Perspective: Would “no fault” be a better way?
By Charles A. Pilcher MD FACEP
Last month I reported on the defense verdict in the case of a Bellingham woman left with brain damage as a result of a surgical complication. The case bothers me.
The patient’s injuries were major and her family devastated. Future expenses will be huge. The woman likely remains in a nursing home, and a “medical bankruptcy” would be a predictable outcome as the costs of her care mount. Her attorney did his best, but a jury agreed with the defense.
So, for the past few weeks I’ve been asking myself “Isn’t there a better way?”
Medicine is not a perfect science nor is the human body a perfect organism. Things go wrong, just as they do with car accidents and building fires, and bad outcomes will never be eliminated completely. Thus, I wonder if we are using the money paid in malpractice premiums in the best possible way. Why should only a small percentage of injured patients recover the huge majority of those funds? Could the medical equivalent of an insurance adjuster resolve these situations more equitably? For the rest of my thoughts, click here >>
Attorneys to blame for MRSA epidemic?
A study published in the American Journal of Therapeutics questions whether the MRSA epidemic (methicillin-resistant staphylococcus aureus) might be caused by physicians who defensively prescribe antibiotics where not medically indicated. The study found a direct correlation across Europe, Canada and the US between the density of attorneys in an area and the prevalence of MRSA infections. The authors also “confirmed that the vast majority of providers were far more concerned with the potential of being sued for refraining from prescribing antibiotics than for doling them out prematurely.” A layman’s summary is reported at Time.com.
Stroke patients more likely to receive tPA on the weekend. Survival unchanged.
In the continuing debate about the value of tPA in the treatment of stroke, a paper in the Archives of Neurology reports that stroke patients admitted to hospitals on Saturday or Sunday were more likely to be given a clot-busting medication known as tissue plasminogen activator (tPA). There was, however, no difference in the in-hospital mortality rate between the two groups. While investigators pondered a variety of reasons to explain this somewhat unexpected finding, they seemed to belittle a possibly obvious explanation: tPA makes little if any difference. For more on the evaluation and management of stroke, check out three “Perspectives” articles on Stroke/TIA listed in the left sidebar.
Gross or net? What damages count? “Collateral source rule” at issue in Ohio.
The Ohio Supreme Court has been asked to consider whether a plaintiff’s “damages” are the amount paid by his insurer, or the amount billed by his providers. This is a complex case involving parallel rulings, but is pertinent in malpractice claims. This challenge to the “collateral source rule” could potentially reduce the amount recoverable by plaintiffs in any personal injury suit. Key question: What is the true value of one’s services if one bills one amount but contracts to accept another?
Whose side are you on? Plaintiff attorney to defense attorney and back again
Attorney Keith Forman of Wais & Vogelstein in Reisterstown, MD, has produced a very readable list of reasons why he has returned to being a plaintiff attorney. He discusses “The Burden of Proof,” “Winning and Losing,” “The Tripartite Relationship,” “The Billable Hour,” “Reporting,” and “Your Cases Choose You.” If you have ever wondered which side is best for you, click here for some insight.
Plaintiff settles for $150,000. Jury awards $1.45 million. Does the award stand?
In a NY case extending over 13 years, the plaintiff initially prevailed. The defendant physicians appealed, the verdict was set aside, and a new trial ordered. In the third trial, the jury was still out when the plaintiff attorney, obviously anticipating a defense verdict, notified the defense attorney that the plaintiff would accept a settlement of $150,000. The court clerk told the judge of the settlement agreement, just as he received a note from the jury room that they had reached a verdict. Refusing the plaintiff attorney’s request to memorialize the agreement in open court, the judge allowed the jury to return and read their verdict: $1.45 million for the plaintiff. This resulted in another defense appeal, in which the plaintiff again prevailed. The reasoning: The defense attorney failed to speak up at the time to acknowledge the settlement, hoping apparently to “have it both ways” and either get the small settlement or a defense verdict. The full story can be read here.
Jurors’ derogatory racial remarks toward plaintiff attorney result in vacation of defense verdict. New trial granted.
In Turner v. Stime in Spokane, a new trial was granted to the plaintiff after allegations of juror misconduct arose following a defense verdict. The plaintiff attorney, of Japanese ancestry, was referred to in what the court concluded was a derogatory manner during trial and deliberations. Every minority bar association imaginable has signed on to this case as an amicus curiae. Reality check: The defendant physician’s listing on the DOL website reveals his license to be “Active on Probation” following 3 allegations of inadequate evaluation and treatment of other patients.
Most Ridiculous Lawsuits of 2009
Faces of Lawsuit Abuse conducted its annual poll and came up with this list of the top five most frivolous lawsuits of 2009:
- Neighbor sues woman for smoking in her own home
- Double-murderer sues to claim his victims’ classic Chevy pickup
- Holocaust denier sues Auschwitz survivor, alleging memoir contains “fantastical tales”
- Tourist sues hotel, claiming swimming pool got daughter pregnant
- Illegal immigrants sue rancher who stopped them on his property at gunpoint and turned them over to the Border Patrol