Published By: Maxwell S. Kennerly, Esquire

Medical Malpractice

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In most medical malpractice cases, the default defense is: “medicine is so complex and mysterious that there is no standard by which the doctor can be judged, and thus they cannot be liable.” The lawyers for the doctor or hospital (and their experts) rarely say it outright — because they are worried that jurors and judges will see right through it as a claim that doctors can never be held accountable for anything — but this defense is embedded deeply in most of the arguments they make for the jury. It doesn’t matter if the doctor made an obvious mistake, or if the doctor violated multiple standard guidelines.

Consider this closing argument made by a doctor’s lawyer in the case of Passarello v. Grumbine:

Now every physician must use clinical judgment. You don’t practice medicine by textbook. There’s no guideline that you can go to. You don’t have something on your blackberry well there’s this symptom and this symptom so we’re gonna do this. They have to make decisions. A physician cannot warrant care and they cannot guarantee outcomes because of the uniqueness of treating human beings. To require otherwise, to require physicians to be perfect, is an impossible burden and we—the law recognizes that we will not do that. When you look at [the doctor’s] judgments, were they careless, were they unskilled? When you come to the key issue, the August 2 phone call, she had to use her judgment, and if her judgment was reasonable, then she was not careless and she was not unskilled.

Part of that argument is correct: physicians can’t “guarantee outcomes.” But part of it is terribly misleading: in a medical negligence trial, the question isn’t whether physicians are “perfect,” or “careless,” or “unskilled,” or whether they “use[d] her judgment,” or whether “her judgment was reasonable.” The question is if the physician failed to follow the standard of care demanded of them.

As the Pennsylvania Superior Court concluded, “What counsel’s argument skillfully suggests is that regardless of the objective standard of care, [the doctor], in an exercise of continued self-sacrifice, acted with the best of intentions and made judgments for which she could not be faulted, in part because they were judgments and a physician cannot warrant care.” The defendants’ argument, in turn, played into a jury instruction the judge was giving, which included this language: “Under the law physicians are permitted a broad range of judgment in their professional duties and physicians are not liable for errors of judgment unless it’s proven that an error of judgment was the result of negligence.”
Continue Reading A Doctor’s “Mistake” or “Error in Judgment” Can Still Be Malpractice

I like Consumer Reports, and, though I wish they would take a more active stance in supporting consumers’ legal rights, I think they’ve done a fine service for American consumers over the past 70-odd years with their independent reviews.

However, I think their hospital ratings system is doing more harm than good. I opened up the latest issue, with ratings for most states — including Pennsylvania and New Jersey — and was surprised to see a variety of small ambulatory surgery centers and smaller hospitals in exurbs and rural areas trouncing the world-renown teaching and research hospitals in Philadelphia.

I don’t think prestige makes anyone or any entity above criticism. Moreover, as a malpractice lawyer, I’m usually the first one to ring the alarm bells about the horrifying problems endemic to the medical profession, and I certainly don’t just take a doctor’s or a hospital’s word for the quality of their care. But when you review and litigate as many cases as we do, you get to know the medical community quite well, and something just plain didn’t sound right about the rankings, which seemed to be reversed. Few malpractice lawyers around here would agree that patients should choose some of the highest ranked hospitals on the list (many of which are simply surgical centers with 30 or fewer beds) over some of Consumer Reports’ lower ranked hospitals, like Pennsylvania Hospital and Jefferson Hospital, which received the lowest possible rating (a solid black blob), or Einstein and Hahnemann, which received the second lowest possible rating (a half-black blob).

I wasn’t the only one surprised; up in Boston, Massachusetts, for example, Carney Hospital had the highest rating, while Brigham and Women’s and Mass General — both world-renown — had the lowest. WBUR looked into the disparity for surgical ratings, and talked with Mass General’s Vice President for Quality and Safety. They pointed out a variety of problems with the ratings, including how the ratings don’t take into account a variety of important factors, including:

  • how sick the patient was when he or she came in for surgery or the severity of their disease
  • how many other conditions the patient may have
  • how many complications actually occurred

Indeed, reviewing the 44-page outline of how Consumer Reports rates hospitals reveals, first, that they’re not that different from the Hospital Safety Score, and, second, that their analysis is subject to numerous limitations. In assessing post-surgical complications, for example, the bulk of the score comes from the presence of Accidental Puncture or Laceration (30%), Pressure Ulcers (24%), Postoperative Pulmonary Embolism or Deep Vein Thrombosis (24%), and Central Venous Catheter related bloodstream infection (13%).

It’s not crazy to attempt to measure hospitals this way. All of these are part of the Agency for Healthcare Research and Quality’s National Quality Measures Clearinghouse. But two problems leap out at me. 
Continue Reading Consumer Reports And The Wrong Way To Choose A Hospital

I’ve written extensively about medical malpractice myths, including posts about defensive medicine, the realities of malpractice litigation (in which it’s more likely that a negligent doctor will evade responsibility than it is that an undeserving patient will be compensated), and the tricks played to deny injured patients their legal rights, like concealing evidence and intimidating expert witnesses. Just last month I wrote about the hard data on malpractice lawsuits in Pennsylvania.

Why so much focus on malpractice law? Because it seems to be the area of plaintiffs’ litigation most heavily shrouded with myths and misunderstandings. Just last month, one of the New York Times’ bloggers, herself a medical doctor, began a column on the “disturbing” trend of doctors breaking the white coat code of silence by criticizing one another. She gave this example: a physician friend had been recently named in a lawsuit in which, they claim, “there were no discernible errors in the care she provided,” solely because a subsequent physician criticized the first physician, saying they were “shocked” by the care provided and that the patient “could have died.”

I could go on at length about how absurd that factual scenario was — a patient can’t file, much less win, a malpractice lawsuit with “no discernible error;” rather, the patient’s lawyer needs to prove malpractice by way of expert physician testimony — but there’s no need to do that. Just re-read that last paragraph: if the doctor-blogger and her friend really wanted to find the “discernible error,” they could have merely asked the second doctor why he or she was “shocked.”

Such is the low level of debate in the malpractice liability arena. A columnist or a doctor says something dumb, like asserting there’s “no discernible errors in the care” that the next doctor finds “shocking,” and patient advocates and plaintiff’s lawyers scramble to explain how the nitty-gritty of certificates of merits, damage caps, jury instructions, and the like make it impossible for cases to prevail unless they are “slam-dunk” cases with only the very worst outcomes for the patients.

Three stories from last week highlight many of the same issues I keep coming back to on this blog:
Continue Reading Medical Malpractice Accountability Plummets, While Malpractice Epidemic Continues Unabated

For years, I’ve written about the prevailing myths about medical malpractice law, from the falsehoods about defensive medicine to the extraordinary economic damage caused by malpractice itself. Contrary to what the insurance companies and hospital lobbying groups keep saying, “defensive medicine” is simply a myth (if a given test didn’t make a patient substantially safer, doctors wouldn’t gain anything by doing it). The damage caused by malpractice — even when measured in purely economic terms, ignoring the non-economic harms and losses — dwarfs the cost of the malpractice legal system, including all the lawyers and all the settlements and verdicts.

Recently, the new statistics for medical malpractice filings and jury trials in 2012 were released, and those numbers revealed a couple of important points.

First, the odds at trial are heavily stacked against patients. In 2012, 133 malpractice cases went to a jury trial, and 79.7 percent of them resulted in defense verdicts. I suppose there could be valid reasons why 4 out of every 5 jury verdicts go in favor of the doctor or hospital — maybe the strongest cases are all being settled before trial, leaving only the weakest cases behind — but it’s hard to say that with a straight face when those figures mean that malpractice defendants have better odds winning in a courtroom than the odds a casino has winning its own games.

It’s hard to deny that plaintiffs are losing trials left and right thanks to years of relentless tort reform propaganda designed to mislead jurors about the nature of malpractice and its effects. It sure seems like some counties have particular problems; consider this paragraph from a recent Legal Intelligencer article:
Continue Reading The Reality of Pennsylvania Medical Malpractice

Imagine you are a medical malpractice attorney. Your client, in the hospital for surgery or childbirth or some other invasive procedure, developed an nasty infection, resulting in permanent injuries or death. You order their medical records and their billing records, and you notice that their insurer (it can be a private insurer or Medicare) refused to even pay for treatment of the infection as a “never event.”  You settle on two negligence theories to investigate: whether the hospital-acquired infection was preventable and whether the infection was properly treated.

(Let’s make this hypothetical easy and assume the infection is one of the more common pathways, like central line / bloodstream, pneumonia, or urinary tract infection, and one of the more easily recognizable nosocomial pathogens, like MRSA, Clostridium difficile, or Pseudomonas aeruginosa.)

Now what? Either because you’re a cautious attorney, or because you’re in a state with a certificate of merit requirement, the first thing you do before filing a lawsuit is retain a qualified expert physician, and maybe a nurse as well, to review the case. The nurse gets back to you first, and says the documentation suggests inadequate wound care prior to the diagnosis of the infection, and several undocumented hours when the patient’s vitals weren’t checked. (They refrain from giving you much more by way of an opinion, because that would involve a “medical diagnosis,” which is, by law, outside their expertise.

The physician gets back to you and says they’ve seen this same patient course before, and they’re “sure” it was preventable, and that the hospital failed to diagnose it and properly treat it for about 6 hours. “They never should have had the infection in the first place,” the doctor says, “but the delay in treatment probably didn’t change their overall course too much once the infection took root.” Then, the doctor adds, “I don’t doubt the infection was preventable, but I can’t tie that specific infection to the hospital’s negligence for certain.”

The words “for certain” worry you, because at trial you need to prove both that the hospital was negligent in their infection-prevention measures and that the negligence caused the infection, and most states you know of require a plaintiff prove medical malpractice with expert testimony given “to a reasonable degree of medical certainty,” a dubious and ambiguous phrase, but one that’s the law. Do you have enough to win your case?Continue Reading Proving Negligent Hospital-Acquired Infection Through Bacterial Genes

In contrast to the demanding world of blogging, where every typo results in an avalanche of criticism, the beauty of speaking on network television in quaint soundbites and writing 750 word op-ed columns in national newspapers is that you rarely have to explain yourself. You will rarely, if ever, be put in the position where you are expected to fully explain your argument, and, hiding behind the presumed credibility of established newspapers and networks, it isn’t likely that you’ll face a thoughtful critique of your argument. Just say something and, ipse dixit, it’s true. (There are, of course, rare exceptions, like when you make up Bob Dylan quotes, forgetting the legions of obsessed Dylanites out there.)

What else explains how Sanjay Gupta of CNN fame thought he could stick this whopper into his New York Times op-ed piece:

Certainly many procedures, tests and prescriptions are based on legitimate need. But many are not. In a recent anonymous survey, orthopedic surgeons said 24 percent of the tests they ordered were medically unnecessary. This kind of treatment is a form of defensive medicine, meant less to protect the patient than to protect the doctor or hospital against potential lawsuits.

Herein lies a stunning irony. Defensive medicine is rooted in the goal of avoiding mistakes. But each additional procedure or test, no matter how cautiously performed, injects a fresh possibility of error. CT and M.R.I. scans can lead to false positives and unnecessary operations, which carry the risk of complications like infections and bleeding. The more medications patients are prescribed, the more likely they are to accidentally overdose or suffer an allergic reaction. Even routine operations like gallbladder removals require anesthesia, which can increase the risk of heart attack and stroke.

Isn’t it amazing how Dr. Gupta just knows that every last medically unnecessary treatment is a “form of defensive medicine?” There’s a word for Dr. Gupta’s argument. To find that word, let me quote Dr. Atul Gawande in The New Yorker three years ago, himself quoting a discussion among surgeons about defensive medicine: 
Continue Reading Atul Gawande Versus Sanjay Gupta On Defensive Medicine

[UPDATE, July 18, 2012: Abington and Holy Redeemer have called it off.]

Two weeks ago, out of the blue, two of the major health systems in Montgomery County, Pennsylvania (where I live) announced they had signed a letter of intent to merge (they call it a joint venture, but they’re merging their executive officers and their boards). They even had a long but light on details press release to mark the occasion:

Abington Health and Holy Redeemer Health System today are announcing their intention to create a new regional health system. The announcement is being made after the boards of both organizations, led by Robert M. Infarinato, chair of Abington Health, and William R. Sasso, chair of Holy Redeemer Health System, authorized the signing of a letter of intent at their respective meetings of the boards of trustees.

“We are very excited to pursue our shared vision to come together in a new healthcare organization to better serve the community,” said Infarinato. “Under healthcare reform, many quality improvements depend on enhanced coordination of care, which in turn relies upon closer alignment between health systems, physicians and other providers. We believe this partnership will facilitate the collaboration that will help both organizations move toward shared goals.”

The merger was dubious to begin with, at least from Abington’s standpoint, considering that Abington Memorial Hospital generates twice the revenue of Holy Redeemer Hospital and is well-managed and profitable, while Holy Redeemer Hospital is financially struggling. And then the other shoe dropped:

Said [William R. Sasso, chair of Holy Redeemer Health System], “… By aligning these two reputable health systems, we will form a new parent company that will provide oversight and direction to enable both organizations to fulfill their mission and goals while respecting each other’s values and preserving Abington’s long-standing heritage and Holy Redeemer’s Catholic identity.”

It turned out that “respecting each other’s values” meant ‘Abington’s physicians will have to follow Catholic Church directives on healthcare,’ so that “the Catholic medical facility appears to triumph in dictating reproductive health care policy to secular Abington, eliminating abortion services, while securing chairmanship of the board.”

There’s no need for me to wade into the politics of abortion, because the reality of interference in patient care — and the risk of medical malpractice liability to Abington — is staring us in the face:Continue Reading Abington Hospital Commits To Less Care, More Malpractice

Over the Governor’s veto, the New Hampshire legislature passed an “early offers” law for medical malpractice claims. Tort reformer Walter Olson rounds up some commentary, most notably Torts Professor Christopher J. Robinette’s support, but intentionally excluding (dismissing it as “error-filled screed in a Litigation Lobby outlet”) The Pop Tort’s critical piece. In short, the new law sets up a process under which patients can request an “early offer” of a settlement prior to full-blown litigation that is supposed to cover their “economic loss” and then provide a modest sum for pain and suffering.

That sounds like a reasonable idea in theory, but, if the patient turns down the “early offer,” the plaintiff faces a number of penalties, including the requirement that, if they don’t obtain a verdict for 125% or more of the early offer, then they pay the doctor’s or hospital’s full defense costs. Indeed, the patient has to post a bond for the potential value of those defense costs before filing the case. In essence, if a plaintiff asks for the “early offer” but doesn’t accept it, they are then precluded from filing suit, because a lawsuit would simply be too expensive and too risky.

Here’s the critical information you need to know: Olson, Robinette, and other supporters like Dr. Kevin Pho have misunderstood the bill. Here is how they each describe it:

  • Olson: “The law establishes incentives for defendants to make offers early in the litigation process that cover plaintiff’s economic losses such as medical bills and lost wages.”
  • Robinette: “If extended, the offer must cover all economic loss—medical bills and lost wages. … [F]or the most severely injured patients, the recovery of full economic loss, which is mandatory under early offers, would be an improvement.”
  • Pho: “Medical costs and lost wages would be covered.”

These interpretations are all wrong. An “early offer” under the bill would not cover “plaintiff’s economic losses,” it would only cover a small portion of them. It certainly does not cover the patient’s “full economic loss,” it covers a tiny fraction of it.  It does cover “lost wages,” but not as any rational person would understand them — it only covers lost wages in the past, and not lost wages going forward due to the patient’s inability to work. 
Continue Reading New Hampshire’s Insidious Early Offer Medical Malpractice Law

Two weeks ago I wrote about a defense lawyer in a malpractice case being sanctioned for trying to intimidate the plaintiff’s expert witness. I’ve come across two recent Pennsylvania trial court opinions involving doctors and hospitals themselves being sanctioned for improper conduct.

First up is Borrero v. Lake Erie Women’s Center, et al., a shoulder dystocia birth injury case. (For some general background, see my Erb’s Palsy page.) Opinion is here. In discovery, the plaintiffs served Lake Erie Women’s Center and Hamot Medical Center standard interrogatories seeking “written policies in place in 2000 that pertain to or relate to … shoulder dystocia” and were told no such policies existed. At deposition, Hamot’s corporate designee confirmed there were no such policies, and that the only guide they used was Varney’s Midwifery. The case was tried twice, resulting in two mistrials, one for some problem mid-trial and the other for a deadlocked jury. I’m assuming it then sat for some time awaiting a new trial.

The same plaintiff’s lawyer, Patrick Loughren, then became involved in a separate shoulder dystocia case against Lake Erie Women’s Center and Hamot Medical Center while the case was already in suit. He learned that, in that case, the defendants had produced 56 pages of policies and procedures, including a specific protocol for shoulder dystocia.

“Oops” would be an understatement. “Pants on fire” would be more appropriate.Continue Reading Civil Sanctions Against Pennsylvania Doctors And Hospitals

It’s no secret that patients and their lawyers have a lot of difficulty finding physicians to serve as expert witnesses in medical malpractice cases. A large fraction of doctors refuse to ever testify in a patient’s favor, regardless of how negligent, reckless, or reprehensible the care provided by the defendant-doctor was. Among the doctors who do testify on behalf of patients, most will only testify against doctors in other jurisdictions, adding difficulties in communication and scheduling as well as travel costs. It also makes it harder for plaintiff’s lawyers to find qualified, credible experts, because we don’t know them by reputation the same way we know local doctors. Just this week MedScape had a column bragging about how “tort reform” expert witness laws make malpractice cases harder and more expensive, and thus thwart many patients with valid claims from even having their day in court, much less recovering compensation.

For defense lawyers, the process of finding an expert is quite easy: they call up their insurer or their local hospital and are immediately provided with a willing local expert. The code of silence around the medical profession is alive and well.

There are, however, some notable — and laudable — exceptions, and in Philadelphia one of those exceptions was on the receiving end of some particularly appalling conduct by a defense lawyer for doing nothing more than preparing to tell the truth in a courtroom: 
Continue Reading Defense Lawyer Sanctioned For Expert Witness Intimidation In Medical Malpractice Case