Washington, DC Personal Injury Lawyer

Loser Pays Tort Reform Would Bar All Medical Negligence Cases

Christopher Nace — Wed, 04 Nov 2009 10:24:23 GMT

A story in the Atlanta-Journal Constitution discusses a plan by Senator Lindsey Graham of South Carolina and Senator Saxby Chambliss of Georgia to enforce a "loser pays" system in medical negligence cases as part of health care reform. Such a plan would close the courthouse doors to many individuals harmed by medical negligence cases each year, including the 98,000 who die from medical errors every year.

But the losing party would be required to pay its opponents' legal fees, which could be in the hundreds of thousands of dollars.

The idea of loser pays means that if you take a case to court and lose, you are responsible for the other sides costs. Costs include minor costs such as filing fees and copying costs, but also would cover costs such as expert fees and possibly attorney fees. These costs in a medical negligence case--if you included the attorney fees--could reach into the several hundreds of thousands of dollars. Ask yourself this: if you were injured as a result of crystal clear medical negligence would you risk being on the hook for $250,000 if a jury found against you at trial? Cases would never get filed. Senators Graham and Chambliss either know this and have no desire but to close the court house doors to injured individuals or have been irresponsible in studying the issue.

Others who have weighed in on the idea see it as a preposterous approach to a minor cost on our health care system:

According to the left-leaning advocacy group Public Citizen, malpractice litigation costs represent less than 1 percent of the total cost of health care in America.

"This is worse than bad, it's really ridiculous," David Arkush, director of Public Citizen's Congress Watch division, said of Chambliss and Graham's proposal.

Arkush said that medical malpractice litigation costs have actually declined in recent years and are at an all-time low, despite the fact that overall health care costs continue to rise.

Attorney Robert Peck said the senators' proposal isn't just unnecessary, it's dangerous for patients.

"It's not going to solve any problems," said Peck, president of a Washington, D.C., law firm called the Center for Constitutional Litigation. "But it will significantly destroy the access to the courts for patients injured by the negligence of their health care providers."

The fact is that a medical negligence case will cost a plaintiff at least $75,000 in his or her own costs to file and prosecuted. These cases are very complicated and challenging as well as expensive. The idea that there are a number of frivolous lawsuits being filed is simply wrong.

The economics of a medical negligence case are such that frivolous cases simply don't get filed. A loser pays system would do nothing more than close the courthouse door to individuals who were harmed by the negligence of others. Shouldn't those that are injured through the errors of others at least have a chance to let a jury decide their case without the risk of a punitive, $250,000 penalty for losing that case?

Originally posted at InjuryBoard by Christopher Nace

A Doctor's Perspective on Tort Reform

Christopher Nace — Wed, 28 Oct 2009 10:46:32 GMT

Rahul K. Parikh, M.D. is a brave man. In an article he has penned for the online magazine Salon, Dr. Parikh takes on his colleagues, peers and the American Medical Association and challenges the idea that medical malpractice lawsuit reform, or tort reform, must be part of a national health care plan to bring down the cost of health care.

In addressing the myths of tort reform propounded by doctors and insurance companies, Dr. Parikh states that:

Their refrain is familiar to anybody following the healthcare reform debate. The only problem is that it's not true. There's nothing "sure or quick" about changing medical liability laws that will improve healthcare or its costs. Defensive medicine adds very little to healthcare's price tag, and rising malpractice premiums have had very little impact on access to care.

Throughout the article, Dr. Parikh challenges the notion that there has been a so-called "explosion" of medical liability lawsuits, that defensive medicine is driving the cost of health care up, and that lawsuits are driving doctors out of business.

In citing a Harvard study, Dr. Parikh explains that

In 2006, researchers from Harvard published a study in the New England Journal of Medicine that was designed to avoid the limits, and the biases, of prior research. What they found kills the notion of frivolous lawsuits. It suggests that most people who sue are suing for good reason.

As for defensive medicine,

Yet more recent analyses show that the effect of defensive medicine on overall costs is, at best, marginal. The most visible of them came from the nonpartisan Congressional Budget Office. In a 2004 report, it reviewed studies suggesting tort reform did reduce healthcare costs, including the Kessler and McClellan study. However, when the CBO applied the methods used in that study to a broader set of ailments, it found no evidence that restrictions on tort liability reduced medical spending. It also found no difference in per capita healthcare spending between states with and without limits on malpractice awards. More recently, the Kessler-McClellan study received another blow when two new authors reassessed their original work. Unlike the original study, this one looked at the effects of tort reforms over a longer time period. Just like the CBO review, it concluded that "Direct reforms (caps on damages, abolition of punitive damages, eliminating mandatory prejudgment interest, and collateral source offset) did not significantly reduce payments for Medicare-covered services."

Dr. Parikh seems to hit the nail on the head in his final paragraph:

Tort reformers neglect the fact that malpractice reform won't save one extra life. To make that difference, insurers, doctors and their lobbyists like the AMA need to find ways to improve patient safety. So for those who push tort reform as a panacea for a sick healthcare system, working to prevent injuries is a much more noble pursuit than writing up baseless arguments for the back pages of a newspaper.

I'm a lawyer. If you want to discount my blogs about tort reform, I can understand that. But take a moment and read Dr. Parikh's article. Perhaps you will find the honest views of a doctor more persuasive. Regardless of profession, we should all agree that patient safety should be the number one driving factor in any health care reform efforts. Dr. Parikh explains that tort reform is not a way to bring about better patient safety.

Originally posted at InjuryBoard by Christopher Nace

The Reality and Injustice of "Caps" on Noneconomic Damages

Christopher Nace — Mon, 19 Oct 2009 22:12:04 GMT

So-called "caps" on non-economic damages have been making a lot of news these days as part of the health care reform debate. The idea is to limit non-economic damages--or damages for pain and suffering--to some arbitrary number. Often $250,000 is the number bandied about.

Let's set aside the capriciousness of a $250,000 cap for a moment. Rather than try to figure out where this number comes from, let's consider who is most affected by such a cap.

I represent the family of a young woman who died as a result of medical negligence. She was unemployed at the time of her death because she suffered from something called "startle syndrome" where unexpected noises would cause her to collapse to the ground. She was undergoing treatment to get this under control so she could follow her dream of going to culinary school. The failure to properly administer and monitor a particular medication was the cause of her death.

While she wasn't working, she volunteered in her community at a school while she tried to get a teaching certificate. If she couldn't be a chef, she wanted to be school teacher. She was also loved dearly by her mother, father and two sisters. Since she wasn't earning wages, though, the most her family could collect for her unnecessary death would likely be $250,000 if such a cap was in place.

Now, consider a vice-president at AIG who was earning $1 million annually. The same negligence at the same hospital would permit the family of the AIG executive to collect his lost wages of $1 million for each year until his presumed retirement, plus $250,000 for pain and suffering.

Is that fair? Is that justice? Is that what America is about? In fact, it is exactly the opposite of what our civil justice system believes, that all are equal under the law. An arbitrary cap on non-economic damages specifically says that all are not equal under the law: instead, a Wall Street tycoon's life is worth more than that of someone with a dream to be a chef or a teacher who is volunteering in her community until that dream becomes a reality.

Is that the type of civil "justice" system we want in the United States? Is that the type of civil justice system that we want protecting our children and neighbors?

Caps on non-economic damages value some lives more than others. That's not right in any country, and certainly not the United States.

Originally posted at InjuryBoard by Christopher Nace

President Uses Tort Reform -- or Patient Rights -- as a Bargaining Chip

Christopher Nace — Wed, 09 Sep 2009 21:21:01 GMT

During his speech to the a joint session of Congress tonight, President Obama discussed a perceived need for medical malpractice reform:

Finally, many in this chamber - particularly on the Republican side of the aisle - have long insisted that reforming our medical malpractice laws can help bring down the cost of health care. I don't believe malpractice reform is a silver bullet, but I have talked to enough doctors to know that defensive medicine may be contributing to unnecessary costs. So I am proposing that we move forward on a range of ideas about how to put patient safety first and let doctors focus on practicing medicine. I know that the Bush administration considered authorizing demonstration projects in individual states to test these issues. It's a good idea, and I am directing my Secretary of Health and Human Services to move forward on this initiative today.

Interesting choice of words:

I have talked to enough doctors to know that defensive medicine may be contributing to unnecessary costs.

"May be contributing." There is no evidence that malpractice would affect the cost of health care. None. As I blogged yesterday, the fact is that medical negligence insurance and lawsuits amount to no more than a combined 1% of all health care costs. And many have pointed out that there are 98,000 deaths each year caused by medical errors:

In fact, he said, studies show that medical errors are “the sixth leading cause of death in America—the equivalent of two jumbo jets crashing every day.”

So why would President Obama offer up patient rights when it "may" reduce costs, and when there is no evidence that it would? Politics. This is nothing more than a bargaining chip. President Obama has elected to treat patients--not lawyers--as a bargaining chip. Because while Republicans see this as an attack on trial lawyers, the fact is that it will ultimately affect the victims of medical negligence.

Don't let the President use patient rights as a bargaining chip: call your Congressperson, your Senators and the White House and tell them not to use patient rights as a bargaining chip.

Originally posted at InjuryBoard by Christopher Nace

Tort "Reform" Would Add Insult to Injury

Christopher Nace — Tue, 08 Sep 2009 21:55:47 GMT

The Washington Post ran a story today about a young girl who contracted a rare infection that could have had catastrophic results had not been diagnosed when it was. The story discussed how it was only after several attempts were made that the rare disease was properly diagnosed:

She was no better in the morning, even though a second antibiotic had been added. An ear, nose and throat specialist told the Dawns that if Brooke did not improve, surgery would probably be necessary to drain a possible abscess.

The next day was Halloween, Brooke's favorite holiday, but she showed no interest in any of the hospital-sponsored festivities, further alarming her parents. At this point, her mother said, Brooke had stopped eating and drank little. Her neck was so painful that the only thing that helped was packing it in ice. At the Dawns' request, an infectious-disease specialist was called in; he agreed it was a probable infection and adjusted her medications.

The drugs seemed to help, and that evening Brooke started to feel better. But her parents' relief was short-lived. In the morning, she awoke with a red rash covering her legs and groin. Worried that she might be allergic to one of the antibiotics, as she is to penicillin, doctors prescribed an antihistamine to counteract the possible allergy.

The rash got worse, spreading to her hands and feet, which began to swell. Brooke's lips turned red, as did her eyes. Doctors worried she was developing Stevens-Johnson syndrome, a life-threatening drug allergy that can cause a similar rash and redness.

Concerned that a throat abscess might have become walled off, preventing antibiotics from reaching it, the ENT specialist recommended surgery.

By that point, the fifth day of Brooke's hospitalization, the infectious-disease specialist was reconsidering. Suspicious of the red eyes and red lips, which are not typically associated with a drug allergy, he decided she might have Kawasaki disease, an unusual cardiac problem.

Was it medical negligence to fail to diagnose the disease? That's a good question, but at least one physician believes it should have been caught sooner:

The infectious disease specialist in Brooke's case declined to be interviewed, but Candace Gibbin, a pediatric cardiologist who specializes in treating Kawasaki at Johns Hopkins Hospital, said that drug allergy is "a very common red herring." The disease, she added, is often missed by physicians, despite guidelines to improve its detection promulgated in 2004 by the American Heart Association. Those guidelines say that doctors should consider Kawasaki in children with an unexplained fever lasting five days, when accompanied by other symptoms including red eyes without discharge, red lips or mouth, a rash and a swollen lymph node in the neck.

"Red eyes and red lips are an unmistakable sign of Kawasaki disease," Gibbin said.

"The reason people miss the diagnosis is that they don't sit down and put the signs and symptoms together," Gibbin said. "You have to have somebody leading the wagon train who can come in and synthesize what is going on."

But even more frightening is that the hospital and physicians almost discharged young Brooke without a diagnosis:

That night, after she seemed unable to move her neck, Brooke's parents took her to an area emergency room. A CT scan showed a swollen lymph node in her neck and an infection behind her throat. Doctors gave her intravenous antibiotics and told her parents she might have nicked the back of her throat with a sharp straw. At 2 a.m. they told the Dawns to take Brooke home.

"I pitched a fit," said Dawn, a former hospital chief financial officer who has many relatives who are physicians. Brooke, she insisted, was too sick to be discharged. The little girl was admitted.

Not all parents who take their kids to the ER are former hospital administrators or have relatives who are physicians. Fortunately for Brooke, her mom "pitched a fit" and got her little girl admitted.

Let's not talk about whether there was negligence in this case. Let's assume, though, that Brooke had been discharged and was not eventually diagnosed. The results could have been tragic.

And if tort "reform" is passed, Brooke and her parents might never have been able to take their case to court.

The fact is that medical malpractice happens. In fact, there are 98,000 preventable deaths each year from medical negligence. The cost of malpractice litigation--often blamed for the high cost of heath care--amounts to no more than 1% of the total cost of healthcare in the United States.

Shouldn't those responsible for the 98,000 unnecessary deaths be held responsible in a court of law? Shouldn't the families of those 98,000 victims have the option--just the option--to bring their case before a jury of their peers? Isn't the right to trial by jury--a right so American that it was included in the bill of rights--worth 1% of healthcare costs when health insurance companies are one of the most profitable businesses on the planet?

When the idea of tort "reform" is floated during the healthcare debate, ask yourself if victims of medical negligence--which takes 98,000 lives a year--shouldn't be allowed to have their day in court. Let's not sacrifice those who have already be victimized so that insurance companies can hold onto 1% more in profits.

Originally posted at InjuryBoard by Christopher Nace

"Defensive Medicine" a Sham Argument in Health Care Reform Debate

Christopher Nace — Fri, 31 Jul 2009 11:17:07 GMT

We've heard a lot about doctors practicing "defensive" medicine in an effort to avoid "frivolous" lawsuits. Of course, there is no evidence to suggest that so-called defensive medicine actually exists, or if it does, that it effects the cost of health care.

What we have learned, though, is that increased tests and studies can in fact increase a physician's bottom line. The Washington Post reported today on the practice of "self-referrals." Self-referrals occur when a doctor orders a test that he or she conducts for the patient. Consider the case of a urology clinic in Illinois:

In August 2005, doctors at Urological Associates, a medical practice on the Iowa-Illinois border, ordered nine CT scans for patients covered by Wellmark Blue Cross and Blue Shield insurance. In September that year, they ordered eight. But then the numbers rose steeply. The urologists ordered 35 scans in October, 41 in November and 55 in December. Within seven months, they were ordering scans at a rate that had climbed more than 700 percent.

So, why the huge increase in CT scans? Was it "defensive" medicine to stave off lawsuits? Nope:

The increase came in the months after the urologists bought their own CT scanner, according to documents obtained by The Washington Post. Instead of referring patients to radiologists, the doctors started conducting their own imaging -- and drawing insurance reimbursements for each of those patients.

So is this an isolated incident? Nope:

A host of studies and reports by academics and the federal government shows that physicians who own scanners order many more scans than those who do not. As a result, Americans pay billions of dollars in extra taxes and insurance premiums.

An attempt to pass this or some other practice off as "defensive medicine" is a scam. Even when a lawsuit is filed, a plaintiff needs an expert, generally in the same or similar field as the defendant, to testify as to the standard of care. It's not as if attorneys can simply come up with tests that should be ordered; doctors set the standard of care in their professional fields.

So next time someone suggests that they ordered a test because they were afraid of a lawsuit, ask them how much they were compensated for that "unnecessary" test.

Originally posted at InjuryBoard by Christopher Nace

Federal Judge Unseals Wyeth "Ghostwriting" Documents

Christopher Nace — Thu, 30 Jul 2009 14:25:12 GMT

A federal judge in Little Rock, Arkansas has ordered drugmaker Wyeth to turn over thousands of pages indicating that it paid "ghostwriters" to author and place studies about one of its profitable drugs, Prempro. The Chicago Tribune recently reported that:

A federal judge has ordered the unsealing of thousands of pages of documents pertaining to the ghostwriting practices of Wyeth Pharmaceuticals, which is being sued over hormone replacement drugs.

U.S. District Judge Bill Wilson ordered the papers unsealed Friday at the request of a medical journal and The New York Times. Plaintiffs attorneys presented the papers earlier at trial to show Wyeth routinely hired medical-writing firms to ghostwrite articles that appeared in seemingly objective medical journals but included only the name of a scientific researcher as the author.

This is a truly disturbing practice that has gained the attention of at least one U.S. Senator:

The New Jersey drugmaker already had turned over the documents, which it says concern about 40 articles in medical journals and other publications, to Sen. Charles Grassley, R-Iowa. Grassley sought them last year without a subpoena as part of a congressional investigation into drug-industry influence on doctors.

This is a true victory for consumers and was achieved in part by Public Justice, America's public interest law firm. (I recently blogged about Public Justice here.) The Tribune wrote that:

On June 11, a biomedical journal, PLoS, published by the Public Library of Science, filed a motion to intervene in the Prempro litigation. PLoS, represented by a public-interest law firm, Public Justice, wanted to set aside the confidential designation that had been placed on the documents before a series of trials began in 2006. The documents were shown to jurors at trial but were otherwise unavailable publicly.

Public Justice has said that they became involved because these practices are at odds with public health and safety:

"We are thrilled by the Court’s decision to stop Wyeth’s attempt to hide evidence of its ghostwriting,” said Amy Radon, Public Justice's lead attorney for PLoS Medicine. "Public health and safety is put at serious risk when a drug company fails to reveal its role in authoring a medical journal article touting its own product."

The federal judge ruling on the matter found that there was no good cause for keeping the documents under seal:

In his July 24 ruling, U.S. District Court Judge Bill Wilson, Jr., held that there was no good cause for secrecy and ordered that the documents be made publicly available as of 5:00 p.m. on Friday, July 31.

In fact,

“Wyeth did not even attempt to show good cause for keeping these documents secret," said Morgan "Chip" Welch of Arkansas’ Welch and Kitchens, LLC. “Judge Wilson’s decision will undoubtedly save lives."

A copy of Judge Wilson's order can be read here.

Originally posted at InjuryBoard by Christopher Nace

Public Justice Announces 2009 Trial Lawyers of the Year

Christopher Nace — Thu, 30 Jul 2009 14:09:31 GMT

There's a great organization that I'm a member of called Public Justice. Public Justice is America's public interest law firm; that is, unlike many public interest legal organizations, Public Justice actually files lawsuits in court on a wide range of topics from mandatory arbitration agreements, environmental issues, class actions, and so on. There is a ton of great information on their website, which was recently revamped and re-launched. This is a great site to check out if you need info on public interest topics or if you just want to read about Public Justice's victories.

Public Justice recently named the 2009 Trial Lawyers of the Year:

Two legal teams that each prevailed in long and hard-fought cases against formidable corporate and government defendants were named co-winners of the Public Justice Foundation’s 2009 Trial Lawyer of the Year Award at ceremonies in San Francisco on Tuesday night.

More specifically,

Ten attorneys from Philadelphia, Cincinnati and Denver were cited for their work in Cook v. Rockwell International Corp., in which they held the operators of Colorado’s Rocky Flats Nuclear Weapons Plant accountable for persistent radioactive contamination from the facility.

They shared honors with a team of five New York lawyers who recovered substantial damages for the families of the victims in the deadly 1988 bombing of Pan Am Flight 103 over Lockerbie, Scotland.

The attorneys for the winning teams were:

Exposing the Truth About Reckless Nuclear Weapons Makers: Cook v. Rockwell International Corp. Merrill G. Davidoff - Peter Nordberg - David F. Sorensen - Ellen Noteware - Jenna MacNaughton Wong - Louise Roselle -Jean Geoppinger - Gary Blum - Steve Kelly - Bruce DeBoskey

Holding Terrorists Accountable: Lockerbie , Scotland – Pan Am Flight 103 Litigation. James P. Kreindler - Steven R. Pounian - Michel "Mitch" F. Baumeister - Frank H. Granito Jr. - Frank Granito, III

The other finalists were equally as impressive in their victories:

Winning Equal Access to City Services for African Americans: Kennedy v. City of Zanesville. Reed Colfax - John Relman - Jennifer Klar - Kerstin Sjoberg-Witt - Rachel K. Robinson - Stefan Schmidt

Bringing Philip Morris to Justice: Williams v. Philip Morris. William A. Gaylord - Ray Thomas - James S. Coon - Charles S. Tauman - Richard Daynard - Cliff Douglas - Robert S. Peck - Maureen Leonard - Kathryn Clarke

Making Water Safe to Drink: In re Methyl Tertiary Butyl Ether (MTBE) Productions Liability Litigation MDL 1358. Scott Summy - Rob Gordon - Celeste Evangelisti - Carla Burke - Robin Greenwald - Perry Weitz

The actions of the defendants in these cases are nothing short of outrageous. We should celebrate the efforts of all five finalists for securing justice for their clients and all Americans.

Originally posted at InjuryBoard by Christopher Nace

New Report Shows Malpractice Costs Irrelevant to Health Care Costs

Jonathan Nace — Fri, 17 Jul 2009 09:23:30 GMT

A new report has shown the cost of medical malpractice lawsuits is insignificant to the total cost of health care. As detailed in the report, the total share of malpractice costs was less than 1% of health care costs, or more precisely 0.6%. Furthermore, while malpractice payments in 2008 hit an all time low, and dropped for the third consecutive year, health care costs continued to rise.

National media blogs have begun to pick up on the truth of so called "lawsuit abuse." And have even begun to receive agreement on the issue of "lawsuit abuse" from those who represent doctors in malpractice lawsuits. "There is no question that it is very rare that frivolous suits are brought against doctors. They are too expensive to bring," Washington defense lawyer Victor Schwartz said in 2004.

The fact of the matter is that "lawsuit abuse" is nothing more than a scarecrow to push a political agenda to protect insurance companies.

Originally posted at InjuryBoard by Jonathan Nace

Washington Metro Accident Didn't Have to Happen

Christopher Nace — Wed, 24 Jun 2009 10:23:31 GMT

Yesterday I wrote that we would be learning more and more about the Washington Metro accident fairly soon because the NTSB was usually willing to share information quickly following such tragic events.

Today, that information is continuing to come out, and the Washington Post is reporting that the driver of the second train may have in fact tried to manually apply the brakes to avoid collision.

The operator of the Metro train that slammed into a stationary train in front of it apparently had activated the emergency brakes in a failed effort to stop before the accident, federal officials said yesterday as they searched for the cause of Monday's Red Line wreck that killed nine and injured 80.

What's more troubling is that

Metro sources said, the first two cars of that train were two months overdue for scheduled maintenance of some braking components.

Moreover,

The six cars that made up Train 112 were put together in an unusual way. Metro trains operate in married pairs of cars, and the lead car is almost always an "A" car, which some operators say run more smoothly and communicate better with the electronic devices buried along the track. But in the case of Train 112, the lead car was a "B" car, Metro officials said. It was unclear last night why the train was configured that way. It was also unclear what effect, if any, the configuration could have had on the crash.

This is beginning to have the makings of an outrageous situation. Right now we know that (1) the cars involved in the accident were two months late for brake service; (2) the NTSB had instructed Metro in 2006 to replace and / or reconfigure certain cars for safety reasons; and, (3) the cars involved in the crash were put together in an "unusual way."

What's going on here? Millions of passengers travel on Metro each week. To visitors of our Nation's capital, the Metro is the best way to get around this wonderful city. Is the Metro authority taking shortcuts with rider safety? It certainly is beginning to look like this accident didn't have to happen.

Check back later as more information becomes available.

Originally posted at InjuryBoard by Christopher Nace