We Spend The Most On Health Care And Have The Least To Show For It In Terms Of Patient Safety

Hospital Mistake Lawyers.jpgIt’s a familiar theme: Americans spend the most on health care, and often get the least in return. Last December, I blogged about how we spend the most per patient on dialysis treatment and have the world’s highest dialysis mortality rate.
Now, from medicalcodingandbillingcertification.net, comes a new infograph that sets out how our hospitals are among the world’s most unsafe, despite our spending the most on health care. (H/t Andrew Sullivan). The infograph breaks down the reason why US hospitals rank last out of 19 developed countries in preventable hospital deaths.
You stand a 1 in 300 chance of dying in an American hospital due to medical error. (By way of contrast, the average American stands a 1 in 10,000,000 chance of dying in a plane crash).
In American hospitals, 1 in 7 hospital-acquired infections lead to death, while in Europe only 1 in 122 do so. 99,000 people die due to hospital-acquired infections in the US each year. American doctors only wash their hands about one-quarter of the number of times that they should.
The long hours of medical residents are another reason why American hospitals lag in safety. Residents who work five or more 24 hour shifts in a month are seven times as likely to make a medical error as their peers. Also, doctors leaving the hospital after a 24-hour shift are 168% more likely to be in a car accident on their way home.
Sometimes you get what you pay for. In American health care, we don’t.

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Driverless Cars (Redux)

car accident flier.jpgI am preparing for a trial and swore I wouldn’t have time for anything as frivolous as a blog post until trial is over, but when I learned that Abnormal Use, the defense side legal blog that is the darling of The New York Times, National Public Radio and Jackie Childs (I’m in too much of a hurry to hunt for the links explaining the back stories to Abnormal Use‘s well-deserved blogospheric celebrity), had posted a response to a blog post of mine about driverless cars, I felt compelled to post a rejoinder to the folks at Gallivan, White & Boyd.
As Abnormal contributor and GWB attorney Frances Zacher points out, it is rather incongruous for me, as a plaintiff’s lawyer, to be calling for immunity for the manufacturers of driverless cars. But what can I say? I really want to see driverless cars ASAP. There’s nothing I’d like more than to have my time in the car be time where I can get something done – whether it’s working on a memo or watching a DVD. And driverless cars might make that happen.
I agree with Zacher that my proposal would grant immunity to the party “at fault” (the car manufacturer who is to blame for the defective software). It’s an interesting point and I wonder how I can square my position on immunity for manufacturers of driverless cars with my view that caps on non-economic damages in medical malpractice cases violate the Plaintiff’s Due Process right (some would say natural right) to be made whole by the party who wronged her and many other positions I hold — positions that depend on the basic moral insight that Zacher affirms.
I thought that pseudonymous Abnormal commenter John Galt also made a very good point in a comment to the post: Couldn’t we invoke the last clear chance doctrine in some driverless car accidents? I guess I was envisioning the type of driverless car accident where one driverless car suddenly swerves into the opposite lane and neither driver has time to override the machine. But certainly there are a variety of accidents that might not conform to the scenario that I envisioned: accidents where a driverless car malfunctions and the driver has time and opportunity to avoid the collision but does not. I would certainly agree that a different set of liability rules should apply to such a scenario and Galt’s comment suggests that maybe the courts should deal with driverless car accidents on a case-by-case basis in common law fashion. That said, I would reject Galt’s proposed doctrine inasmuch as it would require vigilance on the part of the human “driver” of a driverless car. To my mind, the point of having a driverless car would be to enable the human “driver” to devote his time to other tasks (email, etc.) rather than to navigating the roadways. If a driver constantly had to have his or her finger poised over the Emergency Override button, it would sort of defeat the purpose of a driverless car.
Now back to my regularly scheduled trial prep. Until trial is over, our faithful readers (who make up for in devotion what they lack in numbers) will be treated to the musings of colleague, Patrick Banfield, and some canned/set-to-publish blog posts by me. Even further attention from the blogerati at Abnormal shall not drag me from my seclusion.
PS I know the picture is of a flying, rather than a driverless, car, but I’m in a hurry.

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Legal Blog Roundup

Sorry for the light posting lately. It’s the summer news doldrums and I am gearing up for a trial. At any rate, herewith the latest from the legal blogosphere:

  • Back in June, I blogged about how missed medications cost us $250 billion a year, dwarfing the cost of medical malpractice. If we could only get everyone to take their meds as scheduled, perhaps through text messaging, I theorized, we could save about twelve percent of our annual health care tab.
    Well now FICO, the credit score agency, is going to start rating people on how compliant they are with doctor’s orders. Good patients will get high Medication Adherence Scores and bad patients will get low ratings.
    Is this a way to reap a lot of savings? Or will it simply lead to the same kinds of abuses and discrimination that law professor Frank Pasquale and others have highlighted in their criticisms of the credit rating agencies’ credit rating machinations? Stay tuned.
  • According to a new study published in the New England Journal of Medicine, only twenty percent of medical malpractice cases result in a payout to the patient. Given that medical malpractice lawsuits are incredibly expensive for plaintiff’s lawyers to bring, it is no surprise that the study’s author, Amitabh Chandra, declares, “A lawyer would have to be an idiot to bring a frivolous [medical malpractice] case to court.”

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A New “Hotspot” Video

We’ve blogged before about so-called “medical hot spotting.” The technique promises to bring down the costs of health care dramatically by concentrating health care resources in the right places, much like, in the mid-1990s, police began to bring down crime rates by concentrating police patrols in the right areas. Now PBS’ Frontline has done a ten minute segment on hot spotting, which you can watch here:

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Link Roundup

  • Hundreds of doctors who have been disciplined by their own hospitals or insurance companies have escaped discipline by the board of medicine in California, according to this Los Angeles Times expose. The personnel at the board of medicine blame budget cuts for their inability to keep up with doctor misconduct.
  • The Freakonomics blog features a new research study showing that a car that weighs 1,000 pounds more than the average car is forty-seven more percent likely to cause a fatality when it is involved in an accident with another car.

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World’s First Driverless Car Accident Requires Rethinking Of Rules Of Legal Liability

google car accident.jpg

Today came news that a prototype robot-driven car, developed by Google, was at fault in a car accident near Google’s Mountain View, CA headquarters. Google’s engineers, for their part, claim that a human driver who overrode the robotic autopilot was at fault in the accident, rather than the software that normally drives the vehicle.
Robotically-driven cars are inevitable. The Google Car involved in the Mountain View accident had logged 160,000 miles without incident. We are really close to the mass development of very reliable robotically-driven cars.
And when the day comes that robotically-driven cars are common and their use widespread, we will have to have a reworking of the current legal regime of fault-based negligence in car accidents. Ideally, we should get started on that overhaul of our legal principles right now to insure that fear of liability does not stifle the marketing of driverless cars.
To see why we need to change the laws that govern car accidents in order to accommodate driverless cars, imagine a situation where a driverless vehicle is responsible for a car accident and the human operator did not interfere with or override the robot pilot. Who should be liable for the damages? The “driver” who did nothing other than sit in the car’s driver seat and select the car’s destination?
It would be difficult to hold the human “driver” at fault in such an accident under the fault-based negligence regime that currently governs car accidents. After all, the conduct of the driver who caused the accident (getting in the car, programming in the car’s destination) is indistinguishable from the conduct of the driver who gets in a car, programs its destination and arrives safely at his destination. It is difficult to see how the conduct of the former driver, who got in an accident, can be considered negligent, given that our Anglo-American concept of negligence requires that a person liable for negligence have acted “unreasonably” and the driver who was involved in the accident acted in the exact same way as the driver whose voyage was entirely uneventful.
Since, presumably, most accidents involving robot-driven vehicles will be due to some software error, perhaps the victims of robot car accidents will sue Google or other robot car manufacturers in product liability actions for selling defective products (defective software code). Such a system would insure that accident victims are compensated, but it would also mean that robot car manufacturers — the Googles, Fords and Toyotas of the world — would become the insurer of every car accident. Could any car manufacturer afford such a burden? Likely not.
It seems what we need therefore — in order to insure that the victims of robot-driven cars are compensated — is new legislation which would change the common law rules that govern car accidents. In particular, we need a system of compulsory auto insurance and a new legislatively-created rule that the owners of driverless cars are responsible for all accidents that they cause, regardless of whether they were piloting the car at the moment the accident occurred.
Such a change would replace our current negligence-based system of liability for car accidents with a strict liability regime that makes cars’ owners automatically liable for any damage caused by their cars, but it seems the only workable legal framework for a future of driverless cars.
Under the current legal regime, car manufacturers would have to insure every accident on their own, a burden that no company, even one as large as Google, can afford.

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Kaiser Health Sues Hospital Chain For Padding Bills

dollar-sign-clipart-profits-up-prev1175393776ezKR76.jpgKaiser Health, one of the largest health insurance companies in the nation, is suing Prime Health Services, Inc., for taking Emergency Room patients and unnecessarily having them stay for extended periods of times on an in-patient basis, as part of an alleged scheme to drive up the price tag of the hospital visits.
Patients who were victimized by this practice report having difficulty checking themselves out of the hospital — even when they were in good health.
This is just another example of the biggest problem with American health care. The costs of medical malpractice — direct and indirect — are a tiny portion of health care spending. The real problem with American health care is that the financial incentives all align for providing unnecessary care and overtreating, rather than preventative care.

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Law Blog Roundup

  • This is one that I wish I had time to blog about. The Atlantic‘s Andrew Cohen wrote an article about a train crash in California that killed twenty-four people and seriously injured a hundred more. In 1997, Congress passed a law called the Amtrak Reform and Accountability Act that capped damages in train crashes at $200 million. Sounds great — until you have a train crash that injures over one hundred people seriously and their lifetime’s lost incomes, future medicals, etc. amount to more than $200 million. Then you have a heart-wrenching situation where a judge has to determine who gets what, potentially leaving some people without enough money to pay for their medical care.
    PointOfLaw’s Ted Frank, a tort “reform” advocate has tried to distance the tort reform movement from the mess, saying, “no reformer I know of proposes per-accident caps [on damages] or economic damages caps,” insisting that bona fide tort reformers limit themselves to caps on pain-and-suffering.
    Professor Bernabe replies here. The idea that tort reforms do not support caps on economic damages or other drastic reforms is completely risible. For instance, if you search older posts on his blog, Professor Bernabe has chronicled a nascent tort reform program: the abolition of joint-and-several liability. (A definition of joint-and-several liability can be found here). Tort reformers don’t want to limit merely economic damages. They’ve embarked on a root-and-branch campaign to make lawsuits futile to file. And if mainstream tort reformers are opposed to caps on economic damages, they’re killing us with their silence.
  • Killer Cars: An Extra 1,000 Pounds Increases Crash Fatalities By 47 Percent

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Should Lawyers Need Law Licenses?

Lawyer Requirements.jpgThere’s a new book being published by the Brookings Institution think tank that is attracting a lot of attention in the blogosphere (see here, here and here). The book, authored by Clifford Winston, Robert Crandall and Vikram Maheresi is entitled “First Thing We Do, Let’s Deregulate All The Lawyers” and its premise is simple: you shouldn’t have to go to law school, pass the bar exam or obtain a law license in order to be a lawyer. Winston, Crandall and Maheresi argue that the requirements that lawyers spend three years in law school and pass the bar exam in order to obtain a law license are merely anticompetitive measures that drive up the costs of lawyers’ services and insure that some poor people who need lawyers cannot get them.
It may make me a bit of a pariah as a lawyer, but I wholeheartedly agree.
Lawyers are rarely called upon to make a defense of the regulation of their profession, but when they do, they usually insist that the law school-and-bar exam educational complex is necessary to protect people from bad legal representation. The thinking goes that, if not for regulations mandating that lawyers attend law school and sit for a bar exam, the market would be flooded with all sorts of shysters. Regulation of lawyers is necessary to protect consumers from their own ignorance.
This is a patently bad argument. The same argument used to be trotted out by members of medieval guilds. Under the guild system, in order to sell candles you had to be a member of the chandler’s guild. In order to sell shoes, you had to be a member of the shoemaker guild, and so forth for dozens of occupations. The guilds used to insist that such restrictions on competition were necessary to insure that consumers got a product that worked. Otherwise, the thinking went, the marketplace would be flooded with candles that didn’t burn and shoddy shoes. But, eventually, these craft guilds were abolished and consumers weren’t injured. The candles continued to burn just as well and, in fact, they got cheaper. Consumers benefited.
Today of course, if I want to open a factory and manufacture candles or light bulbs, there are no regulations that I have certain training or experience. The market will sort it out.
The same result would no doubt obtain if law licensure requirements were abolished.
Yes, legal services are different from consumer goods like eyeglasses and light bulbs. A consumer who buys a pair of eyeglasses or a light bulb knows, after purchasing, if he has gotten a quality piece of merchandise. That doesn’t necessarily apply to the consumption of legal services: a lawyer knows a great deal more about the quality of his goods than the client.
But, in a de-regulated legal profession, lawyers would find a way to signal their quality. Just as Nike brand sneakers signal a particular level of quality, a Nike-branded law firm would signal a particular grade of legal representation. Moreover, third-party vendors and consumer media outlets would also provide quality assurance.
If any lawyer truly believes that the public would be harmed by incompetent legal representation in the absence of some regime of professional licensure, ask him who he thinks could do more harm to his law firm — a first-year law associate or the firm’s IT professional? The answer of course is the IT guy: with a few keystrokes, he could delete the firm’s entire file system. A first-year lawyer at the firm could never do so much damage. And the firm’s IT guy does not need to possess any credentials to hold himself out as an “IT guy.” Nevertheless, I have yet to hear of a law firm imploding due to incompetent IT personnel.
The fallback argument for many defenders of legal regulation is not that people need protection from low quality lawyers but that our system of justice requires men and women of high character to be lawyers. Any knave can be a fishmonger, the thinking goes, but lawyers occupy a position of special public trust. We at least need some barriers to entry to insure the practice of law does not devolve into a free-for-all with lawyers of bad character suborning perjury, comingling client funds with their own, and engaging in all manner of other malfeasance.
Of course, politicians occupy positions of public trust equal to or greater than the special position occupied by the average lawyers. And we don’t require politicians to pass some test before they assume office. Instead we have ethical rules that apply to their conduct once they assume office. And the same sort of regime could preserve the public trust placed in lawyers: you don’t have to pass a bar exam or a character and fitness test to get in, but once you’re in, you better play by the rules or you’ll face expulsion.
Whether lawyers like it or not, sooner or later the legal profession is going to have its entry requirements abolished. Top lawyers are now seeing their hourly rates climb to $1,000 an hour. The legal fees in the GM bankruptcy might top $1 billion. That’s real money, even at the Fortune 500 level. And when corporations feel oppressed by legal fees, they will lobby for stripping away the anticompetitive restrictions that drive up their legal bills. For lawyers contemplating what a deregulated profession will look like, it’s not a question of if, but when.

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The Casey Anthony Closing Arguments And “Temporal Variance”

Casey Anthony.jpgThis past week, over at Volokh Conspiracy, law professor Mitch Berman has been blogging about “temporal variance” in the enforcement of rules by referees and judges. The idea of “temporal variance” is well known to any sports fan, even if Berman’s phraseology is not. The idea is that, by unwritten consensus, different sets of rules are enforced at different times of contests — whether they be legal, athletic or some other kind.
Toward the end of a game, or in playoff competition, referees enforce a different set of rules than normally applies. They tend to “let the players play” and to avoid calling ticky-tack penalties.
Abiding by these unwritten rules is a part of sportsmanship and good conduct. It violates the unwritten rules of the game, whether it’s hockey or soccer, for players to flop and seek to have the referees intervene to influence the outcome of the match.
In reading through some of Berman’s blog posts on “temporal variance,” one recent, very prominent example of the “let the players play” norm being violated sprang to mind: Jose Baez’s closing argument in the Casey Anthony trial. I watched hardly any of the trial but I caught a chunk of Baez’s closing argument and, as a lawyer, took offense at the gratuitous objections made by the prosecution. The prosecution’s offense — their numerous objections, which interrupted the rhythm of Baez’s closing — was an example of temporal variance in action.
Normally in a trial, when the opposing side tries to do elicit some evidence that you think shouldn’t be allowed, you rise to your feet and announce, “Objection!” The judge/referee will then either sustain the objection or overrule you.
But in closing arguments, by unwritten rule, you don’t do that. If the other side says something you find objectionable, you wait until she finishes her closing argument, approach the bench at sidebar and ask for a limiting instruction to the jury or for your objection to be noted for the record. It’s considered truly bad form to interrupt the rhythm of someone’s closing argument to lodge an objection in open court.
Closing arguments in a trial are the ultimate playoff moment, the time of “let the players play.” There’s no rule of evidence that says a different standard applies during closing arguments, but one does.
Watching Baez’s closing argument in the Casey Anthony case, I became infuriated at the prosecution’s incessant objections on the most minor points. It truly seemed to me that the prosecution were exhibiting poor legal conduct, something analogous to the kind of poor sportsmanship implicit in a player flopping on the ground and looking for a call. But even worse, because a contest where someone’s life is at stake calls for a much higher standard of conduct than the norm.
And it seemed to me that Judge Belvin Perry did a poor of refereeing the closing. Instead of rebuking the prosecution for their petty objections, Perry carefully considered each one of the prosecution’s objections before deciding whether to sustain or overrule it. (Perhaps this is the byproduct of Florida’s elected judiciary; if we chose our referees by popular vote too, they might be wondering how their calls would be reviewed come election time).
Given the fact that prosecutors Jeff Ashton and Linda Drane Burdick seemed to give so little honor to the unwritten rules of the legal contest, it came as little surprise to learn this week that the prosecution may also have violated a legal rule graven in stone: the constitutional rule of Due Process that the prosecution turn over to the defense all exculpatory evidence in its possession. According to reports, software designer John Bradley alerted prosecutors that a key piece of evidence in the Anthony trial — the number of times that Anthony supposedly googled “chloroform” — was mistaken. There was a flaw in his software that made it seem like Anthony googled “chloroform” 84 times when in fact it had only been googled once. Yet the prosecution did not disclose Bradley’s admission of error to the defense and argued to the jury that Anthony searched “chloroform” 84 separate times.
The rules of the game might vary with time, but it seems like one’s character and sportsmanship are constants.
PS — For any lawyer who agrees that judges ought to employ some form of “temporal variance” consider the following question: it’s the middle of trial and the plaintiff has a great case on liability — unfortunately plaintiff’s only viable claims are outside the scope of the complaint. Should a judge allow an amendment freely in the middle of trial? Or should the judge deny any motion to amend the complaint?
It might seem that allowing the amendment would most embody the “let the players play” ethos: it would allow the contest to be determined by a good old-fashioned slugfest in front of the jury. On the other hand, in this type of situation, it’s hard to think of a call that would more clearly involve the judge placing his or her thumb on the scales to influence the outcome.

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