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Tag Archives: Medical-Legal

You've Heard of the Six Million Dollar Man?

Meet the SIXTY million dollar crotch. OK, make that $40 million for the plaintiff and $20 million for the attorney. Sorry, but even if the doctor royally screwed up, no one’s labium is worth that much. Just as an aside, don’t click the “labium” link at work or around children. It’s a Wikipedia entry, but there are pictures there that might be difficult to explain to your boss or to your child. But it’s good to have juries deciding cases like this, right?

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Professional Immunity

Some parties against the institution of tort reform argue that fully or partially immunizing physicians from liability will encourage them to practice sloppy medicine. I’m not aware of any studies on whether adverse outcomes increase in states where physicians have greater immunity for their actions, but intuitively, I don’t think the argument holds water. Do physicians who work in free clinics and who provide free care to indigent patients in exchange for immunity from liability routinely maim and neglect the patients they treat? Do physicians who work in both fee for service and charitable environments practice medicine in a Jekyll and Hyde manner? Doesn’t make sense without some data to back it up. However, if we’re going to make the argument that immunity encourages bad professional practices, we need to make the argument on both sides of the professional coin. If judges were not immune from lawsuits, would things like this still happen during trials?

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Reducing Liability on EMTALA care

Here I go with EMTALA again. I wanted to flesh out an issue that Matt and Chris raised based on my previous post. A proposed Ohio law states that a physician who provides emergency medical services is “not liable in damages to any person in a tort action for injury, death, or loss to person or property” based on the services unless there is “willful or wanton misconduct” involved (thanks to Max for the link). Chris’ MedCity News published an article yesterday about the same law. The response from both sides of the issue is predictable. Malpractice plaintiff attorneys state that such a law would remove any incentives for quality control (as if JCAHO regulations suddenly wouldn’t apply once the law took effect). The Ohio Bar Association will come out with its official opinion in a couple of weeks, but for those of you who can’t stand the suspense, I can summarize it right now: We believe that a law restricting the rights of citizens to sue is in direct conflict with the Constitution and would essentially give emergency physicians free reign to kill and maim the very subset of our population we should be protecting the most – those who are suffering from medical emergencies. Proponents of such a law state that emergency physicians are “easy pickins” for lawsuits. They can’t refuse to evaluate any patient seeking care (unlike any other specialty – in fact, unlike any other profession that I can think of), the patients often come to the emergency department in extremis or with vague symptoms, there is usually little time to develop a physician patient relationship, there is very little follow up, oh, yeah, and if you don’t do everything the patient and family want and there is a bad outcome, they have the number to Dewey, Cheatem and Howe on their cell phone speed dial. So allegedly, those physicians who provide emergency medical care (both emergency physicians and on-call specialists) are getting fed up with the threat of lawsuits and are leaving states where there is a high incidence of medical malpractice claims. I have not researched the issue, so I can’t cite any specific numbers. The MedCity News article does cite a link about the projected shortfall of surgeons available to provide emergency care in Ohio. The MedCity News article also notes that many states have either passed or are considering such legislation including Arizona, Michigan, Minnesota, Utah, North Carolina, Florida, Georgia, Texas and South Carolina. I commented on this topic in one of my posts on how to improve the house of medicine. So in answer to Matt’s question about “why we would want a policy insulating ER docs from their negligence, even gross negligence,” I offer the following response from my previous post. Granting medical providers immunity would throw everyone’s legal rights out the window, right? No profession should have immunity for their actions, should they? Funny. Judges have complete immunity for their actions. No one even questions the concept of “judicial immunity” any more. One quote I found here showed why the US Supreme Court feels that judicial immunity is important: To render a judge liable to answer in damages to every litigant who feels aggrieved during the course of judicial proceedings, “would destroy that independence without which no judiciary can be either respectable or useful.” Bradley, 80 U.S. (13 Wall.) at 347. It is OK for a judge to be grossly negligent and wholly biased in their duties. Litigants have no recourse whatsoever. The judges are immune from liability. At some point our nation is going to have to decide ...

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Lottery Mentality in Med Mal

Well written article by Deane Waldman in HuffPo on why the lottery mentality should have no place in medical malpractice cases.

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Remember Esmin Green? You can read my previous post on her case here, but she’s the patient who collapsed in the waiting room of Kings County Hospital in New York and who was ignored by the staff for an hour before being pronounced dead. Later the coroner determined that she died from a blood clot to her lungs – something that would have caused her death regardless of the treatment she received. On Wednesday, New York City agreed to pay Ms. Green’s estranged daughter $2 million to settle a $25 million lawsuit that the daughter filed against the hospital. The plaintiff’s attorney, Sanford Rubenstein stated that the settlement was “fair and reasonable.” Let’s see … he makes 33% of $2 million – or about $666,666.00 – for 8 months’ work in settling a case that couldn’t be proven in court. Sure, I’d call that reasonable. Ms. Green’s daughter, Trecia Harrison, who lives in Jamaica, hadn’t seen her mother for 8 years before the incident. Even though her mother didn’t have a telephone, Ms. Harrison reportedly called her mother “constantly.” Ms. Harrison walks away with $1.3 million. As a result of Ms. Green’s death, the Department of Justice investigated Kings County Hospital and issued a 58 page report about how the conditions in the hospital had become “highly dangerous”. In response, Kings County constructed a new Behavioral Health Center, has added 200 additional staff members, and has reduced the waiting times in the psychiatric emergency department from 27 hours to 8 hours. With NY City tax revenues down $1.38 billion from 2008 and an operating deficit of $3.7 billion in fiscal year 2009 (see page 27), I can’t imagine that the significant increases in expenditures at Kings County will be long-lived. Hospitals struggle to stay afloat while providing increasing amounts of uncompensated care. Estranged family members earn multimillion dollar windfalls for bad patient outcomes that, “to a reasonable degree of medical certainty” were unpreventable. Plaintiff attorney works 10 months on case and earns between $416.66 and $8,333 per hour for doing so (40 weeks of work times 40 hours per week = 1600 hours. Contingency fee of $666,666 for 1600 hours work comes out to $416 per hour. If we assume a typical attorney handles 20 active cases at a time, hourly rate increases to $8,333 per hour). Wonder why our health care system is going bankrupt? See also ERP’s post on the same issue at ER Stories

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Nevada Supreme Court clearing malpractice backlog

According the the San Jose Mercury News, the Nevada Supreme Court is going to resolve a “backlog” of medical malpractice lawsuits by creating a “settlement marathon” next month. In other words, the court is saying something along the lines of “Nevada hasn’t hired enough judges to deal with all of these cases, so regardless of the merit of these lawsuits, you defendants better pay the plaintiffs off now so we can get these cases off our books.” Nice.

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