A week ago, the Wall Street Journal published an excellent article, “Clues to Better Health Care From Old Malpractice Lawsuits,” which detailed the way that malpractice insurers and medical safety groups have been pouring through thousands of closed malpractice cases to see ways they can improve health care.

As the Wall Street Journal says:

There are common themes in claims from almost every medical specialty—including failure to properly diagnose a patient or poor technique in a procedure. But data collections from different specialty groups are also helping to identify issues unique to different types of doctors, including primary-care physicians, anesthesiologists, emergency-room doctors and cardiologists.

It should come as no surprise that many of the “issues unique to different types of doctors” are exactly the same types of cases for which medical malpractice lawyers routinely advertise. Consider this list of improvements to Emergency Care:
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A recent article in the British Medical Journal made the headline-grabbing claim that medical errors were now “the third leading cause of death in the US,” behind only cancer and heart disease. Medical errors, in their estimate, caused more deaths each year than motor vehicles, firearms, and suicides combined.

The backlash from the medical profession has already started. STAT News posted an equally-provocative article, written by an assistant professor of medicine, “Don’t believe what you read on new report of medical error deaths.” MedPageToday grumbled about the “superficial coverage” and made several complaints. Skeptical Scalpel said the article “shines no new light, only heat, on the subject.”

So who’s right?
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Heparin is one of the most basic medicines used in medicine, the primary anticoagulant used by hospitals, which is why it’s part of the World Health Organization’s List of Essential Medicines.

But anticoagulants are so powerful that they are used as rat poison. Anticoagulants make a patient 10 times more likely to develop intracerebral hemorrhage, and thus all of them — Heparin, Coumadin, warfarin — have to be used with the utmost caution.
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This morning, MedPage Today — which should know better — began their “Morning Break” with this description and link:

An analysis of closed claim data from The Doctors Company suggests that physicians spend about 10% of their professional life dealing with malpractice claims, but most of those claims are closed with no money paid to the plaintiff.

Goodness! That sounds incredible. Turns out, it is incredible. In fact, it’s false.

The linked post by “The Doctors Company” at The Doctor Weighs In says:

The average physician spends over 10 percent of his or her career consumed in defense of an open malpractice claim. For the average neurosurgeon, that number is 25%—that’s a quarter of a career dealing with the intense emotional stress of defending your reputation and livelihood.

And the majority of those claims close with no payment to the plaintiff. That means the average U.S. physician in every specialty spends a significant portion of his or her career in court defending malpractice claims, but the overwhelming majority of those claims are found to be at best fruitless, and at worst frivolous.

These numbers come from a RAND Corporation objective analysis of the claims database of The Doctors Company, the nation’s largest physician-owned medical malpractice insurer. According to Richard E. Anderson, MD, FACP, chairman and CEO of The Doctors Company, these numbers show that our medical malpractice litigation system is broken—and must be fixed.

The only support given for any of these assertions is this YouTube video, where Dr. Anderson makes the same claims.

But there’s a problem: the RAND Corporation’s “objective analysis” never said anything like that.
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Earlier this week, Jeremy Carter, the grandson of Jimmy Carter, died at 28 years old from an apparent heart attack. As his brother Josh wrote in a heartbreaking blog post,

He had a whole battery of tests just a couple months ago. He couldn’t eat well and his legs ached. He had nearly every doctor at Emory look at him. They ended up prescribing him Vitamin A and Vitamin D. After all that. He got the full work over and really just needed vitamins. If a 28 year old heart is going to go out, shouldn’t they have found that? Maybe, but they didn’t.

Indeed. It’s a tragic death that raises many questions.

Most of time, when grieving families contact me, they’re not looking to file a lawsuit, they’re looking for answers. Doctors and hospitals rarely tell family members much about the circumstances, or about what could have been done differently, and so those family members start looking for answers. I made it my policy long ago that, even if I didn’t believe a lawsuit was warranted or would be successful, I would try to explain to everyone who contacts me about a medical malpractice case what actually happened and if something could have been done differently.

From the information Jeremy’s family has provided publicly, we can start to figure out what might have gone wrong. The coroner hasn’t determined the cause of death yet, and apparently is not going to conduct an autopsy, but the circumstances strongly suggest a heart attack.

Jeremy was only 28-years-old. Coronary heart disease is rare in individuals younger than 40, but it’s not unheard of.  In the famous Framingham Study, acute myocardial infarction occurred in men 30 to 34 years old at a rate of 12.9 per 1,000. One of the few studies to look at risk factors for coronary heart disease in men under 40 found that the risk factors were roughly the same as for older men, i.e., “age, serum cholesterol level, systolic blood pressure, and cigarette smoking.”
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Years ago, a family friend hired a contractor to do some basic work around the house, and paid half the cost as a deposit. Mid-way through, it became clear the contractor was doing a terrible job and that everything would need to be redone, so they terminated the agreement and brought in someone else. The contractor sued my friend in small claims court, asking for the balance of the contract. I told the friend to counterclaim for the initial deposit, and to bring to the hearing evidence of the faulty work.

At the hearing, my friend showed a short video of what happened when they carefully put a ball on the crooked shelf the contractor installed: it swiftly rolled off. The judge turned to the contractor, who exclaimed, “they never said they wanted it to be level!”

I thought of that case while reading the Pennsylvania Supreme Court’s recent opinion in Brady v. Urbas, a medical malpractice case. In every malpractice case I’ve tried, the lawyer for the defendant doctor tries to make a big fuss about the “risks of the procedure” that were disclosed to the patient. The argument is irrelevant and prejudicial: obviously, the patient didn’t consent to the risk of negligent treatment; rather, the patient consented to the risks of the procedure if it was done properly.

But the defendants always raise it anyway, mostly to confuse the jury into thinking that the patient accepted this “risk” when they went in. It’s no different from a contractor claiming a homeowner didn’t ask for level shelves, but, sadly, courts routinely allow this stealth ‘assumption of risk’ argument to pervade malpractice trials.

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Yesterday, my wife called me on her way back from the Pennsylvania Supreme Court’s oral arguments to tell me about Green v. Pennsylvania Hospital et al., a medical malpractice case. She swiftly assigned me two tasks: first, I had to figure out who the appellate lawyer for the plaintiff was (because they had done an excellent job), and, second, I had to write about the case.

I had a hunch about the excellent lawyer, and the docket confirmed it was indeed Howard Bashman, proprietor of the impossibly productive How Appealing. I’ve admired Bashman’s appellate work before, including referencing his briefs in my post on Lance v. Wyeth back in 2011, in which his client subsequently prevailed, 85 A.3d 434 (Pa. 2014), making good law for every consumer of prescription drugs in Pennsylvania — which of course includes virtually every Pennsylvanian at one point or another.

Bashman posted yesterday, “The oral argument seemed to go very well.” I don’t think that’s a fair description; the first-hand account I received said his argument was “fabulous.”

Here’s the underlying Superior Court panel opinion and dissent and Bashman’s petition to the Pennsylvania Supreme Court, which lay out the two issues, one relating to “ostensible agency” (i.e., when a hospital can be held liable for a doctor that isn’t formally their employee) and one relating to whether an expert witness nurse can testify that a defendant nurse ‘caused’ the patient’s harm. Both revolve around interpretations of Pennsylvania’s MCARE statute (PDF copy here), specifically 40 Pa. State. Ann. §§ 1303.516 & 1303.512.

If I just re-wrote my thoughts about the legal issues, I’d be doing a disservice to Bashman’s clear and concise petition, with which I entirely agree and which I recommend to anyone with a passing interest in these subjects. But there’s still plenty of interesting issues to raise: the case is a reminder of just how frustrating, cruel, tragic, irrational and stupid the law can be if we don’t stop to think about the purpose of the laws we have in the first place.

We begin with a stupid tragedy. Joseph Fusco was admitted to Pennsylvania Hospital for shortness of breath, rapid breathing, and wheezing, sent to the Intensive Care Unit, and intubated. A week later, to try to wean him off the ventilator, Fusco was given a tracheostomy. A nurse later noticed the tracheostomy was “squirting” blood, so an emergency team was called, including an Ear, Nose and Throat physician. The ENT negligently tried to reinsert an endo-tracheal tube through the trach, rather than through his mouth; the tube ended up in his thorax, forcing pressurized air that collapsed his trachea. Fusco asphyxiated.



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The Philadelphia Inquirer recently picked up on a story that has been around the Philadelphia legal community for a while, i.e., the $1 million in sanctions entered against attorney Nancy Raynor in the Sutch v. Roxborough Memorial Hospital case.

Raynor was defending Roxborough Hospital in a medical malpractice case in which the hospital failed to inform a patient or her doctor that her chest x-ray had revealed a potentially cancerous nodule on her lung. Twenty months later, the patient was diagnosed with Stage IV lung cancer. She died six months later, and her relatives sued.

The decedent was a smoker. In advance of the trial, the court held that the defense could not admit evidence of her smoking into the trial. That’s not unusual: Pennsylvania law precludes doctors from trying to avoid responsibility for their malpractice by blaming the plaintiff for their own cancer. Patients go to doctors for treatment; it’s irrelevant when or how a plaintiff was injured. What matters is if the doctor did, or did not do, what they were supposed to do. Indeed, the Sutch case has been around so long that it already went through its appeal to the Pennsylvania Superior Court, which affirmed the trial court’s order excluding from the case any reference to smoking.

At trial, however, Raynor called to the stand one of her expert witnesses, Dr. John Kelly, and asked him, “Did [the patient] have any cardiac risk factors?” In response, the expert said: “The patient was a smoker. The patient was hypertensive. So, yes, I mean, those are big risk factors.” That was, obviously, in violation of the court’s order. The plaintiff’s lawyers at Klehr Harrison and Messa & Associates moved for a mistrial and for sanctions. The court, after hearing Raynor and Dr. Kelly’s side of the story, granted the sanctions, the bulk of which are attorney’s fees for the time the plaintiff’s lawyers had to spend on what ultimately ended up being a superfluous trial.

I won’t comment more on the sanctions, except to make two points. First, it wasn’t the first time Raynor was sanctioned in the case — she had previously been sanctioned by another judge for improperly contacting the employer of the plaintiff’s expert witness. Second, after the sanctions were entered, this is how Raynor responded to The Legal Intelligencer:

“I’m not only going to appeal the decision, I am going after everyone in this,” Raynor said, adding that she is calling for an investigation into [Judge] Panepinto and has met with lawyers to discuss lawsuits against Messa & Associates and Klehr Harrison. … “If they think for one nanosecond that I’m laying down and putting up with their bullshit, they’re crazy,” Raynor continued.

It is rarely helpful to “call for an investigation into” or to “go after” a judge who enters an adverse order.

But my interest in this case was piqued by a follow-up article in yesterday’s Inquirer, in which it was reported that the Pennsylvania Medical Society hopes to get involved in the case by filing an amicus brief. The hypocrisy of the Pennsylvania Medical Society is almost too much to take:
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If I told you that, every week, between 4,200 and 8,400 people were poisoned by contaminated food, would you say restaurants needed special protection from negligence lawsuits because fear of such lawsuits would force them to clean too much? “Defensive cleaning,” so to speak.

If I told you that, every week, between 4,200 and 8,400 people were killed in fires caused by bad electrical wiring, would you say electricians needed special protection from negligence lawsuits because fear of such lawsuits would force them to insulate too much? Call it, “defensive wiring.”

Of course you wouldn’t. Thankfully, I made those numbers up: combined, foodborne illnesses and home electrical fires kill about 3,500 people per year. That’s one-hundredth as many people as the 210,000 and 440,000 patients killed each year by medical malpractice. But the “defensive medicine” myth — the claim that, when doctors are worried about getting sued, they start running unnecessary tests and doing unnecessary procedures, thereby increasing the health care costs for everyone — just won’t go away as a justification for “tort reform.”

The whole notion of “defensive medicine” has always been silly: doctors are held responsible for malpractice when they don’t do something required by the standard in the field that would have helped the patient. Doctors can’t be held accountable for not doing something that wouldn’t have made a difference. The notion has also always been misleading, too: as the Congressional Budget Office said a decade ago, “some so-called defensive medicine may be motivated less by liability concerns than by the income it generates for physicians…,” a point repeatedly echoed by others even in the medical field like Atul Gawande.

Yet, a quick search of case law reveals the myth’s pervasive, ongoing effect on the legal system. There are the obnoxious defense “experts” deliberately making speeches in front of juries (Pin v. Kramer, 41 A. 3d 657, Conn. 2012), legislatures enacting special laws to hinder malpractice victims (Jackson v. HCA Health Services, 383 SW 3d 497, Tenn. 2012), and federal judges who should know better than accepting the myth at face value when deciding federal tort law (Gipson v. US, 631 F. 3d 448, 7th Cir. 2011).
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For lawyers who represent birth malpractice victims, few phrases conjure up as much ire and frustration as “the ACOG report,” the shorthand for a 2003 document put out by the American College of Obstetricians and Gynecologists (“ACOG”) called “Neonatal Encephalopathy and Cerebral Palsy: Defining the Pathogenesis.” Despite its title, the report made no effort to explain how a doctor could determine the cause of a particular child’s cerebral palsy, and it made no effort to explain how the incident of neonatal encephalopathy (i.e., newborn brain damage) could be reduced. (Bob Schuster has a little more on its origins, and MedScape has a summary of it.)

Rather, the sole purpose of the report was to prevent children with cerebral palsy caused by labor and delivery malpractice from obtaining compensation, which it accomplished by giving a cover to insurance company’s efforts to confuse judges and juries into believing that babies could survive hours without adequate oxygen and suffer no consequences. The report established core four “essential” criteria, and five “suggestive” criteria that, ACOG claimed, had to be met before a child’s cerebral palsy could be linked to hypoxia at birth.

Sure, in the “Task Force on Neonatal Encephalopathy and Cerebral Palsy,” ACOG dressed up their preordained conclusions in scientific and medical jargon and gave passing nods to basic principles of honest medical research, but the report was worthless from a medical standpoint. It wasn’t a real compilation of medical information, like a Cochrane Review or UpToDate, and it didn’t give any recommendations on how to diagnose or treat patients.

Instead, the report was used constantly in birth injury litigation by paid experts testifying on behalf of obstetricians and hospitals sued for ignoring the signs and symptoms of fetal distress and failing to treat fetal hypoxia. If you brought a hypoxia birth injury claim anywhere in the United States after 2003, you could be assured that the ACOG report would be front and center in the defense, with the veneer of “scientific” and “medical” proof.

ACOG wasn’t responsible for coming up with most of the “essential” and “suggestive” criteria, but instead cut-and-pasted them from the International Cerebral Palsy Task Force’s 1999 “template for defining a causal relation between acute intrapartum events and cerebral palsy,” available here. You can see a comparison of the ACOG and International guidelines on table 3 of this article.

The International Task Force’s criteria was suspiciously strict to begin with, like with their criteria for blood pH and Apgar scores. 
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