You know, doctors don’t like to admit it, but even they turn to us trial lawyers now and then, as they have this week in California.  The reason? The Governator, a/k/a Arnold Schwarzenegger, exempted state hospitals from the requirement that an anesthesiologist be present when a nurse anesthetist administers anesthesia to a patient, without consulting the state’s medical board and board of nursing.  Pursuant to Medicare rules, he was requirerd to do so.

California’s medical societies have spun this as a patient safety issue, i.e., the supervision of an actual doctor prevents mistakes and injuries, and can better correct them if and when they occur.  But it is hard to ignore the fact that if doctors must be present in every case in which a trained, certified nurse anesthetist administers anesthesia, those doctors are going to make more money.

So who did the doctors call when they felt that their rights were being stomped on?  That’s right. Trial lawyers.  With their help, they have filed suit against Gov. Schwarzenegger.  Which is a little odd, since most of the time, when doctors or their medical societies use “trial lawyer” in a sentence, it is coupled with words like “greedy,” “evil,”  “opportunisitic,” and the like.

Of course, the reality is that trial lawyers may have saved your life, particularly if you were lusting after that cute little Ford Pinto some years back.  And even now, if you think Toyota is taking the action it is with regard to accelerator pedals on its own, you are probably in another galaxy.  It was trial lawyers, and the legitimate threat of lawsuits that would cost the company big money that was the ultimate motivator.

Perhaps if people had a natural tendency to take action to right wrongs they become aware of, we would not need us trial lawyers.  But history teaches us otherwise.  In yesterday’s NY Times, we learned some good news: that radiologists were finally taking the dangers of radiation therapy seriously by forming a safety task force and a central data base of errors that harmed patients.  But the disappointing news was this.  Such a step would never have been taken if the NY Times had not written two recent articles on the dangers of such therapy, and the lack of any safety systems that might help regulate such treatment.  You don’t think the radiologists envisioned a law suit or two, do you?

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The dangers of texting combined with driving was driven home to me again yesterday morning, literally.  A cab blew a red light and smashed into the rear of my car in Manhattan, and I’d bet a lot of money that the driver was on the phone, as so many cab drivers are while on duty. (You’ve had the experience: sitting down in the back seat, hearing the cabbie’s voice, thinking he’s saying something to you, only to realize he’s on the phone.)  So much for the new law prohibiting hand-held cell phone use while driving.  Clearly, whether a driver is using “hands free” technology or not, it is the act of being involved in a phone conversation that causes the distraction.  But you don’t have to be driving a car to be distracted.

Back in September of last year, some friends and colleagues thought I had gone too far by addressing what I perceived to be the dangers of texting and walking.  But guess what?  I have been vindicated!

An article that has garnered lots of buzz in this weekend’s New York Times is chock full of examples of people, particularly young people, walking into (or falling onto) things while using cell phones.  If they are lucky, they are only embarrassed.  But some have injured themselves, too. And in one of the more disturbing findings, people using their cell phones while walking often failed to notice a clown riding a unicycle, right in front of their noses.

While I’m heartened to see the dangers to these pedestrian cell phone users taken seriously, I’m disappointed that the article failed to address the obvious related problem:  injuries to others as a result of distracted walkers.  That’s happening too.  You’ll see.  One day, there’ll be an article about it….

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I don’t have to remind you that it’s not nice to have sex with your partner while experiencing a flare up of your genital herpes–especially when you stay silent on the subject in the darkness of your love romp.

But for any of you that fail to abide by such niceties, there is now case law from the Appellate Division, First Dept., that may persuade you to change your ways.  In Felter v. Feigenbaum, NY Slip Op 00012 (1st Dept. 2010), plaintiff sued defendant for negligent transmittal of genital herpes simplex II.  Following discovery-related motion practice, the First Dept. held that defendant must submit to a blood test that would be determinative of whether or not he has the virus. 

Though defendant attempted to evade the test by claiming that undergoing it, and delivering the results to plaintiff, would violate the physician-patient privilege, the Court dismissed such reasoning out of hand, since the test “was ordered in conjunction with the litigation.”

Moreover, the Court noted that even if the privilege were to apply, defendant waived it when he asserted the affirmative defense that he was asymptomatic.

But you didn’t need this decision to get you to do the right thing, right?

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In today’s NY Times there is an intriguing article on the cause of FDR’s death–something that has never been clear due to the shroud of secrecy maintained over the health problems of presidents of the time.  The article’s author, Dr. Lawrence K. Altman, asks if FDR had a melanoma above his left eyebrow, and if so, did its unchecked progression cause the stroke that ultimately took the 32nd president’s life?  Look carefully at the changes in the spot in the photos featured in the article, which show progression of the spot between 1936 and 1939, followed by its absence in 1944.

Among the interesting asides within the article is that at the time (the 1930s and 1940s) doctors “paid far less attention than they do now to moles suspected of being melanomas.”  Maybe so.  But given how long this changing mole was present on the most visible bodily part of a president of the U.S., could F.D.R.’s physicians have been guilty of medical malpractice?

Given the times, that would probably be a stretch.  But Dr. Altman makes an excellent point in closing.

“All presidents and their doctors should make full disclosures about their health.  As long as crucial facts are kept secret, theories, conspiracies and hype may tarnish their image and long outlive them.”

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From Colorado, and particularly the Durango Herald, we get to see firsthand one of the truly significant problems with tort “reform.”  Its supporters are not intelligent.  The dead giveaway comes when the writer expresses his outrage that doctors are now forced to practice defensive medicine, when they should be practicing “offensive” medicine.

Well, you see, that “offensive” medicine is exactly what too many doctors have been practicing for too many years, which is why tort “reform,” which shields doctors and hospitals from accountability for their offenses to patients, is not a wise idea.  It is “offensive” when a surgeon operates at the wrong site because he was too busy to perform a preoperative time out to verify the spot with the surgical team.  It is “offensive” when that misstep seriously injures or kills the same patient. And it is especially “offensive” when tort “reform” imposes arbitrary limits on the amount of awards to such victims of medical malpractice at trial, often preventing realistic compensation, and always robbing the jury of its power and right to assess each case on its own merits, and act accordingly.

Meanwhile, hospitals continue to value profit over patient welfare, and act–or fail to act–accordingly.  The Pop Tort has a heartbreaking round up of stories on the failure of New Orleans-area hospitals to outfit their facilities properly with generators in anticipation of flooding.  Along came Katrina, and patients on life-support died slow, agonizing deaths when the power failed, and could not be replicated by other sources.  Offensive?  As one of the least intelligent of the tort “reformers” likes to say, “You betcha!!

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Hopefully you have all seen the steering wheel desk for sale at Amazon.com.  The important thing is the “comments” section.  Many are hysterically funny.  And they should be, since they are in response to an idea that is ridiculous and frightening all at the same time.

Interestingly, a steering wheel desk has received the recent attention of the Appellate Division, Third Dept., after a driver who “may” have been using one crashed into and injured two passengers in another car.  According to today’s New York Law Journal, such a desk served as the resting place for a laptop computer, the screen of which was flipped up and “turned on, indicating recent use,” according to Justice Anthony T. Kane.

As a result of this evidence, obtained in large part by the tow truck driver who responded to the scene of the accident, the Third Dept. has ordered that the cell phone records ( there were 3 in the car, along with the laptop, at the time of the accident) as well as the wireless air card from the laptop, be subject to disclosure in the lawsuits filed by the injured passengers, who contend that the driver of the vehicle that hit them may have been distracted by his electronic communications devices.

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