Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘medical’

Senate nixes OB relief

State medical societies have expressed considerable ambivalence about proposals to proceed specialty by specialty on malpractice reform, starting with the hardest-hit areas such as obstetrics and emergency medicine, fearing that such measures might serve to divide the profession and allow politicians to say that they had “done something” after addressing only the most obvious crisis areas (“AMA vows united voice in battle for tort reform”, American Medical News, Jan. 5). At any rate, it seems the choice of such a compromise won’t be available at the federal level, since opponents have no seeming interest in it. This week the Senate’s Republican leadership brought back malpractice reform in a pared-down version intended just to address obstetric litigation, but no go: the 48-45 vote was pretty much the same as that by which omnibus reform had failed, falling far short of the 60 needed to overcome an expected filibuster by Democrats.

The Associated Press report on the vote (Jesse Holland, AP/DailyNews.com, Feb. 25) reported that “some conservatives” opposed the bill, but the conservative it quoted turned out to be Ken Connor, former head of the religious-right Family Research Council. What AP didn’t add is that Connor is not exactly your typical conservative, having made his fortune in Florida as a plaintiff’s lawyer suing nursing homes and having served as a tenacious legislative advocate for the interests of the trial bar before his stint at FRC (see Mar. 2-4, 2001).

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Doctors on hook for $5M

On December 4, 1998, 11-month old Jack Sprague, while with his babysitter, suffered a subdural hematoma that has left him disabled. A Maryland jury just awarded $5 million against three doctors who saw Jack a couple of weeks earlier–the theory being that if they had performed a CT scan on the infant, the parents would have discovered the babysitter’s alleged abuse earlier, preventing the injury. (The babysitter, Nancy Brookbank, was convicted of child abuse and acquitted of assault; the conviction was overturned because defense lawyers were forbidden from questioning the infant’s mother about the civil lawsuit; a retrial has yet to be scheduled.) Never mind that all three doctors diagnosed the asymptomatic infant as healthy: “What harm could it have done to do a CAT scan?” a juror asked. Well, even aside from the cost, and the risk of an anesthetic on an infant, doctors warn against unnecessary CAT scans to children because of the radiation exposure. How many healthy children will end up with cancer because of defensive medicine in response to this verdict? (Michael Amon, “$5 Million Awarded in Medical Malpractice Suit”, Washington Post, Feb. 15; Michael Amon, “Medical Malpractice Suit Goes to Jury”, Washington Post, Feb. 12; Michael Amon, “Pediatricians’ Testimony Backs Doctors”, Washington Post, Feb. 8; Michael Amon, “Court Orders New Trial For Waldorf Babysitter”, Washington Post, Dec. 21). Update: American Medical News provides more info. (Tanya Albert, “Physicians found negligent for not performing CT scan”, Apr. 12).

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“Ohio physicians fight back”

The Ohio State Medical Association is documenting instances of baseless litigation against doctors and assisting doctors in sanctions motions against opposing lawyers who bring “shotgun” lawsuits without investigation against every doctor who treated a plaintiff. The effort is believed to be the first of its kind. (Tanya Albert, American Medical News, Feb. 16; Tanya Albert, “Fighting frivolous lawsuits: Doctors engage in an uphill battle”, American Medical News, Oct. 27, 2003) (via LitiGator).

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HIPAA and the clergy

Among the many other effects of the new federal medical privacy law (see Oct. 23, Nov. 9, Jan. 21): clergy “now can look in on only those patients who have requested visits”. Result: if a longtime parishioner is admitted to the hospital unconscious, or just doesn’t realize that an affirmative request is required, the clergyman may be barred from entering the room to pray with or for them. “Before HIPAA, [Father Casey] Mahone said he could look at a list of Catholic patients and visit the ones he knew. ”People kind of had the mentality that they were going to be “discovered” by their priest in the hospital,’ he said. ‘If we didn’t find them, they were disappointed.'” “[Rev. Jack] Flint said he wanted to pray with a woman before she died from injuries suffered in an automobile accident. ”But because (the hospital) couldn’t release her name, I was lost,’ he lamented. ‘I didn’t get to do that.’ Instead of his calling her family to pray at her bedside, her family called him to pray at her funeral.” (“Health privacy law hinders clergy visits at hospital”, AP/Morgantown, W.V. Dominion Post, Feb. 3). More: GruntDoc, Feb. 5 (and see reader comments).

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“Lawyers try new tacks in malpractice suits”

Trial lawyers are finding new ways to transfer money from the pockets of doctors to attorneys. An Ohio jury voted 6-2 that Cleveland doctor Franklin Price was liable for $3.5 million because he didn’t do enough to help Lawrence Smith lose weight and stop smoking, and thus avoid a fatal heart attack. (Tanya Albert, “Jury says doctor didn’t do enough to help obese smoker”, American Medical News, May 12, 2003). In Florida, Miriam Kamin is about to go to trial in a lawsuit against Baptist Hospital of Miami not because they misperformed her pancreatic surgery, but because she feels that the hospital should have referred her to a hospital that performs the operation more often. And in Ohio and Texas, plaintiffs are trying to avoid medical malpractice caps by restating the claims as “corporate negligence.” (Tanya Albert, American Medical News, Feb. 9).

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For Texas trial lawyers, revenge time

Throwing their weight around: “Across Houston and the state, plaintiffs’ attorneys are backing primary opponents to Democratic legislators who bucked the party last year and supported Proposition 12, part of a Republican-led effort to cap medical malpractice damages. … The Texas Trial Lawyers Association had no public comment. But one association member privately said trial lawyers intend to make it rough on legislators who oppose them.” Republicans aren’t safe either, with the chief author of the bill, Rep. Joe Nixon (R-Houston), facing a primary challenge from a plaintiff’s lawyer. (John Williams, “Alliances put heat on tort reformers”, Houston Chronicle, Jan. 31).

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Risks of defensive radiology

Use of radiation-based diagnostic methods continues on a rapid rise, even though experts on carcinogenesis warn that a small but non-trivial share of cancer is attributable to radiation from the use of medical X-rays, much of it from CT scans. MedPundit Sydney Smith (Jan. 29) says she sees a high volume of CT scans of the chest and abdomen. “I have a couple of patients who are on their third or fourth follow-up CT for uncertain findings that, truth be told, are done more for our own protection than theirs. Yet another way our litigation culture is influencing healthcare — and health.”

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More medical privacy madness

More presumably unintended consequences (see Oct. 23, Nov. 9) of HIPAA, the new federal law menacing institutions with $10,000 fines for releasing too much information about patients:

* “When Arkansas announced three flu deaths among its 2.8 million residents on Dec. 5 … it wouldn’t say whether the victims were young [despite intense public interest in whether this year’s flu was killing otherwise healthy children]. After consultation with its lawyers, it added only that the deaths involved adults in any of a dozen or so high-risk groups. In Iowa, state doctors wouldn’t list the hometown of a 1-year-old who died of the flu and wouldn’t say how long the child was ill, when it died or whether it had had a flu shot. It also wouldn’t say whether the child was boy or a girl.” (“Ark. Limits Info Regarding Flu Deaths”, AP/ABCNews.com, Dec. 30).

* Volunteer groups bringing holiday toys, teddy bears, and brownies to Quad Cities hospital wards are sometimes being told to leave the items with hospital staffs rather than visit the wards, and Santa Claus can make an appearance only if a separate guardian’s consent is obtained for each hospitalized child, according to the Moline Dispatch (Kurt Allemeier and Tory Brecht, “Privacy concerns limit Santa?s hospital visits”, Dec. 25; also see Martha Irvine, “How gifts can overwhelm children’s hospitals”, AP/Boston Globe, Dec. 25).

* And after Joynal Abedin became a victim of a fatal hit-and-run in the Washington, D.C. suburb of Adelphi, Md., his family did not learn of his fate for two weeks until it received a $17,000 bill from Washington Hospital Center in the mail; the hospital’s fear of medical privacy breaches was one factor contributing to the delay. (Yolanda Woodlee, “Hospital Bill Is Family’s Only Clue”, Washington Post, Jan. 20)

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Edwards’ persuasive powers

Having long taken an interest in the career of North Carolina Sen. John Edwards (see Sept. 16, Aug. 27 (talk about bad predictions!), Aug. 5, earlier posts), we are not entirely surprised that the silver-tongued trial lawyer/politician did so well among Iowa Democrats, not to mention charming such commentators as Mickey Kaus (scroll to second “P.P.S.” item) and Andrew Sullivan (second item). As we’ve had occasion to note, before entering politics Sen. Edwards had some of his greatest success representing families of kids with cerebral palsy against the doctors who’d allegedly botched their deliveries — this despite a steadily mounting pile of research (see Feb. 27, 2003) tending to refute the popular theory that cerebral palsy is commonly caused by obstetricians’ conduct during labor and delivery. Last March, in a letter to the editor printed at this site, Mississippi physician S.W. Bondurant wondered whether the press would look into the question of whether Edwards’s trial wins were based on sound science. Now reporter Marc Morano of the conservative CNSNews.com takes on that assignment (“Did ‘Junk Science’ Make John Edwards Rich?”, CNSNews.com, Jan. 20). Just to clarify my own views, which are quoted at some length: I don’t assert that every lawsuit blaming obstetricians for infant brain damage is unfounded. The problem is that our system gives wide leeway for cases of debatable scientific merit to be filed and then, after a battle of the hired experts, decided by appeals to jury emotion. (& welcome visitors from sites including Kaus (Jan. 20), Sullivan, MedPundit, Rangel M.D., Blog 702, MedRants, and many others)

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