Book Review Of “Poisoned: The True Story Of The E. Coli Outbreak That Changed The Way Americans Eat”

Poisoned Book Cover.jpgI’ve been wanting to read Jeff Benedict’s “Poisoned: The True Story of the Deadly E. Coli Outbreak That Changed The Way Americans Eat,” since I heard Benedict interviewed on this RadioBoston episode on the E. Coli outbreak in Germany.
Monday’s New York Times carried a review of “Poisoned” by Dr. Abigail Zuber that got me truly amped up to read a copy. From hearing Benedict interviewed, I labored under the misimpression that “Poisoned” was a book about public health, about the food industry and the science of food poisoning.
As Zuber’s review highlights, however, “Poisoned” is actually a real life legal thriller in the mold of Jonathan Harr’s “A Civil Action.”
“Poisoned” focuses on the infamous Jack-in-the-Box E. Coli O157:H7 outbreak that killed four children and injured hundred of others in Western states in 1993.
As Zuber writes, the Jack-in-the-Box outbreak led to a “David and Goliath” battle between Jack-in-the-Box and the poisoned customers. The legal struggle pitted Bill Marler (then, according to Zuber, “a financially struggling young lawyer who, through a series of happenstances came to represent Seattle’s most damaged victim”) against Bill Piper, an “established Seattle lawyer,” who wore suspenders with pictures of nude women on them (!) and who was known to be “devastatingly effective in court.”
You may already know the post-script: Marler won a $15.6 million dollar jury verdict on behalf of client and the entire food service industry overhauled its food-preparation protocols.
I just went to Amazon.com and ordered my own copy of “Poisoned.” I hope to have my own review soon.

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“Hot Coffee” Deserves An Oscar

oscars-732859.jpgSo I cleared the decks tonight to be able to watch the HBO debut of “Hot Coffee,” the documentary about the dark side of tort reform that’s being talked about everywhere – from The New York Times (where our friends at AbnormalUse got a shout out) to the legal blogosphere (see here, here, here, and here).
I watched. And I was impressed.
I watch a lot of documentaries. I guess you could say I’m a documentary buff. And a lot of times, they leave me feeling underwhelmed.
Case in point: “Casino Jack and the United States of Money,” which I watched a few weeks ago and which I rated zero stars on Netflix. It was just a straight rehashing of the Abramoff scandal that didn’t highlight the power that special interest lobbying has over anyone other than Indian tribes with casino licenses. It could’ve been so much more, but fell woefully short of its potential.
Likewise, last year’s Academy Award winner for documentary feature – “Inside Job” (the story of how Wall Street corruption led to the financial crisis) – struck me as flat and one note. (Last week, Ezra Klein, who finally got around to watching it, echoed these sentiments in a series of posts that provoked outrage and cries of betrayal in some quarters).
“Hot Coffee” is better than “Inside Job,” “Inside Job” was last year’s Oscar winner, ergo “Hot Coffee” should be this year’s winner or at least a serious contender? There are more than a few flaws in such a syllogism. Winning an Oscar for best documentary has less to do with the merit of your film than it has to do with whether you’ve got Harvey Weinstein waging a ferocious campaign on your behalf, taking out ads in Variety and making sure the voters see your film.
But in a perfect world, a film like “Hot Coffee” should at least be generating some buzz. It takes an issue most people don’t know a whole lot about (tort reform) and makes the case that it is something the general public should be paying mind to (much like “Gasland” did for fracking a year or two ago).
I hope to get a chance to follow up with some more about the film in a series of posts.

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New Report Estimates Wrong Site Surgeries Take Place 40 Times Each Week

wrongsite.jpgAs reported by The Washington Post, a new report by a hospital accreditation body estimates that so-called wrong site surgeries take place 40 times each week in the nation’s hospitals.
Wrong site surgeries are operations that take place on the wrong part of the body, such as amputations of healthy limbs, back surgeries that are performed on the wrong vertebrae, etc.
Wrong site surgeries are so common in fact that one in four orthopedic surgeons will make a wrong site error in their careers, according to the American Academy of Orthopaedic Surgeons.
The tragedy is that wrong site surgeries are among the most preventable kind of medical malpractice. Pre-surgery “timeouts” where the surgical team reviews the surgery, including surgical site, have been shown to dramatically reduce the incidence of wrong site surgery. In seventy-two percent of wrong site surgeries, the surgical team was found not to have stopped for a timeout.
And yet surgeons are resistant to adopting universal timeouts.
Perhaps surprising to a lot of tort reformers, only one-third of wrong site surgeries result in a medical malpractice claim. In fact, the wrong site involving Dr. Peter Ring of Boston (which we blogged about last year) never resulted in a medical malpractice lawsuit being filed, perhaps because of the conspicuous bravery and honesty of Dr. Ring, who bucked the medical system’s code of silence and used his wrong site surgery as a teachable moment.
As commendable as Dr. Ring’s conduct was, however, we need more than surgeons who are humble enough to publicly acknowledge their errors. We need surgeons who are willing to adopt the proven tactics – such as surgical timeouts and checklists – that can help eradicate wrong site surgeries.

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Friday Link Roundup

  • Professor Bernabe reports on the first “popcorn lung” jury verdict.
  • The Chicago Tribune reports on the skyrocketing (no pun intended) rates of injuries at the latest entertainment phenomenon: trampoline parks. Meanwhile, the new Sky Zone park probably rates as one of Boston’s hottest new suburban attractions. I’ve yet to have the chance to visit.
  • A wrongful death lawsuit is filed in the gruesome escalator accident that killed a four-year old boy at the Auburn Mall. The “accident” (it is hard to call such gross negligence an accident) led to investigations that showed how many of the Commonwealth’s escalators do not comply with safety regulations.

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Massachusetts Considers Law Giving Patients The Right To Have Their Surgery Videotaped

videtape surgery.jpgThe Massachusetts legislature is weighing a bill that would give patients the right to have their surgery videotaped if they paid for the recording. Hospitals that refused to allow videotaping would face a $10,000 fine.
The bill had a hearing Tuesday before the Public Health Commission.
Personally, I think that in many surgeries the videos would be of little value in proving medical malpractice because so much of surgery requires working in tight confines that cameras can’t peer into.
But the psychological effect of recording may prompt surgeons to be more attentive and courteous, thus contributing to patient safety.

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The Death Of The Autopsy And Its Implications For Public Health

Death_Rembrandt_autopsy_Harmensz_van_Rijn_painting.jpgAutopsies are a routine part of hospital deaths, right? Well, actually, no. Today autopsies are only performed in five percent of hospital deaths, down from over sixty percent 40 years ago.
As the incomparable philosopher/economist Robin Hanson notes at Overcomingbias.com, would we let it slide if only five percent of airline crashes were investigated?
Hanson argues that hospitals don’t want autopsies to be performed because they reveal too many doctor errors. According to a 1998 article published in The Journal of the American Medical Association, autopsy results show that doctors misdiagnose the cause of death at least 40 percent of the time. Hanson asks, “Could there be any clearer evidence that docs care more about getting paid than about healing patients, yet the public can’t bring itself to imagine docs are that selfish?”
I wholeheartedly agree with Hanson that the medical profession is not seriously committed to studying and learning from its mistakes. If it were, it would follow the model of the aviation industry and adopt the same kind of safety principles that the aviation industry has implemented.
But I disagree with Hanson that the medical profession’s atavistic impulses for self-preservation are the reason we’ve seen this dropoff in autopsies. I think we don’t get autopsies because insurers don’t pay for them. Private insurers generally do not pay for them and Medicare never pays for them because, under Medicare regulations, a dead patient does not meet the statutory definition of a “beneficiary.”
If we paid for autopsies, we’d get them done.
Autopsies are terribly important. It was autopsies that first made doctors realize that smokers were dying of lung cancer.
So what should we be doing? A lot of libertarian-leaning commentators (including liberals like Matt Yglesias) have been urging us to relax or abolish professional licensure requires that jack up the prices of services from hair salons to dental hygience to medicine.
I think autopsies are a perfect candidate for a procedure we should allow non-licensed professionals to perform. After all, what’s the worst harm that you can do to the person being autopsied? Kill them?
Let’s start doing autopsies again. We can do them at low cost and obtain all the benefits for public health.

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A New Breed Of Medical Specialist: The Nocturnist

Nocturnist Medical Malpractice.pngIf you had asked me last week to define “nocturnist,” I would’ve guessed, “A musical composer who writes nocturnes. For example, Chopin or Debussey.”
But, as Kaiser Health News reports, a nocturnist is actually a member of a new medical specialty – a doctor who works exclusively nights at a hospital. You can think of a nocturnist as the nighttime counterpart of a hospitalist, that relatively new breed of doctor who practices exclusively at a hospital.
Hospitals are hiring nocturnists to reduce the nighttime incidence of medical malpractice. Nighttime can be an especially dangerous time for hospital patients: not only do hospitals tend to run a skeleton staff at night, but many of the doctors who are on duty (younger residents who work long hours) can be fatigued at nighttime.
The research data starkly illustrate how dangerous short staffs battling fatigue can be to patients. According to a 2008 study by the American Medical Association, hospital patients who suffer nighttime heart attacks are 50 to 70 percent less likely to survive than patients who have their heart attacks during the daytime, when medical staff are bright-eyed and bushy-tailed.
My guess is that hospitals’ use of nocturnists will reduce medical malpractice. Three months ago, we blogged about a new obstetric patient safety program that reduced medical malpractice by 99 percent in New York hospitals that participated. One of the main techniques that these New York obstetrics wards employed was the hiring of a “laborist,” an obstetrician who only worked nights and who was there to help the daytime obstetricians who might become fatigued during a labor that drags on for hours and hours.
We’ve also seen how minor fatigue — the typical fatigue that occurs over the course of an eight-hour daytime shift — can raise doctors’ risks of medical malpractice by twenty percent.
So let’s hear it for the nocturnists. And let’s hope they help the medical profession to cut back on the 100,000 deaths that occur annually due to medical malpractice.

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Ted Frank’s Bold Gamble And His Scandalous Lack Of Faith In The Efficiency Of Markets

Frank- Ted-150.jpgI have rarely been bowled out of my seat reading a legal blog post quite so much as I was this week, when I came across a post at The Wall Street Journal‘s law blog announcing that tort reform advocate Ted Frank was making a bold and risky stock market play. Frank was betting 10 percent of his net worth on Wal-Mart stock, predicting that Wal-Mart’s stock price will rise due the Supreme Court’s ruling in the company’s favor in the yet-to-be-decided case of Dukes v. Wal-Mart, a gender discrimination class action.
In the past, Frank and this blog have argued back-and-forth across the blogosphere on some things — he a tireless tort reform advocate, myself a trial lawyer partisan — but I am in agreement with Frank’s belief that Wal-Mart will prevail in the Dukes case.
The really amazing part of this bet is not that Frank believes Wal-Mart will win in Dukes, but that he believes that there’s money to be made on this proposition. After all, Frank, in his day job, is the voice of tort reform, of big business, of laissez-faire capitalism.
But his sizable wager – ten percent of his net worth! – speaks otherwise. His bet that Wal-Mart’s stock will rise once the Supreme Court decides Dukes (and decides it in Wal-Mart’s favor) says that the stock market is inefficient – that there is publicly available information about Wal-Mart’s stock that has not already been priced into the stock’s value.
Shockingly, I find that I, the trial lawyer, have more faith in the market’s efficiency than Frank. I subscribe to a form of the “Efficient Market Hypothesis,” the idea that the price of stocks incorporates all of the publicly available information that might affect the stock’s price. Ted is a great lawyer, but it hardly takes a great lawyer to figure out which way the conservative Supreme Court is going to rule in the Wal-Mart case, especially after it has made the decision to hear the case and after briefs have been filed and oral arguments have been made.
I sort of assume that all of that information has already been factored into Wal-Mart’s stock price by the invisible hand of the marketplace, by the wisdom of crowds. So I’m not going to be betting that Wal-Mart will finish up the day that the Supreme Court rules in its favor in Dukes.
I’ll be sticking with my index funds and ETFs. Yeah, maybe you can beat the market if you focus on inefficiencies in small cap stocks that are less closely followed by Wall Street (a la hedge fund titan Joel Greenblatt) or if you simply bet on volatility in the market in either direction (as uber-successful Nassim Taleb of “Black Swan” fame does in his proprietary options system), but beating the Street on Wal-Mart seems to me to be more dependent on luck than skill in ferreting out relevant information about the company.
However, I find Frank’s bet thrilling and I am rooting for him to succeed. In an interview with Reuters, Ted said that he often finds that the market often fails to predict and factor in the value of legal rulings in cases whose outcomes he thinks are foregone conclusions. So my guess is that Ted is not making this bet on a whim and has a track record of being able to make these kind of calls.
It’s not quite John Henry v. The Steam Shovel, Kasparov v. Deep Blue or Ken Jennings v. Watson, but I’ll be watching closely to see what happens in the battle of Lawyer v. The Stock Market. And I’ll be rooting for the lawyer.

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Europe’s E. Coli O104:H4 Outbreak: Facts And Lessons

e-coli-O157-h7.jpgAlthough the story’s been in the news for nearly two weeks, I’ve hesitated blogging about the outbreak of E. Coli O104:H4 contamination in Europe because it seemed like every time I turned around, there was some new update rendering the previous theories and hypotheses null and void.
At this point, it seems that this much is clear. According to the latest Bloomberg report, tainted food products carrying the O104:H4 bacteria have caused at least 23 deaths in Europe and poisoned 2,429 others, 674 of them seriously.
The “index” (earliest) cases of the outbreak occurred around May 2, but it was not until May 22 that public health authorities acknowledged that we had had a full-fledged outbreak on our hands.
Although initially it was suspected that cucumbers might be the source of the outbreak and, later, it was thought to be bean sprouts, experts from the World Health Organization insist that we don’t know the vector of the contamination and might never know.
“If we don’t know the culprit in a week’s time, we may never know,” says Dr. Guenael Rodier of the WHO. According to Dr. Rodier, the food products that caused the outbreak have likely disappeared from store shelves, making it harder to link patients with the source or sources of the contaminated food.
The Centers for Disease Control reports four Americans have been sickened by E. coli O104:H4 within the past several weeks, all of whom had recently traveled to Germany and all of whom are believed to have suffered the food poisoning there. The CDC have issued a travel warning to Americans traveling to Germany.
The E. Coli O104:H4 strain that is ravaging Germany is not the same strain of E. Coli that has hurt so many American consumers. The strain of E. Coli food poisoning that first popped into American consciousness with the Jack-in-the-Box epidemic in 1993 and that continues to be a recurring problem in the American food supply chain is E. Coli O157:H7. The two different strains, however, are both capable of causing massive kidney failure leading to death or permanent disability.
We’ve talked a lot on this blog about two different approaches to protecting consumers from injury: government regulation and private tort lawsuits. We’ve discussed one problem with relying on government regulation to protect us – that regulatory bodies are susceptible to “regulatory capture” by the special interests they are supposed to regulate.
It seems the regulatory approach is especially inadequate within the European Union, where competing national interests and cross-border limitations on investigators may make it difficult to combat outbreaks such as the present one. As one American public health official, Dr. Michael Osterholm, has said, “If you gave us [American public health officials] 200 cases [of E. coli poisoning] and five days, we would be able to solve this outbreak.” Osterholm went on to describe the European effort as “erratic” and a “disaster,” saying that German officials should have done more to interview patients in the early days of the outbreak. Instead, German officials leveled an accusing finger first at the Spanish, then at the French.
Given the way the Germans have handled this outbreak, you have to wonder whether it’s simply incompetence or whether there are political forces at play that have hindered the investigation.
At any rate, let’s hope that public health officials manage to track down the source of the E. Coli O104:H4 outbreak and that E. Coli O104:H4 does not make its way into the American food supply.

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New Studies Say Missed Meds Cost Our Health Care System $250 Billion A Year, Potentially Fixable

Text-message.jpgWe all know that failing to take medicine as prescribed adds to the costs of our health care. For example, when someone fails to take a course of antibiotics to the end of the bottle and their infection flares back up, requiring another trip back to the doctor, that makes health care more expensive. And when someone forgets to take heart medication and has a heart attack, the costs of treating that heart attack are vastly greater than the cost of the bottle of pills that might have prevented it.
But just how much extra are we paying in health care costs because of people’s forgetfulness (and in some instances) and their willful failures to take medications as prescribed? According to two new studies (one by researchers at Harvard), failures to take prescribed medicines cost American health care $250 billion annually. (H/t USA Today). That’s an absolutely staggering number.
To give you some perspective on its size, last summer the journal Health Affairs published the most recent estimate of the annual cost of medical malpractice lawsuits. Its best guess was that medical malpractice lawsuits cost the health care system, directly and indirectly, $55 billion a year.
The cost of missed meds is five times as large as all of the costs of medical malpractice (including payouts to injured patients and malpractice insurance premiums), but you don’t hear people saying, “Hey, let’s do something about the problem of missed meds. We can save ourselves a fortune and, in the process, we won’t have to trample the rights of the people maimed, paralyzed and killed by medical malpractice.” Instead we hear the crusading tort reformers haranguing us that frivolous medical malpractice lawsuits are bankrupting the health care system (when all of the costs of medical malpractice, both direct and indirect, amount to less than two percent of health care spending).
If there’s any silver lining to learning that missed meds are costing us $250 billion annually, it’s that the problem has quick fixes. Studies show that when people get text message reminders to take their medications, they take them more reliably. Also, when patients are automatically enrolled in mail-order pharmacies, so that they don’t have to go to the pharmacy for their first script or for refills, many more patients take their meds.
I have an idea. Before we sacrifice the victims of medical malpractice on the altar of health care economy, why don’t we try text messages and see if that knocks down the cost of health care any?

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