Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘medical’

From the comments: a chill on safety discussions

While the comments action has been lively elsewhere on this site, I noticed a comment that Jim Collins made on Ted’s post “Damned if you do, damned if you don’t files: Putnam Hospital” which I thought deserved its own freestanding entry:

The medical profession isn’t the only place where this happens. I used to be an aircraft mechanic for one of the major airlines, several years ago. Twice a month, after finishing our shift, we would go to a breakfast meeting. This meeting was attended by all of the mechanics from all of the airlines at that airport who worked the same shift. Several people from the airport and the FAA also attended. The purpose of this meeting was to share information on maintenance and airport safety issues. The FAA rep always took notes, compiled them from all of the shifts and a couple days later a copy was in your mailbox. I know of several problems and possible accidents that were prevented because of the information shared at these meetings. These meetings were suddenly stopped after company management found out that trial lawyers could obtain the minutes of them, from the FAA, through the Freedom of Information Act and use them against the airline in court.

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Damned if you do, damned if you don’t files: Putnam Hospital

Osteopath John King (who now calls himself “Christopher Wallace Martin” in his Alabama practice after surrendering his West Virginia and Texas medical licenses) had a poor record in numerous previous jobs in numerous states, but West Virginia’s Putnam County Hospital, the only acute-care center in the county, wasn’t able to find that out because the former employers were afraid of being sued. King lasted a few months at Putnam before he was dismissed for incompetence after an investigation, and King responded by suing Putnam and the independent expert who testified against him at a private peer review (as well as the newspaper that reported on his problems). Meanwhile, trial lawyers engaged in a feeding frenzy, filing dozens of lawsuits for tens of millions of dollars against the deep pocket (and some against each other), creating enough adverse publicity that Putnam lost nearly half of its business, and was on the verge of shutting down tomorrow before a last-minute deal to save the hospital was negotiated. Martha Montelongo has an overview in the August 17 Human Events Online. (Lawrence Messina, AP/Charleston Daily Mail, Aug. 28; Chris Dickerson, “Druckman sues former clients over work on King cases”, West Virginia Record, Aug. 8; Lawrence Messina, “W. Va. Hospital Says Lawsuits Drive Conversion to Urgent Care Center”, AP/insurance Journal, Aug. 7; Chris Dickerson, “Putnam General blames impending closure on trial lawyers”, West Virginia Record, Aug. 1).

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When obtaining medico-legal diagnoses…

…do try to obtain one from a doctor who exists, rather than from one who doesn’t. Former railway worker Rodney Chambers, suing CSX Transportation on a claim of asbestosis, claimed to have been examined by a certain Dr. Oscar Frye on May 14, 2005 in support of his claim. Lawyers for CSX attempted to trace the doctor and found that the phone number Chambers had given for him belonged to someone else, state boards could find no record of ever licensing a doctor by that name, and the street address Chambers gave for the doctor in Huntington, West Virginia wasn’t a real street address. A further problem: the form Chambers submitted to attest to his asbestosis diagnosis “was identical to several other medical questionnaires received from doctors around the country.” Now the CSX lawyers would like to probe whether there is a wider pattern to be found among other asbestos claimants represented by Chambers’ lawyers. (Beth Gorczyca, “Claimant’s Diagnosis Challenged”, West Virginia State Journal, Jul. 27).

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Update: rude doctor won’t be punished, plans suit

Dr. Terry Bennett of New Hampshire, last seen in this space Aug. 25, 2005 facing disciplinary action from his state medical board for allegedly saying rude and insensitive things to a patient, has won a ruling from a judge ordering the board to stop those proceedings. The New Hampshire attorney general’s office represented the board before the court. Dr. Bennett says he won’t let the matter drop and plans to sue all concerned — not a surprise, somehow. (David Tirrell-Wysocki, “Court Says Stop Case Against Rude Doctor”, AP/RedOrbit, Jul. 7). GruntDoc comments (Jul. 11) and a website defending Dr. Bennett is here.

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Ted Frank vs. Peter Nordberg on med-mal

Over at Point of Law, there’s a new Featured Discussion on medical malpractice: our own Ted Frank expands on his theory that it might be a good idea for doctors to benefit from something akin to the “business judgment rule”, by which courts refrain from second-guessing many decisions of corporate directors and officers in shareholder litigation. Ably representing the opposite point of view is Peter Nordberg, whose Daubert on the Web and Blog 702 cover scientific evidence issues in the courts with unrivaled depth.

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Naming peripheral medical defendants

In the comments section at Sebastian Holsclaw’s, following a long discussion of the recent Mello-Studdert study on medical malpractice, talk turns to the practice of naming every doctor in the vicinity as a defendant when filing a medical liability claim. A couple of trial lawyer advocates defend that unsavory practice, and Holsclaw responds (via Rovito):

The problem is that extraneous defendants are often not dropped quickly. In many complex cases you can’t possibly get through the discovery phases without plunking down huge amounts of money. Maybe I’ve just been remarkably unlucky, but when I’ve worked on the defense side the vast majority of cases involved defending people who were just tack-on defendants. In all of these cases $30-60,000 (in fees) was spent before the defendants could get out of the case. Often an additional sum (usually in the $5-10,000 range) was paid to stop the bleeding even though everyone (including/especially the plaintiff’s attorney) that the defendant would never be found liable. One plaintiff’s attorney was well known to push for largish settlements from innocent parties — if you refused he would drag you until the day of trial (throwing up just enough smoke to avoid summary judgment) and then drop you without comment on the morning of the trial (after you had incurred all the expense of expert retention, expert testing and all of the trial preparation). It is the kind of thing that gives lawyers a bad name, but it happens in every city.

(cross-posted from Point of Law).

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“Erin Brockovich Takes Role as Plaintiff in Medicare Suits”

For those who never expected to see the words “glamourpuss” and “Medicare” in the same sentence: “The onetime legal assistant, whose environmental crusade against a utility company inspired a hit movie starring Julia Roberts, has lent her name as plaintiff in lawsuits against several California hospitals and convalescent homes.” Two law firms, including Wilkes & McHugh, have engaged Brockovich as the public face of bounty-hunting “whistleblower” suits pursuing the adventuresome theory that hospitals defraud the government by accepting Medicare reimbursement for further medical care occasioned by their own earlier errors, even when no legal process has yet determined the earlier medical decisions to have been erroneous. The “lawsuits do not involve specific allegations of wrongdoing “. Ms. Brockovich is managed by the William Morris talent agency. (Daniel Yi, Los Angeles Times, Jun. 7). For much more on her activities, follow links from Nov. 3, 2005. Update Nov. 18: federal judge in San Diego tosses two suits.

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“Attorneys Gear Up for Suits Over ‘Virtual Medicine'”

“Attorneys warn that virtual medicine — which has popped up in hospitals and clinics in more than a dozen states in the last two years — could open the floodgates to malpractice claims, privacy disputes and licensure problems.” (Tresa Baldas, National Law Journal, Jun. 9). Reader James Ingram writes:

This is infuriating. One of the understood failings of the U.S. health care system is the poor monitoring of patients with chronic conditions such as asthma, hypertension, diabetes and the resulting poor compliance with proven treatment regimes. Virtual medicine is a very promising solution to this problem, enabling patient and doctor to consult briefly and frequently without the inconvenience (to the patient) of making an office visit. In a five or ten minute web conference patient and doctor can discuss topics such as blood pressure or blood sugar readings, compliance with medication regimes, diet and exercise, symptoms and side effects experienced etc. without either having to leave home or office. Do we think we will get better results with the present system — where the patient must take time off from work, drive to the doctor’s office, wait and wait some more — and therefore doesn’t bother?

And that’s not even to mention the opportunities to reach patients who have difficulty making it to their doctor’s office because of age or disability or the opportunities for patients in small towns and rural areas to consult specialists in distant cities.

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“10 years in legal hell”

The tale of Dr. Lenard Rutkowski: plaintiff John Murphy was caught on the stand faking his injuries, but the jury was offended by the violation of privacy from the defense’s secret videotaping of the plaintiff lifting heavy file cabinets, and awarded $5.6 million in damages for a medical error, even though a second surgery didn’t fix the problem for which he blamed the first doctor. Murphy eventually settled for $3 million, and he and his lawyer suffer no consequence for his exaggerations. Illinois, however, lost a neurosurgeon; Rutkowski’s practice was disrupted for years, and he eventually found it was cheaper to practice in a state where insurance rates were nearly 80% lower. (Berkeley Rice, Medical Economics, Jun. 2) (via Kevin MD).

The fact that Rutkowski sued his insurance company for the difference between his policy limits and the verdict shows why the ability of plaintiffs to get jackpot-sized damages on noneconomic claims has an effect on insurers and insurance prices even beyond insurance policy limits.

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