Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘medical malpractice’

Tennessee jury demands defensive medicine

One out of ten colonoscopies result in nausea and vomiting; about one in 1000 colonoscopies will accidentally perforate the intestine, with potentially life-threatening side effects if not treated in a timely fashion. Kristen Freeman was one of the unfortunate one in 1000. While she complained of nausea and vomiting, she disregarded the instructions given to her about reporting her other symptoms, and so medical staff treated it like a more common case of nausea. By the time she admitted that her situation and pain was more dire, complications set in, and she suffered cardiopulmonary arrest, which in turn led to severe brain damage.

I won’t quibble with the jury’s assessment of damages of $12 million: Freeman was 33 and is now disabled for life, and in the randomness of noneconomic damages, $12 million isn’t the craziest award out there. But that the Hamilton County, Tennessee jury found gastroenterologist Michael Goodman 51% liable seems arbitrary. If doctors are required to assume that every patient reporting nausea but denying their situation is an emergency might be hiding more serious symptoms, and require them to go to the emergency room for testing (as the plaintiffs’ attorney argued Goodman should have done here), then that’s 100 wasteful emergency room cases for each real case—and not even a prevented case, since most patients follow instructions and report to the ER on their own when symptoms specific to perforation appear.

The article is on the Chattanooga Free Press web site, but the interesting discussion is in the comments, with friends of Freeman and seemingly knowledgeable doctors kibitzing. Freeman’s supporters argue that she did not actually experience any emergency symptoms and thus was not at fault at all. Even if true, that implies that they feel Goodman should be held responsible because he did not anticipate that Freeman was actually having an emergency when she presented asymptomatically: again, a demand for defensive medicine.

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On C-SPAN tonight: “Protecting Main Street From Lawsuit Abuse”

Today I testified before the Senate Republican Conference about the effect on the economy of excessive litigation. A podcast is available on-line and, for the insomniacs among you, the hearing will be broadcast on C-SPAN tonight at 10:56 PM Eastern and again at 2:09 AM Eastern. Also testifying was Life Without Lawyers author Philip Howard; Crystal Chodes, who lost her job because of the expense of a meritless ADA filing mill suit; Texas doctor David Teuscher; and arbitration expert and University of Kansas law professor Christopher Drahozal.

If you just prefer reading what I have to say, my written testimony is on-line also:

The total loss to the economy from excessive tort litigation above and beyond a baseline of an employment at will regime and an average industrialized tort system can be estimated at between over $600 billion and over $900 billion a year, 4.3% to 6.5% of GNP, or a tort tax of between $8,000 and $12,000/year for an average family of four. And this is very much a conservative estimate, as other economists find much stronger effects than I have estimated here, as I have not tried to estimate a number of identifiable secondary and tertiary effects of excessive tort litigation on allocation of economic resources, and as I have not tried to estimate the likely effect of recent Congressional expansions of tort liability in the last twelve months.

I was pleased to hear from multiple Congressional staffers who are regular Overlawyered readers: one even surreptitiously added the website into my official biography. Carter Wood talks about the hearing and Senator Cornyn’s remarks over at Point of Law.

Update: video on-line at C-SPAN; my segment begins at 43:15 or so. And C-SPAN2 is rebroadcasting at 4:16 pm Eastern on Tuesday, March 17, which suggests that my appearance will be at about 5 pm Eastern.

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Asleep at the Scalpel?

Readers interested in medical liability issues, or health care in general, may find Kevin MD’s thoughts on the issue of medical residents and sleep to be of interest.  His thoughts are particularly useful because they’re counterintuitive.

Anyone who attended medical school before 2003 (when real restrictions on resident working hours were put in place), or just hung out with medical students and young doctors as I did (the nurses who attended their parties were far more, ahem, interesting than whatshername from Criminal Procedure) can tell stories about the brutal, seemingly insane hours that students and most especially residents were forced to work in order to move on in the world.  20 hour shifts weren’t unheard of, nor were possibly exaggerated tales of shifts in excess of 36 hours.  Truck drivers aren’t allowed to work the hours that residents used to and still do work, for good reason.  The hour restrictions, we were told, would or might result in a marked improvement in patient care.

Moreover, anyone who has brought or defended medical malpractice cases can tell anecdotal horror stories of the resident who added a zero to the prescription dosage, or cut a few millimeters too deep.  Some lawyers have gotten very rich spinning such stories for juries.

And yet, and yet … There’s no empirical evidence (to date) that the restrictions on resident hours have produced significant improvement in patient outcomes.  Nor is there empirical evidence that patient care suffers as a result of more frequent “doctor turnover” as one resident passes care to another who is unfamiliar with the patient’s history, but Kevin MD makes a persuasive case that it has.  As for the impact on medical costs of employing additional doctors to cover patients, that’s indisputable, at least if one doesn’t take litigation expenses into account.

Note that I don’t agree with Kevin MD, though my evidence, like his, is mostly anecdotal.  My longest experience without sleep was DJ’ing at a college radio station for 40 consecutive hours, and I had to call a friend (oddly enough, a medical resident) to drive me home and pour me into bed.  On the other hand, I’m pretty sure my second longest experience without sleep was just before my first argument before an appellate court.  I won the argument handily, but I slept well the night afterward.

Anecdotal, non-empirical comments from doctors and nurses who read Overlawyered would be particularly welcome here.

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Microblog 2008-10-11

  • Would single-payer fix malpractice woes? Not likely given trial bar political clout [KevinMD] #
  • Prosecuting candidates for crowd-inciting campaign speeches? Now there’s a truly bad idea [Point of Law] #
  • Her busy docket: “For people like Oprah, lawsuits are a part of life” [Roeper, Chicago Sun-Times] #
  • Nebraska hospital sues patient for refusing to leave [Happy Hospitalist; related earlier] #
  • Community covenant craziness: “Dad’s in prison because we can’t afford to sod the lawn” [St. Petersburg Times] #

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Med-mal: feeding the bears at Yellowstone

We settled two lawsuits this quarter. In neither had there been medical negligence. It’s pretty galling to settle cases like these, but it’s smart. The deck is stacked against us, and you have to make the good decisions, even when it is bitter. …

The problem is that the newspapers are replete with cases where there is a huge jury award in cases where there was no malpractice. This is what induces us, and lord knows how many other medical groups, to settle cases which were well-handled. When there is no correlation between whether negligence occurred and whether you win or lose, the only viable strategy is to pick your fights very very carefully.

(Shadowfax, Aug. 7 via KevinMD).

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How trial lawyer urban legends get started

Public Citizen wrote a report about New York medical malpractice that said:

Physicians who made three or more malpractice payments between 1990 and 2006 – accounting for no more than 4 percent of New York’s doctors – were responsible for nearly half (49.6 percent) of medical malpractice dollars paid out on behalf of doctors in the time period.

This is technically true, but wildly misleading; we previously refuted this precise statistic as a natural statistical consequence of any randomly distributed set of payouts–and given that doctors in high-risk professions such as neurosurgery or ob/gyn are far more likely to be sued than dermatologists or gerontologists, the random concentration effect is going to be even more pronounced, so the Public Citizen statistic is meaningless without a showing of speciality-adjusted correlation between time periods–something no study has ever found.

But note how blogger Eric Turkewitz writes an op-ed in a small-town New York newspaper that isn’t even satisfied with simply misleading the public, and says something that is out-and-out false:

4 percent of the state’s doctors contribut[e] to half of the malpractice suits [emphasis added]

Not remotely true. “Nearly half of payments” has been turned into “half of malpractice suits.” Justinian Lane, who knows or should know that the latter statistic isn’t true, because his blog posted about the original statistic, then repeats the lie either thoughtlessly or deliberately:

Maybe doctors should discipline the four percent of doctors that make up half of all malpractice claims.

Will either of them retract the false claim with the same fanfare that they made it? Stay tuned. (They certainly won’t explain that there’s nothing damning about the accurate statistic–though I have been refuting this for over three years, Public Citizen and trial lawyers and their fans continue to regurgitate the data as if it means something.)

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Med-mal: Massachusetts adopts “loss of a chance” doctrine

In a key victory for plaintiffs and their lawyers, the Massachusetts Supreme Court has for the first time adopted the “loss of a chance” doctrine, which allows plaintiffs to recover money without having to show that it was more likely than not that the charged medical negligence made the difference in their recovery or survival. (Denise Lavoie, “Doctor held liable for a ‘loss of chance'”, AP/Boston Globe, Jul. 24). When Medical Economics surveyed the field two years ago, they found that about half the states had accepted the more liberal doctrine, which runs counter to the Anglo-American “more likely than not” prerequisite for establishing causation. More on the inexact and contradictory standards used in such cases here.

Readers of this site will not be the least surprised to learn that American courts have shown little or no interest in extending the “loss of a chance” doctrine for the benefit of plaintiffs in legal malpractice cases filed against attorneys whose inattention might have (but probably didn’t) deprive their clients of a favorable outcome in court proceedings.

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Medical liability roundup

  • “The accusatory legal document begins with several remarks defaming the skills, education, ability, integrity, and honesty of the physician being charged.” [Donald May, State Policy Blog] But hey, don’t take it personally, lawyers say [Mark Crane, Medical Economics] Good luck with that [Chiaramonte/Examiner, KevinMD, more]

  • Law throwing open Florida doctors’ peer review to lawyers was bad enough, but now state high court has applied it retroactively to records created before law was enacted [KevinMD guest post; background at PoL here, here, and here]

  • Even the New York Times hails as “sensible” laws encouraging medical apologies by making them inadmissible as evidence of wrongdoing [editorial]; but see counterexample to the usual reportage [Berlin/Am. Journal of Roentgenology via Buckeye Surgeon]

  • A med-mal defense attorney says plaintiffs would win more often in proposed “health courts” than they do in the cases he handles [Medical Economics, more, and similarly]

  • More evidence, this time from study of orthopedists, that docs rated as cold or callous attract far more than their proportionate share of suits [Orthopedics Today]

  • EMTALA, the law forcing emergency rooms to take all comers, “has created the very conditions it sought to avoid” [Edwin Leap, M.D.O.D.] Watch for “free-standing” ERs that dodge mandate by refusing federal dollars [Scalpel or Sword?, Health Care BS] Semi-defense of law [Over My Med Body]

  • Besieged state of dispersed emergency rooms and specialists is one reason for use of those risky helicopters that fly patients to the big city [Williams/Health Business Blog, M.D.O.D.]

  • Docs should stand up to family members demanding futile or inappropriate end-of-life care [Musings of a Dinosaur] Relatedly, daughter on dying father: “if you give him any more morphine, I will sue you.” [Fat Doctor]

(Most links via the highly recommended one-stop shop for medical blogging, KevinMD, e.g. this post and this one on EMTALA.)

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