Maybe “Defensive Medicine” Is Simply The Kind Of Medicine You’d Want Your Doctor To Practice?

emergency_room_3.jpgI’ve blogged a lot about the claim that medical malpractice lawsuits force doctors to practice “defensive medicine” – that is, to order unnecessary tests and procedures to protect themselves in malpractice lawsuits. I’ve also blogged about empirical evidence suggesting that doctors’ performing “unnecessary” tests and procedures may be due to the financial incentives that they face: they get paid for the procedures they do, not the results they obtain.
At any rate, yesterday, in a link roundup post, the “tort reform” blog Overlawyered stated that “defensive medicine isn’t a myth” and linked to a number of news articles in support of that claim. One of the articles, by Newsweek‘s Sharon Begley, quoted an Emergency Room doctor who says that he routinely admits “low-risk” chest pain patients, “because I know at some point in my career, one of them will go home and die from a heart attack. I will admit hundreds to avoid that one death (and possible [medical malpractice] lawsuit).”
Wow, if that’s defensive medicine, please give me some of that when I show up in the Emergency Room. The ER doc believes that admitting the low-risk patients will, over the course of his career, save at least one life. But he doesn’t think it’s worth doing.
Why? If you told me that I would save one life over the course of my career, I’d consider myself, on net, to have done well. When I went to the grave, I would score myself a +1.
But this doc couldn’t be bothered to save that extra life. I guess the toil and trouble of performing all these tests whose outcomes he knows in advance (except for that one case where his gut is wrong) is too much work to justify saving a single life.
The doctor’s attitude is also contrary to the standards of professional ethics. Doctors, like lawyers, owe a duty to their patients. The patient should come first for the doctor, just like the client comes first for the lawyer.
The only way this doctor can say that the EKGs or whatever tests he administers to patients reporting chest pains are unjustified is by some sort of cost-benefit analysis (e.g., over the course of his career, the doctor will administer 10,000 EKGs at a price of $10,000 a pop and that $100,000,000 total cost is greater, in dollar values, than the benefits of the life saved thereby). But doctors aren’t supposed to be bean counters; they’re supposed to give their patients the best care regardless of the cost.
If medical malpractice is leading to defensive medicine and defensive medicine is what saves my life, thank goodness for medical malpractice lawsuits.

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More Than Two Million Drop-Side Cribs Recalled

In cooperation with the Consumer Product Safety Commission, seven crib manufacturers announced today that they are recalling more than two million drop-side cribs. A drop-side crib is simply a crib in which one side of the crib raises and lowers in an up-and-down fashion, making it easier to place an infant in the crib or remove her from it. Drop-side cribs pose a risk of entrapment and suffocation to infants who may fall into gaps between the crib’s bedding area and other parts of the crib or have their necks stuck between the crib’s slats.
The dangers associated with drop-side cribs are especially pronounced when bolts and other hardware become loosened over time. Loose hardware in drop-side cribs gives even more play to the cribs’ moving parts, providing more space in which a baby may be entrapped. This public service video produced by the Consumer Product Safety Commission illustrates how a baby may become trapped or suffocate in a drop-side crib. It also illustrates the dangers posed by loose hardware:

Today’s recall brings the total of drop-side cribs recalled in the past five years to over nine million. ASTM International, which sets manufacturing standards for cribs, has proposed the elimination of drop-side cribs. Major retailers such as Walmart and Toys R US no longer stock drop-side cribs.

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Proposed New Regulations Would Require More Supervision Of Medical Residents

A couple weeks ago, I blogged about how July is the month when most medication errors occur in hospitals, most likely because July is the month when new doctors begin their residencies.
This week comes news that the Accreditation Council for Graduate Medical Education is proposing new regulations mandating closer supervision of residents by more experienced doctors.
The proposed new regulations are important because they represent a departure from ACGME’s prior efforts to reform residency programs. Most of ACGME’s prior efforts to improve residences were directed at reducing the number of hours that medical residents work and establishing mandatory sleeping time for residents.
The focus on reducing residents’ duty hours seemed to presuppose that residents who commit medical malpractice do so because of sleep deprivation or fatigue, rather than a lack of knowledge, training or supervision. But as one doctor who supports the proposed new ACGME regs says, “Patient safety in teaching hospitals is not just about duty hours.” Indeed, often it’s about helping the residents rather than throwing them into a sink-or-swim atmosphere.

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Massachusetts House Approves Texting While Driving Ban

Beacon Hill.jpgWith this week’s approval of a bill in the Massachusetts House that would ban texting while driving, Massachusetts is poised to become the twenty-ninth state to impose such a ban.
Why it took Massachusetts so long to get a texting ban passed is almost beyond comprehension. The cell phone companies are not lobbying against these laws, nor are cell phone users banding together to oppose them. Practically no other safety measure out there can do so much to reduce car accidents as a texting ban. Just another example of the inertia on Beacon Hill, I guess.

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Study Reveals More Than Half Of Pediatricians Make At Least One Diagnostic Error A Month

Pediatrician_Misdiagnosis.jpgA new study, published in the July issue of the journal Pediatrics reveals that more than half of pediatricians responding to an anonymous survey admitted to making at least one misdiagnosis a month. Slightly less than half the doctors also admitted that they make at least one mistake a year that results in harm to their patient.
One of the most common mistakes committed by the pediatricians in the study was the misdiagnosis of viral infections as bacterial infections. This can lead to the child being prescribed a course of antibiotics that will do nothing to help improve his condition.
Another common error committed by the pediatricians in the study was the failure to recognize the side effects of medication and distinguish them from underlying illness.
I’ve previously blogged about research suggesting that doctors who are better listeners are less likely to commit medical malpractice. If this is true, it may help explain why pediatricians make so many misdiagnoses. It is difficult to be a good listener when your patient (because of her young age) lacks the verbal capabilities to describe what her symptoms are, when they began, etc.
It would be interesting to see this data broken out by age of patient and see whether misdiagnoses were more common among the pediatricians’ younger patients than their teen and pre-teen patients.

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Numbers In Context: A Fill-In-The-Blank Blog Post On Medical Malpractice

stethoscope.jpgThis week Overlawyered featured a blog post entitled “Malpractice Systems In Other Countries” that linked to an American Medical News article on the costs of medical malpractice litigation in the United States.
The Am Med News article suggests that the American medical malpractice system contains, “flaws that make the U.S. medical liability landscape more expensive and litigious than that of other nations.”
There are a couple of noteworthy points about this article. First, you could rewrite that sentence (in fill-in-the-blank fashion) with virtually any field of American law and it would hold true. If the author substituted “patent infringement” for “medical malpractice” and wrote that experts say that “the U.S. patent infringement landscape is more expensive and litigious than that of other nations,” it would undoubtedly be true. Americans are, by nature, very zealous defenders of their legal rights. Yet the “tort reformers” decry medical malpractice lawyers far more than you hear them complaining about patent trolls. And you never hear them complaining about the big businesses that are spending the big bucks to litigate their hairsplitting patent claims.
Furthermore, it should come as no surprise if we spend more than other countries on medical malpractice because we, as the world’s wealthiest country, spend more than virtually everyone else across all areas of our lives, including health care. The global median income is $1,700. So of course the U.S. is going to be near the top of any survey of medical malpractice litigation. In addition to being world leaders in the amount of money that changes hands in medical malpractice lawsuits, we’re also the country that spends the most on cosmetics and many other products (although the Europeans spend slightly more than us on ice cream. Should we begin fretting about whether we’re spending too little on ice cream?).
In the health care sector, our spending outstrips even our high levels of spending on other goods and services. We spend roughly 15.2 percent of our Gross Domestic Product (the world’s largest GDP) on health care. This is roughly one-third more than second-place Switzerland as a percentage of GDP (in terms of absolute dollar values, of course, the disparity is much larger). Our doctors are also, by a large measure, the world’s highest paid.
Perhaps the “tort reformers” should look for targets elsewhere.

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Study Shows That Massachusetts Personal Injury Plaintiffs Are Losing Vast Majority Of Trials: Is That A Problem, And What’s The Solution?

Massachusetts counties.gifMassachusetts Lawyers Weekly reports in its June 14, 2010 issue that personal injury plaintiffs lost in the vast majority of cases tried in Massachusetts courts in 2009. Under Mass Lawyers Weekly’s rather generous methodology, a “win” for a plaintiff was defined as a case in which the plaintiff received any money at all, even if it was only one dollar, and that dollar was less than what the defendants had previously offered to settle the case. Lawyers Weekly defined a “loss” as a case in which the jury awarded zilch to the plaintiff.
Using these definitions of a “win” and a “loss,” Massachusetts Lawyers Weekly broke the data down by county and found the following percentages of plaintiff’s wins in Massachusetts state courts in 2009:

  • Suffolk County (Boston, Chelsea, Revere and Winthrop) – Plaintiffs won in twenty-five percent of the trials.
  • Norfolk County – Plaintiffs won in fourteen percent of personal injury trials.
  • Middlesex County – Plaintiffs won only twenty-seven percent of personal injury trials.
  • Bristol County – Personal injury plaintiffs won only thirty-two percent of trials.
  • Essex County – Plaintiffs won thirty-six percent of jury verdicts.
  • Hampden, Berkshire, Franklin, and Hampshire counties – the percentages of jury verdicts for plaintiffs in these counties ranged from twenty-nine to thirty-three percent.

The data are even worse for Massachusetts personal injury plaintiffs if you revise the definitions of a “win” and a “loss” to fit what most lawyers mean by those terms. Superior Court Judge Brady has kept a personal log of all the negligence trials he’s presided over since being appointed to the bench in 1993. Judge Brady scores a case a “win” for the plaintiff only if the amount the jury awards the plaintiff is greater than the last settlement offer made by the defense. In the 151 negligence trials that Judge Brady has heard in his nearly twenty years on the bench, only 16 have resulted in wins for the plaintiff.
The odds of prevailing at trial may seem pretty dismal for Massachusetts personal injury plaintiffs but there are a few things that should be said about this data. First, there’s an obvious selection bias at work in this study. About ninety-eight percent of cases are resolved by either pre-trial settlement or some form of pre-trial motion to dismiss.
The game theorists tell us that the two percent of cases that make it to trial are cases where at least one party is overestimating the strength of its hand. If you assume a rational defendant in a case, once the defendant is convinced of his legal liability and the dollar value of damages that a jury would force him to pay, the defendant will settle the case, simply to avoid the time and expense he would have to pay to defend the case through trial. The cases that don’t settle tend to be troubled cases where there is vast disagreement about either the defendant’s legal liability or the amount of damages. So the vast majority of personal injury plaintiffs in Massachusetts fare better than the trial data would suggest because the trial data represent the outlier cases that make it to trial.
Nevertheless, I don’t think Massachusetts personal injury lawyers should be happy with those numbers. I think they reflect a certain level of complacency by some Massachusetts personal injury lawyers about how cases should be investigated and tried to a jury. I’ve previously blogged about how Massachusetts’ largest medical malpractice verdict of 2009 – a $15 million case – was turned down by a number of Massachusetts medical malpractice law firms before being taken by a California attorney who was much more aggressive than most Massachusetts medical malpractice attorneys in terms of the number of depositions that he took and the theories that he pursued.
I sensed a lot of defeatism in the Massachusetts Lawyers Weekly article about trying cases in certain counties, especially Norfolk County. I’ve lived the better part of my life in Norfolk County and I have no compunction about trying a case to a Norfolk County jury. You simply need to know who your jurors are and frame the issue properly for them.

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The $28 Million Nursing Home Verdict: The Law And The Public Policy

Last week, I blogged about how Pointoflaw, a tort reform website run by the Manhattan Institute think tank, misleadingly (to my mind) described a $28 million jury verdict against a nursing home. My post received the attention of Eric Turkewitz and his New York Personal Injury Law Blog, who included it in a link roundup. Eric’s post on his blog led to a response by Pointoflaw, defending the original post and further criticizing the verdict and nursing home litigation in general. Rather than engage in back-and-forth about whether Pointoflaw originally misstated the case, I thought I would take this opportunity to discuss the legal and public policy issues surround this $28 million verdict and nursing home litigation generally.
I. The Law
Ted Frank criticizes me failing to recognize the “utter lawlessness of the verdict.” So was the verdict unlawful? That’s a question that needs to be unpacked a bit before it can be answered.
I agree with Frank that the verdict will almost certainly be “reined in by the trial or appellate courts.” The reason is that in State Farm Mutual Auto Ins. Co. v. Campbell, the Supreme Court announced that a “single-digit ratio between compensatory and punitive damages” is the ratio most likely to comport with the Due Process requirements of the Fourteenth Amendment. While the Court declined to announce a bright-line or per se rule that double-digit multipliers are unconstitutional, the Court essentially encouraged lower courts to review double-digit multipliers skeptically and lower courts have diligently followed these instructions. The 25.5:1 ratio of punitive to compensatory damages in the California nursing home case means that a Court is likely to conclude that the damages are excessive.
It’s worth noting however that the Court’s two stalwart conservatives, Justices Thomas and Scalia, do not believe that the Court’s curtailment of punitives represents good law. Justice Scalia and Thomas believe that, “the Constitution does not constrain the size of punitive damages awards,” and that the Court’s reversal, since 1996, of certain punitive awards, constitutes, “an unjustified incursion into the province of state government.” Scalia and Thomas believe that the Court’s punitive damages jurisprudence is so badly flawed that it is not entitled to stare decisis, i.e., being treated as binding precedent.
Lastly, to the extent that Frank suggests that it was legal error for the jury to hear evidence of the defendant’s balance sheets, he would find himself in a distinct minority camp.
II. The Public Policy
Today, 1.5 million Americans live in nursing homes. As Baby Boomers age, this number will only increase. No one would dispute that some nursing home residents are abused and neglected by staff – the only questions are how pervasive the neglect is, what approaches we can take to reduce it, and the costs of those proposals to reduce abuse and neglect.
Obviously, one method of reducing nursing home abuse is to allow patients to sue their nursing homes for compensatory damages caused by the nursing home’s negligence. Ideally, such lawsuits force nursing homes to absorb the cost of the injuries they cause, insuring they will go bankrupt if, on balance, they are doing more harm than good.
Punitive damages also have an important place in such a framework. Ideally, the award of punitive damages in a nursing home neglect case serves to deter both the defendant nursing home and other nursing homes from engaging in such tortious conduct in the future. One economist, whose work is cited favorably in a recent Pointoflaw post, has proposed an efficient punitive damages regime wherein the amount of punitive damages would approximate the number of times the defendant “got away with it,” although the Supreme Court rejected such a framework in BMW v. Gore, where it noted that economic efficiency is not the criterion by which it decides its cases and that the Constitution, “does not incorporate the views of the Law and Economics School,” nor does it “require the States to subscribe to any particular economic theory.”
So the question becomes what social science data do we have to suggest that lawsuits against nursing homes are having a pernicious effect on society? Frank offers the experience of Florida, where the Florida AARP supported the repeal of a strict liability statutory scheme that held nursing homes liable for certain injuries to nursing home patients, regardless of whether the nursing homes were negligent in the treatment of the patients. But the failure of a strict liability regime is of marginal relevance to the assessment of a fault-based system.
Like the AARP in a 2003 white paper, I favor the imposition of a negligence-based standard of care on nursing homes and oppose caps on noneconomic damages on the grounds that they, “may have harmful consequences on quality of care and access to compensation for injured residents and their families.”
At risk of sounding like someone afflicted by epistemic closure, I also think nursing homes should look to draw upon an underutilized resource in their midst – their patients who are alert enough to be attentive to their roommate’s health. Rodin and Langer’s famous (or rather infamous) 1970s nursing home social psychology experiment (described in the Leonard Mlodinow blog post) shows that giving nursing home patients responsibilities for themselves or others dramatically improves their health and mortality. While having nursing home residents report on the health of those around them would not satisfy the nursing homes’ legal duty of care, it might reduce liability by by reducing the number of critical incidents.

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Tort Reform And Epistemic Closure

Closed Mind Image.jpgThere’s been a lot of talk in the political blogosphere lately about whether conservatism is suffering from “epistemic closure.” Epistemic closure is a term that has become shorthand for the closing of the conservative mind – the idea that conservatives are recycling the same ideas over and over when they should be inventing new policy solutions. The debate about whether conservatives are suffering from “epistemic closure” has prompted some soul-searching by conservatives about whether they’ve simply curled up like hedgehogs in response to challenges to their belief system.
And it seems like we’ve seen plenty of challenges to that belief system lately, especially conservatives’ free market fundamentalism. On Wall Street, we’ve seen unchecked markets lead to grotesque executive compensation schemes, where traders earn massive bonuses by taking short-term risks and pass the long-term costs of their risks onto shareholders and the government. In our health care system, we’ve seen how unrestrained markets lead to insurance companies freezing out people who are the most in need of health insurance and doctors running up the bills, instead of being incentivized to promote preventative care.
Epistemic closure was much on my mind recently when I went back to read “The Litigation Explosion: What Happened When America Unleashed The Lawsuit,” a nearly two-decade old book by Walter K. Olson, a think tank fellow who recently departed the Manhattan Institute for Cato and who does a lot of work in the field of tort reform. What made me read a twenty year old book by a policy wonk, a title obscure enough that I was able to buy a used hardcover copy on Amazon.com for ninety-eight cents?

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Laconia Motorcycle Week (June 12-20, 2010) And The Myth Of Motorcycle Dangerousness

Wild_One_Laconia.jpgEach year more than a quarter million bikers descend on the Laconia/Weirs Beach area for the biggest motorcycle rally in the northeast. And each year, the event is preceded by dire media predictions of motorcycle accidents, property damage, and out-of-control revelry.
Yet each year, the bikers pour millions of dollars into the local economy, ride their motorcycles responsibly and leave town without much commotion or disturbance.
In short, the media myth about Laconia’s Bike Week always departs from the less-sensationalistic reality. Exactly why the media chose to portray bikers as wild hellraisers is unclear.
Hunter Thompson attempted to tackle the subject in his excellent work Hell’s Angels: A Strange and Terrible Saga, but even the good doctor ultimately was at a loss to explain why the news media demonizes bikers.
The news media’s demonization of bikers dates back at least sixty years. In 1947, a larger-than-expected group of bikers showed up in Hollister, California for an annual rally. Life magazine ran staged photos of bikers surrounded by empty beer bottles and its story created the impression that the town was under siege by bikers in the so-called “Hollister riot.”
This false portrayal was later elevated to iconic status by Marlon Brando’s bravura performance in The Wild One, which depicted the sensationalized version of the Hollister rally and which popularized the greatest motorcycle jacket of all time – the Schott Perfecto – as an American fashion statement. (James Dean would later also wear the Perfecto).
I see analogies between the public perception that bikers (in large groups) are rabble rousers and the popular perception that motorcycles are inherently dangerous. The fact of the matter is that every year there are very few accidents at Laconia when you factor in the extraordinarily large number of bikers who congregate there (more than a quarter million).
Part of the reason that Laconia is such a safe event is that part of town is closed to any traffic except for motorcycles. One of the biggest causes of motorcycle accidents is auto drivers who don’t “Look twice” before changing lanes. These riders are constantly looking out for one another to make sure no one gets hurt.
So let’s hope for an even safer than usual Laconia Bike Week this year, let’s hope it’s a bigger-than-expected boon to the local economy, and do our part to look twice on the roadways.

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