JOEL BIEBER'S BLOG

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. 

Doctors and Cents

     Some things that you read just cause you to stop and say "Really?". That's what happened when I saw that it costs 1.67 cents to produce one penny. That's because pennies are 97.5% zinc with a thin copper plating. The value of of the metal exceeds the coin's face value. Some things just don't make sense.

    On a different note, a newly published study by researchers at the University of Iowa has concluded that a significant number of doctors fail to report their own errors. The study as published in the Journal of Internal Medicine and reported in the Des Moine Register, (article) revealed that 17 percent of doctors that were surveyed failed to report minor medical errors, while 4 percent of the doctors failed to report errors that resulted in disability or death. The researchers interviewed over 300 doctors at three different medical institutions. In the same study, only 36% of the doctors actually admitted to ever making a mistake.

    In the world of malpractice suits, it is very difficult to ever get a doctor to admit responsibility. Usually the excuse for the failure to admit is because they don't want to be sued. Perhaps this study would suggest that doctors don't believe that they ever make a mistake. I'll let you draw your own conclusion for that.

 

   

The Politics of Medical Malpractice

     It's about this time in every campaign season that politicians start a rant about medical malpractice. On the Presidential campaign trail, Mitt Romney trumpeted that, "these lottery-sized awards and frivolous lawsuits may enrich trial lawyers, but they put a heavy burden on doctors, hospitals and, of course, through defensive medicine, they put a burden on the entire healthcare system."  In a Boston Globe article(here) Rudy Guiliani jokes that he may have to move to Texas for medical care. However, in that same article, one man tells the story of not being able to hire a lawyer there, because noone will take his case because it is not economically viable.

     On the same day that this Boston Globe article appeared, there was also an article in Yahoo news(here) where a Rhode Island hospital admitted to performing brain surgery on the wrong side of a man's head. Unfortunately, this is the third time this year that this hospital has made the same mistake. Health officials have recommended that the hospital analyze its procedures and surgery plans. Really?

     A day later, the LA times (article) reported that a 33 yr old man who collapsed and died last month, after waiting more than three hours at Olive View-UCLA Medical Center to be treated for chest pains. Medical records show that this man told a triage nurse that he had arm pain, chest pain and chills. His vital signs were taken but he was never given an electrocardiogram, a test that is used to diagnose heart attacks. The American College of Cardiology says that the standard is to administer that test within ten minutes of a patient's arrival to the emergency room. The county's medical director said that this has prompted them to launch an extensive retraining of its nurses.

    Back to Texas, there is a $250k cap on pain and suffering awards. Consumer groups say that this limits legitimate claims. Politicians are adopting it as part of their campaign platform. In the two examples of care recited in this blog, the recoveries would be limited in Texas, if that care had been rendered there. If you quizzed the politicians on these two cases, I'm sure that they wouldn't say that these were frivolous claims. Unfortunately, cases like this could be recited regularly. Yet, noone can point to any large verdicts in malpractice cases that result from "frivolous lawsuits". In fact, one adjuster told me last year that in North Carolina, the last 24 malpractice trials had ended in verdicts for the defense, no liability on the doctor. The average malpractice trial has a cost of over 100k to pursue. In light of that, does it make sense for a lawyer to "bring a frivolous lawsuit to court"?

     When politicians attack lawyers and lump all malpractice claims as frivolous, they are attacking our judicial system. They are saying, jurors are too stupid to have the responsibility of deciding cases. With the attack on our judicial system and an attack on the rights of the injured, political season must be in full session.

      

Dental Malpractice

     I receive alot of calls about possible dental malpractice. Most involve possible bad dental care but fortunately, do not involve large damages. As a result, I tell the prospective client that they were fortunate to have avoided significant injury, despite what might sound as bad care. However, one case caught my attention today.

     The Chicago Tribune (article) reports that a woman had to undergo emergency surgery as a result of a drill bit that became lodged in her sinus cavity, during a routine dental procedure. According to the filed pleadings, the dentist was dancing to the music of "Car Wash" when the drill bit broke free. The injury became more aggravated when the dentist, then, tried to remove it.

     Through the years, I have handled some dental cases. One stands out in my mind because it involved a client having her jaw broken. She went in to a Virginia Beach dentist to have her wisdom teeth taken out. She was put under anesthesia for the procedure. When she woke up, her jaw was wired shut. She came to me because the dentist would not admit to doing anything wrong. Fortunately, in that case, a dental nurse that was there during the procedure provided testimony that the dentist broke the client's jaw. He then proceeded to the other side of her mouth and broke that side of the jaw, as well. Almost in the same "Car Wash" fact pattern, the nurse said that during the procedure, the dentist was on the phone arguing with his wife over her shopping habits.

     When all this evidence came out, the insurance company finally accepted responsibility. However, if the client had not called me soon after her injuries, that critical evidence might have been lost and we may never have known what really happened in that room, during the dental procedure. That's why I constantly advertise how important it is to call the lawyer early. Otherwise, critical evidence or testimony can be lost. 

Should Medicare Pay For Doctor's Mistake?

     A patient checks into the hospital for back surgery. While there, the nurse, during evening rounds, dispenses the wrong medication to a post-operative patient. The patient goes into shock and the signal that a code blue is in effect, can be heard up and down the hallway. As medical workers race to the patient's room, they realize the cause of patient's condition. A pulmonary specialist is summoned, He arrives, does the necessary examination and testing and 8k of medical expense later, the patient's family is relieved to learn from the doctor that "everything is going to be OK, We responded in time". The family consoles itself with the reality that the doctor was on call and knew what to do However, the surprise is about to arrive in the mailbox.

     The Bush administration has announced that Medicare will not cover the costs of the 8k. The reason: Medicare will not cover the expense of medical errors. Other private insurers are considering the same changes. According to a New York Post article (Post Article)  Medicare will not pay for "preventable medical errors". On it's surface, it seems appropriate that a doctor or hospital should be responsible for their mistakes. However, the practical application makes the patient, while lying in bed, worry about payment. Meanwhile, it puts the hospital in a position to justify the care. They rally their experts and document their notes to show that they are not responsible.

     In a day when insurance companies and politicians are limiting access to the courtroom by caps and evidence limitations, this will place more burden on the person least able to bear it, the victim. According to the Post article, there are over 270 infections a day that are caused in a hospital. That condition alone will be passed on to the patient. Now, what is the patient to do. All they want is appropriate care and the benefits that they should receive. Both of those are in jeopardy. The result cannot be summarized in a blog. This is the tip of the iceberg. The reasoning for such patent unfairness is that it will create better care. I guess the converse logic is that the current status does not encourage good care. Really?      

Talkative Doctors

     I remember a famous line from the movie Malice. The doctor, played by William Baldwin, was describing what it felt like to be a doctor. He screamed something like, "I am a cardio vascular thoracic surgeon, When I'm in the operating room, I am God". Even though it was only acting, it still was chilling dialogue.

     Today, I went to an eye doctor to evaluate whether I am a candidate for lasik surgery. The entire experience was a bit unsettling. It was obvious that the doctor had given his speech so many times that he forgot that humans were involved. I couldn't help but interrupt his monologue, just to see if I could knock him off beat. It did for a second, but he chimed right back to his memorized presentation.

     Coincidentally, the New York Post ran an interesting article today on talkative doctors. (article) The writer states that research shows that doctors who talk too much about themselves, effect the care of their patients. The research was based on 113 visits in 100 offices. The researchers found that the medical care suffered, when doctors distracted with stories about themselves.

     I found this research to be funny. In my situation, I would have enjoyed any discussion by the doctor. He could have told me a good joke like the one about the two psychiatrists walking down the hall. The one said to the other, "hello". The other psychiatrist thought, "I wonder what he meant by that?" Ok, maybe a better joke than that! 

   

The 13th Juror

     "Has the jury reached a verdict, the Judge asked. The courtroom was electric with all eyes on the foreman. "We have, your honor. We the jury find in favor of the plaintiff and award damages in the amount of 30 million dollars". This verdict came at the conclusion of a trial in Columbia, South Carolina. The jury had listened to testimony during the month long trial, regarding medical care at Lexington Medical Center. The high profile case involved the unexpected death of Dr. Asif Sheikh, a local prominent surgeon who also held a high post at that very hospital and had died during a routine procedure for a double knee replacement. 

     The doctor had reportedly been in excellent health and plaintiff's attorney, Geoffrey Feiger, introduced evidence that the hospital had given the doctor a fatal dose of narcotics during surgery and then attempted to hide this by losing or destroying key medical records during the surgery of the deceased. Defense counsel argued that the doctor had a hard-to detect heart condition that ultimately caused his death.

     This month, Judge Diane Goodstein set aside the verdict because the result, "shocked the conscience of the Court". According to the South Carolina Newspaper, The State, the Judge felt that a verdict of 5 million would have been more appropriate.  She exercised the rare legal doctrine of "the 13th Juror", that allows the Judge to act as one of the jurors and determine that the verdict is not consistent with the evidence and now, the case must be retried .  Judge Goodstein became a Circuit Court Judge in 1998 after leaving a practice with her husband, who had also been a member of the South Carolina House of Representatives and former Commissioner of the state Department of Transportation. She was also formerly a County attorney for Dorchester County.

     The case garnered national attention because it involved the estate of a doctor suing his former employer, the hospital. On appeal, the "13th juror" reasoning is very difficult to overturn because it relies on the discretion of the Judge and would have to have some basis of attacking the Judge's discretion other than just disagreeing with the Judge's finding. That is not the same standard that the Judge can use in setting aside a verdict arrived at by a jury that listened to all the evidence, the 20 witnesses called by the plaintiff about the "massive cover-up", the expert testimony and the reasoning of the defense. That only required that the Judge thought it was too much money and allowed her to overrule the 12 member jury to require the retrial. Attorney Feiger was quoted by the The State as saying that he wasn't going to appeal but that he was "disappointed" with the Judge's order but was looking forward to trying it again in front of her because, "When we win another 30 million verdict, I don't think she will take the position that it will be unreasonable".  He had asked the jury for 55 million.

     Since we have an office in South Carolina, I receive a listing of verdicts that are returned in the State. The 30 million is an exception to the norm. However, seeing a Judge  exercise her finding that the verdict is excessive, and set it aside to be retried, is also unusual. It will be interesting to see what the next jury will do.

Medical Malpractice Ruling

     The following is a discussion of a recent ruling from Oklahoma, relating to medical malpractice claims.  The law in Oklahoma that has been struck down by their courts has been deemed  unconstitutional, because of the application of local laws, as cited in the article. These provisions are similar to the requirements in Virginia but Virginia law does not provide the same language to have the expert requirement struck down. As a side note, I was not that upset about the expert designation requirement because my feeling is that a lawyer should not file a malpractice suit without already having an expert to testify.  The better argument against the application of this statute is the required cost of filing. This could be a disincentive to a person who has been injured by a doctor and cannot afford the expert filing fee. The following is a paste of the Oklahoma article and a cite to the case itself.   

Oklahoma Supreme Court Strikes Down Tort Reform Measure

The Oklahoma Supreme Court has struck down a requirement that an affidavit of merit  from an expert be filed with medical negligence lawsuits.

The statute at issue "requires that a plaintiff alleging medical malpractice attach an affidavit to the petition stating that the plaintiff: 1) has consulted with a qualified expert; 2) has obtained a written opinion from a qualified expert that the facts presented constitute professional negligence; and 3) has determined, on the basis of the expert's opinion, that the malpractice claim is meritorious and based on good cause. Plaintiffs may petition the trial court for an extension for filing the affidavit of merit not to exceed ninety days. The request must be accompanied by a showing of good cause. Although the defendant may obtain a copy of the expert's opinion, upon which the affidavit of merit is based, the opinion is inadmissible at trial and may not be utilized in discovery."

The requirement was struck down as a violation of a provision of the Oklahoma Constitution that provides that ""The Legislature shall not except as otherwise provided in this Constitution, pass any local or special law ... Regulating the practice or jurisdiction of, or changing the rules of evidence in judicial proceedings or inquiry before the courts."

In addition, the law was struck down because the cost of obtaining the affidavit - $500 to $5000 - creates an unconstitutional financial barrier to access to the courts guaranteed under the Oklahoma Constitution.  The Court said as follows:

"Although statutory schemes similar to Oklahoma's Health Care Act do help screen out meritless suits, the additional certification costs have produced a substantial and disproportionate reduction in the number of claims filed by low-income plaintiffs. The affidavit of merit provisions front-load litigation costs and result in the creation of cottage industries of firms offering affidavits from physicians for a price. They also prevent meritorious medical malpractice actions from being filed. The affidavits of merit requirement obligates plaintiffs to engage in extensive pre-trial discovery to obtain the facts necessary for an expert to render an opinion resulting in most medical malpractice causes being settled out of court during discovery. Rather than reducing the problems associated with malpractice litigation, these provisions have resulted in the dismissal of legitimately injured plaintiff's claims based solely on procedural, rather than substantive, grounds.

Another unanticipated result of statutes similar to Oklahoma's scheme has been the creation of a windfall for insurance companies who benefit from the decreased number of causes they must defend but which are not required to implement post-tort reform rates decreasing the cost of medical malpractice insurance to physicians. These companies happily pay less out in tort-reform states while continuing to collect higher premiums from doctors and encouraging the public to blame the victim or attorney for bringing frivolous lawsuits."  [Footnotes omitted.]

And it went on to say this:

"This Court does not correct the Legislature, nor do we take upon ourselves the responsibility of legislating by judicial fiat. However, we are compelled to apply Oklahoma's Constitution. It has long been the policy of the Oklahoma Constitution, the statutes and this Court to open the doors of justice to every person without distinction or discrimination for redress of wrongs and reparation for injuries. Although art. 2, §6 does not promise a remedy for every wrong, it requires that a complainant be given access to court when a wrong suffered is recognized in the law.

Treating medical malpractice plaintiffs with rules inapplicable to all other negligence claimants interjects a degree of arbitrariness which sabotages equal access to the courts. Section 1-1708.1E creates the potential for a medical expert to usurp the functions of the judiciary and the trier of fact. The requirement that a medical malpractice claimant obtain a professionals opinion that the cause is meritorious at a cost of between $500.00 and $5,000.00 creates an unconstitutional monetary barrier to the access to courts guaranteed by art. 2, §6 of the Oklahoma Constitution. "  [Footnotes omitted.]

The case is Zeier v. Zimmer, Inc.,  2006 Ok. 98 (12/19/06).  Read it here.