January 3rd, 2011

Child’s Feet and One Hand Amputated After Emergency Room Delay (California Tort “Reform” In All Its Glory)

Malyia Jeffers and father Ryan Jeffers prior to the child's illness

Out of the Sacramento Bee comes this horrible story of 2-year-old Malyia Jeffers, whose feet and one hand were amputated after a 5-hour wait in an emergency room of an urgent care center. She was sitting there with a potentially deadly invasive Streptococcus A infection. While she waited, according to the article, the girl became increasingly lethargic, fever raged, and her skin turned splotchy. After awhile, she couldn’t even walk.

This is the nuts and bolts of it:

[The father] Ryan Jeffers, 29, said he pushed for immediate care, but was rebuffed. After about five hours, he said, he ambushed a nurse and demanded to see a doctor. The physician took blood samples that suggested Malyia was in liver failure, Jeffers said. She was taken by ambulance to the pediatric intensive care unit at Sutter Memorial Hospital. Doctors there had her flown to Stanford aboard a helicopter.

It turned out the girl was in septic shock from a Streptococcus A infection that somehow invaded her blood, muscles and internal organs. About 10,000 cases of “invasive group A streptococcus” infections occur every year in the United States, and as many as 20 percent of patients die from the condition, according to the Centers for Disease Control and Prevention.

Now I don’t know if faster treatment would have saved this child from catastrophe (and potential death). But let’s for the moment assume it would have. What legal alternatives are available?

And the answer may surprise you, as they are somewhat limited. For out in California, they enacted a one-size-fits-all tort “reform” with a cap of $250,000 on non-economic damages (pain and suffering). The state did this in 1975. And it hasn’t changed in the last 35 years. Adjusted for inflation, it would be about a million dollars today. But it has never been adjusted.

That’s right, a lifetime of missing three limbs, if she survives, and this child might receive compensation of $250,000 for her pain and suffering. Less, of course, the money spent to hire the experts, take the depositions, get all the records, and get the case to trial after a few years, and paying the lawyers to do it. Assuming that lawyers can be found to put forth the money and absorb the risk for a contingent fee.

The statute was challenged on constitutional grounds in 2009, but that effort sadly failed.

That, ladies and gentlemen, is what you get when you sign on for tort “reform.” A big, fat gift to the insurance companies and a healthy dose of immunity and protection for those that are negligent. If there was negligence in this case, the burden will not be borne by those that were negligent, but by those that were victimized. Of course, to the extent that the child is poverty-stricken at some point, it will be the taxpayers that get the burden.

Make no mistake about it. Tort “reform” shifts the burdens of loss to the victims and taxpayers and protects the wrongdoers. That is what it is.

Hat tip: Jonathan Turley with this post on the subject, and Scott Greenfield.

September 1st, 2010

Was Michael Douglas the Victim of Medical Malpractice?

The story of actor Michael Douglas and his stage-four throat cancer caught my eye when reading about an appearance last night on David Letterman, and I saw the comments of his enraged wife, actress Catherine Zeta-Jones:

Meanwhile, his wife Catherine Zeta-Jones is fuming at doctors for not diagnosing it months ago.

“It makes me furious they didn’t detect it earlier,” she told People magazine in its latest issue. “He sought every option and nothing was found.”

When people fume about the perception of bad medical treatment, they often turn to lawyers. And those lawyers will look at exactly what tests were done in the face of the complaints being made.

Now I have no idea if this will result in a medical malpractice suit. I haven’t seen the records and I merely opine based on press accounts. But anger is one of the great motivating factors for hiring counsel to investigate whether medical malpractice occurred. When folks aren’t angry, and they get apologies from medical personnel for instance, suits are less likely.

And that isn’t just my opinion. In a 2008 story in the New York Times (Doctors Say ‘I’m Sorry’ Before ‘See You in Court’), medical professionals are found to be increasingly agreeing:

For decades, malpractice lawyers and insurers have counseled doctors and hospitals to “deny and defend.” Many still warn clients that any admission of fault, or even expression of regret, is likely to invite litigation and imperil careers.

But with providers choking on malpractice costs and consumers demanding action against medical errors, a handful of prominent academic medical centers, like Johns Hopkins and Stanford, are trying a disarming approach.

By promptly disclosing medical errors and offering earnest apologies and fair compensation, they hope to restore integrity to dealings with patients, make it easier to learn from mistakes and dilute anger that often fuels lawsuits.

Malpractice lawyers say that what often transforms a reasonable patient into an indignant plaintiff is less an error than its concealment, and the victim’s concern that it will happen again.

Despite some projections that disclosure would prompt a flood of lawsuits, hospitals are reporting decreases in their caseloads and savings in legal costs…

Now I presume that Douglas and Zeta-Jones are more than a bit comfortable, financially speaking. And any suit that might be contemplated wouldn’t be about the money. In fact, the money might be so small relative to their wealth that if suit were filed I could easily see it accompanied by a statement that any recovery would be donated to a charity.

And such a suit would not just deal with whether doctors acted reasonably. For even if there were departures from accepted care, they would still have to prove that the delay was medically significant. All I see from the story is “months,” so much is obviously unknown to the public.

One should not presume, by the way, that just because a celebrity (or his/her family) brings a malpractice suit, that a jury will ignore evidence and side with them. After John Ritter died from an aortic dissection, a medical malpractice and wrongful death suit was brought. While some defendants had settled, some defendants refused. And it was a defense verdict despite the big name at the center of the suit.

February 26th, 2010

Is Non-Party Witness Entitled to Attorney at Deposition? (Appellate Court Says No)

The idea that a witness testifying at a deposition would not be entitled to have an attorney is somewhat startling. But that is, in fact, what the Appellate Division, Fourth Department held earlier this month in Thompson v. Mather, when they firmly established that “counsel for a nonparty witness does not have a right to object during or otherwise to participate in a
pre-trial deposition.”

The issue arose during a medical malpractice case involving obstetrical and gynecological treatment and the prescription of oral contraceptives. Plaintiff claimed they were contraindicated. The patient suffered an acute myocardial infarction.

Plaintiff wanted to video the testimony of the treating cardiologists, who were not defendants. The doctors showed up with lawyers provided by their own medical malpractice insurers, who then proceeded to obstruct the questioning. The deposition was abandoned and motion practice ensued.

The lower court, in one of the most bizarre rulings I’ve ever heard of, suggested that these doctors who had never been sued should be released from liability before unrestricted testimony was to take place! The court suggested that plaintiff and defendants are to

“consider providing general releases to the [physicians] . . . with respect to their initial treatment of [plaintiff]” and that, if such releases are provided, plaintiff will “be entitled to have a videotaped deposition of [the physicians] during which deposition the attorneys for the [physicians] shall not be permitted to speak. . . .”

Holy mackerel. In reversing the lower court, the Appellate Division called that “repugnant.”

But first they addressed the issue of having counsel at the deposition, and came down firmly against it. Why? Because CPLR 3113 (c) provides that the examination and cross-examination of deposition witnesses “shall proceed as permitted in the trial of actions in open court.” The parties can object later, but the witness isn’t a party. If this was a trial, the witness would not have a lawyer in the well of the courtroom to object.

And then they kicked the lower court judge but good with respect to that nonsense about providing a release to a witness before testimony could ensue:

…we note that the practice of conditioning the videotaping of depositions of witnesses to be presented at trial upon the provision of general releases is repugnant to the fundamental nonparty obligation of every citizen to participate in our civil trial courts and to provide truthful trial testimony when called to the witness stand. Contrary to nonparty respondents’ contention, the fact that the statute of limitations has not expired with respect to a nonparty treating physician witness for the care that he or she provided to a plaintiff provides no basis for such a condition.

The unanswered question that I have, given that the lawyers for the cardiologists were provided by their medical malpractice insurance carrier. Is it the same carrier as the defendants?

And that question was answered by one of the attorneys involved: No. But certainly something to look for if the situation should arise elsewhere, as may well happen with this ruling if such non-party depositions become more common.

February 9th, 2010

Did Rep. John Murtha Die From Medical Malpractice?

Rep. John Murtha (D-PA) died yesterday, a week after routine gall bladder surgery (cholecystectomy). He was a powerful congressman with his finger on the button of Pentagon appropriations.

And with his high-profile death comes an opportunity to explore some medical malpractice issues.

So let’s do this in Q & A form:

What is the first reaction as to why this happened?

First up is the most common reason for malpractice litigation with gall bladder surgery: That the common bile duct was mistakenly cut. I don’t know what happened here, of course, since I don’t have the medical records or the autopsy results, but you can bet that is one of the first places people will look.

As basic background, the liver produces bile that helps us digest. It is transmitted to the intestines via ducts. The gallbladder stores bile. A schematic is seen here at left.

Was this due to infection, instead of a common bile duct injury?
Some are claiming that the death occurred because the intestine was mistakenly cut during surgery, and that this caused an infection. Someone investigating the case would then naturally ask the following questions:

Was the cut intestine noticed during surgery, and if not, why not? Cutting something that you’re not supposed to cut is one thing. But failing to notice that it was cut is a whole different thing. This is often the dividing line between when a malpractice case is successful or not. Bad results by themselves don’t mean malpractice. Failing to recognize mistakes, however, is a different concept entirely.

If noticed during surgery, what was the response? This surgery was done via a laparoscope, in which the scope is passed through a small incision, with surgery done with a camera-assist. Depending on when and where the bad surgical cut happened, and whether it was noticed at the time, the logical questions are who, if anyone, was called in to assist in the repair and how was it done?

When were the first signs and symptoms of infection noticed and reported and what was done about it? If the cut was noticed during surgery, then in addition to any potential antibiotics that may have been given, would have been very strict discharge instructions to the patient on the signs and symptoms of infection and the critical nature of prompt action.

If this is a known risk of the procedure, why blame the doctor?
This one is a classic, and defendants love it in the courtroom. But it is the wrong question to ask. The issue is not whether something was a known complication or risk, but whether it was avoidable with good care.

Think of it this way: Is a car accident a risk of driving? Does the fact that accidents are a risk of driving mean that the guy who ran the stop sign is not responsible?

Was Murtha just one of up to 98,000 estimated deaths from malpractice in the US each year (Study: To Err is Human)? Time will tell on that one. And we will see to what extent if death has an effect on the health care debate in Congress and the desire by some to grant certain immunities to the medical industry for malpractice.

On a last note, not only was Murtha deeply involved in political-military issues, but the surgery took place at the National Naval Hospital in Bethesda, MD. This adds another potential political element to any investigation or legal action in the event that family moves in that direction.

December 20th, 2009

When Is A Settlement Not A Settlement?

There was an extraordinary decision late last week out of the Second Department that I was getting ready to blog, but John Hochfelder beat me to the punch.

Short version: At a Brooklyn medical malpractice trial the defendant, at some point, offered 150K to settle. Then, while the jury was deliberating, the plaintiff tried to accept. But a note had been passed to the clerk that the jury had reached a verdict.

Did the judge quickly confirm an agreement between the parties and put the settlement on the record? Nope. She did the opposite. And not only did the judge insist on the verdict being taken, but defense counsel remained silent, perhaps smelling a defense verdict after a short deliberation.

This exchange ensued in open court between plaintiff’s counsel and the judge:

Mr. Jordan: Could I put my request on the record?
The Court: Once I have a verdict, I take the verdict, and then the parties are free to do what they agreed to. An agreement is an agreement, counsel.
Mr. Jordan: Why can’t we put the agreement to settle the case for $150,000 on the record?
The Court: Because I said what I have to say. Let’s proceed

The jury came back with a $1.45M verdict. The judge then proceeds to toss out the verdict and asserts that the settlement — the one defense counsel refused to confirm and she refused to put on the record — controlled.

What do you think the appellate court did?

You can read the decision in Diarassouba v Urban or go to Hochfelder’s site for his analysis of the case.