That headline above is the title of a story currently running on CNN’s web site. It comes out of Atlanta about a patient that believes malpractice was committed on her during the course of a hysterectomy, and has necessitated three additional corrective procedures. Her allegation is that the surgeon erred by nicking a ureter, causing urine to accumulate in her abdomen. The patient, as it happens, is also a physician.

But when the doctor-patient tried to find an attorney to handle her case, she struck out. Why? Because the difficulty and expense of medical malpractice litigation results in de facto immunity for the medical profession in a great many cases. Without a catastrophic injury, it becomes very difficult when looking at the costs and benefits to undertake representation. The story is remarkably similar to one I wrote about the other day, about a California doctor seeking out a medical malpractice attorney (see: Another Tort “Reformer” Sees The Light).

The two stories point to a brutal reality of medical malpractice litigation and the contingency fee system. As a business model, it sucks. Big time. An attorney must lay out many thousands of dollars for years on end, while still paying the overhead of an office (not to mention the mortgage, car, kids, etc.) for a risky endeavor. Perhaps many such risky endeavors. Calling this a significant cash flow problem is an understatement. Then, if the case is won or settled favorably, you have to listen to people who are ignorant of the economic realities pretend that the legal fee is some kind of easily made gravy. One thing is for sure, it is not the road to any kind of economic security. I wrote about this months ago in Medical Malpractice Economics.

And so, the lawyers that get the inquiry of the type you see in this CNN story are faced with the same kind of decision those of us in the profession deal with every day. Turning away inquiries at a rate, if their experience is like mine, of probably 95-98%. Most won’t make it past the telephone interview, and if they do, past the office interview. I wrote about the mechanics of vetting the medical malpractice case back in May.

So these stories make headlines every so often. But for those that deal with this stuff, they come as no surprise at all.

The other day Susan Cartier Liebel made a request for stories about starting up your own practice, in a type of Letter to A New Lawyer. So here’s my advice. Think twice about any field where you spend your own money for years on end for a future result with no current cash flow. Line up your financial resources in advance. Start a line of credit with a bank now. Don’t wait for the time when you actually need it. Banks only want to lend money to people who already have money, not to those that are cash-strapped.

And I’m willing to bet that not a word of this was taught in your law school.

Is yesterday’s headline a real issue, is it a scare tactic from the Superintendent of Insurance, or does it come from the NY Sun taking something out of context to help push immunity legislation for doctors?

The headline in the Sun reads: N.Y. Doctors Could See $50,000 Fee: ‘Surcharge’ Would Rescue Malpractice Insurers.

The scary headline comes from an interview with Superintendent Eric Dinallo, who is running a task force to address the insurance “crisis” that hit when New York jumped its medical malpractice premiums 14% this year. The reasons for the jump are an issue I addressed earlier, and are a function of state mis-management during the George Pataki years (see: Why New York Medical Malpractice Insurance Jumped 14%.) Among the many reasons were artificially low rates (set by the state) and Governor Pataki taking (with legislative approval) about $700 million from a malpractice rainy day fund to help balance the state budget.

The screaming headline in the paper (front page, above the fold) it should be noted, had nothing whatsoever to do with rising malpractice claims or payouts. Those have remained stable for many years. No, the reason for the headline is the state-created shortfall, and the ways they are trying to fix the system they broke.

One method of trying to “fix” the system, of course, is to break it further by trying to blame lawsuits for the problem. We see these types of complaints all the time. If only the health care workers would be given some form of immunity for negligence, it is argued, all would be well with our health care system. Because, as everyone knows, nothing forces a person to act responsibly better than grants of various forms of immunity or protection.

Public Citizen recently put out a report on the faux crisis. It is a devastating indictment of the state’s mismanagement and puts to bed the phony claims that problems are related to lawyers and lawsuits. It also points the finger where it belongs and makes its own suggestions on how to remedy the problems.

Some more facts from the Public Citizen report:

• 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.

The state’s Department of Health’s Office of Professional Medical Conduct has been notoriously lax when it comes to doctor discipline. Just last month it was revealed that it waited three years to alert hundreds of people that a doctor had been reusing syringes with multi-dose vials, thereby contaminating the vials and exposing hundreds of people to infections. According to the Public Citizen study, New York’s comptroller found that the Office of Professional Medical Conduct failed to investigate about 175 doctors for whom investigations should have been triggered based on the agency’s existing criteria.

Frankly, if we have an insurance crisis because the state took $700 million to balance the budget in tough years, and we have a small percentage of doctors responsible for so much of the damage, then it is a no-brainer on how to equitably fix the problem. It isn’t by a $50K surcharge on doctors, a scare tactic if ever I saw one. And it isn’t be restricting access to the courts for those that have been injured by negligence.

It’s by doing two basic things: Taking the money back from the general fund where it had disappeared to and investigating the few bad doctors that do so much of the damage and putting them out of business. It means a responsible government engaging in good health policy by policing the medical force and using sound budgetary policy instead of shell games.

Fault here lies not with the vast majority of doctors, nor with the patients that were injured or their representatives. It lies with former governor and the legislature. The problems have been identified and the proper solutions offered. The state should do the right thing and fix the problem appropriately, without injuring those that are most involved.

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grand rounds vol 4 number 15, welcome to south africa. and a happy new year to all!! rlbates is suturing for a living. she gives an informative overview on post hematoma in plastic surgery. how to decrease the chances. …

posted by Bongi @ January 01, 2008 12:13 AM

See that clamp to the right? It was left inside a patient. Think it’s unusual? Studies show that about 1,500 times a year surgical objects are left behind by mistake in the U.S.

This, of course, isn’t supposed to happen. The surgical team is supposed to count all that goes in, and then count all that comes out. If the counts don’t match, something is wrong.

The prior technology to find the missing equipment, which is most often a sponge or pad, is to have a radio opaque filament inside so that it shows up on an x-ray. An example of that can be seen at the film below left. (Some folks collect baseballs, some collect figurines, but a medical malpractice attorney collects, well, this stuff.)

Now a new technology is coming out where the sponges and pads will be bar coded, according to this article. The sponges are supposed to be scanned when they go in and re-scanned when the come out, and the scanning machine is supposed to set off a racket if everything is not accounted for. Will this help cut down on the human error that accounts for the current state of things? Perhaps.

The medical euphemism for these forgotten objects, by the way, is that the object was “retained,” as if the body itself demanded it be left behind. And that is one of the ways that language is subtlety used to shift blame away from the medical team for its failure to keep track of the instruments.

A New York medical malpractice defense firm has demanded permission to conduct 76 private interviews regarding the plaintiff’s medical care. The request came in the immediate wake of Arons v. Jutkowitz, a Court of Appeals decision that permits informal interviews with treating physicians, a discovery tactic not previously permitted under New York law. The defense request goes well beyond treating physicians, and seeks broad based interview authority for entire institutions as well as inanimate objects.

On the day Arons was decided, I wrote that “This is a bad decision that will inevitably result in a mountain of litigation.” I specifically pointed to the statement by Judge Read (pictured), author of the majority, that:

“it is of course assumed that attorneys would make their identity and interest known to interviewees and comport themselves ethically”

The “just trust me, I’m a defense lawyer” rationale, however, is not a substitute for HIPAA. It is a setup for abuse.

And so now the abuse of the decision has started, served on December 4th, less than a week after the decision. The first recorded instance comes in the request for 76 authorizations for ex pate interviews in a medical malpractice case concerning a failure to diagnose and treat breast cancer in a 40+ old woman. Among the requested interviews (document here: 76-Interviews.pdf) are requests for 27 interviews that don’t even pertain to human beings, including:

• “Pathology slides;”
• “Clove Lakes Entity;”
• “Methodist Hospital Lab;”
• “Qwest” (another lab);
• “GHI” (health insurer);
• “Alpha Neuro” (Your guess is as good as mine)

In an interview I conducted with plaintiff’s counsel in this case, Bob Vilensky, he wondered aloud as to what the buildings, laboratories and pathology slides would say. (The demand is not for medical records or for physical inspections, but for interviews.)

In contrast to my concerns about the problems that would ensue with the Arons decision, Beck/Herrmann at the Drug and Device Blog, extolled the virtues of the decision and in the comments disputed my view of the dangers, saying, “Most defense types bill by the hour, so the clients don’t want to pay for irrelevant rummaging … ”

Well, I think this conduct, which was easily predictable, should put that argument to rest. And I don’t think this will be the only outrage, only the first of many. And it should also give pause to those that claim the high cost of litigation is due to the actions of plaintiffs’ attorneys.

The judges are going to have their hands full.

(Eric Turkewitz is a personal injury attorney in New York)

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New York does not recognize all that many privileges. Attorney …
New York does not recognize all that many privileges. Attorney-client; spouse; Physician, dentist, podiatrist, chiropractor and nurse; clergy; psychologist; social worker; Rape crisis counselor. (Library records are confidential, …

posted by Bill @ December 12, 2007 3:38 PM