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I saw a couple of MedMal items from the neighboring states of Pennsylvania and New York. From Pennsylvania, here is a plea for tort reform that summarizes the benefits reaped by Texas as a result of such reform:
Since then, medical malpractice insurance rates have fallen 40 percent and many malpractice insurance companies that left the state have returned.
Today, there are 6,000 more doctors in Texas than there were in 2003 and Texas has added 195 OB-GYN physicians, 169 orthopedic surgeons, 554 anesthesiologists, 497 ER physicians, 110 neurologists and 36 neurosurgeons.
Current backlog for applications at the Texas Board of Medical Examiners exceeds 2,500. Clearly, doctors view Texas as an attractive place to practice.
The writer points out that, while Texas is gaining doctors, Pennsylvania is losing them. In fact, “Westmoreland County’s only orthopedic spine surgeon, Dr. Catino, is moving to Texas effective Jan. 1, 2008.”
So, that’s one response to what is admitted to be a medical malpractice disaster. Here’s another, noticed by the Point of Law blog:
Talk of a $50,000 -per-doctor surcharge has physicians in the state “petrified”, according to Robert Goldberg, president of the Medical Society of the State of New York. “A Brooklyn brain surgeon now pays $267,000 a year in malpractice insurance premiums and an obstetrician in Queens pays $180,490,” but now it turns out, per state insurance superintendent Eric Dinallo, that insurance rates have been “been artificially low for more than a decade”.
This is pretty amazing. I guess the superintendent has been keeping a list and thinks the doctors were naughty.
Not only will this raise the cost of medical care by forcing doctors to charge more, but it will also drive doctors away from NY to places like Texas. This will further raise the price. Alternatively, it will mean more shortages. Medicine will be priced right on paper, but in reality there will be no doctor available.
W can only hope the Grinch has a change of heart.
I am amazed in our era of “defensive medicine” that any doctor would do such a thing:
Connecticut Pediatrician Sanctioned for Lyme Disease Malpractice
A New Haven pediatrician was reprimanded for medical malpractice, after “diagnosing” and “treating” Lyme disease over the phone. Dr. Charles Ray Jones was fined $10,000, and placed on two years probation by Connecticut state regulators this week. The Connecticut Medical Examining Board voted unanimously to impose sanctions when they confirmed that the 77-year old New Haven doctor violated care standards by diagnosing Lyme disease in two children and prescribing antibiotics based on a phone conversation with their mother, months before examined them. The board found Jones broke standards by failing to reconsider his diagnoses of the children when lab tests results were negative for the tick-borne disease and that Jones was wrong to prescribe antibiotics for nearly a year without repeat exams and with no arrangements with another doctor—the patients live out of state, in Nevada—to monitor side effects and results of long-term antibiotic therapy.
I have no problem with this, as reported. It seems to be a case where medical professionals successfully policed themselves and held one of their own accountable to objective standards. Jury verdicts hurt pocket books, but they rarely if ever provide guidance for how doctors should practice in the future.
(If you read further down, the doctor’s lawyer seems to be portraying the defendant here as some sort of Gallileo against the establishment. I don’t have any way of knowing if he has a case. But I don’t see how medicine can simply allow “mavericks.” There has to be some way the government can determine the difference between treating a patient and poisoning him or her.)
The Medinnovation blog has an entry dedicated to the question of why the Midwest is different than everywhere else.
In my last blog, I brought attention to the fact that the lowest malpractice premiums are in a tier of Northern Midwestern states – Minnesota, Wisconsin, Iowa, and the Dakotas.
As I looked at this 2007 data from the Medical Liability Monitor, I asked myself – Why does this swath of states have such low premiums?
Having spent 1975 to 1990 as editor of Minnesota Medicine, I decided to find out. I called Chuck Meyer, an internist who now serves as editor-in-chief of Minnesota Medicine. He referred me to Mark Odland, a surgeon at Hennepin County Medical Center who has assumed the role of Group Chairman of the Minnesota Medical Insurance Company (MMIC), which directs malpractice traffic for the Minnesota Medical Association.
What follows is pretty interesting, but I’d need to know if the other states he mentioned are following the same practices and trends to know if his answer about Minnesota really explains all the states.
(The earlier entry is also well worth reading.)
Still, the practices he mentions may be helpful. The bottom line is that he recommends doctors vigorously oppose frivolous suits and do everything else they can to show that they are not going to be “easy pickings” for overly-litigious aggressors.
Makes a lot of sense to me. If the risk of filing a frivolous claim is low, then why not file the claim? One might win the jackpot despite the odds. But if the risk goes up, then lawyers have a motivation to be more careful in how they sue.
Since the 2003 closing of the Elizabeth Seton Childbearing Center in Manhattan’s Chelsea neighborhood, pregnant women have had few alternatives to hospital birth in New York City. The Seton Center, part of the Saint Vincent Catholic Medical Centers system, closed in part due to the soaring cost of malpractice insurance for midwives. The new center will not provide that coverage but require practitioners to purchase their own, with midwives and doctors operating as independent contractors billing insurers directly.
Yet more evidence of how unlimited liability and the hope of a jury jackpot can really reduce medical options. Everyone is poorer as a result.
When I blogged about on the new form of liability mentioned in the WSJ health blog, I hadn’t noticed this entry at Overlawyered.com. I want to point out the similarities in perspective (you will have to trust me that I didn’t read these comments before I wrote my own) as to what will result in holding doctors responsible for the damage done by their patients for ignoring potential side effects of their meds:
The obvious dynamic result from this gigantic expansion of liability, unnoted by the majority: doctors will simply overwarn, and tell all of their patients not to drive. (After all, patients can’t sue their doctors for the damages caused by their being unable to drive.) Some patients will routinely ignore the advice because they won’t be able to distinguish the legitimate warnings from the defensive warnings; other patients will stop taking medication that they should be taking because of the additional unnecessary personal costs; still other patients who could have driven safely will impose huge costs because they obey the defensive warning. None of these indirect expenses caused by the expansion of liability will be measured in accounts of the costs of the tort system.
I highlighted that last sentence because it is something important that I forgot about. The costs being imposed by this medical malpractice liability will not be calculated or measured, even though they will be real.
The NY Medical Malpractice blog reproduces an entire judicial decision in the entry, “Don’t Judges Know Not To Give Gifts To Litigants?“. Here is a snip:
Throughout this lengthy and acrimonious trial, the Trial Justice demonstrated a propensity to admonish the defense counsel at a substantially more frequent rate than she did the plaintiffs’ counsel, often admonishing the defense counsel for actions about which she failed to comment when committed by the plaintiffs’ counsel. She gave the plaintiffs’ counsel significantly more leeway in cross-examining witnesses and in making extraneous comments than she gave the defense counsel. During the trial and in front of the jury, she gave a gift to the infant plaintiff. Later, also during trial, she gave each jury member a gift when the court recessed for a holiday break. Under the circumstances, the defendants were denied a fair trial by virtue of the cumulative effect of the improper conduct of the trial court, and as a result, the jury could not have considered the issues at trial in a fair, calm, and unprejudiced manner (see Ougourlian v New York City Health & Hosps. Corp., 5 AD3d 644, 645; Gentile v Terrace Hgts. Hosp., 57 AD2d 585; Perkins v New York Racing Assn., 51 AD2d 585). Accordingly, a new trial is warranted.
But this was not all of it. The jury actually awarded the plaintiff $600, 000. Then the lawyers claimed that they actually meant to award the amount annually. So the judged raised the amount. The defendants found themselves liable for over $14 million.
We note that the trial court also erred in granting the plaintiffs’ motion to correct an alleged ministerial error made by the jury in recording its verdict, based upon the submission of affidavits of each juror sworn to more than a week after the verdict was rendered, and upon improperly holding a hearing to determine whether the affidavits reflected each juror’s true intent. Here, although the plaintiffs’ counsel allegedly learned from at least two jurors, immediately after their discharge and before they left the courthouse, that they had intended their award of damages in each category to be on an annual basis, the plaintiffs’ counsel did not procure affidavits from any of the jury members until more than one week later. During that time, the plaintiffs’ counsel [*3]obviously communicated with each juror, exposing them to “outside influences of the most prejudicial sort” (Moisakis v Allied Bldg. Prods. Corp., 265 AD2d 457, 458). In the interest of protecting against the posttrial harassment of jurors and the instability of jury verdicts, the trial court should not have altered the jury’s verdict under these unique circumstances (see Moisakis v Allied Bldg. Prods. Corp., 265 AD2d at 457, 458; cf. Smith v Field, 302 AD2d 585).
One of the main complaints about the way medical malpractice cases work, is that the system is designed to make jurors want to find a way to give the person making the accusations money. Two people are presented to them. One is bad off and the other is well off. Where do the jury’s sympathies naturally lie?
I suppose someone can reply that many doctors don’t get convicted. But the fact is that (1) a trial is typically expensive and demoralizing for them anyway, and (2) monetarily doctors do lose enough that, in some specialties, like mammograms for instance, we are experiencing shortages.
Here one could claim the system worked. But at what cost to the doctor and the court system?
For further reading check out Law.com: $14 Million Med-Mal Verdict Tossed Out due to Judge’s Actions (hat tip: PointOfLaw > hat tip: Kevin MD)
Another interesting post yesterday, this time from the WSJ health blog
A man taking several prescription drugs passes out at the wheel, drives off the road and hits and kills a 10-year-old boy. Can the boy’s mother sue the doctor who prescribed the drugs?
Yes, Massachusetts’s Supreme Judicial Court ruled yesterday, the Boston Globe reports. The mother’s lawyers allege that the doc failed to warn his patient about the side effects of the medications and the potential danger of driving while taking them.
The patient was 75 years old and had emphysema, high blood pressure and metastatic lung cancer. He had prescriptions from his doctor for oxycodone, Zaroxolyn, prednisone, Flomax, potassium, Paxil, oxazepam, and furosemide — drugs whose side effects include drowsiness, dizziness, and fainting, according to the Globe. He reported no side effects in the months before his accident, however.
I guess it would be one thing if “innocent until proven guilty” applied in these sorts of cases. But I suspect a lawyer will try to get a jury to simply doubt that the doctor warned the patient.
So what will this mean? Will doctors be tempted not to prescribe meds for a patient due to concerns of what the patient might do and the liability trail that has now been blazed back to his door? Will this mean another level of paperwork that documents notification of all possible systems and side-effects? Maybe video recordings in the office to provide evidence?
Here is a story about a different kind of medical lawsuit. In this case, the doctors aren’t being sued, but the patients are being sued so that they are forced to get care from Medicare rather from their own funds. I can’t help but think this is to the financial hurt of both the patient and the healthcare system.
I also can’t help but think that if this is how the legal system treats patients, then it is not going to treat doctors any better. It is all to the benefit of lawyers and whoever can afford one.
Deborah Shank’s car was hit by a truck. She was left in a wheelchair and had extensive brain and nerve injuries. Ms. Shank was an employee of Wal-Mart at the time of the accident, and her health insurance covered over $400,000 in medical costs. She hired an attorney, and sued the owner of the truck. The settlement yielded $700,000 for Ms. Shank. Legal fees and expenses to prosecute her claim were paid; and what remained, $417,000 was placed into a trust to be used for Ms. Shank’s care.
Wal-Mart sued Ms. Shank to recover the money they spent on past medical bills. An appellate decision upheld Wal-Mart’s right to $469,215 in medical costs, legal fees, and interest for the cost of suing. As this number is higher than the amount that remained in the trust, Wal-Mart essentially got it all.
The rest of the post explains the legal rationale and makes some pretty incisive statements about where we are as a society in which this can take place. The victim is now in a nursing home without funds, relying on Medicare and Medicaid.
The Medinnovationblog asked an intriguing question (at least to me): “Who speaks for doctors?”
You don’t have to read in the medical blogosphere all that much to get the idea that doctors are quite unhappy with the way their profession is going. Yet, how much lobbying power do doctors exert? It doesn’t seem like they wield that much pressure. (The ongoing writers’ strike makes me wonder what would life be like if doctors unionized. I realize a strike is unimaginable for a lot of reasons, but it seems to me that they ought to have more clout as a force in society than they do now.)
I may be wrong, but there doesn’t seem to be much of a national means for doctors to protect themselves from harm. To pick one of four possibilities at random, for the issue of medical malpractice, it would be interesting to see the results if doctors started a national campaign for health courts and lobbied for it in Washington and in the states. I’m not endorsing this issue or the other three proffered alternatives. I’m just saying it would be interesting to see doctors get behind one of them and exert some muscle. Other groups can do this. Is there some reason doctors can’t?
When you think about it, having choices taken away from you isn’t too much unlike being in prison. In prison, you are under the care of other people and are not the one making the final decision about medical treatment. Since, now people almost never directly pay for medical treatment, the situation isn’t entirely different “on the outside.”
So I thought this story was interesting:
Barely a month after he appeared in an Albuquerque courtroom complaining of filthy food and foul treatment at the Penitentiary of New Mexico, Astorga, 31, was back Thursday to grouse about what his attorney called treatment tantamount to medical malpractice.
Defense attorney Gary Mitchell said that even after agreements were made last month to improve his client’s care while waiting for trial, doctors refused to perform diagnostic tests such as an MRI or CT scan to determine what was causing Astorga’s chronic back pain.
“I think I know exactly what’s going on here,” Mitchell told state District Judge Neil Candelaria. “They don’t want to pay for it.”
But Department of Corrections medical director Stephen Vaughn testified that such tests were not warranted and that Astorga had refused the physical therapy and nonsteroidal anti-inflammatory medication he had been prescribed.
An X-ray of Astorga’s back in August found no particular issue, Vaughn said.
Mitchell countered that Astorga refused the treatment because he first wants to know what’s wrong with his back.
“We’re not asking for the world,” Mitchell said.
The judge denied Astorga’s motion for medical treatment, saying the Department of Corrections appeared to be providing reasonable care and that Astorga was refusing care.
Basically, because a prisoner has limited control of his life, and none of his own resources to use, he is pretty much reduced to either trusting his guardian doctors or second-guessing and suing them to get his way. In this case, other than the court costs, it looks like the story ended with the right results (as far as I can tell from the newspaper report). But, in this case, no one died or was disabled, so no one had a motive to try to blame their condition on the nearest doctor.
In a situation where anything that goes wrong will be blamed on doctors, one can guess that institutions are going to mandate unreasonable tests and scans in order to manage the risk of being sued.
