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
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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
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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

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The Holy Trinity

A Texas jury hit Dr. Maurice Conte,72, with a $10.1 million verdict this past week.  Michael Skorpenske, 54, saw Dr. Conte one time only on July 5, 2007 and died two days later after his encounter with The Holy Trinity.  Dr. Conte had introduced his patients to The Holy Trinity 3,800 times in just one year.

Texas juries have no actual malice towards Christians.  It’s just that Dr. Conte allegedly worked at a “pill mill” and referred to the combination of  Vicodin®, Xanax® and Soma® as The Holy Trinity.  On July 11, 2007, the Texas Medical Board peremptorily suspended Dr. Conte’s license — a day late and a dollar short as far as Mr. Skorpenske was concerned.  Apparently, everyone who walked in the door and paid the doctor’s fee received a prescription for The Holy Trinity.  Unfortunately, an occasional person stops breathing after taking this combination.

I guess most people will read this story and conclude that something should be done about these pill mills.  And, that “something” should be a crackdown by the police.  Fair enough, but I don’t see it that way.

To me, this story illustrates a failure of government at every level; the solution should be to get rid of some of the government, not have more of the failed institution.

This nation has never recovered from the Progressive Era, but two items in particular bear on this story: The Pure Food and Drug Act of 1906 and the Flexner Report (1910.)  Before 1906, any company, or any person working in his basement for that matter,  could manufacture and sell any drug to anyone in a completely unregulated market:  Anyone could walk into a pharmacy and buy narcotics.  Prior to 1910, more than 200 medical schools existed, mostly of the for-profit variety.  Soon after, about 100 of them went out of business.

There were plenty of problems in the nineteenth century related to narcotic addiction and unschooled doctors, to be sure.  But, the typical Penn Medical School graduate back then didn’t know much about medicine anyway — no one did — and the history of the Flexner Report was nothing other than an AMA-Carnegie Institute conspiracy to license and regulate non-allopathic physicians out of business in order to drive up the income of the allopaths. And, I just cannot imagine that drug violence was anything then like it is today.

I don’t know what this country would look like without drug laws and state licensure of doctors, but I am convinced that the quality of medical care would be higher, the cost of it would be lower and the amount of violent crime would be much less.

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
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New Year, Old Tort Reform

I marvel at the Republican characterization of the Democratic Party as the party of big government, and Republican self characterization as the party of limited government. True, Republicans typically adopt libertarian rhetoric whereas Democrats openly seek solace in dirigisme, but even a cursory examination of American history proves beyond doubt that the Federal government, since at least the Civil War, has expanded regardless of who occupied the White House or Congress.  Even mainstream historians, for example, are finally beginning to admit that Herbert Hoover massively intervened in the economy after the 1929 stock-market crash. But, not to worry, the belief that Hoover was a do-nothing, laissez-faire purist will not die any time soon.

I bring up the dichotomy of Republican verbiage from its statist actions to illustrate the problem of tort reform.  For years now, Republicans have done an effective job of characterizing plaintiff lawyers as agents of the devil.  We are responsible for nearly every economic problem in America.  The usually sober Thomas Sowell believes that we are responsible for the practice of “defensive medicine” at the bedside and  “junk science” in the courtroom.   Of course, Sowell merely considers us “unscrupulous;” John Stossel considers us “parasites.”  Both would like to see Congress come in and remake the judicial system into something more Godly.  What they are transparently arguing for, however, is a massive transfer of power from the judiciary to the legislative and executive branches of government.

Oh, how Republicans love to argue that government is best when it is closest to the people and that one-size-fits-all central government is inherently unable to govern.  Except for the judiciary–the one branch of government in which ordinary citizens, as jurors, are involved in day-to-day  operations.  The judiciary comes up with too many decisions that make the elite uncomfortable, so something must be done.

My harangue was sparked by an article last year posted on the Heritage  Foundation website about how rudely the Illinois Supreme Court had treated its legislature’s tort reform.  Much like Georgia in 2005, Illinois had put a cap in 2006 on the amount of money a jury could award in medical malpractice cases for pain and suffering.   Much like the Georgia Supreme Court, the Illinois Supreme Court found the cap blatantly unconstitutional. After declaring the end of the world  in the highest of high dudgeon,  the article’s author mourns the probable death from plague of his fellow citizens, as doctors flee the “Land of Lincoln.”  Not really, but I didn’t exaggerate what this author had to say by very much.  Indeed, things must very bad in Illinois for someone to invoke the name of the Saint.

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
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GTLA Holiday Siminar

The Georgia Trial Lawyers Association held its annual seminar on Friday, December 10, and it proved to be one of the most informative continuing legal education seminars I’ve ever attended.

You see, many of the presentations dealt with how to handle the lack of professionalism among opposing counsel that trial lawyers contend with every day.  At one point, one of the speakers polled the audience, “Do you think that defense lawyers are more, less or equally professional than they were 10 years ago?”  A few hands went up for more professional, a few more for equally professional but the bulk of the crowd affirmed what I have been feeling for a long time.  The behavior of the defense bar is deteriorating.

Evidence is being hidden, depositions are being disrupted, insurance is being lied about, posturing and puffery are substituted for legal argument and memes about how trial lawyers are killing the economy are fed to the media nonstop.

One of the headliners at the GTLA seminar was Jim Butler, who spoke on discovery abuse.  As the moderator who introduced him said, Jim needed no introduction.  He is arguably the most successful trial lawyer in Georgia and maybe even the rest of the United States.  He and his firm have obtained dozens of court orders over the years sanctioning defense lawyers for failing to turn over evidence.  Sometimes the lawyer and his client would rather risk taking a hit than revealing something damning that could cause more widespread damage than the particular lawsuit at issue.  With less critical information, the defense lawyer simply calculates how likely he will be able to keep the evidence under wraps.  If he thinks he can conceal negative facts throughout the litigation, he won’t turn over evidence of even marginal importance.  Either way, it literally pays for a defense attorney to lie.

My favorite presentation, however, goes to Mike Neff, who spoke on deposition abuse.  Although the topic is inside baseball, non-lawyers can appreciate the problem.  I take the deposition of a witness to learn what he has to say about the case, not what the defense attorney has to say.   Suppose I’ve had to sue two doctors and a hospital in a particular case.  Each will have his own attorney so that at every step of the litigation, it will be three defense attorneys against one of me.  I don’t mind them trying to gang up on me, after all, that’s what they are paid for and what I am paid for.  But taking a deposition can be harrowing.  If any one of the defense attorneys decides that he is above the rules, the deposition becomes difficult and if more than one of them acts unprofessionally, the deposition might as well have been canceled.

My personal conclusion is that though I have arrows in my quiver to deal with the lack of professionalism, it’s a shame I have to shoot them so often.

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
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Update of Glaucoma Cases

I recently blogged about David E. Woodward, who settled his case against the Veteran’s Administration Palo Alto Health Care System.  Mr. Woodward had never received adequate glaucoma treatment.  A letter went out to 380 veterans that they had received substandard glaucoma care, mostly related to treatment by optometrists instead of ophthalmologists.  The settlements are trickling in, and this week, LT Kennedy Jr., 68, settled for $400,000.

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