Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘medical’

Liveblogging a malpractice trial

We’ve pointed out doctor-bloggers who have provided first person accounts of being sued for malpractice, but the last doctor on the list, the pseudonymously-named “Flea,” is taking it one step further: he’s blogging about his own trial as it happens. Today’s post is “Flea on Trial – Day One: Jury Selection.” You can follow the whole series here.

Meanwhile, New York Personal Injury Lawyer Eric Turkewitz comments, from a trial lawyer’s perspective, on some of the dangers of a doctor blogging about a case in near-real time. Our favorite tidbit is this:

His decision to walk this high-wire without a net brings us to a third issue: If plaintiff’s counsel finds out about the blog, should it be used at trial? A lawyer’s gut reaction may be yes, in order to claim to the jury that what they are seeing is a well-rehearsed act.

But if the risk is that the insurance carrier uses it as an excuse to disclaim on a plaintiff’s verdict, it may be entirely counterproductive. In this sense, Flea shares a common goal with his nemesis: They both want the insurance company standing there in case of a plaintiff’s verdict.

Well, sure — it is about the money, after all.

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Oz: Failed suicide try, sues health service

“A man who fell from a tree after an aborted suicide bid is suing a Sydney health service, claiming not enough was done to treat his depression ahead of the accident.” Timothy Walker decided to kill himself 11 days after his discharge from a psychiatric facility, but instead was left a quadriplegic. He “is suing the Wentworth Area Health Service for negligence, claiming not enough was done to care for him” and that he should have been given medication. (Lisa Allan and Kim Arlington, “Man sues over aborted suicide tree fall”, AAP/The Australian, Apr. 16)(via LegalJuice). Update Jun. 6: judge rejects case.

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Tierney, blogosphere on Dr. William Hurwitz verdict

John Tierney does some good reporting on the compromise federal jury verdict that criminally convicted William Hurwitz on sixteen counts of drug-dealing: “Lapses in medical judgment – or even just differences in medical judgment – have been criminalized. A doctor can be suddenly redefined as a non-doctor. All it takes is a second opinion from a jury.” Also: Kirkendall, Sullum, Kevin MD, Szalavitz, Balko, Satel (2004), Cato (2004), Hurwitz web site. Related on Overlawyered: Jan. 19, 2006, Jun. 15-17, 2001.

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Walk away

Yesterday’s Daily Business Review brought us the story of lawyers running wild in worker’s compensation cases. Today, it provides another outrageous story of legal abuses, in a $3 million medical malpractice lawsuit:

Miami-Dade Circuit Judge Gisela Cardonne Ely was shocked. She had just watched a videotape of a medical malpractice plaintiff, who claimed in 2004 that she was permanently paralyzed, walking down the street with the use of a cane in 2005.

“This is the worst case of misrepresentation, of outright fraud, that I have ever had in 22 years,” Cardonne Ely said during a March 15 hearing in the case of Wanda Davis-Johnson. “I’m telling you, Mrs. Davis, I’m looking at you in the eyes. I am dismissing your case. I have seen enough. … I’m making a specific finding that there was a scheme to defraud the court.”

The woman’s attorney, of course, claims to be just as surprised as the judge. Meanwhile, the vindicated defendant hospital “will be seeking to recover $225,000 in legal costs from Davis-Johnson,” but one suspects that the odds of ever collecting that are somewhere between none and less than none.

What’s unusual about this story is that the hospital’s attorneys obtained this damning evidence in April 2005, but did not reveal it until almost two years later, in January 2007. According to the hospital’s attorneys, they were afraid that the videotape wouldn’t be sufficient to prove fraud on the part of the plaintiff. (What does it say about the system if a videotape showing an allegedly paralyzed person walking is insufficient to prove fraud?)

The plaintiff’s lawyers complained about the delay:

“If they had shown that videotape to us, we wouldn’t have spent another 21 months of litigation time, cost, stress to the doctors involved and waste of the court’s time,” Lawlor said. “I don’t have any clue what they were thinking or why anybody would go forward other than to try to set a trap for my law firm.”

But despite this, when confronted with the evidence, Lawlor didn’t exactly roll over and admit error:

But Lawlor and his law firm did not withdraw from the case or ask that the case be dismissed. Lawlor unsuccessfully argued against the defense motion to dismiss based on fraud. He also filed errata sheets to Davis-Johnson’s two depositions seeking to change her testimony.

The only thing he did do was drop his motion for punitive damages based on the allegedly “egregious” actions of the hospital.

Family reunions ought to be interesting, anyway; according to the story, the hospital’s lawyers got confirmation of the fraud when the plaintiff’s sister-in-law called up and told them.

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Doctors’ first-person accounts of litigation

Back in November we noted Sid Schwab’s account at SurgeonsBlog of being sued (first, second, third parts). A number of other medical blogs have also lately run first-person accounts of what it’s like to get dragged into a malpractice suit. Examples:

  • Charity Doc at Fingers and Tubes in Every Orifice, Nov. 15, Nov. 20: This is suit #9, but “the bare-boned fact of the matter is that each case is a new wound that tears at your heart, leave just as bad a scar on your psyche, while re-opening the gut wrenching emotions of the old ones. As your name is dragged through the mud over and over, you begin to re-question your dedication and love for medicine, just as you have during the previous times.” A few weeks back, by the way, we noted a priceless anecdote by Charity Doc about the time a personal injury lawyer came into his office as a patient unaware that he’d previously sued the doctor;

  • Musings of a Dinosaur, Nov. 20: among the few who can laugh at the experience;

  • Examining Room of Dr. Charles, Nov. 17: “The Trial Lawyers Association is changing its name to the American Association for Justice. George Orwell is smiling somewhere, the skies are getting clearer every day, and no child is being left behind. A doctor acquaintance of mine just got destroyed with a $20,000,000 jury award in a bogus malpractice case.”

  • Pediatrician “Flea”, Jun. 8, Jul. 12, Jul. 13, Oct. 22, and miscellaneous posts: two suits in all, “litany of abuse…heaped on me”, deposition stage fright.

P.S. Two more, from Scalpel or Sword, which however carries a disclaimer saying that its stories are fictionalized composites: Dec. 2 (shotgun filing; mom who kicked son out of house sues after his suicide), Dec. 4 (doc feels guilty over genuine error, but suit is later dropped).

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Officiously to keep alive

In West Palm Beach, Fla., a jury has held a nursing home liable for resuscitating a 92-year-old Alzheimer’s patient who had signed an advance directive indicating that she did not want to be kept alive by artificial means. And although an obstacle to even an otherwise well-founded “wrongful resuscitation” case might be the question of damages, the jury in this case awarded the estate of Madeline Neumann $150,000. (Rebecca Riddick, “Fla. Nursing Home Faulted for Ignoring End-of-Life Wishes”, Daily Business Review, Mar. 20; CourtTV coverage). An attorney for the physician defendant (who, unlike the nursing home, was found not liable in the case) said that despite do-not-resuscitate orders, medical personnel often make a judgment that a patient could potentially benefit from rescue efforts, and that had they failed to make such an effort in Mrs. Neumann’s case they might have faced legal risk: “If you call 911, you get sued,” he says. “If you don’t call, you get sued.” (Laura Parker, “In a crisis, do-not-revive requests don’t always work”, USA Today, Dec. 19, 2006).

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My bad

One of the common minor medical malpractice “tort reforms” that have been proposed in recent years is the “apology law.” That’s the law which permits doctors to apologize to patients for bad outcomes without having those apologies thrown back in their face at trial. (Reasonable, if relatively trivial.)Rhode Island is now looking at joining the 15 or so states that have enacted such apology laws, and over at the New York Personal Injury Law Blog and crossposted at Bizarro-Overlawyered, plaintiff’s attorney Eric Turkewitz endorses the bill, saying:

I’ve always believed, based on the manner in which calls come in to my office, that poor communication (bad bedside manner) is the primary reason patients call attorneys. They are angry, or confused, or both.

Now, the practical implication of that for doctors is clear: doctors should apologize. But he doesn’t seem to reflect on the implication of that for lawyers. If med-mal cases are brought based on anger over bad bedside manner rather than wrongdoing, then our med-mal system will punish bad bedside manner rather than wrongdoing.

In any case, Turkewitz mocks an insurance company which advises doctors who apologize — even if those apologies are protected — to apologize for the outcome but not to admit error, claiming that this sensible advice “encourages more of the same thing that has gotten docs into trouble in the past.” But Turkewitz doesn’t mention that even this extremely modest reform is too much for some trial lawyers. As quoted in the same article he cites:

Providence lawyer Steven Minicucci, who handles malpractice suits, said displays of compassion are rarely useful in building such cases. But an apology and an admission of error could be key evidence. He opposes the Rhode Island legislation.

“I like to call it the `I’m-sorry-I-killed-your-mother'” bill, Minicucci said. “If a doctor comes out and says something like that, he shouldn’t be able to immunize himself against statements like that by couching it in an apology.”

You’ve got to love that “rarely,” in “displays of compassion are rarely useful in building such cases.” Rarely, but hey, sometimes a trial lawyer can turn compassion against the doctor. And we wouldn’t want to stop that.

Speaking of apologizing (and updating an earlier story), I’m pretty sure that Mike Nifong’s apology to the Duke lacrosse players (“To the extent that I made judgments that ultimately proved to be incorrect, I apologize to the three students that were wrongly accused.”) is not going to cut it.

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Mark A. McLeod v. Mt. Sinai Medical Center briefing

We’ve previously reported on this case and the underlying Hollins v. Jordan $30 million trial verdict (in 2004 on Nov. 20, Oct. 11, and Aug. 31) blaming an obstetrician and hospital for microcephaly in a four-pound, five-ounce birth. The case is scheduled to be heard by the Ohio Supreme Court May 23, and the more recent briefing is on line; the Dr. Jordan merits brief is especially interesting. Of note, and not previously mentioned:

  • Plaintiffs attorney Geoffrey Fieger has already twice asked the entire Ohio Supreme Court to recuse itself.

  • Plaintiffs are seeking $50 million in prejudgment interest.

  • The claim that the caesarean was delayed is entirely bogus; plaintiffs’ experts deliberately confused the “emergency” (i.e., non-scheduled) caesarean with a “crash” caesarean.

  • Plaintiffs sandbagged the damages claim by claiming before trial they would only seek $4 million, and then changing the estimates on the stand by making hypothetical assumptions not supported by any expert evidence.

  • Fieger’s opening argument regularly made references to evidence excluded in limine.

  • Fieger had an anesthesiologist opine on neurological matters.

  • Fieger’s prejudicial conduct at trial, including race-, religion-, and class-baiting, has to be read to be believed. How there wasn’t a mistrial or a revocation of pro hac vice status is jaw-dropping.

  • Counsel of record for two of the co-defendants is Drug and Device Law co-blogger Mark Herrmann.

Again, the lengthy dissent in the appellate court is worth reading.

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More on infant mortality stats

Linda Gorman of the Independence Institute writes in an email:

I was finally catching up on my reading on Overlawyered.com and came across your Feb. 4 post on the possibility that Amber Taylor had a point when she noted that the IRS might give U.S. parents an incentive to count have a dead baby classified as a live birth.

This assumes that parents can affect the classification on the death certificate. U.S. parents do not typically fill out death certificates. She needs to provide evidence that parents affect classifications in meaningful numbers in the United States before anyone should take this speculation seriously.

The evidence that birthweight registration varies from country to country rests on statistical comparisons of the number of very low birthweight infants recorded. An early paper, which is very short, is here (PDF). These studies have been followed by a number of papers on birth registration in various European countries. At this point, the evidence suggests that what are counted as live births in the U.S. are often considered fetal deaths in other countries. They are thus not included in infant mortality statistics, and OECD has (finally) included a note to this effect in its international comparisons of infant mortality. It wouldn’t be a public policy issue if those who wanted to reduce the amount of privately provided medical care in the United States hadn’t used it as an indicator of the poor performance of the U.S. health care system. If you’d like more references, I’d be happy to provide them.

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“Searching for a snowman in a blizzard”

The number one category of malpractice lawsuits these days? Suits against radiologists for missing signs of breast cancer on mammograms. “Meanwhile, the number of certified mammography facilities is declining. There were about 11 percent fewer places to get mammograms in the United States in 2006 than there were six years earlier, according to the government. That’s 1,101 fewer mammography centers across the country.” (Diane Cochran, “Fear of lawsuits means fewer radiologists read mammograms”, Billings Gazette, Mar. 18)(via KevinMD). More: Nov. 2, 2000, Sept. 24, 2002, May 12, 2003, Oct. 3, 2003, Jun. 14, 2004, Jul. 10, 2005, Dec. 18, 2006.

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