The Boston Globe looks into Sen. John Edwards’s career before he came to Washington and finds “he was more than just a practitioner of medical malpractice law. He was one of its most prominent specialists, stretching the reach of the law for nearly two decades. But he also came to personify some of the alleged excesses that reformers have sought to curb.” Among them: emotionally manipulative trial arguments, selection of deep pocket defendants and suits on behalf of victims who had contributed to their own victimization, including a woman who committed suicide and whose survivors successfully sued the hospital with Edwards’ help. (Wendy Davis, “Edwards’s career tied to jury award debate”, Sept. 15).
Posts Tagged ‘medical’
Texans narrowly pass Prop. 12
By a 51 to 49 percent margin, Texas voters have approved Proposition 12, thus restoring to the legislature the power to set limits on damages in civil lawsuits, which a 1988 Texas Supreme Court opinion had arrogated to the courts alone. See our earlier coverage at Sept. 4, Sept. 6). Proponents of the measure were modestly outspent ($6 million vs. $7 million) by trial lawyers who opposed it. “Lawyers [also] enlisted a wide range of consumer, anti-crime, senior citizen and environmental groups to tap into their membership bases” — to no avail. (Janet Elliott, “Texans pass Prop. 12 in statewide election”, Houston Chronicle, Sept. 14).
“Venue wish upon a star”
Okay, we picked it in part just as an excuse to quote that headline, but the story actually does show how litigation reform can work as intended: the Philadelphia Inquirer editorially hails a precipitous drop in filings of malpractice cases in that city since the state legislature enacted a bill (meant to curb forum-shopping by plaintiff’s lawyers) which requires that suits against doctors be filed where the care was delivered. It is not yet clear to what extent the drop in Philadelphia filings will be counterbalanced by an expected rise in filings in suburban and rural counties; some cases, which had been premised on the generosity or unpredictability of juries in the center city, may wind up not being filed at all. (editorial, Sept. 4; Josh Goldstein, “Medical lawsuits plummet in Phila.”, Aug. 31). The Pennsylvania Medical Society comments (other liability resources at its site).
In other Pennsylvania-related malpractice news, a website of doctors in neighboring New Jersey is posting the text of the “Liability Update” newsletter put out by PaMedSoc Legislative Issues Chair Donna Baver Rovito (sample), packed with news clips of interest to anyone interested in the medical liability crisis whether resident in Pennsylvania/New Jersey or not (mirror AOL site with comments) (also available at Politically Active Physicians’ Association (www.fightingdocs.com), click through “News and Information” on left column). [Corrected Sept. 13 to repair/improve nonworking links]
Rx: Hired-gun control
“Two physicians fed up with medical expert witness testimony gathered lawyers and doctors and founded the Coalition and Center for Ethical Medical Testimony this summer. … Their goal is to expose physicians who falsify credentials or mislead juries about standards of care, and they’re planning to arm physicians with the tools necessary to do the job.” (Tanya Albert, “Group aims to weed out deficient medical expert witnesses”, American Medical News (AMA), Aug. 18). Meanwhile, in a trend that outrages the organized plaintiff’s bar, medical societies are establishing tribunals to review and discipline doctors over expert witness testimony that they present in court. “Doctors whose testimony does not pass muster can be suspended or expelled from the societies.” Critics from the plaintiff’s bar say the medical societies will not conduct objective evaluations because of their members’ interest in retaliating against those of their number who testify against fellow doctors. “The giving of expert testimony should be considered the practice of medicine, and it should be the subject of peer review,” counters AMA president Donald J. Palmisano. “If someone comes into court and gives junk science, we don’t want fraudulent testimony in court.” Although attorney Robert Peck, who works closely with ATLA, is menacing the associations with charges of antitrust violation and witness intimidation, an opinion by the Seventh Circuit’s influential Judge Posner in 2001 upheld medical testimony peer review as socially valuable self-regulation that “furthers rather than impedes the cause of justice.” (Adam Liptak, “Doctors’ testimony under scrutiny”, New York Times, Jul. 6).
“Trial lawyers staying out of public eye on Prop. 12”
“Leaders of the Texas Trial Lawyers Association, aware of their negative image, made a deliberate decision to stay out of public view on a controversial ballot measure to cap lawsuit damages. … ‘This program that has been put together relies on non-lawyers bringing the message to the public. To make this program work we must vow to not communicate with the public media or in a public forum at all regarding the amendment election. NO LAWYERS — NO EXCEPTIONS,'” read an email describing a TTLA strategy meeting. Willie Chapman. spokesman for the trial lawyer group, “said the TTLA has known for a long time that many people believe trial lawyers have an economic self-interest in battles over lawsuit damages. ‘We know it’s best to have messengers like consumers, clients who have had cases, law professors and legal scholars,’ Chapman said.” “The memo outlines a secret plan to disguise management of the campaign against passage of Proposition 12,” charged Rossanna Salazar, spokeswoman for Yes on 12. (Janet Elliott, Houston Chronicle, Sept. 4). (& welcome Dean Esmay readers; one of the commenters there notes that someone may have forgotten to tell the members of the TTLA that they weren’t supposed to take an identifiable role in fighting the proposition, since a Yellow Pages check on the names of letter-writers blasting the measure in a San Antonio paper reveals a plenitude of them listed under “Attorneys at Law”).
Texas’s Proposition 12
An intense campaign is under way in Texas over Proposition 12, which would amend the state constitution so as to give the Legislature authority to set limits on non-economic damages awarded to plaintiffs in civil lawsuits (vast assemblage of news links via Google News). It is being enthusiastically backed by the state’s medical community: YesOn12.org; Texas Medical Association; Texas Association of Family Physicians. Opposition: Save Texas Courts, TexansAgainstProp12.com, Texas Trial Lawyers Association. Opponents of the measure claim to fear the influence of “Big Money”, but — such a surprise! — have heavily out-fund-raised and out-spent the proposition’s supporters, with at least five law firms kicking in $250,000 each to the Save Texas Courts group (Houston Chronicle, Jul. 17, reprinted at National Constitution Center).
Curmudgeonly Clerk has a thorough roundup (Aug. 26), including the sentiments of major newspapers (the elite ones tend to be opposed, as usual) and weblog pointers. Kill As Few Patients As Possible (Sept. 2) and RangelMD (Aug. 20) also comment.
Remarkably, some opponents of the proposition have now carried out a sort of broad-daylight identity theft against the state’s best-known tort reform organization, Texans for Lawsuit Reform. Observing the domain name TexansforLawsuitReform.com up for grabs, they registered it as their own and put up a site exactly mimicking the actual TLR’s graphics and logo but then filling the rest of the page with boilerplate propaganda against the measure. The Austin Chronicle has more on the story (Lee Nichols, “Naked City”, Aug. 29). Kill as Few also comments (Sept. 4).
Addendum: BeldarBlog (Aug. 28) has an excellent analysis of the division-of-powers angle of Proposition 12 (should tort law remain exclusively the province of judge-made law, or is it legitimate for lawmakers to help shape its course?).
More on NYC midwifery
“Doctors avoid close contact; fear threat of impropriety”
“The B.C. College of Physicians and Surgeons says some doctors are reluctant to perform breast and genital examinations because they are worried patients will accuse them of impropriety. ‘Unfortunately, the fear of becoming the subject of a patient complaint has caused some to become reluctant to perform necessary breast and genital examinations, to the obvious detriment of the patient,’ the college says in its annual report.” Some evidence indicates that rates of invasive cervical cancer may be markedly higher among women from ethnic groups with a high cultural aversion to pelvic exams. “Although less than 25 per cent of complaints result in formal disciplinary proceedings and penalties, the college has observed the mere threat of an accusation has meant ‘a significant number of women in this province are not receiving proactive preventative screening for breast and gynecological diseases.'” (Pamela Fayerman, CanWest/Calgary Herald, Aug. 27).
Legal fears stifle hospital review of bad outcomes
New in the Annals of Internal Medicine: “Fear of litigation either stifles hospital efforts to improve patient safety or drives them underground, according to the latest article in a journal series …” In the case under study, a critically ill patient suffered permanent brain damage while under hospital care; the authors, both with the Harvard School of Public Health, consider it “unreasonable” to blame the attending doctor but a suit was filed nonetheless. In the incident’s aftermath, the hospital did not take vigorous measures to involve its staff in any debate about whether procedures needed to be changed — a logical enough course of action given that “generally, hospitals must confine discussions about adverse events to small committees of insiders” if they are to avoid losing their privilege against turning over the results of peer review investigations to hostile lawyers. In the case at hand, “it seems that it would have been beneficial for the hospital and staff to have openly evaluated issues of seamless cross-coverage, protocols for emergent intubation on the floor, and timely transfer to the ICU. Unfortunately, it appears that nothing of this sort occurred.” (“Fear of Litigation Stifles Hospitals’ Efforts To Improve Patient Safety”, press release, California HealthCare Foundation, Aug. 19; Troyen A. Brennan and Michelle M. Mello, “Patient Safety and Medical Malpractice: A Case Study”, Annals of Internal Medicine, Aug. 13; CHCF case study series)
“Lawyer Sent Back to School as Sanction for Frivolous Lawsuit”
“A lawyer’s attempt to save a time-barred malpractice suit by wrapping it up as a federal RICO and civil rights case has drawn an unorthodox sanction [under federal Rule 11]: Rather than dock the lawyer for fees, the judge ordered him to take courses in federal practice and procedure, professionalism and legal ethics.” We still prefer fees, though (Charles Toutant, New Jersey Law Journal, Aug. 26).