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 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?

Sep 5 2010

Man up, Doctors!

The tort “reformers” have been doing their usual whining, and I’ve been looking for a way to shut them up.  Today, I may have come upon a solution, or at least, the foundation for a solution.  And here it is: doctors, healthcare providers of all stripes, medical liability insurance executives, risk control managers, male and/or female and anything in between–it’s time to man up–as in, take responsibility for your screwups that injure and kill patients, and then be quiet.

Why? Because you don’t know how good you’ve got it here in America.  Just take a gander at what the LawProfs will be eyeing come December in Austria.  That’s right, a global conference on medical malpractice which will include an idea unfamiliar to most US healthcare workers: criminal liability.  As in jail, fines or both.  Unless of course, you practice in a country where the sentences include stoning.

If you are sitting there slack-jawed and wondering what I mean by hectoring you to “Man Up,” I suggest you read Ben Zimmer’s awesome On Language article in today’s New York Times, which article is conveniently titled, “Man Up.”  Though there are some definitions that are too reliant on the idea of an infusion of excess testosterone, the essential meaning is this: be a mensch, and live up to your responsibilities, i.e.,  to your patients.  Don’t deny liability.  Don’t fail to apologize. Don’t open up your own MRI center, suggest to your medical network what a great idea it is to rule things out with MRI’s, make a fortune, and publicly moan about the need to practice defensive medicine.  Don’t speechify about the medical malpractice “crisis,” because you and I both know that cases are way down.  Don’t bemoan what you are paying in medical liability premiums, because by now you have come to realize that your rates have little to nothing to do with with the amount of medical malpractice cases being defended.  Don’t make snide comments about plaintiff’s lawyers, because you know that when one of your colleagues causes you lifelong grief after making a preventable error while treating your wife, child, parent, best friend, you’ll come running to us, because we can help you.

If you think criminal prosecution of medical negligence can’t or won’t happen here, you are wrong.  It has already, as is outlined in this article on the Criminal Prosecution of Medical Negligence. In fact (and as I have discussed in prior posts), two former colleagues in the Queens County District Attorney’s Office successfully prosecuted an amoral OB/GYN who left a patient to bleed out and die in his clinic so that he could treat the many other unfortunates lined up in other rooms.  He never called for help, even when he realized what was happening.  It was outrageous.  It was beyond gross negligence.  And it should serve as a warning to those who continue to lump plaintiff’s lawyers, plaintiffs themselves, and the mythical medical malpractice “crisis” together as one collection of fraudulent schemers paving the road to “jackpot justice.”

Get real. Man up.  Be a mensch.

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