We’ve posted four more letters from readers on our letters page. Topics this time include cameras in the jury room; the controversy over whether it is proper for doctors to consider turning away trial lawyers as patients; and the case where a woman was taken into custody on a mistaken warrant arising from a food infraction at Yellowstone Park.
Posts Tagged ‘medical’
A view from the plaintiff’s bar
Plaintiff’s attorney Bruce Fagel, MD, JD, a malpractice specialist in Los Angeles, spoke with Medical Economics for a cover-story interview in their last-but-one issue (“How I pick the doctors I’ll sue”, Aug. 20). The whole thing is worth a look; here are two snippets.
On how juries decide:
When doctors are cross-examined in a deposition or during trial, they often try to avoid responsibility for their actions. In fact, some defense attorneys encourage this attitude, instructing their clients not to answer even reasonable questions. As a result, jurors may ultimately be convinced of a doctor’s negligence not by the nature of his actions in the case, but by what looks like intentional evasion of responsibility when explaining why something went wrong.
The real value of our jury system in medical malpractice cases has little to do with the jurors’ ability to understand the medical facts and issues in the case. In fact, it’s widely accepted that they don’t understand much of the clinical information presented to them. What they do understand is when a witness is telling the truth. Doctors would do well to remember that.
And on tort reform:
I don’t think the idea of a cap on noneconomic damages is unreasonable, since it’s so difficult to put a dollar value on pain and suffering. What’s unreasonable is the fact that MICRA [the California medical liability law] was passed in 1975, and the $250,000 limit wasn’t tied to inflation. As a result, each year plaintiffs here are really getting less money. Today that $250,000 is worth less than $75,000 in 1975 dollars. So it’s a real problem for plaintiffs with legitimate claims for pain and suffering.
Malpractice insurance: around the country
In West Virginia, insurer NCRIC was paying out $1.07 in claims for every $1 in premiums collected; it almost left the state until regulators allowed them to raise rates to make up the difference. Of course, some doctors can’t afford the new rates, and have had to stop practicing at hospitals and nursing homes that require insurance. ATLA once again blames the insurance companies for failing to invest premiums in such a way to pay the rising claims. The insurer’s problems were exacerbated when a D.C. jury levied a $18 million countersuit verdict against NCRIC when it tried to collect $3 million in unpaid premiums from the defunct Columbia Hospital for Women Medical Center. (Dina ElBoghdady, “D.C. Malpractice Insurer Feels Squeeze”, Washington Post, Sep. 6).
In Illinois, the political debate continues over the need for tort reform, as doctors continue to flee the state. Ed Murnane, of the Illinois Civil Justice League, notes that 40% of the doctors in St. Clair and Madison Counties have been named as defendants in lawsuits between 2000 and 2003; even though the overwhelming majority of plaintiffs collect nothing from such cases, the costs of defense are high. (Mark Samuels, “Group: Tort Reform Can Stop Malpractice Crisis”, The Southern, Sep. 3; Rob Stroud and Herb Meeker, “Illinois physicians say insurance rates are driving them out of state”, Journal Gazette/Times-Courier, Sep. 3).
An editorial signed by 25 Washington County, Maryland doctors protests the legislature’s failure to reform the medical malpractice system. (“Lawsuits will drive doctors away”, The Herald-Mail, Sep. 5).
In Nevada, the trial lawyers groups are trying to obstruct reform by putting forward faux reform measures on the initiative ballot that would wipe out the real reform measure, Question 3. For example, Question 5, proposes penalties for filing or defending “frivolous” lawsuits–but redefines “frivolous” to narrow the classification as to be meaningless. At the same time, it bars the legislature from ever implementing caps. An earlier attempt to stop Question 3 with a last-minute lawsuit failed. (Tanya Albert, “Nevada tort reform ballot fight now brewing”, American Medical News, Sep. 13; AP, Aug. 25; No on 4 and 5 website).
Washington state doctors are traditionally politics-free, but the medical malpractice crisis could change that and force them to lobby for the reform Initiative 330. “‘Physicians in the main have an aversion to mixing politics with their professional medical practice,’ said Dr. Kevin Ware, president of the county medical society. ‘But under the current circumstances, the need for malpractice insurance reform is so desperate that physicians are having to look seriously at departing from that custom.'” (Sharon Salyer, “Doctors may lift ban on politics”, The Herald, Sep. 6; Wallace blog, Aug. 31).
Wyoming has lost 10 percent of its doctors in the last eighteen months, and the state’s largest malpractice carrier will stop renewing policies October 1. A constitutional amendment is necessary for reform there. (Lee Lockhart, “Lawmaker predicts heated debate over damage caps”, Casper Star Tribune, Aug. 27).
Oz: mom’s car crash caused my cerebral palsy
From Australia, more evidence that the presence of liability insurance may tend to lead ineluctably to the alleged causation of cerebral palsy:
An Adelaide teenager suffering from cerebral palsy is suing his mother after she crashed into a tree when he was a foetus. Supreme Court documents claim Sylvia Neave, of Ferryden Park, was negligent and breached her duty of care as a mother to her unborn child.
Under law, Graham Neave, 16, has to sue his mother and [the state of South Australia’s] compulsory third party insurer, the Motor Accident Commission, in his bid to gain an estimated $3.5 million compensation.
The Queen Elizabeth Hospital also is part of his claim for allegedly failing to treat him “sufficiently early or at all” before his emergency delivery.
— “Boy sues mum in $3.5m bid”, The Advertiser/News.com.au, Aug. 22.
Blogs on Poliner
The medical blogs are naturally talking about the Poliner litigation, where a doctor who had privileges suspended for allegations of improper care sued everyone involved in the peer review decision and eventually got a jury verdict of $366 million (Aug. 30). Dr. Rangel (Sep. 1) takes an interesting and nuanced view based in part on personal experience with the plaintiff; db’s MedRants blog (Aug. 31) calls for a “barf bag”; Bard-Parker (Aug. 31) suggests that one solution may be more systematic use of outside review, but notes that fear of litigation may not make that reform feasible.
Commenters are focused mostly on the liability decision, but one thing that immediately strikes the eye is the complete divorce from reality of the damages figure of $366 million. Even if one assumes that Poliner’s career was completely ruined notwithstanding a different peer review’s exoneration and throws in a million dollars for psychic injury, the figure is off by at least a factor of ten; if one more realistically limits damages to the few months he was out of practice, at least a factor of 100; if one limits damages to the month between the initial suspension and the privileged decision of the peer review committee, even more. Usually the remedy for excessive damages is “remittitur,” a fancy Latin word for the process where the judge makes up his or her own damages figure and tells the plaintiff to agree to that reduced figure or a motion for a new trial will be granted. But if a jury’s damages determination was the irrational product of passion, why presume (and, often, essentially assume) that the liability decision was reasoned?
From the “damned if you do, damned if you don’t” files
In three separate cases in 1997, nurses at Presbyterian Hospital of Dallas’s cardiac catherterization lab expressed concerns about Dr. Lawrence R. Poliner’s care of patients. When the director of the lab, Dr. John Levin, alleged to the hospital’s chief of cardiology, Dr. John Harper, that Poliner had also recently performed an emergency angioplasty on the wrong artery, the chair of department of internal medicine, Dr. James Knochel, confronted Poliner, and told him to voluntarily stop performing cardiac catheterizations while his privileges were reviewed or face termination. A six-doctor peer review committee met the next month, decided that Dr. Poliner had given substandard care in 29 out of 44 cases, and voted unanimously to suspend Dr. Poliner’s privileges at the lab.
So far, so good, right? After all, we’re told by the plaintiffs’ bar that the medical malpractice crisis would go away magically if the medical profession would just police its own, and that’s exactly what happened here. Can you imagine what a trial lawyer would do with the peer review committee’s conclusions if the hospital did nothing and had been sued for Poliner’s work afterwards?
Dr. Poliner eventually got his privileges reinstated a few months later in a hearing held before a different peer review committee of doctors after a number of prominent cardiologists spoke on his behalf; another appellate committee at the hospital found no wrongdoing by the initial peer review committee, who Poliner accused of seeking to eliminate him as “competition.” Not satisfied with exoneration, Poliner sought retribution. He, with the help of medical malpractice attorney Charla Aldous, sued the hospital, Knochel, Harper, Levin, and the six doctors on the peer review committee for supposed antitrust and “consumer fraud” violations, breach of contract, defamation, interference with contractual relations, and intentional infliction of emotional distress. The antitrust and consumer fraud claims were thrown out (BNA, “Antitrust Claims Are Eliminated From Physician Suspension Case”, Antitrust & Trade Reg. Rep., Nov. 7). So were the claims against the six peer review committee doctors, who had immunity under Texas Peer Review Immunity Statutes, which the state trial lawyers’ association had fought hard against in the legislature.
But the case against the other three doctors and the hospital proceeded. A jury found in favor of Dr. Poliner’s conspiracy theory that competitive malice motivated the entire affair. The jury’s proposed payday for six months’ missed work by the 60-year-old? $366 million: “$141 million to be paid by Dr. Knochel, $32 million each from Dr. Harper and Dr. Levin and $161 million from Presbyterian.” The hospital announced that it would appeal: “From time to time, hospitals and members of the medical staff leadership must make decisions relating to patient care and safety, and these decisions sometimes affect an individual doctor’s privileges at that hospital.” (Terry Maxon, “Dallas doctor awarded $366 million in damages”, Dallas Morning News, Aug. 28).
Fresh archive page for medical posts
The “Bad Medicine” heading, which archives posts relating to medical liability, has grown so large as to be unwieldy for readers, so we’re opening up a “Bad Medicine II” heading for posts from here on. [Superseded]
A doctor’s question
On malpractice exposure, and reimbursement rates: “Why am I worth so little when I do my job right, and worth so much when I make a mistake?” (courtesy Cut to Cure, Aug. 25).
“Symbolism 1, Substance 0”
I’ve got an op-ed in this morning’s Wall Street Journal (Aug. 23)(reprinted at Manhattan Institute site) examining what I term the “surprisingly conciliatory” line the Kerry/Edwards campaign has taken in recent weeks on litigation reform, and analyzing (insofar as that’s possible, given the thus-far-sketchy details) the five-point plan the two offer for addressing the malpractice-suit crisis. For more, see my Aug. 9 post and links from there. Also check out this site’s omnibus pages on politics, which includes many recent posts on Kerry and Edwards, and on medical liability. (Yet more: Point of Law).
Batch of reader letters
Four more entries from our correspondence stack on our letters page. Topics include: why autopsies don’t figure more prominently in malpractice cases, whether the legal climate deserves all the blame for the shrinkage in Philadelphia obstetrics, what happens when you tell your homeowners’ insurance company that you run a controversial website, and another lawsuit challenging the 1998 tobacco settlement.