November 21st, 2007

Some Good Practice Tips

An article that appears today in Legal Times by Stewart Weltman (via Law.com) is chock full of good practice tips. I’d like to highlight two. Since the article’s vantage point is what defense lawyers can learn from plaintiff’s lawyers, it is equally good reading for both sides.

1. [T]he most direct route to obtaining a favorable settlement is to ignore the prospect of settlement and instead prepare from the outset as if your case is going to be tried.

Since I come from the world of medical malpractice, I know that very few cases settle early (see: No, your medical malpractice case will NOT settle fast). If settlement occurs it is often only after a trial has started. And the defendant can see if you are truly ready or not. So my training was always to prepare for trial, because any other type of lawyering was too risky. If I ignored the possibility of settlement and was ready for verdict, I could negotiate from strength if the other side starts to talk about resolutions. Conversely, if you aren’t really ready, you panic and may be forced to take the inadequate offer.

2. Many top plaintiffs lawyers will jump-start this process from the outset by articulating out loud a short statement of their best case in a minute or so to see how it sounds, perhaps running it past their assistant, paralegal, associates, or co-counsel. It is a simple yet powerful process that can and should be used in defense matters.

Actually, a minute is too long. Your case should be boiled down to a single sentence, particularly in the personal injury field. When the judge asks what the case is about — and yours is one of hundreds she is handling — she will want the nutshell version. If you don’t know it, you don’t truly know your case. It should look something like this:
“Failure to biopsy a hard nodule in the breast of a 54 year old woman leading to 10-month delay in diagnosis, with bilateral mastectomy and metastasis, instead of lumpectomy.” If judges want and need more details, they will ask. More importantly, the issues have been isolated.

The article is a great little primer on keeping the focus for defense lawyers and keeping costs down by following our methods.

October 22nd, 2007

Medical Errors Caused by Communication Breakdown, Lack of Supervision

Poor communication is a major cause of medical malpractice, especially among staff in training, according to a study in today’s edition of the Archives of Internal Medicine. (See Medical News Today.)

Researchers examining 889 closed medical malpractice cases found that 27 percent involved trainees whose role in the error was considered to be at least moderately important, of which 87 percent involved residents. According to the Medical News Today summary:

Cognitive factors contributed to the majority of trainee errors, according to the study. Nearly three-fourths (72 percent) involved errors in judgment, more than half (58 percent) were caused by a lack of technical knowledge, and more than half (57 percent) were due to failure of vigilance or memory. Teamwork factors, notably lack of supervision and handoff problems, were also a significant issue, accounting for 70 percent of the cases involving trainee errors. A lack of supervision accounted for more than half (54 percent) of the trainee errors, and handoff problems accounted for nearly one-fifth (19 percent). Because multiple factors contributed to trainee errors, the percentages do not add up to 100 percent.

Further, attending physicians’ failure to oversee the work of trainees was identified as a factor in 82 percent of the 129 cases where a lack of supervision contributed to a medical error.

None of this comes as a surprise to medical malpractice practitioners, as the failure to properly communicate and supervise often comes up. The degree to which this is due to the high pressure of managed care, systems breakdowns, or simple sloppiness varies from case to case.

Since hand written notes in medical charts are a primary tool of communication from doctor to doctor, and since such writing is often unintelligible (sometimes even to the doctor that wrote it) you can be sure that communications problems will continue to exist to the detriment of patients.

On the web:
Archives of Internal Medicine (article not yet available online)

(Eric Turkewitz is a personal injury attorney in New York, most of whose practice has been medical malpractice for the past 20 years.)

Links to this post:

hwr: the anti-halloween edition
you know us wonks and geeks, we just have to be different. so while it seems that every other “carnival” is touting scary monsters and yummy treats, we’re oiling up our sliderules and adjusting the paperclips holding our glasses …

posted by H G Stern, LUTCF, CBC @ November 01, 2007 8:00 AM

October 3rd, 2007

Long Island Woman Has Unneeded Double Mastectomy

Both breasts were removed. Why? Because a lab technician admitted to cutting corners while labelling tissue specimens.

According to an ABC News report, a 35-year old woman underwent a double mastectomy after being told she had breast cancer, when in fact, she did not. The Long Beach, Long Island victim has now filed suit in Nassau County Supreme Court.

If, in fact, the technician was cutting corners either to save time or money, then we may be looking at a very rare beast: A matter of punitive damages in a medical malpractice case (though this could also be a matter of general negligence if done by the lab and not medical malpractice). The standard here in New York for punitive damages is reckless conduct that endangers the health, safety and well-being of the public (as opposed to negligent conduct). And this must be proven by clear and convincing evidence (as opposed to preponderance of the evidence).

In fact, just last week the Appellate Division Second Department (where this case resides) issued an opinion on the subject of punitive damages in the context of an abortion case. In Randi A. J. v Long Is. Surgi-Center, the defendant disclosed to the mother of the patient that her daughter had been in, allowing the mother to deduce her daughter had an abortion. While the case was sent back to the trial court on other grounds, it is a good discussion of the state of punitive damages law in New York.

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

August 7th, 2007

Wrong Site Brain Surgery — Three Times in Six Years at RI Hospital

Does Rhode Island Hospital have a problem? For the third time in six years (and the second time this year) a surgeon has operated on the wrong part of the brain, the Insurance Journal reports.

The latest act of medical malpractice occurred on an 86 year-old man who was bleeding between the brain and skull, but the surgeon operated on the wrong side. (It was not the same surgeon as the other patients.)

As a result, the state’s Health Department has required the hospital to hire an independent consultant to review its neurosurgery practices and to have a second physician double-check surgery plans.

According to Dr. Peter Angood of the Joint Commission on Accreditation, wrong site surgery is “a persistent problem in American healthcare,” despite years of efforts to combat it. “No patient wants to have the wrong procedure, and we need to do whatever we can to prevent that.”

Rhode Island Hospital, by the way, is the larges in the state and affiliated with prestigious Brown University. One would think a place like that would have some pretty well-oiled procedures to make sure such mistakes do not occur.

So why, then, does it continue to occur?

See also: Wrong-site surgery case leads to probe (Boston Globe)

July 31st, 2007

Why New York Medical Malpractice Insurance Jumped 14%

You may have seen the screaming New York headlines: Doctors hit with 14% increase in medical malpractice rates! Doctors in high risk specialties paying 6-figure insurance premiums! Insurance reserves so low carriers may become insolvent! Blame the lawyers! came the cry from the doctor’s, for surely it must be due to medical malpractice cases. A little protectionism called tort “reform” would go a long way to curing the problem. Right?

Ahh, but truth is another matter. Was it really medical malpractice lawsuits that lead to this increase? Let’s take a candid look at some actual facts:

New York’s Superintendent of Insurance, who sets the amount of rate increases, says this jump comes “After years of artificially low rate increases” and that “the rate increase comes after years of setting rates below what was needed.” He did it now in order to avert a possible “irreversible crisis.” (Did doctors previously complain that their rates were too low?) So, the Superintendent says, New York must play catch-up with a big rate hike;
The State of New York had previously “appropriated” $691M of medical malpractice insurance reserves to balance the state budget from the Medical Malpractice Insurance Association. This association had been established by the state to satisfy any deficiencies attributable to the premium levels for malpractice policies, and for reinsurance. That surplus would have been used (if not taken for other purposes) for maintaining the solvency of New York’s three medical malpractice insurance carriers.

OK, so the “crisis” was caused by lousy state policy under the George Pataki administration, by setting artificially low rates while also swiping the rainy day fund. Surely, however, the problem was also caused in part by increasing medical malpractice cases and payouts, right?

Well, no. In fact a study has shown that the number of medical malpractice cases in New York has remained static, and the amount of payouts has kept pace with other health care costs. When premiums go up, but the payouts are flat, you know you have a problem. But not one created by those who were injured by negligence.

And have high medical malpractice insurance rates in downstate counties chased away physicians, as the fear-mongers suggest? Not even close. It seems the number of doctor in New York jumped by 16% from 1995 to 2003, an increase greater than our growth in population. And the New York Times reported just last week in Few Young Doctors Step in as Upstate Population Ages, that while there was 6 percent growth in the number of doctors from 2001 to 2005, for a total of about 77,000 doctors, the way they are spread throughout the state is wildly uneven. The Times wrote:

While newly licensed doctors flock to New York City, Long Island and Westchester County, where there is already a glut, far fewer choose to practice in the vast upstate region.

As the article makes clear, and as New Yorkers know, upstate has suffered economic woes in past years, much of which was related to the loss of industry. This isn’t a doctor issue. People move to the big city for a multitude of reasons, just as they always have.

Perhaps the problem is an onslaught of frivolous litigation? Nope, not that either, according to a report in the New England Journal of Medicine that disproves the myth of frivolous malpractice litigation.

Here’s a suggestion for the new Eliot Spitzer administration: Government clearly created this insurance problem, as your Superintendent admits. You therefore need insurance reform. So don’t try to fix it on the backs of the most badly injured of New Yorkers with some type of “tort reform” because that won’t fix a government created problem. Even insurance company insiders will tell you that “tort reform” will not bring on lower rates.

And while the governor’s brother is a neurosurgeon in a downstate county, and therefore probably both at the top end of malpractice rates along with his colleagues and in a good position to lobby his brother, it’s hard to evaluate the significance of such expenses without also knowing what their income is. Complaining about a low-six figure premium while taking home a seven-figure income for a high-risk specialty will not bring too much sympathy.

Now here is a reform that the doctor’s may want to entertain: With up to 98,000 people per year dying from medical errors, and with 68% of New York’s medical malpractice payouts coming from just 7% of the doctors, maybe, just maybe, a little more gazing in the mirror might be in order? Perhaps the medical lobby should inform their physician-constituents about the facts, instead of simply handing them propaganda to put in their waiting rooms?

So what do I expect from all this? Not insurance reform, for that would be the obvious thing. And not greater enforcement from the State Health Department on recurrently problematic doctors. It hasn’t happened yet, so why expect it now? No, I believe many will use this governmentally created mess as an excuse to strip rights away from those most severely injured by malpractice. You can almost hear the screams for caps (even though we already have them) and health courts coming from the protectionists who want to shield the negligent from taking responsibility for their mistakes.

While New York’s physicians already enjoy wide immunity from litigation payouts due to the horrible economics of taking medical malpractice cases, except in the most disastrous of matters, I fully expect their lobbyists will want more, more, more. And the facts be damned.
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Addendum, after Eliot Spitzer resigns: Eliot’s Mess: The Ramifications for Medical Malpractice “Reform” in New York

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