March 10th, 2008

New York Doctors Rally In Albany for Tort "Reform"

New York’s doctors, led by the state Medical Society, rallied last week for tort “reform,” blaming lawsuits for the increase in insurance premiums. According to a medical society press release, 1,500 physicians traveled to Albany last Tuesday to protest on the steps of the State Capitol. The issue they brought to the legislators was high medical malpractice premiums, which I reported last July jumped 14% (see: Why New York Medical Malpractice Insurance Jumped 14%).

As you can see from that link (You did read that link, didn’t you? I hope so because it’s important), the jump was related to artificially low rates set by the New York Insurance Department for years combined with the state swiping almost $700M from the rainy day fund.

But when the doctors rallied in Albany, it was injured patients that were their targets. In a surreal moment, Dr. Robert Goldberg, the head of the Medical Society, offered up in a press release this humdinger of Doublespeak:

Physicians firmly believe that patients who truly suffer injury due to medical error should be fully reimbursed for economic damages, but non-economic awards must be reined in and the litigation process must be made equitable.

In other words, caps on lawsuits must be imposed on the most badly injured individuals because it would be inequitable to fully compensate them. Equity, it appears, demands giving some level of protectionism to the person that caused the injury. George Orwell would certainly be proud.

One of the reasons this bit of propaganda is important is because payments to the injured had nothing to do with the rate hike. In fact, both the number of malpractice case and the amount of payments made have been relatively flat nationwide since 1991.

And the nationwide trend does not differ in New York. In November 2007, Public Citizen put out a report (that I discussed previously here: Will NY Doctors Be Hit With $50,000 Surcharge?) that reached these conclusions, among many others:

There have been fewer medical malpractice payments in the past five years than in any five-year period on record;
Amounts paid out, when adjusted for inflation and population, have either risen slightly in the past five years or declined slightly, depending on the measure used;
Only about 1 percent of New York’s doctors are enrolled in the state’s program for physicians deemed too risky by commercial insurance providers. Yet these doctors’ payments have been so massive that they and other losses have drowned the program in more than $500 million in red ink this decade;
A sliver of doctors are responsible for nearly half of the dollars paid out for medical malpractice in New York. 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.
Costs for cases involving brain damage, blamed by some for rising insurance rates, are in fact modest in comparison with other types of cases. The category for injuries including brain damage ranks 5th of 10 in total amounts paid out. This fact exposes the lunacy of the radical proposal to deprive newborn babies of their legal rights and cede their care to a state-run fund.
Researchers have found that premiums consistently make up only a small percentage of doctors’ total expenses and that rising premiums have not, historically, depressed physicians’ incomes.

Has any of this stopped the doctor’s lobby from claiming that hitting victims a second time, by depriving them of a right to fully recovery, will help? Of course not. The only real questions are these:

Will the doctors abandon the White Coat of Silence that stops them from turning in bad physicians?
Will the doctors finally help to rid the state of the of the small percentage of doctors that are responsible for the majority of malpractice payouts?
Was the medical society’s propaganda known to the doctors who answered their call to lobby, or where they snookered by their own people?

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Full disclosure: I have lobbied New York’s legislators several times in the past to keep the courthouse doors open for the injured, and am currently scheduled for a return visit in May with the New York State Trial Lawyers Association.
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Addendum – see also:

Patient Safety Express (The PopTort):

“Only 4% of New York’s doctors are responsible for half of all of the state’s medical malpractice payouts. How many more people have to be infected by deadly diseases, or killed by incompetent practitioners before the state will act?”
Patient Safety Express, Day Two (The PopTort):

This morning, the “Patient Safety Express” made its way to Albany. The 15-foot syringe and handful more medical malpractice survivors made it through the metal detectors at the State Capitol to tell their stories to the media….

March 7th, 2008

Random Notes

David Giacalone reviews An Almost Life by Kevin Mednick, a novel by an upstate plaintiff’s personal injury lawyer. A snippet of the review:

If you enjoy novels about (realistic) lawyers and lawyering, or you’re looking to be entertained by characters you care about, while learning a bit about the human predicament and the workings of an important (and often misunderstood) social institution, you should read An Almost Life;

David Fischer at Antitrust Review puts up Blawg Review #149;

Six days in jail for an overdue book might not be the best use of taxpayer money (Quizlaw);

The Health Wonk Review is up at Jon Coppelman’s Workers Comp Insider;

A day in the life of a New York emergency room…and a good time to count your blessings (NY Emergency Medicine);

And the Personal Injury Law Round-Up celebrates its first birthday with a post at Perlmuttter & Schuelke. And a year’s worth of great personal injury links shows that the American Bar Association doesn’t know jack about blogging.

March 7th, 2008

What Is A Solo Practitioner?

Over at Susan Cartier Liebel’s Build a Solo Practice she puts out a couple of statistics I hadn’t seen before:

Solos comprise more than 50% of all private practice attorneys in the country. In some states, like New York, they are as high as 81%.

With such a huge predominance of BigLaw in the news, I never realized that I was actually in the majority, not the minority.

But the stats lead to different questions, starting with this: What, exactly, is the definition of a solo?

Does this mean one lawyer, and one lawyer only (along with support staff)?

Or does solo mean that there may be a few associates, but 100% of the equity (and responsibility and liability) of the firm sits with one person?

What definitions are used to create these stats, and what definition should be used?

I’m not going to pretend I know what the “right” answer is, though I think that the element of 100% of the risk is more important than 100% of the work. This is especially true given that many solos may outsource some work when times get busy, creating a vast gray area of per diem, “of counsel,” and part-time lawyers that make precise definitions difficult. I just don’t know how any of this is factored in when statistics are compiled.

And I am more than a bit curious as to what others think, and with that, here is a shout out to:

SoloBlawg (Ben Cowgill);
Home Office Warrior (Grant Griffiths)
Solo in Chicago (Peter Olson)
The Inspired Solo (Cheryl Sisk Schelin)
Legal Research and Writing Pro (Lisa Solomon)
The Greatest American Lawyer (Enrico Schaefer);
Chuck Newton Rides The Third Wave (Chuck Newton);
And, of course, Carolyn Elefant, author of Solo by Choice.

I hope to hear back on other blogs and in the comments here.

Update – Responses:

See What’s a solo? (Carolyn Elefant)
Eric Turkewitz asks, “What is a Solo?” (Susan Cartier Liebel)
What Is A Solo Practitioner? (Chuck Newton)

March 6th, 2008

New York Plastic Surgeon, Sued By Dozens, Finally Surrenders His License

New York plastic surgeon Michael Evan Sachs has finally surrendered his license. As of 2005 he had settled an astonishing 33 malpractice suits, according to this New York Times story.

One of those suits concerned the highly publicized death of Kathleen Kelly Cregan who had flown to New York from Ireland for a face lift.

In a long 2005 investigative piece in the New York Times, it noted that he had settled 11 cases in 1999 alone, and that the Daily News had stated back in 2000 that he was on a list of the “most sued doctors in New York.” (Sachs is seen here in an image from his promotional video.)

According to the article he specialized in rhinoplasties (nose jobs) and sometimes did as many as 10 in one day according to a former employee. “Appearing in 2003 on a broadcast of ‘Ireland AM,’ the country’s most popular morning television show, he stated he had done 42,000 rhinoplasties,” which would have been an average of four every day since he graduated medical school. He once did a free face lift in exchange for publicity in an Irish newspaper.

And it was that article that brought Kathleen Kelly Cregan to New York where she died.

Commenting about his web site, Dr. Scott L. Spear, the president of the American Society of Plastic Surgeons when the 2005 New York Times article appeared, said of Dr. Sachs’s curriculum vitae and biography: “This thing is full of puffery, self-aggrandizement and not professional. This is not a surgeon of high professional standing.”

In May 2005 New York City medical examiner said that Dr. Sachs’s surgery “was a significant contributing factor” to Ms. Cregan’s death.

Simply being sued, of course, doesn’t mean one did anything wrong. There are, after all, some bad lawsuits. But you would think that after the first dozen the Health Department would catch on that there might be a problem, investigate quickly, and not let things get out of hand. A list of 27 settlements from the past 10 years can be found in this document: MichaelSachsSettlements.pdf

It was just last week that I discussed the idea that the tort “reform” of capping malpractice judgments for the most badly injured was a horrible idea. And that if we wanted to do anything about reducing malpractice payments we should take note of the fact that one study showed that 7% of doctors were responsible for 68% of the payouts. (And in the comments of that post, another study, apparently using different years, found 5.9% of doctors responsible for 57.8% of the payouts. The study also found that 82% of doctors had never had a payout.)

So along comes Dr. Michael Evan Sachs to help prove the point. If medical malpractice insurance premiums are a problem, perhaps the medical groups should think less about maintaining a White Coat of Silence, and do more to exorcise the bad doctors from their ranks.

Dr. Sachs apparently got his medical malpractice insurance, by the way, through a guaranteed malpractice risk pool that spread his risk out to others. It was this very same risk pool that was raided by the State of New York of $691M to balance the budget, and helped to cause the recent 14% malpractice insurance rate hike.

The Cregan case is still pending, and is being defended by Mark Aaronson, one of New York’s top medical malpractice defense attorneys.

See also: Manhattan plastic surgeon in accused of patient death loses his license (New York Daily News)

March 5th, 2008

Charges Reinstated Against Empire State Building Parachutist

In 2006 Jeb Corliss tried to jump off the Empire State Building with a parachute and was arrested. After being charged with reckless endangerment, a lower court dismissed the case. Yesterday an appellate court reversed and demanded he stand trial.

The appellate decision in People v. Corliss focused on Corliss being overcharged with reckless endangerment in the first degree, because that meant he had to have acted with a depraved indifference to human life. While he may be a moron for thinking it could be done safely, or perhaps he’s just delusional, his conduct was not seen to be wicked as demonstrated by grand jury testimony of steps he took to try to do is safely. Thus, the court held, he should only be charged with reckless endangerment in the second degree, instead of the firs degree, since the lesser charge does not require the same mental state.

In the meantime, and this is the reason it appears here on a personal injury blog, Corliss had the chutzpah to sue the Empire State Building for intentional infliction of emotional distress because he got scared he might get hurt when security stopped him; As if someone that jumps off of buildings with a parachute would be distressed at this. Maybe it wasn’t chutzpah, of course, but just a desperate need for publicity. The quicker that case gets tossed out, with sanctions, the better for our legal system.

Now comes the really, really hard part, since there is zero chance he will enter a plea, in my opinion, because a trial gets him yet more publicity. But how do you find any New York juror that would state that they have an open mind about whether he endangered the people in the street below by trying to parachuting down into the street? It’s like asking if someone can keep an open mind on whether the sun rises in the east. I discussed those dangers in a post last month (see: Empire State Building v. Jeb Corliss).

Unless, of course, he goes with the insanity defense. Then, I think, he’s got a shot at an acquittal. If he doesn’t kill himself first in another stunt.

On a final note, Corliss complained in these comments on a blog just two days ago that the risk of jumping injuries is for suicides, and not BASE jumpers, citing four past examples of safe jumps. Readers will note that his entire argument is self-centered, focusing only on his own conduct. And he utterly ignores the fact that folks will stop in their tracks if they see someone float down from the sky in midtown Manhattan, while buses, trucks, cabs all zip by. The Appellate Division, however, did not ignore that, writing in words that mirrored my own prior post: “Even a properly functioning parachute that landed a jumper safely might cause a variety of accidents.”