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

When I was in law school, I took Federal Courts, a notoriously difficult and complicated class, with Laura Little, who taught it with grace and style. (Law students, take note: she wrote a commercial outline with rave reviews.) Afterwards, I told her how much I liked the class, and asked her what I should take next (law students, again take note: great way to get recommendations for classes) and she pointed me to Michael Libonati, whom she said was “probably the smartest teacher on the faculty.”

With a recommendation like that, I dutifully took his State and Local Governments class, not realizing until I was in the class that it wasn’t merely an interest of his, but a subject on which he had written a four-volume treatise.

Anyone who studies State and Local Government law as a field comes quickly to a simple realization: there is even less “law” among states and municipalities than there is “international law” among nations. Every state conducts itself in an entirely different manner, and within states the law is changed to suit the circumstances. In Pennsylvania, for example, doesn’t have just cities or townships. As the Pennsylvania Legislator’s Municipal Deskbook says, Pennsylvania has one first class city, one second class city, one second class-A city, 53 third class cities, 961 boroughs, one incorporated town, 1,548 townships (91 first class; 1,457 second class), 501 school districts and 2,015 authorities, with different rules applicable to each of them.

That sort of diversity of legal relations isn’t necessarily a bad thing — Philadelphia, Pittsburgh, Harrisburg, Erie, Altoona, and rural communities with fewer than 5000 people are not merely different cities, but different types of cities, and so need to be governed differently — but it does make it exceedingly difficult to glean any sort of “legal principles” from the laws of states and local governments. Tailor-made law is more political policy than legal theory.

Before, during, and after law school I’ve always been a bit of a legal realist. At some point I was grousing to Prof. Libonati about a handful of state Supreme Court opinions about zoning law in which the wealthy real estate developers always on their challenges against the local boards but the individual homeowners always lost when I asked him, “is anything in the law real or are these opinions all just rationalizations?”

Burdens are real,” he replied briskly as if he had considered and answered similar questions before. “Burdens decide cases.”

Which brings me to the inspiration for this post. I hadn’t intended to write again so recently about emergency medicine malpractice, but last week Walter Olson sent WhiteCoat the opinion in King v. St. Barnabas, a first-responder negligence case in which a New York appellate court reversed the trial court’s entry of summary judgment in favor of the defendants. As the opinion recounted:

In this case, involving allegedly negligent resuscitation efforts by a team of first responders, we revisit the vexing question of the degree of certainty necessary to establish legal or proximate cause in a medical malpractice action.

By definition, victims requiring resuscitation are found in grave condition from which the likelihood of recovery may be negligible. These circumstances, however, cannot excuse first responders from all responsibility when they fail to abide by professional standards. Negligent resuscitation attempts — while not a but-for cause of the victim’s distress — may nonetheless contribute to a death so as to make the imposition of liability appropriate. …

In February 2009, defendants moved for summary judgment dismissing the complaint, arguing that the opinion of their medical expert established that the emergency medical treatment rendered to Murray was within accepted medical standards, and, in any event, had not contributed to his death.

[Defendants’ board-certified emergency physician expert] noted that when the first responders arrived on the scene, they found Murray to be in an asystolic state. He noted that “asystole is an ominous finding in victims of cardiac arrest in which the heart stops beating and is characterized by the absence of electrical and mechanical activity in the heart,” and opined that the possibility of survival from such a state “is extremely rare, especially in the absence of immediate bystander CPR.”

WhiteCoat wasn’t happy. Most everyone, WhiteCoat included (I think), agrees that it’s negligent to administer electrical defibrillation to an asystolic rhythm. Instead, it’s the standard of care to begin CPR, provide supplemental oxygen, and add intravenous lines to administer epinephrine and atropine. WhiteCoat attacks the causal connection between that error and the decedent’s death: the decedent was asystole, which is essentially dead anyway, and the odds of recovering from that — even with proper treatment — are miniscule. As WhiteCoat put it, the defendants were being sued for not performing a miracle.


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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),

It may sound strange coming from me, but I don’t like suing people, particularly not in personal injury or professional liability actions where the real target of the suit is not even the company that employed the negligent person, but really the employer’s insurance company.

But I often end up suing everyone I can, including

Of the over one million people injured or killed annually by preventable medical malpractice, only a fraction have their claims reviewed by the legal system. We can’t be sure how small that fraction is — since the health care industry spends millions of dollars every year convincing Congress to frustrate error-reporting — but we know

Some of the largest cases involve medical malpractice cerebral palsy. A recent medical malpractice case from the bought-yourself-an-appeal department:

Citing multiple trial errors, a New Jersey appeals court has reversed an $18.9 million verdict against an obstetrician whose delay in ordering a Caesarean delivery a jury found to have caused cerebral palsy in

I’ve posted many times before about the economic realities of medical malpractice liability. Via The Pop Tort, a new study commissioned by the the Society of Actuaries has revealed the economic cost of medical malpractice in America:

SCHAUMBURG, Ill., (Aug. 9, 2010)–Findings from a new study released today estimate that measurable medical errors cost the U.S. economy $19.5 billion in 2008. Commissioned by the Society of Actuaries (SOA) and completed by consultants with Milliman, Inc., the report used claims data to provide an actuarially sound measurement of costs for avoidable medical injuries. Of the approximately $80 billion in costs associated with medical injuries, around 25 percent were the result of avoidable medical errors.

"This report highlights a singular opportunity for both improving the overall quality of care and reducing healthcare costs in this country," says Jim Toole, FSA, CERA, MAAA and managing director of MBA Actuaries, Inc. "Of the $19.5 billion in total costs, approximately $17 billion was the result of providing inpatient, outpatient and prescription drug services to individuals who were affected by medical errors. While this cost is staggering, it also highlights the need to reduce errors and improve quality and efficiency in American healthcare."

Medical errors are a significant source of lost healthcare funds every year. For example, the study found that $1.1 billion was from lost productivity due to related short-term disability claims, and $1.4 billion was lost from increased death rates among individuals who experienced medical errors. According to a recent SOA survey, which identified ways to bend the national healthcare cost curve, 87 percent of actuaries believe that reducing medical errors is an effective way to control healthcare cost trends for the commercial population, and 88 percent believe this to be true for the Medicare population.

"We used a conservative methodology and still found 1.5 million measureable medical errors occurred in 2008," says Jonathan Shreve, FSA, MAAA, consulting actuary for Milliman and co-author of the report. "This number includes only the errors that we could identify through claims data, so the total economic impact of medical errors is in fact greater than what we have reported."

(Emphases added.)

Compare that nearly $20 billion cost — a conservative estimate limited to the ascertainable economic harm, excluding any pain, suffering, embarrassment, humiliation, or mental anguish, caused by avoidable medical errors — to the mere $4.694 billion paid out to medical malpractice plaintiffs in 2008 (see Exhibit D).

That is to say, payouts to malpractice victims amount to less than one-quarter of the economic damage caused by the malpractice itself.

If someone told you that oil companies only paid twenty-three cents for every dollar of damage they negligently caused through avoidable oil spills, what would you say?

If someone told you that car, airplane or boat companies only paid twenty-three cents for every dollar of damage they negligently caused through defective designs and manufacturing, what would you say?

If someone told you that fast food companies only paid twenty-three cents for every dollar of damage they negligently caused through avoidable food poisoning, what would you say?

If someone told you that consumer appliance companies only paid twenty-three cents for every dollar of damage they negligently caused through electric shorts that caused fires, what would you say?

Would you say there was a liability "crisis" caused by an "explosion" of "frivolous" litigation?

Or would you say those companies weren’t living up to their responsibilities?


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All the signs were there:

[Dr. Rolando G. Arafiles Jr. had] a pattern of improper prescribing and surgical procedures — including a failed skin graft that Dr. Arafiles performed in the emergency room, without surgical privileges. He also sutured a rubber tip to a patient’s crushed finger for protection, an unconventional remedy that was