October 14th, 2011

The Failure of Medical Malpractice Caps (Healthcare Costs Rise in Texas)

Public Citizen released a report this week on the abject failure of a $250,000 medical malpractice cap put in place by  Texas in 2003. Why is this is important? Because as I discussed  two days ago, so-called conservatives are trying to expand federal power to implement a similar scheme on the federal level.

So it’s important to note that such a scheme fails not only on the constitutional level as viewed from exercising federal power over state claims, but that it fails on a state-wide level as well in that it does not lower healthcare costs as it was intended to do. It may lower the number of malpractice suits by its grant  of protections and immunities to those that negligently injure others, but it doesn’t improve healthcare costs.

Most significantly, the report contradicts the “defensive medicine” theory, which holds that fear of litigation is to blame for stark increases health care costs. While the number of lawsuits plummeted, and with it the fear of being sued, Medicare costs rose 13% faster than the national average. According to the report, “health insurance costs have outpaced the national average and the percentage of residents lacking health insurance has risen.”

Some other findings:

Medicare spending specifically for outpatient services in Texas has risen 30.7 percent faster than the national average;

Medicare diagnostic testing expenditures in Texas have risen 25.6 percent faster than the national average;

Premiums for private health insurance in Texas have risen faster (51.7 percent) than the national average (50 percent);

The percentage of Texans who lack health insurance has risen to 24.6 percent, solidifying the state’s dubious distinction of having the highest uninsured rate in the country;

The per capita increase in the number of doctors practicing in Texas has slowed to less than half its rate in the years leading up to the caps;

The per capita number of primary care physicians practicing in Texas has remained flat, compared to a sharp increase in the years leading up to the caps; and

The prevalence of physicians in non-metropolitan areas has declined.

This is the synopsis of the report, from Public Citizen:

“A common perception among policymakers and pundits is that medical malpractice litigation is significantly, or even chiefly, to blame for skyrocketing health care costs and steadily diminishing access to care. But analysis of data in Texas, which in 2003 imposed some of the strictest liability caps in the country, tells a far different story. While litigation over malpractice in Texas has plummeted dramatically since the caps were imposed, residents of Texas (except for people with financial connections to liability insurance companies and, to a lesser extent, doctors) have realized few, if any, benefits. Instead, the health care picture in Texas has worsened significantly by almost any measure.”

The full report is here:   A Failed Experiment; Health Care in Texas Has Worsened in Key Respects Since State Instituted Liability Caps in 2003

I had addressed the problems in Texas back in 2009 in this post:  Do Texas Med-Mal Damage Caps Work? (What Do You Mean By Work?)

So the bottom line is this for medical malpractice caps: Injured people have the courthouse doors slammed in their faces; Those that are negligent are protected; There is zero benefit to the public at large; And insurance companies pocket most of the difference.


July 26th, 2011

Suicide and Medical Malpractice (Updated x2)

Every so often you see a case, or one is presented to you if you represent the plaintiff’s side, where a surviving family member wants to bring a medical malpractice action. And the injury was a suicide.

Those are, to be sure, tough cases on three different levels. First, no matter what happens your client (the surviving family member) will never, ever be happy. No matter what. Second, juries are naturally sympathetic to the medical profession for these cases, and may be loathe to place even partial blame on a doctor, regardless of the treatment (or non-treatment) that took place. And third, the doctor will always raise the defense of professional judgment regarding the treatment.

It is that third point that appeared last week in Thomas v. Reddy, decided by the Appellate Division Second Department. The battle lines were clearly drawn, with the plaintiff claiming a departure from accepted medical practice, and the defendant saying that, if he did anything wrong, it was a mere error of judgment* for which a malpractice case must fail.

The defendant elected to move for summary judgment, a generally rare motion in these cases since issues of fact that need a jury are often plentiful. This was the sad fact pattern:

The plaintiff’s decedent checked into the defendant South Nassau Communities Hospital (hereinafter the hospital) on November 6, 2006, seeking treatment for “manic depression.” The decedent was pregnant at that time, and had a history of suicide attempts, psychiatric hospitalizations, and treatment for bipolar disorder. The hospital treated the decedent several times over the course of the following months in its outpatient program. On February 28, 2007, the decedent told her obstetrician/gynecologist that she hoped that her fetus would not have a heartbeat during a sonogram, and that she would use her husband’s gun to kill herself if she could find it. She was referred to the hospital’s inpatient unit that day.

So what did Dr. Reddy (allegedly ) do wrong? The Court continued:

The defendant Dr. Stanley Reddy took over the decedent’s treatment on March 12, 2007, when the physician who had been treating the decedent during her admission went on vacation. At his deposition, Dr. Reddy admitted that he had never seen the decedent’s outpatient records. [*2]Further, Dr. Reddy testified that he had never seen a progress note, dated March 11, 2007, stating that the decedent was having “altered thought toward [her b]aby,” and that her plan of care had not been met, and that no one had told him that the plan of care was not being met. Dr. Reddy discharged the decedent on the afternoon of March 14, 2007. Later that night, the decedent killed herself by suffocating herself with a plastic bag.

And this set up the classic fight in any malpractice case: Was it a departure from care to discharge the patient or was it a judgment decision for which he is immune from suit?* In making a motion for summary judgment, the defendant:

…established, prima facie, their entitlement to judgment as a matter of law by submitting the affidavit of an expert psychiatrist, who concluded that the appellants did not depart from good and accepted medical practice in making the decision to discharge the decedent.

And the  plaintiff, unsurprisingly, had an expert to say the opposite:

…in opposition, the plaintiffs submitted an affidavit from an expert who opined, inter alia, that the appellants had departed from accepted standards of psychiatric care by making an incomplete and superficial assessment of the decedent’s mental condition prior to discharge. Through this affidavit, and Dr. Reddy’s deposition testimony, the plaintiff raised a triable issue of fact as to whether the appellants exercised something less than professional judgment in deciding to discharge the decedent

The Court did the analysis (citations omitted), which led to the obvious conclusion:

A psychiatrist may not be held liable for a mere error in professional judgment. However, a psychiatrist may be held liable where a treatment decision was based on ” something less than a professional medical determination’.” “A decision that is without proper medical foundation, that is, one which is not the product of a careful examination, is not to be legally insulated as a professional medical judgment.”

With those facts, there seem to be two readily apparent points to make: First, while the case is undeniably sad, from a lawyer’s perspective it is a good model to teach with as it sharply delineates the principle way that malpractice cases are tried and defended. And second, don’t bring appeals of summary judgment decisions when you have a sharp issue of fact for a jury to decide.

(Hat tip: MondayMonday by Jay Breakstone)

Addendum (8/4/11):  This is a good spot to also set forth the law, as it is read to the jury. What follows comes from New York’s Pattern Jury Instructions on the law of medical malpractice. I put in bold the part about errors of judgment being a defense to the accusation that s/he departed from the standard of care.

PJI 2:150 Malpractice—Physician

Malpractice is professional negligence and medical malpractice is the negligence of a doctor. Negligence is the failure to use reasonable care under the circumstances, doing something that a reasonably prudent doctor would not do under the circumstances, or failing to do something that a reasonably prudent doctor would do under the circumstances. It is a deviation or departure from accepted practice.
A doctor who renders medical service to a patient is obligated to have that reasonable degree of knowledge and skill that is expected of an (average doctor, average specialist) who (performs, provides) that (operation, treatment, medical service) in the medical community in which the doctor practices. ([If there is evidence that the doctor should have complied with standards that exceed the standards of the medical community in which the doctor practices, the following should be charged:] The doctor must also comply with minimum (statewide, national) standards of care.)
The law recognizes that there are differences in the abilities of doctors, just as there are differences in the abilities of people engaged in other activities. To practice medicine a doctor is not required to have the extraordinary knowledge and ability that belongs to a few doctors of exceptional ability. However every doctor is required to keep reasonably informed of new developments in (his, her) field and to practice (medicine, surgery) in accordance with approved methods and means of treatment in general use. A doctor must also use his or her best judgment and whatever superior knowledge and skill (he, she) possesses, even if the knowledge and skill exceeds that possessed by the (average doctor, average specialist) in the medical community where the doctor practices.
By undertaking to perform a medical service, a doctor does not guarantee a good result. The fact that there was a bad result to the patient, by itself, does not make the doctor liable. The doctor is liable only if (he, she) was negligent. Whether the doctor was negligent is to be decided on the basis of the facts and conditions existing at the time of the claimed negligence.
[This paragraph should only be charged when there is evidence that the doctor made a choice among medically acceptable alternatives. See Caveat 2 below:] A doctor is not liable for an error in judgment if (he, she) does what (he, she) decides is best after careful evaluation if it is a judgment that a reasonably prudent doctor could have made under the circumstances. In other words, a doctor is not liable for malpractice if he or she chooses one of two or more medically acceptable courses of action.
If the doctor is negligent, that is, lacks the skill or knowledge required of (him, her) in providing a medical service, or fails to use reasonable care in providing the service, or fails to exercise his or her best judgment, and such failure is a substantial factor in causing harm to the patient, then the doctor is responsible for the injury or harm caused.
[Where appropriate, add:]
A doctor’s responsibility is the same regardless of whether (he, she) was paid.
Addendum #2 (8/15/11): Just two weeks after putting up this post, the a Court of Claims judge found for the plaintiff in an attempted suicide case against the State (Acerbo v. State of New York). While the Court could have found the Claimant partially liable, it found the State 100% liable. The Claimant was delusional and had a history of prior suicide attempts, and the institution was found to have violated its own policies. The brief summary (much, much more at the link):
[Claimant] attempted suicide by hiding in a bathroom and cutting himself with plastic knives he had obtained from the facility’s dining room. Claimant contends that Rockland’s failure to follow its own policy and procedure, which required that all utensils be accounted for in the facility’s dining room, enabled him to obtain the knives he used to attempt suicide. He also maintains that Rockland did not provide him with sufficient psychiatric care while his treating psychiatrist, Dr. Abkari, was on vacation, and that Rockland failed to recognize and treat claimant’s symptoms which indicated that his mental state was deteriorating.


December 20th, 2010

How Much is a Breast Worth?

The fact pattern is not complex: A 32-year-old single woman had a mastectomy. But she didn’t have cancer. The modified radical mastectomy was unnecessary. A Bronx jury found malpractice and awarded her $3 million for past pain and suffering and $3.5 million for future pain and suffering extending over 41.9 years. The trial judge then directed a new trial as to damages unless the plaintiff stipulated to a reduced total award of $1 million.

The legal arguments are not about the issues of liability here in Williams v. New York City Health & Hospitals Corporation, but as to what is considered an excessive verdict.

Up the case went to the Appellate Division, First Department (which, for out-of-towners, sits in Manhattan). And a divided panel agreed with the trial judge and set the limit for such a case at $1M. There was a furious dissent by Judge James Catterson, who agreed that while the verdict was excessive, also believed that the $1 million award substantially undervalued the emotional trauma of such an incident to a 32-year-old single woman.

Why the dispute? Because in the words of the majority:

The dissent’s suggestion that plaintiff must have suffered extreme emotional distress is not supported by the record.

Not supported by the record? There was no question that the woman lost her breast unnecessarily. The jury saw photographs. Some injuries are abundantly obvious. And yet, the majority simply accepted the defendants’ argument that there is no proof of future pain and suffering because the plaintiff did not testify extensively about her emotional distress. In other words, if you don’t state the obvious, the court will toss your verdict.

According to Judge Catterson, as the majority tried to compare this case with another verdict:

Appellate Division Judge James Catterson

The defendants appear to believe that because the plaintiff in this case was not able to articulate a similar experience of shame, embarrassment and humiliation, she therefore does not suffer such emotional distress. The defendants appear not to have heard the oft-quoted phrase “a picture is worth a thousand words.”

Moreover, the majority’s view that the plaintiff’s extreme emotional distress is not supported by the record clearly indicates that the majority has not viewed the photos in the record. Given the post-operative photos of the plaintiff, I believe any testimony by the plaintiff as to distress, for example, over not being able to wear a bathing suit; or of her fears of never finding someone to love or desire her would be simply superfluous, if not overkill.

New York, contrary to popular belief, has a means of reducing excess verdicts (and similarly raising up excessively low ones). But it isn’t the one-size-figs-all approach that tort “reformers” want in order to protect the wrongdoers. (See: How New York Caps Personal Injury Damages) And in this case, we see the application of that procedure.

Since this appellate decision had two dissenting voices, the plaintiffs may appeal as of right to New York’s high court, which is what I would expect since they have much to gain and nothing to lose.

More on this case from John Hochfelder (from whom I swiped the breast image above). He does an analysis of the “similar” cases that the majority and dissent relied upon, and also adds inside info that he got from calling the lawyers involved.


February 2nd, 2010

SuperLawyers Gets Sold, Creates Conflict With FindLaw (And My Days As A SuperLawyer Seem Numbered)

I was amused some months back when I was named one of New York’s personal injury “SuperLawyers.” I had some ambivalence about it since it was difficult to know much about the magazine’s methodology in making selections.

But no matter now; the company has now been sold to Thomson West and my days on the list, it seems safe to say, are numbered. I’d bet good money I won’t be on it next year.

Why? Because Thomson West also happens to own FindLaw, whose dreadful history of selling links, ripping off a certain blog name, exploiting dead victims for its dreck-blogs by a writer who appears to know little about the law, and diminishing the profession of law in general, has been a recent topic here. FindLaw gets paid big buck by some lawyers, and it has lost business as a result of my posts regarding its conduct. And if you charge $10,000 a year to lawyers, it doesn’t take more than a few lost pigeons accounts to tick people off.

So you can bet that FindLaw will make sure that SuperLawyers keeps a healthy distance from me next year. But they really have a bigger problem than little old me.

You see, folks, FindLaw will want it’s big-paying customers to be included in the SuperLawyer listings. And since SuperLawyers thrives on the very expensive magazine ads that supplement its listings, and FindLaw has an existing catalogue of lawyers willing to spend heavily on marketing, those lawyers are real important. Some B-law grad was whispering the magic word “synergy” into the ears of the powers-that-be.

So while the purchase by Thomson West would seem at first blush to bolster the credibility of SuperLawyers, the company actually runs smack into an inherent conflict of interest that gums up the works. While it tries to build an objective rating system with SuperLawyers it is also taking big money for the FindLaw listings. And that is a big problem if you want to claim objectivity in ratings.

Over at Bob Ambrogi’s Law Sites, he writes that Thomson West intends to build a Chinese Wall of sorts between the companies. He writes:

[Christopher Kibarian, president of the Business of Law group] said that a key priority for Thomson will be to provide assurances of the independence and integrity of Super Lawyers ratings. Super Lawyers already employs a rigorous selection process, he said, one that has been recognized by bar associations and courts across the country for its credibility and sophistication. It combines peer nominations and evaluations with third-party research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis.

On top of that, Thomson will create an independent advisory board to ensure the integrity and independence of the ratings process.

Will it operate independently? Ask yourself this: Do you trust any company that would exploit a dead child for ad copy on a faux-blog?

FindLaw’s credibility is currently around zilch. And that means that everything that comes near it will be adversely affected. Thomson West will try to build up the SuperLawyer’s brand, which already suffers from credibility problems. But as long as they keep FindLaw’s dreck-blogs, they will run into continuing problems. And that is in addition to the conflict and credibility issues.

If Thomson West has any hope of success here it will have to figure out way to rise to a higher place. As the legal blogosphere confronts ugly lawyer commercials, ghostbloggers (more, more and more) comment spammers, and marketing hustlers of every stripe, the major companies should be trying to reassure its customers that if they are entrusted with the marketing of a lawyer (and therefore with the lawyer’s ethics) they won’t screw things up. And right now, the opposite is happening.


March 31st, 2009

How One Hospital Covered Up A Death — And One Doctor Refused to Go Along

This is an absolutely stunning story. A mother dies during childbirth and an investigation ensues.

But one doctor refuses to go along with the party line, which is to cover everything up.

“They killed my patient. Then they tried to hide it.” (Dr. Amy Teuter @ The Skeptical OB)