Boston Personal Injury Lawyer Blog

Over the past week or so, National Review's Avik Roy has kicked off a bit of a blogospheric firestorm with his posts on a journal article published in the latest edition of the Annals of Surgery entitled "Primary Payer Status Affects Mortality for Major Surgical Operations." The article analyzes the surgical outcomes of 839, 658 patients who had surgeries between 2003 and 2007, in terms of what type of health insurance, if any, the patients had. The study's authors conclude that patients with Medicaid or who were uninsured fared more poorly in their outcomes than patients with private insurance.

Some blog posts have erroneously suggested that the article concludes that patients with Medicaid actually had worse outcomes than the uninsured, but that is not the case. Medicaid patients fared worse than the uninsured in one limited category - in-hospital mortality (deaths occurring during the hospital stay). Overall, patients with private insurance had a the lowest mortality rate. Their mortality rates were nearly half of those with Medicaid and the uninsured. (The overall mortality rates of the uninsured were 0.5% higher than those with Medicaid).

There are many reasons that we would expect Medicaid patients or the uninsured to fare worse than patients with private insurance. Patients on Medicaid or without any insurance are likely to be poorer than patients with private insurance and being poor means you're more likely to suffer from a wide range of health problems from hypertension to diabetes. So the poorer health of Medicaid patients and the uninsured prior to their surgeries is one explanation that we have to take account of.

But so too are differences in the surgical talent performing the surgeries and the rates at which doctors are compensated in performing private insurance, Medicaid and uninsured surgeries. Medicare reimburses doctors at only a fraction of the rate of private insurance and Medicaid reimburses doctors only three-quarters of Medicare's already discounted rates. Because of these low rates of reimbursement, a growing number of the most sought-after doctors are turning away patients with Medicaid.

Due to a vacation that I took and assorted demands of my practice, I haven't blogged much this month. Bereft of ideas after being out-of-contact with the blogosphere over my vacation, I decided to cast about my favorite legal blogs for inspiration. You can imagine my surprise when, upon clicking on my first bookmark - Eric Turkewitz's New York Personal Injury Law Blog - the first post I saw was a post about me (in part)!

It was a surreal moment worthy of the movie Inception (which I saw on vacation), a bit like opening your newspaper and the first story you read mentions you.

Eric's post made me want to reiterate two points. First, I am grateful for the links that my blawg has received, especially from some of the preeminent law blogs like Eric's and Point of Law and Overlawyered. Eric's post was about the open-mindedness of Walter Olson in linking to sites (like mine) that are critical of the tort reform movement.

What struck me as remarkable - in addition to Olson's open-mindedness - is how open people like Eric and Olson and Ted Frank are to blogging newcomers. Olson is the godfather of legal bloggers; his blog Overlawyered is, without dispute, the first legal blog, dating back to 1999. Eric's New York Personal Injury Law Blog is one of the most-read law blogs in the country. One might imagine that, sitting atop the legal blogosphere, people like Eric and Walter and Ted Frank, might believe in a pecking order based on a system of seniority. However, the sole criterion they seem to rely on in their references to other blogs is whether a post is "linkworthy." I appreciate that fact.

Secondly, although I've sometimes thrown some sharp elbows in the direction of Olson or Ted Frank or their blogs, I do respect a lot of the work they do. Olson has drawn a lot of attention to our broken copyright system. Olson and Cato have also drawn a lot of attention to the problem of "overcriminalization" - the phenomenon of broadly-worded federal criminal statutes that criminalize conduct that no one would suspect is criminal. Frank has done great work in addressing some of the agency problems inherent in consumer class action litigation.

When I agree with Olson or Ted Frank, I rarely blog about it because most often the topic does not fall within the subject matter of this blog - personal injury law. For example, a couple of weeks ago, Ted Frank had some praise for an op-ed about how our tax laws have created an American aristocracy that can transfer wealth from generation to generation. Frank's sentiments are as American as apple pie and go back as far as de Tocqueville. A couple of months ago, I recall reading with disgust this story about Dan L. Duncan, who may have been the first American billionaire to pass his fortune to his children entirely tax-free.

And when Ted Frank blogs about how all lawyers should be using RECAP so that the public has better access to legal information, I don't post applauding the idea (even though I am a long-time user and believer in RECAP).

Where I disagree with Olson and Frank is the emphasis they place on tort reform. To my mind, our tort system runs well, and if I were going to set out a program of legal reform it would be focused in fields like intellectual property law, criminal law and immigration law. But I am glad that people on both sides of this debate - whether tort reformer or trial lawyer - are interested in a genuine conversation and not just inhabiting an echo chamber.

Last week, big business shill Theodore H. Frank wrote an op-ed drawing on data from a Los Angeles Times article reviewing the fifty-six fatalities attributed to sudden uncontrolled acceleration problems with Toyotas. Frank noted that, in about half of the car crashes, the driver's age could be ascertained from the LAT's compilation and the ages of the drivers skewed to the elderly.

The next day, blogger Megan McArdle tracked down the ages of "all but a couple" of the drivers involved in the Toyota crashes and revealed that the "overwhelming majority" were over fifty-five years old.

A lot of people have hypothesized that the sudden uncontrolled acceleration accidents involving Toyota might be caused by a computer or electronic bug in the cars' throttle. Since there's no reason to believe that Toyotas with a computer bugs would discriminate against older drivers, Frank and a host of other bloggers* trumpeted the results as proof that there is no electronic problem with Toyota's computerized engines and that, in fact, the blame lay with older drivers' driving skills (or lack thereof). (Question(s): McArdle used a cutoff age of 55 and up. Are 55 year olds, in today's world, frail or senescent? Most research does not show a significant decline in driving ability until a couple of decades after 55 and I know many people in their sixties who are in far better physical shape than I am. What would her findings have been if she included only drivers 70 and up?).

Ted Frank and a bunch of his colleagues from the (shallow end of the) think tank business used the findings to question the honesty of drivers who reported uncontrolled acceleration problems, likening them to frauds like "balloon boy."

So what should we conclude? Should we conclude that the whole "Toyota panic" is merely a media-driven phenomenon about routine errors committed by all elderly drivers?

I don't think so. As I blogged over a month ago, in 2009 forty-one percent of complaints of sudden uncontrolled acceleration involved Toyotas, while Toyota only held sixteen percent market share - a fact that was lost on a lot of people. Since the time I posted that blog, NPR's Robert Benincasa did something that the government does not do - track reports of sudden uncontrolled acceleration by make and model - and found that, since 2002, Toyota has seen a troubling rise in complaints of sudden uncontrolled acceleration. The problem doesn't seem to be old people and driving; the problem seems, if anything, to be old people and Toyotas specifically.

In addition, the "older driving theory" doesn't account for the most spectacular Toyota crash of all - the (physically fit) California state trooper whose recorded conversation with a 911 operator details his efforts to get his Lexus to brake.

Ultimately, I think we - whether as consumers or jurors or simply concerned citizens - need to come to grips with the fact that there may be a problem with Toyotas that we may never directly explain. A lot of people have theorized that Toyota's problems may lie with a computer bug inside its engines. (Competing explanations - floor mats, driver error, etc. - don't seem to account for the disproportionate number of Toyotas involved in these crashes). If it's the case that there's a computer bug that plagues Toyotas, we may never find out precisely what it is and why, in some cases, it caused crashes. Toyota's engines may forever remain to us a bit of a "black box" - a computerized system that we can't see inside or fully understand.

People tend to assume that, if there's a computer programming error, we can simply pore over the code and figure out if there's an error. After all, computer programming is just logic and logic is supposed to be completely transparent. But, as science fiction writers like Isaac Asimov have shown us, you can start with a few logical principles that dictate the behavior of computers or robots and wind up with some completely unintended consequences.

We are all familiar with real life examples of this. One dramatic, and fairly recent example, was the Great Northeast Blackout of 2003 (which was caused in part by computers behaving in unexpected ways). Giant companies like Microsoft come out with products like Windows Vista that are so ridden with programming problems that they become unsalable.

Sometimes the bugs are never figured out. When a program that you're running crashes, often the product's designer has no reason why it crashed - that's why, after the program returns to life, it asks you for permission to send a report to the manufacturer for analysis. My friends in computer programming tell me that, very often, software engineers are unable to untangle the reasons for these errors.

We may never get to the bottom of Toyota's uncontrolled acceleration car crashes. But that does not mean the problem is not real. Or that Toyota should not be held accountable for its failure to investigate and address these issues.

I'm currently reading Michael Lewis' new book The Big Short: Inside The Doomsday Machine, about the subprime mortgage collapse. (Side note: while I was happy to see Sandra Bullock win an Oscar the other night for her role in the movie production of Lewis' book The Blind Side, where was the Oscar nom for Tim McGraw, who was just great in his role as Sean Tuohy?).

One of the heroes of The Big Short is Dr. Michael Burry, a Stanford-trained neurologist who left the practice of medicine to manage a hedge fund called Scion Capital. Mike Burry was one of a handful of Wall Street-types who foresaw the collapse of the subprime market. What was it about Burry that enabled him to see what financial giants like AIG, Lehman Brothers, Bear Stearns and Merrill Lynch missed?

Lewis offers two of Burry's personal traits as explanations. First, Burry lost one of his eyes as a child and the glass eye he wore as a replacement made it difficult for him to engage in normal eye contact in social situations and difficult for him to participate in team sports, imparting to him something of an outsider's perspective.

Second, Burry, like Warren Buffet's partner Charlie Munger (another guy with only one eye), had a preternatural ability to ferret out the hidden incentives that motivate people's behavior. Even before he was in finance, back when he was a neurology resident, Dr. Burry spotted his colleagues' tendency to act in their own financial best interests, rather than doing what was best for the patient.

Burry noticed:

"Even in life or death situations, doctors, nurses, and patients all responded to bad incentives. In hospitals in which the reimbursement rates for appendectomies ran higher, for instance, the surgeons removed more appendixes. The evolution of eye surgery was another great example. In the 1990s, the opthamologists were building careers on performing cataract procedures. They'd take half an hour or less, and yet Medicare would reimburse them $1,700 a pop. In the late 1990s, Medicare slashed reimbursement levels to around $450 a procedure, and the incomes of the surgically minded ophthalmologists fell. Across America, ophthalmologists rediscovered an obscure and risky procedure called radial keratomy, and there was a boom in surgery to correct small impairments of vision. The inadequately studied procedure was marketed as a cured for the suffering of contact lens wearers. 'In reality,' says Burry, 'the incentive was to maintain their high, often one- to two-million dollar incomes, and the justification followed. The industry rushed to come up with something less dangerous than radial keratomy, and Lasik was eventually born.'"

What does any of this have to do with medical malpractice law? Well, as our country struggles to find a way to overhaul our dysfunctional health care system, people are casting about for ways to reduce health care costs. The Republicans and the tort reformers have proposed a one-size-fits-all answer: medical malpractice reform - making it harder for people to sue their doctors and capping their damages for pain-and-suffering.

The Republicans and the tort reformers say that fear of medical malpractice lawsuits has driven doctors to practice "defensive medicine" - ordering numerous unnecessary tests and procedures to protect them in case they get sued for medical malpractice.

What hedge fund managers and medical malpractice lawyers understand is that, very often, doctors aren't running unnecessary tests and procedures because they fear medical malpractice lawsuits; they are, very often, whether consciously or not, ordering the tests and procedures because they are lucrative.

But don't take my word for it. Take the word of a certified financial genius like Dr. Burry, who saw what virtually everyone else on Wall Street missed.

Now to plow through some of the other books on my nightstand, including Dr. Atul Gawande's Checklist Manifesto.

OK, so unless you've been living under a rock, you've heard countless stories about the massive global Toyota recall for problems with sudden uncontrolled acceleration. Millions of cars have been recalled in the US and Europe.

Now guess how many Toyota cars have been recalled in the company's home country of Japan. Just try and guess.

If you guessed zero, it's too bad there's no prize for the right answer. Because you'd be spot on.

Why haven't any Toyotas been recalled in Japan? Is it because Japanese Toyotas are somehow immune to the accelerator problems that have led to horrific car crashes elsewhere?

Nope, it's because Japanese consumer protection and products liability laws are astoundingly weak. (The country only has one full-time auto recall investigator, who is augmented by about a dozen temp workers).

In the 1970s, Fumio Matsudo, sometimes referred to as the "Ralph Nader of Japan," tried to blow the whistle on some unsafe Nissans. He was rewarded for his actions with his arrest and criminal blackmail charges.

Maybe the tort reform crowd from think tanks like the Manhattan Institute can move to Japan. It sounds sort of like their version of utopia. The rest of us can be glad that we live in Massachusetts, in the good old United States, where our legal system at least makes some effort to protect us from unsafe products.

Continue reading "Just Be Glad You Live In Massachusetts" »

Reading the tort reform blog Pointoflaw.com, I came across a link captioned: "'Ford failed to warn seating unsafe for obese persons' suit fails." Sounds pretty frivolous, right?

I followed the link to Abnormal Use, a corporate defense blog, which has the virtue of being intellectually honest, unlike Pointoflaw. There I got the whole story.

It wasn't just some overweight person who was suing Ford for failure to warn a chair might collapse under her weight.

The plaintiff in the case was a 300 pound woman driving a Ford Explorer that was rear-ended by another SUV at the (relatively low) speed of 30 mph. The impact of the accident caused her seat to collapse backwards. The accident also left her a paraplegic.

Ford hadn't tested or designed the seats for anyone above 220 pounds. Now here's a little graph that I just found through a simple google search that shows about 5-10 percent of men are in the 220 pound range. Yet Ford didn't bother testing above 220 pounds.

And this poor woman wound up a paraplegic in a 30 mph accident. Sound frivolous now?

Yet, according to the blog post, the trial court entered a directed verdict against her on her failure-to-warn claim and didn't even let that claim get to the jury.

I assumed that this woman's failure-to-warn claim was not her only claim and that she also brought breach of warranty claims against Ford. I was hoping that she managed to prevail on one of those other claims. I went to the (unreported) decision on Westlaw. It appears the other claim did make it to jury and that the jury found against her.

I have a great respect for juries and jury verdicts so I'll leave alone the fact that the jury found against her on a strict liability standard that should've been unfavorable to Ford.

But the online reporting about this case illustrates how the media stir up worries about frivolous lawsuits.

This wasn't an overweight person who sued Ford because the seat collapsed under her weight and she fell on her butt. This was a woman who was rendered a paraplegic, in part, because Ford didn't test its seats above a weight range within which some ten percent of the adult male population falls. And she wasn't suing Ford for failing to include a warning label on the chair saying, "If you're too heavy, this seat may cause injuries." Her failure-to-warn claim was just one of the legal theories she pursued (her claim for breach of the warranty of merchantability was much stronger).

From a societal perspective, cases like these should really boil down to: Who should bear the cost? As a paraplegic, this woman will require millions of dollars in medical care for the rest of her life. Who should bear the cost of that? We, the taxpayers, or Ford, a company that profits from a car seat that it never bothered to test at 30 mph with a dummy weighing more than 220 pounds? If Ford has to bear the cost do you think that maybe next time they might design a better seat?