November 24th, 2008

I’m Hosting Blawg Review Next Week

‘Tis that time again for me to host Blawg Review. So while you folks stuff yourself with stuffing this week, I’ll be cooped up in the home office, ignoring my family and trying to cobble together the best of the legal blogosphere for a short week.

So spare me some hard work and pouty faces from the kids and another kind of face from my wife and write something brilliant. And then let me know. You can submit your post (or those of another equally brilliant blogger, though I know no one can really be your equal at this blogging biz) at this link, or by emailing it to post [at] BlawgReview [dot] com.

And it’s important to note that, just as with my marathon blawg review last year, the theme will not be personal injury law. This will be a free-range review in which I’ll be able to get any subject in, so long as it’s interesting. It’s also important to note that this blawg review will be shorter than the marathon one. Not only because it couldn’t possibly be longer, but because only three of you actually read to the end of the marathon one, which was a shame because I hid lots of good stuff at the end and you never read it.

Remember that I’ll have little to work with unless you write, unlike that lucky stiff Joshua Fruchter from Lawyer Casting who did an evolutionary Blawg Review #187 this week. As you can see from his, he had tons to work with.

But I do have a theme. It’s just that it’s top secret and I can’t tell you what it is (unless your initials are BHO and you happen to be making headlines, or if your initials are GWB and you’ve authorized me to be tortured, in which case I promise to fold as quickly as the chair I’ll be sitting in Thursday). For the theme is not only like Winston Churchill’s riddle, wrapped in a mystery, inside an enigma but it’s also stuffed inside a turducken heading for the deep-fryer. It’s my way of keeping the lid on it.

But I do hope that once it’s over you can safely pass the word of its brilliance and warble to your fellow man (or woman, it’s a figure of speech, deal with it), that you can get anything you want at this week’s Blawg Review.

 

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.

 

November 21st, 2008

Linkworthy

So how would you do as an election lawyer? Take this test by looking at actual ballots in the Norm Coleman/Al Franken Senate race to see if you can determine the intent of the voter (hat tip, Election Law Blog). And would you have given the OK to my own handwritten ballot?

Lying to your insurance company about an accident could invalidate your coverage. New York’s Coverage Counsel blog has the details;

What does Eric Holder as Attorney General mean for the civil justice system? Kia Franklin tries to answer that at TortDeform;

I never knew attorney Doug Tinker, but his obituary starts like this (via Minor Wisdom):

Douglas Tinker died on November 10, 2008. He wore out, he bit the dust, he dropped off the twig, he lost his last appeal. He was frustrated that he could not stay longer as he thought there might be just a bit more marrow in the bone of life, but in the end he was ok with it.

TortsProf has the Personal Injury Law Round-Up; and

Blawg Review #186 is up at the Res Ipsa Blog, which I think pretty much speaks for itself.

 

November 19th, 2008

How One Brooklyn Courtroom Wastes $10M Each Year

This is a story of how one courtroom in Brooklyn is responsible for wasting over $10 million in legal time. Every year. And that calculation is conservative.

The scene for this nightmare is one of our local trial courts, the Supreme Court Building in Brooklyn. The courtroom is called the Central Compliance Part, or CCP as it is known to its denizens. And each day in this massive ceremonial room, a couple hundred hours of lawyers’ time is wasted. When this is annualized, the numbers are truly frightening.

To understand this misery, a little background is in order. All civil litigation starts, after the filing of complaints and answers, in an “Intake Part” where a preliminary conference is held and a discovery schedule is worked out. At that preliminary conference a compliance conference date is also set to mop up any outstanding issues. If your adversary decides to show up on time you could be done in a half hour.

But when you return for that compliance conference, you will not leave in a half hour. No way. The calendar will have over 100 conferences and motions on it. Over the course of a morning some 200 lawyers can easily come and go through this model of epic legal inefficiency. Today’s calendar, for example, had 75 conferences. It looked like this: /ConferencesCCP.pdf
Now add to that the motion calendar with 72 motions and cross-motions involving 54 different cases, which looks like this: /MotionsCCP.pdf

Now ask all the lawyers to show up at 9:30, in one place.

Even if you can work out any remaining issues with your adversary, and you can accomplish what you need in 10 minutes, which is often the case, you may not leave this room for two to three hours. Even if you work everything out and submit a proposed order with no issues that need judicial intervention, you might still wait for an hour for a signed order to be returned to you. And this waste doesn’t count the time going to and from court.

The system is so bad that a cottage industry of “per diem” lawyers has even grown up around it. These folks will, for about a hundred bucks, take care of your conference or routine motion. They make their living by running around from courtroom to courtroom on behalf of others who have conflicts, or who can’t spare half a day to do 10 minutes of work. While this may be seen as a boon to some who want to go this route, it also means that if you are on the other side of a per diem who has booked several different things in different courtrooms, you may be left cooling your heels waiting, and waiting and waiting, while they make their living elsewhere and waste your time.

This is no way to run a courthouse. The lawyers all know it. The judges all know it. The clerks all know it. Everyone hates it. Except for the per diem lawyers running around the courthouse putting their band aides on a septic system.

Having now ranted a bit, let me add my suggestions for fixing this very broken system that is wasting hundreds of hours of legal time every day on matters of simple discovery.

First: The court must create an electronic template for their compliance orders that the attorneys can use, with required dates for completion and a future conference. That is the easy part;

Second: Every Preliminary Conference should have a provision whereby the attorneys are required to have a conference call at least 20 days before the compliance conference so that they can use that template to create a stipulated order to complete outstanding discovery;

Third: All completed orders can be submitted via email to the court, with blanks left for future court dates and a place for the attorneys to note their availability or unavailability due to conflicts. The court then prints, signs, and files and the lawyers retrieve the order via eLaw.

Fourth: Any unresolved issues must be subject to a court conference call with one of the court attorneys. Scheduling is done by email with a specific time to call in;

Fifth: In the event of a real issue that has defied resolution, or an unreasonable or obstreperous lawyer is involved, a court conference is scheduled;

Sixth: Some lawyers don’t, ahem, get paid to move cases efficiently. They get paid to be unreasonable. Wasted time means more billable hours. The court has to start treating the directives in preliminary conference orders more seriously and be stricter with problematic firms as the judges do in the federal system. This will ultimately force lawyers to work things out, or risk the wrath of the court for being unreasonable or routinely ignoring orders.

The system is broken. Badly. It needs to be fixed.

And so, to the Powers That Be in Brooklyn, I beg and beseech you. Fix it. Just 200 hours of wasted time a day — and it is really much more than that — is 1,000 hours a week, which is over 50,000 hours per year. At $200/hour that is $10,000,000/year.

Out of just one courtroom.