# Why is it....



## Wayfarer (Mar 19, 2006)

Why is it, whenever you have a lawyer or member of his/her family as a customer, whenever the slightest bump in the road occurs they remind you that they are a lawyer? My thought is they are trying to give you a veiled threat that litigation could result....which for me, nine times out of ten it does.

I am seriously considering not accepting further customers that either are attornies or have offspring that are attornies. What was it The Bard said?


----------



## crs (Dec 30, 2004)

This will make your day, Wayfarer. A lot of times when journalists get tired of the pay and the odd hours, they enroll in law school.


----------



## Wayfarer (Mar 19, 2006)

crs said:


> This will make your day, Wayfarer. A lot of times when journalists get tired of the pay and the odd hours, they enroll in law school.


Actually, if I was not pushing 40, I would do the same thing myself. However, I am just not the litigeous type so I have so far refrained from the profession. If I were the suing type, I'd have had a clear one in my undergrad for sexual discrimination. Sometimes it really does not pay to be a true conservative, as I just sucked it up and went on to be successful.


----------



## pt4u67 (Apr 27, 2006)

Two trial attorneys are walking down the street. A gorgeous blonde woman passes them and the one looks to the other and says "I'd really like to screw her" to which the other replies "out of what?".


----------



## Wayfarer (Mar 19, 2006)

pt4u67 said:


> Two trial attorneys are walking down the street. A gorgeous blonde woman passes them and the one looks to the other and says "I'd really like to screw her" to which the other replies "out of what?".


I think that captures the spirit of today's trial attornery perfectly 

I would like to put a disclaimer out that this is not to bash trial lawyers...but I would be lying. If I ever became an attorney the only cases I would take would be to defend medical lawsuits.


----------



## A Questionable Gentleman (Jun 16, 2006)

Wayfarer,

I'm not sure what it is that you do, but I'm a lawyer and I seldom, if ever, remind anyone of the fact, especially a vendor with whom I have some sort of issue. It seems more effective to work out issues as business people rather than with some sort of veiled threat.


----------



## Wayfarer (Mar 19, 2006)

A Questionable Gentleman said:


> Wayfarer,
> 
> I'm not sure what it is that you do, but I'm a lawyer and I seldom, if ever, remind anyone of the fact, especially a vendor with whom I have some sort of issue. It seems more effective to work out issues as business people rather than with some sort of veiled threat.


Well I wish there were more lawyers like you. I am in healthcare and do not want to get more particular than that as I am a fair size fish in my local small pond. Between extortive attorneys and ever increasing burdensome regulatory issues, I am starting my Ph.D. in 2007 and getting out in 5-7 years. Good luck America on certain health care issues is all I have to say. Baby Boomer trial attorneys are gonna have a rude awakening when they retire and they are going to have to pay a steep premium as no one will want them for patients, both for possible future litigation and for the blood sucking they did in their careers. Really good luck if you were a malpractice attorney.


----------



## A Questionable Gentleman (Jun 16, 2006)

Wayfarer,

Healthcare does go some way to explaining your feelings. I've never actually mentioned my profession to a doctor or other healthcare provider for my family unless they've asked what I do. Last week, I took my son in for an ear infection. His normal doctor was away and he was seen by someone covering her practice. I must have looked an unusual sight in my seersucker suit and bow tie. At the end of the examination and probably prompted by my wardrobe, she asked what I do. I replied and we briefly chatted about that. From my clothes, one wonders if she expected me to reply, "Circus clown.":icon_smile: 

I'm not a plaintiff's lawyer, though I did clerk for such a firm while in law school. My sympathies are, by nature, for the defense, but my experience has taught me that the other side often has a valid point as well. 

At present, healthcare malpractice insurers are probably overcharging by an incredible amount. Recent tort reform in Pennsylvania (in the form of damage caps and venue rules) should have had a rather dramatic impact on premiums, but it has not. Reform efforts seldom look at this aspect, but they should.

I would also suggest (and in a way that I hope is not perceived as hostile to healthcare professionals) that more internal policing of the professions would go a long way to reducing liability issues. Sure, you can never tell who will get sued, but a very small percentage of doctors are responsible for the vast majority of malpractice actions and most defendants are repeat fliers in the court system. Find a way to pull their licenses and everyone benefits.

So I'm not just offering a critique of the other two corners of the med-mal triangle, there are surely some real bastards in my profession.

I would think that a healthcare professional who declines to take an attorney as a patient would have to seriously consider the ethics of the decision. To play devil's advocate (perhaps, in your view, there is no other kind ) isn't such a practice irreconcilable with the Hippocratic Oath?


----------



## DaveInPhilly (May 16, 2005)

If you are seriously considering law school, do not let age discourage you. Quite a few of my classmates were significantly older than I am, many were older than my parents, and several had grandchildren already. If it’s something you want to do, it surely is something that can be done. 

As a (very) young lawyer (I am a lawyer right, just not licensed yet?...anyway) I have little to defend. But as a student of economics I think the current "crisis" in medical malpractice insurance premiums can be easier understood by looking at the economics of it all, rather than simply blaming trial lawyers. Insurance can be a very profitable business, with auto insurance being a near perfect model, lots and lots of claims that are relatively small and it being fairly easy to predict accurately the cost of a claim. While med mal insurance is just the opposite, few claims, too few to be able to make any accurate forecast, that have catastrophically high costs. 

Combine that with an industry that is relatively easy to enter and exit, with little to no personal liability thanks to corporate protections, you have a powder keg. These companies have no really good way to predict which Docs are good risk, and which are not, so what you end up with is a cycle - new companies see others are profitable, enter the field, acquire a bad book of insureds, get hit with one or two big losses, go under, and leave the rest of the industry to clean up. This sends rates up. Which in turn yields higher profits for the surviving companies, which gives some new up and comer the idea to enter the market, and the cycle starts all over again. 

I am not saying that this is the sole cause of the problem, certainly unscrupulous attorneys are partly to blame, as are the lack of significant regulations within the field, too much of an old boys club if you will. 

My $0.02.


----------



## Wayfarer (Mar 19, 2006)

Dave:

I do not blame trial lawyers for all ills in the system, including the cost of medical malpractice (returns on investments insurance companies make also affect premiums). What I blame them for is "defensive medicine" that everyone is forced to practice. What I blame off-spring attorneys for is I must give thought to litigation risk and discharging a patient from my services vs. simply focusing on what is right for the patient. What I blame trial lawyers like John Edwards for is making tens of millions off lawsuits based on hype and bad science. 

To Questionable: far reach of the Oath. The only way that would hold water was if there was no other practitioner available, which is almost never the case. And even then, it happens. Look at the expectant mothers in southern Ontario that must often seek US delivery suites due to the fact Ontario OBs do not want new patients at times due to revenues generated vs. cost of malpractice. When I was in the Windsor/Detroit area in the 1990s, there was a set of LDRP suites in Hutzel Hospital everyone referred to as "The Canadian Club" as it was full of Canadian mothers lacking a Canadian OB.


----------



## DaveInPhilly (May 16, 2005)

Wayfarer said:


> Dave:
> What I blame off-spring attorneys for is I must give thought to litigation risk and discharging a patient from my services vs. simply focusing on what is right for the patient.


Well, there are those who would suggest that such a thought process, a fear of litigation if you will, is good for the practice of medicine. It amounts to a policing of doctors to an extent that internal peer review fails to go.

In theory I agree. I would much rather the surgeon called in to perform emergency surgery on me to have a thought such as, "maybe I shouldn't have that extra martini while on call because some lawyer might find out". I understand that is somewhat of an unrealistic example, but it illustrates my point.

I do agree with your point, that where this logic fails, is that a fear has been instilled in honest, competent doctors that they will be sue simply for doing their job as they see fit, but I think that (1) those fears are probably unwarranted in the 99 out of 100 cases, and (2) as AQG already mentioned, states are passing tort reform and med mal statutes that are severely limiting the ability of a lawyer to bring a frivolous law suit. For example in PA, one can not bring a med mal suit until a licensed PA Doc signs off that there is an actual claim.


----------



## Trenditional (Feb 15, 2006)

I will agree, the ambulance chasers have given a bad name to lawyers, but just as corrupt police officers have given a bad name to law enforcement and unethical doctors giving the medical profession a bad name. We truly have become an overly letigious society and no one wants to take responsibility and be accountable for their own actions.

Not all lawyers are bad as are police officers and doctors, but lately each group has sure had their share of negative perceptions, because of the actions of a small few. I do believe there is some good in the awarness today as opposed to years ago. At the opposite end of the spectrum, there have been medical patients who have received significantly less than acceptable treatment as have people who have dealt with police officers. The law suits should help maintain an even keel.

I think right now, we are in a time at the far end of the liability scale. We've taken discretion away from everyone, because of the actions of a few. I know too many medical personnel and law enforcement personnel, who don't look outside the "rule book" because they fear the risk for personal liability. Many times the right decision is not the right answer in the book.

The worst case of judicial "What the F?" I've personally experienced lately is from a family law case....
Husband and wife divorce, with 1 son between them (I personally know the wife, I've met the husband). Husband is ordered to pay child support. Wife remarries and has another child. Wife's attorney takes husband back to court, claiming the new child is a burden on the new family and requests that husband pay more child support for their son. THE JUDGE AGREED AND ORDERED THIS!!!!

This I just don't understand. The wife still brags about it.


----------



## jackmccullough (May 10, 2006)

There are a couple of problems here.

One is that only a tiny percentage of patients who are injured by medical malpractice, like in the single digits, ever sue. The problem is not that too many patients are compensated for their injuries, but that too few are.

Another is that the total cost of all malpractice insurance (that's everything that goes to pay injured plaintiffs, everything that goes to their lawyers, everything that goes to the insurance company lawyers, and everything that goes to administration) is only a tiny fraction of the money we spend on health care in this country. It simply doesn't add up to enough to make an appreciable impact on the cost of health care.

Another is that doctors and insurance companies should love the contingent fee system. It operates as a huge disincentive to lawyers to bring spurious, or even questionable, cases. Who are you to call for caps on what plaintiffs' lawyers are paid when there are no caps at all on what the insurance company lawyers get? In case you aren't aware of it, the insurance companies have way more fire power to bring to the table than the plaintiffs' lawyers.

Finally, I wish you weren't telling us that you would do something as unethical as provide unnecessary tests or other services, and charging the patients and their insurance companies for them, but it sounds as though you are.

Time and again, the tort system has been shown to be the most effective incentive to improve safety practices in numerous industries, including medicine. It's understandable why the insurance companies would want to shut it down, but it's bizarre that they can convince the public that they would be better off when they can't get redress for their injuries.


----------



## Wayfarer (Mar 19, 2006)

jackmccullough said:


> There are a couple of problems here.
> 
> One is that only a tiny percentage of patients who are injured by medical malpractice, like in the single digits, ever sue. The problem is not that too many patients are compensated for their injuries, but that too few are.


Okay, you quoted Snatch to me and I thought maybe you were an okay guy. Now I am pretty sure you are deluded. Do you really think that only those that sue get compensated? Do you really think even 50% of those that are compensated should have been? I am sure you believe there are all these evil practitioners and administrators laughing up the pain and suffering their greed caused, but that's just delusional.


jackmccullough said:


> Another is that the total cost of all malpractice insurance (that's everything that goes to pay injured plaintiffs, everything that goes to their lawyers, everything that goes to the insurance company lawyers, and everything that goes to administration) is only a tiny fraction of the money we spend on health care in this country. It simply doesn't add up to enough to make an appreciable impact on the cost of health care.


Again, your thinking is far, far too simple. Any idea how much those "unethical" tests, as you deem them, cost the system? I will not even get into other issues with you, as I already know your political leanings and I am sure you will have no problem sticking a PEG in an E/S Altz patient or doing an ORIF on them when they fx a hip due to rolling out of the bed that has no side rails due to the OBRA laws liberals put into place, all at the tax payers expense. Oh yeah, and that hip fx due to bed roll from the bed with no side rails mandated by laws crammed through by liberals....prime law suit.


jackmccullough said:


> Another is that doctors and insurance companies should love the contingent fee system. It operates as a huge disincentive to lawyers to bring spurious, or even questionable, cases. Who are you to call for caps on what plaintiffs' lawyers are paid when there are no caps at all on what the insurance company lawyers get? In case you aren't aware of it, the insurance companies have way more fire power to bring to the table than the plaintiffs' lawyers.


One little problem with your tirade...could ya please point out when I called for caps? "In case you aren't aware of it," I didn't. And you would think the contingent system would do that, but it doesn't. All practitioners and adminstrators are running scared, we all know that the total IQ of most jury pools is 50 and if you put a big bloody picture in front of them, the cash flows.


jackmccullough said:


> Finally, I wish you weren't telling us that you would do something as unethical as provide unnecessary tests or other services, and charging the patients and their insurance companies for them, but it sounds as though you are.


I do not even know where to begin. Please, first define for me, an "unnecessary test". If it is your loved one, do you want to be "pretty sure" or do you want to be "absolutely sure" even if an invasive test is required? And GOD FORBID the invasive test isn't ordered and there is the SLIGHTEST chance it would have shown something, 'cause there's some papers being served.



jackmccullough said:


> Time and again, the tort system has been shown to be the most effective incentive to improve safety practices in numerous industries, including medicine. It's understandable why the insurance companies would want to shut it down, but it's bizarre that they can convince the public that they would be better off when they can't get redress for their injuries.


Let me guess who in this thread is a blood sucking slime licking trial lawyer?

BTW, I am not a doctor, I am a former PT that got an MBA and I am now an executive. Sorry if I sound like I take this personal, but IT IS PERSONAL TO ME! 99.99% of us all care about patients above all else but we are all running scared of the blood suckers. Just Tuesday, a speech therapist friend of mine was served papers in an aspiration pnuemonia case. The family insisted on feeding a "silent aspirater" against medical advice and the patient ended up on a vent due to her aspiration. We all know it was the food the family gave the patient, as a bronchostomy pulled up a piece of the sausage they fed him against medical advice. However, this poor girl was in my office in tears, being named in this law suit as the speech therapist that "should have prevented" this. Riddle me that one.


----------



## jackmccullough (May 10, 2006)

Wayfarer said:


> Okay, you quoted Snatch to me and I thought maybe you were an okay guy.
> 
> Let me guess who in this thread is a blood sucking slime licking trial lawyer?
> 
> 99.99% of us all care about patients above all else


"Okay guy?" Maybe, or maybe I'm just someone who can carry on a civil discussion without resorting to name calling. This is a characteristic that apparently we don't share.

I do believe that most health care professionals care a lot about their patients, but when a patient is injured because a doctor has made a mistake--i.e. has failed to perform up to the professional standard the doctor is required to meet--the doctor has committed malpractice and is liable to the patient for the damages. I know the doctor feels bad when it happens, but "sorry" doesn't pay for what may be a lifetime of care, or compensate for what may be a lifetime of unimaginable suffering.


----------



## Wayfarer (Mar 19, 2006)

jackmccullough said:


> I do believe that most health care professionals care a lot about their patients, but when a patient is injured because a doctor has made a mistake--i.e. has failed to perform up to the professional standard the doctor is required to meet--the doctor has committed malpractice and is liable to the patient for the damages. I know the doctor feels bad when it happens, but "sorry" doesn't pay for what may be a lifetime of care, or compensate for what may be a lifetime of unimaginable suffering.


I feel the same way about negligent doctors. However, that is not what it is about today. Look at how John Edwards made his 1/2 a billion or so. Go do a little work and see what's happening in some states such as Florida.

I think more lawyers need to get sued for bad legal advice. I also think these cases should be taken on a contingent basis, uncapped rewards and attorney fees. I think lawyers should come to feel exactly how people in the medical field feel.

Edit: and no comments on the case against the SLP?


----------



## Wayfarer (Mar 19, 2006)

https://www.washingtontimes.com/national/20040816-011234-1949r.htm

A small quote of Mr. Edward's fine work in the area of medical malpractice. And keep in mind, this was the guy that vowed to bring "meaningful reform" to medical malpractice. I can only imagine what this meant.



> One of his most noted victories was a $23 million settlement he got from a 1995 case - his last before joining the Senate - in which he sued the doctor, gynecological clinic, anesthesiologist and hospital involved in the birth of Bailey Griffin, who had cerebral palsy and other medical problems.
> *Linking complications during childbirth to cerebral palsy became a specialty for Mr. Edwards. the courtroom, he was known to dramatize the events at birth by speaking to jurors as if he were the unborn baby, begging for help, begging to be let out of the womb. *
> "He was very good at it," said Dr. John Schmitt, an obstetrician and gynecologist who used to practice in Mr. Edwards' hometown of Raleigh. "But the science behind a lot of his arguments was flawed."
> In 2003, the American Academy of Pediatrics and the American College of Obstetricians and Gynecologists published a joint study that cast serious doubt on whether events at childbirth cause cerebral palsy. The "vast majority" of cerebral palsy cases originate long before childbirth, according to the study.
> "Now, he would have a much harder time proving a lot of his cases," said Dr. Schmitt, who now practices at the University of Virginia Health System.


Yeah, them medical mal guys are noble.


----------



## jackmccullough (May 10, 2006)

Major Cases Litigated by John Edwards:
The charts below contain a selection of the multi-million dollar cases litigated by John Edwards during his legal career, including personal injury & product liability cases, medical malpractice cases, and motor vehicle injury cases.
PERSONAL INJURY & PRODUCT LIABILITY CASES
Beyond representing clients in routine personal injury cases, Edwards developed a specialty in swimming pool injury cases. In one case involving a 5-year-old girl who was disemboweled by suction from a pool drain, the jury awarded her $25M, the highest personal injury award in North Carolina history at the time.
Case Summary of Facts Case Type Result
Lakey v. Sta-Rite Industries
(Wake Co. Superior Ct., NC, 1996) 5-year-old girl was disemboweled, but survived, after being caught and suctioned by wading pool's defective drain. Despite 12 prior suits with similar claims, manufacturer continued to make and sell drain covers lacking warnings. Product
Liability $25M
settlement
Passe v. General Transport Systems, Inc.
(Wake Co. Superior Ct., NC, 1997) 850-lb. box delivered to attorney's home, fell on him breaking his back, causing paraplegia, and confinement to wheelchair. Negligence $4M
settlement
Weckbacher v. J.B. Hunt Transport
Servs., Inc.
(U.S. Dist. Ct., E.D.N.C. 1997) 33-year-old died during rescue attempt after head-on pickup-tractor-trailer collision. Settlement included worker's comp claim. Wrongful Death $3M
settlement
Buck v. Atlantic Veneer Corp.
(Carteret Co. Superior Ct., NC, 1987) Worker fractured both ankles, jaw, and skull after fall from 24-foot scaffold in defendant's plywood plant. Premises
Liability $2.3M
verdict
Morgan v. Southeast Jurisdictional Admin.
Council, Inc.
(Wake Co. Superior Ct., NC, 1988) 14-year-old girl rendered quadriplegic from neck injury resulting from improperly supervised dive into shallow end of defendants' pool. Premises
Liability $875K
settlement
MEDICAL MALPRACTICE CASES
Another specialty Edwards developed was in medical malpractice cases involving problems during births of babies. According to the New York Times, after Edwards won a $6.5M verdict for a baby born with cerbral-palsy, he filed at least 20 similar lawsuits against doctors and hospitals in deliveries gone wrong, winning verdicts and settlements of more than $60M.
Case Summary of Facts Case Type Result
Griffin v. Teague, et al.
(Mecklenburg Co. Superior Ct., NC, 1997) Application of abdominal pressure and delay in performing c-section caused brain damage to infant and resulted in child having cerebral palsy and spastic quadriplegia. Verdict set record for malpractice award. Medical Malpractice

$23.25M
verdict
Campbell v. Pitt County Memorial Hosp.
(Pitt County, NC, 1985) Infant born with cerebral palsy after breech birth via vaginal delivery, rather than cesarean. Established North Carolina precedent of physician and hospital liability for failing to determine if patient understood risks of particular procedure. Medical
Malpractice $5.75M
settlement
Wiggs v. Glover, et al. Plaintiff alleged infant's severe cerebral palsy was caused by negligent administration of pitocin, failure to use fetal monitor, or timely intervening in baby's fetal distress. Medical
Malpractice 2.5M
settlement
Cooper v. Craven Regional Med. Ctr., et al. Infant suffered severe brain damage after obstetrician failed to moderate use of Picotin after baby displayed clear fetal distress. Medical
Malpractice $2.5M
settlement
Dixon v. Pitt County Memorial Hospital
(Pitt County, NC) Birth-related injuries including cerebral palsy and mental retardation allegedly caused by obstetrician's failure to diagnose fetal distress, including umbilical cord wrapped around baby's neck prior to delivery. Medical
Malpractice 2.4M
settlement
Sawyer v. St. Joseph's Hospital Doctor prescribed drug overdose of anti-alcoholism drug Antabuse, resulting in permanent brain and nerve damage. Medical
Malpractice $3.7M
verdict
Estate of Fuller v. Mazzaglia 38-year-old female committed suicide after psychiatrist discontinued suicide watch. Medical
Malpractice $2.3M
verdict
Allen v. Bostic
(Forsyth Co. Superior Ct., NC, 1991) Doctor's delay and failure to properrly treat 45-year-old's severely lacerated foot ultimately required amputation of foot three years later. Medical
Malpractice $.6M
settlement

https://news.findlaw.com/newsmakers/john.edwards.html

Do you have some evidence that John Edwards made his money by bringing baseless litigation?

With regard to your SLP, it sounds as though she may not be at fault. I can't say for sure because I can't know what advice the family was given, as well as a multitude of other variables. If the SLP was not at fault, and performed according to professional standards, she shouldn't be held liable. She's entitled to defend herself. Being sued isn't being punished, it's the beginning of a process that is intended to discover the facts. I've had clients file baseless professional conduct complaints against me, and I've had to defend them. It's no fun, but I don't respond by trying to make it harder for clients to complain or sue negligent lawyers.

Oh yes, and since you seem to be someone who can't carry on a civil discussion, you're on my ignore list.


----------



## Wayfarer (Mar 19, 2006)

jackmccullough said:


> Oh yes, and since you seem to be someone who can't carry on a civil discussion, you're on my ignore list.


Cool. To me, that translates to: "I am one of those lawyers you are bashing and you have me nailed". Mission accomplished.


----------



## crs (Dec 30, 2004)

Wayfarer said:


> Do you really think that only those that sue get compensated? Do you really think even 50% of those that are compensated should have been?


I believe you. Insurance companies amaze me in many ways. When we moved to the suburbs from Manhattan, I suddenly needed a car. Not a good car, transportation. I saw a sign on a station wagon outside a volunteer fire department for $1,100. That's eleven-hundred. The thing looked just fine and for the most part rode OK for about a year, until my mechanic told me I might start thinking about replacing it, it was about to start having major problems. The very next day some guy in a pickup truck rear-ended me, putting a small dent in the rear but probably totaling his. Maybe a month later I get a call from the man's insurance company asking me how much damage was caused. I told them it was nothing. The woman offered me $1,000. I told her if she offered another $100, it would be exactly what I paid for the car in the first place. She said, OK, how about $500? I said, look, I don't want anything, I'm going to trade it in for a nice car in a couple weeks, anyway. She couldn't believe I was refusing money. It was one of the most bizarre conversations I've ever had. No wonder premiums are ridiculous.


----------



## odoreater (Feb 27, 2005)

Wayfarer, if you want to comfort your friend, you can tell her that most frivilous claims disappear before trial, doctors win most claims that do go to trial and even if she is found liable and loses, the money will almost certainly not come out of her pocket.

By the way, I agree that tort reform is not the proper way to address this "problem." If someone is severely and permanently injured by the negligence of a physician to the point where they are now permanently disabled, it doesn't make sense to me to say that this person should only recover some capped amount so that physicians have to pay lower insurance premiums. 

I also think that the contention that a large number of cases that are brought are frivilous is also a mistake. In fact, from what I've read, the vast majority of cases that would be non-frivolous are never brought to court and the vast majority of cases that make it through the early parts of litigation are non-frivolous. Furthermore, like I said before, physicians win the vast majority of medical malpractice cases that go to trial. All of this leads me to believe that there is something else behind the high insurance premiums that physicians are paying and all of the momentum and attention that this topic receives. My guess would be: insurance companies.

Disclosure: I recently graduated law school and my practice area is products liability defense.


----------



## Wayfarer (Mar 19, 2006)

Odor:

It is not the cost of malpractice I am even addressing here. It is how I feel the legal industry has negatively impacted the health care industry. For instance, as I said above, the vast majority of all claims never reach court. It is much easier to take a 50k shake down from an unscrupulous ambulance chaser than to defend. Defense will always cost more than 50k, plus there is the productive time lost by all in doing it, not to mention the psychic burden. I have been involved in three claims so far in my career. Two were totally frivolous and the third was marginal at best. All three were paid before any papers were filed, three successful shakedowns by blood suckers.

Mr. Holier-Than-Thou was just *aghast* that physician's would order extra tests to practice defensive medicine, however that is exactly what happens. I know this since I have P&L responsibility so utilization practices are high on my list of attention. While I attempt to mitigate it at all turns, I certainly can not blame a doc for getting burned and modifying his practice to cover his butt in one more way for that next shake down. I mean, I am willing to overlook something like a pattern of Ambien usage vs. say, temazepam, but no way am I going to allow something like lovenox vs. coumadin on a formulary. Another reason these things occurs is because of how society, through the US government, has decided to shape reimbursement. However, I will not bore people with more details, but that is what the industry has come down to.

US healthcare is capable of giving the best healthcare in the world and my access to cutting edge healthcare is much better here in Arizona than it was back when I lived in Ontario. However, make no mistake that the system is in crisis and it is not in the way usually portrayed in the media. While there are many factors I could identify, the one I picked in the OP is the negative impact of litigation. If it was really all about recompensing those that were hurt, John Edwards would not have the net worth of a South American country right now, he would have done it for much less and given the money to the injured.


----------



## 16412 (Apr 1, 2005)

Glad you showed that jackmccullough.

In this town one company fired 40 Doctors because they couldn't afford to pay the sue insurance, anymore. It is hard to believe anybody could have voted for Kerry.


----------



## jackmccullough (May 10, 2006)

odoreater said:


> Wayfarer, if you want to comfort your friend, you can tell her that most frivilous claims disappear before trial, doctors win most claims that do go to trial and even if she is found liable and loses, the money will almost certainly not come out of her pocket.
> 
> By the way, I agree that tort reform is not the proper way to address this "problem." If someone is severely and permanently injured by the negligence of a physician to the point where they are now permanently disabled, it doesn't make sense to me to say that this person should only recover some capped amount so that physicians have to pay lower insurance premiums.
> 
> ...


Careful. If you approach this question with this degree of honesty you might get thrown out of the defense lawyers' union!

Seriously, congratulations on your graduation, and always remember that it doesn't undercut your duty to your client to treat whoever you're dealing with decently and honorably.


----------



## DaveInPhilly (May 16, 2005)

Well, this thread seems to have taken a turn for the worse. Without slinging insults at members of either profession or anyone taken part in this thread, I would like to add a little more to the conversation. 

One more bit of info that survived my study of the economics of insurance and medical malpractice insurance specifically. Is that, at least in part, jackmccullough's first post was indeed correct. Very few of those actually injured and deserving of compensation even bring suit. 

Those who suffer the brunt of medical malpractice are the poor, the elderly, and those who simply do not know any better. It is unquestionable that it is the doctors who are best suited to spot episodes of malpractice, but these folks have an interest (a reasonable one at that) in keeping such information from patients. Often it is impossible for an average person to spot negligent medicine, and even when it would otherwise be obvious, if a person dies alone, with no family to question the circumstances of the death, then all we are left with is internal review to catch the mistakes, and it is fairly clear that the quality of such internal reviews are lacking. So many instances simply just go unrecognized or unacknowledged. The old saying that a doctor buries his mistakes does hold a significant amount of truth. 

I recall a Venn diagram I saw a few years ago, two circles, one representing the number of patients actually injured by medical malpractice, and one representing the number of suits actually brought. They almost totally overlapped save for a very small portion representing fraudulent claims, what was striking was how small the "claims brought" circle was compared to the "actually injured". Even more impressive was that this chart was developed by either doctors or hospitals (I forget which) in an effort to improve patient care, not lawyers.


----------



## Wayfarer (Mar 19, 2006)

I have to say, I do find it quite interesting that all the (non-sourced) studies quoted by attorneys are pretty much in direct opposition to what I have actually experienced in a decade's worth of executive level health care management and several years worth of being a practitioner. Of course this is purely anecdotal evidence, but at some point one would figure there to be some reflection of reality with the anonymous studies. As always, I live by the motto of: Never let the facts get in the way of a good theory.

I could see the poor not litigating, to some extent, when it might be valid. Even this though, I find tenuous for reasons such as the numerous TV commercials making it sound like you just won the lottery if you or a loved one develop certain conditions. If you remember my OP however, it was specifically to do with patients that either are attorneys or with an attorney for an off-spring, a very narrow demographic and one that I think any reasonable person could see as being more litigious than the general public. I am sure of course, for at least one attorney to disagree with that thought, but again, truth is what you can make a jury believe, right?

Also, I have yet to see even an attorney have the cajones to disagree with the notion that if malpractice was really all about the patient getting restitution, attorney fees would not make multi-millionares out of people like John Edwards. 

Regards


----------



## DaveInPhilly (May 16, 2005)

Let me clarify something you misunderstood from my previous post. I was not implying in anyway that the poor were less litigious; in fact it has been my experience that the opposite is true. What I meant to was that the poor, the elderly, the uneducated, etc, are often not competent to realize when they have been the victims of malpractice. Often malpractice goes undiagnosed as a mere necessary side effect. 

As an economist I am trained to study the numbers. I find it ironic when people insist upon ignoring volumes upon volumes of data, simply because it conflicts with what limited personal experience they may have. 

I also find it so ironic that you harp upon John Edwards. He is representative of very, very few lawyers. I worry that your political biases may be impacting your opinions on this topic. 

As a little bit of background I am the son of an ER Nurse. I too am a health care provider of sorts. I am a NYS Emergency Medical Technician. I have been working in some facet of EMS for almost 10 years now. I went to school (undergrad) in Albany, NY where I worked my way through school working as an EMT for the city (on contract, I wasn’t a city employee). I have seen first hand, how easy it is for mistakes to happen and to go unnoticed.


----------



## Wayfarer (Mar 19, 2006)

DaveInPhilly said:


> Well, your last post makes it clear that you are no longer interested in a rational discussion .....As an economist I am trained to study the numbers. I find it ironic when people insist upon ignoring volumes upon volumes of data, simply because it conflicts with what limited personal experience they may have.


Can you please indicate to me where, in my last post, I was less than rational? I certainly did not "insist upon ignoring volumes upon volumes of data", instead I pointed out that a) said volumes were not sourced and b) expressed an opinion that my admittedly anecdotal evidence should, at some point, start to reflect your priorly noted unsourced volumes of data. I specifically acknowledge my evidence as anecdotal to ensure I pointed out the "flawed" nature of my evidence. However, I still maintain that at some point, reality needs to reflect research or there is an obvious problem. Even if you do source your data, one must still examine it carefully because I am here to tell you, physicians really do not like to give up their practice habits to data gathering. Remember the "small area studies"? Never once have I excused docs on things, they are far from perfect but a) that is another conversation and b) _tu quo que_ as far as any fault by attorney's negative impact on the practice of healthcare.

As an economist, you surely must understand Econ 101, Day one, hour one, paragraph one, sentence one: People respond to incentives. That, IMO, is what medical mal attorneys are doing, nothing else.


----------



## DaveInPhilly (May 16, 2005)

Wayfarer said:


> Can you please indicate to me where, in my last post, I was less than rational?


Forgive me, after re-reading your post, you are right there was nothing inflammatory, I think I inadvertently read it in combination with your previous post directed at jackmccullough.

But there were a couple of jabs, you have to admit, namely:



> As always, I live by the motto of: Never let the facts get in the way of a good theory.


and



> I am sure of course, for at least one attorney to disagree with that thought, but again, truth is what you can make a jury believe, right?





Wayfarer said:


> I certainly did not "insist upon ignoring volumes upon volumes of data", instead I pointed out that a) said volumes were not sourced and b) expressed an opinion that my admittedly anecdotal evidence should, at some point, start to reflect your priorly noted unsourced volumes of data. I specifically acknowledge my evidence as anecdotal to ensure I pointed out the "flawed" nature of my evidence. However, I still maintain that at some point, reality needs to reflect research or there is an obvious problem.


Again, I apologize; it appears as if I have read your comments as more sarcastic than you appear to have meant them. If you want statistics, I believe the study that jackmccullough was referring to was one published in the mid-1980's in the New England Journal of Medicine. I am not sure of its proper title, but it is commonly referred to as "The Harvard Study", and it was a survey of major hospitals in New York.

I thought you knew of the study and were arguing against its conclusions. It's playing quite a prominent role in both the world of tort reform, and in the drama revolving around peer review and internal regulations in the country's hospital system.


----------



## Kav (Jun 19, 2005)

Stepping outside of the thread's weave, let me make an observation. I've encountered hubris from many professions; the obviously recent bootcamp graduate who DEMANDED a wartime discount from a coworker with a limp that came with the Purple heart and Silver Star in Viet Nam, The smug young couple who thought the firefighter husband's job made him a demigod after 9/11, the local corn beef and cabbage ersatz irish math teacher who looked like a cow in the abatoir when I spoke gaelic ad nauseum. This is one reason I participate in this forum. I can be be ( and in many ways am) counting pennies. But all I have to do is assemble my few halfway decent outfits that would produce howls of pain and tearing of hair ( mostly mine) by this forum, step outside and even the trophy brides on cellphones blowing redlights take pause. It's not just lawyers peeps!


----------



## Wayfarer (Mar 19, 2006)

Dave:

Oh sure, I admit I was being pointed. The crack about truth being what you can get a jury to believe though, that's a favorite saying of a criminal defense attorney I have known since high school. I also agree with everyone in this thread that said bad docs need to be punished. Hell, I go further and say they need to be removed from the field and in a much more expedited manner than currently exists. I would go even further and say that administrations that progmulgate profits at the cost of bad medicine should be held criminally responsible. However, this is all not part of this thread's thesis. 

This thread started with my OP about me being tired of attorney's threatening me and my organization when a family member comes under my care. It then expanded abit into my general rant against greedy medical mal guys like Edwards (and yes, I dislike Edwards and all people like him. Again though, another topic) that use bad science to punish good docs and then make out like they are doing something noble. Yuck, leaves a bad taste in my mouth. Also, never once did I say I was for caps on rewards. I am not even for caps on attorney's fees but please, spare my hairy butt the holier-than-thou talk about when you profit millions on a jury verdict. If it was about the patient getting restitution, one would take costs plus a much more modest mark up. Again, I am not saying to cap fees, just do not insult my intelligence and say you're doing something noble!

If anyone wants to start another thread about bad docs, I've got a ton to say about that. If anyone wants to rant on the macro health system, I have tons to say on that. It's just that this thread is not about those things nor do they excuse the unethical greedy medical mal guys that shake down health care workers and organizations.


----------



## gregp (Aug 11, 2005)

jackmccullough said:


> Do you have some evidence that John Edwards made his money by bringing baseless litigation?


I think you just listed several, including the fabricated linkage to cerebral policy and this:
(Wake Co. Superior Ct., NC, 1988) 14-year-old girl rendered quadriplegic from neck injury resulting from improperly supervised dive into shallow end of defendants' pool. Premises
Liability $875


----------



## jackmccullough (May 10, 2006)

gregp said:


> I think you just listed several, including the fabricated linkage to cerebral policy and this:
> (Wake Co. Superior Ct., NC, 1988) 14-year-old girl rendered quadriplegic from neck injury resulting from improperly supervised dive into shallow end of defendants' pool. Premises
> Liability $875


And what do you know about either the cerebral palsy cases or the pool case that leads you to conclude they were baseless? The most that can be said about the cerebral palsy issue is that a study showed that there are causes of CP unrelated to perinatal causes, and that they may be more common than CP caused by delivery errors.

With regard to the diving case I haven't been able to find a more detailed description, but it sounds as though the defendant was the operator of a public or institutional pool and failed to adequately supervise children using the pool. Note that this particular case was a settlement, meaning that the defendant chose to pay rather than go to trial. If they thought they were in the right they could have defended their actions.


----------



## Wayfarer (Mar 19, 2006)

jackmccullough said:


> With regard to the diving case I haven't been able to find a more detailed description, but it sounds as though the defendant was the operator of a public or institutional pool and failed to adequately supervise children using the pool. *Note that this particular case was a settlement, meaning that the defendant chose to pay rather than go to trial. If they thought they were in the right they could have defended their actions.*


Wrong, wrong, and also....WRONG. Totally spurious corelation. As mentioned previously, I have been involved in three cases of litigation, two were 100% bogus. However, my organization's risk management team and our insurers decided to settle due to a) the cost of defending and b) you never know what is going to happen when you go in front of a jury. Merely because a case is settled *does not mean the defendant believes they are in the wrong.* I am sure that is what all the shakedown artists posing as trial attorneys want people to believe, but it just is not the truth.


----------



## odoreater (Feb 27, 2005)

Wayfarer said:


> Wrong, wrong, and also....WRONG. Totally spurious corelation. As mentioned previously, I have been involved in three cases of litigation, two were 100% bogus. However, my organization's risk management team and our insurers decided to settle due to a) the cost of defending and b) you never know what is going to happen when you go in front of a jury. Merely because a case is settled *does not mean the defendant believes they are in the wrong.* I am sure that is what all the shakedown artists posing as trial attorneys want people to believe, but it just is not the truth.


If they were 100% bogus, why didn't you just get rid of them in pretrial proceedings like a motion for demurrer or motion for summary judgment? Maybe they were only 85% bogus?


----------



## Wayfarer (Mar 19, 2006)

odoreater said:


> If they were 100% bogus, why didn't you just get rid of them in pretrial proceedings like a motion for demurrer or motion for summary judgment? Maybe they were only 85% bogus?


Sorry bud, not a bloodsucker. I do not know the arcane stuff of the litigation process. I just know my mouthpieces and the insurance adjuster all felt it would be more economical to pay out vs. attempt litigation. Medicine is not cut and dry. One case had to do with a certain type of pressure ulcer called a Kennedy Ulcer, Butterfly Ulcer, or Terminal Ulcer. They are unpreventable (especially in an obese non-compliant elderly diabetic on steriods for COPD) in some people during the 48 or so hours before death. However, as I have said already, you put a big bloody gaping wound picture in front of a jury and they do not tend to listen to science.

I understand that the shake down artists here have a personal stake in maintaining this charade. I know I can not convince those that do not wish to be convinced, especially those that went to school for three years to be convinced truth is mutable, but it does not change reality. Also, I noticed you merely commented on the validity of the cases, you did not attempt to deny that just because a defendant settles, does not mean they believe they are in the wrong. I mean, simple economics, the economics of the shakedown bloodsucker: I want 20k to go away, it will cost a minimum of 50k to litigate. What do you do?


----------



## LotharoftheHillPeople (Apr 30, 2006)

Wayfarer said:


> I just know my mouthpieces and the insurance adjuster all felt it would be more economical to pay out vs. attempt litigation.
> 
> Also, I noticed you merely commented on the validity of the cases, you did not attempt to deny that just because a defendant settles, does not mean they believe they are in the wrong. I mean, simple economics, the economics of the shakedown bloodsucker: I want 20k to go away, it will cost a minimum of 50k to litigate. What do you do?


Any simpleton knows that accusations of guilt are not tantamount to guilt. But, any good lawyer, as Odoreater suggested, should at least try to dispose of the matter with motions to the court before he/she decides to settle - from what you say is - a baseless claim. It is not necessarily cheaper to settle a claim than to fund a defense, you never know, maybe that is what your "mouthpieces" were telling you.


----------



## Wayfarer (Mar 19, 2006)

LotharoftheHillPeople said:


> Any simpleton knows that accusations of guilt are not tantamount to guilt. But, any good lawyer, as Odoreater suggested, should at least try to dispose of the matter with motions to the court before he/she decides to settle - from what you say is - a baseless claim. It is not necessarily cheaper to settle a claim than to fund a defense, you never know, maybe that is what your "mouthpieces" were telling you.
> 
> But, any "fair-sized fish in a small pond" of course has in house counsel as any self-proclaimed important fellar would. If you do not like you potential exposure to liability, you could look for work. Until then, suck it up.


Oh no, you mischaracterize my quote......will pass on crack about lawyers being trained to do that. I am not "important." I am a mere servant of my organization, employees, and our service population. I actually believe that, how stupid am I? My role is to make it as easy as possible for my employees to do a good job and to facilitate the best possible experience for my service population.

My comment about "fair-sized fish in a small pond" was towards my recognizability within my community only counselor, not my relative merit by any means. Also counselor, you should have read the briefs I have provided, you would see I stated I am indeed taking steps to find alternative employeement in the medium term future. Until then, I am indeed sucking it up, albiet not quietly nor happily. If I had to do it all over again, I certainly would not enter health care with some stupid notion of helping people, let me tell you that. Hindsight tells me law school might have been a better choice....


----------



## LotharoftheHillPeople (Apr 30, 2006)

If I could do it all over again, I would be a tailor. 

I guess my point is, and I am not arguing that this is not also your point, there are always going to be bad apples in every bunch. There are more than a few unsavory lawyers running around. There are, however, those that truly fight the good fight. It just seems a bit conclusory to refer to lawyers in general as "bloodsuckers." I assume you are merely referring to folks that specialize in med mal, but you use the phrase rather loosely. 
Every segment of society - the good, the bad, and the ugly - joins every trade or profession. Good doctors, bad doctors; good lawyers, bad lawyers. And the good and bad are also representative of the other 96% of the working population. (I have no idea what actual percentage of the population the above two groups represent).
We should all probably just relax and write our representatives. Until then, maybe we can discuss the finer points of leather, wool, and cotton.


----------



## Wayfarer (Mar 19, 2006)

I know I started this thread, and I can see it was not a good idea. I have done nothing but fend off various law students and attorneys this whole thread, which is pretty understandable. I have tried to be forthright and honest, not pulling punches. I have agreed with every attorney here about not capping damages, attorney's fees, that there are bad doctors, etc. but none of that registered on them because I would not cough up what they wanted to hear: suing health care workers is by god noble and the only thing that keeps doctors honest.

Sorry, I am just not going to buy that. I'll buy all the other stuff above except that one thing. Funny that I can roll with all the other points, I raised many other points, but not one attorney can even *come close* to agreeing with my one central thesis. That in itself is pretty telling IMO.

However, beat up on me all you will, in the coming decades we will see who is correct about what the current wave of litigation is doing to health care. I hope I am wrong.

Edit: Lothar, you beat me to the reply. Good post and I can roll with that.


----------



## odoreater (Feb 27, 2005)

Wayfarer said:


> Also, I noticed you merely commented on the validity of the cases, you did not attempt to deny that just because a defendant settles, does not mean they believe they are in the wrong. I mean, simple economics, the economics of the shakedown bloodsucker: I want 20k to go away, it will cost a minimum of 50k to litigate. What do you do?


Didn't mean to deny that by not mentioning it. Of course, settling does not mean one is necessarily in the wrong.

I will throw some fuel on the fire though by saying that, IIRC from my Health Law class (took a lot of classes in law school related to medicine because my fiance is a pharmacist), when a doctor settles a case it goes down in a national database as the doctor being found liable for medical malpractice. Therefore, this provides a very strong incentive for a doctor not to settle any case that is remotely winable no matter what the cost because settling the case will have a negative impact on that doctor's reputation forever. This does not apply to other people involved in the medical field (e.g., it wouldn't apply to someone that does what Wayfarer does), so these people have less incentive to litigate cases because there is less sting to their reputation from settling. Just some food for thought.


----------



## jackmccullough (May 10, 2006)

I would never claim that all malpractice actions are justified, just as it would be foolish to claim that none are.

Here are some statistics about med mal cases:

Medical malpractice trials in U.S.
district courts, 1990-2003
From 1990 to 2003, plaintiffs
received monetary damages in an
average of 28% of medical malpractice
trials concluded in U.S. district
courts. The estimated median
awards ranged from $306,000 in
1994 to over $1 million in 1990,
1991, and 2003.
Note. Monetary damage awards are
estimates rather than exact award amounts.
Source: Federal Judicial Center, Integrated
Data Base (Civil), fiscal years, 1990-2003.
https://www.ojp.usdoj.gov/bjs/pub/pdf/fttv03.pdf

Federal judges don't see problem with frivolous suits
by Mark A. Hofmann
Posted on April 11, 2005 10:36 AM CST
Print this ArticlePrint this Article
E-mail this ArticleE-mail this Article
Write to EditorsWrite to Editors
Discuss Article OnlineDiscuss Article Online
WASHINGTON-Frivolous litigation is not a major problem in the federal court system, according to an overwhelming majority of federal judges who participated in a recent survey.

The survey, conducted by the Federal Judicial Center, was based on the responses of 278 federal district court judges. Seventy percent of the respondents called groundless litigation either a "small problem" or a "very small problem," and 15% said it was no problem at all. Only 1% called it a "very large problem," 2% called it a "large problem" and the rest rated it as a "moderate problem" in their courts.

See also


----------



## Chuck Franke (Aug 8, 2003)

Just an observation...

One of my best friends has been a doc for 25 years or so.

In that time he's been sued thrice, all in the last 3 years... pretty amazing for an ER doc who handles trauma.

The last suit was brought because upon examining a patient said patient indicated no history of heart problems but a severe gall bladder problem and a big fatty meal an hour before. She promptly coded and died on the table. The argument was that he did not sufficiently probe to determine if her story about her own history was true.

That one was fought and one, usually there is a simple "Give us $20K to go away" and it is cheaper than going to court and having the doc off duty for a week or two.

His malpractice insurance is around $100K now, up from $10K a decade ago.

I'm not blaming the lawyers or the insurance companies but would simply point out that when you consider what is spent on the attorneys in medical litigation and what the insurance companies make each year there is very little money left in the system to pay for medical care.

IMHO, the first steps to solving it are to create a strict standard of what can be litigated. Have a special 'grand jury' of sorts deciding whether a case can be expected to prove gross negligence. ..and make that the standard, gross negligence. Not best effort and what seemed a reasonable course of action at the time that turned out badly. Put a cap on awards. If a person is harmed then of course they should be compensated. $20Million is not compensated, that's rich. Some day it will occur to the general public that those multi-million dollar judgments are not paid by doctors or hospitals or insurance companies - they are paid by the guy who pay $250 for a couple Tylenol.

Get rid of docs who cut while drunk, get rid of docs who are supposed to rebove a mole and remove a testicle..

But let's be sure not to get rid of the docs, funny how darned reasonable their bill seems when you break something and they know how to fix it.

When i become King, this is the first thing changed.


----------



## hopkins_student (Jun 25, 2004)

What frustrates me, and in my experience most people in health care, is the idea that an undesirable outcome can catapult someone from a working class lifestyle to an "idle rich" lifestyle. Ignoring cases of criminal negligence, where I think we all agree the gloves should come off with jury awards, the awards in medical malpractice cases should be limited to the cost of lost wages and future care. Multiple million dollar awards for "pain and suffering" are bogus in my opinion. Sometimes bad things happen to good people, but that doesn't mean you now get to live in a mansion because your bad luck involved a physician.

edit: Looks like Chuck and I posted around the same time and agree.


----------



## odoreater (Feb 27, 2005)

Chuck Franke said:


> IMHO, the first steps to solving it are to create a strict standard of what can be litigated. Have a special 'grand jury' of sorts deciding whether a case can be expected to prove gross negligence. ..and make that the standard, gross negligence. Not best effort and what seemed a reasonable course of action at the time that turned out badly. Put a cap on awards. If a person is harmed then of course they should be compensated. $20Million is not compensated, that's rich. Some day it will occur to the general public that those multi-million dollar judgments are not paid by doctors or hospitals or insurance companies - they are paid by the guy who pay $250 for a couple Tylenol.


Just something I'd like to point out. Physicians set their own standard of care. The standard of care for physicians is not the ordinary "reasonably prudent person under the circumstances" standard. The standard of care is what the "average phsycian practicing in that particular community" would have done under the circumstances. Therefore, you need expert testimony from another physician to establish what the physician should have done to meet his obligations as a professional. Does that in any way alter your opinion on what the standard should be for medical malpractice?

As for the cap on liabilities, well, I sort of agree and sort of disagree. I agree that sometimes people get massive awards when they don't really deserve them. On the other hand, I don't agree with a cap. "Man, that guy who is a quardriplegic now and will never be able to play with his kids or have sex with his wife because of his doctor's negligence is so lucky to be living in that mansion." That type of thing. Sure, bad things happen to good people, but there's a difference when the bad thing is caused by your own actions or an act of God and when that bad thing is caused because somebody else wasn't doing what they were supposed to be doing.

Having said all that, I think most doctors are very intelligent and wonderful people and I admire them for the work that they do.


----------



## Wayfarer (Mar 19, 2006)

odoreater said:


> Just something I'd like to point out. Physicians set their own standard of care. The standard of care for physicians is not the ordinary "reasonably prudent person under the circumstances" standard. The standard of care is what the "average phsycian practicing in that particular community" would have done under the circumstances. Therefore, you need expert testimony from another physician to establish what the physician should have done to meet his obligations as a professional. Does that in any way alter your opinion on what the standard should be for medical malpractice?


You see, there is also part of the problem, but of course, that is not the topic of this thread. "Standard of care" is a damn nuanced thing. I mean, before HMOs, it was the standard of care to keep an elderly patient in the hospital for an entire course of antibiotics if they had pneumonia. HMO research found out that guess what? It is not pneumonia that will usually cause a fatality in this patient profile, it is a secondary respiratory infection. Want to take a stab at where the best place to catch one of those are?

Now, take this situation. First, we have people complaining, "Damn HMOs d/c'ing people early..." Also, at the time, if someone had d/c'ed and died, that would have been Grade A Prime lawsuit material, as the physician did not meet the "standard of care", which back then, was hospitalization for the course of abx. Btw, to head things off, I am not preaching the good of HMOs, I am pointing out where, in one case, they were correct. HMO early d/c is a big pet peeve of mine, namely due to the recidivism I feel it causes. However, this illustrates my point well.

Okay guys, I am not giving the field of health care a "by". We can start a new thread for all that stuff which I will happily participate in.


----------



## DaveInPhilly (May 16, 2005)

A lot has been said since I last read this thread, I have skimmed through most of it, I'm sorry if I missed something, but I wanted to say something about merit-less or baseless claims and settlement. I don't know if I am yet qualified, by folks like Wayferer, as a bloodsucker, but I am not defending myself or my chosen profession, I am just stating what I have come to learn. 

A merit-less or baseless claim will never be settled. It will never be quicker or cheaper to settle the case. As odereater pointed out, if the claim is obviously merit-less, it should be easily taken care of in the pleadings stage of the trial, and in states like PA it would never make it past the initial complaint because you would be unable to get a doc to sign off on it if there is in fact no valid claim. Trials are expensive, but if the claim is merit-less they are not so expensive that a settlement sounding in the tens of thousands of dollars is warranted. Also remember, often it is not Plaintiff lawyers who make the trial’s expensive, they have no reason to, it only eats into their “profits”. A hospital can litigate a claim with relatively little expense, if they wish, presenting only staff physicians as experts and whatnot. 

Also, more a theory that has developed in the products liability world and been made famous by the cigarette manufactures, but that is spilling into the med mal world, is that there is a trend of defendants now refusing to settle even some of the most valid of claims. They feel that it is best to go down fighting, even if it ultimately costs them more in the present, because it will ultimately discourage plaintiffs from coming forward, if they know that they have such a fight in front of them. 

What there is, I have noticed, is a gray area. Where the doc or hospital is not convinced that they actually did wrong, maybe its not even clear to the plaintiff, but don't want to take their chances that the jury won't see it there way. This is typical of a lot of CP cases. Depending on the jurisdiction, even the particular county (for example it is common knowledge in this community that you want to bring a med mal case in Philly as opposed to one of the more conservative surrounding counties like Delaware or Chester) this may have an impact in a doc's decision to settle. While that may not be the ideal state for out med mal system to exist in, I would say its a far cry form saying that merit-less suits are brought just to be settled due to the high cost of litigation.


----------



## ChubbyTiger (Mar 10, 2005)

While I agree most with Chuck and hopkins_student (not that that's never happened before), I like to just give an example of silly litigation. It's not med related but go look up the RIAA lawsuits for copyright infringement. 
The RIAA (recording ass of America) sues people who it thinks are downloading music illegally. Before filing the lawsuit, it tells those targeted that they can be off the hook for somewhere between $2,000 and $5,000, usually. Most people are either guilty and pay, or just pay at the advice of a lawyer. It can be very hard to defend these types of lawsuits for technical reasons. 
So anyway, some people are demonstrably not guilty: don't own a computer, are dead, etc. They tell the RIAA to shove off. The RIAA then files suit, forcing them to hire a lawyer and reply. They drag things out in court for a while and then drop the suit before it reaches trial. At this point, the defendant has spent much more than the initial offer of a few thousand dollars. 
OK, you do the math. Is the RIAA and its lawyers engaging in the practice of offering a settlement which is going to be less than any litigation in order to extort money from people? This obviously doesn't prove anything about the medical industry, but it does make a point about that section of the legal industry which is less-than-ethical. I think it also highlights the need for some judicial reform, such as: if you bring a civil suit and drop it (sans settlement), you're responsible for the defense costs and if you lose in court, the jury can (should often) award you the defense costs.
Of course, I alse believe that judges should follow the law as written, so I may in the minority. 

CT


----------



## jackmccullough (May 10, 2006)

If this practice took place in federal court, which it most likely did, the plaintiff's attorney would be subject to sanctions under Rule 11 of the Federal rules of Civil Procedure if there was really no legitimate basis for the suit, and the lawyer signed the complaint knowing that.


----------



## odoreater (Feb 27, 2005)

Isn't anecdotal evidence wonderful?


----------

