Newsroll

October 31, 2015

Alex Stein has just filed an amicus brief urging the United States Supreme Court to hear the case of U.S. Air Force Major Heather Ortiz and her baby, who were denied legal remedies for obstetric malpractice by military doctors that left the baby with severe brain damage. The case is No. 15-488 Ortiz v. U.S. ex rel. Evans Army Community Hospital.

Together with his coauthor, Professor Dov Fox, Stein urges the Court to overturn the Tenth Circuit’s holding that the federal government’s immunity against liability for intramilitary torts extends to wrongful injuries like those sustained by Major Ortiz’s baby. He argues that this holding misinterprets the immunity, misapplies the Federal Tort Claims Act (FTCA), and constitutes no less than unconstitutional sex discrimination. Stein explains:

When a civilian spouse of a serviceman receives negligent prenatal care from military doctors and delivers an injured baby as a result of that malpractice, there is no question that Feres immunity does not apply and that the baby can sue the United States under the FTCA. When military medical malpractice injures the baby of a servicewoman, this baby should be equally able to obtain redress under the FTCA.  A system that would single out the civilian children of servicewomen for adverse treatment discriminates against women who serve in the armed forces. . . . To interpret the FTCA as the Tenth Circuit did permits discrimination between these two classes of similarly situated victims of military malpractice and violates fundamental principles of equal protection.

To download this brief, click here.

August 8, 2015

Read Alex Stein’s op-ed in Huffington Post, Reproductive Malpractice and the U.S. Military.

January 6, 2015

Alex Stein’s article, “Catalogs” (with Gideon Parchomovsky) that will soon appear in the Columbia Law Review was listed among the ten best articles for the year 2014 by the influential Legal Theory Blog.

November 21, 2014

Alas, proposition 46 was defeated.

November 9, 2014

The Supreme Court of Washington will review Grove v. PeaceHealth St. Joseph Hospital, 312 P.3d 66 (Wash.App.Div.1 2013) — a decision I criticized in my e-Journal, http://www.steinmedicalmalpractice.com/20131031teamwork-as-malpractice/ — for designing an improper medical-malpractice standard for cases involving teamwork. The appellant’s petition for discretionary review relied on my criticism to establish “substantial public interest” under Washington Rule of Appellate Procedure 13.4(b)(4). Am happy to assist the improvement of the law!

October 30, 2014

A must-read op-ed by Stanford Law School professors Nora Engstrom, Bob Rabin and Michelle Mello supporting Proposition 46 that will increase California’s ludicrous $250,000 cap on noneconomic medical malpractice damages to $1.1 million.

August 28, 2014

California’s cap for noneconomic medical malpractice damages to increase from $250,000 to $1m; plus, doctors will undergo testing for drug abuse (Proposition 46)

August 28, 2014

Maine’s pre-litigation screening rules reduce the volume of malpractice suits against doctors

August 28, 2014

Alabama jury awards $4m for death from a heart attack misdiagnosed as a stomach illness

June 9, 2014

Washington Examiner cites my opinion on how to protect doctors against unmeritorious malpractice suits.

December 3, 2013

Negligent delay of abortion by pro-life doctors. Story here.
Michigan law, however, doesn’t offer the plaintiff much because:
(1) she can’t recover for lost chances to achieve a better medical outcome, as Michigan statute precludes such suits; 
(2) under Michigan’s “locality rule,” the plaintiff must take the rural hospital she went to for treatment as she finds it, especially since she checked in to ER; hence — 
(3) trying to win the case on informed-consent-violation grounds is her only chance. 
Alas, I don’t see the plaintiff proving causation with respect to her physical harm; and so all she might be able to recover for is emotional harm.

October 27, 2013

Georgia’s Senate is considering a far-reaching medical malpractice reform: see here. For my discussion of this reform initiative, see here.

September 20, 2013

Missouri legislates a statute exempting providers of free healthcare from liability for malpractice, so long as they act within the scope of their assigned duties. This absolute immunity does not extend to actions involving malice, willful intent to injure the patient, a crime, moral turpitude, sexual harassment or other physical abuse, recklessness and gross negligence.  See here.  This piece of legislation strikes me as a good deal.

August 31, 2013

Skyrocketing $130M verdict for plaintiffs whose baby was born with severe brain injury and cerebral palsy. Reportedly, the plaintiffs turned down a pre-trial settlement offer of $8M. Story here.

August 31, 2013

Another study disputing correlation between medical liability payouts and the cost of medical care: here.

June 25, 2013

The Tylenol Debate:
Can Hospitals be Sued for Excessive Markups on Medications and Devices?
 originally posted in the BILL OF HEALTH 

Steven Brill’s Time Magazine blockbuster article, Bitter Pill: Why Medical Bills are Killing Us, uncovers the CHARGEMASTER: a publicly undisclosed pricelist accountable for what we see in hospital bills. What we see there doesn’t look good: it includes acetaminophen sold for $1.50 a tablet (you can buy 100 of those for the same price at Amazon); $77 for a box of sterile gauze pads (Amazon’s prices vary between $6 and $11); $18 for a single diabetes test strip (sold for 54 cents by Amazon); $108 for antibacterial Bacitracin ointment (Amazon’s prices vary between $2.50 and $6.50); and so forth. Charges for stay, scans, surgeries, canes, and wheelchairs skyrocket as well.

The American Hospitals Association (AHA) rejects Brill’s analysis. According to AHA, the chargemaster aggregates the hospital’s overall costs on delivering quality care to patients: “In order to take medications in a hospital, even over-the-counter medicines, they must be prescribed by a doctor (a little bit of cost for the doctor), that order gets transmitted to the pharmacy (a little more cost), the order gets filled by a pharmacist or pharmacy tech who retrieves just one Tylenol pill and individually packages that one pill (still more cost), the pill gets transported from the pharmacy to the nursing unit where the patient resides (a little more cost), then the pill is retrieved by a registered nurse who personally gives the pill to the patient and then must document the administration of that pill in the patient medication administration record (a little more cost). All of this process to give a patient a single dose of Tylenol in a hospital bed [must also be] in compliance with all pertaining regulations (a little more cost).”

This post will not try to resolve the Tylenol Debate. Nor will it say anything about the government as a plausible substitute for the eccentric chargemaster.  Instead, I will raise a legal question: Can patients sue hospitals for excessive markups on medications and devices?

My answer to this question is a qualified YES. Entrepreneurial and business aspects of running a hospital fall under states’ consumer protection laws (Brookins v. Mote, 292 P.3d 347 (Mont. 2012)). Those aspects certainly include billing (Jaramillo v. Morris, 750 P.2d 1301, 1304 (Wash. App. 1988); Ambach v. French, 216 P.3d 405 (Wash. 2009)). The key question here is whether an excessive markup on medications and devices amounts to deceit or an unfair trade practice. If it does, the hospital would be in violation of the relevant state consumer protection law. This might happen to hospitals whose billing practices—to which patients gave no informed consent—are particularly aggressive. Those hospitals might face class action suits and the prospect of paying treble damages. They also may be stripped of the special protections given to defendants in medical malpractice suits (that include shortened limitations and repose periods for filing suits, caps on damages, and charitable immunities). For my account of the competition between medical malpractice and consumer protection rules, click here.

Brill and other participants in the Tylenol Debate call on the government to start regulating hospital prices. My short advice to hospitals: get rid of unconscionable markups forthwith.

June 23, 2013

ISMIE Mutual Insurance Company that sells medical liability policies in Illinois registers a skyrocketing profit despite the Lebron decision that voided Illinois’ cap on damages recoverable for medical malpractice.  No business like medical-malpractice insurance business?

June 10, 2013

More about the pathbreaking Dickhoff decision, Dickhoff v. Green, — N.W.2d —, 2013 WL 2363550 (Minn. 2013), which held a patient’s decreased chance to survive (or recover from illness) actionable as a standalone damage:

Under this set of facts — a general pediatrician or family doctor who negligently fails to refer his patient to a specialist for diagnosing a dangerously looking condition (e.g., a lump on the baby’s body) — the wronged patient can also sue the doctor for violating her right to informed consent.

Generalists must inform their patients about potentially useful referrals.  Importantly, if the patient gets misinformed in this way when her chances to survive are above 50%, suing the doctor for informed-consent violation might allow the patient to recover compensation for her entire damage (rather than 20% as might happen in Dickhoff). Such suits, however, cannot properly be filed in the states in which violations of informed consent are actionable only as assault or battery (Pennsylvania, for example). Minnesota is not one of those states: there, patients can sue doctors for negligent nondisclosure as well.

June 7, 2013

The New Mexico Court of Appeals decided that the state’s $600,000 cap on medical malpractice awards (excluding medical expenses and punitive damages that are not capped) is constitutional: the decision is here. This is one of the few caps that restrict an aggrieved patient’s right to recover compensation for economic damages and not just for pain, suffering and other noneconomic damages. Whether the New Mexico Supreme Court will uphold its constitutionality is therefore unclear, in my opinion.

June 6, 2013

Florida legislation setting up the “same specialty” requirement for medical malpractice experts was signed by the Governor and became a law: see here.

June 4, 2013

Sharp fall in the filings of medical malpractice suits in Pennsylvania
The 2012 filings are only slightly below 2011 and slightly above 2010, but they fell by about 45% relative to 2000-2002, prior to the introduction of the “merit certificate” requirement.  See here.
Note that Pennsylvania doesn’t cap medical malpractice awards.

May 17, 2013

Medical malpractice suits motivate improvements in hospital practices by uncovering weaknesses in hospital policies, practices, staff, and administration
… says Professor Joanna Schwartz in an important article, A Dose of Reality for Medical Malpractice Reform, forthcoming in 88 N.Y.U. L. Rev. (2013), and available here. She substantiated this argument by an extensive survey of healthcare professionals.

May 9, 2013

Medical malpractice payouts make less than 1% of national medical expenditures in the US.
This is shown by a recent Johns Hopkins study, here.
Yet another proof of what Tom Baker called “Medical Malpractice Myth”: see his 2005 book under the same name.

May 9, 2013

Another Johns Hopkins study, here, shows that doctors’ medical liability payouts are associated predominantly with diagnostic errors.

May 3, 2013

CALIFORNIA: New initiative is mounted to repeal next year the $250,000 cap on noneconomic recoveries for medical malpractice.  To hear the report, click here (courtesy of the California Report: see here).

That would be a very good development, as the $250,000 cap is unreasonably low.  Here is an update: influential consumer groups move this initiative forward.

May 3, 2013

UPDATE:  Florida’s legislation setting up the “same specialty” requirement for malpractice experts went through, subject to Governor’s approval.  See here.
For discussion of this requirement and updates from other states, click hereherehere, and here.

May 3, 2013

Diederich Healthcare has a very useful compilation of medical liability payouts for 2012.
This compilation used data reported to the National Practitioner Data Bank.  Click here to see it.

May 2, 2013

Offensive Medicine Suit in Maryland Settled
Reportedly, the malpractice suit against St. Joseph Medical Center in Maryland and a doctor responsible for a profit-driven medically-unnecessary implantation of heart stents in patients had been settled.

May 1, 2013

Florida is about to legislate the “same specialty” requirement for malpractice experts, discussed here, here, here, and here.

May 1, 2013

Missouri’s bill capping noneconomic damages of medical malpractice victims at $350K stalled.

The bill’s stalling may be undemocratic.

But  justifying the bill by saying that “Doctors had been hoping the legislature would pass a new law this year saying they could not be hit with punitive damages greater than $350,000″ is hilarious.

Courts virtually never obligate doctors to pay punitive damages for medical negligence.

April 26, 2013

West Virginia court bypasses a $500,000 cap on noneconomic recovery:
Nursing home’s outrageous treatment of a resident triggers a $91.5M award after being categorized by the court as a general tort, rather than “medical malpractice”

West Virginia court held that a nursing home must pay $11.5M in compensatory damages and $80M in punitive damages for its outrageous neglect of an 87-year old woman. Reportedly, the woman died of dehydration after staying just 19 days in the nursing home. She had suffered head trauma from numerous falls and developed sores in her mouth that had to be scraped away with a scalpel. The court categorized the nursing home’s outrageous misconduct as a general tort, rather than medical malpractice, which made West Virginia’s $500,000 cap on noneconomic damages inapplicable.

The court’s categorization of the nursing home’s misconduct runs contrary to the approach taken by other states: see, e.g., Husby v. S. Ala. Nursing Home, Inc., 712 So. 2d 750, 751–54 (Ala. 1998) (applying medical malpractice rules to a suit involving a nursing home resident who fell out of bed, fractured her femur and died shortly after femoral surgery).  See also this discussion.  The nursing home will likely appeal this decision: it will try to convince the West Virginia Supreme Court to categorize its misconduct as “medical malpractice” and limit the plaintiff’s noneconomic recovery to $500,000.

April 24, 2013

Selective State Competition?

Reportedly, “the Missouri legislature is considering House Bill 112, which would cap some damages at $350,000 … to make sure we keep docs in Missouri.”

Let’s hope that this Bill is good enough to keep patients as well!

I happen to be a staunch supporter of procedural tort reforms that protect healthcare providers against unmeritorious suits. I oppose low damage caps: see my article Alex Stein, Toward a Theory of Medical Malpractice, 97 Iowa L. Rev. 1201, 1255-56 (2012).

April 20, 2013

Clearinghouse for medical malpractice trials?
Distinguished medical malpractice attorney Steven Pegalis came up with a worthwhile proposal: creation of a clearinghouse that will collect summaries of medical malpractice trials. These summaries will be compiled by judges and attorneys after the case is concluded (presumably, after the verdict becomes non-appealable). To protect privacy, they will maintain anonymity of parties and witnesses. Information gathered in this way will be used by doctors and hospitals to improve patients’ safety, and it will be potentially useful for legal education as well.

I like the idea.

For what it’s worth, here is a potential improvement: I would not protect the identity of experts testifying in medical malpractice cases. Their track record should be transparent. This will deter irresponsible and unscrupulous gun-for-hire experts and parties who call those experts to testify. Fearful of rebuttal and bad publicity, experts will also be more conservative in their estimates of malpractice, damage, and causation. Plaintiffs’ and defendants’ experts consequently will agree with each other more often than they do today, and many of the cases that today go to trial will settle out of court.

April 20, 2013

Plaintiffs attorneys in Connecticut do not like the certificate-of-merit prerequisite for filing malpractice suits against doctors. The attorneys press to reform this procedure.

This procedure, however, makes a lot of sense.  An upfront investment in one’s own suit is a good proxy for the suit’s merit. Cheap talk isn’t.

April 20, 2013

Oregon has just passed a Medical Malpractice Mediation Bill that facilitates confidential negotiations. Reportedly, the Bill aims to reduce the volume of medical malpractice litigation, and its supporters believe that it will also reduce frivolous suits.

I question this belief. The promise of informal negotiations and settlement can only embolden opportunistic plaintiffs. To protect doctors against frivolous suits, the law should expand their opportunity to file motions to dismiss. Mediation should come after the judge decided to keep the suit and not throw it away.

April 20, 2013

Bloomberg View columnist, Ramesh Ponnuru argues that Feds Shouldn’t Meddle with Medical Malpractice and makes a federalist point to support this argument.  State competition over resident taxpayers — patients and doctors — should determine the medical liability regime that these actors collectively want.

Ponnuru also echoes Steven Brill’s suggestion in the Times Magazine that “doctors who follow the best practices in the field should be shielded from liability.”   But our law already provides doctors with a safe harbor when they follow their own customary practices even when those practices are not the best in the field. Doctors who follow “best practices in the field” cannot be found liable under extant law.

April 20, 2013

This NYT article reports that medical malpractice suit takes too long to litigate. Reportedly, “on average, doctors spent more than four years of their careers — more time than they spent in medical school — working through one or more lawsuits.”

I wonder if this also true about states that put in various screening mechanisms for medical malpractice suits: expert affidavits, merit certificates, and advisory panels.

April 20, 2013

Johns Hopkins Malpractice Study (12/2012) reports that “surgical ‘never events’ occur at least 4,000 times per year.”

Scary stuff.   It calls for making the legal ‘never event’ — holding a malpractitioner liable for punitive damages — a real event.