Tuesday, January 22, 2008

How much do you have to lose before it's not frivolous?

Patients asked to sign contracts: company offers plans to curb frivolous lawsuits
May 1, 2004
by Jennifer Silverman

International Medical News Group
Gale Group

Click HERE for original article.

Patients asked to sign contracts: company offers plans to curb frivolous lawsuits
OB/GYN News, May 1, 2004 by Jennifer Silverman

Physicians across the country are taking a new aggressive stance to protect themselves against malpractice lawsuits: They're asking their patients to sign on the dotted line, specifying that they won't sue for any "frivolous" reason.

If it is a meritorious case, the patient "has to use a board-certified expert witness who follows the code of ethics for that particular professional society," said Dr. Jeff Segal, a nonpracticing neurosurgeon and founder of Medical Justice Corp., a company based in Greensboro, S.C., that provides these types of contracts as well as services designed to keep physicians from getting sued for so-called frivolous reasons.

In Dr. Segal's view, the term "frivolous" means the expert testimony against the physician was not compatible with what would be delivered by a majority of specialists, or at least a respectable minority.

In one example of a frivolous case, a urologist performed a vasectomy, performed postoperative semen counts at 1 week and at 1 month, and 1 year later got sued because the patient's wife became pregnant. "As it turns out, it wasn't his baby. I think that's a frivolous case," said Dr. Segal, who himself was sued while he practiced medicine.

Medical malpractice insurance pays for defending against a lawsuit and for the payment of a settlement or judgment. In contrast, Medical Justice plans are designed to help deter frivolous lawsuits and provide purchasers with assistance if they are sued. Also, Medical Justice will assist plan owners should they choose to countersue.

About 500 physicians from various specialties in 30 states have purchased plans from Medical Justice. It has grown most dramatically in the last several months, said Dr. Segal, whose clients pay from $625 to $1,800 a year, depending on the specialty's level of risk, for a plan. A neurosurgeon, for example, is going to pay a higher fee than a family doctor, he said.

These physicians' patients are asked to sign a contract that contains the clauses on lawsuits along with other standard provisions.

The language in the agreement is reciprocal, meaning that the physician agrees to the same stipulations as the patient. "Each side must use a board-certified expert witness in the same or similar specialty, who follows code of ethics for that specialty society," Dr. Segal said.

If a malpractice complaint is raised, "we send a letter to plaintiff's counsel telling them who we are, in the hopes that [the letter] will be enough to make a frivolous case go away," Dr. Segal said. If it doesn't, the next step is to examine the expert testimony on the plaintiff's side.

"Expert witnesses can make or break a case. We have our own panel of experts to determine whether there's a lie or hyperbole in expert testimony." If the expert's testimony is deemed fraudulent, the expert is reported to his or her professional society.

The society can make its own judgment of that expert witness, Dr. Segal said. In some cases, the expert can be expelled if the case is made that their testimony was tainted or untrue.

Dr. Compton Girdharry, an ob.gyn. in Alliance, Ohio, who retired in 2003, bought a plan from Medical Justice after his malpractice insurer went out of business and he couldn't afford the $250,000 tail coverage that would have covered him for an additional year. Medical Justice will offer assistance to him in any lawsuits that may come up from the time he was a practicing physician.

"The majority of suits in my profession are frivolous in my opinion," said Dr. Girdharry in an interview. He was involved in 10 lawsuits during his career. While most were either settled or dropped, two went to jury trial, including one he called "totally frivolous."

The patient had sued Dr. Girdharry, the anesthesiologist, and the hospital for experiencing pain during a repeat C-section and tubal ligation. "We stopped the procedure when she said she was in pain, and the anesthesiologist gave her some nitrous oxide so we could finish the procedure." According to Dr. Girdharry, the patient was fine for the rest of operation, and records showed no signs of complications.

To him, it made sense to call Medical Justice, even though he won both of the two jury trials in which he had been involved. Even as the winner, "I'd still seek compensation from the other party, because it costs money to defend myself."

Dr. Girdharry may go back into practice part-time for a federal clinic that's offering him malpractice insurance. In the meantime, he's keeping his insurance with Medical Justice, which in his opinion has already paid for itself. "We're living in a time when people have a higher expectation from physicians--that until proven otherwise, it's the doctor's fault."

Medical Justice is only 2 years old, yet, it's already had an impact, Dr. Segal said. A study conducted by SG Risk, an actuarial firm based in New Jersey, estimated that Medical Justice clients have a 2% chance of being sued per year.

Not everyone agrees with this concept. Joanne Doroshow, executive director of the nonprofit Center for Justice & Democracy in New York, argues that malpractice cases by their own merit are rarely frivolous, mainly because it's so expensive to line up the experts and develop the case. One of the obvious problems is that no doctor ever believes a lawsuit against him is anything less than frivolous, Ms. Doroshow said.

Kathy Olsen, of San Diego County, Calif., whose teenage son suffered permanent blindness as a result of an untreated cranial abscess, said she was "appalled" that insurance such as that offered by Medical Justice even exists. "How much do you have to lose before it's not frivolous?" Mrs. Olsen said. "As parents, we are assuming that physicians are going to take care of us."

Mrs. Olsen said the physicians treating her then-2-year-old son had written down "cranial abscess" as a possible reason for his symptoms, but never informed her of this possibility. "Instead, they told us he had some form of meningitis, and didn't scan him." As a result, the abscess herniated his brain and he had to spend 5 months in the hospital. "The physicians involved in his care should have done something about it and reported back to our pediatrician. A brain abscess, if detected in time, can be removed," said Mrs. Olsen, who won her case in court.

To Barry Furrow, director of the Health Law Institute at Widener University School of Law in Wilmington. Del., Medical Justice's approaches "are just scare tactics." In an interview, Mr. Furrow said he doubted that the courts would be very sympathetic to such vague agreements. "It is also not clear that a pure waiver of liability, as Florida doctors are now demanding, would hold up in state courts. But this is a highly politicized issue, and judges have sometimes been fooled by the arguments."

The board-certified expert witness requirement is an odd idea, he continued. "I've been an expert in several cases, and I certainly have no board certification. I think, however, that some medical societies are beginning to use this idea of certifying experts, as a way of scaring away doctors from testifying."

Dr. Segal says 99% of patients have signed the contracts provided by Medical Justice clients. "Most people believe that they wouldn't sue for a frivolous reason anyway."

Arrangements of this type do exist elsewhere, Arthur Levin, director of the Center for Medical Consumers in New York, said in an interview. Kaiser Permanente, for example, "requires enrollees to sign a 'willingness to arbitrate' agreement. That's one example where a health plan is saying it would rather resolve through arbitration than go through the courts."

In addition, some states have procedures that require some sort of affidavit from a medical expert that a case has merit, he said.

What Mr. Levin finds disturbing about Medical Justice is that a very ill person could walk into a physician's office, refuse to sign the consent form, and not get treated. "There's something very off-putting about telling patients that you won't treat them unless they sign an agreement."

No one is happy that physicians are paying for such high malpractice premiums, Mr. Levin said. "Does it unfairly punish physicians? Yes. However, the answer to the medical liability crisis isn't to create an atmosphere where the physician will only take care of sick people if they agree to his or her terms. It doesn't speak well to the profession."

Ms. Doroshow said it's unfair to force a patient who has no legal or medical training to sign this type of form. "It's intimidating, because they don't understand what kind of sanctions can be brought against them. It also hurts the doctor-patient relationship. Only the legal system and courts can decide if something is frivolous. That's what it's there for."


Associate Editor, Practice Trends

Wednesday, January 9, 2008

The Myth Of Tort Reform: Taking away David's sling

CASD strongly opposes arbitrary attempts to limit tort remedies or consumers' access to the courts -- misleadingly labeled "tort reform". A person or industry which does something wrong should be held accountable for those actions.

The term "tort reform" is used for the proposition that there are too many lawsuits filed by consumers for the wrongs (torts) done by others which caused them injury. Using inflammatory and misleading terms like "jackpot justice" and "shakedown lawsuits," insurance companies and other big businesses spend millions of dollars on propaganda to convince the public there are too many lawsuits and that they are driving up the cost of medical care, increasing the price of products and insurance, clogging up the courts and creating a drag on the economy. These "tort reformers" want to protect the wrongdoers from responsibility for the harm they cause.

The greatest myth of all is that consumer lawsuits are tying up our courts and huge verdicts are hurting the economy. Most civil court filings involve family law disputes. The non-partisan Center for State Courts reports that tort claims account for only between 5 and 7% of all lawsuits in state courts. Tort law is good for consumers and leads to better business practices -- it provides consumers with the right to be financially reimbursed for injury or death caused by dangerous products or below-standard services. We must be able to hold wrongdoers, individual or corporate, accountable for the injuries they cause. The civil justice system is the only way to achieve this goal.

CASD, not CALA, fights lawsuit abuse

CASD Position Statements

Who We Are:
Consumer Attorneys of San Diego ("CASD") is an organization of San Diego trial lawyers who represent consumers, working families, individual workers and others who are injured and need access to the civil justice system. Consumer attorneys protect the rights of individuals by obtaining remedies for injuries caused by the negligence or carelessness of others, and, in the process, achieving safer products, a safe workplace, a clean environment and quality health care. CASD is devoted to preserving the constitutional right to trial by jury, providing access to a fair and impartial court and enforcing the rule of law. CASD also seeks to strengthen the civil justice system through educating the public as to the right to public health and safety and the rights guaranteed by our cherished Bill of Rights.

Arbitration Clauses:
Taking Away Big Rights with Small Print

CASD strongly opposes attempts to limit an individual's right to a jury trial by imposing mandatory arbitration clauses on consumers. Mandatory arbitration strips consumers of their fundamental rights, many times without their knowledge.

Large institutions are increasingly imposing mandatory arbitration clauses on consumers and small businesses in everything from car sales contracts and credit card applications to insurance agreements and health care treatment release forms. A consumer must agree to these arbitration clauses as a condition of receiving a service or buying a product. Even before any dispute over services or goods arises, these clauses mandate that buyers give up their right to a jury trial in court and force them to pay arbitration companies to hear their claims. Mandatory arbitration clauses take away a consumer's fundamental right to trial by jury and other rights - often without his or her even knowing these rights have been eliminated -- and can cost consumers thousands of dollars more than it would cost them to go to court. Sometimes these institutions have "sweetheart deals" with the arbitration providers, which further tilts the tables against consumers and small businesses.

CASD strongly opposes the use and enforcement of unilaterally-imposed mandatory arbitration. CASD promotes fair resolutions of civil disputes and the right of individuals to have their grievances heard by a fair and impartial court and a jury of their peers, but also recognizes that some claims may benefit when arbitration is voluntarily selected by both parties.

Caps on Damages Limit Justice

CASD opposes any arbitrary limit on the amount of damages a jury can award. CASD believes the citizens who serve as jurors in our civil justice system are the people best able to determine what is just and fair after having listened to all of the evidence.

"Damages" is the term used to describe the amount of money it will take to compensate for the harm done to an injured party, so the person is returned, as nearly as possible, to the life he or she would have had absent the injury. Damages are intended to fix what can be fixed (such as reimbursement of out-of-pocket expenses like medical bills and lost wages), and to compensate for what cannot be fixed, for example, pain, physical impairment, loss of enjoyment of life, impaired activities of daily living and disfigurement.

Some corporations, insurance companies, and politicians often claim we need to limit damages a jury can award under the guise that such limits will lower insurance rates and reduce the cost of doing business. This approach protects wrongdoers from the consequences of their negligent and careless actions, shifts the losses caused by the wrongful conduct to the innocent injured person, and fosters unsafe environments, products, and medical practices.

CASD believes in the jury system. Juries are capable of making a fair decision as to damages just as they are capable of deciding whether a defendant should be held responsible for its wrongful conduct - an issue which must be decided before ever reaching the issues of damages. Juries are well aware of the impact a damage award will have on a defendant. However, juries also recognize it is only fair that wrongdoers pay for their careless conduct and that holding them responsible for the harm they cause is an effective deterrent which benefits the public at large.

Class Actions:
Giving Power to the Little Guy

CASD supports class action lawsuits as an economic and judicially efficient way to permit consumers to hold large and powerful defendants accountable for widespread wrongful conduct.

Class actions occur when judges approve a petition to combine many similar claims into one legal action. This type of suit is often brought against large corporate defendants that cheat thousands or even millions of consumers, but usually each in a small way. Combining the cases saves courts the costs and inconvenience of hearing thousands of small cases one at a time, thereby promoting efficiency and consistency. Class actions are often the only way to "level the playing field" for the little guy and hold powerful defendants accountable for widespread wrongful conduct and unsafe practices because the claims are too small for an individual consumer to afford to prosecute on his or her own. When the plaintiffs win a class action lawsuit, the defendant's wrongly-obtained money is returned to consumers away which will hopefully deter other defendants from the same wrongful and fraudulent behavior. In addition, any fees paid to the attorney must be approved by the court. These fees are often paid by the defendant in addition to the recovery to the class members.

Because class action lawsuits benefit large numbers of people, foster judicial efficiency, promote safety and protect our health and the environment, CASD strongly supports the responsible use of this mechanism to hold large and powerful defendants accountable for their unfair and unlawful conduct and practices.

Contingency Fees:
Making Justice Available to All

CASD strongly supports a client's right to enter into a contingency fee agreement with an attorney as part of our commitment to ensure access to the courts for all.

A contingency fee arrangement, frequently called "the poor man's key to the courthouse", allows the client to pay a percentage of whatever compensation is received to the attorney as payment in full for his or her services, regardless of how much time and money the attorney has put into the case. If no compensation is recovered, the attorney is paid nothing. Contingency fee agreements are "rooted in our commitment to equal justice for both those of moderate means and the wealthy." Many individuals would not be able to pursue their claims if they could not have an attorney represent them on a contingency fee basis. If they had to pay the attorney an hourly fee and advance all the costs for the experts required to prove their cases, they would simply have to abandon their claims. This is particularly true for the typical tort claim in which the person has been injured and has lost wages.

Many large corporations, insurance companies and even politicians insist that contingency fees should be limited or eliminated altogether. They are not interested in justice or protecting the consumer. Their goal is to eliminate responsibility for their wrongful conduct by making sure consumers cannot afford to hire attorneys. Limits on contingency fees limit access to justice and help the wrongdoers and their insurers keep the money that should be used to compensate the injured people. Corporations and insurance companies, on the other hand, have no limit on the number of attorneys and law firms they can hire to defend them or on how much they pay these attorneys.

CASD supports a client's right to make a contingency fee agreement with his or her attorney as part of our commitment to ensure access to the courts for all.

Judicial Independence

Consumer Attorneys of San Diego hereby expresses our solidarity in support of the independence of our Nation's judges, juries and courts. While the Constitution guarantees the right of every American citizen to disagree with a decision of a jury or judge, personal threats, demeaning words or creating an atmosphere of contempt are never acceptable. We all need to fear a day when our legal rights are determined by public opinion. The right to be judged by an independent judge or jury must be protected.

Medical Malpractice:
The Remedy When Doctor Doesn't Know Best

CASD is committed to supporting injured patients through the challenges of medical malpractice litigation and obtaining a fair recovery to compensate them for the harm caused by their physician or other health care provider.

Medical malpractice lawsuits permit patients to receive compensation for injuries caused by a negligent health care provider (such as a hospital, doctor or dentist). Medical malpractice lawsuits are costly and difficult to prove, and in many states, recovery is limited by damage caps. To prevail, the patient must have a meritorious claim, gather all relevant records and evidence, then locate a physician willing to review the materials and testify that the defendant health care provider acted negligently and caused the patient harm. Locating a physician willing to take time away from his or her busy practice and testify against "one of their own" can be an extremely difficult task for a patient. Moreover, the fees associated with having these experts testify can be prohibitive to a badly injured patient. Many states already have a "cap" or limit on how much money a patient can recover for the pain, loss of enjoyment of life, impairment, and dramatic change in lifestyle caused by a health care provider's negligence. Thus injured patients and their families are not permitted to recover all of their losses. For example, in California, a patient's recovery for such damages is limited to $250,000, no matter how severe the injuries or how many family members survive a decedent who died as a result of the negligent care or treatment.

Punitive Damages:
A Powerful Deterrent to Malicious Corporate Behavior

CASD opposes limits on a jury's right to award punitive damages as a deterrent to despicable conduct such as fraud, oppression and malice.

Punitive damages deter corporations from engaging in despicable conduct that kills, injures or steals from consumers. Punitive damages are separate and in addition to the compensatory damages awarded to a plaintiff in a lawsuit. In order to obtain punitive damages, a plaintiff must prove by clear and convincing evidence that the defendant acted with "fraud, oppression or malice".

Effective August 16, 2004, a new California law (Civil Code §3294.5) requires that 75% of any punitive damage award in a civil case be paid to California's Public Benefit Trust Fund which uses the money for the benefit of the public. The remaining 25% is payable to the plaintiff. CASD supports the use of punitive damages to deter malicious corporate behavior.

Right to a Jury Trial
Disputes Decided by the People

CASD believes the right to trial by jury is a fundamental constitutional right which should not be limited or abrogated. CASD believes the citizens who serve as jurors in our civil justice system are conscientious and diligent in determining what is fair, just and reasonable based on the evidence and the law.

The right to have a panel of citizens from the community make decisions about legal disputes is one of our most important rights. It is guaranteed in the Sixth and Seventh Amendments to our Constitution. We cherish the right to be judged by our neighbors and not by the government.

In the more than 200 years since the right to a jury trial was guaranteed to the people, there have been increasing efforts to limit this right by arbitrarily precluding a jury trial in certain types of cases or by preventing a jury from deciding certain issues in a case. Some have even advocated doing away with jury trials in civil cases altogether. However, as Thomas Jefferson said, "I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its Constitution."

A jury applies the collective common sense and experience garnered over the years to the case before it and protects the litigants from the potential of bias, prejudice or lack of experience of a single jurist deciding their cases. CASD strongly believes in defending the jury system.

Wednesday, January 2, 2008

Hospitals Often Move Too Slow On Restarting Hearts

Wall Street Journal


Hospitals Often Move Too Slow On Restarting Hearts, Study Says
January 2, 2008 5:02 p.m.

American hospitals frequently take too long to restart stopped hearts after cardiac arrest, a new study found.

About half a million patients suffer cardiac arrest inside a U.S. hospital each year. Less than a third survive. In many cases, a medical device called a defibrillator can restart a stopped heart by delivering an electrical shock, but only if it's used quickly.

Since 1991, the American Heart Association has recommended that hospitals be ready to shock a stopped heart within two minutes after detecting cardiac arrest. But the study, published in Thursday's edition of the New England Journal of Medicine, found that in 30% of cardiac-arrest episodes, hospitals waited longer than two minutes, leading to more deaths.

The study, led by Dr. Paul Chan, of the University of Michigan, analyzed data from 369 hospitals that participated in a voluntary Heart Association program that tracked defibrillator usage.

The study found that between 2000 and 2005, only 70% of patients received a shock within the recommended two minutes. For those patients, the chances of leaving the hospital alive were 39%.

About 17% of the patients were shocked in the third through the fifth minute. For them, the survival rate was 28%. And when hospitals took longer than five minutes to shock a patient, the survival rate fell to 15%...

Delayed defibrillation in one third of in-hospital cardiac arrests

Delayed defibrillation in one third of in-hospital cardiac arrests

January 2, 2008 Michael O'Riordan

Kansas City, MO - Delays in the time to defibrillation are common in hospitalized patients with cardiac arrest, with more than 30% of patients with cardiac arrest due to ventricular arrhythmia undergoing defibrillation more than two minutes after the initial recognition of arrest, a new study has shown [1]. Patients who received delayed defibrillation were less likely to survive to hospital discharge and more likely to have worsened neurologic and functional status upon discharge, report investigators.

"We need to start looking at this issue seriously and creatively, and to have the will to implement the processes of care that will reduce the amount of time it takes to defibrillate a patient undergoing cardiac arrest in the hospital setting," said lead investigator Dr Paul Chan (St Luke's Mid America Heart Institute, Kansas City, MO). "Time to defibrillation should be a measure of care," he added, "much in the same way that door-to-balloon time is now a marker of quality of hospital care."

The results of the study are published in the January 2, 2008 issue of the New England Journal of Medicine.

Little known about in-hospital cardiac arrest defibrillation times
The current recommendations for hospitalized patients with ventricular fibrillation (VF) or pulseless ventricular tachycardia (VT) state that the patient should be shocked within two minutes of the recognition of cardiac arrest. Speaking with heartwire, Chan said little is currently known about in-hospital defibrillation times or the factors that might result in delays to defibrillation because much of the data are based on out-of-hospital cardiac arrest. As a result, there are minimal data about the processes of care needed to reduce in-hospital delays.

With that in mind, Chan and colleagues, including Drs Harlan Krumholz (Yale University School of Medicine, New Haven, CT), Graham Nichol (University of Washington, Seattle), and Brahmajee Nallamothu (University of Michigan, Ann Arbor), obtained data from the American Heart Association National Registry of Cardiopulmonary Resuscitation (NRCPR), an analysis that included 369 acute-care hospitals participating in the NRCPR and 6789 patients who had cardiac arrest due to VF or pulseless VT. The investigators examined the association between delayed defibrillation and survival to discharge in patients with cardiac arrest in intensive care units (ICUs) or inpatient beds.

Of the patients included in the registry, delayed defibrillation occurred in 30.1%. Because this number only includes patients in hospitals participating in the NRCPR, and likely includes hospitals with systems of care in place, Chan said the prevalence of delay is probably even higher.

The investigators also showed that delays in defibrillation resulted in a lower likelihood of survival to discharge and being less likely to be discharged without neurologic complications compared with those who were shocked within the guideline-recommended two minutes. Increasing time to defibrillation also led to lower rates of survival with each minute of delay. The investigators noted several different characteristics associated with the delay. Among them are black race, a noncardiac admitting diagnosis, and the occurrence of cardiac arrest in a small hospital, after hours, or in an unmonitored hospital bed.

Factors associated with delayed time to defibrillation in multivariable analysis

Adjusted odds ratio (95% CI)

After-hours cardiac arrest
1.18 (1.05-1.33)

Type of hospital bed

Inpatient, unmonitored

Intensive care unit
0.39 (0.33-0.46)

Inpatient, monitored by telemetry
0.47 (0.41-0.53)

Hospital size

>500 beds

<250 beds
1.27 (1.08-1.47)

250-499 beds
1.02 (0.90-1.17)

Admitting diagnosis


Medical, cardiac
0.67 (0.55-0.82)

Surgical, cardiac
0.67 (0.51-0.86)

Chan said the reasons for the delays in defibrillation are complex and the investigators can only speculate why such delays occur. Outside the ICU setting or in smaller hospitals, upon the recognition of cardiac arrest, there might be delays locating the "crash cart," or delays as nurses and other staff wait for the doctor. In that situation, making it easier to perform defibrillation, through device modifications to replicate public automated external defibrillators (AEDs), would allow first responders to shock the patient. Rapid-response teams that respond only to the code alerts and work with nurses and doctors to identify high-risk cardiac arrest patients might also work.