New day, new witness.
Now it was time for the experts.
The “star witness” for the plaintiff ended up being a rotund old surgeon with spectacles and long hair who looked like Santa Claus without the beard. According to his witness disclosures, he was going to blast everyone’s care.
We were waiting for things to start and everything was quiet when he walked in the door. As he passed through the doorway, he tripped over his shoes. Then he sat down in the back of the courtroom and shuffled papers around. Vinny leaned over to me and said “If you think the attorney was bad in the opening statement, wait for this guy.” Not what I needed to hear.
The plaintiff attorney started out with direct examination which is basically a bunch of easy open-ended questions. He started with the doctor’s qualifications. This expert was 71 years old. He was licensed in three states. He was board certified only in general surgery which he “allowed him to specialize in the diagnosis and management of certain conditions of the body.” He stated that general surgery was a “broad field.” He was an associate clinical professor at a medical school, which essentially meant that he was on staff there. He charged $5,000 per day plus expenses for court testimony. He charged $500 per hour to review and analyze charts. He charged $350 per hour for depositions. He has testified in more than 2000 cases and gave approximately 20 depositions in the past year.
He started right in on the patient’s medical problem. Pretty much everything I did to keep the patient alive was wrong.
“This condition needs surgery, nothing else. Until the patient gets surgery, he will not get better. If the patient does not get surgery, he will die. In this disease, minutes and hours make a difference.”
Then he made up all of these criteria for the diagnosis of sepsis. The patient’s temperature could be low or high, the patient could have a heart rate greater than 90, the patient could have a respiratory rate greater than 20, bicarbonate level < 28, a white blood cell count < 4000 or > 12,000, or greater than 10% bands on the differential. If any two of these criteria exist, a patient is “septic by definition.” Let me get this straight. If I go out jogging, my heart rate goes higher than 90 and my respirations go greater than 20, then I need IV antibiotics? Get a clue.
During the expert’s testimony, I just kept staring at him. It seemed to be rattling him a little bit because he would say something that wasn’t quite true, then look over at me, then get flustered and look away quickly. I must have stared at him for good 20 minutes.
He then began reading medical records given to him by the Grinch. Problem was, the Grinch never gave anyone else copies of the medical records. The records were from several previous treating physicians and had little to do with the care we provided to him. We got them the morning of the expert’s testimony. The judge excluded those records from being shown to the jury, but then the expert just read the contents of the records to the jury. It was just like handing them the records anyway. That upset me. I wrote on my legal pad “Can he read it into the record if it has been excluded?” Then I pushed the note in front of Louise. She dropped her shoulders, cocked her head to the side and gave me one of those cold stares that apparently meant “Yes, and stop playing lawyer, dammit.”
Maybe I’ll get a mirror to flash her stare back at her or something. See if she can turn herself into stone.
They made a big issue of the requisition form for the patient’s CT scan. A radiologist’s report contains a brief history about why the testing is being performed in addition to the interpretation of the images. The report from the radiologist was dictated an hour after the patient arrived in the emergency department. It stated “pertinent history” and then listed the patient’s diagnosis. This led the plaintiff’s attorneys and the expert to believe that I knew what the patient’s diagnosis was an hour after he arrived in the emergency department. I didn’t.
The radiologist that read the film had a habit of going to the surgeons the following day and asking them what they had found. He would open up a blank report so that it looked as if it was dictated at the time of the exam, but would then hold the reports as “preliminary” and finalize them after dictating in the results of the surgeries. That way it looked like he had picked up on all these small findings before anyone else knew about them. He was a decent radiologist, so no one seemed to mind that he was adding all these findings after the fact. Now it burned me. The information on the radiology report was something we hadn’t noted when preparing for trial. Now we had to figure a way to explain away the radiologist’s antics without sounding like we were trying to make him a scapegoat.
The expert ended up his direct examination by saying that all the patient’s vital signs at that time were “abnormal” and “indicative of sepsis.” I failed to contact surgery in a timely manner, I failed to appreciate the patient’s history, and I failed to even appreciate the signs and symptoms of sepsis. Basically, I was a poor excuse for a doctor and caused the patient to die.
As far as the expert was concerned, the patient would have survived had I contacted a surgeon sooner. After he got to the ICU, he went into multiple organ failure and died as a result.
“The negligence of the hospital and of Dr. WhiteCoat caused this patient’s death.”
Damn it is hard to sit there and listen to someone say things like that without jumping up to defend yourself.
But Vinny was getting primed. Now it was his turn to ask the questions.
This should be good.
See previous posts in this series here.
ACKKKKK!!! Are you sure you aren’t a writer for some sort of crime TV show? Excellent so far… can’t wait to read the next installment! I have been a witness in court – rather a preliminary hearing. I was the nurse who drew a blood alcohol on someone brought into the ER intoxicated.. who blamed it on being hypoglycemic (BA was upwards of 300mg/dL… sugars > 100 +.. what do we REALLY think was going on?). I am only glad that I didn’t have to sit and be the object of the attorney’s contempt as you are in this case.
Anyhow, keep up the good work.. again can’t wait until the next installment!!
I’m with @Painless — this really keeps getting better every post. I have no idea how you could resist standing up and calling out that idiot. You’re a better man than me, White Coat.
Bastard! Both the “expert” witness, and you! The witness, for obvious reasons. You, for ending this installment like that! Bastard!
So did you all learn your lesson and quit backfilling any records?
Of course, this “idiot” came to the same conclusion as one of the experts hired by WC.
Actually, you keep harping on the point that WC’s first “expert” said that he didn’t meet the standard of care, but you know as well as anyone this is not true. In every case I’ve been asked to testify for, I was sent the records without being told which “side” was represented (to avoid the obvious bias). There are those “physicians” (I prefer the term “whores”) who will only testify for plaintiffs (better $$$), so all of their reports read that way. An unfortunate byproduct of our system.
Second, the “expert” in this installment is an idiot to suppose that as a board certified general surgeon, he can offer testimony on the actions of an emergency physician. While I know that you have absolutely no respect for the training a physician goes through, the American Board of Medical Specialties (a group of pretty smart folks) saw fit to separate emergency medicine as its own specialty 40 years ago. A surgeon has no place on the stand here.
Third, the definition he provides for “sepsis” is different from that given by the various professional groups that make up the “surviving sepsis campaign”. Here is a crash course for you (from the SSC website).
“The course of sepsis is described as a cascade of events. Once sepsis begins, the body reacts with widespread inflammation, clotting, and impaired clot breakdown, which is thought to occur when chemical signals in the immune system go awry.
Under normal circumstances, substances called immune modulators are released to help the body fight infection and heal itself. In a person with sepsis, this process breaks down and the immune regulators go into overdrive. Triggered by the infection, bacteria and other toxins provoke the release of too many of these regulators. They inflame the lining of the blood vessels and activate the blood clotting process, which then triggers another wave of regulator release. The inflammation prompts the release of a substance that stimulates blood clots to form.
In the cascade of sepsis, the body’s ability to break down the clots is suppressed. One substance that regulates the blood clotting, controls inflammation, and supports ‘clotbusting,’ called activated protein C, is decreased in sepsis. As a result of the formation of blood clots and inability to break down the clots, microscopic blood clots begin to form in vital organs, arms and legs, and digits, limiting blood flow and causing tissue damage, which can lead to organ failure or gangrene.”
The diagnostic criteria are:
Infection, documented or suspected, and some of the following:
General variables
Fever (>38.3°C)
Hypothermia (core temperature 90 or >2 SD above the normal value for age
Tachypnea
Altered mental status
Significant edema or positive fluid balance (>20 mL/kg over 24 hrs)
Hyperglycemia (plasma glucose >140 mg/dL or 7.7 mmol/L) in the absence of diabetes
Inflammatory variables
Leukocytosis (WBC count >12,000)
Leukopenia (WBC count 10% immature forms
Plasma C-reactive protein >2 SD above the normal value
Plasma procalcitonin >2 SD above the normal value
Hemodynamic variables
Arterial hypotension (SBP <90 mm Hg; MAP 40 mm Hg
in adults or >2 SD below normal for age)
Organ dysfunction variables
Arterial hypoxemia (PaO2/FIO2 <300)
Acute oliguria (urine output 0.5 mg/dL or 44.2 mol/L
Coagulation abnormalities (INR >1.5 or a PTT >60 secs)
Ileus (absent bowel sounds)
Thrombocytopenia (platelet count, 4 mg/dL or 70 mol/L)
Tissue perfusion variables
Hyperlactatemia (> upper limit of lab normal)
Decreased capillary refill or mottling
Diagnostic criteria for sepsis in the pediatric population are signs and symptoms of inflammation
plus infection with hyper- or hypothermia (rectal temperature >38.5°C or <35°C),
tachycardia (may be absent in hypothermic patients), and at least one of the following
indications of altered organ function: altered mental status, hypoxemia, increased serum
lactate level, or bounding pulses.
WBC, white blood cell; SBP, systolic blood pressure; MAP, mean arterial blood pressure; INR,
international normalized ratio; a PTT, activated partial thromboplastin time.
Adapted from Levy MM, Fink MP, Marshall JC, et al: 2001 SCCM/ESICM/ACCP/ATS/SIS International
Sepsis Definitions Conference. Crit Care Med 2003; 31:1250–1256
Lastly, because of the difficulty a septic patient has with clotting, and due to the fact that very few sources of infection are amenable to surgical cures, a surgeon is not usually on the short list of folks to call if a patient is septic. The mainstays of treatment are initial fluid resuscitation – including vasopressors as needed, antibiotic therapy, and source identification and control. Now, there do exist cases where a surgeon can help, but this so-called expert is an idiot to assert that sepsis is a surgical disease. It is a disease of the emergency physician and intensivist.
I only hope that when the diagnosis in this case is revealed it is something that requires de facto surgical attention emergently. Otherwise, WC ought to sue the "expert".
Perhaps you didn’t read Part 2 in this series where Whitecoat stated very clearly “The expert thought my care was negligent.”. If in reading that you came to a different conclusion than what i stated we will just have to agree to disagree.
Personally when I have to use experts I like one who has testified for both sides in the past. It’s harder in med mal though since testifying for a plaintiff will often result in a physician being ostracized by his peers regardless of whether there was malpractice. It wouldn’t surprise me if they charge more given that, but the costs have always been about the same for expert physicians on both sides in the cases I have seen.
Tell me, what do you call an expert who only testifies for the defense?
And as always a nice sense of timing. It’s like the serials that magazines used to regularly run years ago.
What is amazing about all of this is how little the court system seems to be geared toward getting to the truth, whatever that might be.
Oh, and I hope you won, Dr. Whitecoat, and that that slimey Grinch had to end up paying for multiple $5,000 days to the “expert” out of his own pocket. I guess I’m more interested in “justice” than truth, myself.
Actually that’s the point of the whole thing. Can you think of a better way.
Yes, Matt. This is the best way. So explain why the lawyer and the judge have deprived themselves of this great experience by dealing themselves impenetrable immunities. What is the policy or legal justification for these self-dealt immunities?
As a patient should not just hand over all care to the doctor, so the doctor should definitely assert all legal rights with their own lawyer. She can no more be trusted than the doctor can with patient care. The party is the owner of the law, and the lawyer is the mere technician.
I don’t know how this expert got qualified since the defendant is an ER doctor. The lawyer should have objected to the lack of same specialty, to the age of the expert, to withholding of prior records. The lawyer should have demanded examples of the records of the expert of patients presenting with the same symptoms. The lawyer should have objected to the dependence of the expert on testimony work, making him an unreliable whore. If the judge failed to disqualify the expert, that decision should have been appealed.
As I stated, the jury is not the best friend of the doctor, it is the only friend. The defense lawyer is not a friend. And the doctor can stop playing lawyer when she begins to act like one. She is giving courtesy to the plaintiff lawyer, who is the source of her job, and to whom she is grateful.
The courts deny this. They say, testimony is not the practice of medicine. However, it is the super practice of medicine. An expert tells the doctors of the state how to practice, at the point of a gun. Practicing outside of one’s scope of practice, training, and knowledge is unprofessional conduct. The defendant may have an affirmative duty to report this expert to each of his licensing boards, and to each of his professional societies. One would take a single statement at a time, and report it to a separate licensing board. They are obligated to investigate each one. Do this once a month for the next decade. If the witness had an employer, one should do the same, report unprofessional conduct.
If WC’s lawyer had chosen to do her job more zealously, and had the expert gotten disqualified? Case is over. And guess what. She loses billable hours for the rest of the trial. She had a conflict of interest. If she beats up the plaintiff, she loses money. So she deserves no pity, nor human consideration. The defendant should hire a legal malpractice personal lawyer, who will repeatedly terrorize her into doing the minimum for her client. Repeatedly send her legal demand letters, formally giving her notice of her inadequate performance, and threatening to sue her. We don’t really care what problems she has destroying the other side in the first 5 minutes of trial, nor offending the judge, nor that she doesn’t have anything else to do, and will lose income.
She is gambling with the future of a doctor. We wouldn’t even care if she commits suicide from the pressure. Her life is worth nothing, or her passing will actually add to the economy by having one less lawyer alive. She is also totally fungible and interchangeable with 50 others who would apply for her job.
This lawyer’s remark is most disturbing aspect of this Part, the disrespect of the lawyer for the doctor. That tells you something. It says, the doctor is not the real source of her income, but the plaintiff lawyer. She berates her client, and allows the other side to roll over her client unmolested. The lawyer wants to have a trial, and will do nothing that risks ending the case before the trial.
Q: Before signing the death certificate had you taken the man’s pulse? — A: No.
Q: Did you listen for a heart beat? — A: No.
Q: Did you check for breathing? — A: No.
Q: So when you signed the death certificate you hadn’t taken any steps to make sure the man was dead, had you? — A: Well, let me put it this way. The man’s brain was sitting in a jar on my desk, but now that I think about it he could be out there practicing law somewhere. – Cross of Coroner by Defense Attorney
Q: What do you call 5000 lawyers at the bottom of the ocean?
A: A good start!
Did you hear about the terrorists who took a whole courtroom full of lawyers hostage? They threatened to release one every hour until their demands where met.
Did you hear that the Post Office just recalled their latest stamps? They had pictures of lawyers on them … and people couldn’t figure out which side to spit on.
Q: How are an apple and a lawyer alike?
A: They both look good hanging from a tree.
Q: How can you tell when a lawyer is lying?
A: His lips are moving.
Q: How does an attorney sleep?
A: First he lies on one side then he lies on the other.
Q: How many lawyers does it take to change a light bulb?
A: You won’t find a lawyer who can change a light bulb. Now, if you’re looking for a lawyer to SCREW a light bulb…
If a lawyer and an IRS agent were both drowning, and you could only save one of them, would you go to lunch or read the paper?
Q: What are lawyers good for?
A: They make bankers and used car salesmen look good.
Q: What do you call 25 attorneys buried up to their chins in cement?
A: Not enough cement.
Q: What do you call 25 skydiving lawyers?
A: Skeet.
Q: What do you call a lawyer gone bad?
A: Senator.
Q: What do you call a lawyer with an IQ of 50?
A: Your Honor.
Q: What do you throw to a drowning lawyer?
A: His partners.
Q: What does a lawyer do after sex?
A: Pays the bill.
Q: What’s the difference between a lawyer and a prostitute?
A: A prostitute will stop screwing you when you’re dead.
Q: What does a lawyer get when you give him Viagra?
A: Taller.
A grade school teacher was asking students what their parents did for a living. “Tim, you be first,” she said. “What does your mother do all day?” Tim stood up and proudly said, “She’s a doctor.”"That’s wonderful. How about you, Amie?” Amie shyly stood up, scuffed her feet and said, “My father is a mailman.” “Thank you, Amie,” said the teacher. “What about your father, Billy?” Billy proudly stood up and announced, “My daddy is a pimp for a group of crack whores.” The teacher was aghast and promptly changed the subject to geography. Later that day she went to Billy’s house and rang the bell. Billy’s father answered the door. The teacher explained what his son had said and demanded an explanation. Billy’s father said, “I’m actually a plaintiffs’ attorney. How can I explain a thing like that to a seven-year-old?”
Q: How many lawyer jokes are there?
A: Only three. The rest are true stories.
Q: What do you call a busload of lawyers with one empty seat going over a cliff?
A: A missed opportunity.
Q: What is the difference between a dead dog in the road and a dead lawyer in the road?
A: Skid marks in front of the dog.
I probably put these on here before, so sue me. Fyrdoc got all the rest of them.
“Perhaps you didn’t read Part 2 in this series where Whitecoat stated very clearly “The expert thought my care was negligent.”. If in reading that you came to a different conclusion than what i stated we will just have to agree to disagree.”
As I said, that “expert” may well have been motivated by sources other than the truth. Without the chance to cross-examine, I guess we’ll never know. That said, the fact the the plaintiff couldn’t find an emergency physician to testify speaks volumes regarding the so-called “malpractice”.
And just like a lawyer, skate over the multiple paragraphs that essentially prove this “expert” doesn’t know what the f$%k he is talking about and instead argue with a side point. Whatever.
“As I said, that “expert” may well have been motivated by sources other than the truth”
Perhaps, but you’re just guessing about that, aren’t you? Not only are you second guessing, you’re not even doing it with the benefit of seeing the evidence!
“That said, the fact the the plaintiff couldn’t find an emergency physician to testify speaks volumes regarding the so-called “malpractice”.”
I haven’t seen the guy’s CV and neither have you. Maybe all that means is that physicians are loathe to testify against each other.
“And just like a lawyer, skate over the multiple paragraphs that essentially prove this “expert” doesn’t know what the f$%k he is talking about and instead argue with a side point.”
Why would I argue medicine in this case with you. I lack the background. You may be right and you may be wrong. Without seeing the actual evidence, how can either of us know what happened? Unless you’re like Bill Frist and can diagnose things from watching TV, or in this case reading blog posts of one side.
“Perhaps, but you’re just guessing about that, aren’t you? Not only are you second guessing, you’re not even doing it with the benefit of seeing the evidence!”
As are you in the belief that WC’s first “expert” was only motivated by “the truth”. We both know that isn’t common.
“I haven’t seen the guy’s CV and neither have you. Maybe all that means is that physicians are loathe to testify against each other.”
He is NOT boarded in EM. That is clear from the post. He is a general surgeon. He has no business testifying in an EM trial.
“Why would I argue medicine in this case with you. I lack the background.”
But you believe you have the background to sit on a malpractice jury? Anyone does according to you.
“You may be right and you may be wrong.”
Really?!? I posted the verbatim guidelines accepted by the American College of Emergency Physicians and the Society for Critical Care Medicine. What is that is left to doubt? The testimony (as provided in this blog) doesn’t meet these guidelines. How is it to be considered “expert”? I realize that Daubert states it isn’t so just because an expert says so, but what I posted reaches the Daubert standards (and Frye, if he is in one of those states). The testimony reported wouldn’t even meet Frye as that surgeon’s definition is not generally accepted in medicine.
Once again Councelor, it boils down to what you said. You simply lack the background to realize that the system is broken. You can’t even tell when patently untrue testimony is provided.
Q: “Tell me, what do you call an expert who only testifies for the defense?”
A: Me. Or any other physician worth their salt. When I have reviewed cases and found the care sub-standard, I will not testify (for either side). If the care meets the standards, I will (and have) testify for the defense. That said, I’ve been offered triple my usual rate by plaintiffs’ attorneys. Of course, I’ve waived fees for the defense…
So the guy who knows that there is sometimes substandard care won’t help out people who are harmed by substandard care. That makes you better than the “whores” how?
And remind me again about how you loathe malpractice and wish there was less of it and believe those harmed by it should be compensated? I guess actions do speak louder than words.
“remind me again about how you loathe malpractice and wish there was less of it and believe those harmed by it should be compensated?”
I don’t believe under the current compensation system that they should be. I believe that the needed medical treatment should be provided free of charge, but unless the malpractice rises to the level of willful and wanton misconduct (which I have never seen in the cases I’ve reviewed), I do not believe in large compensation. I believe that a patient places themselves in the hands of a human being who is fallible and may make mistakes. I believe that the current systems does not allow root cause analysis for known errors (and thus correction) and I believe that contingency fees are so disgusting that lawyers ought to be ashamed to admit their professions in public. Oh wait. They usually are…
Matt: The defendant is an ER doc. The expert is unqualified. You are a common land pirate. Would it be fair to have a property law expert second guess a mistake you made in a Rule Against Perpetuities matter, even if you had made one? No. Only 500 people on earth understand it. The expert testifying should also be a common land pirate, not a specialist.
Contingent fees = putting your money where your mouth is.
Immunity except for “willful and wanton misconduct” = putting someone else’s health and livelihood where your mouth is.
“I don’t believe under the current compensation system that they should be.”
Well, let me know when there’s a legislative proposal you’re backing that purports to pay them any other way. Until then you’re just pissin’ in the wind.
“I do not believe in large compensation”
I don’t either unless the damages justify it.
“I believe that contingency fees are so disgusting that lawyers ought to be ashamed to admit their professions in public.”
How do you propose that people who are facing mountains of medical bills, cannot work due to their injuries, and still have all their regular bills, pay for a lawyer and all the experts to battle the other side which is funded by a multimillion dollar insurance company? Do tell.
I’ve never been ashamed to admit what I do. I help people in situations they are unable to resolve for themselves for some reason or another. From a collection case for a small business to probating a will, to helping someone injured by the negligence of another make the responsible party pay for the harm they’ve caused. Nothing dishonorable about that, in fact I’m quite proud of it.
In fact, I’m so proud of it that unlike you, I don’t need to denigrate things others do that I barely understand in order to make myself feel better.
“I’ve never been ashamed to admit what I do. I help people in situations they are unable to resolve for themselves for some reason or another. From a collection case for a small business to probating a will, to helping someone injured by the negligence of another make the responsible party pay for the harm they’ve caused. Nothing dishonorable about that, in fact I’m quite proud of it.”
And when you win, do you take an accounting of your hours, multiplied by the time you spent as payment or do you take a sizable piece of that which was designed to make your client “whole” again?
That is where the shame is. I treat EVERYONE who comes to my emergency room exactly the same. Regardless of their ability, or even their intent, to pay. Regardless if they are prisoners, wards of the state, tycoons or middle class. Each to their needs. Can you say that your justice system does the same?
And that is why you should hang your head in shame as the worthless parasite you are. You take a sizable chunk (33% remains the standard right?) of the money designed to help compensate “victims” of negligence. For shame. Why not provide that service (as do physicians) for an honest hourly rate? You know, the same rate you charge for all your other casework? ‘Cuz it just isn’t in ya now is it?
When I win a case on contingency I take the agreed fee. Because that is a contract negotiated between my client and I, in which I assume the risks of funding the litigation and my time ending up uncompensated, rather than on a straight hourly basis or flat fee where I know I will get paid regardless of result. I do not force the client to do it on contingency, and offer them the option to pay hourly. I have even had business litigation clients decide they preferred the contingency fee because they felt like that would motivate me more – it doesn’t really, but that’s fine with me if that’s what they want.
I treat EVERYONE in the same manner in terms of the effort I put into the work, regardless of how I am paid.
If you’re a physician and used to your crazy payment scheme wherein the provider and the patient have a middleman in the financial relationship, and you aren’t necessarily compensated based on how skillful your work is or the quality of the body of your work, I realize that free market concepts such as the above may seem foreign. I think it’s a tragedy physicians are paid the way they are, but they don’t seem terribly motivated to change it, so I guess they like it.
It is funny to hear you talk about an “honest hourly rate”, because most all physicians will admit that there is nothing “honest” about the way they are paid. You are compensated based on rates you negotiate with the govt. (not much of a negotiation admittedly but you still take the cash) and insurers. There is no set hourly schedule for your time and you attempt to maximize your revenue within that payment model. Now, you may be an employee who gets paid a salary, and if so good for you. But then you have even less understanding of the free market negotiation between a service provider and the recipient of the services.
” Can you say that your justice system does the same?”
Are you arguing that everyone receives the same care in the “medical system”, regardless of ability to pay? Really?
“As are you in the belief that WC’s first “expert” was only motivated by “the truth”. We both know that isn’t common.”
What motivates you when you review cases? Something other than the truth? Why should I assume someone I have never met and who I know nothing about has other motives? You seem to really dislike other people as a reflex.
“But you believe you have the background to sit on a malpractice jury? Anyone does according to you.”
No, I believe I’m intelligent enough to listen to the evidence and make a decision based on what is presented. You’ve managed to figure out the law without any formal training in it, so why do you assume everyone else is a blithering moron?
“What is that is left to doubt? The testimony (as provided in this blog) doesn’t meet these guidelines. ”
It’s a novel concept, I realize, but one side’s abbreviated take of evidence presented in a case may not be conclusive. And again, another physician, who had a very thick resume’ according to WC, came to the same conclusion. But again, I don’t know either of these guys’ qualifications, so I’m not in a position to reach a conclusion. Why is it so weird to you that people withhold judgment unless they’ve actually seen the evidence?
“. You simply lack the background to realize that the system is broken.”
Perhaps it is. Let me know when you’ve advanced a legislative proposal to accurately pay more victims of malpractice faster.
Ladies and Gentlemen,
I give you the Lawyer. A strange breed of creature this. Advanced enough in evolution to sit in judgment of all other professions. Skilled enough in the art of persuasion that it lives easily among other creatures that would just as soon kill it as the vermin it is. But most remarkable, it has reached this point of evolution while holding fast to a belief that if a problem has no solution, then it isn’t a problem.
Maybe you read too fast. I clearly stated that perhaps there is a problem, in fact I know I’d like to see more victims of malpractice paid more efficiently.
I’m inviting you to show me where your solutions are. Instead you respond with a personal attack. I don’t know that really speaks well of your position.
The solution lies in ending the privity obstacle to a legal malpractice claim by the adverse third party. The filing of a weak claim is legal malpractice. The 80% failure rate of medmal claims is an aggregate tort. It is intentional. Because it causes damages in its intended and normal use, strict liability applies.
I believe in torts. It replaces violence. With the self-dealt immunity of the lawyer and judge, self-help by the victims of lawsuit abuse has full intellectual and moral justification. It should start with a boycott of all lawyers by all service and product providers.
Doctors want to compensate patients when they have made a harmful mistake. They do not want to be subjected to an unjustified carjacking by vicious legal predators, including their defense lawyers. Those they want to hurt. There is full justification to drive these out of town until doctors can get legal recourse.
Matt, I hope you are young. Try to not age. After 30, an organ fails every couple of years. Any doctor that treats a plaintiff lawyer is a self-defeating fool, and a traitor to all of clinical care. I support the above boycott even by doctors. There no way to compel someone to serve an oppressor and mortal enemy seeking his personal destruction.
“As are you in the belief that WC’s first “expert” was only motivated by “the truth”. We both know that isn’t common.”
What motivates you when you review cases? Something other than the truth? Why should I assume someone I have never met and who I know nothing about has other motives? You seem to really dislike other people as a reflex.
- No, when I review cases I am motivated to exonerate the physician. I freely admit it. There is no way I will take another physician to task over a judgment call. (As I said, willful and wanton would be another case). I’m pretty well known for it. In fact, I expect I’ve come to the end of my rope as an expert witness as plaintiffs’ attorneys often attack the fact that I don’t testify for them while I am being crossed. And I like everybody at base. So much so that I leave my family, often at night, to place myself in harms way (both physical and liability) to serve my fellow man in a wide variety of settings. But when it comes to litigation, it is all about the money. You know it and I know it. You can keep trying to sell it other ways, but we all know better. And if you are trying to claim that you don’t know that experts “color” their reports to favor one side or the other you are either incredibly naive or incredibly stupid. If it is so easy to find an emergency medicine “expert” to show that WC was wrong, why are the plaintiffs using a general surgeon?
“No, when I review cases I am motivated to exonerate the physician.”
You’re doing your clients a disservice then. When I hire an expert I want them to look at it as dispassionately as possible.
“But when it comes to litigation, it is all about the money.”
Of course it is when it comes to trial, I’d never say otherwise. Courts can’t award anything else, other than injunctions which don’t really apply to past harm. Sure, litigants would love to have the other side admit they are wrong, but I tell anyone who comes to see me that if their goal is an apology or to have the other side jailed or whatever, I can’t help them. Our society has decided that the way we right civil wrongs is primarily through money damages. We aren’t going to jail people for simple negligence. Or breach of contract. Or fraud (for the most part).
I think the only one kidding themselves is you, because you think tort reform is about something other than money.
“Doctors want to compensate patients when they have made a harmful mistake. ”
Really? All of them? I guess the physician in the last med mal case I worked on didn’t get the memo. Which is why she “forgot” to put in the records that she had performed a tubal ligation on the patient or inform the patient at all until 30 days later when word started to leak out and she “amended” her records stating there was an emergency which caused her to have to do it.
Sure you want to use absolutes such as “all”?
The fair ones want to settle.
In most cases, the doctor is being scapegoated by a hate filled, greedy, low life plaintiff. In that case, the doctor should seek the total personal destruction of these enemies of clinical care. It is possible, once the doctor has decided on his innocence. I encourage doctors to get more aggressive in defending clinical care from its enemies. Hire a personal attorney to terrorize the insurance lawyer, into attacking the plaintiff lawyer and the judge. These must come to shake and pee their pants upon the arrival of the doctor. These are mortal enemies who need total deterrence. If they commit suicide from the all out attacks on all fronts, so much the better.
This stuff has interrupted a long series of successful cases, and the lawyer went into another specialty. The plaintiff experts never testified again after their personal nightmare experience. These criminals learn only from pain. Even the defense lawyer stopped practicing, ridding the defense bar of a enemy collaborator. The innocent doctor should never be alone in personal uncertainty. In other cases, out of state lawyers tried to spread a medmal franchise to our state. They were destroyed in court, and set a precedent. They never returned. They had made $10’s of millions in New York, where defendants are real pansies.
These methods are for the innocent defendant.
A few random thoughts on this excellent installment–and I can’t wait for the next part.
Perhaps one of the lawyers can answer this, but why was “The expert witness” allowed to read materials that were previously disqualified into the case?
Could WC’s lawyers have objected? [with a change of having their objection sustained]
The defense lawyer wants a trial.
This traitor should have strongly objected, demanded a mistrial be called because of the non-compliance with a judge’s order, and all cost to the personal assets of the plaintiff lawyer, and ethics charges filed with the Disciplinary Counsel. At worst, the motion would be denied. At best, a mistrial is called, and the plaintiff lawyer is crushed. That will never happen without the all out terrorization of the defense lawyer traitor, by another lawyer. They just laugh at civilians, as you can see from Matt’s arrogance and contempt for the public. If the mistrial is called, the trial is over, and the defense lawyer does not get billable hours for 2 more weeks.
“You’re doing your clients a disservice then. When I hire an expert I want them to look at it as dispassionately as possible.”
No, I put my bias out there. They know it before they hire me.
“I think the only one kidding themselves is you, because you think tort reform is about something other than money. ”
No, I don’t. It is about money. Money right now being spent on medical malpractice premiums, defensive medicine. Money taken out of medicine and put into the pockets of society’s parasites.
Actually much of a malpractice award typically goes to past and future care. So you’re really just shifting costs from the responsible party to the taxpayer.
But there’s a simpler way for you to get rid of us parasites that doesn’t involve further screwing innocent victims of malpractice. Pay people quickly and fully when you commit malpractice. That might even make your sanctimonious tone justified.
Should I hold my breath for that reform?
“Pay people quickly and fully when you commit malpractice. That might even make your sanctimonious tone justified.”
I would agree if you allow for that determination of malpractice to be made with a realistic standard – not the impossible perfection now required. I’ll give you an example. Several papers have discussed the idea of an acceptable “miss rate” for acute myocardial infarction. The best systems can expect to capture 98.5% of these events. But, I can’t introduce that as a defense in court when I miss an MI (heck even if I beat the odds and catch a thousand heart attacks, if I miss one, according to you I’ve committed malpractice and no previous record of perfection is admissible). The grieving widow, the orphaned children, even the unwalked dog will each get their say, because I’ve egregiously wounded them by being less than perfect.
Even if a full root cause analysis of the “miss” were performed (which no one will allow now – it would only serve to possibly bring new defendants to the table) no system error would be found, why, because there wasn’t one. Simply put, even the best tests, interpreted by the best physicians, will miss cases occasionally. There is no perfection in humanity (of course to subhuman lawyers there should be). Now, if a system is created that allows a fair accounting of the root causes of error, and it boils down to actual misconduct by a physician, then by all means pay the patient what they are out. And keep the lawyers paws off of any award other than to pay them for their billable time at a fixed rate (and to pay the costs incurred). If it works in divorce law, it can work in med mal. But if the cause was simply the statistical limits of reality, there should be no payment.
You have still failed to answer why “tactical decisions” that turn out badly in the practice of law are not actionable, but their corollary in medicine is not so protected.
That definition he’s giving is clearly incorrect. It’s the definition for SIRS (and applies to the patient in front of you, so the jogging analogy is a bit silly) and either a clear focus of infection or a positive lab result is required to turn it into a sepsis diagnosis.
Even then, the need for IV antibiotics in sepsis is not clear; I routinely give oral or nothing even in clear sepsis.
It’s not even the proper definition of SIRS, unfortunately.
Matt: Give us the justification why you parasites refuse to compensate the victims of lawsuit abuse, and of weak claims, which is lawyer malpractice. Should I hold my breath for the end of the self-dealt and unlawful lawyer and judge immunities?
Your profession has the structure and methods of a criminal syndicate. The government will not protect the public from this criminal syndicate because the syndicate has taken total control of its three branches. Elected officials make about 1% of the policy decisions, and are figureheads.
That leaves vigilante justice, which has full intellectual and moral justification to protect clinical care. It should start with a boycott of all lawyers by all service and product providers. Let them suffer as they all productive parties suffer, as they make crime victims suffer, as they make the public suffer.
Anyone else notice that if the “expert” testified for only one day in each trial he has testified in; he has made at least $10 million as an expert witness. Divide that over twenty years and he has made half of a million a year as an “expert witness”. Yeah Matt, I’m sure his testimony is never tilted based on his desire to remain employed as an “expert”
“Are you arguing that everyone receives the same care in the ‘medical system’, regardless of ability to pay? Really?”
No, not in the medical system as a whole, but in emergency departments, absolutely. What is foreign to you Matt is the absurd business model we work under in the ED. As part of an HUGE unfunded mandate in the form of EMTALA (The Emergency Medical Treatment and Labor Act), everyone who presents to an emergency department will be treated, and treated absolutely equitably, or the physician will face significant fines personally. Heck, if the Emergency Department does anything that may even be perceived as discouraging patients seeking care (e.g., put up a sign announcing the high wait times) they can be fined. So yes, even if you show up to my ED announcing that you are a scum sucking lawyer who owes us $10,000 in unpaid bills and you have no intention of paying us for today’s care, we will greet you with open arms and treat you exactly the same as everyone else (although if you are a lawyer, we will probably enjoy any painful procedures you may require more than usual).
At last estimate I donate care worth $168,000 under this act each year that I practice. And, to demonstrate your continued ignorance regarding emergency medicine, my pay is hourly – regardless of how many people I see or don’t see. That is the single most common form of reimbursement in emergency medicine.
“Are you arguing that everyone receives the same care in the ‘medical system’, regardless of ability to pay? Really?”
“No, not in the medical system as a whole, but in emergency departments, absolutely.”
this is a load of bull. i’ve worked in multiple EDs. it may be true in one specific ED that everyone gets treated the same…but it most certainly is not true between different EDs. EDs in poor and/or largely minority areas just don’t have the resources that EDs in wealthier areas have and that affects care.
At last estimate I donate care worth $168,000 under this act each year that I practice. And, to demonstrate your continued ignorance regarding emergency medicine, my pay is hourly – regardless of how many people I see or don’t see.
i take it you don’t see the inherent contradiction between these two statements. if you are paid hourly regardless of how many people you see or don’t see, then you haven’t really donated anything because you got paid the exact same.
So if you get paid hourly, you’re paid regardless of whether the patient pays the hospital or not. You didn’t “donate” anything, since you got the same pay regardless. That $168,000 wasn’t coming to you anyway. I never professed to have any knowledge of how you personally got paid – you are correct on my ignorance of that.
If you don’t like EMTALA, find another line of work in medicine or work for a hospital. Your hospital gets certain benefits in exchange for being subject to it. They didn’t have to sign the provider agreement, but they chose to participate. Presumably the business minds there made that choice because they thought it was profitable. Do they pretty much all participate? Of course, since the feds fund half of all healthcare expenditures in this country they probably can’t afford not to. But that screwed up payment system isn’t the fault of anyone but those in healthcare. So if you’re mad at anyone, be mad at your own lobbyists. It makes more sense.
It’s a shame you’re such an angry person. I feel bad for you. It seems most of your anger is really at the rules that govern your workplace, which the lawyers who represent plaintiffs in med mal actions had nothing to do with. I imagine you feel helpless to deal with those, though, so lashing out at others is probably your only avenue. To me, that’s really sad for all of America, because when the physicians give up trying to reform healthcare, we’re pretty much done fighting single payer.
A) I don’t think Fyrdoc said he was paid hourly. Most EPs in busy emergency departments aren’t paid hourly, since it doesn’t incentivize productivity. Depending on the type of emergency department (academic, community) and clientele (mostly uninsured, mostly insured) the pay structure varies. By far the most common outside of academia that I’ve seen has been fee-for-service or a modified fee-for-service. FFS is just that – you eat what you bill. Modified FFS may take the collections from the entire group and spread them out, so that the incentive to see insured patients is the same as that to see uninsured patients.
However, even if Fyrdoc is paid hourly for his work, the doesn’t necessarily mean he doesn’t “donate” uncompensated care. If all care in the ED were compensated, the collections would be higher and thus compensation for the staff would be higher. Hence why working in well-insured communities pays far better than working in communities with a higher percentage of indigent patients.
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“At last estimate I donate care worth $168,000 under this act each year that I practice.”
This “donation” is at the point of a gun. EMTLA violates the Thirteenth Amendment, no matter what the courts have said. The fix is in for the government in the doctor hating, biased, lawyer run courts.
It represents a massive Constitutional tort, a crime against humanity, and a violation of several international treaties prohibiting slavery. A massive bill should be sent to the government lawyer slavers in a lawsuit worth $trillions, after exemplary damages are calculated, for this intentional tort.
How many times have you seen a lawyer say “I don’t know if I can win or not, but you have a need to sue so we’ll do it whether I get paid or not”? I doubt very often. I’ve heard plenty of med mal and other personal injury sharks evaluate cases – and they pick the one’s they know they can either win or settle for a big paycheck. Those are the cases that are taken on contingency – the one’s with a high percentage of payout. How many times does a lawyer say “I’ll take your case and if we win I get paid and if not I don’t” when there is no case or not much chance of settling? How many of these lawyers inundate with paperwork and so forth so that it’s more worthwhile to settle than for a defense to pay its own lawyers to fight?
I’m not a lawyer, but I do work in an ER. I have a fair idea on how much testing is done just to protect the ER, the staff and the physicians in case something turns out badly. I also know that we don’t filter our patients in the waiting room -seeing only those we know we can save/treat. We have a duty by LAW – to see everyone and treat everyone. The legal profession has no such obligation. If I think I was harmed, I have no right to legal representation, I have that representation only if I can afford to pay him. I do, however have a right to emergency medical care whether I can pay or not. How hard is it to see the difference? I understand attorney’s work hard for their money. I also know they advertise on TV saying if you ever took whatever medicine and have ever had whatever medical condition – call them as you may be entitled to money. ENTITLED to money? If your mechanic fixes the wrong thing on your car – you don’t sue him for mechanical malpractice.. why not? Because there’s no sympathy there and usually no big money payouts there. Find me the lawyer who will sue the mechanic for fixing my car wrong with no money up front… on contingency…
I triple dog dare you to find him. He’s not anywhere to be found.
And it’s just as unlikely that you will see the law changed anytime soon with regards to any sort of tort reform. Unless I can’t read properly, the majority of our lawmakers have at one time or another practiced law in one form or another. Yes, there is a physician up there somewhere – but it’s a losing battle – the odds are stacked against any such reform. It’s easier to reform medicine than it is to make it less expensive by cutting liability costs in the form of insurance and excessive payouts – especially since a good portion of those responsible for making the law have been or are a part of that tort system that makes them so much money.
The lawyer profession is structured like a criminal cult enterprise. And when we say, government, we mean people with guns will make you do what the lawyers want.
You can’t read correctly. The majority of lawmakers, if they practiced law at all, did so in the criminal arena as prosecutors. They have virtually no experience representing individual plaintiffs in civil suits, especially personal injury suits, and have no concept of how tort reform would affect those people. There are more physicians in the US Congress than there are attorneys who ever represented someone in a personal injury case.
The only people consistently making a lot of money from the “tort system” (there is no such thing, btw), are insurers.
” It’s easier to reform medicine than it is to make it less expensive by cutting liability costs in the form of insurance and excessive payouts ”
That’s because the latter doesn’t happen. Some states have had caps for decades and there is no evidence that healthcare is any cheaper in those states.
“How many times have you seen a lawyer say “I don’t know if I can win or not, but you have a need to sue so we’ll do it whether I get paid or not”? I doubt very often.”
Since a lawyer’s conversations with a client are privileged, I imagine the answer is you have NEVER heard that unless you were the litigant. So why would you be surprised you’ve not heard it?
” I’ve heard plenty of med mal and other personal injury sharks evaluate cases – and they pick the one’s they know they can either win or settle for a big paycheck.”
If you were going to spend your own money on cases, would you do it only on ones that are sure losers? And anyone who has ever handled cases knows that there are very few “sure things” when it comes to battling an insurance company. Have you ever dealt with an insurer?
” We have a duty by LAW – to see everyone and treat everyone. The legal profession has no such obligation. If I think I was harmed, I have no right to legal representation, I have that representation only if I can afford to pay him.”
This is incorrect on two fronts. One, your hospital has a contractual duty. They agreed to take government money so they agree to live by government rules. Two, you are entitled to a public defender if your freedom is at stake, in other words if the penalty is jail. In the civil context, if you have a case and can’t afford to pay to pursue it, that’s where a contingency fee comes in.
” I also know they advertise on TV saying if you ever took whatever medicine and have ever had whatever medical condition – call them as you may be entitled to money. ENTITLED to money?”
Yes, in certain situations like where a class action has been filed and the defendant has settled, all users of that particular product may be entitled to a portion of the settlement if they meet certain criteria. A class action settlement often has a certain period of time for the payout, and often both parties want as many people as possible in the class.
“If your mechanic fixes the wrong thing on your car – you don’t sue him for mechanical malpractice.. why not?”
Actually, you sue him for breach of contract. Or, if he fixes it incorrectly and you are subsequently in a wreck as a result, you sue him for negligence, which is what a med mal claim is. “Big money” payouts mostly come from “big money” injuries, the kind that are significantly painful, involve lots of bills both past and future, or have permanent effects. It is exceedingly rare that anyone wants to trade places with one of these “lottery winners.”
I’ll take a case against a mechanic on contingency depending on the case and the damages. I’d have to know more about yours to know if it’s worth it to either of us. If we’re just talking a negligent repair with no harm done, why would you want me to? You’d be smarter to go to small claims court if it’s under the limits.
The filing of a weak case is legal malpractice. Why will not address the reasons justifying the self-dealt immunity of the lawyer? It is unjust and prevents your profession from improving its performance.
I doubt that any patient, anywhere, gets treated like a commodity as happens when prosecutor and public defender spend 5 minutes a case to come to a plea deal on 20 cases at a time. Then they go out together and drink to the stupidity of the public.
If the rate of innocence in death penalty cases is 20%, what is the rate of innocence in plea deals? Only 1 crime in 100 gets any consequence, mostly a slap on the wrist. The same statistics may be found in every law subject. The lawyer profession is in utter failure in every self-stated goal of every lawyer specialty.
Imagine a profession with a false negative rate of 99% and a false positive rate of 20%. 99% of the time, the plumber will not repair the broken pipe in your home. When he does show up to repair a pipe, in 20% of cases, the pipe was not broken. There is nothing wrong with the pipe. Then he sends you a bill for $million as in death penalty trials. That plumber would not be sued, but arrested as a threat to the public safety. Now imagine plumbers in charge of the three branches of government, and all complaints about plumbing in failure are rejected. And, you are told, this is the best plumbing profession in the world.
My ortho guys have a notice in their front-end patient paperwork that they will not take on anyone involved in med mal litigatrion as a patient.
And my wife (former ED practice manager) and I (former EMT) both gave the ortho guy the high five after reading that.
Why? What’s to celebrate about denying care to someone who had to file a lawsuit to get their past and future medical bills paid when they incur them because of negligence of another physician?
They are the enemy of clinical care. Every penny stolen by the lawyer comes from the care of others. Either prices increase or access is denied. There is no moral obligation to serve the enemy. There is only the moral obligation to destroy the enemy.
“I would agree if you allow for that determination of malpractice to be made with a realistic standard – not the impossible perfection now required.”
What impossible standard is that? Who is requiring that of you? Physicians set the standard of care. Juries go with the physician 3 out of 4 times. So how are you being held to perfection? When even you admit the vast majority of malpractice goes unreported? You’re contradicting yourself.
” But, I can’t introduce that as a defense in court when I miss an MI (heck even if I beat the odds and catch a thousand heart attacks, if I miss one, according to you I’ve committed malpractice and no previous record of perfection is admissible)”
Is this the part where you just make stuff up? It appears to be.
“You have still failed to answer why “tactical decisions” that turn out badly in the practice of law are not actionable, but their corollary in medicine is not so protected.”
If this were true, it would be a valid question. It’s simply not though.
Matt is misleading. The lawyer has put up nearly impossible barriers to any kind of accountability, even to his own client.
Matt should tell us the limits and cost of his legal malpractice insurance. You will be shocked, because the lawyer has privileged itself.
The lawyer may also pork a client with impunity, even a poor vulnerable feminist slut ever so vulnerable and needing comforting during a rough divorce. This is a privilege similar to that of Tony Soprano’s porking strippers working in his strip joint, all the nookie Tony can handle.
The lawyer may split fees, and gets paid to churn litigation, and share in the profits when others do all the work.
This is the world’s most powerful and wealthiest criminal syndicate, and it totally controls the three branches of government.
Actually porking feminist sluts is against the rules even if consensual. If they are your client that is. Otherwise feminist sluts are free game. If you’re into that sort of thing.
Again, Matt, not quite you say it is.
http://www.utahbar.org/opc/Assets/sex_lies_opc.pdf
The congress is prohibited only if exploits the client lawyer relationship. We are saying, the sex will enhance the relationship and provide great support to the poor wife, whose husband has to pay the legal fees of the lawyer destroying his life. The exploitation may be rebutted under 8.4 (g) (2). If you tell us your state, I can discuss state specific rules to help you.
Here is the professional responsibility question for Matt to answer. Is sex with the guy’s wife on the clock or pro bono?
Even that weak rule (not exploitive, and rebuttable) may violate Lawrence v Texas, finding consensual sex between adults is a constitutional right.
I have watched Matt and several physicians “duke it out” over tort/medical malpractice reform and the ethical standards of both the legal world and the medical world. I am neither an attorney nor a physician but I do work with attorneys on occasion in my job. (I will let you decide what bias you think that might give me.)
The physicians seem to be saying three things: A bad outcome does not mean a mistake. A bad outcome does not mean malpractice. Treating them as such under a balance of issues or other weighing of claims standards that is used in civil tort law distorts medical decision-making resulting in more, rather than fewer, bad outcomes for patients. Hence there is some need for a change in evidentiary standards of proof in civil tort liability trials. The burden of proof needs to be made stricter, perhaps a “clear and convincing evidence” standard. Earlier I also noticed some support for a bifurcation of the trial so that liability is determined first. Once liability is determined, testimony on damages is taken. (This is not unprecendted. This is essentially how capital murder trials are done. Guilt is determined before testimony on punishment is taken.
In essence, the doctors seem to be talking about public policy issues.
On the other hand, to me Matt’s point seems to be “Why do you jerks fight back when I sue you? It increases the financial risk I face. Don’t you realize I have a mortgage too. It would all be much simpler if you just played dead. We lose three out of four cases. Do you know what havoc that is wrecking on my plans to send my son to Princeton? Besides I know more about everything, especially medicine, than you because the one thing we know is that law schools tend to attract the best and brightest in the sciences.”
I do not know why Matt is here but he has done exactly nothing to make the case that the current tort liability system is fine.
This will be my only comment.
Swampleg
It always amazes me how people can attribute motives to people despite them never having said anything remotely close to it.
Oh, and attorneys don’t “lose” three out of four cases. The vast majority of cases are settled pre-trial. If there is payment, I’m not sure how you count that as a loss. You really should read closer before reaching conclusions. And not rely so heavily on anecdotal evidence before making policy suggestions. Just an idea.
“If all care in the ED were compensated, the collections would be higher and thus compensation for the staff would be higher.”
Perhaps – or perhaps the hospital might just be that much more profitable. He said “my pay is hourly”, so I took that to mean he was paid like most people when they say that. It may have a different meaning in medicine though, like you describe.
Oops, must have missed that part about hourly pay.
By assuming that the hospital would be more profitable you are assuming that the hospital directly employs the physician, which is not a common practice setup in emergency medicine. Most commonly the physician staffing is contracted out to a group which manages the patient billing as well as the employment/contracting of the physicians who work in the emergency department. The groups have all different structures – big/small, corporate, democratic, etc. Thus, the hospital may not even have the ability to keep the profits. Plus, as soon as one group in a geographic area saw their compensation increase, it’s likely that others would start lobbying for the same.
Interesting. Thanks for explaining.
Matt -
The $168,000 is in bills unpaid and noncollectable due to EMTALA – false names, no names, wrong addresses, etc. I work for a large practice group that staff 20 or so hospitals in a handful of states. It is true that I would not directly profit if that $168K were paid (a national average BTW, my is actually higher given the payer mix where I work). The group would profit, making my position more secure. My point is that no lawyer is forced to provide that amount of pro bono service. BTW – your medicare / medicaid is an “optional contract” for hospitals is fallacious. It would be impossible to operate a modern hospital without medicaid. That is akin to arguing that one “chooses” to have electricity in their house. That is technically true, but in reality it is a need. There is no way to practice emergency medicine in this country and not fall under EMTALA. So according o you I should just practice something else? What, like law? No thanks – I have far too much self respect.
As for the perfection standard – even more of your fantastic misunderstanding of medicine. “Heart attacks” or acute myocardial infarctions can mimic many other diseases. We have established criteria to discover these events when they occur. However, the best of systems capture only 98% of these events. Now, with hindsight, the diagnosis may be obvious, but at the time, it may not be. So someone presents to an ED with, let’s say, back pain. They are sent home. They return 3 hours later in cardiac arrest after suffering an MI. The family sues. There is no question in hindsight, some retired pathologist who has done nothing but testify for the past 20 years will swear they would have caught the MI. Can the emergency physician offer up that thei system has captured >98% of all MIs presenting to their department and hey, the guy was just in the “unlucky” 1.5%? Nope. That would be a suicidal (but very true) defense. The alternative? Admit everyone over the age of 30 with any pain between their chin and their belly button in which a clear, provable source can not be found (which is how these patients are handled now a great cost to society). Why? Because an unrealistic standard that every disease process will be caught exists for medicine.
BTW – you don’t know me at all. I’m neither angry nor bitter. I love my job. I just hate lawyers. All of you. Vehemently. Were it in my power, I would not treat any attorney nor their first degree relatives. Unfortunately, that is that the one part of my job I just have to do even though it galls me to no end. Many of my colleagues feel the same way. Just realize that I’ve actually received complimentary letters from lawyers for the “excellent care” I’ve provided them. The take home message for you – lots of people taking care of you, probably hate you – but you’ll never know which ones…
“It is true that I would not directly profit if that $168K were paid”
So you did not actually “donate” $168K, although you have no trouble attempting to take credit for it. Not to say that you don’t do a lot of good for people on a pro bono basis, of course.
” My point is that no lawyer is forced to provide that amount of pro bono service.”
Nor are you. And again, you are not “forced” to do anything. You choose to work in this field knowing the contractual relationships in place. If you don’t know them, that’s on you. If you did know them and still did it, quit whining. It’s like a lawyer joining the public defender’s office and whining about the pay.
“No thanks – I have far too much self respect.”
From your comments, I have no doubt your opinion of yourself is quite high.
” Can the emergency physician offer up that thei system has captured >98% of all MIs presenting to their department and hey, the guy was just in the “unlucky” 1.5%? Nope.”
Why would we allow people to excuse their negligence by citing to that statistic? If I run you over at a stop sign tonight, do you think that I should be excused because only 1.5% of all drivers at that intersection run that stop sign, and this falls within that margin of error?
If you want bright line protocols for the standard of care, put them out. Physicians set it, so do so.
“BTW – you don’t know me at all. I’m neither angry nor bitter. I love my job. I just hate lawyers. ”
All I know is what you post. And it makes me feel sorry for you. I can’t imagine hating people I’ve never met because of the degree they received. But hey, to each his own. Let’s hope you’re lucky enough to never be hurt by another due to negligence, or screwed by an employer, or cheated in a contract, or need to form a will or a corporation or adopt a child. I wouldn’t want you to have to deal so closely with people you hate.
The lawyer is funny. He is part of a predatory criminal syndicate, destroying our nation, plundering it. Then he wonders, why do people hate us? It’s because you are an oppressive criminal syndicate that must be stopped to save our nation. You are a threat to our existence. All those bogus lawyer services you mentioned, their necessity comes from lawyer unfair conduct. And everyone of those services is in utter failure. They are worthless and achieve none of the self-stated goals of the lawyer scam artist.
After the next lawyer enabled, and encouraged, major terror attack, I pray, the real cause of our problem will be discovered by the public, the internal traitor lawyer.
I want the privilege of drafting the Constitutional Amendment excluding the lawyer from all benches, all legislative seats, and all responsible policy positions in the Executive branch.
Ah, yes. Perhaps we’ll all leave medicine and go into something less demanding and more profitable, say…law? We can take up all the spots in law school and keep folks like yourself from getting in. The profession will continue it’s completely oversupply (see: unemployment rates in this year’s graduating class of new lawyers) and when you and your family get sick, you’ll just have to deal. No doctors, no emergency departments.
“Why would we allow people to excuse their negligence by citing to that statistic? If I run you over at a stop sign tonight, do you think that I should be excused because only 1.5% of all drivers at that intersection run that stop sign, and this falls within that margin of error?”
Hence the “perfection” expected of physicians. Thank you for proving my point.
“Nor are you. And again, you are not “forced” to do anything. You choose to work in this field knowing the contractual relationships in place. If you don’t know them, that’s on you. If you did know them and still did it, quit whining. It’s like a lawyer joining the public defender’s office and whining about the pay.”
No, it is like becoming a private defense lawyer and being told that your firm will now also represent all of the public defense cases – hence your salary will be cut. And if you want to do criminal defense, you will have to practice in this way.
“And it makes me feel sorry for you.”
I’d sooner have the pity of a dog. But thanks.
“The congress is prohibited only if exploits the client lawyer relationship.”
This is incorrect. There is no such “exploitation” qualification. This is the quote from the Model Rules of Professional Conduct, which are adopted, with minor variations, by almost every state:
“(j) A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.”
My analysis is copied from an expert working for the Disciplinary Counsel of Utah.
http://www.utahbar.org/opc/Assets/sex_lies_opc.pdf
Your analysis is an ipse dixit.
You lawyers will destroy an employer after an off color joke at work that offends a touchy feminist. Meanwhile, you boff all the vulnerable divorce clients you want with impunity. You do not even cut the husband a break on fees, with a boffing your wife discount coupon.
I have GOT to start doing more divorces if this is the case!
You are on a roll. Destroy the economy. Destroy health care. You may move on. Destroy the family.
“Perhaps we’ll all leave medicine and go into something less demanding and more profitable, say…law?”
Unfortunately, outside of investment banking, which is not exactly a hot job market, there isn’t much that pays better than being a physician. Among professions, according to the Dept. of Labor’s stats, physicians overall make 50% more on average than the next profession – lawyers.
“The profession will continue it’s completely oversupply (see: unemployment rates in this year’s graduating class of new lawyers)”
I think in a declining job market one can argue there’s an oversupply of just about everything. Hospitals locally are laying off nurses, and I’m in an area that hasn’t really been hit that hard by the recession. Just a few years ago we didn’t have nearly enough nurses, allegedly.
“when you and your family get sick, you’ll just have to deal. No doctors, no emergency departments.”
Doubtful. Possible, but doubtful. Because physicians have entangled themselves with the government so much, they’ve created a situation where they are subject to the whims of politicians. Ironically, these times should be the most profitable in the history of physicians, with the US’s largest and wealthiest group of people ever getting ready to really need your services, and a lot of them. Yet I’m afraid it’s going to be the complete opposite for physicians.
Oddly though, physicians seem to care far more about “tort reform”, which primarily benefits their insurers, than they do about a wholesale government takeover of their industry.
Yes, when you look at salary alone, being a lawyer pays less. However, when you account for an extra year of debt accrued (medical school+living expenses), 3-7 years of a much lower wage while working 70-100 hrs/wk (residency), and the student loan interest accrued during that time, I’m not convinced physicians fare better than lawyers financially when all this is accounted for.
The oversupply of lawyers is nothing new to THIS job market. See the old joke, “What do you call the guy who graduates last in his law school class?” “Unemployed.” According to my father (law school class of 1981) the market was pretty tough then if you weren’t law review or from a top tier law school.
As to your last point: Ah, yes. Because I’m certain that a lawyer has his finger on the pulse of what physicians are interested in. Trust me, the majority of talk is much more about what is going on in Congress these days instead of tort reform. That being said, I can see how tort reform would benefit EVERYONE. If we weren’t so afraid of malpractice suits we’d cut down on the number of tests we ran, especially the number of CT scans. This would result in a) lower healthcare costs and b) potentially reduce the number of iatrogenic cases of cancer due to radiation (this is a fairly new discussion that is taking hold, and I firmly believe we’ll see a sharp increase in the number of cases of cancer linked with imaging radiation exposure in teh next ten years). Both of those effects have the potential to benefit physicians AND patients.
“I’m not convinced physicians fare better than lawyers financially when all this is accounted for.”
Well, perhaps we can agree that neither of us ever catches up to the surgeons?
“According to my father (law school class of 1981) the market was pretty tough then if you weren’t law review or from a top tier law school.”
You know, I think it depends on what you want to do. A lot of people graduate law school and never practice. If you want to get into one of the big firms and do corporate law, yeah, it’s tough. That was never what I wanted, so I really don’t keep up with it.
“Because I’m certain that a lawyer has his finger on the pulse of what physicians are interested in.”
I may not, I can only look at your lobbying efforts and their relative success and the vitriol spewed on physician websites. When I see the AMA patting itself on the back for squeezing a few dollars out of the current system then I believe the wholesale changes we need aren’t coming.
“If we weren’t so afraid of malpractice suits we’d cut down on the number of tests we ran, especially the number of CT scans.”
How many fewer would you do? And since states like California have had tort reform for decades, how much cheaper is healthcare there? Physicians make the claim repeatedly that they’d do less testing, but it seems the physician who owns the MRI center may disagree with the physician who orders the test (if they’re not the same) on what is “defensive” and what is not. And if the claim physicians make is true, you’d think they’d have some broad based, well documented studies from states like California, with a large population and long history of tort “reform” to study showing that CT scans are ordered less frequently as a result of “reform”.
Wonder why they don’t have those?
See, that’s part of it – the DOL figures includes surgeons (who are physicians, and who have perhaps the most delayed income bump of all – some fields up to 10 years post med school graduation).
I think the discussion of health care reform hasn’t garnered as much conversation as this is the first time that the concept of a national health plan seemed even plausible. It got shot down so early in, what, 92(?) (sorry, I was still a preteen) that there wasn’t much time for “vitriol” to accumulate. I’m not exactly clear on what the “wholesale” changes you believe we need are.
I don’t think it would be wise to use CA as a case study for tort reform for a few reasons. They are (and have been) in terrible economic crisis for a while now. In addition, the amount uncompensated care provided in CA is staggering due to the high numbers of illegal immigrants in the state.
As for your other argument, I guess I can see it happening but I have to admit that of all the physicians I have seen as a patient and met as a peer, maybe 3 have had income from non-clinical/non-teaching sources. I count myself among those, as I have a small consulting gig that pays me to review their (government-funded) educational courses. One was an orthopedic surgeon with a patent on a device and the third was a surgeon who owned a small interest in a local day surgery center.
“the DOL figures includes surgeons ”
And the lawyers’ figures includes your guys like David Boies who charges $1000/hr. The high side is factored in on both.
“I don’t think it would be wise to use CA as a case study for tort reform for a few reasons.”
Why would the two reasons you cite matter for the purposes of studying if there are less tests ordered? Again, how many fewer tests would YOU order if your state had California’s “reform”?
“As for your other argument,”
My other argument isn’t to suggest they’re all doing it to make a profit, but rather to suggest that defining “defensive medicine” is nearly impossible because even physicians can’t agree if this procedure or that procedure is. So saying it will decrease and save money is like Obama’s promise to “save X number of jobs.” Completely unverifiable and unquantifiable.
“How many fewer tests would YOU order if your state had California’s reform?”
I’ll use my last shift as an example:
- 1 headache who I would have told to “Go home, take ibuprofen, drink water, rinse your nose with saline, and make an appointment at the free clinic, here’s the number.”
- 2 belly pains that I wouldn’t have CT scanned, but instead would have sent out with good discharge instructions to return if they developed x, y, and z.
- 1 belly pain patient that I didn’t CT scan, but who I would have sent out, rather than drawing blood, giving him pain medications, and having him take up a bed in the department for 2 hours
- 1 pregnant woman that I would have told to go home rather than doing a urinalysis, starting IV fluids, and spending 10 minutes looking for an infected hair follicle (don’t ask, just….don’t)
- 3 “to be medically cleared for psych” patients who were perfectly healthy that I probably wouldn’t have had to see AT ALL
In total that’s 8 patients, which is about 1/3 of what I saw in that shift. I estimate that just to see and chart an uncomplicated patient takes me 30 minutes, so that’s 1.5 hours saved on the psych patients, and maybe 15 minutes each the other patients (ordering CTs, reassessing patients, documenting reassessments, coordinating with nurses) for a total time savings of 165 minutes – almost 3 hours. In that time I would have been able to see 6 patients. Someone like Fyrdoc or a friend of mine in private practice would have seen more like 9 patients in that time.
So in ordering all those tests, how much did you reduce your litigation risk?
And would you have actually not ordered them all if you had the typical “reform” like California’s, a $250,000 cap on noneconomic damages? Remember, you may still be liable for millions in lost wages, and past and future care.
Thanks for being so frank, by the way. Also, what state are you in? I ask only to see if they do have any “reform”.
Right now, not counting my physician extender, I’m seeing 3.5 pph – with a 40% admit rate in a large city, non-academic, urban ED. That said, take out the CYA CP “observation admits” and that admit rate drops to 30%. Clear out my psych unit (de-institutionalization is a whole different rant) and I’m probable down to 20%, So yeah Amy, I’d see at least 9 in those three hours, but I’d put my time savings without the anti-lawyer tests to >4 hours per shift. Between defensive medicine and the ridiculous CMS billing reqs (”all systems reviewed and negative unless stated above”), I’m actually only really performing needed medical care for about 3 hours per 9 hour shift. My kingdom for a decent scribe and permission to use them.
Amy – are you a resident?
“So in ordering all those tests, how much did you reduce your litigation risk?”
Do you think that’s something I (or anyone can actually quantify? Sorry, but there are FAR too many variables involved in the process to even begin to assign a number. First, you have to know how many bad outcomes you would have (it’s possible to keep track of this to a very limited extent, but you’d need to keep a huge database multi-center database for years to accumulate anything of worth). Second, you’d need to keep track of those you would have caught things on. Then you’d need to know who would have brought a lawsuit and who wouldn’t have (impossible to predict).
Sorry, not revealing what state I’m in, but it’s a state that’s pretty terrible for malpractice with no tort reform.
Fyrdoc – I am a resident with a strong interest/background in health policy and medicolegal issues. I estimate my patient care:administrative and paperwork ratio to be about 1:3, especially when I add in time spent documenting from a medicolegal perspective instead of time spent documenting for the sake of a good, readable, usable medical record.
My God Matt, you talk in circles more than any piece of scum I’ve ever met.
Hats off to you sir!
You’re kind of angry I’ve had to correct you about so much of your legal knowledge aren’t you? The 7th Amendment doesn’t apply to the states? Really?
Let it go, and stick with the substance. I don’t mind if you hate me, but it certainly lessens the impact of your occasional substantive statement by making you look a little crazy. I don’t even know how you hate someone you only know as a name on the Internet. I guess that’s why I feel so sorry for you, but that’s OK too.
“You’re kind of angry I’ve had to correct you about so much of your legal knowledge aren’t you? The 7th Amendment doesn’t apply to the states? Really?”
It doesn’t apply to state courts. That is verbatim from several sources, which unlike you, I provide(d). And once again – I’m not angry. Getting upset because you double speak and fail to understand the damage you do is like being angry with my one-year-old for a dirty diaper. Neither of you can help it and neither of you knows better. It is interesting to me though that you believe I am angry because you “correct” my understanding of the law, yet you persist in arguing the merits of the qualifications of a general surgeon to testify against an emergency physician.
“You’re kind of angry I’ve had to correct you about so much of your legal knowledge aren’t you? The 7th Amendment doesn’t apply to the states? Really?”
Once again for the cheap seats:
From: http://www.law.cornell.edu/anncon/html/amdt7frag1_user.html#amdt7_hd10
The Legal Information Institute (LII) of the Cornell Law School.
“Courts in Which the Guarantee Applies.—The Amendment governs only courts which sit under the authority of the United States, including courts in the territories and the District of Columbia, and does not apply generally to state courts. But when a state court is enforcing a federally created right, of which the right to trial by jury is a substantial part, the States may not eliminate trial by jury as to one or more elements. Ordinarily, a federal court enforcing a state–created right will follow its own rules with regard to the allocation of functions between judge and jury, a rule the Court based on the “interests” of the federal court system, eschewing reliance on the Seventh Amendment but noting its influence.”
From: http://www.ajs.org/jc/juries/jc_right_overview.asp
American Judicature Society
“Civil cases in state court
In civil cases in state court, the right to a jury trial is governed by the state’s constitution and statutes. The Supreme Court has repeatedly held that the Seventh Amendment right to a jury trial applies only to federal courts, not to state courts. As a practical matter, though, most states make jury trials widely available for many kinds of civil cases above the level of small claims court.”
But really Matt, I believe you. I’m sure Cornell has it wrong on their website. Now shh, close you eyes, go to sleep and dream of a happy place with lots of physicians to sue…
“Sorry, but there are FAR too many variables involved in the process to even begin to assign a number.”
I guess my question is why would you take actions like that to remedy a risk if you don’t know the likelihood of the risk, nor do you know if your actions reduce it?
“Sorry, not revealing what state I’m in, but it’s a state that’s pretty terrible for malpractice with no tort reform.”
This is another curious statement. Does that mean a lot of claims? A lot of large paying claims? How many do you think there should be based on the number of patient-doctor encounters in your state?
It appears you’ve reached some pretty firm conclusions based solely on some pretty soft anecdotal evidence. But if there is some hard statistics, please share.
You just don’t “get it” do you? You speak as if medical malpractice suits are logical, can be quantified and calculated when I’ve never seen any such evidence!!
Why do I do things to stave off a risk I can’t fully comprehend? Because I’ve seen the other side. I’ve spoken with physicians who have been or are in the process of being sued for malpractice and the message has been clear. To paraphrase: “It is exhausting, emotional, and no matter how good your work-life boundaries are, it feels like a personal attack.” To quote: “You are an impaired practitioner for the entire duration of a medical malpractice trial, and often for years afterwards.” I’ve met capable, competent residency-trained physicians who are so handicapped by a history of one big malpractice award early in their career that they can barely make a medical decision without calling 4 consultants.
I’m sorry, but do YOU have data on “number of med mal cases per patient-doctor encounter” state by state? I am unaware of such statistics, but if you could provide them I would be eternally grateful.
I speak (knowledgeably) regarding my state’s malpractice climate because I’ve read portions of the statutes myself, and read summaries of the rest, I’ve read the ACEP “report card” for my state and the other 49. I’ve read portions of CA and TX statutes as well (TX is really FAR better than CA in this regard, by the way). The average of my state’s malpractice awards is double that of the nation. Malpractice premiums are also some of the highest (naturally).
“It doesn’t apply to state courts.”
You saying this over and over does not make it true. In fact, the cases you cited even contradicted you. Do you really need me to post the text of the 14th? I would have thought that would be a pretty easy Google.
“And once again – I’m not angry.”
If you say so.
” yet you persist in arguing the merits of the qualifications of a general surgeon to testify against an emergency physician.”
Actually, I did not argue that at all. I simply said that I did not know what his specific qualifications are, and I said that somewhat else, presumably with those qualifications and hired by WC’s insurer, also believed WC was negligent. You disagreed with this statement too, inexplicably, even though I was quoting WC. Weird.
Please Matt, write to the sources above and get them to change their websites. I hate seeing so much, and such widespread, disinformation out there. I’m sure the Cornell Law School would welcome your edits.
I don’t think you read your sources. They didn’t support your claims. But I’m curious, if you’re right, don’t you think the insurance industry, along with all the other industries who would prefer to dictate justice via lobbyists rather than ordinary citizens, would have acted to pursue this line of argument?
But hey, as you’ve told me, you’re a smart guy so maybe they just haven’t seen it yet!
“You speak as if medical malpractice suits are logical, can be quantified and calculated when I’ve never seen any such evidence!!”
My point is it doesn’t appear you’ve seen any evidence other than a few anecdotes.
“To paraphrase: “It is exhausting, emotional, and no matter how good your work-life boundaries are, it feels like a personal attack.” ”
True. That’s what ANY suit feels like. So why do you even get in a car, given the risk you could be negligent in it and get sued?
“I’m sorry, but do YOU have data on “number of med mal cases per patient-doctor encounter” state by state?”
Nope, the only people who have that are the insurers, and they ain’t giving unfiltered statistics out. But again, why would I need it? You are the one who is ordering tests you deem unnecessary based on this risk. I would think that before you changed your behavior and wasted all your time, and likely money, you would make sure that you knew what the risk was and whether your actions would reduce it.
“I speak (knowledgeably) regarding my state’s malpractice climate because I’ve read portions of the statutes myself, and read summaries of the rest, I’ve read the ACEP “report card” for my state and the other 49.”
What statutes? Med mal is a common law claim. Do you mean the tort “reform” statutes? Without knowing your state it doesn’t really tell much to tell me you read the ACEP report card. How exactly is California’s worse than Texas’? Because California had to adopt insurance reform when rates didn’t go down?
” The average of my state’s malpractice awards is double that of the nation. Malpractice premiums are also some of the highest (naturally).”
Can you tell me where one can find these comparisons? I’d be interested to read them.
“My point is it doesn’t appear you’ve seen any evidence other than a few anecdotes.”
I agree that anecdata is suboptimal, however, it’s what exists. I didn’t volunteer these anecdotes, you ASKED what I had done to avoid liability and only then did I volunteer it.
“True. That’s what ANY suit feels like. So why do you even get in a car, given the risk you could be negligent in it and get sued?”
Um, I walk to work. Also, haven’t met many drivers who have been sued for driving carefully and doing the best they could for everyone else on the road. Have met a number of physicians who have been sued while trying to do the best for their patients.
“What statutes? Med mal is a common law claim. Do you mean the tort “reform” statutes? Without knowing your state it doesn’t really tell much to tell me you read the ACEP report card. How exactly is California’s worse than Texas’? Because California had to adopt insurance reform when rates didn’t go down?”
Well obviously SOME med mal is common law. However, my state has a few statutes that lay out things like attorney fees (which are still very generous, fear not), whether it’s contributory or comparative negligence, and a few other issues. The TX statutes are better because they include some protection for EMTALA-mandated visits, which is obviously MUCH better for emergency physicians. But nice try. The data I mentioned is all available in the ACEP Report Card (although I mis-cited my state – it’s about 50% higher than the national average, not double, malpractice premiums are double on average, however).
Guys, I believe our parlay in this thread has reached a conclusion. Maybe not a satisfying conclusion, but certainly a thorough discussion of the issue.
Fry, good luck on your law practice. Amy, I hope you think a little more about the basis upon which you’re ordering all these tests, and if you’re billing for them I wouldn’t admit that they weren’t medically necessary. Some third party payors don’t much care for that.
Supremacy, as always, it’s illuminating to read your posts.
Until next time!
WOW! *15 on your sidebar doesn’t open.
Now…the withdrawal begins.
The explanation of sepsis is unnerving. I’ve known it was serious… but didn’t know the specifics and why some patients die from it..even if not expected to. It just takes over and kills everything off.
“I don’t think you read your sources. They didn’t support your claims.”
My post was awaiting moderation because it contains links. I’ll repost without them. I’d sure love you to tell me how I am “mis-reading” these sources.
“You’re kind of angry I’ve had to correct you about so much of your legal knowledge aren’t you? The 7th Amendment doesn’t apply to the states? Really?”
Once again for the cheap seats:
From: http://www(dot)law(dot)cornell(dot)edu/anncon/html/amdt7frag1_user.html#amdt7_hd10
The Legal Information Institute (LII) of the Cornell Law School.
“Courts in Which the Guarantee Applies.—The Amendment governs only courts which sit under the authority of the United States, including courts in the territories and the District of Columbia, and does not apply generally to state courts. But when a state court is enforcing a federally created right, of which the right to trial by jury is a substantial part, the States may not eliminate trial by jury as to one or more elements. Ordinarily, a federal court enforcing a state–created right will follow its own rules with regard to the allocation of functions between judge and jury, a rule the Court based on the “interests” of the federal court system, eschewing reliance on the Seventh Amendment but noting its influence.”
From: http://www(dot)ajs(dot)org/jc/juries/jc_right_overview.asp
American Judicature Society
“Civil cases in state court
In civil cases in state court, the right to a jury trial is governed by the state’s constitution and statutes. The Supreme Court has repeatedly held that the Seventh Amendment right to a jury trial applies only to federal courts, not to state courts. As a practical matter, though, most states make jury trials widely available for many kinds of civil cases above the level of small claims court.”
But really Matt, I believe you. I’m sure Cornell has it wrong on their website. Now shh, close you eyes, go to sleep and dream of a happy place with lots of physicians to sue…
“I don’t think you read your sources. They didn’t support your claims.”
My post was awaiting moderation because it contains links. I’ll repost without them. I’d sure love you to tell me how I am “mis-reading” these sources.
“You’re kind of angry I’ve had to correct you about so much of your legal knowledge aren’t you? The 7th Amendment doesn’t apply to the states? Really?”
Once again for the cheap seats:
From: The Legal Information Institute (LII) of the Cornell Law School website.
“Courts in Which the Guarantee Applies.—The Amendment governs only courts which sit under the authority of the United States, including courts in the territories and the District of Columbia, and does not apply generally to state courts. But when a state court is enforcing a federally created right, of which the right to trial by jury is a substantial part, the States may not eliminate trial by jury as to one or more elements. Ordinarily, a federal court enforcing a state–created right will follow its own rules with regard to the allocation of functions between judge and jury, a rule the Court based on the “interests” of the federal court system, eschewing reliance on the Seventh Amendment but noting its influence.”
From: The American Judicature Society Website
“Civil cases in state court
In civil cases in state court, the right to a jury trial is governed by the state’s constitution and statutes. The Supreme Court has repeatedly held that the Seventh Amendment right to a jury trial applies only to federal courts, not to state courts. As a practical matter, though, most states make jury trials widely available for many kinds of civil cases above the level of small claims court.”
But really Matt, I believe you. I’m sure Cornell has it wrong on their website. Now shh, close you eyes, go to sleep and dream of a happy place with lots of physicians to sue…
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