JOEL BIEBER'S BLOG

Loser Really Loses

It seems a paradox to include issues about doctor mistakes in the national health care bill. However, apparently legislators don't see the oddity of this. As such, one such inclusion, in the potential health care legislation, involves a proposal co-sponsored by Senators Saxby Chambliss (R-Ga.) and Lindsay Graham (R-SC).

The Senators have proposed a restrictive "loser pays" provision. In their bill, when a patient brings an action against a doctor and loses, then the patient would also be responsible for all legal fees and costs that were spent by the doctor, to defend himself.

On it's face, some probably would get this far in my blog and say "So?". Well, you'll note that it doesn't go both ways. If you're going to make a patient pay a doctors attorney fees and cost, if they lose, why not make the doctor pay the patient's, if the case has to go to trial and the doctor loses . Why can't "loser pay" go both ways.

The justification for such legislation is to  (get ready for the buzzwords) stop the "frivolous lawsuits". The legislation also includes a provision, according to the Atlanta Journal-Constitution,  that would require both parties to enter non-binding arbitration to try to resolve disagreements.

I have a few thoughts on this legislation that might differ from some other trial lawyers. First, I do think that some claims brought against doctors have no merit and could be deemed as frivolous. Usually, in my experience, it involves some young lawyer who thinks that just because there is a bad result, it must mean that there should be some payment by the doctor. Some states have cured this by requiring that an expert opinion on the standard of care be filed or, or at least, certified to exist, before a malpractice suit can be brought.

Second, I think that non-binding arbitration can be a huge waste of time, requiring the plaintiff to spend, to put on their case and just added costs to the whole procedure, while the defendant completely ignores any arbitration finding. However, in South Carolina, some counties have mandatory mediation. It causes the parties to get together with a neutral individual and results in many settlements. Sometimes it even gives the plaintiff a sense of having their day in Court.

 Finally, interestingly enough, I asked a legislator, a few years back, to introduce a "loser pay" bill in the Virginia General Assembly. It was the same as what has already been enacted as law in North Carolina. There was such opposition to it that it didn't make it out of committee.

I guess this legislation has to be looked as to whether or not it significantly impacts access to the courthouse, by those who don't have the resources anyway, and are then scared off by the one sided requirement of paying. In a just world, those responsible are always held accountable. Unfortunately, no one really believes such is happening. 

Several years ago, I tried a malpractice case in South Carolina. The jury stayed out 6 hours and then came back with a defense verdict. Two of the jurors were troubled by the result because they felt that malpractice had been committed. However, they said that, in the jury room, the jurors were all concerned about the possibility that doctors would leave the state, if verdicts were entered against them. These jurors believed the propaganda of tort reformers. In that instance, my 80 year old client would have been responsible for those defense costs.   

Malpractice Cap Bills in Congress

     In the national health care debate, the topic of malpractice lawsuits has been included. Some legislators and commentators have stated that doctors practicing "defensive medicine", is the cause of increased costs in health care.

     For the purpose of this blog, I won't go into detail about the fallacy of such argument. It's not surprising that lobbyists would use this opportunity to introduce caps on damages. What is surprising to me, is the willingness of some to take away the rights of states, and Federalize medical malpractice caps. I'm guessing that most with this opinion have done little reading of Thomas Jefferson, but I digress! Here is a post summary of three of the amendment bills, as passed on by The American Association for Justice:  

• An amendment proposed by Senator Kyl (R-AZ) would limit noneconomic damages in a civil medical liability lawsuit to $250,000 from any provider or health care institution, not to exceed $500,000 from all providers and health care institutions.
• An amendment proposed by Sen. Hatch (R-UT) would limit noneconomic damages in federal and state health care liability lawsuits to $500,000. No limit on economic damages.
• An amendment proposed by Sen. Cornyn (R-TX) would provide that doctor‘s health care decisions that follow the Institute‘s recommendations cannot be the basis of a tort claim of negligence, or failure to comply with the standard of care.

A Mark McEwen Case Update

     Former CBS "Early Show" personality, Mark McEwen, had brought a malpractice suit against a Maryland doctor and hospital, relating to treatment about 4 years ago. Newsday updates us with a recent Federal Court ruling about the proposed evidence.

     McEwen had gone to the hospital with possible stoke-like symptoms. The doctor at the hospital told him that it was just the flu. McEwen then boarded a flight, a few hours later, and suffered a stroke that ended his television career.

     His attorneys asserted that the doctor and hospital should have immediately treated him with aspirin and anti-coagulates. They say, through pleadings and proposed expert designation, that if that had been the treatment regimen, instead of a flu diagnosis; the McEwen stroke would have been prevented.

     US District Judge J. Frederick Motz adopted the defense position and ruled that such drugs are not effective in the short term and would not have made a difference. In adopting that position and ruling accordingly, he dismissed the McEwen lawsuit. Now, the attorneys are considering whether to appeal.

     Some Judges take the position that they are there to move cases along and let the trier of fact, the jury, make the ultimate determination about the case. Other Judges believe that their role is to be an aggressive gate keeper. At the motion stage, before trial, they are to weigh the evidence to determine whether it should even be considered by the jury.

     I usually try to "blog and let you decide". If you read this Newsday story, you will see how pretrial may effect whether there is a trial. For this reason, while intellectuals are debating whether possible Judicial appointees are "strict constructionists" of the Constitution or whether they believe that the Constitution is a "living, breathing document". The reality, for those on the ground, is a more practical application. How will that appointee, if confirmed to the bench, effect my evidence?      

Pass the Gummy Bears

     I admit it. I am trying to get your attention with the blog title. In reality, the following story of dental malpractice really is disturbing.

     The State.com reports that a Florence, South Carolina dental clinic improperly extracted 13 upper teeth of a SC woman. As a result, a jury has returned a verdict of 2 million dollars against the clinic.

     The woman claims that she can't eat normally and when she talks, she hides her mouth. Now, with the verdict, she hopes to have restorative surgery and "get back to being what she was, before this happened".

     The clinic advertises on its website that "you simply won't find better prices than Sexton Dental Clinic". Following the verdict, the dental clinic president indicated that they may appeal the verdict. He also added that "we are a consumer-driven business. If we weren't doing a good job, and if we weren't taking care of people, we wouldn't stay in business. The clinic is known for providing service to low income families.

     At trial, the evidence was introduced to show that Ms Elizabeth Smith went to the clinic to have three teeth pulled and a partial denture installed, as treatment for an upper chipped tooth. Then, it was contended that clinic personnel covered up the mistake by entering misleading information on her dental charts. A former records specialist with the State Law Enforcement Division testified in support of the evidence of the record concealment.

     It appears to be a typical case of dental negligence; then cover up; and then failure to accept responsibility. I guess they couldn't ignore that half of her teeth were now gone. Apparently they must have put in the records that she chose to walk around with her teeth missing and unable to eat normally. I can hardly blog another comment on this. It just makes me shake my head.   

Medical Blog Followup

     Usually, on  a Friday, I try to blog on something that is a little different or is a mix or collection of bits and pieces. However, I needed to do a quick follow up on my Wednesday blog, where I discussed some medical errors. (Wed) Also, a special thanks to Chad Harris for posting that blog on his site :
http://noinsuranceclub.com/blog/

     On that blog, I mentioned the trial that was going on in St Louis, which involved a doctor that perforated a patient's colon, while under the influence of pain killers. Well, the St Louis Post Dispatch did a quick blurb to let readers know that the case had settled for an undisclosed amount. Now, I wonder whether there will be a suit against the hospital, for allowing the doctor to continue to practice there, three years later, after the hospital had become aware of the doctor's drug problem. Is this result really that unpredictable? I'm sure that the hospital will try to defend it that way.   

     I hate to stay in the genre of medical malpractice. In my personal life, I have certainly relied on the care of tremendous medical care providers. I am just posting under this topic more recently, in light of the discussion of national health care. If the President wants Congress to grant some cap or complete immunity to medicine, in an effort to get the American Medical Association lobbyists to support the health care bill, then there should, at least, be an eye to some of the bad care that is admittedly taking place.

      Of course, I do believe that the cases that I am referring to, are not representative of the care that is out there. I do personally believe that almost all medical care is good. In fact, many doctors have told me that they want to see the "bad apples" out of medicine, too.  However, I end this blog with another story of bad care.

     The Hattiesburg American did a story on bad care that occurred at a Government medical facility. It's a VA hospital in Jackson, Mississippi. The story also indicates that government care can fail as well. Maybe it is a precursor of what government managed care would be like. I don't know many veterans who have told me that they think that VA hospitals are a wonderful place, anyway.

     A WW II veteran lost much of his eye sight, when the hospital used a chemical solution, during a procedure to remove sagging skin between the eye brow and eyelid. As a result, they burned his eyes. The Judge ordered the government to pay 749K and stated in his opinion that he would have ordered more, if the law had not limited him. The facility had attempted to cover up their malpractice. The cap for punishment damages is 50K.        

Medical Treatment Head Shakers

  Several years back, I represented a lady, as a result of bad dental care. She went to the dentist and was told that she needed to have her wisdom teeth removed. Rather than referring her to an oral surgeon, the dentist scheduled the procedure. This, of course, was the dentist that her insurance company had sent her to, as a participating plan member.

     The morning of the surgery, she was put under by anesthesia. When she awoke, her jaw was wired shut, without explanation. She didn't think that a wisdom tooth procedure was so drastic. Then, she found out that during the extraction, the dentist broke one side of her jaw. He didn't stop. He continued to the other side and broke that side of the jaw, as well. During deposition testimony, the dental hygienist testified that, during the procedure, the Dentist was on the phone and was arguing with his wife. 

     The case settled a day before trial. There wasn't much of a defense. The only thing that was at issue was the damages. Unfortunately, my client probably is still living with the numbness of her bottom lip and may have residual problems, from the 2 places, where her jaw was broken. I also suspect that she still has a mistrust of dentists.

    I read two news stories that reminded me of that case. I will put each in the form of one paragraph, but obviously, I am not doing justice to the suffering that has been caused by subpar care. Also, a great majority of medical care providers would never cause this kind of harm. Unfortunately, the national health care bill that is being debated, would include limiting damages against these types of doctors. So, in that context, I post the following:

     The Seattle Times reports that the Air Force is investigating the circumstances surrounding what caused a 20 year old airman to lose both of his legs, during a supposed routine gallbladder surgery. According to reports, the gallbladder was to have been removed laparoscopically. However, when the doctor was going in, he nicked the airman's aorta. When they went to repair that, they somehow disrupted blood flow throughout his body, When blood flow was restored, his circulation to the legs was so badly damaged, that both legs had to be amputated.  He still is slipping in and out of consciousness. He still is experiencing kidney function impairment.

     The St Louis Post Dispatch is reporting on an ongoing medical malpractice case involving a doctor who perforated a patient's colon, during surgery. As a result of the perforation, they had to remove about a foot of his colon. The evidence to the jury has included that the doctor was on oxycodone, a strong pain killer, during the surgery. The hospital had become aware of the drug problem in 2003, when a surgical nurse reported that the doctor had fallen asleep during one surgery. In 2006, after he perforated the colon, that is the subject of the lawsuit, his license was suspended and then subsequently revoked, after he repeatedly tested positive for the same painkiller. 

Where's the Other Lid?

     As my investigator was interviewing a witness by phone, he looked out the window and aimlessly watched a car back out of it's spot of the parking lot. All of a sudden, the car backed into another parked car. Glass was everywhere. Then, to my investigator's amazement, the driver just gunned it and drove away. The other parked car sat like a crumpled can. My investigator could only see a partial license plate.

     The next day, my investigator is parking his car. He looks over at a parked car nearby, and notices that it has both tail lights cracked out. There's damage to the back of the vehicle. It dawns on him that this is the same car that left the scene of the crash, the day before. After some minimal investigation, he found out that the driver was a nursing student in the building. She still had not admitted to crashing into a car, that ended up being one of her instructors. The end of the story was that the instructor did not want to press charges for leaving the scene of the crash; He just wanted her to pay for his car repairs.

     This event occurred on the same day that the President announced that he wanted to enter into some meaningful health care legislation discussion. As he put it, such discussion should include the possibility of lawsuit caps, in medical negligence actions, to help doctors better afford insurance. Hopefully,such savings will be passed on to individuals and insurance companies.

     On the surface, that sounds like a logical idea. However, when you look at individual cases, it makes you wonder about the acceptance of responsibility. That future nurse may be caring for someone someday, and forget to give medication that causes damage. Do you think that she is going to run out to the administrator of the hospital and accept fault, for the damage from the medication error? On the other hand, the damage will still be done, but the bills will be passed on to someone else, like you and I through medicare, or to the insurance company, who still will ultimately have to raise premiums, to turn a profit, to continue to pay for hospital bills.

     What does this have to do with the title of the blog? Well, long ago, I heard that the practice of law is like having 5 baskets, 5 snakes and 4 lids. The President has announced that he foresees a shortfall, that will occur in medicare. Social Security is running out. He wants health insurance to be availabe to everyone. He is looking for solutions. I'm just wondering why he thinks that he should step on states' rights by enacting Federal legislation that will just pass responsibility for errors, instead of working on the root cause of the expense. I guess there just aren't enough lids.       

NC Doctor Malpractice Payments

     The North Carolina Board of Medicine approved a revised plan to allow access to information regarding payouts that are made to settle malpractice claims. Under the adopted plan, only payments of 25k or greater, since 2007 will be made available. The Charlotte Observer (article) details that, originally, the proposal was to allow access to payment information, as far back as seven years. However, the doctors fought that provision, under the basis that many of the settlements were entered into, under a confidentiality provision.

     Information to the public is a good start. On some levels of thinking, it might be better to make the number a little higher because 25k may seem like alot, but in actuality, no lawyer would settle his client's claim for that, if it really is malpractice. Plus, it might discourage settlement for an amount of legal fees. However, my feeling is that no lawyer should bring an action for medical malpractice, if he thinks it's a 25k case. I could do a whole month of blogs on that one.

     In Virginia, there was a concerted effort which made information available, about lawyers and doctors, that began in 2001 and provided information, going back as far as 1991. A prospective patient or client should be able to make an informed decision and doctors should be able to put information in, about claims made against them.

     Recently, one doctor told me that he was sued because he received a call from a prospective patient and his office told her, that based upon her symptoms, she should go directly to the emergency room. Somehow, the plaintiff's lawyer included him in a lawsuit that was also brought against a pharmacy. The pharmacy had made a mistake but certainly, the doctor had nothing to do with that. In that instance, he made no payment and was released. Unfortunately, he had legal expense associated with that. Perhaps, the lawyer should have thought about that before randomly throwing him in as a defendant. In this proposed reporting, as least he would not have to list that, as no payment, certainly falls under the 25k threshold.

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The Bill To Limit Medical Malpractice

     Gradually, the medical malpractice cap has increased in Virginia. On July 1, the cap will finally reach its maximum cap of 2 million dollars. This final increase comes from the original cap and incremental increases, that took effect 1972. At that time, the cap was increased to 1 million. So, over the span of 36 years, the cap has now doubled. How's that in the fight against inflation.

     Despite this cap increase, there are those in the General Assembly who are influenced by medical lobbyist, who seemingly will introduce any bill, despite its sensibilities. This occurred this session in the form of HB 1282 (Bill introduced)  The bill provided that a defendant medical care provider could make an offer of settlement within 180 days after they had answered the lawsuit. (So far that sounds pretty good) To qualify under a settlement offer category of this bill, the offer must be for "net compensatory damages" plus a 10% attorney fee. The offer is not to include punishment damages or such things as pain and suffering.

     Once this offer has been made, the plaintiff has 30 days to accept this offer. If the offer is not accepted, then the plaintiff can proceed to trial but the standard of proof is now changed. Instead of proving the legal standard of negligence, the plaintiff would have to prove by clear and convincing evidence that the doctor acted to a standard of willful and wanton conduct to cause the damages.

     Fortunately, this bill was defeated. However, it would have made it almost a requirement to show that the doctor was operating under the influence of alcohol or something so egregious that it would rise to such a level beyond mere negligence. Plus, the standard of proof would no longer be a civil standard, but the one used to determine if a defendant is guilty of a crime. It also clearly is a method to avoid the cap while ignoring the elements of damages that the law provides. These are the kinds of fights that are taking place when legislators are trying to circumvent the law and take away victims rights.   

Jim Palmer and His Eye Lawsuit

     Daily, I get trial verdict reports that may or may not catch my attention. I saw a verdict yesterday in Florida, that took me back to the days of my baseball fandom. The reason that they call it the boys of summer.

     Former Baltimore Oriole pitcher, Jim Palmer, had brought suit against a doctor, in West Palm Beach, Florida. The suit claimed that the doctor had botched eye surgery on Palmer. According to Palmer's lawyer, he was talked into a multifocal intraocular lens in his eye, that isn't made for people that work at night. As a result, the medical testimony presented that Palmer immediately suffered retinal tears that should have been noticed and treated upon examination.

     The doctor's defense was that he did everything right and if there were retinal tears, Palmer must have caused those when skiing, several weeks later. Of course, he never addressed that the lens was an experimental lense that has since been taken off the market.

     The jury verdict returned was for $890,000. Of course, the author of the article (Palmer article AP) used the term "awarded" in discussing the amount of the verdict. The doctor further stated in the Baltimore Sun article that (Sun article) apparently the jury "believed the lawyers and that he has always provided good care for 30 years". Palmer testified that his eyesight is permanently effected.

     A couple of observations from this report. Obviously, it doesn't sound like a very good "award" to have your eyesight effected. Also, apparently, this doctor still doesn't accept responsibility. It's fortunate that we have a jury system to tell him he's responsible. His defense was to blame Palmer. In this case the jury obviously felt differently.