Many people volunteer for medical trials for the hope of a cure that they offer, no matter how remote. The disappointment they suffer when the experiment fails is understandable, but one group of volunteers is suing to keep a failed experiment going. Hope springs eternal. (More details at RangelMD)
Posts Tagged ‘medical’
Capped in Canada
Pain and suffering awards — not just in suits against doctors, but in suits generally — top out at $280,000 (U.S. $210,000) in our northern neighbor’s courtrooms. More details at Point of Law (Olson, Krauss, Krauss). Also discussed there this week: a new report on the incidence of medical errors (Krauss, Olson). And Jim Copland, the site’s managing editor, dares tort czar Fred Baron to substantiate his claim that drug, insurance and chemical companies “have spent over $200 million over the last five years in ad campaigns that make trial lawyers look like villains”.
Location, Location, Location
Opponents of medical malpractice tort reform often argue that malpractice premiums are on the rise because insurance companies made bad investments, not because of out-of-control jury awards. But, if that’s so, then why do premiums vary so widely by geography? Consider the rates in Cleveland, Ohio, a city that can lay claim to some of the most aggressive trial lawyers in the state, as well as some of the most generous juries:
A comparison of standard, non-discounted rates the American Physicians Assurance Corporation charges in Ohio, Illinois and Michigan shows doctors in Cuyahoga County paying the highest rates in almost every category, and nearly double the Columbus tariff.
For instance, neurosurgeons in Cuyahoga County paid $212,000 annually, while their colleagues in Columbus paid $118,000 in malpractice premiums. Doctors in the high-risk specialties also paid about $20,000 less in Chicago and Detroit than their counterparts in Cuyahoga County.
‘The fact is, a day doesn’t go by when a Northeast Ohio doctor doesn’t get sued for multimillions of dollars,’ says Myers.
A 1 in 1.09 quintillion chance
A North Carolina woman sued a hospital for failing to correctly diagnose her husband’s cancer. Except they did diagnose it correctly:
…Linda Brown alleged that Charlotte Regional contaminated tissue samples during a lung biopsy in 2000 which resulted in the wrong cancer diagnosis of small cell lung cancer. … Brown’s attorneys argued that due to hospital technicians not wearing gloves or due to unsanitary conditions, Gerald Brown’s tissue was contaminated with someone else’s DNA.
The defense argued that’s nearly impossible because someone would have had to actually have lung tissue containing the cancer cells on his fingertips while when he handled the sample.
The hospital’s attorneys argued during opening statements last week that the chances of Gerald Brown’s DNA being contaminated was 1 in 1.09 quintillion. In fact, the chances of that happening may be even greater since that one-in-a-quintillion person would have to be in Punta Gorda, inside Charlotte Regional, having a lung biopsy at the same time and have small cell lung cancer. But no one else in the hospital was undergoing a lung biopsy at the same time as Gerald Brown on March 22, 2000.
The jury ruled in favor of the hospital, but the case took four years and several hundreds of thousands of dollars to defend. That’s OK with Mrs. Brown, because now she knows “the truth.” Apparently, neither she nor her lawyers, thought of having an autopsy to discover the truth. But then, autopsies cost money, with nary a chance of making money. Not even a 1 in 1.09 quintillion chance. (More: letter to the editor Aug. 16).
Non-Partisan Report on Tort Reform
Point of Law points to the latest Congressional Budget Office report on tort reform, which concludes that non-economic damage caps do result in lower malpractice insurance premiums. They also decreased the practice of defensive medicine, at least when it comes to treating heart disease, without increasing mortality:
The authors found that the adoption of direct reforms led to a 6 percent drop in hospital expenditures for heart attack patients and a 9 percent decline for heart disease patients, with no significant change in mortality rates or cardiac complications.
They defined direct reforms as such measures as caps on punitive damages. Although it did take a few years to see the change in behavior and the reduction of malpractice insurance premiums, it appears from the report of this nonpartisan arm of the government, that tort reform works. Now can we give it a chance?
Suffer the Poor
The practice of obstetrics is not easy. Doctors who deliver babies face long, late hours, life-threaatening complications that can spring up in a split second without warning, and the constant threat of litigation for events beyond their control. Now, the malpractice crisis is making it even harder, with doctors in crisis states like Pennsylvania finding themselves in a manpower crunch thanks to the exodus of obstetricians from the state. Not only are doctors leaving, but hospitals are shutting down their obstetrics departments:
According to the 2003 American College of Obstetricians and Gynecologists Survey on Medical Liability, 12.5 percent of OB/GYNs in Pennsylvania have stopped practicing OB and 57.5 percent have made some change in their practice because of issues with affordability or availability of liability coverage, including relocating, retiring, dropping OB, reducing number of deliveries, reducing amount of high-risk OB care, or reducing gynecological surgical procedures.
Those statistics, however, do not come close to revealing the extent of the current problem of obstetrician supply in the five-county Philadelphia region, which lost 25 percent of its staffed OB beds between 1993 and 2003, according to Delaware Valley Healthcare Council President Andrew Wigglesworth. Within the past 18 to 24 months, he says, the region lost 10 hospital OB departments, including those at MCP, Methodist, Nazareth, Warminster, Mercy Fitzgerald, Episcopal and Elkins Park; while OB services were also lost from hospital closures including City Line, Sacred Heart in Norristown and Community Hospital in Chester.
That means longer hours and a greater proportion of riskier cases for the hospitals and doctors who remain. Which means they’re more prone to errors. It also means that they can no longer spread themselves as thinly as they once did. Hospitals that once staffed inner city public health clinics are can no longer spare the staff to do so, leaving the poor without easily accessible prenatal care. Remember that the next time you hear John Edwards say that he has spent his career helping the down and out.
One Man’s Not So Unusual Experience
One of the most frustrating aspects of the medical malpractice business from the physician’s perspective is the seeming carelessness with which malpractice attorneys launch suits. It usually works like this: Someone has a bad outcome, say, in the hospital. The attorney gets the medical record, but he doesn’t use it to determine who is at fault. He uses it to collect all the physician names within it, from the doctor who saw the patient in the ER to the resident who ordered a Tylenol for a fever. The suit is then filed, naming every last doctor with a legible name. It’s only after the suit has been filed – and defense attorneys get involved – that the names are whittled down to who is deserving of being sued – a process that often takes months and thousands of dollars. In some cases, the lawyers don’t even make an attempt to determine if they have the right doctor, as in the case of this family physician from rural Oklahoma who was willing to share his story with Overlawyered:
I was served at my university job (where I was an academic fellow at the time) with papers for a lawsuit that at first blush looked absolutely horrific.? I think that there in fact were material questions of possible physician negligence that resulted in a patient’s death.? I was devastated, and began racking my brain trying to recall the specifics of this case (I had been an attending physician for a residency at the time I practiced there so it could have been any of a number of patients I had passing involvement in).? I went home and called my fiance and began to get very depressed.? Then I noticed something…the dates of the alleged incidents.? I HAD BEEN GONE FROM THAT HOSPITAL FOR OVER A YEAR AND A HALF BEFORE THIS PATIENT WAS EVER ADMITTED!!!? Apparently the order in question read “telephone order from Dr. A”.? It hadn’t been signed off, and the lawyer for some reason decided that I must be the “Dr. A” in question.?
Now here is where I think that he was negligent (defined by me as not taking reasonable measures to ensure he was naming people appropriately).? He had to ask the hospital’s medical staff office for a forwarding address, since I was gone.? Had he only asked, “When did this guy leave here?” he would have known he had the wrong doctor.
I called an attorney friend whose partner does medmal defense, and they managed to fire off a letter to the filing attorney and the court.? I was removed within a few weeks.?… Had I not called my friend first, but rather relied on the malpractice insurance carrier to do this for me, I would have had an open claim with costs incurred.? I would have had my insurance premium go up, and I would have had to forever list in credentialing documents that I had been sued.? As it is, multiple sources have advised me to not list this incident as I was ultimately “no suited”.?
When I asked multiple friends in the legal field about what possible complaint or discipline could be brought to bear, I was repeatedly told “nothing”.? I would have been thrilled if a letter apologizing for their error had been sent to me, but apparently apologizing (i.e. taking responsibility for ones incorrect actions) is not something that trial lawyers do.? Apparently, reckless behavior by an attorney in the name of “protecting the rights of his client” is allowed, no matter how negligent and regardless of its effect/potential effect on innocent third parties.
I have long past put this incident in perspective and resigned myself to the fact that the game as it is set up is inherently unfair.? To this day, though, I carry a small scar and a huge amount of fear/loathing for a system that allows bullies to run rough-shod over people with no chance of reining in their bad behavior.? Oh…by the way.? My attorney friend said that me having obtained the name of the actual Dr A involved (by way of asking the hospital risk manager, “who WAS the Dr. A who gave that order”…they found a signed note by him four pages away in the chart) and her giving it to the plaintiffs attorney was key in them dropping me without further question.
I’d like to reiterate, had I not done things the way I had, but rather called my insurer and had them handle it, it would have probably cost tens of thousands of their dollars to figure this out. Further, I would have had an open claim on my record and my rates would have been jacked up for several years…all because a lawyer wasn’t held accountable up front for reckless behavior.
There were about a dozen docs named in that suit initially. All but two were dropped within two months of the intial filing. My experience was apparently not unique.
Unfortunately, it isn’t unique, but all too commonplace. It is, in fact, the “standard of care” for plaintiff’s attorneys. When asked about the practice, even defense attorneys shrug and explain it’s a necessary evil. If a plaintiff’s attorney fails to name someone in the original suit, they can’t go back and add him. No one wants to explain to an angry client that they overlooked the person truly responsible.
And yet, this strikes us as a poor excuse for actions that have such far-reaching consequences for so many innocent bystanders. Prosecutors have to have fairly good evidence that they’re charging the right person before they file a criminal case. They don’t bring charges against everyone who ever encountered the crime victim. Shouldn’t malpractice attorneys have to live by the same standards?
MORE: Fellow medical blogger and Georgian surgeon Bard-Parker notes that doctors with illegible signatures get sued, too – as Dr. John Does (scroll down to “Itinerant Blogging”.
Cerebral Palsy Turn Around
Michigan’s Supreme Court overturned a $21 million verdict in the kind of case that made John Edwards the man he is today. The Court ruled 6-1 that the basis of the jury’s decision in the original 1997 trial was faulty, because the expert witness testimony was faulty. Not that this means that the courts now recognize that cerebral palsy is rarely caused by birth injuries. Rather, the lower court failed to allow the defense an opportunity to object to the admission of the expert’s testimony. (An expert that they maintained had “novel” theories about the origin of cerebral palsy.) Still, it might be a step in the right direction toward correcting much that’s wrong with today’s malpractice litigation – “experts” who aren’t really experts.
Anonymous accusers (of the expert kind)
From the Chicago Sun-Times:
When a doctor is sued for malpractice in Illinois, another physician must sign a statement certifying the lawsuit has merit.
Moreover, the physician alleging malpractice must be an expert in the field. The idea is to prevent frivolous lawsuits.
But there’s a catch. The name of this expert physician is kept secret. …
When the expert’s name isn’t revealed, there’s no way for the defense to question his or her qualifications, said Robert Kane of the Illinois State Medical Society.
The plaintiff’s bar in Illinois is strenuously defending the right of their certifying experts to remain anonymous, saying they might face retaliation if they revealed their identities. However, it seems the current policy also has the convenient effect of insulating the lawyers themselves to some degree from accountability for misconduct:
Dr. William Sullivan, an emergency room physician at Advocate South Suburban Hospital, believes a certifying physician should not be able to hide behind anonymity. Sullivan once was sued at another hospital, along with about 10 other doctors, by the family of a woman who died from car accident injuries.
Sullivan said he was named as a defendant, even though his only involvement in the case was to insert an IV line. When the case against him was dropped, Sullivan, who is also an attorney, turned around and sued the woman’s law firm for “malicious prosecution.”
Sullivan also sued “physician John Doe,” the doctor who certified Sullivan had committed malpractice. Sullivan said he needed to interrogate Dr. Doe in order to prove the case against him had been frivolous. But Sullivan never was able to learn Dr. Doe’s identity, so he had to drop his case.
(Jim Ritter, “Doctors seek to lift veil on malpractice cases”, Chicago Sun-Times, Jul. 5 (link no longer online except as $ archives))(& letter to the editor, Jul. 26).
Initiative battles
In Florida, the state supreme court has certified for the fall ballot a doctor-backed initiative (see Mar. 1) that would cut lawyers’ fees in malpractice cases, and also three lawyer-backed “revenge” initiatives aimed at the doctors. And in Colorado, a proposed amendment is headed for the ballot that would write into the state constitution broad rights to sue over construction defects. Major battles are expected on both — details at Point Of Law (Fla., Colo.).