Sen. Durbin Demolishes Republican Plan For Medical Malpractice “Reform”

Yesterday’s six hour “health care summit” between President Obama and Congressional leaders had its share of wonkish moments about interstate regulation of health care insurance. But it also featured a barn burning speech by Senator Dick Durbin about the Republicans’ plan for so-called medical malpractice “reform.”
Senator Durbin, himself a former medical malpractice lawyer, both on the defense side and the patient side, hammered home on several points that bear repeating because they are so surprising to most people.

  • Even without new laws capping damages, medical malpractice lawsuits are dropping off dramatically. According to a study by the non-profit Kaiser Foundation (established by Henry J. Kaiser, the man who invented HMOs), the number of paid medical malpractice claims has declined by 50 percent over the last two decades. And between 2003 and 2008, the total amount paid out for medical malpractice claims – across the entire United States – was cut in half, from $8 billion to $4 billion.
  • According to the Congressional Budget Office, the Republican plan for medical malpractice reform will save $5.4 billion dollars a year (out of a health care budget that is $2.5 trillion). But those savings will be offset, in whole or in part, by new costs: the cost of the deaths of people who are killed by medical malpractice reform. See, medical malpractice reform will make doctors feel a little bit more insulated from legal liability for their actions and, therefore, will make them a little bit more careless. It’s what economists call “moral hazard” – the excess risk that people take when they are not fully exposed to the risk of their actions. The Congressional Budget Office estimates that the extra careless by doctors will result in additional 4,800 medical malpractice deaths a year. That’s on top of the 100,000 deaths that the Journal of the American Medical Association says are caused by medical malpractice annually.

I also enjoyed Sen. Durbin’s singling out Dr. Atul Gawande for praise (some of Dr. Gawande’s research on medical malpractice reform was previously blogged about here). Dr. Gawande’s new book The Checklist Manifesto is about four books down on my nightstand.
But enough rehashing Senator Durbin’s speech. You need to watch his knockdown of the Republicans for yourself:

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The Tort Reform Crowd Thinks This Was A Frivolous Lawsuit

Reading the tort reform blog Pointoflaw.com, I came across a link captioned: “‘Ford failed to warn seating unsafe for obese persons’ suit fails.” Sounds pretty frivolous, right?
I followed the link to Abnormal Use, a corporate defense blog, which has the virtue of being intellectually honest, unlike Pointoflaw. There I got the whole story.
It wasn’t just some overweight person who was suing Ford for failure to warn a chair might collapse under her weight.
The plaintiff in the case was a 300 pound woman driving a Ford Explorer that was rear-ended by another SUV at the (relatively low) speed of 30 mph. The impact of the accident caused her seat to collapse backwards. The accident also left her a paraplegic.
Ford hadn’t tested or designed the seats for anyone above 220 pounds. Now here’s a little graph that I just found through a simple google search that shows about 5-10 percent of men are in the 220 pound range. Yet Ford didn’t bother testing above 220 pounds.
Adult Male Weight.gif
And this poor woman wound up a paraplegic in a 30 mph accident. Sound frivolous now?
Yet, according to the blog post, the trial court entered a directed verdict against her on her failure-to-warn claim and didn’t even let that claim get to the jury.
I assumed that this woman’s failure-to-warn claim was not her only claim and that she also brought breach of warranty claims against Ford. I was hoping that she managed to prevail on one of those other claims. I went to the (unreported) decision on Westlaw. It appears the other claim did make it to jury and that the jury found against her.
I have a great respect for juries and jury verdicts so I’ll leave alone the fact that the jury found against her on a strict liability standard that should’ve been unfavorable to Ford.
But the online reporting about this case illustrates how the media stir up worries about frivolous lawsuits.
This wasn’t an overweight person who sued Ford because the seat collapsed under her weight and she fell on her butt. This was a woman who was rendered a paraplegic, in part, because Ford didn’t test its seats above a weight range within which some ten percent of the adult male population falls. And she wasn’t suing Ford for failing to include a warning label on the chair saying, “If you’re too heavy, this seat may cause injuries.” Her failure-to-warn claim was just one of the legal theories she pursued (her claim for breach of the warranty of merchantability was much stronger).
From a societal perspective, cases like these should really boil down to: Who should bear the cost? As a paraplegic, this woman will require millions of dollars in medical care for the rest of her life. Who should bear the cost of that? We, the taxpayers, or Ford, a company that profits from a car seat that it never bothered to test at 30 mph with a dummy weighing more than 220 pounds? If Ford has to bear the cost do you think that maybe next time they might design a better seat?

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FDA Issues Warning To Kellogg Over Listeria Bacteria At Eggo Plant

The consumer protection blog, WalletPop, reports on the Food and Drug Administration’s warning to an Eggo waffle plant about listeria bacteria contamination.
This is not the first problem that Eggo has had with listeria. Last summer, Eggo had to recall buttermilk waffles that were manufactured at the same plant because of fears of listeria contamination.
Consuming food contaminated with listeria bacteria can lead to serious illness or even death. One University of Florida study estimates that the mortality rate of those infected with listeria is about twenty-five percent.

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Are Medical Malpractice Lawsuits To Blame For The High Cost Of Healthcare?

In June, Boston surgeon and man of many parts, Atul Gawande, published an article in the New Yorker magazine entitled: “The Cost Conundrum: What a Texas Town Can Teach Us About Health Care.” The article seized the attention of President Obama and other policymakers, leading President Obama to highlight the article in his June address to the American Medical Association.
This week the article attracted new attention: a critical piece in the New York Times and a follow-up New Yorker blog post by Gawande, rebutting the Times’ piece.
In light of the renewed coverage of Gawande’s piece, it’s worth revisiting the original article in case you missed it. The original article attempted to address a puzzle: if you look at Medicare data, McAllen, TX has the nation’s second-highest Medicare expenditures. (The leader is Miami, which is not too surprising).
Medicare spends $15,000 per patient annually in McAllen. About 800 miles north of McAllen is El Paso, TX. El Paso has similar demographics to McAllen but in El Paso Medicare costs run half as much – $7,500 per patient.
In addition, the healthcare in McAllen wasn’t particularly good. Some of the places with the best health care in America – Grand Junction, CO and Rochester, MN (where the Mayo Clinic is located) – spend the least on health care. (The Mayo Clinic is in the bottom 15 percent for health care costs, but among the tops in terms of results).
Gawande set out to investigate this puzzle and traveled to McAllen to talk to doctors there about why their health care cost so much. In the article Gawande took a bunch of McAllen doctors out to dinner and went around the table questioning the doctors about why their healthcare costs were so high.
One of the first villains singled out by the doctors was medical malpractice lawsuits. They were driving up the costs, the doctors said.
Dr. Gawande replied that this made no sense: six years earlier, Texas had adopted so-called medical malpractice reform legislation that capped pain-and-suffering awards at two hundred and fifty thousand dollars. The doctors at dinner with Gawande admitted that, because of the change in medical malpractice law, the lawsuits doctors faced had gone down “practically to zero.”
I’ll spare you the rest of Dr. Gawande’s dinner with McAllen doctors and skip to Dr. Gawande’s findings upon leaving McAllen. Health care costs had gotten so out-of-control in McAllen because a certain culture had taken hold. Doctors had begun to see themselves as businessman, instead of professionals. Gawande describes a series of doctor kickbacks in McAllen in everything from hospital admissions to home health care – kickbacks that would be perceived as unethical or at least unseemly in other cities.
Gawande suggests that part of the solution here is to change the incentives in health care: doctors who keep patients healthy should make more; let’s give doctors a financial incentive to engage in preventative care.
Another theme from Gawande’s article that bears emphasis is the surprise that McAllen doctors and hospital executives display when informed of the statistics about McAllen health care costs. Time and again, Gawande confronts doctors who were shocked to discover that McAllen was so much more expensive than other cities. Even hospital executives – the bean counters whom you would expect to know such figures – professed ignorance about how much Medicare was spending in McAllen.
Gawande explains that while hospital executives generally have a good grasp on data like their profitability, their market share, etc., they are ignorant of the “big picture” of health care costs in their city or county.
I think it’s this kind of ignorance about costs that drives doctors’ complaints about medical malpractice lawsuits. No one likes to pay an insurance bill. It seems like a nuisance cost, since most people get nothing out of their insurance policy (other than peace of mind). So doctors hone in on this cost and assume it’s important in the “big picture” of health care costs.
The result is terrible medical malpractice “reform” legislation like you see in Texas, legislation that believes the best approach to cutting health care costs is sticking the unfortunate few who are victims of medical malpractice with the bill for us all.

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Can An Injured Olympic Athlete Sue The Olympics?

The Wall Street Journal’s law blog featured a discussion today of the legal rights of the family of Nodar Kumaritashvili, the young Georgian luger who died in an Olympic practice run last Friday from head injuries sustained when he and his sled flew over a low wall coming out of a sharp turn on the luge course. Many have blamed the course for his death, noting how the course was apparently designed for maximum speed (in order to help one of the lugers set a new world record) and how the wall on the side of the luge track should have been higher.
But even if the International Olympic Committee is to blame for Kumaritashvili’s death can they be held legally responsible? That’s a question of Canadian law of course. But let’s assume that the Winter Olympics had been held in Boston, Massachusetts. What would the Kumaritashvili family’s rights be then?
The answer would turn upon a lot of the same legal doctrines raised in the Wall Street Journal post. First, there would be questions about Kumaritashvili’s assumption of risk. Under Massachusetts law, athletes who participate in sports are generally assumed to have agreed to the risks of injuries inherent in the sport and therefore to have waived their personal injury claims. In order to overcome the assumption of risk doctrine under Massachusetts law, Kumaritashvili’s family would have to show some sort of unusual risk posed by the track’s design.
Furthermore, as noted by the specialists in the Wall Street Journal article, the fact that the Olympics raised the wall that Kumaritashvili flew over as a result of his death, cannot be used against them as evidence of their negligence. Massachusetts law has the same rule regarding so-called “subsequent remedial measures,” now neatly summarized in Section 407 of the Massachusetts Guide To Evidence.
Another issue, one not raised by the article, would be the issue of contributory negligence. Did Kumaritshvili himself make any mistake? Did he oversteer? If Massachusetts law applied to the facts of the case and a jury found that the luger was more than 50 percent to blame for the accident, the jury would be instruct not to award the luger anything. (Of course, a good plaintiff’s lawyer could make a lot of arguments against the application of the rule – e.g., the plaintiff’s contributory negligence was not the cause of his injury, and a million others).

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Are You Risking Food Poisoning By Ignoring Expiration Dates?

In today’s Slate is an article by Nadia Arumugam titled: “Ignore Expiration Dates: ‘Best by,’ ‘Sell by,’ and all those other labels mean very little.” While I might disagree with her about how tasty expired food is, the last paragraph of the article contains a lot of wisdom when it comes to freshness labels and food safety:
“Expiration dates are intended to inspire confidence, but they only invest us with a false sense of security. The reality is that the onus lies with consumers to judge and maintain the freshness and edibility of their food–by checking for offensive slime, rank smells, and off colors. Perhaps, then, we should do away with dates altogether and have packages equipped with more instructive guidance on properly storing foods, and on detecting spoilage. Better yet, we should focus our efforts on what really matters to our health–not spoilage bacteria, which are fairly docile, but their malevolent counterparts: disease-causing pathogens like salmonella and Listeria, which infect the food we eat not because it’s old but as a result of unsanitary conditions at factories or elsewhere along the supply chain. A new system that could somehow prevent the next E. coli outbreak would be far more useful to consumers than a fairly arbitrary set of labels that merely (try to) guarantee taste.”
It’s true: while improper food preparation at home or in a restaurant can cause food poisoning, the most virulent forms of food poisoning are caused neither by domestic food preparation or food that has spoiled – the worst forms of food poisoning originate at the factories. If a product is OK when it makes it to your grocer’s shelf, it probably won’t do much harm to you, even if you consume it past a “sell by” date. But if a product has a problem before it reaches your grocer’s shelf, you’re probably facing a serious case of food poisoning.

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Follow-Up On “Semper Ride” Motorcycle Safety Film

Dave Hudacsko, part of the team responsible for the “Semper Ride” motorcycle accident film that I blogged about here, saw my blog post about the movie and reached out to me to let me know that the film has a website – http://www.semperride.com – and that, pending final approval from the Marine Corps, you’ll be able to watch a lot of the film and see other features on the website.
The film’s target audience is young Marines – too many of whom are dying in motorcycle accidents – but it should also appeal to any young male motorcycle rider you know who’s convinced of his own invincibility and certain that he is too good a rider to ever have a motorcycle accident.
I think anyone interested in preventing motorcycle accidents can give a giant “Hoo-rah!” to that.

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FDA Announces Effort To Reduce Radiation Overdose Medical Malpractice

In my January 25 blog post, I discussed a phenomenon that should be of concern to patients in Massachusetts and elsewhere – the prevalence of medical malpractice involving radiation overdose.
This week, the Food and Drug Administration announced its “Initiative to Reduce Unnecessary Radiation Exposure from Medical Imaging.” The initiative will focus on two goals: 1.) insuring the medical necessity of any imaging procedure and 2.) optimizing the amount of radiation necessary for each procedure.
Over the past two decades, Americans’ exposure to ionizing radiation has nearly doubled. This increase in radiation exposure is largely attributable to exposure from CT scans, fluoroscopy and nuclear medicine. According to one study, the CT scans performed in the United States in 2007 alone could lead to 29,000 additional cases of cancer down the road.
It will be interesting to see how successful the FDA is in persuading the medical profession to use medical imaging only when necessary, especially in light of how profitable such procedures are for hospitals.
The corporate defense blog Mass Tort Defense has more on this story.

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More Than A Dozen Massachusetts Consumers Suffer Salmonella Poisoning In Outbreak

Recently, the United States Department of Agriculture instituted the recall of 1,240,000 pounds of Italian sausage manufactured by Rhode Island-based meat packing company, Daniele International, after discovering that a sample of their black pepper salami contained salmonella.
On Wednesday, the Centers for Disease Control announced that, between July 2009 and the present, approximately 225 people in 44 states have been infected with a particular strain of salmonella, Salmonella Montevideo. Thirteen Massachusetts consumers have been infected with Salmonella Montevideo during that time. Some people believe that at least some of the Salmonella Montevideo episodes can be linked to Daniele International’s black pepper sausage.
Here is a CDC map of the outbreak:
CDC Salmonella Outbreak.jpg
Today, the Associated Press reports that a Chicago man, who suffered salmonella poisoning, has filed a lawsuit against Daniele International and two of Daniele’s pepper suppliers, saying that they failed to take steps to prevent the outbreak.
Salmonellosis, the type of food poisoning caused by consuming salmonella-tainted food, typically produces symptoms such as fever, nausea and cramping. However, in children, the elderly and those with weakened immune systems, salmonellosis can be fatal.
We will keep you updated on this recall and further lawsuits against Daniele International.

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