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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Death by Liposuction

What are the risks of liposuction?  Not many, especially when you consider that the patients who get the procedure tend to be otherwise young and healthy.  These patients are not seriously overweight, but typically seek contouring for unsightly folds of fat that resist dieting.  Unusual complications of liposuction do occur, of course, even in the best of hands, but frankly, many, if not most, liposuction mishaps are malpractice-related.  The case of Amy Fledderman is arguably the worst case of medical malpractice in a plastic surgery procedure I’ve ever heard of.

Amy died in 2001, but her story began in 1999 when she was sixteen.  At 5’5” and 128 pounds, Amy could hardly be described as obese.  On the contrary, she was athletic and had unusually large breasts, which caused her neck and back pain whenever she engaged in sports.  Richard P. Glunk, M.D. did a breast-reduction, with a good result, and the next year Amy enrolled as a freshman at Penn State.   Although an avid runner, Amy couldn’t get all the fat off she wanted, and in light of the good experience she had with Dr. Glunk with the breast reduction, decided to have some liposuction of her abdomen and under her chin.  She made a fatal decision.

During the liposuction, Dr. Glunk somehow managed to cut an artery in Amy’s neck.  She quickly became unstable.  Dr. Glunk’s anesthetist turned off Amy’s monitor after the surgery and hours of recordings were not saved. Although Amy’s mother begged the doctor to call an ambulance, he kept reassuring her for more than two and a half hours that everything was under control.  When he finally did call an ambulance, Dr. Glunk told the ambulance driver that he should arrive with the sirens and lights turned off.

It turned out that Dr. Glunk’s operating privileges at the local hospital were restricted.  At various times during the litigation, Dr. Glunk blamed Amy’s death on the ambulance crew or on fat embolism.

It took seven years to get this case to trial.  The jury hit Dr. Glunk for $15 million in punitive damages, $3.5 for Amy’s lifetime earnings, $2 million to Amy’s mother for emotional distress and an additional $5,000 for the surgical fee the family had paid Dr. Glunk, but he never refunded.

This past week, the Superior Court of Pennsylvania, which is Pennsylvania’s court of appeals, upheld the verdict, including the punitive damage award.  The Superior Court also instructed the trial court to assess additional damages on Dr. Glunk for what it saw as his contribution to the excessive delay in bringing the case to trial.

A punitive damage award requires conduct that is intentional or so reckless that the defendant showed disregard for the consequences of his actions.  Because doctors rarely act so recklessly, it is quite uncommon for a jury to award punitive damages in a medical malpractice case.   Here, it seemed like the jury became angry at Dr. Gluck because of the lost medical recordings and his failure to get Amy to the hospital as soon it was evident that the case had gone sour.

 

Article first published as Death by Liposuction 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
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The Cheapest Healthcare Money Can Buy

Vision simulation of a patient with glaucoma

Why do we buy the things we do?  Sometimes we make purchases quite rationally, being careful to weigh benefits against costs.  Other times we buy impulsively.  In any case, we generally like to think that that we have gotten our money’s worth, regardless of the price.

The same thinking should apply to our health care.  But the days when Americans simply purchased – or refrained from purchasing – their own health care ended well before most of us were born.    We  have all grown up in a system so distorted by government, and other third parties, that the norm is anything but a simple, voluntary purchase.  If we do get value for our money we feel grateful to have survived.  Frequently, we feel resentful of poor, but expensive, treatment.
Once a third party enters any transaction, the complexity of the deal rises and the likelihood of being satisfied with the result is more difficult to achieve.  After all, if I want to buy a new car, but need to borrow money to pay for it, the lender has a say in just what car I can buy.  He may decide that I can’t afford the car I really want, and I either have to compromise my desires or just continue to drive my jalopy.
The same thing happens in the delivery of medical care, but our health is put at risk instead of just our ego.  By nature, third parties want to keep their costs down to the bare minimum.  As long as we have little or no say, expect the cheapest solution that the real decision-maker can get away with.

 

David E. Woodward, Sr., 87,  had been seeing eye doctors at the Veteran’s Administration Palo Alto Health Care System for years.  In 2004,  he was diagnosed as a glaucoma suspect, but over the next four and a half years he had no treatment for glaucoma and he went legally blind.  Then, much to his chagrin, he received a letter, along with 380 others, in 2009 informing him “that some of the vision loss … may have been preventable had you received a different course of therapy.”
You see, optometrists were treating the glaucoma suspects at this Veteran’s Administration center.  Optometrists have not gone to medical school and have much less training than ophthalmologists.
Optometrists charge commensurately lower fees and often restrict themselves to prescribing spectacles.  I have no problem with optometrists or with anyone who wants to be treated by one. However, I suspect the VA was trying to cut corners rather than hire ophthalmologists to see patients like him.  In the end, Mr. Woodward didn’t want to spend the next couple of years in court, so he settled his case this week for $250,000.

Article first published as The Cheapest Healthcare Money Can Buy 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
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What’s Fair in Texas

No sooner do I write about the Arkansas Court of Appeal reversing a $100,000 verdict for leaving a sponge in someone’s belly than a Texas jury awards $4.08 million to another victim for the same blasted thing. Both of these misadventures involved cholecystectomies, i.e., gallbladder surgeries.
Dr. John Barber did a cholecystectomy on Ronald Molder at Del Tar Hospital Navarro in Victoria, Texas, a town slightly south and roughly equidistant from San Antonio and Houston.

 

Two problems occurred: Somehow the doctor left Molder’s gallbladder in place and managed to leave a sponge behind, too. According to Dr. Barber’s lawyer, there was an “abnormal mass” where the gallbladder was supposed to be. The doctor removed the so-called mass and Molder seemed to get better post operatively.

A few months later, of course, Molder was rushed back to the hospital horribly sick. He spent the next 80 days in the hospital and received $290,000 in medical bills.

The jury found Dr. Barber not liable and put the entire blame on the scrub nurse. I guess I’ll never totally understand juries, no matter how much I study them.

Del Tar’s lawyer, Ann Watson, apparently made a disastrous tactical error, however, by arguing that because Molder had belly problems before he even arrived in December, the jury should only give him “what’s fair.” One thing I do know about juries: They resent it when a defense attorney tries to blame the victim over something he couldn’t possibly control. I guess that Texas jury showed her what’s fair.

This case amply demonstrates how law varies from one region to another. Arkansas courts, as a matter of law, will not allow a doctor to shuck his responsibility for getting the sponge count correct onto a nurse. He’s captain of the ship and he goes down with the ship. I liked the way one of the newspaper’s readers put it:
Many years ago I was an Air Traffic Controller in the USAF. An old wise sergeant told me, “Make a mistake baking a pie and you wind up with a bad pie; make a mistake in your job and you just may have killed a bunch of innocent people.”

Article first published as What’s Fair in Texas 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
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What’s Happening to Hospitals?

Earlier this week, two doctors and an administrative assistant filed a  lawsuit against Santa Clara Valley Medical Center alleging substandard care at a government hospital.  I worked at government hospitals at the beginning of my career and knew how inefficient they could be, so my first impression from the newspaper article was  that patients had probably been injured because of ordinary bureaucratic ineptitude.  When I tracked down the actual lawsuit and slogged through all 73 pages of it, however, I realized that this particular hospital, although perhaps a bit worse, isn’t all that different from what passes for the private sector these days.  Medicine isn’t practiced well out of a bureaucratic structure and I suppose the practice of medicine is going to get worse before  it gets better.

Santa Clara Valley Medical Center is a public hospital owned and operated by the county.  It is a large teaching hospital with many of its own residents as well as others rotating through from Stanford.   From what I can tell, the bulk of the medical staff are county employees.

The lawsuit describes turmoil within the cardiology department, but the sort of chaos you thought was confined to kindergarten or lunatic asylums.  The assistant made some waves about what she saw as poor care, so her superiors, including doctors, flyspecked her work for technical violations of the rules so they could punish her.  Turns out she looked at her sister’s medical records–with her sister’s permission–because she had been billed for a procedure that she didn’t have.  Never mind, that’s a firing offense.  Then the assistant files a Workers’ Compensation claim for “work-related stress”  and then later one of her doctor bosses sends out a nasty email about her to everybody.  The lawsuit goes on like that for 73 pages of dysfunction and describes boorish and puerile behavior by doctors and administrators alike.  The whole thing would be comical but patients were jeopardized and careers were ruined.

I’ve seen much too much political backbiting in hospitals in recent years.  There was a time when hospitals competed with one another and the administrators competed to get the finest physicians to practice at their hospitals.

Actually, I’ve only read about those times–things were already going bad when I started practicing in 1981.  But things have gone from bad to worse during my career.  A hospital doesn’t have to compete very hard because state and federal laws allow a hospital to block competitors from moving into its catchment area.   Hospital administrators don’t much care for their doctors anymore, either.  The federal government long ago distorted the number of specialists so that every large hospital usually has a surfeit in all of the common specialties.  Why compete when three doctors apply whenever a doctor at a large hospital quits the staff?

I suspect the future will see most hospitals owned by one government or another.  And, more absurdities like the lawsuit at Santa Clara.

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Oops. I forgot something.

What happens if a physician does something that almost anyone would consider malpractice, such as leave a sponge behind during surgery? In practice, law is never entirely predictable and different states may handle the same situation differently. Law can be frustrating to those who prize logic and consistency.

Georgia law is certain about one thing in medical malpractice: No matter how obvious a case of malpractice might be, an expert affidavit must accompany a lawsuit at the time it is filed. A lawsuit can only be initiated with the sworn statement of a well qualified physician that asserts that the defendant doctor made an avoidable mistake, or to use the legalese, deviated from the standard of care. In Georgia, it doesn’t matter how obvious the doctor’s mistake was and, if a defendant doctor disputes that he made a mistake—no matter how absurd his defense may be—he will get his day in court. But, it doesn’t work the other way around. A judge has many ways to throw out an injured patient’s medical malpractice lawsuit despite its being filed with a perfectly good affidavit.

Some states still use the doctrine of res ipsa loquitor, which essentially says that if the doctor does something as dumb as a box of rocks, the patient need not attach an expert affidavit to his medical malpractice lawsuit. Arkansas still adheres to this principle, but as a recent court of appeals case explains, the res ipsa doctrine doesn’t get you very far these days.

Dr.Marc Rogers performed gallbladder surgery on Alan Sargent. Two years later, Sargent underwent a second surgery to remove a sponge that was left in his belly. He filed a lawsuit for medical malpractice against Dr. Rogers then asked the judge for summary judgment on what seemed to be a pretty obvious case of malpractice. The judge agreed, granted summary judgment on the issue of negligence and held a jury trial on the matter of damages only. The jury awarded Sargent $100,000, but Dr. Rogers appealed.

You see, Dr. Rogers said he hadn’t done anything wrong. He even submitted the affidavit of a colleague who said that it’s perfectly fine to rely on the nurse’s sponge count and besides, the sponge was left “in a relatively inaccessible region of Sargent’s abdomen,” so it would have been hard for Dr. Rogers to see it. I kid you not.

The only problem was that Arkansas had a hoary old supreme court case that pretty much described this surgical fiasco as the quintessential example of medical malpractice, and even made the point that a doctor may not slough his responsibility for getting the sponge count right onto his nurse. The appeals court had to work overtime to overturn this jury verdict and, alas, it did.

The court ruled that yes, Sargent did not need expert testimony to show that Rogers had been negligent. But, just because Sargent didn’t need to bring an expert to court and that he could rely upon the common experience of the jury, it didn’t prove that malpractice had actually been committed. Because Rogers raised an argument of fact, it would have to be up to a jury to decide whether malpractice had actually been committed. Reversed and Remanded!

Whew! I think I understand that logic, but in the immortal words of Groucho Marx: “A child of five would understand this. Send someone to fetch a child of five.”

Article first published as Forgetfullness and Medical Malpractice 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
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Spinal Tap

Sometimes I can only ask in wonderment, what was that doctor thinking?  Doctors have been performing lumbar punctures for more than a hundred years.

Naturally, a lot is known about this procedure.  A lumbar puncture can yield critical diagnostic information and it is very safe, as long as you take basic precautions.

There are only a handful of reasons that preclude performing a lumbar puncture, most of which are uncommon and every first-year medical student is taught what to look for.  So, how do you explain it when a neurologist, i.e., someone who has three post graduate years of specialty training in neurology and who probably has performed hundreds of lumbar punctures, manages to paralyze a patient doing a lumbar puncture?

Sherry Reinhart, married and in her 60’s, was admitted to The Toledo Hospital in May 2008.  During this hospitalization, Dr. Purvi Saraiya, a neurologist who is a member of Toledo Clinic, a large multispecialty group, saw Sherry and decided to do a lumbar puncture.  But, Sherry had a high level of anticoagulation, which put her at risk of bleeding from the needle that would be placed into her spinal canal as part of the procedure.

No problem.  Every doctor knows—or should know—how to handle this situation.  Unless the lumbar puncture is an emergency, just stop the anticoagulation and put the procedure off for a few days.  Dr. Saraiya went forward anyway.  In fact, according to a nurse, Dr. Saraiya stuck Sherry 15 to 20 times and drew back blood every time.  Dr. Saraiya ordered some X-rays, but then didn’t come back to see Sherry that day or the next.

Over the next few days, Sherry progressively lost sensation in her legs and then developed weakness.  An MRI was not done until 5 days after the procedure, which by that time confirmed a severe bleed that had caused permanent paralysis.  Sherry left the hospital in a wheelchair and never got up from it.

A jury just awarded Sherry and her husband nearly $4 million.  Her husband said he’d happily give every cent back if Sherry could be restored.

A corollary to my “what was the doctor thinking” question is what was the defense attorney thinking?  This case should not have gone to trial.  I suspect I know why this case didn’t settle, because cases like this one get tried every day.  Jurors have a great bias in favor of doctors and doctors win 90% of medical malpractice trials.  Anytime the facts are bad and the verdict is likely to be expensive, it frequently pays for the defense lawyer to try the case and play the odds.  But when the facts are bad, the defense lawyer has to invent new ones and hope he can bamboozle the judge and the jury.

Frankly, I’m about fed up with the name calling plaintiff lawyers have to bear. When it comes to acting unprofessionally, no one comes close to the malpractice-defense bar.  The most popular defense is a variant of the alibi defense criminals use all the time: Some other dude did it.

The malpractice-defense lawyer varies the ODD defense to: My doctor didn’t do it. Typically, the defense attorney trots out prim-and-proper faculty from Ivy League medical schools to testify that the injury was caused by the victim’s underlying disease. Thrown in for good measure is, “Such a tragedy that the plaintiff had this terrible condition. My doctor did everything he could to save that (ungrateful fill-in-the-blank) from such an awful situation, and nearly did.”  It takes a perceptive juror not to fall for that baloney.

Article first published as Spinal Tap 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
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