Marcia Coyle’s May 3 piece extensively quotes me and the Liability Outlook I wrote with Martin Grace of RiskProf, the good parts of which can be attributed to him.
Sen. Ensign’s S. 22 itself is finally available on THOMAS.
(cross-posted at Point of Law)
I’m moderating a panel with this title Monday afternoon at 3 at AEI.
The U.S. Senate has announced that it will be debating new legislation to reform America’s medical malpractice law in early May. Is the Senate likely to pass useful reforms? What types of reform should they consider? What is the appropriate role of the federal government in addressing the issue and what are the potential conflicts between the federal government and the states?
At this AEI event, a distinguished group of panelists will discuss the questions surrounding federal medical malpractice reform. The panel will include Michael S. Greve, the John G. Searle Scholar at AEI and director of the institute’s Federalism Project; George L. Priest, the John M. Olin Professor of Law and Economics at Yale Law School; and Dr. Stuart Weinstein, the current chairman of Doctors for Medical Liability Reform and the Ignacio V. Ponseti Professor of Orthopaedic Surgery at the University of Iowa.
Admission is free.
Stacy Dow, of Perth, Scotland, is suing a hospital over the birth of her healthy daughter Jayde. Dow had been given an abortion at her request but unbeknownst to both her and the doctors she had been pregnant with twins, one of whom remained unharmed after the procedure. Dow told a court she suffered physical pain, distress and anxiety from the resulting pregnancy and Caesarean delivery; she also wants money for the cost of raising the girl to adulthood. (Sarah Womack, “Mother sues for birth of ‘aborted’ twin”, Telegraph, Mar. 21)(via KevinMD). The New York Times Magazine caused a stir last month with an article about a family that sued doctors over failure to recommend amniocentesis whose results would have led them to decide to abort their handicapped child (Elizabeth Weil, “A Wrongful Birth?”, Mar. 12). Ann Althouse notes an AP story reporting that there are waiting lists of parents interested in adopting Down’s Syndrome children (Mar. 10). And in the Dec. 2004 Journal of Legal Education, Gonzaga lawprof David K. DeWolf relates an extraordinary story about what happened one year when he assigned his students the wrongful-birth/wrongful-life case of Harbeson v. Parke-Davis, decided by the Washington Supreme Court in 1983 (via Childs). More on wrongful-birth suits: Mar. 4, etc.
I’ve long said that attorneys upset that their profession is held up to ridicule would have much less of a problem if attorneys were more concerned about the behavior that led to the ridicule than about the ridicule itself. A young attorney guest-anony-blogging on Evan Schaeffer’s blog provides a sterling example of such misdirected outrage, in this case, at a recent Institute for Legal Reform advertising campaign. Bonus sophistry: the author defines “frivolous lawsuit” to exclude the vast majority of problematic lawsuits that reformers are complaining about, and then happily concludes that there isn’t a problem with lawsuit abuse because there are already mechanisms for dealing with the narrowly circumscribed category of suits.
Bonus made-up medical-malpractice statistic unburdened by real data: “In states where the [medical] profession self-polices to a stricter degree, malpractice claims are far less frequent.” There’s no evidence that this is true; as Martin Grace noted a year ago, malpractice litigation is sufficiently random that previous claim history does little to predict future claim history. See also POL Jan. 6, 2005.
(Of course, if lawyers really believed that the problem with malpractice insurance rates was that the doctors weren’t self-policing, there is an easy solution that would end high insurance rates, make lawyers a huge profit, and end any pressure for liability reform. The only reason we don’t see the solution is because the lawyers know better than to put their money where their mouth is.)
GruntDoc opens his mail to find one (Apr. 3).
Dr. Hazel I. Holst contends that attorney Harry J. Oxman named her as a defendant in a lawsuit brought by Roderick T. Powell arising from a nasal surgery performed in 1970 even though — kind of a big gap in the case — “there was absolutely no record of Dr. Holst ever treating Mr. Powell”. So she sued Oxman for various counts including abuse of process, extortion and racketeering. Now U.S. District Judge R. Barclay Surrick of the Eastern District of Pennsylvania has dismissed her complaint, ruling that 1) Holst could not prove that the case eventuated in a verdict or dismissal in her favor — a prerequisite for an abuse of process claim — because the case had apparently been diverted to alternative dispute resolution and resolved there without a “verdict”; 2) she could not prove racketeering because she made no showing that the lawyer followed a pattern or practice of filing cases of this sort, and — this is my favorite — 3)
that Holst had also failed to allege a valid claim of abuse of process because her extortion claim was limited to an allegation that Oxman had initiated the suit in the hopes of inducing settlement discussions [he had in fact demanded $200,000, per her account].
“This tort requires a ‘perversion of legal process after it has begun in order to achieve a result for which the process was not intended….” [the judge wrote]
(emphasis added). Should we infer that enabling $200,000 demands against doctors under these circumstances is the sort of purpose for which the process was intended? (Shannon P. Duffy, “RICO Suit Against Lawyer Dismissed due to Lack of ‘Enterprise'”, Legal Intelligencer, Mar. 23).
Maybe it’d be a good idea to offer patients that choice — but as one doctor explains at Kevin Pho’s, our presently constituted legal system wouldn’t stand for it (Mar. 5).
John Goodman, of the National Center for Policy Analysis, comments on a new study published in the New England Journal of Medicine: “Who is at Greatest Risk for Receiving Poor-quality Health Care?” Contrary to many previous studies, the NEJM study found that, in Goodman’s words:
– Among people who seek care (actually see a doctor), there is virtually no difference in the quality of care received by the insured and uninsured.
– There is also very little difference in the care provided by different types of insurance – Medicaid, managed care, fee-for-service and so forth.
The study is consistent with Dallas-area data reported by Goodman in his book Lives at Risk. Goodman summarizes the implications of the NEJM study:
The entire Medicaid program (at a cost of $1,000 per person for every man, woman and child in the country and a huge crowd out of private insurance) is predicated on the conventional wisdom that being insured matters. Now we know that what really matters is seeing a doctor. Two deterrents are rationing by waiting and physician fees. Both hurdles could be overcome with funded health savings accounts.
Another conventional wisdom is that the uninsured need sky-is-the-limit coverage just like the United Auto Workers. But since the low-income uninsured have few assets to protect, why do people with modest means need such expensive coverage? They don’t. A scaled down plan could give them ample choice of doctors and allow entry into the system for much lower premiums.
That”s the polling question of the day in Canada, on morning television. The story involves an elderly woman in Nova Scotia who suffers from multiple sclerosis and cannot walk. She was receiving health assistance from employees of Northwood Home Care. One morning, the Northwood sent an employee who had never been to the home before. In the home, the worker saw an unloaded hunting rifle, with the safety on, and a trigger lock.
The worker immediately fled the home in fear, because the locked, unloaded rifle was not in a gun cabinet. The elderly woman’s husband is a hunter, whose gun is lawfully registered, but he had forgotten to return the locked, unloaded gun to his gun cabinet.
Northwood Home Care refuses to send employees back to the home. According to a Canadian Press Association report, “The agency said its workers fear for their safety because of the hunting rifles.” (“Rifle kills home care,” Halifax Chronicle Herald, March 21, 2006.)
The health care workers themselves would seem to be in need of mental health treatment. The Northwoods workers plainly suffer from a serious case of hoplophobia. (From the Greek word “hoplo”, meaning “weapon.”)
Just as many normal people dislike spiders, many other normal people dislike guns. A few mentally ill people have such debilitaing fear of spiders (aracnophobia) that their fear impedes their functioning in their daily lives. Similarly, hoplophobes suffer from such extreme and irrational fears of guns that their daily functioning is impaired. A health care worker who refuses to provide health care would obviously be suffering from impairment of her normal daily functioning.
I hope that the publicity surrounding the incident persuades Northwood Home Care (Halifax, N.S.) to resume providing health care to the elderly woman, and also encourages Northwood to seek mental health treatment for the hoplophobics among its employees.
“Dozens of federally insured medical providers have been blocked from helping the Gulf Coast recover from Hurricane Katrina because their medical liability protection doesn’t apply outside their own states.” (“Law keeps federally insured doctors on sidelines in disasters”, AP/Biloxi Sun-Herald, Feb. 9). More on Katrina medical volunteers: Sept. 19, Sept. 6, Sept. 2, Aug. 31.