Charlie Weis, Notre Dame football head and former New England Patriots assistant coach, has been the plaintiff in a Massachusetts medical malpractice case where he seeks a windfall because his gastric bypass surgery, like many gastric surgery bypasses, had complications that he has recovered from. Unfortunately, a juror collapsed during proceedings, and the defendant doctors rushed over to help her before the other jurors could be removed from the courtroom, and this concern for the health of another human being means that the doctors, whose schedules have already been disrupted by the lengthy trial, will have to go through it all over again, as Weis successfully moved for a mistrial. [AP/SI-CNN via Quizlaw]
Posts Tagged ‘medical’
February 20 roundup
- Trucker-friendly Arizona legislature declines to ban naked lady mudflaps [NBC4.com; Houstonist]
- Crumb of approbation dept.: I’m “[not] as unreasonable as most of the tort-reform crowd” [Petit]
- Sponsors of large banquets in D.C. must pay to have a paramedic on hand even when the banquet crowd consists of doctors [ShopFloor]
- Homeowner’s insurance doesn’t cover homewrecking: umbrella policy doesn’t create duty to defend lawsuit claiming the insured broke up someone’s marriage (Pins v. State Farm (PDF), S. Dak., Mayerson via Elefant)
- New York mag on RFK Jr.: Is there some law saying all press profiles of America’s Most Irresponsible Public Figure® must be weirdly softball in nature and glide over his embarrassing book and rants, his Osama-pig farm lunacy, his anti-vaccine humbug, his trial-lawyer entanglements and even the wind farm flap?
- Australia court rules Muslim prison inmate suffered discrimination and deserves money for being served canned halal meat rather than fresh [The Australian]
- High medical costs and their causes: am I listening? [Coyote]
- Economists may puzzle their heads over the ultimate incidence of business taxes, but in Wisconsin it’s whatever Gov. Jim Doyle says it is [Krumm via Taranto]
- Feds may punish Red Sox pitcher Matsuzaka for doing a beer ad in Japan, where it’s perfectly legal for athletes to appear in such [To The People]
- Guns in company parking lots: still one of the rare issues where the ABA manages to be righter than the NRA [AP/CBSNews.com; see Apr. 6, 2006]
- Thanks, NYC taxpayers: Brooklyn jury awards $16 million against city in case where drugged-up motorist jumped sidewalk and ran over pedestrians, later blaming the accident on a city sanitation truck [seven years ago on Overlawyered]
Treating the morbidly obese (redux)
Dr. Anna Maria Vatura saved the life of a 400-pound man thrown from a motorcycle in a high-speed accident, but his obesity made it impossible to stabilize him with appropriate cervical spinal precautions; as a result, he ended up quadriplegic, for which he sued the doctor. In a lengthy piece for the Feb. 16 Medical Economics, she details the medical care and resulting lawsuit:
It was profoundly enlightening to realize that my career was in the hands of 12 strangers who were expected to understand and interpret in three weeks what had taken me 10 long years to learn; and even longer to practice and internalize. Maybe it was akin to a 400-pound man coming to me as a stranger, asking that I save his life and keep it as it was before he was thrown off that motorcycle going 40 miles an hour.
I testified in court for four grueling hours. I was well prepared but nevertheless terrified I would say something wrong. I felt the need to repeat what took place over and over again just to make sure the jurors understood the sequence of events. The plaintiff’s attorney—attractive, articulate, and dressed in an expensive suit—tried every trick in the book to get me to slip up, to say something she could twist into a lie. Anything she could to make me look inept, inexperienced, evil. Yes, evil. During closing arguments she played a scene of the Lord of the Rings: The Return of the King and equated the doctors in the case to the monsters. I sat there astounded that someone would actually say that I was an evil person wreaking havoc on innocent people behind the guise of a medical license.
Vatura calls for more doctors to refuse to settle cases where they’ve done nothing wrong. (via Kevin MD)
Moral: don’t treat the morbidly obese
The eggshell-skull rule, as applied to a self-inflicted injury: Whately, MA selectman Charles Olanyk weighed 460 pounds in 2001 at the age of 51. That sort of obesity leads to health problems, and Olanyk had several: high-blood pressure, obesity, and diabetes. Olanyk stubbed his toe, treated himself with a heating pad, managed to give himself third-degree burns because he didn’t have full sensation in his outer limbs, and went to Doctor John Bookwalter, who had been treating him for leg ulcers; Bookwalter gave him a topical cream and antibiotics. Nevertheless, the burn became gangrenous because of diabetic and lymphedema complications, and Olanyk ended up losing his left leg below the knee. A jury awarded $1.16 million against Bookwalter on grounds that he should have immediately referred Olanyk to a burn doctor. “In the end, everybody’s health care costs go up because this guy couldn’t take care of himself,” said Bookwalter. (Patrick J. Crowley, “Local doctor loses $1.1M malpractice lawsuit”, Brattleboro Reformer, Feb. 14; “After scary bout, months of recovery”, Daily Hampshire Gazette, Mar. 19, 2002).
(Update: eagle-eyed reader F.R. points us to this Telegraph story discussing the UK’s single-payer health service consideration of banning surgery on smokers and the obese to save costs.)
Infant mortality statistics
As I’ve noted other times on Overlawyered, United States infant mortality statistics are artificially high relative to other nations, because of the way they are tabulated. In the US, heroic efforts are taken to save the lives of premature infants; when those efforts fail, the infant mortality statistic goes up; other nations with rationed single-payer health care consider the same child “stillborn” and do not register the death in the infant mortality statistics.
Amber Taylor points out that I may have missed part of the story, and a part that I should be especially sensitive to: the effect of legal rules creating financial incentives to count stillborns as infant deaths. (& Apr. 8: response to the latter point from Linda Gorman of the Independence Institute).
OT: Abigail Alliance v. von Eschenbach
AEI lets me spend up to a day a week working on outside matters. I hadn’t done any litigating in a while, so when a pro bono opportunity for a good cause presented itself, I took it. Many other bloggers have already spoken on the issues presented by Abigail Alliance v. von Eschenbach, regarding the circumstances under which the FDA has the constitutional power to bar terminally-ill patients from being able to take potentially life-saving doctor-recommended drugs that have achieved Phase 1 approval, but have yet to receive Phase 2 approval from the FDA. (E.g., Jonathan Adler, Derek Lowe, Hans Bader, Orin Kerr, Eugene Volokh, Randy Barnett, Alex Tabarrok.) A 2-1 panel of the D.C. Circuit put limits on the FDA’s powers, but the full D.C. Circuit vacated for en banc review. With the able assistance of attorneys at O’Melveny & Myers LLP, Jack Calfee and I put together a group of all-star economists—Calfee, Dan Klein, Marginal Revolution blogger Alex Tabarrok, Ben Zycher, and one of my heroes, Sam Peltzman—and submitted an amicus brief on their behalf to the D.C. Circuit. While the case presents interesting issues of the due process clause and constitutional standing, the brief focuses on the economic issues underlying FDA drug regulation and the effect of the original panel’s decision on drug and medical safety.
And speaking of health courts
The Founders and civil justice reform
Justinian Lane, unable to refute on the merits the idea that it might be worth experimenting with health courts to see if they improve medical care and medical justice, resorts to ad hominem:
I believe our founding fathers were some of the greatest men who ever lived. Through sweat and sacrifice, they founded the greatest country in the world. And they believed that the right for a plaintiff to seek a jury trial was so important as to be enshrined in the Bill of Rights.
I have nothing but respect and admiration for the noble men and women who have died and are dying to protect our Bill of Rights and our Constitution. I have nothing but derision for the ignominious men and women who are dying to butcher those documents for corporate gain.
Very stirring, if completely meaningless. I not only believe, but know for a fact, that our founding fathers created Article V of the Constitution, which permits amendments to correct problems created by the Constitution itself—such as, say, its abhorrent endorsement of involuntary servitude, or the poorly-thought-out presidential election process that resulted in the 1800 election snafu and the Twelfth Amendment.
But one need not go even this far. The real flaw of Lane’s thoughtless argument is that in 1791, the common-law right to a jury trial contemplated the idea of special juries. Special juries were used for complex commercial cases, for example; juries of women were used to determine the truth of claims of pregnancy. No constitutional amendment is needed for medical courts; they are well within the Seventh Amendment definition and the Founders’ conception of trial by jury. See generally Professor James Oldham’s book, Trial by Jury: The Seventh Amendment and Anglo-American Special Juries.
An over-diagnosis epidemic?
“The larger threat posed by American medicine is that more and more of us are being drawn into the system not because of an epidemic of disease, but because of an epidemic of diagnoses. … Medico-legal concerns also drive the epidemic. While failing to make a diagnosis can result in lawsuits, there are no corresponding penalties for overdiagnosis. Thus, the path of least resistance for clinicians is to diagnose liberally — even when we wonder if doing so really helps our patients.” (H. Gilbert Welch, Lisa Schwartz and Steven Woloshin, “What’s Making Us Sick Is an Epidemic of Diagnoses”, New York Times, Jan. 2).
Type I errors and Type II errors
Deep in a comment thread on a blog that I shouldn’t be wasting time reading, trial lawyer Lee Tilson writes as an argument against reform “Our imperative should be to reduce medical errors.”
But there’s a very easy way to reduce medical errors: abolish the practice of medicine, and doctors won’t commit medical errors any more.
That clearly isn’t an improvement over the status quo, and this illustrates the flaw in Tilson’s argument: he’s asking the legal system to solve the wrong problem. Better for a legal system with rules that effectively tolerate some more Type I errors if by doing so eliminates even more of the Type II errors from doctors deterred from practicing at all. Society should be happy with a tradeoff of more doctors for somewhat more medical errors if the net result is better medical care for all. At what level of malpractice liability will medical care be optimized? The data indicates the needle has moved too far in favor of liability: reducing liability (say, through caps) improves health-care outcomes such as infant mortality. The deterrent effect of outsized liability on practice more than outweighs the deterrent effect of liability on malpractice. (As I’ve noted at Point of Law, even serious academics make this mistake.)
There are ways to achieve reform without Type I/Type II tradeoffs. Improving the accuracy of the justice system would hypothetically reduce both Type I and Type II errors; this is the principle behind the Common Good health courts proposal. That the trial bar fights so hard against even so much as establishing such courts on an pilot basis shows how much they really care about “medical errors” as opposed to their own pockets.