferring her to another hospital in critical condition. By this time, the tissue below her calves and in her fingers had died, and she needed amputations. A jury found Haedicke 20% responsible and his hospital 40% responsible, awarding $30 million in damages. But the jury found that Haedicke did not act with reckless disregard, immunizing him under Florida law protecting emergency doctors. Lucia, subject to appeal, will have to make do with $12 million from the hospital plus her earlier settlement. (Thomas W. Krause, “Patient Wins $30 Million”, Tampa Tribune, May 25; Justin George and Colleen Jenkins, “Amputee Wins $30 Million”, St. Petersburg Times, May 26; Colleen Jenkins, “Jurors hear from both sides in amputee trial”, St. Petersburg Times, May 10).

Press coverage is scanty on the critical question, but the Tampa Tribune Haedicke ordered “medicine that focused blood flow to the inner part of her body to protect her vital organs.” As a result, Lucia lost her legs and most of her hands, but her life was saved. Lucia’s attorney, Steve Yerrid (Oct. 5-6; Jan. 27), claims that Haedicke should have administered fluids before the medicine; Haedicke says that Lucia would have died if he had administered fluids first because her kidneys would have failed.

Now, I don’t know whether Haedicke or Yerrid is correct (though I have my suspicions). I’d be curious to hear what the medical bloggers think. But I don’t see how this should be a jury question. Either it was a reasonable exercise of medical judgment to try to save Lucia’s life without administering fluids first or it wasn’t, with the question of liability being a natural result of that answer—one of the two experts in the case is lying, and the expert and attorney who propounded that testimony did so without consequence.

Haedicke has left Tampa to practice in Tallahassee.

(Update: there has been some med-blogging over the Memorial Day weekend. Clinical Cases; Kevin MD.)

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