Reminder to my blog-reading friends

Several months ago I moved my blog over to my law firm’s website.  If you were wondering where the recent posts were, take a look at  http://www.publicprotectionlawyer.com/blog/

 

Puny Punitives

Punitive damage awards come up only occasionally in medical malpractice cases because punitive damages are only awarded to “penalize, punish, or deter” a defendant.   Doctors are typically trying to help but make mistakes out of ignorance, fatigue, or even sloth – and are financially held to account for these kinds of mistakes when they cause injury – but rarely do doctors do something they should be punished for.  The typical situation in which punitive damages might be awarded would be a surgeon who injures a patient while performing an operation under the influence of alcohol or drugs.  But, these cases are uncommon.  Rarer still would be a doctor who deliberately harmed a patient for some crazed personal reason.  More commonly, punitive damages come up in product liability cases because it is not hard to imagine a company cutting corners when it comes to safety, in order to fatten its bottom line.  Rightly or wrongly, I’m pretty sure some business executives will do unethical things in their business life that they would never dream of doing in their personal life.

Perhaps because punitive-damage cases are infrequent, state and federal governments have acted like these cases should be their personal play things.  Georgia has taken an interesting approach, for example, by confiscating 75% of any punitive damages awarded in a product-liability case.  Other states cap punitive damages.  Even the U.S. Supreme Court has declared that “few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.”  In other words, if a punitive-damages award exceeds 9 times the actual damages, it’ll probably be deemed unconstitutional.

This past week, a Richmond, Virginia federal jury awarded Douglas M. Ray, a retired engineer, $12 million in compensatory damages and $200 million in punitive damages. The jury agreed that Ray, 67, suffered disability and permanent brain damage when, in 2007, he was given Botox injections, off-label, for hand tremors; the manufacturer of Botox had not warned about this potential side effect.

Here’s the kicker: Allergan, the manufacturer of Botox, hasn’t decided whether to appeal.  Not appeal a $212 million verdict?  Has the manufacturer lost its senses?             No.  You see, the Commonwealth of Virginia caps punitive damages at $250, 000.  Thus, the verdict is really only $12.25 million and Mr. Ray’s disability could make Allergan consider that it got off easy.

Glenn L. Goodhart, M.D., J.D. 

6065 Roswell Rd.

Northside Tower
Suite 410
Sandy Springs, GA 30328

Phone: (404) 255-3282

Toll Free: 866-959-2148

Capped Out

It’s happened again.  Bryanna Baker, then 24-years old, became a cardiac cripple in need of a heart transplant because her heart attack was misdiagnosed. This week a Las Vegas jury awarded her $9 million, but because of a legislative cap on medical malpractice damages in New Mexico, she will receive $200,000 from each of three physicians held liable.  She will also receive an additional $1.2 million from a state compensation fund.  And, all Bryanna’s additional future medical bills will allegedly be paid from this fund, which is financed by a tax on all health-care providers.

New Mexico has an especially onerous cap on damages to the victims of medical malpractice.  First enacted 30 years ago, the capped amounts have been raised only once, in 1992.  The liable doctor has to pay the first $200,000 of the damage he caused and then the state’s patient compensation fund pays an additional $400,000.  If future medical bills exceed the cap, the fund pays the bills directly.  In other words, regardless that the jury decided the damages were $9 million, Bryanna will receive $600,000 from the doctors’ insurers and $1.2 million from the state fund now, and the compensation fund will allegedly pay future medical bills if the $1.8 million runs out.  Does anyone think that the state compensation fund will pay any medical expense that Bryanna asks for?  Think again.

Consider the moral hazard that the New Mexico damage caps create.  A hospital administrator has little economic incentive to make patient safety the priority that the patients or the doctors want.  Why replace old technology that is still functional?  Why hire enough nurses when the existing ones can be slave driven or replaced with cheaper employees with less technical training?  Why hire top-notch radiologists when someone in India can read x-rays remotely for a lot less?

I really get a laugh when people think that we have a free market in medical care in America.  What we have is a corporatist system that is heavily regulated by state and federal government.  Every so-called market failure of our health-care system is directly traceable to a poisonous relationship between government and government-friendly businesses. The only solution to the health care inequities in America — and the only solution not currently under discussion — is to remove government from the mix entirely and let businesses, including insurance companies, bear the full brunt of the competitive free market.

Glenn L. Goodhart, M.D., J.D. 

6065 Roswell Rd.

Northside Tower
Suite 410
Sandy Springs, GA 30328

Phone: (404) 255-3282

Toll Free: 866-959-2148

Two New Med-Mal Verdicts

Sometimes the practice of law takes up so much of my time that I don’t get to blog.  But I’ve resurfaced now and two interesting verdicts have come out recently.

Hospital to New York’s rich and famous, Lenox Hill, lost a $5.5 million verdict to Maria and Cesar Bustos after a two-week trial.  The jury deliberated only an hour.  Mrs. Bustos went into labor and called her doctor as she left to go to the hospital.  Her doctor, who lives only two blocks from the hospital, didn’t show up until hours later and only about a minute before she delivered.  No explanation.  Only a nurse and a first-year resident were there and the baby was 10 pounds, i.e., quite large as babies go. Mrs. Bustos wound up with a broken and separated pelvis as well as a back injury that required surgery.  She now walks with a cane.

The jury saw the doctor’s behavior as a clear-cut violation of the standard of care.  When a woman is in labor, the doctor has to get his butt into the hospital.  No excuses.

Thomas Miller, 51, called Dr. Collin Cooper, a suburban Los Angeles internist, complaining of severe chest pain.  For whatever reason, Dr. Collins only told Miller to come to the office a few days later.  Apparently, an EKG showed nothing acute and Dr. Collins gave Miller a stress test, which means he exercised Miller on a treadmill while monitoring the EKG.  Miller died an hour later and the coroner reported a massive heart attack.  A Burbank California jury awarded $4.5 million.

This case illustrates at least three indisputable medical facts: when someone has severe chest pain, the standard of care requires that the patient be transported to the nearest emergency room and thoroughly evaluated.  An EKG by itself is far from a perfect diagnostic tool.  And, exercising a patient having a heart attack is the best way to kill him.  Unfortunately for Miller’s widow, however, California is one of those states that caps medical malpractice damages.

Glenn L. Goodhart, M.D., J.D. 

6065 Roswell Rd.

Northside Tower
Suite 410
Sandy Springs, GA 30328

Phone: (404) 255-3282

Toll Free: 866-959-2148

Good Verdict Bad Law

A former cop in Terre Haute Indiana,  Jeffrey W. Davis, just won a $2.5 million medical malpractice verdict.  But, the judge has no choice and must take half of the verdict away.

Davis was 35 in 2004 when he went to see Dr. John Morse complaining of rectal bleeding.  Apparently, Dr. Morse didn’t think too much of the complaint and wasn’t practicing so-called defensive medicine that day.   Davis got very little work up for his complaint.  But, if a doctor can verify unexplained rectal bleeding,  the standard of care requires him to order a colonoscopy, sooner than later, regardless of the relative youth of the patient.   In 2006, Davis went to another doctor who found widespread colon cancer.  Davis is now 42 and is believed to have about a year to live.

Indiana capped medical malpractice damages in 1975 at $410,000 and has raised the cap periodically to its present $1.25 million.   Even using the phony CPI numbers put out by the BLS, rather than an index of health care inflation to account for the plaintiff’s future medical care costs, the cap should be over $2 million by now to have the same purchasing power as the original cap.

But, the legislature never admits the real reason it would overturn centuries of common law, which never limited the amount of damages a jury could award because a tortfeasor can cause unlimited damages.  If you believe that government consists of robbers and thugs who act only in their own self interest, then you already know that a legislature that changes centuries of law does so only because it wants to help its friends, who in turn help keep the robbers, I mean legislators, in power.  Sadly, many (most?) people think that government consists of angels who only want to make things better for us mere mortals.

One of the best ways for a government to fool the citizenry is to create a crisis so seemingly massive and beyond an individual’s control that people believe only the government can do something to help solve the problem.   Trial lawyers have been a favorite bogey man of the corporate world, and the insurance industry in particular, for decades.  Trial lawyers are, after all, the ones who hale corporate defendants and other wealthy elite into court, and it is the court system that is the most difficult for the elite to control.  Politicians are easy to purchase but juries consist of 12 ordinary folks and ordinary folks don’t often take kindly to greed and bribery. The only thing the elites can reasonably do to protect themselves is to  purchase politicians who will reign in the courts.

The federal government had already made doctors rich through Medicare and Medicaid, providing payment for patients the medical profession had always treated pro bono.  Doctors who were previously just members of the middle class, have to protect their wealth now through malpractice insurance.  But the courts have made the insurance companies pay victims the full value of injuries caused by medical malpractice.  So, the insurance industry created a crisis to scare people into believing that doctors would soon stop practicing medicine unless the government “did something.”  At least in Georgia, caps only lasted five years. A unanimous Georgia Supreme Court struck the caps down last year as patently unconstitutional.  We can pray for the citizens of Indiana.

Glenn L. Goodhart, M.D., J.D.

6065 Roswell Rd.

Northside Tower
Suite 410
Sandy Springs, GA 30328

Phone: (404) 255-3282

Toll Free: 866-959-2148

Doctors in the Courtroom

I’ve just gotten through two of the toughest weeks in my career.  I was in four cities, not including Atlanta, in four days doing depositions and then worked through the weekend and Monday getting pleadings out to meet a deadline.  Oh, and did I mention my mother-in-law is in hospice? I’m not whining, just giving an excuse — a pretty good one, I think — for why I didn’t get around to blogging.

Anyway, somewhere in the middle of all that turmoil, I came across an interesting medical malpractice case out of Billings, Montana.  Gerard “Gerry” Heidt, 42, died Oct. 5, 2005 from undiagnosed heart valve leakage.  A jury returned a verdict for $1.7 million, almost all of it calculated as lost wages.  The absence of a jury award for pain-and-suffering damages is so commonplace nowadays as to be hardly worth mentioning. In many ways, the Heidt case was just ordinary.

But, it turns out that this recent verdict was the second trial of this case.   The first trial was a doozy and wound up in the Montana Supreme Court.

Everything in the first trial was going smoothly, if boringly, until the last day when Heidt’s lawyer began his closing argument to the jury.  Courts are pretty lenient about what they allow a lawyer to do in closing argument and it is de rigueur among many trial lawyers to “channel” the decedent in wrongful-death cases.  In other words, the attorney tries to pretend to be the decedent and describes the horrible things that happened to him while alive.  John Edwards, erstwhile candidate for president, was famous for it.  Heck, I’d try it myself, if I thought I could do it with a straight face.

Anyway, Heidt’s lawyer starts channeling and gets increasingly graphic. At one point he even describes his own autopsy. At that point, one of the female jurors declared she was going to faint and pandemonium broke out.  Dr. Argani — the defendant! — and Dr. Hammond — one of the plaintiff’s attorneys! —  as well as three nurses — who were jurors! — immediately came to the woman’s assistance.   An ambulance arrived and took the lady to the hospital.

Heidt’s lawyers moved for a mistrial and, astonishingly, the judge seated the alternate juror and allowed the trial to continue! [I’ve never used so many exclamation points in my life, but on the other hand, I’ve never heard of anything like these events.]  The jury returned a verdict for the defendant doctor.

Sober heads eventually prevailed.  The Montana Justices managed to find two other reported medical malpractice cases in which the defendant rendered medical care to a juror during the course of the trial.  The Justices reasoned that whenever such an event occurs, the trial judge has to declare a mistrial.  The jury has just seen the doctor give competent, possibly life-saving care to a fellow juror. The influence of such an event on the jury is immeasurable; no one is likely to blame a doctor for a prior lapse after witnessing competence under fire.  So, the Supreme Court reversed and sent the case back for another trial.  The second trial was routine and the $1.7 million verdict ensued.

Article first published as Doctors in the Courtroom on Technorati.

Glenn L. Goodhart, M.D., J.D.

6065 Roswell Rd.

Northside Tower
Suite 410
Sandy Springs, GA 30328

Phone: (404) 255-3282

Toll Free: 866-959-2148

Birmingham Again

A Birmingham Alabama jury awarded the family of Laboyish Catlin $3 million last Friday (February 11, 2011.)  Mr. Catlin, then 37, bled to death in January 2006 a few days after ulcer surgery at Baptist Princeton Hospital.   Essentially, the jury believed the testimony that Mr. Catlin had a very low blood count when sent home, without anyone paying much attention.  The defendants made a typical blame-the-victim argument: Mr. Catlin did it to himself through his lifestyle (he smoked and drank alcohol and, besides, the ulcer was especially large and the surgeons couldn’t take the standard surgical approach.)

Defense lawyers love to blame the victim.  They know that the average juror likes his own doctor, so they try to draw out those good  feelings and transfer them to the defendant doctor; there is no better way to make the defendant doctor look good than to make the victim look bad.  The defense lawyer will intone that the good doctor did everything he possibly could,  but the miserable plaintiff  led a life of sin and even the devil hated him.

Sometimes the tactic backfires, especially when the defense lawyer tries to force the facts to fit a pattern they just won’t fit.  Put the patient in a Procrustean bed, so to speak.   A doctor is, after all,  supposed to be able to handle a difficult case once in a while and juries know it.  A doctor is not a physician’s assistant or a nurse.

I can’t say that there was a time when hospitals functioned perfectly and doctors didn’t make careless mistakes.  I can say that I believe more mistakes are made today than when I started my career, despite the undisputed meteoric advance of medical science over this time frame.  Doctors work harder now to make less money.  Nurses spend time now filling out electronic records and supervising a bevy of poorly trained assistants.  Professional managers making six-to-seven figure salaries run the show and back-stab medical staff who complain about poor care.  Sometimes I believe it  a tribute to the resiliency of the human body that  a patient makes it out of the hospital intact.

The underlying cause of these problems is the government generally, and Medicare in particular.  Medicare has been unable to afford to pay for the care it promised since the mid-1980’s.  Unlike you and I, when we can’t pay our bills, we go bankrupt.  When Medicare couldn’t pay its bills, it simply decreed that the same work be done for less money.   Economic laws can’t be bullied, of course, and eventually, the health-care system began to show wear, despite a facade of dazzling MRI machines, wonder drugs and robotic surgery.

Tyranny has worked this way since antiquity.   The difference is that electronic bookkeeping entries in bank computers today can create as much money in milliseconds as it took corrupt kings months to do by melting down pure gold coins and reissuing debased ones.     The combination of an unlimited purse and an iron fist is injurious to our health.

Glenn L. Goodhart, M.D., J.D.

6065 Roswell Rd.

Northside Tower
Suite 410
Sandy Springs, GA 30328

Phone: (404) 255-3282

Toll Free: 866-959-2148

Methadone Madness

Suppose a two-year old gets into the babysitter’s methadone, but at least the babysitter manages to rush the child to the emergency room.   The emergency-room doctor observes the child for a few hours, then sends the child home; the child soon stops breathing, is brought back to the hospital and dies.  These are the essential facts of Adrian Christian’s last hours.  Who is responsible for this child’s death?

The law of this situation has some complexities that vary from state-to-state, but generally speaking,  the negligent doctor’s action is deemed  an independent intervening cause.  An independent intervening cause is a separate act or omission that breaks the direct connection between a tortfeasor’s actions and an injury to another person.  In this case, the doctor’s negligence in sending Adrian home while he was still suffering methadone poisoning is an independent intervening cause that breaks the connection of the babysitter’s negligence who negligently allowed  Adrian to get into her methadone.  In this set of circumstances, the law allows the victim to sue either the babysitter or the doctor or both.  A Birmingham Alabama jury just awarded Adrian’s mother $2.4 million to be paid by the doctor or his insurer.

Let’s change one fact: Suppose Adrian lived in Atlanta instead of Birmingham but otherwise everything happened the exact same way.  Unfortunately for Adrian’s mother, she probably would have had a hard time finding an attorney to represent her.  If she managed to find a lawyer, the judge would probably have thrown the case out before it went to the jury.  If the case somehow had gotten to the jury, the doctor would almost certainly have been found to have no liability.

Is the law so crazy that the same facts result in a large verdict in Birmingham and a boot in the pants in Atlanta?  You bet it is.

In 2005, the Georgia legislature whooped through a tort-reform package, called SB3, that was supposed to solve the state’s so-called malpractice crises.  Medical malpractice reform was suppose to help beleaguered doctors who were supposedly being crushed by out-of-sight insurance premiums.  Now that the facts are in, however, you don’t hear much about this crisis any more.  Why?   Malpractice-insurance premiums never went down, far fewer medical malpractice lawsuits were filed, i.e., fewer victims were compensated for their injuries, and malpractice-insurance-company profits soared.   The only people who couldn’t foresee this outcome for SB3 in 2005 were Georgia physicians.

One of the major elements of SB3, which has survived a Supreme Court challenge, is a special standard of care for Georgia emergency-room physicians.  To hold a Georgia emergency-room physician liable for medical malpractice, a victim must prove gross negligence by clear and convincing evidence.  To hold any other Georgia physician liable under identical facts requires only ordinary negligence proved by a preponderance of the evidence.  Some observers believe this absurdity was put into Georgia law because rural hospital administrators complained that their hospitals could very well go under unless the legislature ran interference for their incompetent emergency-room doctors.  It is, after all, difficult to find doctors to cover these emergency rooms and administrators take what they can get — patients be damned.

I don’t know how many other states, if any, have enacted rural hospital administrator job-security acts like SB3, but Alabama has certainly not.  Obviously, no court can bring Adrian back, but at least the Alabama court compensated Adrian’s mother in the only way that a court can.  In Georgia, Adrian’s mother wouldn’t get a dime.

Glenn L. Goodhart, M.D., J.D.

6065 Roswell Rd.

Northside Tower
Suite 410
Sandy Springs, GA 30328

Phone: (404) 255-3282

Toll Free: 866-959-2148

Drugging Kids

I’m sure at one time or another all parents have wished for a magic pill that would make their kids easier to deal with.  No shortage of hucksters and snake-oil salesmen stand ready to fulfill that  need.  I believe most parents realize no magic pill exists and most child psychiatrists are reticent about over-prescribing potent pharmaceuticals. But sometimes things go very wrong, even at prestigious medical schools.

Dr. Kayoko Kifuji, a child psychiatrist at Tufts Medical Center, testified under a grant of immunity at the murder trial of Carolyn Riley last year, charged along with her husband, Michael, in the death of their four-year old daughter, Rebecca.

After her first interview with Rebecca, then  two, Dr. Kifuji started her on clonidine, a blood-pressure drug sometimes used as a sedative in kids with ADHD.  Dr. Kifuji eventually prescribed Rebecca 750 milligrams a day of Depakote, an anti-seizure drug also used as a mood-stabilizer; 200 milligrams a day of Seroquel, an antipsychotic; and .35 milligrams a day of clonidine.  Rebecca stopped breathing on December 13, 2006.

The parents were making up symptoms to tell Dr. Kifuji in an effort to obtain disability benefits.  For whatever reason, Dr. Kifuji kept writing more and more prescriptions whenever Carolyn or Michael would complain about Rebecca’s behavior.  Michael was convicted of first-degree murder and got life without parole; Carolyn was convicted of second-degree murder and got 15 to life.

Shortly after Rebecca’s death, Dr. Kifuji entered a voluntary agreement with Massachusetts’ Board of Registration in Medicine to stop practicing medicine.  But, in September 2009, after the grand jury failed to indict her, Dr. Kifuji was allowed to practice psychiatry again.

This past week, Tufts medical center settled with Rebecca’s surviving siblings for the $2.5 million policy limits.  Dr. Kifuji is still practicing psychiatry.

These facts are crazy.  Although Michael and Carolyn might well have found another reason to murder Rebecca, entitlement fraud bugs me in particular because I don’t believe in these programs.  The government robs, i.e., taxes,  its citizens and then uses the loot to pay social workers, psychologists, and other assorted bureaucrats to treat kids who often don’t even need the treatment, e.g., Rebecca, and to support freeloading sociopaths, like Michael and Carolyn. Government also gave Dr. Kifuji a medical license, took it away,  then gave it back again — an enormous waste of money with each transaction, but steady work for the Board of Registration in Medicine. Tufts denies all wrongdoing while throwing $2.5 million at the problem to make it go away.  I hope Tufts is at least taking a closer look at prescribing practices of its staff.

Unfortunately, these problems defy any practical solution.

Glenn L. Goodhart, M.D., J.D.

6065 Roswell Rd.

Northside Tower
Suite 410
Sandy Springs, GA 30328

Phone: (404) 255-3282

Toll Free: 866-959-2148

Addendum to The Holy Trinity

LewRockwell.com just published an interesting article about narcotic use in the United States prior to the 1906 Pure Food and Drug Act. http://www.lewrockwell.com/huebert/huebert35.1.html