Philadelphia Medical Malpractice Attorney

Via Eric B. Mayer’s Twitter feed, I saw that a few days ago the Wall Street Journal’s blog for working parents, The Juggle, posted on a hot legal issue these days, “Should Pregnancy Be Treated as a Disability?”

A recent study by a University of Dayton law professor, Jeannette Cox, asserts that pregnant women should be covered by the Americans with Disabilities Act, to protect them from being fired or forced to perform labor that could be harmful to mother or child. (The paper is forthcoming in March in  the Boston College Law Review.)

The ADA doesn’t recognize pregnancy as a disability, leaving pregnant women physically and financially vulnerable on the job, concluded Cox, who studies employment discrimination. She found that pregnant women are at risk for losing their jobs when “reasonable adjustments” aren’t made, such as retail workers fired for drinking water at work or pregnant police officers forced to perform rigorous assignments (while injured officers were given lighter duty).

She’s not kidding about “water at work” — I’ve heard of plenty of cases about pregnant women whose employers denied them basic necessities like water or chairs or bathroom breaks. Professor Cox’s idea is eminently sensible, of course, because there’s really no difference between a complicated pregnancy and the types of permanent disabilities covered by the ADA, except that the former is usually temporary.

In general, a woman with an uncomplicated pregnancy is unlikely to need anything more than the types of “accommodations” most of us take for granted, like drinking water when we’re thirsty or sitting down when we need to rest our legs. Pregnancy usually becomes an issue in the workplace in two circumstances: either the employer started imposing extra restrictions on the pregnant employee (sometimes as a means to force the pregnant employee out and thereby avoid Family and Medical Leave Act duties, and sometimes just out irrational prejudice in violation of the Pregnancy Discrimination Act (PDA), an amendment to Title VII of the Civil Rights Act of 1964) or the pregnant employee developed a complication like pre-eclampsia, placenta previa, or gestational diabetes, and so has a weight/lifting restriction imposed upon them by their doctor.

At that point, the employer can either accommodate the pregnant woman, force her to take whatever family leave is available to her (often exhausting it before the birth of her child), or try to fire her. A disturbing number of employers do the latter two.

Continue Reading Pregnancy Is (Legally) Like A Disability If Employers Accommodate Temporarily Disabled Workers

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.  Continue Reading Medical Apology Laws Are An Excuse To Avoid Doctors’ Ethical And Legal Duties To Patients

[UPDATE II, February 7, 2012: Mike Tremoglie at Legal News Line (which is owned by the U.S. Chamber of Commerce’s Institute for Legal Reform) has published two follow-up stories in which I was quoted, one about the issue in general, and one about follow-up data the ICLE published on the location of plaintiffs in Philadelphia mass torts cases.]

[UPDATE, December 3, 2011: More than a month after my post, the Wall Street Journal chimed in with an editorial parroting the “study” I discussed below. The WSJ, too, noted that, in medical malpractice trials, “Philadelphia juries find in favor of plaintiffs more often than non-Philly juries” without pointing out that four out of five medical malpractice plaintiffs in Philadelphia lose at trial. That’s compared to nine out of ten across Pennsylvania. So, yes, a plaintiff is nearly one-quarter more likely to win in Philadelphia, but they’re still most likely going to lose.

Truth is, across Pennsylvania and across the United States the deck is stacked against injured plaintiffs. In Philadelphia, the problem is not as pronounced, but it is still present. We shouldn’t be trying to get cases out of Philadelphia — we should be trying to make all of the counties less unfair to injured plaintiffs.]

Another day, another claim by some corporate shill tort reform group that Philadelphia’s courts are terrible because they move cases along in a timely fashion. This time, via Overlawyered, I see a new study by some corporate shill organization (this time it’s “the International Center for Law and Economics,” or ICLE) that claims it has found “systematic biases in Philadelphia courts,” but which really comes down to concluding:

Philadelphia courts host an especially large number of cases, Philadelphia courts have a larger docket than expected, Philadelphia plaintiffs are less likely to settle than other non-Philadelphia Pennsylvania plaintiffs, and Philadelphia plaintiffs are disproportionately likely to prefer jury trials.

The first two conclusions about docket size are underwhelming, which makes it even more disappointing that they’re also meaningless. As the study itself admits then ignores, “That a large city would attract more than its proportional share of the state’s litigation is not surprising in its own right. There are several reasons to expect higher litigation rates in more densely populated cities.” Indeed.

Philadelphia has a faster docket than the surrounding counties and has coordinated programs for mass torts. When a plaintiff’s lawyer is considering filing dozens or hundreds of lawsuits against GlaxoSmithKline, or AstraZeneca, or Teva Pharmaceuticals, or Siemens Medical, or McNeil Laboratories, or Merck, or Wyeth — all of which have a significant presence in or around Philadelphia — the obvious choice is to file in the quicker venue with more experience and more resources to handle the cases. Philadelphia’s Complex Litigation Center (CLC) has over 2,200 cases relating to Reglan alone. Throw in asbestos, denture cream, and all the rest of the mass torts and you’re talking 10, 20 or 30 thousand cases depending on recent recalls and FDA warnings and the like.

Chester County’s Court of Common Pleas has 14 judges, including those in senior status. Philadelphia has 90 active judges. Do you think the court staff in Chester County says among themselves, “I wish we had tens of thousands more cases”? The cases gravitate to Philadelphia for the same reason the people do: it has the infrastructure to handle them.

The core of the report, though, relates to the second part of their conclusions, that “Philadelphia plaintiffs are less likely to settle than other non-Philadelphia Pennsylvania plaintiffs, and Philadelphia plaintiffs are disproportionately likely to prefer jury trials.”

That may be true, but it does not necessarily follow that Philadelphia is unduly favorable to plaintiffs. ICLE’s argument that Philadelphia is a biased county just because it’s more favorable to plaintiffs than other counties requires a big assumption, i.e. the assumption that all Pennsylvania counties other than Philadelphia are perfectly fair for plaintiffs.

Allow me to make an entirely unoriginal observation: the non-Philadelphia counties are unduly unfavorable to plaintiffs.

To see why the ICLE logical leap is so wrong, some basic reasoning skills are needed. Let’s say you have 10 apples. One apple is much larger than the others. Does that mean that one apple is larger than it should be?

No.

Maybe the remaining 9 are California holly (Heteromeles arbutifolia). You wouldn’t know from looking at it — the fruit is only a couple millimeters across — but it’s an apple, a member of the Maloideae subfamily, just an unusually small one. You could fit two dozen of them into any one of the delicious Braeburn apples I picked with my family up at Solebury Orchards in Bucks County (which also has just a fraction of the judges of Philadelphia and no mass torts program) last week, none of which are particularly large.

It’s quite possible you have 9 tiny apples and 1 small apple.

The same may be true of Pennsylvania: most of the counties are downright unfair to plaintiffs, while one, Philadelphia, is merely difficult to win in. It may be that Philadelphia is the only fair county in the whole state, or maybe even just the least unfair county.

The study spends a lot of time drawing conclusions about verdict size from medical malpractice data, which is understandable, because it’s often the only detailed data we have, but it’s where the absence of any supporting data for their wild theories becomes the most apparent:

While non-Philadelphia Pennsylvania juries returned favorable verdicts for plaintiffs around 15% of the time across the time period, Philadelphia juries consistently found in favor of plaintiffs more often – by as much as 23.7% in absolute terms in 2005

Left unsaid by the study and its reference to “absolute” percentage differences from six years ago — when pre-MCARE malpractice tort reform cases were still being tried — is the fact that most medical malpractice plaintiffs in Philadelphia lose at trial. Last year in Pennsylvania outside of Philadelphia, four out of five malpractice plaintiffs lost at trial. In Philadelphia, three out of four malpractice plaintiffs lost at trial. Some “systematic bias.”

If anything, it’s another “systematic bias” in favor of defendants like doctors and hospitals, just a little less severe than the bias outside of Philadelphia. Of course, as I’ve discussed here before, we know from the Harvard Medical School study on medical malpractice lawsuits that one-quarter of bona fide medical malpractice victims — patients whom even the Harvard panel of doctors through had been injured by malpractice — nonetheless lose in court. The whole legal system is biased against injured people, and that’s true in Philadelphia and everywhere else.

There’s ample reason to believe that Philadelphia isn’t a “plaintiff-friendly” venue; indeed, there’s reason to believe there are no “plaintiff friendly” venues in the country, just venues that are defendant-friendly to varying degrees. Economists have estimated that medical negligence cause nearly $20 billion in economic damage every year, yet the entire malpractice system pays out to victims well under $5 billion a year in settlements and verdicts. There is thus a minimum of $15 billion in economic harm caused by healthcare errors that goes completely uncompensated.

Of course, anyone who actually spent time in Philadelphia’s courts could have told you they’re not unfair to defendants. Even apart from the fact that Philadelphia’s juries are defense-friendly — remember that three out of four statistic — the judges, too, routinely dismiss plaintiff’s cases without even letting them go to trial.

A larger point needs to be mentioned: trial judges like the ones in the Philadelphia Court of Common Pleas aren’t the last word on everything; they’re often not the last word on anything. Particularly in these mass torts cases that form the bulk of the numbers cited by the ICLE, the cases are often appealed up and down the entire chain, from state trial courts to the federal Supreme Court. Consider those 2,200+ Reglan cases in Philadelphia: back in July, the Supreme Court’s decision in Pliva, Inc. v. Mensing — a Reglan case from Minnesota — changed the landscape considerably, and the case is now back in front of Judge Sandra Moss on the generic drug manufacturers’ motions to dismiss the cases entirely. Take a look at the plaintiffs’ and defendants’ briefs, which are together more than 100 pages to discuss just one Supreme Court case.

Multiply that across the two dozen or so mass torts cases in the Philadelphia CLC and the hundreds of legal issues that arise every week and you can get a sense of the scope of the work that needs to be done.

There’s a simple reason the tort reformers keep attacking Philadelphia’s Complex Litigation Center: it’s one of the few courts in the country capable of keeping up with that volume of legal work. For the big companies that fund tort reform efforts, it’s not enough that they control Congress and control many state legislatures — they need to attack the courts that actually decide these issues.

The plan is quite simple: justice delayed is justice denied. The question is if we let them get away with it.

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 across specialties in each of these descriptors of liability risk. Specialties in which the largest proportion of physicians faced a claim were not necessarily those with the highest average payment size. For example, physicians in obstetrics and general surgery — both fields that are regarded as high-risk specialties — were substantially more likely to face a claim than pediatricians and pathologists, yet the average payments among pediatricians and pathologists were considerably greater. …

Our study uncovered an important aspect of malpractice liability: the high likelihood of claims that do not result in payments to a plaintiff. Annual rates of claims leading to indemnity payments ranged from 1% to 5% across specialties, whereas rates of all claims ranged from 5% to 22%. Our projections suggest that nearly all physicians in high-risk specialties will face at least one claim during their career; however, a substantial minority will not have to make an indemnity payment.

The study’s authors tied this all back into the core concern among tort reformers — “the perceived threat of malpractice among physicians” — but I think the real question should be, why is there so much medical malpractice?

We know from the 2006 study by a group at Harvard Medical School (which was also published in the NEJM), “Study Casts Doubt on Claims That the Medical Malpractice System Is Plagued By Frivolous Lawsuits,” that our medical negligence tort system gets it right three-quarters of the time, and, when it gets it wrong, favors the doctors.

The Harvard study found that three-quarters of lawsuits that resulted in compensation indeed involved bona fide malpractice, while only one-tenth of paid claims involved injures not caused by medical malpractice — and the plaintiffs in those cases received far less than the plaintiffs who had injures which even a panel of doctors thought were caused by medical malpractice. While only one-tenth of paid claims did not involve malpractice, one-quarter of bona fide medical malpractice victims did not recover any compensation. (I previously discussed the Harvard study here and here.)

It’s simple to connect the dots between the 2006 study and the current studies:

  • if 1% to 5% of doctors pay malpractice claims every year, and
  • even a panel of doctors agree that three-quarters of those paid claims involve bona fide malpractice, and
  • there’s also substantial rate of bona fide malpractice cases that don’t turn into successful claims, then:
  • between 1% and 5% of doctors commits malpractice serious enough to warrant a successful lawsuit every single year.

Little wonder, then, that the economic cost of malpractice is $20 billion annually — more than five times the cost of the entire malpractice system, insurance premiums, lawyers and paid claims included.

The study also added some empirical data about the relationship between particular specialties and the likelihood & size of claims:

Across specialties, the mean indemnity payment was $274,887, and the median was $111,749. The difference between the mean and median payment reflects the right-skewed payment distribution. Specialties that were most likely to face indemnity claims were often not those with the highest average payments. For example, the average payment for neurosurgeons ($344,811) was less than the average payment for pathologists ($383,509) or for pediatricians ($520,924), even though neurosurgeons were several times more likely to face a claim in a year. The estimated correlation between the proportion of physicians with a claim and the average payment amount was 0.13 (P=0.52). The correlation between the proportion of physicians with an indemnity payment and the average payment was similar and was not significant. This suggests that factors driving the likelihood of a claim are largely independent of factors that drive the size of a payment.

That’s not surprising to medical malpractice lawyers. When considering whether or not to recommend litigation, we don’t just tell the clients with the largest damages “yes” and then work our way down, saying “no” at some arbitrary dollar amount.

The recommendation for litigation involves a balancing of factors:

  1. the likelihood of proving the physician breached the standard of care;
  2. the size of the provable damages that can be connected to the negligence;
  3. the predicted cost and duration of the litigation.

Incorporated within #1 and #2 are details specific to each specialty. Focus in particular on the “connected to the negligence” part — proving causation is simple in slip-and-fall cases but complicate in a wide variety of potential malpractice claims.

Pediatric malpractice claims, for example, are rare given the nature of what pediatricians do, or rather what they don’t do: they don’t typically diagnose or treat acute conditions. Pediatric malpractice litigation thus typically arises when a pediatrician fails to diagnose (or properly treat) a chronic condition, one that worsens during the malpractice and becomes either harder to treat or untreatable, an uncommon but devastating situation. Otherwise, pediatric malpractice goes under the radar, so to speak.

In contrast, surgical malpractice claims are more common because surgeons treat acute conditions and because the causal connection between the alleged malpractice is quite clear. The “causation” step thus typically isn’t a problem: the improper technique in surgery and the complications that arose were plainly “caused” by the negligence.

All in all, a useful an interesting study, one that hopefully brings us a little closer to the real issue: the need to reduce the volume and frequency of medical malpractice.

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. Continue Reading Medical Malpractice, Errors in Judgment, and The Beginner’s Mind

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.

Continue Reading The Burden Of Proof: A Matter Of Life And Death

I’ve written several times before about where multi-million dollar jury verdicts come from, like in A Look Behind The Scenes Of A Multi-Million Dollar Personal Injury Verdict and Strange Birth Injury Award: $21M Medical Expenses, $0 Pain and Suffering. There’s no secret recipe. Facts win cases; outrage at the defendant’s reckless conduct makes the damage awards larger.

Another example was published yesterday in The Legal Intelligencer:

A Philadelphia jury awarded $21.4 million on Friday to a diabetic man with brain damage over the care he received in the emergency room of Temple University Hospital.

 

The defense argued in court papers that when Campbell, an insulin-dependent diabetic, was taken to the hospital Oct. 13, 2007, he was administered glucagons and glucopaste by emergency medical technicians. His initial blood sugar was 74 by the time he arrived in the emergency room at 9:10 p.m., 79 by 10:40 p.m. and 118 by 12:14 a.m. Campbell was discharged at 1:05 a.m. in the company of family members and went to bed at 3 a.m.

Campbell’s relatives found him unresponsive at 11 a.m.

According to the defense pretrial memorandum, Campbell’s medical history included schizophrenia, depression, pancreatitis and alcohol abuse. Campbell was brought to the hospital 11 times for high or low blood sugar levels in the five years prior to his Oct. 13, 2007, visit to the emergency room, and he was frequently noncompliant with taking insulin, the defense argued.

Campbell was a “noncompliant” patient. It’s hard to know what that really means — everyone who doesn’t follow their doctor’s words to the letter is “noncompliant” — but the docket includes some references to alcohol abuse. The jury found him to be 10 percent at fault for the metabolic encephalopathy that has left him severely brain damaged and in need of constant custodial care.

So what happened? Why only 10 percent liable for his contributions to his condition? And why such a high award on damages, an award that seems likely to exceed his medical needs?

That’s where both facts win cases and outrage can help develop the award:

[Thomas J. Duffy of Duffy & Partners] said they argued to the jury that because Campbell had visited the emergency room Oct. 11, 2007, due to a severe episode of hypoglycemia, and returned to the emergency room two days later for the same issue, it was a breach of the standard of care to release Campbell without admitting him and investigating why Campbell was repeatedly having hypoglycemic episodes.

Indeed. And it gets worse:

The emergency room doctors differed on whether one of them treated Campbell, Duffy said. Dr. Michael DeAngelis filed a certificate stating he had not treated Campbell, while Dr. Joseph R. Lex Jr. and Dr. Christopher C. Vates disputed DeAngelis’ account, Duffy said.

That sort of dispute is quite striking; it’s exceedingly rare to see emergency department physicians who work together point the finger at one another. They typically all point the finger at the patient.

As far as I can tell, none of the physicians were willing to take responsibility for Campbell’s care. Maybe medical malpractice is over–thinking it; maybe the case is extraordinarily simple. Campbell had already come in two days before for hypoglycemia caused by his own “noncompliance” so the emergency physicians, annoyed by the distraction, told the nurses to give him some shots and send him home again.

On some superficial level that’s understandable. Emergency room nurses and doctors are on the frontline of society’s biggest problems. Their time is often wasted by malingering patients. They’re threatened and berated. They see many of the same patients over and over again for the same conditions. They sometimes have to blow off steam. They’re only human.

But “only human” isn’t the standard to which professionals and institutions are held. Campbell needed more than a couple cursory diabetic shots; he needed a doctor. The jury realized that he didn’t get one, and they were angry about it, angry enough to want to protect their community from that sort of lapse in care and responsibility happening again.

Read more about our legal services at our Philadelphia personal injury lawyer page.

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 liability in a birth injury lawsuit — like a negligent hospital or obstetrician that failed to observe fetal distress, leading to hypoxia, or failed to treat jaundice, leading to kernicterus — they’ll inevitably award a substantial amount of non-economic damages for pain and suffering. Indeed, that was the whole thought behind New York’s misguided “reform” which limited non-economic damages to $250,000.

Conventional wisdom suggests that Ja’Kareon Graham was a sympathetic plaintiff. It wasn’t his fault he was brain damaged at birth, that at 4 1/2 years old he can’t speak, that he’s fed through a gastric tube and needs round-the-clock medical care. It was the fault of the nurses and obstetrician who delivered him. He was a twin, and the nurses only bothered to monitor his twin’s heart rate; by the time he was born, he had spent hours in fetal distress.

 

The hospital’s expert claimed (see this story) that he was too small to monitor correctly, but that’s just rubbish: one of my twins was smaller than Ja’Kareon and also wasn’t showing up on the fetal heart rate monitor, so the attending obstetrician — after he learned what I did for a living — brought in another doctor to follow her with an ultrasound, and she was delivered the moment trouble appeared.

Compounding the problems, Ja’Kareon became stuck after turning to breech position, and the obstetrician negligently dithered around for a while before ordering an emergency c-section. The prolonged hypoxia and resulting metabolic acidosis caused his cerebral palsy.

Conventional wisdom, but perhaps not actually correct:

An Erie County jury has delivered what is believed to a be record $21.6 million verdict in the case of a boy who suffers from cerebral palsy as a result of a lack of oxygen during birth. … On April 20, following a trial that was just over a week long and deliberations that lasted about three hours and 40 minutes, a unanimous 12-member jury delivered the $21,573,993.10 verdict against defendant Hamot Medical Center of the City of Erie in President Judge Ernest J. DiSantis Jr.’s courtroom. According to the verdict slip in Graham v. Townsend , $19,588,217 was awarded for future medical expenses and is to be paid in annuities through 2081, while $1,424,314.10 was for past medical expenses and $561,462 was for lost earning capacity.
Notice anything missing there?

That’s right: the jury awarded the child zero in non-economic damges.

To see what the jury didn’t think he deserved, let’s take a refresher on non-economic damages in Pennsylvania by reviewing the civil jury instructions:

The plaintiff has made a claim for a damage award for past and for future noneconomic loss. There are four items that make up a damage award for noneconomic loss, both past and future: (1) pain and suffering; (2) embarrassment and humiliation; (3) loss of ability to enjoy the pleasures of life; and (4) disfigurement. … [P]laintiff is entitled to be fairly and adequately compensated for all physical pain, mental anguish, discomfort, inconvenience, and distress that you find (he) (she) has endured from the time of the injury until today and that … (he) (she) will endure in the future as a result of (his) (her) injuries. … Plaintiff is entitled to be fairly and adequately compensated for such embarrassment and humiliation as you believe (he) (she) has endured and will continue to endure in the future as a result of (his) (her) injuries. … Plaintiff is entitled to be fairly and adequately compensated for the loss of (his) (her) ability to enjoy any of the pleasures of life as a result of the injuries from the time of the injuries until today and … in the future as a result of (his) (her) injuries. … The disfigurement that plaintiff has sustained is a separate item of damages recognized by the law. Therefore, in addition to any sums you award for pain and suffering, for embarrassment and humiliation, and for loss of enjoyment of life, the plaintiff is entitled to be fairly and adequately compensated for the disfigurement (he) (she) has suffered from the time of the injury to the present and that (he) (she) will continue to suffer during the future duration of (his) (her) life. In considering plaintiff’s claims for damage awards for past and future noneconomic loss, you will consider the following factors: (1) the age of the plaintiff; (2) the severity of the injuries; (3) whether the injuries are temporary or permanent; (4) the extent to which the injuries affect the ability of the plaintiff to perform basic activities of daily living and other activities in which the plaintiff previously engaged; (5) the duration and nature of medical treatment; (6) the duration and extent of the physical pain and mental anguish which the plaintiff has experienced in the past and will experience in the future; (7) the health and physical condition of the plaintiff prior to the injuries; and (8) in case of disfigurement, the nature of the disfigurement and the consequences for the plaintiff.

The jury took a close look at the child’s lifetime of round-the-clock care, the fact that he can’t even eat, much less feed himself, and decided it was worth nothing. Nothing for physical pain. Nothing for mental anguish. Nothing for loss of pleasures of life.

 

Would they have checked “yes” if there had been a item on the verdict slip for awarding him a lump of coal?

 

Yet, the award itself is not an unusually small size. It’s actually high: appellate courts generally take large birth injury verdicts move them down below the $10 million range, often below the $5 million range. Last month the family of baby in New Jersey who suffered similarly debilitating injuries as the result of a compromised umbilical cord — blindness, seizures, loss of head control — requiring full-time care settled their claims against Bayonne Medical Center for $8.5 million. It’s not like the Erie County jury was stingy.

 

So what happened? I believe it’s the result of more than a generation of insurance-industry funded propaganda (deceptively called “medical malpractice tort reform“) which has taught everyday citizens that non-economic damages aren’t “real” damages. Thus, when a jury is presented with a case that undoubtedly shows extensive pain and suffering — nothing less than taking away a normal, productive life and replacing it with a nearly vegetative state that requires constant health care intervention just to sustain — that jury either doesn’t know how to award non-economic damages or is so afraid of awarding them that they lump them in with future medical expenses.

 

Assuming this ends this case (the article references a high-low settlement agreement but doesn’t say if any rights of appeal were reserved), Ja’Kareon will receive enough money for his trust fund to fund adequate care for the rest of his life, but that’s because the jury apparently overestimated the cost of his future health care. The same can’t be said for the thousands of medical malpractice plaintiffs whose meritorious cases are either rejected because they’re too risky in this “tort reform” environment or whose cases win at trial but result in inadequate awards.

 

Read more about our medical malpractice and birth injury legal services.

 

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), but a slow death.

I use the word “death” because that’s what it often what it takes to qualify for a medical malpractice lawsuit these days. If a patient wasn’t killed or permanently injured by the malpractice, then often it doesn’t matter how outrageously negligent or reckless the doctor was, because a lawsuit isn’t worth the financial risk to any lawyer who might take the case.

 

 

In Pennsylvania (here’s one of my prior posts about Pennsylvania medical malpractice tort reform), even though every single medical malpractice lawsuit filed has to be supported, at all times, by the testimony of a qualified physician who currently practices in the same field as the defendant — an expensive requirement that makes it difficult to find experts in the first place, given how specialized medical fields are and how many specialists know each other, even specialists on opposite sides of the country — defendants win more than 80% of cases taken to trial.

 

 

The current climate in Pennsylvania’s courtrooms is forcing many of the state’s plaintiffs firms to be more selective in the medical malpractice cases they take on, and also has them looking to areas like mass torts and class actions for new business.

Nearly eight years after the state enacted medical malpractice reform measures and in the wake of one the worst economic downturns in history, the number of plaintiffs verdicts has continued to dwindle in many venues statewide, leading several of Pennsylvania’s largest plaintiffs firms to screen those cases more rigorously.

 

 

Civil lawsuits typically measure the damage inflicted by a death in terms of its economic cost. There is room for non-economic damages, but after a generation of insurance-industry funded “tort reform,” even winning, much less winning, recovering economic damages, and recovering non-economic damages, is difficult these days. That’s a problem when some cases, like birth injury claims, can cost a quarter-million or more in expert fees and litigation costs just to get to trial. A slip and fall in a hospital costs over $25,000 in expert fees to pursue, because it occurred in a hospital.

 

 

Sometimes even permanent injury isn’t enough to make a lawsuit feasible. Scarring, disfigurement, loss of mobility, and constant pain — all common injuries caused by malpractice, yet often not enough, by themselves, to justify spending tens of thousands of dollars retaining an expert for testimony and thousands of dollars for medical records and depositions, not to mention hundreds of hours on the case.

 

 

Sometimes even killed isn’t enough. Remember the economic damages; when an elderly patient dies from a botched surgery performed by an unsupervised resident who are just learning the procedure (a situation I’ve seen many times before), there’s often no recourse for the family, because the case likely won’t recover more money than it would cost to pursue. If medical malpractice lawyers took all these cases, they would be swiftly bankrupted.

 

 

This isn’t an issue about one lawyer or one firm finding it hard to win medical malpractice cases; we have no problem winning malpractice cases, even in counties outside of Philadelphia. The lawyers and firms quoted in the article, too, are more than up to the task. These cases are just harder, longer, more expensive, and riskier than they used to be.

 

 

As a business matter, our firm will be fine, as will all of the firms mentioned in the article. We will restrict our medical malpractice cases to those with extraordinarily large damages, like birth injury and cancer misdiagnosis cases, and focus our efforts on other legal fields, both within the big picture of personal injury and in entirely different fields, like infringement lawsuits.

 

 

But what the tort reformers have never understood, or have deliberately ignored, it’s not about us.  It’s about putting injured patients and their families back to where they should have been, about how medical malpractice causes over $20 billion in economic harm each year, yet the entire malpractice system — including all attorneys’ fees on both sides — is only around $4 billion each year, which means that most victims of medical malpractice go completely uncompensated. It’s about improving the practice of medicine by making that fraction of physicians who practice beneath the standard of care accountable for their negligence, and how, solely to avoid lawsuits, one labor and delivery ward brought their delivery malpractice rate down to zero.

 

It’s not really a loss for trial lawyers if medical malpractice liability is restricted to a tiny fraction of catastrophic injury cases. It’s a loss for everyone.

Read more about our medical malpractice and birth injury legal services.

Update, September 7, 2012: More than a year ago, I wrote “It’s possible KV will sue the FDA over [the decision not to go after compounding pharmacies] — arguing, in essence, that the FDA is disobeying its own statutes and regulations, and thus in violation of the Administrative Procedures Act …” That happened in July, but the case was just dismissed. Next step is inevitably an appeal. I hope, for the sake of patients, they do not succeed, but quite frankly they have a valid argument. 17-P should never have been given orphan drug status in the first place.

 

Preemies have a special place in my heart, not least because I happen to have two of them. More than a half million premature babies are born each year in the United States. Most turn out fine after a brief stay in the Neonatal Intensive Care Unit (NICU), monitoring, modest oxygen support, and treatment for hyperbilirubinemia. The earlier the baby is born, though, the worst the complications become. Babies born before 32 weeks gestation have much higher rates of intraventricular hemorrhage (IVH) and retinopathy of prematurity (ROP), which can translate into, respectively, a lifetime of cerebral palsy and development disabilities, or vision loss or blindness.

Preterm birth is a serious issue with serious consequences, both for the babies and families involved, and for society at large; the United States spends over $25 billion annually caring for premature children.

There’s hope, and plenty of it. The past two generations have produced extraordinary medical advances, particularly with the use of surfactant to treat respiratory distress syndrome (RDS) and the new, gentler approach to mechanical ventilation and oxygen supplementation. Had Stevie Wonder, a preemie, been born today, he might not have developed ROP from the oxygen treatments given to him.

But for some, where there’s hope, there’s money to be made.

Last October I posted about the outrageous efforts to rip off preemies by overcharging for Neoprofen, a drug used to treat patent ductus arteriosus, a condition primarily affecting very premature babies in which the shunt that connects a baby’s pulmonary artery to his or her aortic arch fails to close after birth:

Ever seen a two pound preemie that can’t get enough oxygen hold out for a better deal? The vice president at Lundbeck hadn’t either, so Lundbeck came up with a plan: once they had the rights to Indocin IV, they would increase the price of each treatment course from $78 to $1,500.

Lundbeck didn’t actually do anything to earn themselves a twenty-fold raise, they just bought themselves a monopoly on the unmet medical need of certain people with a severe disease for which few other effective treatments were available. That’s their “commitment.”

It gets better.

Lundbeck learned that two other companies, Farmacon-IL and Abbott Laboratories, had developed a competitor to Indocin IV, called NeoProfen, which could also treat PDA. Abbott Laboratories forecast NeoProfen could be sold for $450-500 per treatment course.

So Lundbeck bought the rights to NeoProfen, too. Once the FDA approved it, Lundbeck sold NeoProfen for $1450 per treatment course.

It was a disgrace; Lundbeck did nothing to research or develop either drug, and instead created an artificial “market” in which they controlled all of the available options to treat PDA. As one of the vice president at Lundbeck realized (and committed to email), “we can price these almost anywhere we want given the product profiles.” So they did.

It seems we have a new contender for “worst effort to rip off preemies and their parents” in the form of Makena:

A drug for high-risk pregnant women has cost about $10 to $20 per injection. Next week, the price shoots up to $1,500 a dose, meaning the total cost during a pregnancy could be as much as $30,000.

That’s because the drug, a form of progesterone given as a weekly shot, has been made cheaply for years, mixed in special pharmacies that custom-compound treatments that are not federally approved.

But recently, KV Pharmaceutical of suburban St.Louis won government approval to exclusively sell the drug, known as Makena (Mah-KEE’-Nah). The March of Dimes and many obstetricians supported that because it means quality will be more consistent and it will be easier to get.

None of them anticipated the dramatic price hike, though — especially since most of the cost for development and research was shouldered by others in the past.

It’s more than just “most” of the cost for development and research. 17 alpha hydroxyprogesterone caproate (“17P” or “17HP”) was first researched and developed decades ago, then approved in 1956 and sold as Delalutin to treat uterine cancer and hormonal abnormalities. Delalutin was voluntarily pulled from the market in 2000 because of superior treatments for both conditions.

Various medical researchers suspected that 17P treatment could be used to prevent preterm labor, and so in 2003 the National Institutes of Health — which, as a reminder, is a government entity funded by taxpayers — financed a study into using 17P for that purpose. It worked.

Ever since then, a number of health insurance companies have covered “off-label” use of the drug by expectant mothers to prevent preterm labor, because the modest cost of administering an old drug outside of its patent was but a tiny fraction of the potential cost of premature birth followed by weeks or months in the NICU (which, as an intensive care facility, isn’t cheap), years in developmental therapy, and potentially a lifetime of support services for cerebral palsy or other neurological or cognitive conditions.

And that’s when the vampires at KV swept in:

KV has acted mostly as a behind-the-scenes player in Makena’s FDA approval. The agency actually granted the approval to Massachusetts-based Hologic Inc., which presented the application and argued for the drug based on research by others. KV helped finance the approval process and is paying Hologic nearly $200 million for exclusive legal rights to sell Makena.

How quaint. KV “help finance the approval process.” They didn’t develop the drug in the first place, and taxpayers shouldered all of the cost for researching its current use to prevent preterm labor, but KV is entitled to a windfall because it paid some lawyers to shuffle the approval process along.

Here’s an example of that supposed work. Last year, the FDA — also paid for entirely by your tax dollars — determined that Delalutin was not pulled for safety or effectiveness reasons, and so put it in the list of “Approved Drug Products With Therapeutic Equivalence Evaluations,” commonly called the “Orange Book,” and thereby allowing future drug company applicants to rely on the prior testing of the drug. 17HP — which has been used cheaply and effectively over the past few years to prevent preterm labor — thus became an “orphan drug,” and KV was entitled to a monopoly over its distribution.

And what will KV get for doing nothing more than paying some lawyers to grease the wheels at the FDA? Even KV estimates that 150,000 mothers annually could qualify for the treatment (like if they previously had a preterm birth), for a nice $25,000 to $30,000 each, or over $4 billion a year in revenue for an old, easy-to-make drug that can be made for under $200 per treatment course.

The two likely effects of that price gouging are obvious: KV will make a ton of money for doing nothing, and not as many mothers who need the drug will get it because insurance companies and Medicaid won’t approve it as broadly as they did in the past. KV will thus make a ton of money for increasing the number of premature babies. Some people might think that’s a bad thing, but KV’s stock price is up 400% over the past month, so I’m sure they’re popping the champagne over there.

There’s no doubt about it: “our pharmaceutical approval system is completely screwed up.”

Update I: March of Dimes is taking a lot of heat for their role in the process and the naive (or greedy) way in which they extended their credibility to the Makena approval process. MOD says they’ve been assured that all “eligible” patients, whatever that means, will have subsidized access to the drug through the Makena Care Connection run by KV, and that they shouldn’t be blamed for KV’s decisions.

I’m glad they’ve recognized the problem, but it’s a bit tough to swallow MOD’s claims of non-involvement when the March of Dimes’ logo is on the Makena.com homepage. There’s also considerable legal uncertainty going forward; as this TIME.com article notes, some compounding pharmacists believe they can get around the Makena by making similar, but distinct, compounds.

Update II: March of Dimes has criticized the price structure for Makena, recognizes they messed up, and has started to demand changes. A welcome development, but it’s upsetting they were so naive throughout the process, that it had to come this far before they realized that KV cared only about money.]

Update III: the American Academy of Pediatrics, American College of Obstetricians and Gynecologists, and Society for Maternal-Fetal Medicine have written a letter to Ther-Rx, sharply criticizing the pricing point for Makena and noting that “the financial assistance that Ther-Rx is offering … is not sufficient and does not extend to certain groups of women.” Like me, AAP/ACOG/SMFM also question what was meant by “eligible” in the financial support. Bear in mind, “eligible” is not a medical term, it’s an insurance industry term.

Update IV: There’s still considerable confusion about whether or not compounding pharmacies can continue to make 17P for their patients. Here’s one of the cease and desist letters KV sent out; KV certainly believes that compounding pharmacies can’t continue to make injectable 17P solutions, though I’ve heard of a few pharmacies that say they’ll fight KV in court on the issue. I wish those pharmacies the best, but I doubt they’ll succeed. A similar fight happened two years ago when URL Pharma was granted a monopoly over colchicine, a historic gout medication used by, among many others, Benjamin Franklin. Other producers tried to keep making versions but were shut down by the FDA.]

Update V: Thankfully, the compounding pharmacies won’t even need to fight the battle, since the FDA is exercising its discretion not to enforce the marketing exclusivity. It’s possible KV will sue the FDA over that — arguing, in essence, that the FDA is disobeying its own statutes and regulations, and thus in violation of the Administrative Procedures Act — or the price drop might encourage the FDA to go back to enforcing market exclusivity against compounding pharmacies.

Update VI, March 30, 2011: The FDA formally announced:

In order to support access to this important drug, at this time and under this unique situation, FDA does not intend to take enforcement action against pharmacies that compound hydroxyprogesterone caproate based on a valid prescription for an individually identified patient unless the compounded products are unsafe, of substandard quality, or are not being compounded in accordance with appropriate standards for compounding sterile products. As always, FDA may at any time revisit a decision to exercise enforcement discretion.

In short, although the FDA by law could order compounding pharmacies to stop making 17P (excepting where it’s a necessary substitute for Makena for a particular patient), they’ve decided not to do so except where the 17P is unsafe or otherwise improperly made. That’s a big win for patients out there and a big loss for KV Pharmaceuticals, but it might not be the end of it. As discussed a bit more at the end of this post, KV has set a lower price for Makena (though not lower enough, according to ACOG), likely to help win back FDA favor, and, if that fails, they might sue the FDA to compel it to enforce its regulations. I doubt this story is over.

Update VII, July 5, 2012: As noted in the edit to the beginning of my post, K-V has indeed sued the FDA over its handling of Makena.

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