Case Study: A Case for Liability Reform

[juddson]

Here's what appears to be a detailed and illuminating case study which reflects, I suppose as well as anything else would, why I think "liability" reform is the principled way forward in the medical malpractice debate, and not necesarily "damages" reform. This article comes from a recent "Contemporary OB/GYN".

But some of you medical-types need to do me a favor and define/explain what some of the terms mean for me. They are:

1. gravida 2 para 1
2. estimated date of confinement
3. external version of a fetus in breech position (does this mean move fetus from breech to vertex position manually from the outside?)
4. is "floppy" a medical term?
5. occult cord prolapse. What is that?
6. high arched pallate, prominant alveolar ridges
7. What does Hypoxia indicate?

I imagine many of you will want to know why the jury was not permitted to hear evidence of the family history of mental ******ation. Frankly i don't know why - but i will try to find the rule and determine what its basis is.


"Mark J. Aaronson, Esq., Andrew I. Kaplan, Esq."

The allegation that an infant suffered "brain injury" during delivery is the most challenging and difficult to overcome, both for the defendant physician and counsel. In many cases a verdict that seems inconsistent with the evidence results when the jury's overwhelming sympathy for the infant and the difficulties posted by current laws on admissibility of family history and genetic evidence take precedence over reassuring tracings, thorough and appropriately timed progress notes, supportive Apgar scores and blood gas results, and lack of evidence of genetic or congenital anomaly.

The Facts
The plaintiff, an 18-year-old gravida 2 para 1 with an estimated date of confinement (EDC) of October 27th, presented to the defendant hospital on October 20th for external version of a fetus in breech presentation. Of significance, the mother had gained only 11 lb during the pregnancy and an October 14th ultrasound confirmed a breech presentation and a fetus "slightly small" for gestational age (SGA).

The admitting history recorded by the nurse-midwife on the date of the external version indicated the mother had no contractions and no bleeding, and that the attending physician had successfully performed the version to vertex under sonographic guidance. After the procedure, spontaneous labor was noted, and the plaintiff experienced contractions every 3 to 4 minutes. Vaginal examination revealed that she was 90% effaced, 1-cm dilated, and -3/-2 station. Artificial rupture of membranes revealed clear fluid. At 12:45 pm, the nurse-midwife noted contractions every 5 to 7 minutes that lasted for 40 seconds, with a fetal heart rate between 140 to 160 beats per minute (bpm) on internal fetal scalp electrode.

At 1:15 pm, the nurse's note indicated prolonged decelerations of 60 bpm for 3 minutes, the patient was turned on her left side, and 10 L of oxygen was administered. The note also documented a change in amniotic fluid from clear to meconium-stained. The nurse-midwife and attending were notified and at bedside and the nurse-midwife noted quick recovery in FHR with scalp stimulation. At 1:26 pm and 1:35 pm, the attending who performed vaginal examinations noted a fetus with compound presentation, and this was followed by a 1:50 pm note by the nurse, who documented prolonged decelerations to 70 bpm, which lasted 70 seconds. A sterile vaginal examination by the nurse-midwife detected a questionable occult cord prolapse and the attending was notified. Because of the nonreassuring FHR tracing, the patient was prepared for cesarean delivery. At 2:00 pm, the patient was transferred to the OR, anesthesia was begun at 2:15 pm, and the first incision was made at 2:19 pm. The infant, delivered at 2:23 pm, weighed 5 lb, 1 oz with Apgars of 1, 8, and 10, and was transferred to the neonatal intensive care unit at 2:40 pm.

The NICU notes indicated the infant was born floppy and had meconium-stained skin. He was intubated and meconium was suctioned from below the cords. His initial heart rate of 66 bpm improved to 100 bpm after resuscitation, and he received naloxone. The infant was erroneously listed as AGA (average for gestational age) when, in fact, he was actually SGA. Cord blood gases revealed acceptable pH and bicarbonate values (venous pH 7.32, HCO3 30) and the initial blood gas taken in the NICU at 3:32 pm had a pH of 7.38, CO2 of 44, and an O2 of 213 on 100% oxygen, with HCO3 of 26. No tremors or seizure activity were noted, and the newborn's cultures were negative.

Genetic consults were obtained when it was noted that the infant had dysmorphic features of prominent forehead, prominent alveolar ridges, and high-arched palate. His chromosomal studies were normal and U/S of the brain revealed slight fullness of the left lateral ventricle that was deemed within normal limits. The infant was discharged home on October 25th and his failure to thrive and "small stature syndrome" were investigated by several institutions, but no determination of the etiology was ever made.

The Allegations
The plaintiff alleged that the failure to perform an earlier cesarean delivery resulted in birth hypoxia sufficient to cause mental ******ation.

Discovery
The discovery process revealed that the plaintiff mother had an older child who had no developmental disabilities, but that the mother's older sister had two children who were mentally ******ed. The plaintiff's expert pediatric neurologist obtained that history from the mother and included it in his report about physical examination of the infant plaintiff. This information was also found in multiple records of the infant's treatment, and thus was included in the materials to be submitted into evidence at the time of trial.

Neither the physicians who treated the infant after birth nor those who evaluated him to determine whether his condition had a genetic etiology could determine the specific cause of his problems, but they noted that a genetic or congenital etiology could not be excluded. None were of the opinion that the infant's difficulties were related to the birthing process itself. At 3 years of age, the infant exhibited skills of a 9-month-old child.

The Trial
At the trial, the plaintiff's expert ob/gyn testified that the attending physician departed from good and accepted practice in failing to perform a "crash" cesarean delivery. He did not criticize the attending's care between 12:00 pm and 1:55 pm on October 20th, but testified that the attending departed thereafter by not delivering the infant within 3 to 4 minutes after the second severe deceleration. On cross-examination, however, this expert conceded that if the normal cord pH was valid, it absolutely spoke against hypoxia during delivery. In fact, he conceded that the presence of a normal cord pH militated against hypoxia in the hour prior to delivery.

The plaintiff's pediatric neurology expert admitted that the cord blood gas results were "inexplicable" and seemed to rule out the theory of hypoxia during birth. He further conceded that the infant's NICU course was normal and spoke against a significant hypoxic insult. This expert's theory was that the infant had "secondary microcephaly," which supported his opinion that during delivery, the infant suffered hypoxia significant enough to cause mental ******ation. That theory, however, contradicted the opinion of all of the physicians who had treated the infant after the birth that the child was born microcephalic. To support his opinion, the pediatric neurologist mixed and matched results from the Ballard scale and an intrauterine head growth circumference graph to arrive at the conclusion that the record of the infant as "AGA" and not "SGA" was accurate. At one point, this expert testified that if the infant was born 3 or 4 minutes earlier, he would have been "okay," but at another time, he used 15 minutes as the critical period.

Before the trial began, the court ruled that the family history of mental ******ation could not be put before the jury. The plaintiff's pediatric neurologist admitted, however, that he had obtained that history from the mother and included it in his report on the physical examination. As such, defense counsel was allowed to sum up before the jury on the issue over plaintiff counsel's objection. However, the jury was specifically instructed to disregard any testimony on genetics or family history when they subsequently were charged on what evidence they could consider while deliberating.

continued next page. . . .

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[juddson]

continued from above. . .

The defendant's obstetrical expert testified that the attending handled the labor and delivery appropriately and that at no time did any of the FHR tracings show a late deceleration, much less a pattern of late decelerations. The low 1-minute Apgar was consistent with meconium, and after vigorous suctioning, the Apgars were very good. The defendant's neonatology expert testified that the 5- and 10-minute Apgars reflected good neonatal resuscitation, and the cord blood gases confirmed that there was no indication the newborn had sustained any perinatal asphyxia. She believed that if the infant had "head sparing," rather than microcephaly, this might be reflective of placental insufficiency, but because the baby was relatively microcephalic, there was no evidence of asphyxia. Finally, she testified that the infant did not show a consistent pattern of hypoxic ischemic encephalopathy.

The defendant's expert pediatric neurologist concurred, and based upon her own examination of the infant, testified that the child's problems were related to factors other than those that occurred at birth. She opined that the infant's symmetrical rather than asymmetrical IUGR suggested that the problems likely occurred at the time of conception, or during the first, second, or early third trimester, rather than on the date of delivery. To support that opinion, she pointed to the umbilical cord pH.

Finally, the defendant's expert pediatric neuroradiologist testified that none of the MRIs subsequently performed upon the infant showed any evidence of hypoxia. Of significance, the court would not allow the defense to call the first-year resident who had erroneously indicated "AGA" rather than "SGA" in the infant's chart, a note that was then carried through the entire neonatal record.

After lengthy deliberation, the jury returned a significant verdict for the plaintiffs. As of this writing, the verdict has been reduced by two thirds on posttrial motion, and an appeal to set aside the verdict as against the weight of the evidence is pending.

Analysis
The result of this case underscores the unpredictability of the trial process. Often, the trial court, in its discretion, will exclude testimony or evidence that is seemingly helpful to one side or the other. In this case, the jurors were all serving for the first time and no doubt were influenced by the court's refusal to allow them to weigh testimony on familial history, or to hear a witness explain the entry indicating that the infant was "AGA."

This case further underscores the significance of the presenting infant's condition, which can never be overlooked, no matter how defensible the medicine appears. Most jurors are loathe to send a profoundly damaged infant home empty-handed, absent an airtight defense on behalf of the delivering physicians. In this case, what would appear to be an insignificant error in charting made by a first-year resident allowed a seasoned plaintiff's expert to create an explanation for his opinions that injury occurred during the birthing process. Despite his concessions that the infant's blood work and diagnostic studies argued against his theories, the expert gave the jury enough of a basis, in their minds, to justify a verdict for the plaintiffs.

Mark J. Aaronson, Esq. is a Founding Partner at Aaronson, Rappaport, Feinstein & Deutsch, LLP, New York, N.Y. Since graduating from Brooklyn Law School in 1969, he has spent virtually all of his legal career concentrating on defense litigation, specifically high-exposure medical malpractice cases as well as defense of product liability and construction claims.

Andrew I. Kaplan, Esq. is a Partner at Aaronson, Rappaport, Feinstein & Deutsch, LLP. Mr. Kaplan graduated from Brooklyn law School in 1993 and has specialized in medical malpractice defense and health-care litigation since entering private practice.

 

[Apollyon]

1. gravida 2 para 1 - 2 pregnancies, 1 live birth (usually, when you just have the G and P, and the G is one more than the P, it's a pregnant female - there's 3 more numbers in total)
2. estimated date of confinement - estimated birth date
3. external version of a fetus in breech position (does this mean move fetus from breech to vertex position manually from the outside?) yes
4. is "floppy" a medical term? yes - like the "floppy baby" of botulism
5. occult cord prolapse. What is that? Prolapsed cord is when it comes out of the cervix before the infant - which can compress the cord (and lead to hypoxia) - occult is "hidden" or "unrealized" - "occult cord prolapse" is when the cord is out, but you don't see it
6. high arched pallate, prominant alveolar ridges - developmental features - I forget with which they are associated
7. What does Hypoxia indicate? As an attorney, I thought you could figure this out (with your Latin and (I would assume) some Greek) - hypo- low oxia- oxygen. Hypoxia is a low-oxygen state. No oxygen to your heart? Chest pain. To your brain? Seizure, loss of consciousness, brain damage, death.

 

[ERMudPhud]

This case points out everything that's wrong with the current system and you are right that damage caps won't fix much of this. A few examples of what's wrong here.

1. You have an expert witness who is willing to twist and massage selective bits of data to show what he wants to show- a baby damaged by hypoxia and not a baby who was going to be abnormal no matter what. So he harps on the average for gestational age notation in one point in the chart as a sign that the kid was normal up until birth but ignores the SGA ultrasound, the normal cord blood pH (lab values don't lie and that one pretty much rules out hypoxia), the subsequent MRI's inconsistent with hypoxia, and the dysmorphic features consistent with developmental problem. There are lots of genetic and developmental ways to get an abnormal child only some of which can be identified and proven by the pediatric geneticist.

2. More importantly you have a jury which can't possibly have the background in biology, physiology, and development necessary to understood which bits of evidence don't mean much (a notation of AGA in the chart, a few decels on the strip) and which mean a lot ( a normal pH, MRI results, dysmorphic features which can't suddenly appear during a few minutes of hypoxia) So, the jury is at the mercy of duelling experts and we all know how that can turn out--just ask O.J. Plus they have a mentally ******ed kid in a wheel chair parked in front of them through out the trial with his mom crying by his side.

So, how do you fix it. I'm pessimistic that the best fixes would never be accepted by the American people, the congress, the trial lawyers, etc... I would favor taking all the money that currently goes into malpractice insurance and instead paying it into a fund that would be used by an educated and unbiased board with no economic interest in who gets how much to compensate people actually injured by malpractice. There is already good evidence that much of the money in malpractice doesn't go to the truly injured. Some bogus claims win, other legitamate claims lose or never get filed, and the trial lawyers and insurance companies continue to make a profit. So, lets cut all that out and give the money straight to the people that deserve it. I don't think this will ever happen because the trial lawyers and insurance companies will lobby against it and the average American would never trust it. After all who can blame them. It seems like every few months you read an article somewhere about a clearly bad doctor who was allowed to move from state to state and hospital to hospital because state medical boards or hospital credentialling committees either didn't know about previous problems or couldn't/wouldn't do anything about them. Just last month in Denver a similar series ran and although I found it biased I had to admit it goes a long way toward destroying any faith that the average person has in the ability of regulatory bodies to really look out for their interest.

So, failing that what else could we do:

Professional Juries?-- I think the average person would trust them as much as the board I mentioned above.

Expert Witnesses- Here I think we could make some progress. Require every expert to tell the jury how much he is being payed for testifying and how often he testifies for the defense versus the plaintiff in cases. Also require him to state his board certification status and when the last time was that he was primarily responsible for treating a patient with the condition he is testifying about. A friend of mine was recently sued and some how they got the plaintiff's expert to testify that he was being payed $1200.00!!(+expenses) for his prep and testimony time and that he was now pretty much a full time administrator and expert witness who hadn't worked in the ED in years. My friend won.

Just curious why post this here in the EM forum instead of OB/Gyn or some more general forum

 

[Apollyon]

Just curious why post this here in the EM forum instead of OB/Gyn or some more general forum

Because this is a "live-wire" topic in the EM Forum right now - since we are en masse lacking in circumspection and apparently deny that people are indeed injured gravely by medical malfeasance.

 

[Kalel]

I've heard of studies showing that most cases of CP happened prior to whatever "insult" the attorneys would like you to believe occured at birth (somewhere around 90%). Also, I've also heard that the drastic increase in the number of c-sections hasn't affected the CP incidence, strongly suggesting against a causality between delaying a c-section and CP. Nevertheless, we all know that CP is an indication to sue your Ob/Gyn and hope for a settlement totaling in the millions.

 

[FoughtFyr]

Here is an interesting quote on point.

"It seems to me that only trial lawyers are experienced at reading fetal
monitor strips and are able to tell me exactly when infants became
asphyxic," or deprived of oxygen, said Dr. William J. West Jr., an
obstetrician and the president of First MSA Inc., which administers health
care savings accounts."

From (I am posting the whole article because registration is required to read it from the website):

In Trial Work, Edwards Left a Trademark
By ADAM LIPTAK and MICHAEL MOSS
The NY Times
Published: January 31, 2004
http://www.nytimes.com/2004/01/31/politics/campaign/31EDWA.html?pagewanted=1&ex=107613 (registration required)

In 1985, a 31-year-old North Carolina lawyer named John Edwards stood before a jury and channeled the words of an unborn baby girl.

Referring to an hour-by-hour record of a fetal heartbeat monitor, Mr.
Edwards told the jury: "She said at 3, `I'm fine.' She said at 4, `I'm
having a little trouble, but I'm doing O.K.' Five, she said, `I'm having
problems.' At 5:30, she said, `I need out.' "

But the obstetrician, he argued in an artful blend of science and passion,
failed to heed the call. By waiting 90 more minutes to perform a breech
delivery, rather than immediately performing a Caesarean section, Mr.
Edwards said, the doctor permanently damaged the girl's brain.

"She speaks to you through me," the lawyer went on in his closing argument. "And I have to tell you right now - I didn't plan to talk about this - right now I feel her. I feel her presence. She's inside me, and she's talking to you."

The jury came back with a $6.5 million verdict in the cerebral palsy case,
and Mr. Edwards established his reputation as the state's most feared
plaintiff's lawyer.

In the decade that followed, Mr. Edwards filed at least 20 similar lawsuits
against doctors and hospitals in deliveries gone wrong, winning verdicts and
settlements of more than $60 million, typically keeping about a third. As a
politician he has spoken of these lawsuits with pride.

"I was more than just their lawyer," Mr. Edwards said of his clients in a
recent essay in Newsweek. "I cared about them. Their cause was my cause."

The effect of his work has reached beyond those cases, and beyond his own
income. Other lawyers have filed countless similar cases; just this week, a
jury on Long Island returned a $112 million award. And doctors have
responded by changing the way they deliver babies, often seeing a relatively minor anomaly on a fetal heart monitor as justification for an immediate Caesarean.

On the other side, insurance companies, business groups that support what
they call tort reform and conservative commentators have accused Mr. Edwards of relying on questionable science in his trial work. Indeed, there is a growing medical debate over whether the changes have done more harm than good. Studies have found that the electronic fetal monitors now widely used during delivery often incorrectly signal distress, prompting many needless Caesarean deliveries, which carry the risks of major surgery.

The rise in such deliveries, to about 26 percent today from 6 percent in
1970, has failed to decrease the rate of cerebral palsy, scientists say.
Studies indicate that in most cases, the disorder is caused by fetal brain
injury long before labor begins.

An examination of Mr. Edwards's legal career also opens a window onto the
world of personal injury litigation. In building his career, Mr. Edwards
underbid other lawyers to win promising clients, sifted through several
dozen expert witnesses to find one who would attest to his claims, and
opposed state legislation that would have helped all families with
brain-damaged children and not just those few who win big malpractice
awards.

In an interview on yesterday, Mr. Edwards did not dispute the contention
that the use of fetal heart rate monitors leads to many unneeded Caesarean
deliveries or that few cases of cerebral palsy are caused by mishandled
deliveries. But he said his cases, selected from hundreds of potential
clients with the disorder, were exceptions.

"I took very seriously our responsibility to determine if our cases were
merited," Mr. Edwards said. "Before I ever accepted a brain-injured child
case, we would spend months investigating it."

As for the unneeded Caesareans, he said, "The question is, would you rather have cases where that happens instead of having cases where you don't intervene and a child either becomes disabled for life or dies in utero?"

A Talent for Trials

Lawyers in North Carolina agree that Mr. Edwards was an exceptionally
talented lawyer, endowed with a prodigious work ethic, native
self-confidence, good looks, charisma and an ability to talk about
complicated subjects in accessible language.

That, said his former partner Wade M. Smith, is a lethal combination in a
trial lawyer. "People don't see him coming until it's too late," Mr. Smith
said. "It's true in politics and it was true in the law."

Even Mr. Edwards's former adversaries give him grudging praise. "He has an ingratiating way," said Dewey W. Wells, a former state court judge in North Carolina who litigated against Mr. Edwards as a defense lawyer,
"particularly with jurors and particularly with women on juries."

Mr. Edwards tried his first big personal injury case in 1984, seven years
after graduating from the University of North Carolina law school. He had
clerked for a federal judge, worked briefly for a firm in Nashville and then
joined Tharrington, Smith & Hargrove, a small firm in Raleigh, N.C., with
only a limited litigation practice.

The firm took the case that resulted in Mr. Edwards's first big jury verdict
as a favor to a state senator and lawyer who had let it languish. Mr.
Edwards, then a young associate, got the assignment because it was
considered a loser.

"I said, `Let's dump the file on John's desk,' " said Wade H. Hargrove, a
former partner at the firm.

The plaintiff in the case, Howard E. G. Sawyer, was disabled as a result of
what Mr. Edwards said was an overdose of a drug used in alcohol aversion
therapy. O. E. Starnes, who represented the hospital, had never heard of Mr. Edwards.

"He came over here and ate our lunch," Mr. Starnes said.

The jury awarded Mr. Sawyer $3.7 million.

"That created a buzz," Mr. Hargrove said. "The revenue that he was producing was an out-of-body experience. John would pick up an $800,000 fee for making a few phone calls."

In the years that followed, Mr. Edwards handled all sorts of cases. He
litigated contract and insurance disputes. He sued the American National Red Cross three times, claiming that the AIDS virus was transmitted through tainted blood products, and obtained a confidential settlement in each case. He defended a Wilmington, N.C., newspaper owned by The New York Times Company in a libel suit.

In 1993 Mr. Edwards founded his own firm with an old friend, David F. Kirby. Now known as Kirby & Holt, the firm boasts on its Web site that it still holds the record for the largest birth-injury settlement in North Carolina.

Michael J. Dayton, editor of The North Carolina Lawyers Weekly, which
frequently published summaries of Mr. Edwards's trial victories and
settlements, based on information his firms provided, said his stature was
uncontested.

"On the plaintiffs' side, he was absolutely the top one," Mr. Dayton said.

(continued...)

 

[FoughtFyr]

Continued...
Parents Felt He Cared

Something more than Mr. Edwards's reputation attracted David and Sandy Lakey of Raleigh, N.C., the parents of a young girl injured in a swimming pool. The Lakeys say all the lawyers they interviewed except Mr. Edwards wanted one-third of any award, which one of them predicted would not exceed $1.5 million. Mr. Edwards offered to take a smaller percentage, unless the award reached unexpected heights.

In 1997, it did. A jury awarded the Lakeys $25 million, of which Mr. Edwards got one-third plus expenses.

He so impressed the Lakeys that they worked as volunteers in his Senate
campaign the next year.

"I know how intelligent he is, how capable and how deeply he cares," Ms.
Lakey said.

In some ways, he might even have been too successful. In response to a large punitive award against a trucking company whose driver was involved in a fatal accident, the North Carolina Legislature passed a law that barred such awards unless the employee's actions had been specifically approved by company officials.

Over time, Mr. Edwards became quite selective about cases. Liability had to
be clear, his competitors and opponents say, and the potential award had to
be large.

"He took only those cases that were catastrophic, that would really capture
a jury's imagination," Mr. Wells, a defense lawyer, said. "He paints himself
as a person who was serving the interests of the downtrodden, the widows and the little children. Actually, he was after the cases with the highest
verdict potential. John would probably admit that on cross-examination."

The cerebral palsy cases fit that pattern. Mr. Edwards did accept the
occasional case in which a baby died during delivery; The North Carolina
Lawyers Weekly reported such cases as yielding settlements in the
neighborhood of $500,000. But cases involving children who faced a lifetime
of expensive care and emotional trauma could yield much more.

In 1985 he handled his first cerebral palsy case, for Jennifer Campbell, the
girl whose voice he recreated at trial. In his book "Four Trials," Mr.
Edwards described the case as an uphill battle. The doctor was esteemed and worked at a prestigious teaching hospital. Mr. Edwards's associate
interviewed 41 obstetricians before finding one local doctor who would make a good witness.

It was clear which evidence would be crucial: "I had to become an overnight expert in fetal monitor readings," Mr. Edwards wrote.

In other cases, too, his colleagues say, the fetal monitor readings would
constitute the key evidence.

"It's just like a black box in a car," said Douglas B. Abrams, Mr. Edwards's
co-counsel in a cerebral palsy case settled for $1 million in 1995. "You
know when a truck driver was driving too fast."

Doctors say that is an oversimplification.

"It seems to me that only trial lawyers are experienced at reading fetal
monitor strips and are able to tell me exactly when infants became
asphyxic," or deprived of oxygen, said Dr. William J. West Jr., an
obstetrician and the president of First MSA Inc., which administers health
care savings accounts.

In any event, Mr. Edwards's closing argument in the Campbell case still
resonates in North Carolina.

"It would have been a very, very cold heart that was not reached by that,
because Senator Edwards lived in that case," the judge who presided over the trial, Herbert O. Phillips, said in a recent interview. "That was Edwards,
and Edwards was that case. He projected that oneness with his client and
carried that to the jury, and he did it well."

The lawyer on the other side, Robert Clay, agreed.

"I was thinking that is really a bold thing to do," Mr. Clay said. "There is
not really one lawyer in a thousand who could do that without having it turn
against him because he is being hokey. It's just such a blatant appeal to
emotions, like putting up a sign: `I'm appealing to your emotions.' But John
could get away with it."

Not entirely. Five weeks after the verdict, Judge Phillips ruled it
"excessive" and said it appeared "to have been given under the influence of
passion and prejudice," adding that "the evidence was insufficient to
support the verdict." He gave the Campbells a choice: They could accept half of the $6.5 million the jury awarded or face a new trial. They declined to take half, appealed the case and eventually settled for $4.25 million.

Next weekend, members of the Birth Trauma Injury Litigation Group of the
Association of Trial Lawyers of America will gather in Atlanta for a two-day
conference. On the agenda the first morning: "Electronic Fetal Monitoring:
Understanding How the Strips Can Help or Hurt Your Case."

A Medical Advance Is Rethought

Electronic fetal heart monitoring was introduced in the 1960's to great
fanfare. Advocates thought it would prevent most cerebral palsy by providing continuous immediate data on how babies were weathering labor and delivery.

But in the 1980's, scientists began to challenge the premise that medical
care during delivery had much to do with cerebral palsy. Studies concluded
that 10 percent or fewer of cases could be traced to an oxygen shortage at
birth. The vast majority of children who developed cerebral palsy were
damaged long before labor, the studies found.

Then a series of randomized trials challenged the notion that faster
delivery could prevent cerebral palsy. Reviewing data from nine countries,
two researchers reported last year that the rate of the disorder had
remained stable despite a fivefold increase in Caesarean deliveries.

Dr. Karin B. Nelson, a child neurologist with the National Institutes of
Health, says the notion that paying greater heed to electronic monitoring
will prevent brain injuries remains just that, a notion. "Evidence of high
medical quality contradicts the assumption that the use of electronic fetal
monitoring during labor can prevent brain damage," Dr. Nelson said.

Mr. Edwards's colleagues in the plaintiffs' bar do not accept that analysis.
"You find me a low C-section rate," said Daniel B. Cullan, a doctor, lawyer
and co-chairman of the trial lawyer association's birth trauma group, "and
I'll show you children in wheelchairs."

Mr. Edwards's former colleagues in the plaintiffs' bar certainly support his
candidacy. His campaign is disproportionately financed by lawyers and people associated with them, according to the Center for Responsive Politics, which calculates that about half of the $15 million he has raised comes from lawyers. People associated with Baron & Budd, a Dallas law firm noted for its work on behalf of plaintiffs in asbestos cases, contributed $77,250, the largest amount, the center found.

Mr. Edwards has declined to discuss his fees as a lawyer or the size of his
personal fortune. Senate disclosure forms suggest that he is worth anywhere from $12 million to $60 million.

Some say that the biggest losers in litigation over brain-damaged babies are the parents of children whose cases are rejected by lawyers.

"For the one or two who got a substantial jury verdict," said George W.
Miller Jr., a former state representative in North Carolina who practices
law in Durham, "there were 99 that did not get anything, either because they were not able to finance litigation or their claim was questionable."

"The real issue," Mr. Miller added, "is who knows what causes these kinds of medical problems?"

He said he planned to bring up the issue of compensation with a state
commission that is studying medical malpractice. One approach would be to
limit awards and create a fund to be shared by all families with similarly
afflicted children.

This is not the first time Mr. Miller has championed the idea. In 1991, his
legislation to create such a fund was defeated, in large part by the state's
trial lawyers. Among those who spoke out against the bill was Mr. Edwards,
who called it a baby tax.

But Mr. Miller says he had lined up another financial source. Insurance
companies hard hit by malpractice suits had agreed to subsidize the fund.

- H

 

[MacGyver]

I keep telling you guys that doctors are our own worst enemy.

For every single cerebral palsy case, there has been a doctor who testified that the defendant did in fact cause injury due to negligence/malpractice.

 

[juddson]

BTW,

many states have laws which do not permit an expert witness to testify unless he spends at least half (and sometimes 3/4) of his professional time in the active clinical practice of his specialty. In these states, these doctors are not "testimony ******" but real doctors.

This is Ohio's law (just a representative example):

? 2743.43. Expert testimony on liability issues.

(A) No person shall be deemed competent to give expert testimony on the liability issues in a medical claim, as defined in section 2305.113 [2305.11.3] of the Revised Code, unless:

(1) Such person is licensed to practice medicine and surgery, osteopathic medicine and surgery, or podiatric medicine and surgery by the state medical board or by the licensing authority of any state;

(2) Such person devotes three-fourths of the person's professional time to the active clinical practice of medicine or surgery, osteopathic medicine and surgery, or podiatric medicine and surgery, or to its instruction in an accredited university.

(B) Nothing in division (A) of this section shall be construed to limit the power of the trial court to adjudge the testimony of any expert witness incompetent on any other ground.

(C) Nothing in division (A) of this section shall be construed to limit the power of the trial court to allow the testimony of any other expert witness that is relevant to the medical claim involved.

HISTORY: 136 v H 682 (Eff 7-28-75); 136 v H 1426 (Eff 7-1-76); 149 v S 281. Eff 4-11-2003.

 

[FoughtFyr]

BTW,

many states have laws which do not permit an expert witness to testify unless he spends at least half (and sometimes 3/4) of his professional time in the active clinical practice of his specialty. In these states, these doctors are not "testimony ******" but real doctors.

This is Ohio's law (just a representative example):

? 2743.43. Expert testimony on liability issues.
(2) Such person devotes three-fourths of the person's professional time to the active clinical practice of medicine or surgery, osteopathic medicine and surgery, or podiatric medicine and surgery, or to its instruction in an accredited university.

HISTORY: 136 v H 682 (Eff 7-28-75); 136 v H 1426 (Eff 7-1-76); 149 v S 281. Eff 4-11-2003.

Actually, nothing in this speaks to the physician's specialty. One of the biggest problems in emergency medicine is that, as a relatively young specialty, many times the "experts" testifying against us are internists, surgeons, neurosurgeons, etc. This is especially true when our names are "added on" to lawsuits arising from in-hospital medical complications several days after the ED visit (and admit). In any event, this law does nothing to protect the EP against the testmony of a cardiologist, pulmonologist, or podiatrist if they look good in front of a jury...

- H

 

[ERMudPhud]

BTW,

many states have laws which do not permit an expert witness to testify unless he spends at least half (and sometimes 3/4) of his professional time in the active clinical practice of his specialty. In these states, these doctors are not "testimony ******" but real doctors.

This is Ohio's law (just a representative example):

? 2743.43. Expert testimony on liability issues.

(A) No person shall be deemed competent to give expert testimony on the liability issues in a medical claim, as defined in section 2305.113 [2305.11.3] of the Revised Code, unless:

(1) Such person is licensed to practice medicine and surgery, osteopathic medicine and surgery, or podiatric medicine and surgery by the state medical board or by the licensing authority of any state;

(2) Such person devotes three-fourths of the person's professional time to the active clinical practice of medicine or surgery, osteopathic medicine and surgery, or podiatric medicine and surgery, or to its instruction in an accredited university.

(B) Nothing in division (A) of this section shall be construed to limit the power of the trial court to adjudge the testimony of any expert witness incompetent on any other ground.

(C) Nothing in division (A) of this section shall be construed to limit the power of the trial court to allow the testimony of any other expert witness that is relevant to the medical claim involved.

HISTORY: 136 v H 682 (Eff 7-28-75); 136 v H 1426 (Eff 7-1-76); 149 v S 281. Eff 4-11-2003.

On of the more infamous testimony ****** in EM is from Ohio and "teaches" at a prestigous institution there. Thus, he probably qualifies as someone who devotes 3/4 of his time to teaching. Rumor has it he rarely if ever works a shift as the primary ED attending responsible for actually seeing patients


Notice also that B and C seem to allow pretty much universal exceptions to A at the courts discretion

 

[juddson]

Actually, nothing in this speaks to the physician's specialty. One of the biggest problems in emergency medicine is that, as a relatively young specialty, many times the "experts" testifying against us are internists, surgeons, neurosurgeons, etc. This is especially true when our names are "added on" to lawsuits arising from in-hospital medical complications several days after the ED visit (and admit). In any event, this law does nothing to protect the EP against the testmony of a cardiologist, pulmonologist, or podiatrist if they look good in front of a jury...

- H

This is true. But these doctors may nly testify as to a subject matter than they are an expert in. That does not mean, however, that the testimony of a cardiologist (relating to the cardiac health of a patient) is not relevant to the actions taken by the EP. I would think, however, that only an EP would be able to testify as to the standard of care for an EP. For instance, in this case the expert witness who testified to the applicable "standard of care" was an OB/GYN (as it should be, though I have to think this rule changes from state to state). That does not mean, however, the tha pediatric neurologists does not have relevant testimony concerning the nuerological condition of the child and its causes.

So, while I agree this law does nothing to "protect" the EP from the testimony of a surgeon, I don't think it should have been designed to do that. It was designed to protect the EP from the testimony of a "professional witness" no matter what field he is in.

I think the Daubert rules go a long way in protecting EP's from 'standard of care" testimony from non EP's (and the like) - though I am not a medical malpractice attorney and have not looked at the issue closely.

All of this to say that the liability system needs reform. I think we would be much better off if we had professional juries.

judd

 

[juddson]

On of the more infamous testimony ****** in EM is from Ohio and "teaches" at a prestigous institution there. Thus, he probably qualifies as someone who devotes 3/4 of his time to teaching. Rumor has it he rarely if ever works a shift as the primary ED attending responsible for actually seeing patients.

Who is this guy? Where does he teach?

Notice also that B and C seem to allow pretty much universal exceptions to A at the courts discretion

Actually, this is wrong on both counts.

Subsection (B) actually does NOT override A, but merely provides another avenue for the court to throw out the witness. The purpose behind (B) is to make it clear that just because a witness complies with (A) does not mean he is automatically qualified. It actually strengthens the courts power to disqualify a witness EVEN IF (A) is complied with.

Section (C) does NOT override (A) either. It merely permits other (ie., non-medical) expert witnesses to testify if they have relevant evidence. It makes clear that section (A) is designed to place limits on the tesimony of "medical" experts, but does NOT place limits on the testimony of other types of experts with relevant evidence (there are OTHER provisions in the code that place limits on other types of experts). This provision is designed to limit medical expert testimony, not ALL expert testimony.

Judd

 

[FoughtFyr]

This is true. But these doctors may only testify as to a subject matter than they are an expert in. That does not mean, however, that the testimony of a cardiologist (relating to the cardiac health of a patient) is not relevant to the actions taken by the EP. I would think, however, that only an EP would be able to testify as to the standard of care for an EP. For instance, in this case the expert witness who testified to the applicable "standard of care" was an OB/GYN (as it should be, though I have to think this rule changes from state to state). That does not mean, however, that the pediatric neurologist does not have relevant testimony concerning the nuerological condition of the child and its causes.

judd

Actually, the law does not state that doctors may only testify as to subject matter they are expert in. It lumps together (as do most state's medical licenses) all medical practice as one single area of expertise. Many physicians have worked in an ED, or rotated through one as a student or resident. Many feel this makes them "experts" in EM. It doesn't. Nor does board certification in another specialty make one an expert in that condition presenting in an ED patient. The ED has different capabilities, protocols, and standards of care than exist elsewhere in the hospital. Therefore, for a pediatric neurologist to testify the EP should have seen or done x,y, or z is invalid. I've had more than one attending (during medical school) rail against our ED for failing to do some "basic" test they wanted. The most recent example being a patient seen with dyspnea / suspected PE. D-dimer through the roof (1700+), VQ scan shows intermediate to high probability, and CT angio study limited by patient's weight (425 lbs.). EP decided to treat with Lovenox (easily the EM "standard"). The attending on the floor raled against this decision as the EP did not perform a doppler study of the LE. He stopped the lovenox once that study was read as negative, deciding after PFTs that it was restrictive lung disease secondary to the patient's weight.

Now, all's well that ends well, and this patient had no adverse outcome. But let us assume for the sake of arguement that he did. The attending pulmonologist would argue (for the plantiff) that the Lovenox should not have been started. He would be convincing. As a pulmonologist he felt further evaluation was warranted. But in EM, he would be wrong. EBM suggests that a second, fatal PE may occur (with scary frequency) within a few hours of the first. This urgency, coupled with a plausible clinical picture and tests that were either inconclusive (the CT) or suggestive of PE (d-dimer and VQ), called for the EP to act. The likelihood of a second PE (a catastrophic event) was far greater than the risk of an adverse reaction to the Lovenox. The pulmonologist would be correct in ordering more tests once the immediate danger had passed, but in the short term, he'd be wrong. That is why only experienced BC physicians should be allowed to tesify (in any med mal case, not just EM).

Here's an idea, why not require judges hearing summary judgement arguments to contact three practicing, board certified physicians not otherwise associated wth the case and obtain their opinion. You could even run it like an arbitration board with the plantiff choosing one, the defense choosing one, and those two choosing a third. Majority rules as to the case's merit with the votes blinded to the litigants. I bet that would stop a great deal of the "senseless" cases.

- H

 

[ERMudPhud]

Who is this guy? Where does he teach?




Section (C) does NOT override (A) either. It merely permits other (ie., non-medical) expert witnesses to testify if they have relevant evidence. It makes clear that section (A) is designed to place limits on the tesimony of "medical" experts, but does NOT place limits on the testimony of other types of experts with relevant evidence (there are OTHER provisions in the code that place limits on other types of experts). This provision is designed to limit medical expert testimony, not ALL expert testimony.

Judd

Naming names in this sort of public forum wouldn't be wise but just for fun go to your local academic ER and check the attending schedule. How many shifts is the chairman scheduled to work per week. If it is less than 3 per week than he probably doesn't meet the 3/4 requirement. Nevertheless, the Chairman of EM at a famous academic institution makes a compelling expert witness. I know some chairman who do work 3 shifts a week but I know many who do not. The rest would probably claim that they make up the rest with teaching time. Although probably not true that would be a difficult claim to disprove.

I don't see anything in C that says it only applies to nonmedical experts but you are the expert on that issue.

 

[MacGyver]

I would think, however, that only an EP would be able to testify as to the standard of care for an EP. For instance, in this case the expert witness who testified to the applicable "standard of care" was an OB/GYN (as it should be, though I have to think this rule changes from state to state).

I think the Daubert rules go a long way in protecting EP's from 'standard of care" testimony from non EP's (and the like) - though I am not a medical malpractice attorney and have not looked at the issue closely.

Thats not true. The other case had a neurosurgeon testifying about the standard of care delivered by ER docs and pediatricians.

 

[EMRaiden]

"She speaks to you through me," Sen. John Edwards

Think of the benefit of having a Commander-in-Cheif who can channel the dead... He could speak as Washington, or Jefferson... and to think we as a country did not throw our support behind this amazing man in his bid for the Presidency.


I'd like to point out that the fine folk of SC recognized the value of such abilities and voted for Edwards...

 

[FoughtFyr]

Is Juddson gone?

- H

 

[Seaglass]

Naw, I sam him/her on a gen-res thread recently, or was it IM? I don't remember, but I think Masonator was hatin' on him/er.

C

 

[FoughtFyr]

Naw, I sam him/her on a gen-res thread recently, or was it IM? I don't remember, but I think Masonator was hatin' on him/er.

C

Maybe he left for quieter waters...

He got in a few shots here but I think he took more hits than he dished out.

- H

 

[Seaglass]

It's kinda like I said, he just generally feels like malpractice cases in general are justified, and we feel that in general they are not. You're not going to be able to reconcile those two things.

C

 

[juddson]

Whoa,

I got into a stupid exchange with CCW and MacGyver on another thread and simply forgot this one was here. http://forums.studentdoctor.net/showthread.php?t=116725

There were like four of these types of threads going at once.

"It's kinda like I said, he just generally feels like malpractice cases in general are justified, and we feel that in general they are not. You're not going to be able to reconcile those two things."

This is kinda ironic given that I started this thread with a case that clearly reflected some need for tort reform. What I object to is the constant and endless barrage of trial "snippets" which obviously PROVE that the system is flawed. These stories have almost NOTHING in the way of facts, and yet everybody seems to be able to determine whether the outcomes are justified based on - well, based on I don't know what.

I hope you all read the link to the Public Citizen document I have been posting around. When you are ready to address it substantively, you let me know. K?

http://www.citizen.org/documents/Briefing_Book.pdf

Judd

 

[FoughtFyr]

Whoa,

I got into a stupid exchange with CCW and MacGyver on another thread and simply forgot this one was here. http://forums.studentdoctor.net/showthread.php?t=116725

There were like four of these types of threads going at once.

"It's kinda like I said, he just generally feels like malpractice cases in general are justified, and we feel that in general they are not. You're not going to be able to reconcile those two things."

This is kinda ironic given that I started this thread with a case that clearly reflected some need for tort reform. What I object to is the constant and endless barrage of trial "snippets" which obviously PROVE that the system is flawed. These stories have almost NOTHING in the way of facts, and yet everybody seems to be able to determine whether the outcomes are justified based on - well, based on I don't know what.

I hope you all read the link to the Public Citizen document I have been posting around. When you are ready to address it substantively, you let me know. K?

http://www.citizen.org/documents/Briefing_Book.pdf

Judd

So you are just going to drop our challenges to redefine "expert witness"? O.k., whatever.

I read the Nader document you reference. It is bunk. It contradicts itself all over...

Example -

In the executive summary, "According to experts at the Medicare Payment Advisory Commission (MedPAC), liability insurance premiums make up just a tiny part of a physician?s expenses and have increased by only 4.4 percent over the past year."
then on page 17 their chart demonstrates 9.5% and 8.7% increases over the past two years respectively. Oops.

Besides, this is from Ralph Nader's citizen watchdog group. They have supported 1000s of tort claims, usually against major industries. Nader himself practically invented regulation by tort. And you are holding this drivel out as an "unbiased" look. Please. In my town seven attendings in the past year moved their practices to differing states, four had been dropped by their med mal carriers completely - without a single successful suit against them (the insurance companies were no longer covering trauma neurosurgeons in our area - historic awards were just "too high"). Like it or not, regardless of the cause, skyrocketing med mal premiums exist, and without relief larger and larger areas of the country are without coverage for "high risk" specialites.

MEDICAL MALPRACTICE INSURANCE REFORM IS A PATIENT ACCESS ISSUE!

As long as we are posting links. Read this:
http://www.isms.org/realmedicine/gallery/multimedia.html download the powerpoint pres. and read it. Or go here,
http://www.isms.org/realmedicine/info/book/dear.html and read the presentation.

Or for a completely unbiased look find and read "Confronting the New Health Care Crisis: Improving Health Care Quality and Lowering Costs By Fixing Our Medical Liability System, U.S. Department of Health and Human Services, July 24, 2002"
http://aspe.hhs.gov/daltcp/reports/litrefm.pdf
When you are ready to address it substantively, you let me know. K?

- H

 

[juddson]

Fought,

First, I support the public citizen document as an unbiased one because it is not written by trial lawyers, doctors or insurance companies. Moreover, it constituents are both the people who will suffer when access to care is curtailed, but will also gain by being justly compensated when injured. Now you do the math. Most people struggle with health care related issues very frequently, including access issues and healthcare cost issues. Very few walk around all day anticipating the day they will need to sue their doctor. So WHAT exactly IS the interest you think is being held so close to the vest among the constituents of a consumer protections group? To cling tenaciously to as an yet un-drawn and un-cashed ticket to the ?lawsuit lottery? or is it rather a general interest in making sure that people and businesses are responsible for their misdeeds ? to ensure that injuries are compensated, that dangers in the name of corporate profits do not go un-addressed. I can only imagine Joe Public hunched over in despair as the future prospects of his spin at the trial lawsuit roulette wheel slips through his fingers. Bias is a matter of perspective, sir. You take your chances with the paper written by an executive officer under the control of the most pro-big business administrations in recent history. If you doubt that, just have a look at the ?unbiased? filth that has been coming out of the EPA lately.

Second, if I have to read one more time that the interest being pressed by doctors, doctors groups, insurance companies, medical device manufacturers and pharma companies is to ?ensure the patient access to medical care? I think I am going to puke. A noble goal, no doubt. But honestly held ? only peripherally. If doctors really cared about access to care, they would support single payor systems, universal healthcare, salary caps, public clinics, greater access to medical education. Neurosurgeons would not leave state A where they are now only making 300k for state B where they are promised $450k. Exactly how does THIS increase access to care? MDA?s would support independent CRNA practice; IM?s would support NP?s and PA?s. blah blah blah. Doctors are no more interested in greater patient access to healthcare than trial lawyers are interested in ?justice? for their victims.

Third, as I read the so-called ?Nader paper? the first figure refers to the increase in the percentage of total revenues earned by a doctor that goes to medical malpractice insurance. The second figure refers to the percent change in insurance premiums from year to year. You are comparing apples to oranges. Moreover, even if these two figures referred to the same thing, the documents cites two different sources for the figures. The first is from MedPAC and the second is from USBLS. I can only imagine (because I have no idea for sure, of course) that USBLS data was used in the table because it had the necessary historical data needed to make the yearly comparison. Public Citizen uses a variety of data from a variety of sources, and it is incumbent upon them to cite to the different sources as they present the data even if it is varied. No doubt not every source will agree with one another exactly. All Public Citizen can do is present it and cite to it appropriately. I can only imagine that you would prefer a group cite only that data that supports their position. Fair enough. Let?s look at the fuzzy underside of this issue ? the practice of the AMA to cite only award information from Jury Verdict Research compared to the more meaningful data presented from other sources that does not exclude settlements (like 90% of all awards) but does exclude suits against large health corporations, medical device manufacturers and pharma companies ? all of which would be included under the caps if the most recent bill comes out of committee. I can only IMAGINE what the $100,000,000 ?mega awards? are for in your HHS paper. Against individual doctors ? I?ll let you decide.

Fourth, do you honestly think it is enough to simply accuse this of being a liberal ?Nader? paper? What kind of an argument is that? It?s certainly not one based on substance. In any event, if it were not for people like Nader the car you drive would have 1960?s crash technology and 1970?s fuel efficiency. If it were not for people like Nader dangerous and defective products (like DDT and thalidomide and old IUD?s) might still be on the market injuring people. Maybe with the urging of groups like Public Citizen the AMA will finally do something about the disgusting pharma industry marketing machine.

Finally, I?m only responding to you on this thread as I don?t see the value in debating the same issue with you on three different threads. You?ll get to have the last word on those other threads. In any event, I don?t intend to debate with you the merits or bona fides of the papers presented in this thread. You and I could google-up these studies all week long and won?t get anywhere. The fact is that we are like two ships passing in the night. I support reasoned and principles reform of liability because I believe I believe this is the best way to prevent frivolous lawsuits from being filed or won. But I also believe that meritorious suits deserve to proceed and be compensated at their full value. On this you and I differ. Because you see only ?interests? rather than ?principles? you are willing to admit (you would HAVE to admit, wouldn?t you) that SOME suits are meritorious and that SOME injured victims have non-economic damages that amount to greater than $250,000. That SOME doctors are bad, and don?t have any business practicing medicine. But because there are other interests at stake, those truly injured be damned in the name, of keeping insurance premiums down. I say GREAT. Institutionalize healthcare, recognize it as the ?public good? you so desperately want it to be (don?t you?) and pay doctors a civil servant salary. Then we?d have immunity for all non-intentional and wanton malfeasance. I like it.

I anticipate you?ll spend another 20 minutes (or whatever) picking apart this paper or that looking for the perfect smoking gun. Perhaps you?ll post an exhaustive list of ?internal inconsistencies? of the whole public citizen agenda. But my purpose is a simple one. Both sides of these issues have studies and papers and positions, and it doesn?t mean a thing to us on the forum. We need to discuss principles to get anywhere.

Anyway, this is my last post for this thread as you and I have been around and around on this too many times. You can have the last word.

Judd

 

[Apollyon]

Second, if I have to read one more time that the interest being pressed by doctors, doctors groups, insurance companies, medical device manufacturers and pharma companies is to ?ensure the patient access to medical care? I think I am going to puke. A noble goal, no doubt. But honestly held ? only peripherally. If doctors really cared about access to care, they would support...public clinics...

This point would have much more power elsewhere, if only because this is the EM forum, where we see all patients, and all comers, and do "ER-PC" - "ER Primary Care", in place of clinics (it was tried at Denver General (I think), and failed - even with 24-hour medicine and surgery clinics, people STILL went to the ED). In the US, as long as there is an ED that takes MedicAid, there is 100% access (by EMTALA - the "Emergency Medical Treatment And Labor Act"); only places such as Kaiser Permanente may refuse to see patients.

 

[juddson]

This point would have much more power elsewhere, if only because this is the EM forum, where we see all patients, and all comers, and do "ER-PC" - "ER Primary Care", in place of clinics (it was tried at Denver General (I think), and failed - even with 24-hour medicine and surgery clinics, people STILL went to the ED). In the US, as long as there is an ED that takes MedicAid, there is 100% access (by EMTALA - the "Emergency Medical Treatment And Labor Act"); only places such as Kaiser Permanente may refuse to see patients.

I'm not suggesting that people on this forum are not interested in greater healthcare access. I have no reason to think, however, that they are different from anybody else. The AMA is NOT genuinely interested in greater access for patients. They are NOT a public healthcare interest group (far from it). They represent doctors and the interest of doctors, plain and simple. Nothing wrong with that. But it is too often denied in these debates.

Secondly, I don't think the fact that an ED is required to see all comers really supports the point you are trying to make. Honestly now, how many ED's do you anticipate will continue to see "all comers" if EMTALA were repealed. Why was it enacted in the first place? The BEST that can be said is that the fact ED's see all comers is kinda inapposite to the point both you and I are trying to make.

Judd

 

[Apollyon]

Well, EMTALA was enacted for that very same reason - if you DON'T see everyone, kiss the MedicAid money goodbye.

But I do see your point. As an aside, only about 50% of US docs are members of the AMA.

 

[FoughtFyr]

Fought,

I can only imagine Joe Public hunched over in despair as the future prospects of his spin at the trial lawsuit roulette wheel slips through his fingers. Bias is a matter of perspective, sir. You take your chances with the paper written by an executive officer under the control of the most pro-big business administrations in recent history. If you doubt that, just have a look at the ?unbiased? filth that has been coming out of the EPA lately.

"Joe Public" didn't write the paper. A "tort-friendly" political group did.

Second, if I have to read one more time that the interest being pressed by doctors, doctors groups, insurance companies, medical device manufacturers and pharma companies is to ?ensure the patient access to medical care? I think I am going to puke. A noble goal, no doubt. But honestly held ? only peripherally. If doctors really cared about access to care, they would support single payor systems, universal healthcare, salary caps, public clinics, greater access to medical education. Neurosurgeons would not leave state A where they are now only making 300k for state B where they are promised $450k. Exactly how does THIS increase access to care? MDA?s would support independent CRNA practice; IM?s would support NP?s and PA?s. blah blah blah. Doctors are no more interested in greater patient access to healthcare than trial lawyers are interested in ?justice? for their victims.

Get a bucket, here it comes agan. My original quote actually called for insurance reform, not neccessarily tort reform. I am not sure who is to blame, but to me it sure looks like plantiffs' attorneys. The cases of doctors moving across state lines is not a matter of $150K as your post suggests. My mother's OB/GYN moved acroos state lines because their 3 person practice was going to have to pay $1.5 million to continue to insure deliveries. Illinois does not allow a physician to "go bare". According to popular media accounts, the practice had not had any successful suits against them in the three years prior, it was merely the "cost of doing business in Cook County". Since areas that have "plantiff-friendly" juries tend to be urban areas, and these areas have higher percentages of Medicare/Medicaid populations (low reimbursement to start with), physicians are being forced out. Not "opting out" for higher pay but "forced out" when premiums exceed income or when insurance is dropped altogether.

If that isn't an access to care issue, then what is?

Fair enough. Let?s look at the fuzzy underside of this issue ? the practice of the AMA to cite only award information from Jury Verdict Research compared to the more meaningful data presented from other sources that does not exclude settlements (like 90% of all awards) but does exclude suits against large health corporations, medical device manufacturers and pharma companies ? all of which would be included under the caps if the most recent bill comes out of committee. I can only IMAGINE what the $100,000,000 ?mega awards? are for in your HHS paper. Against individual doctors ? I?ll let you decide.

Out of curiousity, in court, do you use the facts that support the opposing side, or those that support your case. I am not a big fan of the AMA, but if the source is accurate and cited, then I do not blame them for using a quote that bolsters their argument. The "mega awards" are generally class action suits associated with drugs or medical devices. Limits on cases against big pharma and medical device makers is a whole diferent conversation.

Fourth, do you honestly think it is enough to simply accuse this of being a liberal ?Nader? paper? What kind of an argument is that? It?s certainly not one based on substance.

It is the same argument as "You take your chances with the paper written by an executive officer under the control of the most pro-big business administrations in recent history. If you doubt that, just have a look at the 'unbiased' filth that has been coming out of the EPA lately."

In any event, I don?t intend to debate with you the merits or bona fides of the papers presented in this thread. You and I could google-up these studies all week long and won?t get anywhere. The fact is that we are like two ships passing in the night. I support reasoned and principles reform of liability because I believe I believe this is the best way to prevent frivolous lawsuits from being filed or won. But I also believe that meritorious suits deserve to proceed and be compensated at their full value. On this you and I differ. Because you see only ?interests? rather than ?principles? you are willing to admit (you would HAVE to admit, wouldn?t you) that SOME suits are meritorious and that SOME injured victims have non-economic damages that amount to greater than $250,000. That SOME doctors are bad, and don?t have any business practicing medicine. But because there are other interests at stake, those truly injured be damned in the name, of keeping insurance premiums down.

Your restatement of my "beliefs" is wrong. I agree that there are bad doctors who have no business practicing medicine. I believe they should be kept from doing so. But in the current legal environment any meaningful attempt to do so have been stymied by threat of suit. There should be accountability in medicine, but it should be against a meaningful standard, not jury sympathy. It should come from systemic case reviews, not single incidents. Most hospitals have QA/QI departments who already produce these data in order to assess who has privledges. However, they are closely held and legally protected due to the monstrous liability they create. Lets re-engineer the system to use these meaningful, longitudinal data to decide a doctor's competence, not the jury box.

We need to discuss principles to get anywhere.

There is a difference between malpractice and poor outcome, one that is very often lost in these discussions. When I finish residency training, I'll have spent more years studying after my high school graduation than I did before it. I'll do my best, but I will make mistakes. When I do, unless I commit them with malice aforethought, I should not have to fear for my home, retirement funds, livelyhood or license. That is the principle where we differ.

I am asking no more protection from malpractice than is afforded to lawyers and judges, why is that so unfair?

Anyway, this is my last post for this thread as you and I have been around and around on this too many times. You can have the last word.

Judd

O.k.

- H

 

[LaurieB]

I found this website listing of doctors that will provide expert testimony. I thought I'd pass it along for those interested:

http://expertpages.com/medical/medicalmalpractice.htm

Of course, this listing could include folks that testify on either side of a case so keep that in mind.

 

[Febrifuge]

I found this website listing of doctors that will provide expert testimony. I thought I'd pass it along for those interested:

http://expertpages.com/medical/medicalmalpractice.htm

Of course, this listing could include folks that testify on either side of a case so keep that in mind.

Fascinating page. I notice how when I click for a listing of experts in my state, NONE of them seem to be from here.

Check out this guy: "(Dr. Name), MD - Medical/Insurance/Real Estate/Securities Expert / City, Eastern Seaboard State, Tel: xxx-xxx-xxxx / Fax: xxx-xxx-xxxx Board-certified Internist and Radiologist, with additional licenses in Insurance, Real Estate, and Securities."

Wow. Just... wow. Maybe he also went to chef school, so during that long deposition, he can whip up a nice snack for the legal team*. And he might be able to land the jet if there is a crew problem, as he flies out to your city.

On the other hand, I think this is a good message, from another listing: "Let me Weed Out Your Bad Cases Cheaply and Educate You How to Prevail Quickly on the Good Ones." Capitalization orgy aside, there is a lot of value in selecting cases on merit, and rejecting them on lack of merit. More and better work there would be a big help.


* extra charge, of course.