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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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?


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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 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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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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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

A tragic story:

SIOUX CITY — A Sioux City bank has filed a personal-injury lawsuit on behalf of a Sioux City girl against the maker of a powdered infant formula, claiming the girl got seriously ill from drinking the reconstituted formula days after she was born in 2008.

According to court documents, Security National Bank alleges the girl, Jeanine Kunkel, now nearly 3 years old, contracted neonatal Enterobacter sakazakii meningitis from the Similac formula made by Abbott Laboratories and suffered permanent brain damage. The bank, as the child’s conservator, seeks monetary damages for her care, suffering and fear of future disease.

Her parents say Jeanine changed drastically soon after drinking the powdered formula, which came in a complimentary gift bag when she was discharged from St. Luke’s Regional Medical Center.

In many ways, it seems like an open and shut case. The child was promptly diagnosed with E. sakazakii meningitis. The Centers for Disease Control and Prevention has found E. sakazakii infections through tainted powered infant formula before (as have the Food and Drug Administration and World Health Organization) and apparently doesn’t know of any other way in which infants become infected.

Moreover, her twin wasn’t infected, despite virtually identical conditions except for the formula. He’s fine. She “doesn’t walk, crawl or roll over. She eats through a tube inserted into her stomach, her father said, because her brain isn’t able to command her throat to swallow. A shunt keeps harmful fluid from building up in her brain.” Twins don’t mirror each other’s health care course, but his good health does help rule out, to some extent, the possibility of other causes.

But there’s a hitch in the case:

Surber and Troy Kunkel, Jeanine’s father, admit tests conducted on the can of powdered Similac didn’t show evidence of Enterobacter sakazakii bacteria, but Sioux City attorney Tim Bottaro said they’re confident that’s where the harmful bacteria came from.

FDA labs tested for but did not find the bacterium in the family’s kitchen, the lawsuit says.

The tort of negligence (which underlies most product liability cases) has four elements, duty, breach, causation, and damages. To recover, a plaintiff must prove them all beyond a preponderance of doubt. Even in strict liability (which underlies the rest of tainted product claims) the plaintiff must demonstrate that the defective product in question caused the harm alleged.

So how does the family prove that the infection which caused her brain damage was caused by the formula when the formula sample itself did not test positive for the bacteria?


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