Oct 10 2010

Lojack For Surgeons, and Happy Medical Liability Executives

Florida’s medical malpractice liability insurers have been profiting for the past 6 years. New liability companies apparently can’t wait to write medical malpractice “products” there.  Here is the News Press’s take on how robust Florida’s market for medical liability insurance has become.


And as Alan Belsky points out in in his firm’s blawg, Maryland Malpractice Lawyer, this comfort level for the insurance companies is not confined to Florida. In Pennsylvania, a physician-supported pool saw a 61% decline in claims, and there has been an exponential rise in liability insurers wanting to do business there.

Why do I point this out?  Because unfortunately, the AMA,insurance industry lobbyists,  and  politicians across this country, are continuing their urgent calls for tort “reform,” claiming that doctors are fleeing, or hanging it up altogether, due to the medical malpractice “crisis.”  But if that were true, who are the profitable medical liability companies profiting from?  And why are more of them opening up shop?  That’s right.  There are plenty of doctors around, and they all have to buy insurance.


And in medical-legal news, RF (radio frequency) tags are proving to be an excellent tool in the effort to decrease the leaving behind of surgical sponges in patients following surgery, according to OutpatientSurgery.  The RF tags embedded in the sponges  work like the anti-theft tags used in retail stores, and nurses need only pass an RF detection wand over patients to discover what the sponge count failed to account for.  Current studies claim there are also no false positives or negatives.  Lojack has arrived in the OR, and we are better off for it.

Sep 20 2010

Update and Additional Twist on Story of FL Judge’s Retained Sponge

Since posting the story about the unfortunate Florida judge, I have come to learn that contrary to what I initially reported, the hospital has reached a settlement with the judge.  The judge is now suing the surgeons and the radiologist involved.  The article with the more comprehensive information appeared in the Miami Herald. Ashby Jones, of the Wall Street Journal’s Law Blog, was wise enough to base its post on the Herald’s article, while I foolishly relied on Fox News, which failed to mention the hosptial’s action.

But the focus of my post remains the same. The individual physicians and their insurers should pony up, move on, and not drag out the litigation.  If they do drag it out, it will only add to the unnecessary costs that we would all be better off without.

The great thing about the Miami Herald article, though, is that the judge/victim had some pithy things to say about tort “reform.” Specifically, he is not a fan of caps on awards in medical malpractice cases.  According to the Herald:

Bailey would also like damage award caps placed on medical malpractice lawsuits lifted.

“I don’t know what all these caps are. That is not my area of the law,” Bailey told the paper. “But what I would like to see is when you have malpractice per se, something this egregious, the damages should be between the parties, a judge and jury without the state legislature dictating limits.”

And that, my friends, is what tends to happen, even to jurists, after you are personally touched by medical negligence.


THE PACE LAW REVIEW is looking for a few good writers.

The Editors of the Pace Law Review invite proposals from scholars and practitioners for our third annual issue on New York law that is slated for publication in Spring 2011. In the past, this book has examined a wide range of topics in New York law, including education, immigration, land use, and criminal procedure. The Review is most interested in timely pieces that comment on recently decided cases, areas of New York law that are quickly evolving, and issues that broadly impact the people of the State.

Please submit proposals of no more than 500 words to plr@law.pace.edu by October 15, 2010.  We welcome proposals for articles, essays, and book reviews.  All proposals should include the author’s name, title, institutional affiliation, contact information, and should concern issues related to the subject-matter described above.  Book review proposals should also include: (a) the title and publication date of the book proposed for review; (b) a description of the importance of the book to the general topic; and (c) any other information relevant to the book or proposed review (e.g. the reviewer’s expertise or any relationship with the author).  Authors are also welcome, but not required, to submit a CV.  We expect to make publication offers by October 31, 2010.

Completed manuscripts will be due December 1, 2010.

Best regards,

James Healy and Nicholas Tapert

Executive Articles Editors

Pace Law Review

Sep 18 2010

My Suggestion For Reducing Costs Of Medical Malpractice

A Florida judge with diverticulitis trusted his surgeons to perform the surgery he needed in the proper manner.  Unfortunately, his trust was misplaced, as they left a foot-long sponge inside his body.  And to make matters worse, it took so long for his doctors to figure out what had happened that the sponge was literally rotting inside him before the proverbial light went off.

This scenario depicts a classic case of medical malpractice.  It doesn’t get more clear cut than this.  And yet, as Fox News has been kind enough to point out, the judge/victim is bringing a lawsuit against the obviously negligent surgeons.

That is ridiculous.  Yet it is telling.  Clearly, the judge’s lawyers made a pre-suit claim of some kind, through which the hospital and its surgeons were notified of the judge’s misfortune.  That a lawsuit is proceeding tells you that these defendants have essentially said to the judge, and his medical malpractice attorneys, “Screw you. We won’t pay you a dime unless you force us too.” And that, my friends, is one reason why the medical malpractice system in this country is as costly as it is.

Here you have an open and shut case of negligence.  You can call it negligence per se. You can call it res ipsa loquitur (as in, the thing speaks for itself, as in such an event never could have happened in the absence of negligence).  The ethical and cost-efficient thing to do is for the defendants to make an immediate and realistic settlement offer.  But this was not done here, and it is rarely done anywhere in the U.S.  Instead, the defendants will litigate the case, forcing significant expenditures of money and time gathering records, taking depositions, retaining experts, and clogging the courts.  Why?  It doesn’t really matter, since the result is the same.

But a cynical person (like myself) would say the following. The insurance company hopes to wear down victims like the judge, in the hope that he will ultimately accept less money than he should get, just to have the case over with.  The lawyers for the insurance company are complicit as well.  If they settle a meritorious case early, than they don’t get to bill the heck out of the file, which they usually do to justify their existence, and pay themselves a decent salary.  If the victim is elderly, or even just sickly, insurance companies have been known to drag their feet, and keep the litigation going, until the medical malpractice victim dies.  That way, they avoid having to pay damages for lost earnings.

So, you want tort “reform”?  You really want to reduce costs?  How about doing the right thing, at the right time?

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