Legal Roundup

  • The Pop Tort calls it for what it is. It’s not “tort reform”; it’s a license to do harm.
  • Frank Pasquale with a great post showing how the “elite consensus” that we can’t afford Medicare and Medicaid should not be taken at face value. Although he does not post as regularly as some bloggers, Pasquale is quickly becoming a “must read” blogger for me.
  • Abnormal Use replies to my post about a legal blog someday winning a Pulitzer with the eminently sensible proposition that they’ll leave the Pulitzers to other bloggers in favor of becoming “EGOTs” (a winner of an Emmy, a Grammy, an Oscar and a Tony). I have no doubt that Jim Dedman and the rest of the crew over at Abnormal Use will someday find themselves in the illustrious company of Whoopi Goldberg, Liza Minelli and Barbra Streisand. Those guys are hipper than hip over there. If I ever had to square off on Jeopardy against anyone from Abnormal, I’d definitely be skipping any categories having to do with comic books, rock n roll, movies or TV and rolling the dice on Renaissance poetry or The War of the Austrian Succession or somesuch.
  • Alarm fatigue – The Boston Globe is running a series on “alarm fatigue,” the phenomenon in which hospital personnel become so conditioned to warning alarms going off that they tune them out and/or ignore them. Sometimes, though, the alarms are real and patients die as a result.
  • Cert petitions to watch – The Supreme Court may hear a case in which an Air Force officer was killed as a result of gross medical malpractice in a military hospital. The Air Force staff sergeant’s widow sued but found her legal claims barred by the so-called Feres doctrine, which holds that the military is not liable for injuries caused to service members through negligence. The reasoning behind Feres is that the federal government has to consent to being sued and the Federal Tort Claims Act (which allows some lawsuits against the federal government) does not extend to negligence claims brought by service members.
    In a 1987 case, Justice Scalia said that Feres was wrongly decided. The family of the late Air Force Staff Sergeant hopes that holding military hospitals liable for their medical malpractice will improve the quality of care in military hospitals.
  • Massachusetts escalators not inspected – In the wake of the gruesome death of a child on an escalator at the Auburn Mall, The Boston Globe investigated and found that seventy-five percent of Massachusetts mall escalators do not have current safety inspections. Yet more proof that trial lawyers do a better job of protecting us than government regulators.

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The Two Ways Better Databases Would Drive Down Health Care Costs

mexico_postal_code_database__premium_edition_-17514.jpgAs we’ve blogged about a great deal here, the costs of medical malpractice don’t amount to a hill of a beans when we’re talking about the costs of health care generally. According to the journal Health Affairs, the direct costs of medical malpractice (insurance company payouts, payments to medical malpractice defense lawyers) and the indirect costs (the costs of so-called “defensive medicine”) amount to 2.4% of our nation’s annual health care tab.
So while all the great new patient safety ideas that we blog about here – such as medical checklists and cockpit safety principles – hopefully catch on in medicine, they’re unlikely to change the curve of growing health care expenses.
What could succeed in driving down health care costs is getting better databases to track health care spending. We already have databases with lots of health care spending data in them. What we need are smarter databases, databases that we can use to more easily manipulate the numbers and search for trends within them.
Smarter databases could help reduce health care spending in two ways. Smarter databases could reduce health care costs on the demand side by identifying patients who are costing us the most and targeting them for more efficient care. And smarter databases could reduce health care costs on the supply side by helping us identify unnecessary tests and procedures.

  • The Demand Side –
  • Getting smarter databases will enable us to do the kind of “medical hot spotting” that promises to drive down health care costs. As we’ve previously blogged about, health care “hot spotting” is modeled after the Compstat crime-tracking system that many credit with contributing to the decline in crime rates that began in the 1990s. Just as Compstat uses crime data to micro-map police precincts and direct police resources to the areas where they are most needed, medical “hot spotting” uses health care data to identify the “high spending” patients. As one study in Camden, NJ demonstrated, thirty percent of the city’s health care spending was spent on one percent of the city’s residents. Identifying those high-cost patients helped the city get a handle on health care costs by targeting those high-cost patients for interventions – such as healthy cooking lessons and other social services – that, although pricey, resulted in a huge reduction in health care costs. Unfortunately, the nifty databases that allow researchers to ferret out high-cost patients for individual attention are not easy to come by. Companies like Verisk Analytics are spending millions developing proprietary algorithms to get the job done. Your run-of-the-mill databases can’t do hot spotting, but we could net a lot in savings if our databases could.

  • The Supply Side -
  • As the journal Health Affairs has noted, the costs of medical malpractice are dwarfed by the costs of fee-for-service medicine. Because of fee-for-service we get doctors performing a lot of unnecessary tests and procedures. Eliminating those unnecessary tests and procedures would take a big chunk out of our health care costs.
    How do we uncover which doctors are guilty of performing unnecessary tests and procedures? By combing through the data. That’s exactly what the Wall Street Journal is doing in its series “Secrets of the System” series – scrutinizing Medicare payment data and unveiling which doctors are performing unnecessary surgeries. Other databases, such as ProPublica’s “Dollars for Docs” database, enable us to connect up the kickbacks that some doctors receive from medical device manufacturers with the types of surgeries that they’re performing.
    Medicare, insurance companies, and other entities already have all this information: it’s merely a matter of having the right software to ferret out the excesses.

We don’t need tort reform. We need smarter databases.

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Hospital Disciplines Doctor Who Allegedly Performed Unnecessary Spinal Fusion Surgeries

drmakker.jpgIt was only a matter of time. With The Wall Street Journal uncovering eyebrow-raising increases in spinal fusion surgeries in its “Secrets of the System” series of investigative reports, and The New York Times running stories on back surgeons receiving kickbacks from medical device manufacturers, sooner or later an orthopedic surgeon was going to be disciplined as a result of malfeasance uncovered by great investigative journalism.
And it has apparently finally happened. The Wall Street Journal is reporting that Dr. Vishal James Makker, a Portland, OR-based neurosurgeon has had his admitting privileges suspended by the hospital he worked at after the Journal ran a March 29 story showing that Dr. Makker performed ten times as many spinal fusion surgeries as the national average. According to the WSJ, in 2006 the Oregon board of medicine ordered Dr. Makker to undergo remedial training for what it called “unnecessary surgeries.”
(All of which makes you wonder, if Dr. Makker was a guy who the board of medicine five years ago determined was performing unnecessary surgeries, why is he still licensed to practice?).
Dr. Makker’s case is just a single illustration of a larger back-and-forth in the medical malpractice debate. Tort reformers claim that medical malpractice lawsuits drive up health care costs by encouraging doctors to practice “defensive medicine” – ordering unnecessary tests and procedures merely to provide cover in the event of a lawsuit. Patient advocates, citing a growing body of data, say that the performance of unnecessary tests and procedures is driven by the financial incentives doctors face in a world of fee-for-service medicine: more tests and procedures mean more money for doctors and their hospitals. Many doctors, whether consciously or unconsciously, are responding to those incentives.
We need to rearrange those incentives. We need to reward doctors financially for preventative care and the money they save and stop paying them for each cutting-edge procedure that they perform.
When we have a system that enriches people like Dr. Makker, we should not be surprised that there are Dr. Makkers out there.

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Lawyers Have Made Cars So Safe That There Are Now More Suicide Deaths Than Car Accident Deaths

1978_ford_pinto_cover_001.jpgNHTSA just announced the number of US traffic deaths for 2010 and it was staggeringly low – 32,788. There are fewer traffic deaths now than there were in 1949, despite the fact that we drive a lot more. In fact, we drove 28.5 billion more miles in 2010 than we did in 2009, when deaths numbered more than a thousand more.
According to Freakonomics co-author Steven Dubner, there are now more suicides than traffic deaths in America.
The declining number of car wreck deaths is a testament to the power of safety engineering, but, as American Association for Justice president Gibson Vance explains in this Washington Post editorial, it’s also a tribute to trial lawyers, who have been forcing safety measures on auto manufacturers since the days of the Ford Pinto.

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Lawyers Are Not Funny, But This Worker’s Comp Opinion Is Possibly The Funniest Judicial Opinion Ever*

laughter.gifLawyers are not a funny bunch. And the judicial opinions authored by the lawyers who wear black robes tend to be especially devoid of humor. A couple of months ago, Supreme Court reporter Dahlia Lithwick wrote a Slate article asking, “Is John Roberts the funniest Supreme Court justice ever?”
Lithwick answered that question in the affirmative, Roberts having staked claim to that title by authoring an opinion holding that companies, such as AT&T, are not entitled to “personal privacy” protections and concluding the opinion with the quip, “We trust AT&T will not take [our decision] personally.” That’s the type of knee slapper that entitles a Supreme Court justice to lay claim to the mantle of being the funniest Supreme Court justice ever.
The fact that Roberts’ mildy funny throwaway line was remarkable enough to merit a whole article on it shows just how little levity there is in the law.
Lawyers fritter away most of their hours reading things like this:

“For purposes of Paragraph (3), an organization described in Paragraph (2) shall be deemed to include an organization described in Section 501(c) (4), (5), or (6) which would be described in Paragraph (2) if it were an organization described in Section 509(a)(3).”

That’s the infamous Section 529(a) of the Internal Revenue Code. According to Jennifer Schuessler, writing in The New York Times Book Review, the obscurantism of this passage inspired the late novelist David Foster Wallace to write his just-published novel The Pale King. With reading matter like that, it’s no wonder DFW killed himself. (Sorry — too soon?).
At any rate, all of this is merely prefatory explanation for the fact that when you come across a legal opinion that actually is genuinely humorous, it’s something worth sharing.
So I share with you Montana Worker Compensation Judge Jeremiah Shea’s opinion in Brock Hopkins v. Uninsured Employer’s Fund. The Hopkins case concerned an employee of Great Bear Adventures who smoked marijuana early in the day, prior to being mauled by a bear. Under Montana Worker’s Compensation law, Judge Hopkins had to address, the question of whether the marijuana smoking was the “major” cause of Hopkins’ injuries.
Judge Shea ruled that Hopkins’ marijuana consumption did not relieve Great Bear Adventures of liability for the workplace accident. Judge Shea reasoned thusly (even working in a reference to the 2004 movie Harold & Kumar Go To White Castle, I am told):

“Although Hopkins admitted to smoking marijuana before arriving at work, I cannot conclude based on the evidence that the major contributing cause of the grizzly bear attack was anything other than the grizzly. It is not as if this attack occurred when Hopkins inexplicably wandered into the grizzly pen while searching for the nearest White Castle. When a grizzly bear is sighted on a trail in Glacier National Park, the trail is closed to all hikers, not just the hikers who may have recently smoked marijuana. When it comes to attacking humans, grizzlies are equal-opportunity maulers, attacking without regard to race, creed, ethnicity, or marijuana use. Hopkins’s use of marijuana to kick off a day of working with grizzly bears was ill-advised to say the least, and mind-bogglingly stupid to say the most. However, I have been presented with no evidence by which I can conclude that Hopkins’s marijuana use was the major contributing cause of the grizzly bear attack.”

So there you have it, the funniest judicial opinion ever. Weep for us, all ye non-lawyers. Weep for us.
*Funniness is determined by standards generally prevailing within the legal industry at the time of authorship. Not valid in all 50 states. Void where prohibited. No purchase necessary. The Hopkins case was written by a trained Administrative Law Judge. You should not attempt legal humor without the supervision of a trained professional.
**Thank you to my very able (and funny) colleague, Patrick Banfield, for bringing the Brock case to my attention. Patrick is very high-brow and has a subscription to Harper’s, which featured the Brock case in its Index feature this month.

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Someday A Legal Blog Will Win A Pulitzer Prize

Pulitzer Medal.jpgAs Professor Pasquale notes over at the Concurring Opinions blog, the award of a Pulitzer prize to the ProPublica website for its series of stories on Wall Street corruption marked a historical first: the first time the Pulitzer committee ever awarded a Pulitzer for stories that never appeared in print. The ProPublica series, “The Wall Street Money Machine” ran exclusively on ProPublica’s website. Even if you had wanted to, you couldn’t have bought a copy of the ProPublica articles at your local newsstand.
The ProPublica Pulitzer (say that ten times fast) made me realize that someday a legal blog will win a Pulitzer for journalism. Probably not next year, probably not this decade, but sometime in our lifetimes I think there’s a good chance that a legal blogger will win a Pulitzer for his or her legal reportage.
It’s sort of a fun exercise to imagine what that blogger will be like. Legal bloggers tend to fall into three camps: there are the practicing lawyers (e.g., New York attorneys Eric Turkewitz and Scott Greenfield), the legal academics (e.g., Bernabe, Althouse, Volokh), and the professional news media (e.g., The Wall Street Journal‘s Law Blog, Gawker Media’s Above the Law).
What category of legal blogger is the likeliest to win legal blogging’s first Pulitzer? Obviously, the professional media outlets like WSJ’s Law Blog and Above the Law have the most resources. And those resources are important to doing the kind of investigative digging that one could see earning a legal blogger a Pulitzer.
One of the most important resources that the bloggers at professional media sites have is time. As Eric Turkewitz pointed out in his most recent post, it’s hard to find time to blog, “when you also have to do work for actual clients.” But I see practicing attorneys who blog as having one major Pulitzer advantage over the professional news reporters: we’re a lot closer to the ground, we’re the first to pick up on legal trends, the first to learn of new species of courtroom injustices. For example, we’ve all read about the foreclosure mills grinding out foreclosures based on sham affidavits generated by mortgage company “robosigners.” Who were the first to learn of these foreclosure problems? Practicing real estate lawyers. You could imagine a (busy) but informed foreclosure lawyer blogging the phenomenon with a perspective that only a lawyer who handled dozens of these cases would have. (Unfortunately, I haven’t come across any such blog and Rolling Stone‘s Matt Taibbi scooped the lawyers on a day-in-the-life of foreclosure practice).
Legal academics also have a chance at bagging legal blogging’s first Pulitzer. For example, The Volokh Conspiracy‘s Randy Barnett has formulated an argument against the constitutionality of the Affordable Care Act that has gained a lot of attention, including this recent Boston Globe profile of him. His argument has been set out in a series of blog posts.
Barnett’s constitutional theorizing is the sort of esoteric musings that would never get published in a traditional newspaper’s op-ed page but that can find a receptive and influential audience in the legal blogosphere. I don’t agree with Barnett’s conclusions and don’t think his work will convince the Supreme Court to strike down President Obama’s Affordable Care Act, but if someday some Barnett-like law professor managed, through a series of blog posts, to formulate a novel argument that persuaded the Supreme Court to invalidate a major piece of legislation, then surely such a blogger would be in the running for a Pulitzer that year.
Someday, somewhere, some legal blogger is going to win a Pulitzer. I look forward to reading the stories.

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New Research Suggests Justice Really Is What The Judge (And Jury) Had For Breakfast. So What Do We Do About It?

judge picture.jpgWe’ve all heard the old adage, “Justice is what the judge ate for breakfast.”
The maxim is actually attributed to a famous jurist – Jerome Frank – but I’ve always tended to write it off as overly cynical. Judges, at least here in Massachusetts, are among the most competent and conscientious of public servants. By and large, they take other people’s problems, other people’s dilemmas and handle them with as much care as they would their own.
But some new research is suggesting that there may be a lot more truth to that old saying than we may be comfortable acknowledging. (H/t Andrew Sullivan). According to a recent article published by a couple of Israeli psychology professors, judges deciding whether to grant inmates parole start off the morning (when presumably they have just had their breakfast) very generously: they grant parole to approximately two-thirds of the inmates to come before them. As lunchtime approaches, however, the judges grant virtually no inmates parole.
When the judges return to the bench after lunch, they start out again by granting parole to two-thirds of the inmates they see. And the numbers decline from there, as the judges’ stomachs empty.
The graph of this phenomenon (below) is astonishing.
Was it really the judges’ stomachs that were driving decisions? The study’s co-authors, Shai Danzinger and Jonathan Levav, managed to rule out a number of alternative hypotheses. The same pattern applied regardless of the judges’ personal philosophies or the racial and ethnic makeup of the prisoners before him. Nor was it the case that the judges had some sort of unconscious “quota” of the number of prisoners to whom they would grant parole, and once that number was up, they denied parole; some careful analysis disproved this possibility.
The only readily apparent remaining theory is that judges were less inclined to leniency as their stomachs began to growl.
And it’s not just the judges who are human, all too human. A couple of weeks ago, David Brooks wrote about research suggesting that people given bitter tasting drinks were more likely to judge moral transgressions harshly than people given sugary drinks. (H/t Althouse). As Brooks pointed out, one upshot of this research is that perhaps criminal defense lawyers should strive to make sure that Coca-Cola gets served in the jury room.
So should we be doing anything to combat the effects of food and drink on our powers of justice dispensation? Well, most judges already do something that might mitigate the effects of their appetites on their decision making: they tend to take their rulings “under advisement” and issue them at a later date, after an opportunity for further consideration. Judges making snap decisions, the way Israeli judges apparently do with potential parolees, is relatively rare outside of a trial, where judgments necessarily have to be made on the fly. Of course, if this “hunger effect” is so pervasive, it might just wind up shifting the disposition of a case to a time when a judge is even hungrier.
Another thing we might want to consider is letting judges and jurors snack in open court. In recent years, we’ve seen a lot of judges allow jurors to do things that a generation ago were frowned upon – such as letting jurors pose questions of witnesses for clarification purposes and other innovations.
But jurors are not allowed to snack in any courtroom that I know of. Partly this is a matter of decorum: when a defendant’s life is on the line, or a child’s future medical expenses are at stake, we want jurors to take their job seriously, and it does not really seem to comport with that notion to have them popping Cheez-Its instead of listening intently to trial.
Maybe we should experiment with this though. And make sure our judges have personal chefs as well as law clerks.
graph.jpg

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Legal News Roundup

  • New York state is going to eliminate parents’ right to sue doctors who injure their children. Professor Bernabe has the grotesque story here.
  • The PopTort reports on a new Health Affairs study showing that medical errors are ten times more frequent than we thought and occur in one-third of hospital admissions.
  • Massachusetts Lawyers Weekly runs a front-page story on a recent victory of mine.

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Age Discrimination Misconceptions: A Little Knowledge Is A Dangerous Thing

Age discrimination is a hot topic these days. A blog post in Forbes entitled, Is There a Lawsuit Here? Five Tips for Older Job Seekers, piqued my interest. While the article was certainly informative, in my opinion, it contained certain misconceptions.

First, the article claimed that “proving you’ve been deprived of a job or laid off to sweep the path for younger and cheaper workers isn’t easy to do” and “is darn near impossible.” To be clear, age discrimination is generally no more or less difficult to prove than discrimination based on gender, race, or any other protected category. Whether or not proving age discrimination is “impossible” will truly depend on the facts in each case. There is some indication, however, that age discrimination claims are potentially less difficult to prove since many jurors will be able to relate to the plaintiff or someday imagine themselves in the plaintiff’s predicament. Consider the following statistics compiled by Jury Verdict Research:

In 2008, age discrimination victims prevailed in 67% of all trials across the country — as compared to a win rate of 53% for disability discrimination cases, 52% for race discrimination, and 60% in sex discrimination.
In 2009, age discrimination tied with sex discrimination cases with a win rate of 57% — as compared to 47% for disability discrimination and 52% for race discrimination
From 2003 through 2009, age discrimination claims filed in state court received the highest median award at about $332,000. The next highest median award was in race discrimination cases, which came in at about $289,000

As any employment law attorney (regardless of whether they represent management or employees) will tell you, the cases with the strongest evidence of discrimination generally settle before trial. Therefore, the statistics above are likely based largely on cases where the employer thought it had a good chance of winning. Overall, the statement that proving age discrimination “is darn near impossible” is (at best) too large of a generalization.

Second, the article states that “[a]n employer can ask you how old you are. They shouldn’t, but they can.” While this may be true in certain states, its not the case in Massachusetts. As the Employment Discrimination Guidelines make clear, Massachusetts employers can only inquire about a prospective employee’s age in very limited circumstances:

Generally; the only proper question is, “Are you under 18, yes or no?” Questions about age may be allowed if necessary to satisfy the provisions of a state or federal law (for example, certain public safety positions have age limits for hiring and retiring). Also, if the Commission has previously identified age as a bona fide occupational qualification for the position.

An employer that violates this regulation by asking a prospective employee his or her age, when prohibited from doing so, indicates that the candidate’s age is a factor in the hiring decision. Massachusetts courts have held that such forbidden inquiries serves as powerful evidence of discriminatory animus.

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The New Social Science Of Group IQ And How It Applies In The Operating Room

albert-einstein.jpgDavid Brooks, The New York Times columnist, recently revived his blog, which you can find here. It’s a great aggregator of new results in cognitive psychology. Anyway, in poring through some of his older posts, I came across this discussion of the concept of group IQ. It’s a concept that’s been around for some time, but that has special application to medical malpractice that I don’t recall seeing anything about.
“Group IQ” refers to the collective IQ of a group of people working together as a team, collaborating on some project (say, a medical operation). What is the measure of a group’s IQ? It might be natural to think that a group’s IQ is simply the average of its individual members’ IQs. You might think that if you have a really smart person in a group or a lot of smart people in a group that the group’s overall IQ would be really high as well.
But the research shows that this rather natural assumption does not hold. Instead, lots of groups show IQ that is much greater than the sum of its team members’ intelligences. There’s a certain gestalt effect within some groups where a collection of average individual intelligences become super-charged and work together astonishingly effectively as a group, enabling them to best a team of Einsteins.
The research shows that the team members of these overachieving groups share certain traits. The team members of groups with high group IQs are good at reading each other’s emotions. They take turns when speaking. Conversation in their groups tends to be widely distributed. There is no overbearing leader dominating everything.
It seems to me that operating rooms are run exactly opposite to what we now know about group IQ. Operating rooms are an example of the old myths about group intelligence: that you let your individual superstar (say a high-IQ surgeon) run the show and get out of his way, instead of looking for ways for everyone to participate. I recently blogged about Dr. James Bagian’s new article on patient safety. In the article, Bagian talks about how operating room culture is a “hero” culture, with the notion being that the surgeon is the hero and that others in the operating room – nurses, anesthetists, medical residents – are his inferiors.
That’s why we shouldn’t be astonished when brilliant surgeons make mind-numbing mistakes (see here). It’s simply the inevitable result of the group dynamics of the operating room, where a nurse does not feel empowered to question a doctor.
A lot of the aviation safety principles that Dr. Bagian urges medicine to adopt are principles that agree with what we know about group IQ. For example, airlines have a “first name rule” – airline crew call each other by their first names so that everyone’s on an equal rank and the captain isn’t some imperious demigod. You can see how this would reinforce some of the traits that high IQ groups have, such as widely distributed conversation and listening.
Reducing medical malpractice doesn’t turn on getting smarter doctors or better technology. It turns on adopting the methods that we know crank up a group’s performance.

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