After the potential jurors got the chance to sit and stare at me, it was my turn to size them up. I wanted to get a good set of jurors, but I had no idea what to look for.Vinny helped clue me in.
There are several things to be considered. Attorneys have to try to guard against bias. Some jurors may have hidden biases that the attorneys try to discover through questioning. Some jurors also have very strong personalities and may influence other jurors. One person’s will could possibly become the will of many because of their strong personality or because of their knowledge regarding a subject. Those types of jurors are called “superjurors.”
Jurors can be excluded either for cause or by preemptory challenge. Being excluded for cause means that the juror has a pre-existing bias and the judge decides that the juror would not be impartial in deciding the outcome of the case. If a juror cannot be excluded for cause, then each side has several preemptory challenges where a lawyer can exclude a juror for no reason. Once all the preemptory challenges are used up, you have to take what you get, so you have to use your preemptory challenges wisely. Part of the game is seeing what order the potential jurors will be presented in. If a lot of good jurors appear early in the course of voir dire, then you try to save your preemptory challenges for later to exclude the potential bad ones.
The potential jurors all had to fill out a questionnaire before they came to court. Attorneys for both sides had copies of all the cards. Vinny told me that in complex medical malpractice cases like this, it was his experience that less educated jurors tended to award money to plaintiffs based on sympathy instead of basing a decision on the facts of the case. While we waited for the judge, Vinny flipped through the cards. One woman wrote that she was employed as a “watres.” Vinny set her card to the side. Another wrote that he was an “employe.” Vinny set his card to the side, too.
Before the questioning took place, a couple of jurors said that they could not promise they would be unbiased because of problems they had with doctors in the past. They stated that they would try to look at things fairly, but that they could not promise they would be unbiased. They were excused. Take note, all you people trying to avoid jury duty.
Then the lawyers began to go back and forth asking sets of three potential jurors the same questions over and over again. One of the jurors fell asleep and began snoring. He sounded like a door creaking until another juror kicked his chair from behind. He sat up with a jolt. Several people giggled.
One of the first potential jurors called looked promising. His wife was a doctor. He also had a close friendship with an expert witness, and he said that his relationship with the expert witness relationship could influence his decision. The judge bounced him. Damn.
Mrs. C. was a woman in her fifties. Her husband was involved with multiple workers compensation claims. She seemed very upset about those suits. Almost as if she was biased against plaintiffs. Her sister was a nurse. She ended up being excluded.
Mr. S was a man in his fifties. He was a single business owner and a sole proprietor. He had no lawsuits. Several of his friends were police officers and he stated that the fact that the patient was a police officer may influence his decision. He had a pre-existing bias towards resident physicians, stating that they should not be in charge of patient care. Seemed very opinionated. We excluded this one.
Mrs. M. was a 26-year-old corrections officer at the local prison. During most of the initial questioning, she played with her fingernails and did not pay attention to anything that was going on in court. Vinny excluded her.
Mr. L was a 40-year-old restaurant manager. His wife was one of his waitresses. His brother was recently hit by a car and is involved in a lawsuit. His father died and he believes that it was due to medical malpractice. Fortunately, the judge excused him because of the potential bias.
Mr. F was a 62-year-old retired newspaper editor. His son was a photojournalist. He had no previous jury experience. He has a friend who is an orthopedic surgeon. When asked about the current healthcare setting, he stated that he wanted malpractice limits. The plaintiff excused him.
Mr. L was a 50-year-old telecommunications specialist. His son was a minister. He had a problem with the surgery that was performed on him and getting insurance to pay for it. Eventually the doctor who performed the surgery paid for the remainder of his charges. He seemed very happy with doctors although he was nervous when being questioned. Seemed like a good juror for our side, but the plaintiffs got rid of him.
Mrs. B. was a 66-year-old retired video producer. Now she owns a studio with her husband. Her daughter-in-law is an emergency physician in Milwaukee. Several relatives are physicians and a brother-in-law is a surgeon. Another great juror that was excluded by the plaintiff.
Mrs. P. was a 60-year-old homemaker. Her husband is a tax attorney in her son is a real estate attorney. Her son and daughter-in-law both pediatricians. She was previously a foreperson in a jury with a case involving personal injury. Her son had been involved in a lawsuit against his law firm that was “thrown out of court.” On the surface, she seemed like a good juror, but I had bad vibes about her. While she was sitting in court, she repeatedly looked over towards the plaintiffs, almost as if she sympathized with them. A further questioning, she revealed that she had been the victim of medical malpractice by having a fracture that was missed by an emergency physician. Later her primary care physician caught the fracture and treated it appropriately. She said that she was “not angry” afterwards. She had many interactions with medical residents and had “no problems.” This just seems like a woman who has a hidden agenda. I told Vinny that I did not want her on the jury. The plaintiff asked for a meeting in the judge’s chambers. When everyone came back, she was excluded. Good.
Another Mr. B. came right afterwards. He was a 60-year-old guy who owned a heating and air-conditioning business. He had been sued several times in the past due business contracts. He stated he had a big problem with the insurance industry. “Every time someone does something, they get sued. My insurance is through the roof.” Another one of the plaintiffs bullets gone.
Mrs. K. was a 45-year-old special-education professor. She said that she had several cousins and friends in the medical profession and that she empathized with physicians. She stated that her feelings toward physicians may impact upon her impartiality. The judge rolled his eyes and said “Fine, you are excused.”
Mr. C. was a retired electrician, 55 years old. His father died during surgery and the surgeon taking care of him was a resident. He was excluded by the hospital.
Mr. S. was a very interesting potential juror. He was 65 and was a retired manager for any production company. His sister is a nurse. He states that he has a problem with nursing care because “they all speak foreign languages.” About 30 years ago, he said that he had a problem very similar to the plaintiff’s problem and healed up just fine from it. Said that the doctors did a good job at treating him for it. I leaned back with a smile on my face, folded my arms, and looked over at the Grinch. He looked back at me and I nodded my head at him. Needless to say, this juror was excused after another meeting in the judge’s chambers. I wrote down his name and all the stuff he said, so that when I testify, I will make sure to bring him up as an example to show how some patients can have the exact same symptoms as my patient had and can do just fine.
We broke for lunch. I went off on my own and ate in a little greasy spoon restaurant near the courthouse. Called my wife and told her how things were going. Wished she was there with me.
Mrs. M. was a housewife and former pediatric occupational therapist. Her husband was a computer consultant. She had been on two juries. She conveniently brought a note from a doctor saying that she was just started a new medications for migraine headaches and that those medications may cloud her judgment. Good one. The judge excused her.
Mrs. P. was a 50-year-old secretary. She stated that she was admitted for five weeks at the same hospital being sued and that they “saved her life.” She didn’t remember much about her emergency room experience. Wouldn’t that be weird if I was the one who treated her? The plaintiff excused her. He is running low on bullets.
Selection continued on like this for a couple more hours. Eventually, the full jury was selected, but we needed to pick several alternates. Almost there. Vinny said that both sides were running low on their preemptory challenges.
A note to self: Eat bland food for lunch. During lunch, I had an omelet with sausage in it. By the time we were up to picking alternates, my stomach was singing the Star Spangled Banner. Hopefully court will get out for the day before the omelet makes it to the other end. Otherwise, the whole courtroom is in trouble. Wouldn’t make a very good impression on the jury, I’m sure.
Mrs. L. was a 56-year-old clinical therapist with the social services department. She was very opinionated. She stated that she had been in jury duty one time before in the past and “felt clueless.” Bye-bye.
Mrs. C. was a 48-year-old housewife. She was Spanish and stated that her English was not so good. When the attorneys asked her about the plaintiff, she began crying and stated that she felt so sorry for this woman losing her husband. She stated that she was a “very sensitive person.” She said that she would try her best on the jury. After several go arounds with the judge, she was excluded.
Mr. B. was a 45-year-old systems analyst. He reminded me of Jerry Lewis. The mother of one of his friends died from overmedication after surgery. His father-in-law died from a heart attack. One of the things I noticed about him was that when he went to the bathroom, he purposely walked behind the plaintiff and defense tables with all of the paper sitting around and was snooping through what he could see on the tables as he walked by. This nosiness bothered me, especially since it kept happening. I did not especially want him on the jury, but he was chosen as the second alternate.
Jury selection is finally complete. Pretty happy with the makeup.
Now we get down to business.
See previous posts in this series here.
Really sheds light on how difficult jury selection can be. The first part of this post reminded me of the movie ‘Runaway Jury’, which demonstrated how strong personalities in a jury can sway the others. Interesting stuff WC….
“Vinny told me that in complex medical malpractice cases like this, it was his experience that less educated jurors tended to award money to plaintiffs based on sympathy instead of basing a decision on the facts of the case.”
Everyone has their jury theories, but the downside theory to less educated jurors is that they typically make less, and if you have a high damage case, they are less likely to award as much because any amount of money seems like a heck of a lot.
and if you have a high damage case, they are less likely to award as much because any amount of money seems like a heck of a lot.
I smell BS. $100K seems like a lot of money to me, but $1M seems like a lot more, and $10M seems like even more than that. Even less educated people know the difference between various sums of money.
And supposing that your theory is true, then less educated jurors are going to think doctors make millions of dollars every year, so what’s a few million in settlement to them?
Matt, you seem to always need to contradict something in Dr. Whitecoat’s posts.
Teresa, it wasn’t a contradiction. I’m sharing with you jury theories from the other side’s perspective. Maybe you already knew them, and that’s great if you did. Maybe you only like to learn about a multifaceted issue from one perspective. If so, then don’t read my posts. Easy solution
And you may call it BS, although you misunderstood the point. Arguably, all jury behavior theories are BS, although there are consultant groups that make a lot of money assisting jury selection. You’re guessing at what a human will do based on their written answers and what you hope are good questions over maybe a few hours that will give you insight into their psyche. That’s a guessing game no matter how much info you get in that short period.
I’m sure your theory is true in some cases. But if the alternative theory is more likely (even 1% more likely), I’d take it in this situation because anything to tilt the scales, no matter how slightly, in my favor is a positive.
I’m not sure if the liklihood to go a certain direction can be calculated with any degree of certainty, but I’d take a presumed 51% over a shot in the dark any day. Also, I’m sure these consultants have done a fair amount of research in this area and that their level of certainty is some degree greater than a presumption.
Also, who cares if a less educated juror is more likely to give you lower damages if they are more likely the find you liable. The goal is to win on the liability issue not damages (at least in most cases).
Since they are all basically theories that are almost impossible to measure who knows. Some of the best lawyers I’ve seen at trial will say that beyond basic questions and obvious strikes they’ll take a jury as they get it.
Matt just wants everybody to know that he is the smartest guy in the room. EVERY room.
I wonder if so many jurors being excluded due to prior issues with doctors affects the judgement of the jurors who are chosen.
Davey you shouldn’t be angry because someone knows more about a subject than you. I’m sure you are quite well educated in what you do for a living and if it comes up I look forward to reading your insight.
Voir dire shows the jury process has no scientific validity.
Nevertheless, it is a 100% certainty, the only friend of the doctor in the court is the jury. Not the best friend, the only friend.
If I were a doctor, I would have no trouble explaining my business to cab drivers. If the jury were made of health specialists, they would destroy the doctor.
And if they were Trial Lawyers?
If the jury were of 12 plaintiff medmal lawyers, I would still have to explain my care, as if they twelve cab drivers. They would be second guessing the plaintiff lawyer more than me.
Go to a meeting with doctors. The worst nit pickers in the world.
Take the worst judicial hellhole. Juries will find for the doctor 2 of 3 times.
Voir dire shows the jury process has no scientific validity.
Nevertheless, it is a 100% certainty, the only friend of the doctor in the court is the jury. Not the best friend, the only friend.
If I were a doctor, I would have no trouble explaining my business to cab drivers. If the jury were made of health specialists, they would destroy the doctor.
Oops…forgot to say great post! Looking forward to your next one.
Vinny needs a better idea of determining his idea of uneducated. I have two bachelors and I can not spell at all, and on top of that I read all the time. (Yes I know the reason for not being able to spell, it’s called I personally do not care.)
By the way, as a paralegal in personal injury law, I am loving this series of post. Mainly because it shows that unfortunately there are always someone wanting to blame someone else for their problems. (I’ll admit I’m a cynic with personal injury cases.)
It is interesting that everyone always thinks the plaintiff won’t take responsibility and wants to blame someone else. Yet no one ever considers that perhaps the case exists because the defendant won’t take responsibility. Has no one ever been in a situation where they knew they were right and the other side completely disagreed?
What? You are expecting someone to take responsibility for their own actions??? Seriously you jest! Just because you had a pain in that one area for months on end and never saw a doctor it’s the doctor’s fault for not finding it fast enough….didn’t ya know?
LOL, it all boils down to money…..sadly enough and every (almost every one I should say) thinks they are entitled to being compensated by someone else.
The overwhelming majority of medmal cases are weak. The failure rate is 70% at every stage. The failure of the tort bar is a huge aggregate tort itself.
Compare to the standard set by the criminal law. Young lawyer, carrying 200 cases. Pay is low. High burden of proof. Intent must be shown for every element of a crime. Witnesses are intimidated.They win 70% of cases or more.
Or not paying when they’re at fault.
Mr. C. was a retired electrician, 55 years old. His father died during surgery and the surgeon taking care of him was a resident. He was excluded by the hospital. Judge?
No, the hospital was a defendant in the case, too. More about the hospital as the trial progresses.
Whitecoat this series of posts is the best I’ve seen on a medical blog in a while (if ever).
Great work. Can’t wait to see the way this unfolds (hopefully it goes in your favor).
In my trial an engineer in charge of 80 employees running two major projects tells the judge he can’t really stand to miss work for 8 weeks of trial. Judge denies his request. Bad for him. Good for me. He sat there for 8 weeks with a scowl directed toward the plaintif attorney.
Another potential juror, retired, tells the judge he and his wife have friends coming to stay with them for a week that they have not seen in a long time. Judge excuses him. Another potential juror tells the judge they are in the middle of a house remodel and if they are not there to oversee the contractors they might have to stay in their rented place longe.
There is very little about the legal system that makes common sense.
I will also predict that at the end of this series:
1.) Doctor WC is exonerated.
2.) The plaintiff get nothing.
3.) The only winners are all the slimy lawyers that were employed for the trial. People, who when you think about it—really do nothing for society, JThey don’t make or produce anything. They just leech off of other peoples hard work and profit from the misfortune of others.
Chuck if the plaintiff gets nothing their atty gets nothing and ends up in the hole tens of thousands. As for the defense lawyers who are paid no matter what most of them are quite nice people and not slimy at all.
You may not find presenting the complaints and peacefully resolving disputes in the greatest legal system in the world very useful but our founders certainly did which is why it’s cited in the Declaration and preserved in the Constitution. Maybe your work is exceedingly noble though so kudos to you if so. You should celebrate your good fortune rather than denigrate others.
Matt,
OK, the slimy generalization is not universally applicable. My lawyer was great. A very good person and I consider her a friend. But with the defense handsomely paid I don’t always think they try to resolve the case in the fastest manner.
In my case I was a cross defendent. The plaintiff lawyer and first entity sued were in some degree of collusion. Plaintiff lawyer convinced the first defendent to sue the medical providers “because you have insurance” and he did not have the resources on his own. I’m glad he lost. He should, and nobody should feel sorry for him for leading the plaintiff along in a case that had no merit and for ruining peoples lives for years.
“You may not find presenting the complaints and peacefully resolving disputes in the greatest legal system in the world very useful….”
You sound like a doctor talking about the greatest medical system in the world. The simple fact is a multitude of western european countries have developed systems every bit as good (and at times better) than ours. This includes better ways of dealing with medical malpractice. But you already know that now don’t you.
Chuck: Very good. You understand the real aim of this pointless, and wasteful exercise. It is called rent seeking, a technical term for armed robbery.
http://en.wikipedia.org/wiki/Rent_seeking
It is easiest to understand rent seeking by defining its opposite, profit seeking. Add value to a product or service, charge a higher price, and you make a profit. The buyer pays for the superior outcome. Try cutting your own hair, and you will understand why the profit of the licensed cosmetologist is worth every penny.
In rent seeking, an oil company pays a lobbyist $1 million to pass a subsidy of $100 million. Every penny came from the hard labor of working people. They get no value back, except to avoid prison or getting shot for refusing to pay taxes. Here is what is worse. Other oil companies see this. Instead of risking $billion and life and limb to search for oil in Grossoutkistan, they now feel stupid. They can make the same amount as their profit the hard way, by spending $1 million and hiring a lobbyist, the easy way. So rent seeking destroys the incentive to add value by working hard and taking risk with capital. Rent seeking is a technical term for armed robbery. Try not paying taxes. Armed marshals will show up to help you do so.
Before docs get too huffy.
Lawyer rent seeking consumes about 2% of the health budget, the cost of medmal insurance. Docs turn that around, and do defensive medicine, consuming 10% for worthless care. So doctor rent seeking is 5 times bigger than lawyer medmal rent seeking. If doctors said, medmal harms patients by doing worthless testing, and consuming an amount that could buy 20 million families good health insurance, medmal would be limited. Doctors profit from medmal 5 times more than lawyers do. Docs love medmal, or they could end it.
As a patient, I want a pox to befall both houses.
Supremacy Claus – interesting concept. How would you specifically stop docs from rent-seeking? You seem to imply that this is initially driven by the legal system, so are you perhaps saying professional immunity?
Right except that most doctors don’t profit from the medmal masturbation. If I order more CYA tests or do more CYA admissions it does not profit me. In fact, defensive medicine costs me. If my ER is filled up with CYA admissions and patients awaiting CYA CT and MRI scans then I make less money because it limits my ability to see new patients.
Primary care does not profit either.
Radiology does profit from CYA tests. Specialists could profit by doing CYA procedures and tests.
End medmal. It is a damaging scam, causing the cover up of error, defensive medicine, and a big waste on stupid lawyer employment of no value to anyone.
Once all data from internal investigations are immunized, this is what will happen after a medical mishap. There will be an immediate rush to investigate. The more data is registered as part of an air crash style investigation, the less is available to discovery in a later claim. Insiders, knowing where all the corners are cut, will then change the system to prevent its recurrence. They have the power to shut the unit or the entire place down until the problem is fixed. Then they publish the result on the web, so that all other similar units implement their suggestions. If the reason, such as a nosocomial infection, cannot be found, shut the ward, the wing, the hospital until it is found.
Instead of being scapegoated, fired, threatened, intimidated, the staff suffers much worse. They are recruited to change the system. Doctors boo the idea that this will be hell. Instead of being second guessed by lawyers who know nothing about medicine for about 2% of major errors, insiders will hound them on every major error.
There are no causes, certainly no proximate causes, and certainly no proximate cause making for a legal causation after the elimination of unforeseen intervening causes. This is Medieval garbage lawyer core doctrine, not in accordance with modern understanding of catastrophe. Today, catastrophes result from a cluster of factor, often a dozen or more, simultaneously coming together in time and place. Often, the prevention of only one of the factors prevents the entire catastrophe.
So the single causation theory of the lawyer results in a cover up, and medmal is the cause of every medical error today, by preventing prevention of future ones.
Now before beating up on the health system, it is pretty good. Only about 1 or 2% of decisions are wrong and harmful. Compare that to the 70% error rate of medmal or the 20% error rate in the false conviction of defendants in death penalty cases. The lawyer is as bright as the doctor. However, the lawyer has been made a mental cripple by the Medieval origin lawyer education. Imagine the competence of Medieval doctors, and you have the success rate of the modern lawyer. If someone were to practice the medicine of 1250 AD, they would not be sued. They would be arrested. I think there is good legal and policy justification to arrest the leadership of the lawyer profession. It is in utter failure in every self-stated goal of every law subject.
Can what you are advocating be done under the current legal and constitutional framework? I imagine you would run into opposition from the lawyers claiming loss of a victim’s right to seek compensation, loss of the right to a trial, etc. Also, if I were a lawyer, I would claim that the 2% error rate is because we lawyers are “policing” the evil doctors.
Personally I like the concept of the medical equivalent of an air crash investigation, which is how I see a “health court” functioning. And the observation of cluster causation is so true. Again, I imagine that lawyers would claim that this is why every name on the chart is named in the suit, and the jury finds proper causation.
I would also include disempowering (not arresting) the medical leadership. Too often, it seems, empowering the leader disempowers the followers to the point the followers lose their voice.
You could pass a statute in the Rules of Evidence. All facts in the internal investigation are excluded from discovery. The incentive would be to come in at midnight, minutes after the mishap, to get as many facts immunized. Those who made the mistake would be incentivized by immunity to spill as much as possible, as fast as possible.
Under current rules, the hospital has a duty to survive, and to cover up as much as possible.
Doctors are very powerful (this crew may feel weak, but they are very powerful). Whatever, the constitutional objections of self-dealing lawyers, they may be overcome by the Law of Necessity, and by policy decision. Worse come to worse, pass a constitutional amendment in a state, as a state experiments. See what happens to the error rate. The states will follow if the results help patients.
Medmal is dead anyway. The cover up is so deep, and the code of silence is fully justified by the need to survive to serve other patients. If I were a medmal lawyer, I would be seeking another specialty, right now. Even without these devastating innovations in Evidence, ordinary tort reform will likely end all but extreme cases, such as wrong site surgery. If I were a surgeon, I would immediately settle awrong site surgery claim, not because I will lose, but because it is just moral to compensate the victim of a plain medical mistake.
As a patient, I do not want a drug addict hitting the lawsuit lotto, stealing my money to spend on crack. I want my 2% of health cost to go into preventing error. Aside from my health occupation, I had a child with a devastating condition after a medical error. That big error was followed by a smaller but still life threatening error every day in the hospital, every single hospital stay, for years. The first error really rocked my family’s world. No one sued anybody. Every penny would have come from the care of other kids. The scientific article written by her doc changed practices and FDA warnings, and that satisfied her mother and me.
Igloo: Fortunately, the lawyer does not believe in a cluster of factors. He believes in a chain of causation. It may be broken by an unforeseen intervening cause, such as patient misconduct. This stuff was hot in 1250 AD. Today, it is ridiculous.
However, that is the way the law is. So all the falsely accused names in the chart have an out, and should get themselves dismissed on motions of lack of evidence or other weasel clauses in the Rules. As long as a lawyer gets paid, anybody should be able to get good justice.
Guys, putting aside the fantasy of some of Supremacy’s claims, there is getting ready to be a fundamental change of the whole system anyway. When healthcare is federalized, we’ll have a workers’ comp style no fault system. Physicians won’t have to worry about going through a traditional trial process, there will be some massive bureaucracy that will govern “quality control” which they’ll have the pleasure of dealing with.
While physicians piss and moan over “tort reform”, they are losing the forest for worrying over one tiny tree.
Matt: You mean, medmal is not dead? Whose living in a fantasy world?
I have no idea what you meant by “dead”. I don’t much care to parse your posts, lest I end up in a discussion about Clinton causing 9/11.
Clinton did not cause 9/11. The trial lawyers that persecuted him on a lawyer gotcha consumed 1000’s of his hours he should have spent on Al Qaeda. The trial lawyers caused 9/11.
I mean, 80% of claims fail. The number of claims is dropping like a rock every year. It is a complete waste of time for the lawyer who is not a loser.
The lawyers also hobbled our intelligence and police services, leading to 9/11. The lawyer is second guessing our warriors, and canceling military orders at the squad tactic level. The lawyer prosecutes our heros, and immunizes the terrorist. That is the type of person White Coat is facing. As these traitors give no quarter, so no quarter should even be considered.
Come the next major terror attack, all accounts get settled with the internal traitor.
Thank you for illustrating my point.
Matt: Thanks for illustrating mine.
Interesting discussion. I am a lawyer who does med mal. There, it is on the table. A Harvard study has shown that medical mistakes kill over 90,000 per year. Assuming a jumbo jet holds 300 people, that is the equivalent of 300 jumbo jet plane crashes a year. I doubt the airline industry and the government would allow that to happen.
The fact is, I have seen bad medicine and bad doctors. Simply speaking, people who are negligent, lawyers, doctors, drivers, need to be held accountable for their conduct. Since state medical examining boards rarely sanction physicians, all that remains to hold physicians accountable is the legal system.
The harvard 90,000 death study is just simply not true, but I guess it is good for a medmal lawyer to believe. Since everyone does die it is easy to go back and try to make some type of link to an error.
That 350lb chain smoking, alcoholic admitted to the ICU for GI bleed, pneumonia, MI, renal failure, kidney failure recieved a dose of antibiotics one hour late. Yeah, that is what must have killed him…..not the fact that he is a chain smoking alcoholic with GIB, pneumonia,MI, renal and kidney failure.
One should read the fine print.
1) The authors were from Harvard. That is a biased hate group. It is devoid of credibility except with other left wing clinician and patient haters. These are scholars, and patients are a nuisance to these geniuses.
2) The article was in the New England Journal of Medicine. That is a notorious hate speech, left wing propaganda organ, seeking to socialize medicine. It bashes clinicians all the time.
3) Half the authors had JD’s.
4) Trainees did the rating. They are not qualified to rate the care of experienced clinicians. These trainees underwent lengthy indoctrination sessions by the JD authors. Despite extensive indoctrination, the inter-rater reliability coefficients were low. Good inter-rater agreement is a necessary, but not sufficient, requirement to validation. They did not even have that, despite extensive indoctrination. The data are garbage.
5) Most of the patients with adverse events were moribund. If they had perfect care, they would have suffered longer and then died. Most of the adverse events were bad outcomes, not mistakes.
6) They then applied the fractions, however invalid, to the total hospital population. They did not prove that the populations had the same statistical features. This is basic stats from 11th grade high school courses.
In a re-analysis, correcting some the deficiencies above, the estimate of people dying from dropped from 90,000 to 3000 a year. This is such incompetence of research and of journal peer review, it has to be intentional. It is hate speech propaganda.
The medmal study is no less accurate than the studies purporting to measure “defensive medicine”.
“A Harvard study has shown that medical mistakes kill over 90,000 per year.”
Actually Mr. Uninformed JD is talking about the 1999 IOM study which calculated 44,00-98,000 deaths). Notice how it suddenly becomes greater than 90,000 in his eyes. This study has several has several flaws including extrapolation of data from the early 1980’s. You think medicine has changed since Jimmy Carter/Ronald Reagan was president? In that time anestheis has gone from one of the most dangerous to safest fields (for patients). Anyone interested can find an early 2000’s JAMA paper discussing the flaws of the IOM report. But that actually involves doing a little research on your part. Much better to continue anecdotes.
Anna, can you point me to the 350 lb person in the study you refer to please?
Fact: Dr orders stress test, stress test comes back recommending a stress test with contrast. Ordering doctor is “confused” as to what stress test doc is suggesting. he chooses not to call stress test doc and instead ignores recommendation. Wife is now a widow.
Fact: man has a PSA, prostrate cancer screening test, of 4.2. Elevated. Doctor chooses to ignore it or order another one in 6 months. Wife is now a widow.
Fact: woman goes to ER, complains of a “weight on her chest” (direct quote from the record). Left arm pain, jaw pain. Is told she is too young for a heart attack. Husband is now a widower.
Guys, I can go on, but the point is, if you are negligent, you need to be held accountable.
Elmo, I respect your views, but these are not anecdotes. They are real people with real families.
Jeez Paul: for a doc you make a great lawyer.
Fact: stress test is not an imaging test so “stress test with contrast” is meaningless. As in, does not exist. Further testing, sure, but “stress test with contrast?” No go.
Fact: PSA of 4.2 is “just” elevated (normal is anything up to 4.0), and repeat in 6 mos is the appropriate course of action. Did this guy get hit by a bus or something? PSA is not an appropriate screening test as it does not speak to the reason for elevation, and DRE is much more appropriate.
Fact: I can’t really say anything about this one, sounds like a missed diagnosis, but your usual young female chest paineur is in fact having a panic attack.
PS: You need to look up anecdote. Plural does not equal data. These are by definition anecdotes.
No. Paul these are three snapshots according to you. I haven’t read the chart. I don’t know what the truth is. Frankly, IMO with malpractice attorney’s such as yourself, finding the truth falls a distant second to courtrooms antics and getting a W. I deal with real patients and families everyday in the trenches. I don’t sit in my airconditioned office playing monday morning quarterback about a field I don’t really understand. Yes there are bad doctor’s. My own state (arizona) regularly discipline’s them. Please go to the state board website (AZMD.gov). You will see a PDF on every event and outcome. That is how it should be. Why your at it go to the Arizona law website. You can barely figure out the discipline and there is no discussion of the event. Now just who here has the code of silence?
The simple fact is your “comment” about over 90,000 deaths comes from ignorance. The study and data has flaws (I am not saying it is wrong, but flawed). But you don’t know that, you have not done the research. You just parrot another piece of ATLA trash to further your ends.
“The simple fact is a multitude of western european countries have developed systems every bit as good (and at times better) than ours. This includes better ways of dealing with medical malpractice.”
Which ones are those?
“You just parrot another piece of ATLA trash to further your ends.”
As opposed to parroting the insurance industry’s trash? Or has Harvard become an ATLA tool?
“Notice how it suddenly becomes greater than 90,000 in his eyes.”
Which makes it different from how physicians have distorted even the Studdert study how? This is politics elmo, physicians play it all the time. Don’t cry when others do the same. If there are flaws, point them out. No need to get all pissy about it.
“I haven’t read the chart. ”
I bet you’ve never read the chart in any of John Edwards’ cases, for example, but you’re quite sure they were unjustified verdicts, right?
I read his book, Four Cases. He is a lying thief, a scam artist, using low life plaintiffs, to enrich himself. He single handedly exploded the rate of C-Section deliveries. These in turn caused a massive increase in hospitalization grade asthma attacks and diarrheal diseases in newborns. He hurt thousands of babies.
I had an interesting experience this last weekend. First of all, I must preface this by saying no one, doctors, lawyers, clerks, should have the misfortune of having to go to the ER on 4th of July weekend. New residents, very few attendings.
Anyways, my daughter wakes up early saturday AM with vomiting and abdominal pain. Take her to ER, worked up, appendicitis is the diagnosis. Its now 10 AM, and first year resident comes in an explains that there are heart surgeries going on, no OR, no surgeon, so they will admit her and do surgery the next day at 7AM. Waiting 24 hours doesnt sound so great to me, so I ask, what are the chances of the appendix bursting, causing peritonitis, perhaps an open incision and a bigger surgery. Funny, saw new doctor, guess what? OR miraculously opens up, surgeon miraculousy is free, and surgery is at 2:30 that afternoon. Oh, and appendix was very inflammed, could have burst anytime, according to the surgeon.
Again, how would you like to know what is the standard of care these days for appendicitis? Non-operative management often does very well and is becoming the norm.
Of course they made an OR free for the daughter of a flipping malpractise lawyer making veiled threats.
Supremacy Claus, it’s really unfair of you to call the families the Edwards helped as low life plaintiffs. Edwards has his issues, I won’t defend his personal life. But in his book, he describes the little girl whose intestines were sucked out of her by the pool drain. She isn’t a low life by any means, just a poor little girl who was injured by a defective product.
Another personal experience, again, July 4th weekend. Different year, not this year. My son, then 12, caught a fly ball in a little league game with his eye. Not good. So we go to the local Childrens Hospital ER, he is seen by yet another resident who has been on the job a whopping 2 days. He says he “probably” doesnt have a fractured orbital bone, after doing no radiological tests. I say, “Can you rule out a fracture” he says he “probably” doesnt have a fracture. We go back and forth a few times, and I eventually say if he has a fracture and a muscle gets caught in the fracture line, wont that cause a problem? And he askes me what kind of doctor I am. And I say Im not, but call the attending, get an order for an MRI and rule out the fracture.
Surprise! Fracture! Son immobile for a few weeks.
So, fortunately, a bit of knowledge helped. But what about those that dont know, dont know what questions to asK?
Elmo, Im not here to name call. That really isn’t very productive. I will tell you, many of my best friends are physicians. I respect what they do, day after day. I also reject 95%, maybe more, of cases I look at. I understand medicine is not perfect, bad results happen with the best of care. But you must agree, bad things can happen with bad care, and sometimes that happens.
Oh, by the way, I sue bad lawyers too. A non denominational ambulance chaser
Paul: Of the cases that you take, what percentage produce any payment?
Supremacy Claus, that is a good question. In my state, virtually all medical mal cases get tried. We have a system where each health care provider has $1M of underlying coverage, and then basically an unlimited excess policy run by the state. I am in Wisconsin. So the underlying insurance carrier is willing to roll the dice on most cases, as their maximum exposure is $1M, with the state run excess carrier picking up the rest.
Context.
Now, of the cases I take, a large majority result in payment, either thru verdict or settlement. As I indicated, I reject a huge majority of cases I, or experts, review. Personally, I would rather sit on my porch and read trashy novels, as opposed to handling 50/50 cases. In my view, the case must be extremely strong to pursue. I will agree, there are many lawyers who handle 50/50 cases. They do the whole system, medical and legal, a disservice. So, I have never broken down the percentage that result in payment, but I can say that it is significant, but I strongly believe because it is due to the strength of the case. As I said, in Wisconsin, the insurers will defend defensible cases, as they should, with considerable success.
So, you want to review cases for me?
No. Any participation in the system, even to recommend rejection to a plaintiff attorney, even to be a defense expert, is betrayal of clinical care and of patients.
The system itself is faulty.
1) It induces a cover up instead of total investigation and prevention of future error.
2) If opposing experts testify in good faith, then a scientific controversy exists. That is not within the subject matter jurisdiction of the court. The judge must dismiss the case or it violates the procedural due process rights of the civil defendant, affirmed several times by the Supreme Court. That leaves only cases within the knowledge of the jury and with only a plaintiff expert as valid, constitutionally.
3) Win or lose, case impact standards of practice and cause defensive medicine. For example, Edwards single handedly caused an explosion of C-Sections in North Carolina. That was a catastrophe for the babies of NC, since C-sections cause asthma and diarrheal diseases in the first year of life.
If the lawyers are stealing 2% of the health budget in medmal, the doctors are stealing 10% in defensive medicine, using medmal as a false pretext for unprofessional conduct. But that is reality today. So medmal suborns a $200 billion insurance scam by doctors.
Well, not exactly. There is some true malpractise (saying repeat mildly elevated PSA in 6 mo isn’t it).
Patients and families in such cases deserve 3 things:
1. apology, sincere and heartfelt
2. some form of compensation, in particular for their excess costs and lost earnings
3. some form of assurance that the same thing will not happen to anyone else
Sometimes the legal system is the only way to guarantee these things.
Also- caesareans do not cause asthma and diarrhea. Where do you get this stuff?
… our results suggest that cesarean delivery may be an additional risk factor for wheezing and allergic sensitization at least to food allergens up to the age of 2 yr. This should be considered when cesarean section is done for other than medical reasons.
Pediatr Allergy Immunol. 2004 Feb;15(1):48-54.
Mode of delivery and development of atopic disease during the first 2 years of life.
Negele K, Heinrich J, Borte M, von Berg A, Schaaf B, Lehmann I, Wichmann HE, Bolte G; LISA Study Group.
GSF National Research Center for Environment and Health, Institute of Epidemiology, Ingolstaedter Landstrasse 1, 85764 Neuherberg, Germany.
It has been hypothesized that cesarean delivery might have an impact on the development of atopic diseases because of its gut flora modulating properties. In the present study, we analysed the association between cesarean delivery and atopic diseases using data of 2500 infants enrolled in the LISA-Study, a German prospective multicenter birth cohort study. Data on symptoms and physician-diagnosed atopic diseases were gathered by questionnaires shortly after birth and at infant’s age 6, 12, 18, and 24 months. In addition, sensitization to common food and inhalant allergens was assessed by measuring specific immunoglobulin E (IgE) using the CAP-RAST FEIA method at the age of 2 yr. Confounder-adjusted odds ratios (aOR) with 95% confidence intervals (CI) were calculated by multiple logistic regression. We found a positive association between cesarean delivery and occurrence of at least one episode of wheezing [aOR 1.31 (95% CI 1.02-1.68)] and of recurrent wheezing [1.41 (1.02-1.96)] during the first 2 yr of life. Furthermore, effect estimates for allergic sensitization defined as at least one specific IgE >/=0.70 kU/l against any allergen [1.48 (0.98-2.24)], against food allergens [1.64 (1.03-2.63)], and against inhalant allergens [1.75 (0.98-3.12)] were increased. Symptoms of atopic dermatitis [1.21 (0.92-1.59)], physician-diagnosed atopic dermatitis [1.04 (0.79-1.39)], and symptoms of allergic rhinoconjunctivitis [1.40 (0.80-2.44)] were only marginally increased in children delivered by cesarean section. In conclusion, Pediatr Allergy Immunol. 2004 Feb;15(1):48-54.Click here to read Links
Mode of delivery and development of atopic disease during the first 2 years of life.
Negele K, Heinrich J, Borte M, von Berg A, Schaaf B, Lehmann I, Wichmann HE, Bolte G; LISA Study Group.
GSF National Research Center for Environment and Health, Institute of Epidemiology, Ingolstaedter Landstrasse 1, 85764 Neuherberg, Germany.
It has been hypothesized that cesarean delivery might have an impact on the development of atopic diseases because of its gut flora modulating properties. In the present study, we analysed the association between cesarean delivery and atopic diseases using data of 2500 infants enrolled in the LISA-Study, a German prospective multicenter birth cohort study. Data on symptoms and physician-diagnosed atopic diseases were gathered by questionnaires shortly after birth and at infant’s age 6, 12, 18, and 24 months. In addition, sensitization to common food and inhalant allergens was assessed by measuring specific immunoglobulin E (IgE) using the CAP-RAST FEIA method at the age of 2 yr. Confounder-adjusted odds ratios (aOR) with 95% confidence intervals (CI) were calculated by multiple logistic regression. We found a positive association between cesarean delivery and occurrence of at least one episode of wheezing [aOR 1.31 (95% CI 1.02-1.68)] and of recurrent wheezing [1.41 (1.02-1.96)] during the first 2 yr of life. Furthermore, effect estimates for allergic sensitization defined as at least one specific IgE >/=0.70 kU/l against any allergen [1.48 (0.98-2.24)], against food allergens [1.64 (1.03-2.63)], and against inhalant allergens [1.75 (0.98-3.12)] were increased. Symptoms of atopic dermatitis [1.21 (0.92-1.59)], physician-diagnosed atopic dermatitis [1.04 (0.79-1.39)], and symptoms of allergic rhinoconjunctivitis [1.40 (0.80-2.44)] were only marginally increased in children delivered by cesarean section. In conclusion, our results suggest that cesarean delivery may be an additional risk factor for wheezing and allergic sensitization at least to food allergens up to the age of 2 yr. This should be considered when cesarean section is done for other than medical reasons.
Medical Malpractice Payments Hit Record Lows
Injured patients receiving less compensation, report claims
July 7, 2009
Medical malpractice payments were at or near record lows in 2008, but a study released by Public Citizen suggests the decline almost certainly indicates that a lower percentage of injured patients received compensation, not that health safety has improved.
Medical malpractice is so common, and litigation over it so rare, that between three and seven Americans die from medical errors for every one who receives a payment for any malpractice claim, according to Public Citizen’s analysis of medical malpractice payment data and the best available patient safety estimates.
For the third straight year, 2008 saw the lowest number of medical malpractice payments since the federal government’s National Practitioner Data Bank began tracking such data in 1990. The 11,037 payments in 2008 were 30.7 percent lower than the average number of payments recorded by the NPDB in all previous years.
Ratios of payments per capita and per physician have fallen even lower compared with historical norms. There were 13.5 payments per million physicians in 2006 (the most recent year for which the number of physicians is available), which is 29.2 percent lower than the average in previous years
The value of payments in 2008 (as distinct from the number of payments) was the lowest or second lowest on record, depending on the method used to adjust for inflation.
The cost of the medical malpractice liability system — if measured broadly by adding all malpractice insurance premiums — fell to less than 0.6 percent of the $2.1 trillion in total national health care costs in 2006, the most recent year for which the necessary data to make such comparisons are available.
The cost of actual malpractice payments fell to 0.18 percent — one-fifth of 1 percent — of all health care costs in 2006. Annual malpractice payments have subsequently fallen from $3.9 billion in 2006 to $3.6 billion in 2008, but comparative data on total health care costs are not available.
“Any way you measure it, medical liability accounts for less than 1 percent of the country’s health care costs, and the vast majority of victims receive no compensation whatsoever,” said David Arkush, director of Public Citizen’s Congress Watch division. “These are people who died or were left with serious permanent injuries — out of work, with enormous medical costs for the rest of their lives — and they and their families are getting nothing from the doctors and hospitals responsible.”
The amount paid out for medical malpractice generally goes to patients with the most serious injuries. More than 80 percent of the money paid out for medical malpractice in 2008 was for cases involving “significant permanent injuries”; “major permanent injuries”; injuries resulting in quadriplegia, brain damage or the need for permanent care; or death, according to NPDB reporting.
Despite the hysteria surrounding debates over medical malpractice litigation, experts have repeatedly concluded that several times as many patients suffer avoidable injuries as those who sue.
The best known such finding was included in the Institute of Medicine’s (IOM) 1999 study, “To Err Is Human,” which concluded that between 44,000 and 98,000 Americans die every year because of avoidable medical errors.
Fewer than 15,000 people (including those with non-fatal outcomes) received compensation for medical malpractice that year, and in 2008, the number receiving compensation fell to just over 11,000.
There is no evidence that there are fewer errors today. Most of the IOM’s safety recommendations have been ignored. Meanwhile, various safety indicators continue to raise alarms.
For example, the Joint Commission, which accredits hospitals, learned about 116 occasions in which surgeons operated on the wrong part of a patient’s body in 2008 and 71 times in which foreign objects were left inside patients’ bodies. Health experts call these “never events,” meaning that they simply should not happen at all.
Proposals to limit patients’ legal rights have sprung up in the debate over health reform. The most popular idea this year is to establish special tribunals that would theoretically offer payments to more patients but in smaller amounts.
Policy makers who wish to cut costs should steer clear of these proposals, Arkush said. The high volume of medical errors and the current infrequency of payments to victims ensure that proposals to increase the number of payments would inevitably cost far more than the current system.
The only economically feasible and, indeed, humane way to improve the system is to reduce the number of senseless and tragic medical errors in our hospitals. In its report, Public Citizen calls on Congress to put safety measures in place that would set the nation on course to meet the IOM’s goal of cutting the number of avoidable deaths in half in five years.
http://www.consumeraffairs.com/news04/2009/07/medical_payments.html#ixzz0KgkcUcVz&D
I have advised Matt and Max to get out of medmal. It is dead. And the doctors have yet to strike back, as I think they should. All innocent defendants should mercilessly defend clinical care from plunder by these land pirates. All land pirates should face a continual barrage of attempts at legal personal destruction and direct actions by patient advocacy groups. They are a total threat to the physical survival of patients, and physical self-help has good moral and intellectual justification. For example, the medmal plaintiff lawyer is the cause of every single preventable medical error.
While stressful… at least this part of court time is more interesting then reshuffling/reading your papers.
I am called for Jury duty and have to send it in… for the 2nd time.
I’m amazed that Matt didn’t point out to you that the challenges you describe are “peremptory,” rather than “preemptory.”
I’m a bit confused. “the medmal plaintiff lawyer is the cause of every single preventable medical error”
How so?
This is from Hearst media, hardly the bastion of the liberal press. Might be worth a read.
http://www.deadbymistake.com