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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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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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.


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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
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The Philadelphia Inquirer today profiles an issue of disturbing importance to doctors and malpractice insurance companies: the legal right to lie to patients with impunity.

Of course, they don’t describe it that way, they describe it like this:

Many doctors feel that an apology – accepting responsibility for errors, telling what went wrong – is a dramatic advance and the right thing to do since doctors have long been loath to admit mistakes.

But they say the trend will continue only if doctors know they can speak openly, without fear of being bludgeoned in a lawsuit.

“Isn’t that a little like testifying against yourself?” asked Jim Redmond, head of legislative affairs for the Hospital Association of Pennsylvania.

Let’s get one thing straight, Jim. I’m assuming you’re referring to the right against self-incrimination by mentioning “testifying against yourself.” That right protects criminal defendants from being punished for refusing to confess to their crimes. Outside of that narrow circumstance, people ‘testify against themselves’ all the time.

If you run a red light, hit someone, then jump out of your car and exclaim, “I’m so sorry, I didn’t see the light change, are you okay?” that can be used against you in court. If you slip and fall on an olive oil spill at the grocery store and the manager comes out and says, “We’re so sorry, somebody should have cleaned that up,” that can be used against them in court.

It’s pretty simple: with a few exceptions relating to constitutional rights, what people say outside of court matters inside court. Why? Because what people say matters in real life outside the courthouse. It matters that you admitted not seeing the light and the store manager admitted someone should be cleaning up the floor — do we want our courts to be nothing more than a collection of legal fictions with no relationship to the real world? Why should we pretend that someone didn’t say something they did?

It’s important that we all understand exactly what doctors, hospitals, and more importantly their insurance companies are demanding: they want a special exemption from a basic principle of law and evidence that’s applicable to everyone.

But there’s another, more insidious, issue underlying the “medical apology” lobbying. To see it, let’s dive into the facts of the case described by the Inquirer:

Destinee Lotoya Blake arrived in this world by cesarean section after doctors determined the umbilical cord was wrapped around her neck. At 29 weeks, she was small, weighing just 1 pound, 9 ounces. …

The newborn needed to be fed intravenously. Her doctor threaded a catheter no thicker than a human hair through her veins, intending it to stop where her biggest vein reached the heart. The nutritional fluid was so concentrated that it needed the largest possible vein and maximum amount of blood to dissolve safely into the bloodstream.

Her heart was the size of an adult thumb, and the catheter went a few millimeters too far, entering the heart. In the vein, the blood flow keeps the catheter away from the vessel wall. But inside the heart, blood doesn’t move as rapidly, and her catheter rested against a heart wall.

The fluid actually seeped through the wall, into the sac surrounding her heart. That sac began to fill with fluid – a teaspoonful, but enough to stop the heart.

A chest X-ray is always taken to confirm proper placement. But in Destinee’s case, the X-ray wasn’t read in time.

When processing the X-ray, the technician clicked on the wrong baby’s name, realized it, but when she clicked again on the correct name, a drop-down screen that normally auto-populates with data had to be filled in manually, which the technician wasn’t accustomed to doing.

She confused the birth date with the film date, since they were close together. As a result the X-ray wasn’t seen in a timely manner or in context.

That is blatant, unambiguous malpractice. When my twins were in the NICU, they, too, received intravenous feeding (“Total Parenteral Nutrition”), and indeed the technicians took dozens of x-rays every time the catheter was placed anywhere near the heart. It’s one of the more dangerous moments for the baby; everyone from the technicians to the nurses to the doctors knows that, and they’re supposed to be on guard.

An aside: in the comments to the Inquirer story, a number of readers make arguments like “At 29 weeks and 1.5 pounds, this baby should have never lived as long as it did. Hard to say but it’s true.” Rubbish. Destinee was small for gestational age, and she had a nuchal cord, but the odds were still in her favor. My twins were 26 weeks. One was 1.625 pounds and had a nuchal cord. Years later, they’re both alive and doing well. NIH has a tool for predicting outcomes in extremely premature children, and it tops out at 25 weeks because the odds of survival rise so rapidly after that.

In addition to the malpractice claim, there’s likely a ‘corporate negligence‘ claim against the hospital (see Thompson v. Nason Hosp., 591 A. 2d 703 (Pa. 1991)), too, for having inadequate procedures to confirm the x-ray was timely reviewed. Abington Memorial Hospital should have had adequate policies, procedures, and electronic health records systems to ensure that, even if the technician did make that type of mistake, the problem would be caught in time. Healthcare researchers often describe medical errors in terms of “the Swiss Cheese Model:”

The ideal system is analogous to a stack of slices of Swiss cheese. Consider the holes to be opportunities for a process to fail, and each of the slices as “defensive layers” in the process. An error may allow a problem to pass through a hole in one layer, but in the next layer the holes are in different places, and the problem should be caught.

In many ways, Destinee’s death was due more to the lack of enough “layers of cheese” than to the technician’s mistake. Humans are mortal. They make mistakes, have errors in judgment, and mix up dates and numbers. At a hospital is supposed to ensure that these mistakes don’t lead to tragic outcomes by implementing many “layers of cheese,” which Abington apparently failed to do here.

I write all of that so everyone reading knows that this case doesn’t involve much debate about the standard to which doctors are held. It was malpractice, pure and simple. 
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As recently as twenty years ago, large parts of the medical establishment believed that neonatal Group B Streptococcus was rare disease that couldn’t be prevented or treated. Unsurprisingly, the failure to treat Group B Strep remains one of the leading causes of malpractice in labor and delivery.

Group B Strep was, and remains, the leading cause of meningitis and sepsis in newborns, but the American College of Obstetricians and Gynecologists (ACOG) and the American Academy of Pediatrics (AAP) didn’t even have any documents, much less guidelines, on Group B Strep prevention until 1991. In 1993, the Centers for Disease Control (CDC) found that Group B Strep screening was cost-effective. In 1996, the CDC, ACOG, and AAP finally published their first consensus statement on Group B Strep prevention, leading to formal guidelines in 1997. The GBSA has a timeline of its efforts explaining the considerable effort it took to get us where we are today.

As late as 1998, an editorial in American Family Physician still had to convince obstetricians and pediatricians that GBS was a real problem, and explain to them how to prevent it:

First and foremost, we must not ignore the problem. Neonatal group B streptococcal infection is more prevalent than many of the other conditions we screen for in pregnancy, and the effects can be just as devastating. Based on the importance of group B streptococcal infection, there are two possible principles governing our obligation to inform and to care for patients: One is to adhere to the community standard and the other is to provide care that any reasonable patient would want.

Both of these principles can be addressed by two linked steps. First, each practice or care system can develop and document a standard (or reasonable choice of standards) that is supported by current literature or by authoritative clinical guidelines. The CDC consensus recommendations provide some latitude for this, as noted in this editorial and in the article by Keenan. Second, inform patients, document that the information has been provided and provide the opportunity for questions, additional information and choices, when choices are appropriate.

That was just five years before Christian Arroyo was born. As the Seventh Circuit recounted in the Arroyo v. United States opinion last Thursday:

On May 16, 2003, Solorzano Arroyo went into labor. She went to Northwestern Memorial Hospital and gave birth to her son, Christian Arroyo in the early morning hours of May 17, 2003. Because Christian’s birth was more than a month premature, Solorzano Arroyo had not undergone the battery of diagnostic tests, including a test for Group B Streptococcus (GBS), that women typically undergo in the month prior to delivery. These diagnostic tests are extremely important, as they indicate whether an infant will be at risk of contracting any diseases from his or her mother’s blood during birth and allow health care practitioners to take steps to reduce the risks that such incidents will harm the infant.

When a mother has not had these diagnostic tests, medical professionals protect infants by utilizing a two-pronged approach. First, at the delivery stage, doctors are required to observe the presence or absence of four risk factors. Second, after the baby is born, doctors are required to be vigilant in looking for signs indicating the presence or absence of neonatal sepsis (a bacterial infection of the baby’s bloodstream). If a medical professional finds any indications of infection, then she must immediately administer antibiotics to prevent the spread of infection. Because GBS is fairly benign in adult s, mothers can carry it asymptomatically during pregnancy. Newborns can contract the disease during birth and, unless it is treated immediately, it can cause severe and permanent brain injuries.

Shortly after birth, Christian exhibited several symptoms indicating that exposure to his mother’s blood had infected him with GBS. However, the obstetrician and pediatrician responsible for taking care of Solorzano Arroyo failed to detect the infection and treat Christian with antibiotics. Because of this failure, Christian suffered severe and permanent brain injuries. If the doctors had promptly treated Christian, it is likely that the damage done to Christian’s brain would have been significantly reduced.

(Names of physicians omitted.) Christian developed cerebral palsy and is a spastic quadriplegic, requiring substantial additional medical care.

It wasn’t negligent for the physicians not to test for GBS that early in her pregnancy. Nonetheless, because she wasn’t tested before going into labor, the standard of care demands the physicians presume she has GBS and that the baby has been infected until symptoms show otherwise, and to treat at any sign of infection. The failure to do so was classic medical malpractice; said his lawyer, “At one point or another, he pretty much had almost every sign of the infection; at one point, the baby was not even able to see, which was a really bad sign.” Still, he wasn’t treated. Cutting edge to do so ten years ago, malpractice not to do so today. That’s how the standard of care in medicine advances.

Medical causation was similarly indisputable. As the CDC states, “A pregnant woman who tests positive for group B strep and gets antibiotics during labor has only a 1 in 4,000 chance of delivering a baby with group B strep disease, compared to a 1 in 200 chance if she does not get antibiotics during labor.” And that’s just for the antibiotics during labor; antibiotics immediately after birth lower the odds even further.

Recall how, just five years earlier even many doctors didn’t understand the dangers of Group B strep, how to prevent it, or how to treat it. Solorzano Arroyo didn’t know it could be prevented, either, and none of her treating physicians bothered to tell her that. (Any guesses why not?) It wasn’t until she saw a personal injury lawyer’s television ad mentioning that Group B Strep infections that she suspected the possibility of malpractice. She hired a lawyer and sued.

Because the obstetrician and pediatrician worked at a federally-funded clinic, they were immune under the Federal Tort Claims Act, and the United States government was substituted as a defendant. At a bench trial, a federal judge found the United States liable for $29 million in medical care, economic damages, and pain and suffering.

The United States didn’t challenge the finding of medical negligence, nor the size of the damages — it is very difficult to get a federal appellate court to overturn the purely factual findings of a federal district court — but instead claimed that the lawsuit was filed outside the statute of limitations.

There are good policy reasons for having a statute of limitations that bars claims at some point down the road, but none of those policy reasons applied here: the malpractice occurred in May of 2003 and the lawsuit was filed in December of 2005. All witnesses were still living and of sound mind. The medical records were all available.

Most states recognize the particular circumstances of malpractice injuries to children, and so extend the statute of limitations at least a few years, sometimes until the injured child reaches adulthood. Illinois extends the statute of limitations for children to eight years, or until the child turns 22. That extended statute would have applied if this was a normal medical malpractice lawsuit, but, as noted above, this case was against federal employees, so the stricter Federal Tort Claims Act rule applied, and thus the case was governed by the state’s statute of limitations for general personal injuries, despite the child-specific statute. (Strange, I know; the Federal Tort Claims Act is a strange beast, a handful of sentences that opened up a can of worms inside Pandora’s Box.)

The question, then, was when did the statute of limitations begin to run? Under the Federal Tort Claims Act, a claim accrues when the plaintiff discovers or  a reasonable person in the plaintiff’s position would have discovered, that he has been injured by an act or omission attributable to the government. W

e know that Solorzano Arroyo didn’t “discover” the negligence until, at the earliest, she saw the personal injury ad on television, but the question is when “a reasonable person” in her position would have “discovered” the negligence.

The government argued that, “from an objective standpoint, reasonably diligent persons are aware that infections can be prevented, particularly in hospital settings.” Did the Department of Justice take the time to review the history of GBS prevention and the scope of GBS educational efforts? Did they stop and consider that, if just five years earlier an editorial in a major medical journal was imploring doctors “not ignore the problem,” then maybe, just maybe, your average American might not know that the standard of care demanded Group B Strep be closely considered in all pre-delivery testing and, if found, treated with antibiotics?

Or did they just throw out whatever arguments they could, regardless of merit or justice?

Enter Judge Richard Posner.
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The New England Journal of Medicine released a new study in today’s issue, Malpractice Risk According to Physician Specialty, which concluded:

There are few recent estimates on the likelihood of malpractice claims and the size of payments according to physician specialty. Using physician-level malpractice claims from a nationwide liability insurer, we found substantial variability

Last month the American Journal of Medicine published a new study (“Longer Lengths of Stay and Higher Risk of Mortality among Inpatients of Physicians with More Years in Practice”) with the unexpected conclusion that hospitalized patients were more likely to die or stay long in the care of an experienced physician than in the care of a recent graduate from residency:

According to findings in the American Journal of Medicine, patients whose doctors had practiced for at least 20 years stayed longer in the hospital and were more likely to die compared to those whose doctors got their medical license in the past five years. …

Over the course of the study, there were 59 different attending physicians. The researchers divided them up based on how long they were practicing: five years or less, six to 10 years, 11 to 20 years, or more than 20 years. …

At first glance, compared to patients with the newest doctors, those with the most experienced physicians had more than a 70 percent increase in their odds of dying in the hospital and a 50 percent increase in their odds of dying within 30 days.

However, when the researchers took into account how sick the patients were, they found that only the sicker patients — those with complicated medical problems — were at higher risk in the hands of the more experienced doctors.

Southern’s group also found that while the doctor’s experience played a role in how long patients stayed in the hospital, it also mattered how many hospitalized patients he or she was taking care of.

When doctors weren’t very busy, they kept patients in the hospital for roughly the same average time no matter how many years of experience they had. But when they did have a lot of patients to see in the hospital, those with more than 20 years of experience kept patients there about half a day longer than their peers who’d been practicing for less than five years.

Description from Reuters. The authors suggested that the younger doctor’s “familiarity with more current guidelines and practices” explained the difference, and suggested requiring periodic re-certifications. Scepticemia notes some possible confounding variables and sample size issues, but on the whole the study’s conclusions look robust.

We have a fair amount of experience investigating medical mistakes around here, including malpractice by hospital residents, so let me offer another possibility.

There is a misunderstanding about medical malpractice law which goes like this: if a doctor is faced with multiple potential diagnoses and treatments and the doctor chooses the wrong one, the doctor will be liable for medical malpractice.

Such myth is not and has never been the law.
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It’s conventional wisdom among trial lawyers and insurance lawyers that few plaintiffs are as sympathetic as a brain-damaged baby. The baby plainly did nothing to contribute to their harm, but has nonetheless been deprived of many of the basic joys of their infancy, childhood, adolescence, and adulthood. It’s thus presumed that, if a jury finds

Today’s Legal Intelligencer tells us what we already know: in Pennsylvania and New Jersey, patients’ right to compensation for injuries caused by medical malpractice is dying. Not a quick death, mind you, like the death of patients’ rights in Texas (a punishment insurance companies and medical associations are trying to inflict upon New York),