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A word from a med-mal defense lawyer regarding "A 1 in 1.09 quintillion Chance" (Jul. 28): plaintiff's lawyers never allow an autopsy if they can help it. An autopsy more often than not sinks their case, as your story proves. -- John Schedler, Seattle, Wash.
While I am in total agreement with you about the madness of the Philadelphia medical malpractice and medical liability insurance climate (May 20), you should be very careful about attributing developments in the Philadelphia medical marketplace entirely, or even mainly, to the malpractice climate. Many other trends are at work in this marketplace:
1. The region is and has been for some time over-doctored and over-hospitaled. For example, there are five academic medical centers in Philadelphia. Until a few years ago there were six; two merged. The city has been losing population for fifty years and the region is not growing. Many of the OB department closings you cite represent larger retrenchments and consolidations. For example, the owner of MCP, for-profit Tenet Health Care Systems, is currently trying to close that money-losing facility. Toward that end it has been cutting a number of acute care services. The OB services previously provided at MCP have been shifted to Roxborough and Hahnemann, two other Tenet hospitals. Episcopal, Methodist and Elkins Park have been acquired by large academic health systems, which have reduced many acute care services at those facilities while providing those services at other hospitals in their systems. One reason that OB programs are largely concentrated in teaching hospitals is that the teaching hospitals have been acquiring the community hospitals and consolidating their specialty services like OB at the parent institution. Certainly the loss of these community hospital OB departments represents an inconvenience to some local residents and providers. Whether it represents a decline in the availability and quality of OB services is another question, and your data do not answer it.
2. In addition to oversupply, the medical marketplace in the Philadelphia region faces a highly concentrated medical insurance market. Two providers, Aetna and Blue Cross, dominate the market and have used their market power to drive down reimbursement rates. The statement that liability costs approach 2/3 of reimbursement levels represents both high liability costs and low reimbursement levels resulting from oversupply and a concentrated insurance market. Philadelphia is a buyer's market for medical services.
3. The large number of physicians who are employees of health care systems, rather than independent practitioners, reflects another economic development. In the '80s and into the '90s, in addition to acquiring other hospitals, the academic medical centers acquired physician practices at an amazing rate. There was a theory that this was necessary to secure the stream of patients from these practices to the parent institution. No doubt it seemed like a good idea at the time, though it is hard to see why. All in all, the trend caused huge losses to the academic medical centers, who overpaid for practices of dubious value. In any event, it increased the percentage of employed physicians generally, not just in OB.
There is much anecdotal evidence that medical liability costs reduce the availability of OB services in underserved rural areas, where practitioners cannot generate the volume necessary to cover insurance expenses. It would be interesting to know whether this phenomenon could occur in a major metropolitan area or if, as I suspect, it is accelerating the trend toward consolidation of these services in high-volume medical centers. The source you quote does not address this question.
Keep up the good work. -- James Ingram, Philadelphia, PA
I just read Stuart Levine's post (referenced on Overlawyered Oct. 30, 2003) about homeowners' insurance as a source of protection for website proprietors against defamation suits. I maintain a small website, iatrogenic.org. I asked my insurer, Amica, if it covered web sites under its umbrella policy. It responded by canceling my umbrella policy. I was told that some of what Amica considered controversial material on the site might make me vulnerable to lawsuit. I've since picked up coverage with a company that offers umbrella-only policies. I will not be asking them about the website. I predict that insurers will eventually exclude all website coverage. -- Nicolas Martin, Indianapolis, Ind.
Re: Freedom Holdings v. Spitzer, the antitrust challenge to the tobacco settlement (May 11): another case to watch is described here (scroll down). It's a class action on behalf of California residents who bought tobacco in that state from April 2000 to the present, and it charges that tobacco companies and other unnamed defendants have engaged in unlawful price-fixing and market-sharing by means of the 1998 master tobacco settlement. I really hope the plaintiff's attorneys know what they're doing in this case. This could be a show stopper. Keep it up! -- Mike Carney, Eagle River, Alaska
I found the "Vindicated -- and violated" post (May 25) interesting. What really struck me was that when I read the full article it became clear that the doctor's attorney did a great job. It's quite evident that the doctor does not realize how lucky she is.
To prove this point all I have to do is point out the statement the doctor most wanted the jury to hear. That being, "[n]ot once did he point out that the reason the operative report wasn't dictated immediately was because I had an office full of patients waiting for me." Just think of what a plaintiff's attorney could do with that statement. -- James J. Woodruff II, attorney at law, Atlantic Beach, Fla.
I have just read your article regarding Sudden Acceleration (Apr. 19) and, though I respect your right to an opinion, I suggest you research before making such a definitive statement. Nowhere in the article does it show the billions of dollars spent lobbying government and covering up evidence on the part of the automakers. Nor does the article show the fraud on behalf of Ford to "win" cases. If you research the Manigault case in Ohio I believe you will begin to see the true story.
Lest we forget the Ford Pinto and Grand Marquis and their exploding gas tanks. Ford has a long history of using its deep pockets to win cases rather than concern themselves with the public interest. It was the Ford Company that wrote in internal documents that it was far cheaper, and better for the bottom line, to pay outside counsel, pay victims, and not recall the Pinto.
Corporations have a distinct advantage when it comes to our legal system. Few lawyers have the financial resources to fight corporations. In our legal system it is the obligation of the agrieved party to prove responsibility. It is the Corporation's responsibility to deliver all documents as requested by the "victim." The corporations are on the "honor system" to make full disclosure. The Corporation's counsel, when fraud is uncovered and proven, has the excuse that he didn't know of the existence of the documents or that they were misplaced. Thus, there is no penalty for fraud, thus there is no reason to make available self-incriminating information.
Though I agree there are many unwarranted cases in the legal process, those who are truly victimized should not be made to suffer consequences. Our society often holds the rich accountable for the ills of the poor and oppose the death penalty before an innocent person is executed. Yet, these same people give Big Business the benefit of the doubt, and vilify the victim. I don't understand.
I hope you will do some research into the matter and post an article from the other point of view. -- Gary Motelson, Staten Island, N.Y.
For more on what the late law professor Gary Schwartz called "The Myth of the Ford Pinto Case" and other questions of automotive design defects, see our notes on automotive litigation from 1999 and this site's auto page generally. -- W.O.
Gosh, golly, wow... I got my $2.41 check from a settlement (that I didn't even want to participate in) today.
Seems that Anderson v. The Money Store (civil action 6-03-3608-13) sent me a "settlement", which I neither needed nor wanted. I don't recall receiving any mail denoting that I was in this class-action suit.
Should I even bother to cash it? Isn't that (tacit or otherwise) acceptance of the results of the lawsuit? Two bucks and change ain't gonna make or break me, I just don't want to even *imply* that I agree with the lawyers' actions...
What say you? -- Steve Egan, Spokane, Wash.
We can't speak to the merits of this settlement (according to news reports, numerous class actions have been filed against The Money Store, which once was a big "subprime" lender but eventually closed most of its operations, the remnants winding up as part of Wachovia). Assuming you've considered the allegations made in the suit and don't find them sympathetic, it still isn't easy to advise what you should do with the check, one reason being that not all settlements are structured in the same way. In some cases, unclaimed funds effectively revert to the defendant, which means that, if you have no quarrel with this particular company and believe the class action served only to drive up its cost of doing business, you can effectively return the unwanted gift by not cashing the check. In other cases, some or all of unclaimed funds goes to other parties -- sometimes to other claimants, sometimes to uncontroversial charities, but in some instances to lawyer-allied advocacy groups which promote litigation. And how do the lawyers themselves make out, or the other middlemen who administer the deal? Depending on how the settlement is structured, they may pocket more money if you refuse to cash your check, or less money, or their take may be unaffected. In other words, read the fine print. -- W.O.
I just read your note about New York Attorney General Eliot Spitzer and his powers under the state's 1921 Martin Act (May 20) and am left wondering: where are all those folks who are up in arms about the Patriot Act? Spitzer's powers under the Martin Act seem far broader and more damaging to civil liberties than Ashcroft's under the Patriot Act. Are corporations and executives considered more dangerous than foreign terrorists? -- Doug Levene, Wilton, Conn.