May 10th, 2009

Doctors Are Still Tops in Pay (But Complain About Malpractice Premiums Anyway)

Another year, another survey, and once again physicians are found to take home the biggest paydays in America. In fact, out of the ten top paying jobs, nine go to medical professionals.

It’s something to think about when doctors complain about malpractice premiums. Complaining about an expense is OK, but it is only relevant if the complainers also disclose their income. Saying an insurance premium is 20K means one thing if a person nets out 45K, but it means something else entirely when the person nets out 150K.

This is not to say that doctors don’t deserve the big paychecks. Some do, some don’t, it depends on the individual. And many doctors do carry extra debt from four years of medical school and low-wage residencies.

But if a medical professional is going to complain about an expense of working, they should nevertheless be prepared to also disclose their income. Because expenses have no context without knowing what it means in terms of income.

Links to this post:

doctors’ salaries and medical malpractice
forbes provides the top paying jobs in the united states. here are the top 5: 1. surgeons (>06770) 2. anesthesiologists (<97570) 3. orthodontists (<94930) 4. obstetrician and gynecologists (<92780) 5. oral and maxillofacial surgeons …

posted by @ May 11, 2009 12:49 PM

doctors’ salaries and medical malpractice
forbes provides the top paying jobs in the united states. here are the top 5: 1. surgeons (>06770) 2. anesthesiologists (<97570) 3. orthodontists (<94930) 4. obstetrician and gynecologists (<92780) 5. oral and maxillofacial surgeons …

posted by @ May 11, 2009 12:08 PM

March 31st, 2009

NY Court Of Appeals Tosses Out Verdict Due To Failure to Poll Jury

New York’s high court today threw out a plaintiff’s verdict in a medical malpractice case because the court refused the request of the plainitff to poll the jury at the time the verdict was rendered.

The decision in Duffy v. Vogel, authored by our new Court of Appeals Chief Judge Jonathan Lippman, came after a plaintiff’s verdict of $1.5M in a medical malpractice case. He wrote:

In New York, we have long recognized that affording jurors a last opportunity individually to express agreement or disagreement with the reported verdict, is, when requested by a litigant, indispensable to a properly published, and thereby perfected, verdict.
…
Inasmuch as, under New York law, the honor of a request for a jury poll is a necessary condition of a “finished or perfected” verdict, it follows that in this State’s courts the failure to poll a jury may never be deemed harmless. Harmless error analysis is a judicial device employed to sustain an already perfected verdict, not to perfect a verdict in the first instance.
…
The proper publication of a verdict in open court, so long deemed essential to assure the integrity of the verdict, is not to be cast aside as a mere formality on the theory that jurors are prospectively bound to act in accordance with their verdict sheet signatures.

The dissent would have held this to be harmless error.

March 30th, 2009

Medical Malpractice Reform Fails in New York

Yesterday, budget negotiations between the Governor and legislative leaders failed with respect to reforming New York’s medical malpractice laws. This leaves thousands of people without attorneys who may have legitimate claims for malpractice, but no one to investigate them.

New York has some of the lowest medical malpractice legal fees in the nation. As a result of mid-80’s legislation, countless people who have been harmed by malpractice over the years have been unable to obtain representation. But reform of that law, that was part of the budget negotiations just concluded, failed according to a source I spoke with earlier today.

Unlike most negligence cases, where the top legal fee 1/3 of the recovery, malpractice legal fees are substantially lower. New York’s “sliding scale” fee structure looks like this:

30% of the first $250,000 of the sum recovered;
25% of the next $250,000 of the sum recovered;
20% of the next $500,000 of the sum recovered;
15% of the next $250,000 of the sum recovered;
10% of any amount over 1,250,000 of the sum recovered.

Thus, while malpractice cases are significantly more difficult to bring, and cost a great deal more (due to the necessity of hiring additional experts), the fees are lower than in other personal injury matters. Essentially, the lower fees, greater expense and significant technical difficulty of bringing such suits have given de facto immunity to the medical profession for many claims.

The New York Post, in an opinion column last week, claimed such a change in the legal fee structure was a “bonanza” to lawyers. The piece by Post columnist Fredric U. Dicker claimed that there would be “windfall” earnings to lawyers, evidence that he really doesn’t have much clue as to what he is writing about. He clearly knows nothing of the actual economics of bringing a malpractice claim and proving it, or that they rarely settle easily. Nor does he appear aware the largest cases almost always need to have any fee approved by a judge.

While I’ve never met him, I have no doubt Dicker would change his tune in a hear beat if he was the one who was injured by the negligence of others, just like these other people. He also probably doesn’t know that the medical malpractice “crisis” has been debunked as a hoax (and yet more here) and probably doesn’t know why malpractice premiums for New York doctors jumped dramatically recently. He might, perhaps, be interested in the price gouging by some medical malpractice insurers, or how malpractice gets covered up, or even about the White Coat of Silence, but he would only be interested if he had an open mind.

Dicker didn’t report that most malpractice victims are without recourse and forced to bear all of the loss. Time and again I receive phone calls from people desperately trying to find counsel, and learn that I am but one attorney in a long list that has rejected the matter simply because of the economics of the matter.

Once upon a time in America we believed that people should be held responsible and fix their mistakes. But the right wing Post has apparently dropped that in favor of political partisanship.

If medical practitioners want to put malpractice lawyers out of business, there is a way to do it. But it isn’t by victimizing the patient a second time.

More on the subject at Point of Law supporting the Post editorial.

March 17th, 2009

As Seen On Oprah! (Kinda, Sorta, Almost)

Oprah is big. I know this because my media maven wife tells me so. She has, like, a jillion fans and even more money. I’ve never actually seen her strut her stuff on her show, but a jillion fans (and even more money) can’t really be wrong, can they?

So I was flattered when Harpo Productions, Oprah’s production company, contacted me. It seems that one of her regular segments is with a Dr. Mehmet Oz, and he wanted to do a piece on medical mistakes.

So enter stage right, me. Well, not exactly me, and if you’ve seen me on TV you’d know why. No, they wanted to use some of the images from my website for the show. I have a series of x-rays in my office that show various bits of surgical equipment left behind after surgery.

And by golly those kind of images would look nice on a show about medical mistakes since TV is, after all, a visual medium. And they wanted to use my images.

Of course! I said. And who wouldn’t? And even though Oprah has said jillion dollars, I volunteered that I didn’t want any of it for the use of the x-rays. A simple thank you would be nice. I would help with what was likely to be a valuable piece for a big audience and all would be right with the world.

But Oprah had a problem, it seems, with the “thank you” part. Or at least her legal team did. I asked that my firm receive proper credit for the use of the images so that others would know their source, and if the segment or films appeared on the web, a link back to my site where the films were found.

No sirree, they said. No link. No link? I’ve dished out, and received, more than I can count. They told me it was “standard” not to link. That, of course, is complete nonsense, as you can see from sites such as the Wall Street Journal and the New York Times, among others. Oprah offered up an “end credit,” those scrolly things that roll by at the end that no one ever sees, or on web versions an unlinked url.

OK, I said not wanting to be too much of a pain, because while the link was nice it really wasn’t that big of a deal to me. It would still be fun to write about being kinda, sorta, almost on Oprah. My x-rays would have their 15 nano-seconds of fame and I know that they would like that. And I would have helped Dr. Oz spread the word about real medical problems and mistakes and yada, yada, yada.

But even that seemed to be a problem for Oprah. Because part of the license agreement was this wonderful little bit that I’ll summarize: We (Oprah) get to use your x-rays. And you (Turkewitz) get to surrender your First Amendment rights to discuss that fact. In other words, I get to pay them to use my material. Not with cash, but with good old fashioned rights. What a deal!

Here is the actual language, paragraph eight, from the license agreement that they wanted me to sign:

Licensor acknowledges and agrees that it shall not and cannot use Harpo’s name or logos or Ms. Winfrey’s name, voice, picture or likeness for any advertising or promotional purposes without first obtaining the written permission of Harpo relating to the Material. Specifically, Licensor agrees not to use Harpo’s name or trademarks, Ms. Winfrey’s name or likeness, or a quote from Ms. Winfrey or the Program on Licensor’s website, in any Licensor-related publication, in connection with the marketing or advertising of Licensor or in connection with any book, blog, or other publication, product or service (including digital transmissions such as the internet or other on-line computer communication services) relating to Licensor. Further, Licensor hereby agrees not to use the phrase “As seen on Oprah”, or similar statements, in any promotional or advertising material it creates or on its website.

OK, so they want to use my stuff and they don’t want me to talk about it or even mention Oprah’s holy name or use her image.

But there was one last avenue to explore — because after all, this would have been fun — and that last avenue was the part about obtaining written permission. So I told them I had every intention of blogging about it. Great!, they said, what did you want to write? Umm, since the show hasn’t aired, how could I possibly know? Does Oprah review a book that she hasn’t yet read?

And that, my friends, was the end of that. Over several weeks and a couple dozen emails with three different people from Harpo working on this little project, they successfully overlawyered the issue to death. I know what you’re thinking, her career will probably hit the skids as a result.

Now I don’t mind being played for a fool, but that’s only if the foolster happens to be my offspring, and I’m even willing to bend that rule if the foolster is merely a friend of the offspring. I’m game to ask why the chicken and all manner of other critters crossed the road, and to laugh at assorted knock, knock jokes, though I generally draw the line at the 9th iteration.

But I don’t really care to be played for a fool by Oprah, no matter how big a shot she may be.

The licensing agreement, never signed, is here: /Oprah-Harpo.pdf

November 23rd, 2008

Defensive Medicine or Medical Greed? (Volume Business in Liver Transplants)

When medical care costs go up, tort “reformers” love to scream “defensive medicine” and blame medical malpractice attorneys for the rising costs. All those unnecessary tests, they rationalize, must be due to the doctors’ fear of being sued.

Except, of course that there are other reasons for unnecessary tests. Like greed. Because doctors and hospitals, for example, gets paid more money for more surgeries. Expensive surgeries.

And so comes this story in the Wall Street Journal (Doing a Volume Business in Liver Transplants), not exactly a friend to consumer groups, about the University of Pittsburgh Medical Center and the way they increased their liver transplant business. They had once been leader in the field, lost it, and sought to reclaim it by hiring Amadeo Marcos, a transplant surgeon who promised to double the number of liver transplants the hospital did.

And he did do that. But it came at a price. In order to get all those transplants done, they had to change the rules about which patients get them and where the livers come from. From the WSJ article:

To overcome a perennial shortage of organs, he used more livers from older donors. He transplanted some of these into relatively healthy patients for whom the risk-reward calculation was less certain. He used partial livers from living donors, and then understated complications from the controversial procedure.

It’s worth noting here that, while the hospital is ostensibly a non-profit and therefore evades most taxes, it’s mucky-mucks don’t treat themselves that way:

Its chief executive, Jeffrey Romoff, earned $4 million in the fiscal year ended June 30, 2007, and 13 other employees earned in the roughly $1 million to $2 million range. For their transportation, UPMC leases a corporate jet. Earlier this year, UPMC relocated its headquarters into Pittsburgh’s tallest skyscraper, the 62-story U.S. Steel Tower.

How much is a transplant? About $400,000-$500,000. There’s a lot of money is those livers, if one only knows how to mine them.

According to two doctors that worked with Dr. Marcos:

Dr. Marcos put some of these organs into patients who were in the early stages of liver disease, say Dr. Fung and Howard Doyle, who then worked in UPMC’s transplant intensive-care unit. These were patients, they say, who sometimes didn’t need a transplant.

“For the first time in years, we had people dying on the operating table or in the ICU,” says Dr. Doyle, now director of surgical critical care at Montefiore Medical Center in New York. At times, according to him, patients healthy enough to walk into the hospital before being transplanted died “because they had a high-risk liver put into them.”

Next week, or perhaps the week after, there will be yet another report, someplace, somewhere, about the high cost of medicine, and someone will scream “blame the lawyers” and this story will be forgotten.
————————————-

Hat tip to Kevin, M.D. (“This is revenue-driven medicine at its extreme”).

Another synopsis (if you don’t get WSJ) by Buckeye Surgeon Dr. Jeffrey Parks at Transplants Run Wild. He has this nugget, but the whole post is worth reading:

Well, it became evident that Dr Marcos was putting bad livers in patients who weren’t that sick. Let’s say your patient is number 25 on the MELD list. A liver becomes available. But it’s a bad liver (old patient, prolonged ischemic insult prior to harvest, steatotic, etc) and transplant surgeons representing patients 1-24 on the list have all turned it down. It’s a terrible liver, they say. Odds are, it won’t work all that well. Your patient isn’t that sick. In fact, said patient is living independently at home and was buying groceries for her family when you called her to tell her a liver was available. Nevertheless, you book her for the OR that night and stick that liver in her anyway.