Posts Tagged ‘hospitals’

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”.

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).

Panel says no malpractice, jury says $3 million

In South Portland, Maine, a jury has awarded Neil Maietta $3 million in a complicated medical malpractice claim against anesthesiologist Dr. Kenneth Blazier over an infection that set into Maietta’s spinal discs after a medical procedure. “The verdict was unusually large for Maine, where awards of more than a million dollars are rare. It was particularly surprising in this case because a medical malpractice review panel had unanimously found that the doctor and hospital were not at fault for Maietta’s injury. The panel’s finding was disclosed to the jury, but it found for Maietta anyway. ‘I’ll take my chances with a jury any day,’ said Maietta’s lawyer, Daniel J. Lilley of Portland.” (Gregory D. Kesich, “Man wins $3 million for injury by doctor”, Portland Press Herald, May 27)(via

Scruggs watch

Last week lawyers associated with uber-tobacco lawyer Richard Scruggs fanned out across the country to file a dozen lawsuits against thirteen large non-profit hospitals in eight states. According to one press account, the lawsuits allege that “the institutions are not living up to their charitable missions, are overcharging uninsured patients and are using overly aggressive collection tactics.” (Rob Kaiser, “Class actions filed against non-profit hospitals,” Chicago Tribune, June 18) Scruggs characterizes the litigation as his attempt “to stop profiteering by nonprofit hospitals.” (Bill Lewis, “St. Thomas among hospitals accused of ‘profiteering,'” Nashville Tennessean, June 18)

The Tennessean article further explains:

“The lawsuit said Saint Thomas unfairly benefits from its long-held tax-exempt status, and the suit alleges a breach of contract, consumer fraud and deceptive business practices because Saint Thomas and the other nonprofits allegedly haven’t provided enough charity care in return for their tax exemptions….

“He criticized the hospitals named in the lawsuits for charging what he said were their highest rates to patients who do not have insurance, while giving discounts to big insurance companies. If the poor or uninsured patients cannot pay their bills, the hospitals garnishee wages and bank accounts, seize houses and force people into bankruptcy, he said.”

University of Chicago law professor Richard Epstein, quoted in the Tribune article, had this reaction: “Dicky Scruggs has got a lot of money, and he’s looking for a lot of trouble,” Epstein said. “The question is, what’s the law that’s being violated?”

Virginia primitive, round 5

Ramesh Ponnuru of National Review Online (“The Corner”, May 18) has written in defense of the new Virginia statute, much criticized in this space, which declares null and void within the state not only civil unions but also any “partnership contract or other arrangement between persons of the same sex purporting to bestow the privileges or obligations of marriage” (Mar. 19, Apr. 18, Apr. 23, May 12). As I noted two weeks ago, given the unclarity of the law’s drafting, a prolonged guessing game about its meaning may be inevitable; but some guesses are more plausible than others.

Read On…

Update: Dropping “The Hammer”

David Giacalone (May 4) has another update in the ongoing saga of Rochester, N.Y. attorney Jim (“The Hammer”) Shapiro, who advertised that “I want to get YOU the biggest, fattest cash award I can, as fast as I can, from as many defendants as I can find. Just call me! Day or night, I’ll talk to you free.” but later admitted in a deposition that he lived in Florida and had never tried a case (see Jun. 17-18, 2002 and Dec. 5, 2003). It seems a state court has now suspended Shapiro from practice in New York for a year over transgressions that include misleading commercials as well as “a solicitation letter to a comatose hospital patient”. Shapiro said he sold his Rochester law practice six months ago. (Matter of James J. Shapiro, Apr. 30; “NY Lawyer Known for Ads Suspended”, AP/New York Lawyer, May 3). More: Apr. 15, 2005.

Pennsylvania obstetrics

Consider having your baby somewhere else: hit hard by the state’s malpractice crisis, the “five-county Philadelphia region [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.

“Liability issues have put extraordinary pressure on OB programs in southeastern Pa., while well over 50 percent of practicing obstetricians in the region, perhaps closer to 75 percent, have become employees whose liability coverage is paid for by hospitals, says Wigglesworth, who adds that the trend toward employed OB status in southeastern Pa. has accelerated over the past three and a half years. ‘It is clear that, without the intervention of hospitals to employ and cover obstetricians in the region, we would have an extraordinary crisis, in terms of availability of OB services,’ he says…

“Wigglesworth [notes] that liability costs alone have approached two-thirds of the reimbursement level. …’Surviving’ OB programs in the region are mostly represented by teaching hospitals, including Hospital of the University of Pennsylvania (HUP), Pennsylvania Hospital, Einstein, Hahnemann, Jefferson and Temple.” (Christopher Guadagnino, “Obstetrician scarcity in Pennsylvania”, Physicians News Digest, May)(via Donna Rovito) (& letter to the editor Aug. 16).

Parked outside the emergency room…

…and in the physician-only parking area, no less, this lawyer’s van seen at Brooklyn’s Maimonides Medical Center. (Pics #1 and #2 at EMedConcepts, May 6) (via Gross Anatomy). We wonder about that hydrant in pic #1, too. More: a reader directs our attention to the website maintained by the van’s owner, the Law Office of John Dearie & Associates, which includes a page on the “mobile law office” and a reprint of a Dec. 26, 2001 New York Times article about it. Further: welcome Fark visitors (see May 20); and one observer speculates that the lawyer might have scheduled a deposition at the hospital, a theory about which we are skeptical (see Yclipse, May 18, with comment from me); see also Chris Rangel, May 19. More: Jan. 21, 2005 (TV show adapts idea), Jun. 5, 2005 (law firm’s side of story).