WhiteCoat

Michael Woods Case Settles

I previously linked to the Providence Journal’s notes about the trial testimony from the Michael Woods case. Now comes word from the Providence Journal that the case has settled.

Faced with the possibility of a multimillion dollar judgment against the hospital, this week Kent Hospital president Sandra Coletta made a phone call to plaintiff James Woods one night. Then Mr. Woods “heard something he’d never heard from Kent Hospital before, someone saying she was sorry for his family’s loss.”

Ms. Coletta came up with an idea of creating an institute named for Michael Woods, who died in the hospital’s emergency department. She pledged that the hospital would “spend $1.25 million over the next five years to develop policies and procedures to promote patient safety and improve internal communication about patient care, beginning in the emergency room.”  A Woods family member would be part of the institute’s board.

Actor James Woods agreed with Ms. Coletta’s plan and dropped the case.

The “undisclosed payments” that would leave Michael Woods’ family (and the attorney representing them) “financially secure” might have had something to do with it as well.

This case is another example of a defendant folding in the high-stakes game of medical malpractice litigation.

A bad outcome occurs. From the evidence presented, negligence is hardly clear cut and even “perfect” care may have resulted in the same outcome. In the lawsuit, a high profile plaintiff weeps during testimony. Jurors are naturally sympathetic. At risk for the defendant is millions of dollars and perhaps its very viability. At risk for the plaintiff … little or nothing except the time and diligence necessary to pursue the lawsuit.

If this was a game of high-stakes poker and you knew that you could win millions, but that your pot was never at risk, wouldn’t you bet the maximum on every hand every time?

We need a mandatory – not discretionary – loser pays rule in medical malpractice lawsuits.

41 Responses to “Michael Woods Case Settles”

  1. Great article. And great last line. Excellent perspective that I’ve wondered about myself, as being a partial answer to all the lawsuits that occur.

    Will be following. Nicely done.

  2. Max Kennerly says:

    Keep in mind… a mandatory loser pays rule would increase the stakes. Kent Hospital would have to consider not just the verdict, but also the possibility of also being stuck with $50k-$150k in costs and $200k-$500k in attorney’s fees.

    More importantly, assume for a moment we have mandatory loser pays and the plaintiff loses.

    Who pays? The plaintiff? I can’t pay it for them, I’m ethically prohibited. Do I pay?

    Can the plaintiff get “loser pays” insurance, like they do in Britain? If so, can I pay it? If so, can I add the cost of that “loser pays” insurance to my costs demanded when I win?

    • WhiteCoat says:

      The stakes are already high for the defendants. All a loser pays law would do is increase the stakes for the plaintiffs. Kent Hospital isn’t the only entity who would have to consider the downside – so would the Woods family.
      What’s wrong with loser pays insurance?
      It would add another layer of legitimacy to the litigation. Underwriters review the case to determine whether it the claim is reasonable before approving the policy.
      Or maybe the attorneys are forced to either post insurance or post bond before filing a case. If attorneys lose too many cases, their rates go up or they are no longer able to obtain the insurance – kind of like medical malpractice.
      I don’t know that it would be fair to add insurance premiums to the costs any more than it would be fair to allow me to ask for payment of my medical malpractice premiums if I lost.

      • Matt says:

        Why don’t we just say you have to have at least $50,000 in cash prior to filing a suit? That keeps all the poor people from filing suits against companies or making claims against insurance policies? That’s what you’re doing, at least be honest about it.

      • Max Kennerly says:

        Let’s assume for a moment Pennsylvania enacted loser pays.

        First, half or more of medical malpractice plaintiffs attorneys stop doing the cases anymore. That is, half of my competitors leave the field.

        Second, my firm and our newly-less-competitive niche raise the contingent fees. 50% to start. 65% if we get to trial.

        Third, the remaining medmal lawyers send out a bunch of letters to opposing counsel telling them to add between $50k-$500k to the existing demands, depending on where the case is in litigation. That puts a lot of cases into policy limit levels.

        Fourth, hundreds of panicked doctors, realizing their coverage caps out around $1.2m, call up their insurers and demand the policy limits be paid to get rid of the case.

        Fifth, medmal plaintiffs lawyers start hosting annual “crash your private planes into each other” conferences in Maui.

        The irony is, although loser pays would cause plaintiffs’ lawyers to decline some cases they currently take, it would make other cases far more lucrative.

        That is to say, the primary thing you’d do is introduce a market distortion, one not necessarily tied to the merits of the case. Probably the most you’d do is make death / catastrophic injury cases even more valuable than they already would, and you’d make damages with clear negligence but minor damages suddenly worth hundreds of thousands of dollars.

      • Max Kennerly says:

        I huffed a bit too much glue before that last sentence. It should read:

        Probably the most you’d do is make death / catastrophic injury cases even more valuable than they already are, and you’d make cases with clear negligence but minor damages suddenly worth hundreds of thousands of dollars.

      • WhiteCoat says:

        Docs won’t be willing to freely settle cases because they get put in the National Practitioner Data Bank each time they do so. Too many listings make a physician unemployable. You plaintiff attorneys keep forgetting that the lawsuits aren’t just about money for the physicians.
        Death/catastrophic injury cases would only be worth more if liability was clear and the defendant failed to make a reasonable offer.
        Minor injuries with clear negligence would get reasonable offers and likely settle quickly – better than they get now with no attorneys willing to take such cases.
        The shift in loser pays would be that patients who deserve compensation for an injury due to a physician’s negligence would be more likely to get it and patients with frivolous/questionable claims but large damages would think twice about filing their claim because there would be a down side to their actions if they were wrong.

    • Florida enacted loser pays. It increased the pressure to settle on the innocent defendant. After a few years, doctors asked that it be repealed.

      I propose an alternative. A statute should end the privity obstacle to a legal malpractice lawsuit against the lawyer by the adverser third party. The filing of a weak case is legal malpractice. A plaintiff lawyer expert would certify that the legal malpractice claim has merit, to avoid retaliatory or harassing lawsuits against the lawyer.

      The judge’s immunity is ridiculous and unjust as well. These biased incompetents should be deterred to the fullest extent of a new law making them fully responsible for any injury in their court from their carelessness.

      The victim of lawsuit abuse should be made whole from the insurance policies of the careless lawyer and careless judge.

  3. Matt says:

    All this diagnosis from a newspaper article. Even though physicians routinely complain how poor of a job journalists do reporting medical issues.

    Bill Frist is that you?

  4. Matt says:

    As usual, WC fails to understand the economics of a business he’s not involved in. Yet he’s got all the answers. Amazing. If only he applied his knowledge to medicine, a system he does know something about!

    I wonder if it’s remotely possible that the hospital was negligent?

    • Fyrdoc says:

      Yes Matt. The Hospital was negligent. Every time Mr. Woods went to bad a group of physicians and nurses snuck into his room and injected his arteries with fat. He had a heart attack and died. He was obviously sick when he got to the hospital and the is no guarantee anything would change that.

    • WhiteCoat says:

      I fully understand the economics of the business.
      Quit serving up red herrings – especially red herrings about which you have no clue.

      Oh, and it’s nice to know that in your little world, negligence and liability are synonymous. Why should plaintiffs be bothered with having to prove that some unmentioned negligent acts were actually the cause of someone’s harm?

      • Matt says:

        You may think you do, but your posts and conclusions indicate otherwise. If only you were such an expert on reforming the payment model of a system you actually did know something about! Like your own, for example!

      • cynic says:

        I love watching a “lawyer” resort to ad homs. Come on law boy, can you not do better ?

        How about instead of always saying everyone else is wrong cite your sources, provide your research studies and learn how to make a valid scientific argument.

        Lastly, support your arrogance by going to med school, practice for 10 years then come back here and talk to me about medicine and medical practice. At that point I will have a discussion with you. Stop chiming in on topics you did not learn about in your 3 years of law school.

  5. C. says:

    What if the plaintiff has a legitimate case, however the jury of laypeople dont fully understand the nuances or just want to get the hell out of the jury room because it’s friday and they spent the last week in the jury box listening to testimony and just want to go home so they vote in favor of the defendant and dont give a crap. Yes, this DOES happen quite often. So now the plaintiff who is missing a leg from an infection caused by a medical professional using a needle that was previously used on another patient, or they are blind because the lazik surgery was done incorrectly, or have incredible pain from a botched surgery (a symptom very difficult to prove)and can not longer work and used all their savings to survive to this point. Now not only does this person get NOTHING from the defendant, this person also has to pay attorney fees.

    Granted, some see the medical profession as a winning lotto ticket, but there are very many that get royally screwed by both the medical and legal profession. Painting with a wide brush is dangerous.

    • WhiteCoat says:

      This is an argument for medical courts, which I agree should be implemented.

      Forcing plaintiffs to have some skin in the game would require that they evaluate the viability of their claims a lot more closely before filing the cases.

      Why is it fair to saddle medical providers with the costs of defending a case, with the high malpractice insurance premiums, the time away from work, and with the risk of losing millions when there is no down side for the plaintiff?

      • Matt says:

        You say malpractice premiums are “high”? What should they be? You don’t even know how many malpractice claims there are overall, yet you think it’s too many. You’re all conclusions, no foundation.

        What physician has lost millions? You’ve yet to show one. In fact, the one you did cite only lost because his insurer dropped the ball, and he sued them! Do you have an honest argument in you?

        “Forcing plaintiffs to have some skin in the game”? Thanks for illustrating again that you have no concept of law firm economics, at least from the plaintiff’s side. Who do you think pays for those experts? For the depositions, for the exhibits? Who spends the potentially unpaid time on preparing for trial? I realize you’ve lost all clue on the value of time in your current payment model, but think a little bit.

        As for medical courts – great idea! Let’s let every industry judge themselves. For example, hundreds of thousands of physicians have sued health insurers for unpaid bills and extracted billions in settlements (I guess the health insurers just got scared since they physicians didn’t really have much of a case anyway). It’s only fair, though, that if these go to trial, that the jury be made up of insurance execs.

        The other great thing is let’s shift all the cost to the taxpayers of a trial between two or three individuals, one of whom already contracted with an insurer to pay those costs! That’s a super idea. Doc operates on the wrong knee, wants to go to trial. He doesn’t pay the costs of his experts, because it’s on the taxpayer!!

      • Max Kennerly says:

        You’re right, no down side for the plaintiff or their lawyers, because, you know, the litigation costs and attorney’s fees are paid by the tort fairy.

      • Fyrdoc says:

        “As for medical courts – great idea! Let’s let every industry judge themselves. For example, hundreds of thousands of physicians have sued health insurers for unpaid bills and extracted billions in settlements (I guess the health insurers just got scared since they physicians didn’t really have much of a case anyway). It’s only fair, though, that if these go to trial, that the jury be made up of insurance execs.”

        Yeah Matt,

        Markman hearings have just destroyed patent law. Why do you fear having the medical portion of these cases decided away from a jury? What is the problem with having the standard of care defined before a trial? The fact is that the plaintiff’s bar uses emotion, not facts, to win cases. (John Edwards channeling fetuses despite no scientific evidence at the time – and disproved now – that the monitors he was speaking of indicated anything at all). I accept that there may be differences of opinion on what did or did not occur in a given patient encounter. But a “standard” should be just that, a standard, and should be neutrally defined. Why is it that you can argue and argue that no one here besides you and Max can know anything at all about the intricacies of law, but you believe that 12 individuals, with no training at all, can be led by dueling experts, to a decision those experts can not agree on despite their years of training?

      • Max Kennerly says:

        “Markman hearings have just destroyed patent law. Why do you fear having the medical portion of these cases decided away from a jury? What is the problem with having the standard of care defined before a trial?”

        Unlike in patent cases, there’s no underlying document (i.e., the patent) laying out the standard of care for the court to rule on.

        There are only two ways to add a Markman-ish “neutral” expert to medmal law:

        (1) Have the expert decide the standard of care.

        (2) Have the expert advise the Court from a “neutral” standpoint on the medicine.

        #1 gives judicial power to a private citizen. It’s far more power than a Markman expert has, and far more power than any non-judicial official has.

        #2 is largely a waste of time. The Court will hear experts from both sides, whose credibility and expertise the Court can assess.

        I suppose the only thing you could do is have the Court, after hearing the trial, instruct the jury on what the standard of care is. But that’d be awfully tricky to do (simple boilerplate jury instructions about witness credibility are already hard to get right), and I don’t know if it would really change much about the system either way, except generate a bunch of new appeals regarding that instruction, which would add new costs and delay to an already slow and expensive system.

      • Fyrdoc says:

        Max,

        Let me suggest a third method. Prior to the a trial beginning the court seats a panel of three physicians chosen by the court. Those physicians will be given the basics of a case (e.g., in the Woods case above – Pt is a 49 year old male who presented with complaint of a sudden onset N/V and ‘anxiety’. An ECG was obtained an is included. How should the case be managed”. Their document would be accepted as the “standard” of care. Now, obviously, if they said nothing regarding monitors, the plaintiff’s burden has increased dramatically. If they mention monitors, the defense’s has. The right to a trial by jury is intact as both sides are free to argue that what actually happened (I did or did not place him on a monitor) or to argue that the injury resulted from the breech (the monitors wouldn’t have helped anyway). What gets to me is that determining a standard of care is what every physician does everyday in treating every patient. It is the practice of medicine. It should not be left to the hands of the jury. They should be limited to questions of fact, not of professional judgment.

      • Doc99 says:

        Or court-appointed experts rather than dueling Paladins…

  6. Sarah says:

    The thing that most strikes me about this topic is what a tool Matt is.

    • Matt says:

      Sarah why didn’t you just say I was right and not embarass yourself with the namecalling. I guess if youve got no substance that’s where you gotta go. I understand, hon.

  7. Painless says:

    *Sigh*… where do I begin. Ya know, I don’t think I’d better – because ultimately I won’t have any idea of what I’m talking about and I can only be wrong because I’m not an attorney. Sorry Fyr – we just can’t compete with the all knowing Oz.. errrr Matt.

    • Matt says:

      Why would you get all bent out of shape over the idea that you don’t understand the economics of a business you’ve never worked in, never had any experience in running, and have never really spent more than a couple days involved with? Medical providers get outraged whenever anyone suggests that their payment system is out of whack and they get too much money for the care provided. They give us a long lecture on what they do and how valuable it is and how you can’t possibly understand unless you’ve done it. So why do they presume to be experts on what others do?

  8. Nurse K says:

    The only thing that I could see that could be “negligent” with the limited stuff you talked about would be that he didn’t get a repeat EKG with continued symptoms even in the absence of the cardiac monitor. Maybe it would have showed a cath-labbable MI prior to his cardiac arrest. I don’t think that would have stopped a lawsuit though. Repeat those EKGs, people! I’ve saved at least three or four people just by doing that!

    Incidentally, I don’t agree with loser pays…courts can already order someone attorney’s fees for crayzee lawsuits and judges can throw out frivolous cases.

  9. Lisa K. says:

    I’m not a medical professional but I’ve been following this blog for a while and I seen this debate before. My question for all you medical professionals who have been burned by bad cases is this: what would have been a fair resolution of this situation?

    From the newspaper articles it looks like mistakes were made. Several people have argued that those mistakes would not have changed the final outcome but to a large extent our society judges quality by process not by results. When the process is flawed and the results are bad, what would be a fair resolution?

    • throckmorton says:

      Lisa:

      I think you asked the most important question of all! As a surgeon, what I am concerned with is that there are things in medicine, outcomes that I can not change. Many of these outcomes will be bad. No matter what I do some patients will not make it. Family members will go throught he normal process of grieving which at first is disbelief but then turns to anger. This anger is usually directed at us, and with anger is blame. We then become the targets of lawsuits. In our system, it doesnt matter if you did something wrong or not, the lawsuit is still going to extract a painful and emotional cost that you have no choice but to pay. Trial attorneys understand this and know that often, it doesnt matter the quality of the case, it just depends on how long you can make the defendant suffer before they settle. It is their economic model.

      What I think should be a fair resolution is this. We first have to get a real “standard of care” and derive this from evidence based medicine. This way we have a benchmark that is based on true patient care, not some court based opinion. A review panel of experts should then be created to review bad outcomes to see if there was a deviation of the “evidence based standard”. If there was no deviation, the case should not move forward.

      I also think the same model should be applied to the legal profession. When an attorney loses a case, there should be a review body that examines it to see if there is something that the attorney missed that would have changed the outcome. In this way both attorneys and physicians are held to a “universally accepted standard of care”. We can then decide if it was right or wrong for to have deviated from the standard.

      If I do something wrong and someone is injured, I want them to be compensated. That is why I have insurance. I do not have insurance to support a legal industry.

    • WhiteCoat says:

      Throckmorton’s explanation is excellent.
      The only thing that I would add is to keep in mind that “mistakes” shouldn’t always result in liability.
      If you run through a stop sign, you have made a mistake. Even though you did make a mistake, you shouldn’t automatically have to pay the person sitting on the other side of the intersection for damages. On the other hand if you run the stop sign and plow into the other person’s vehicle, then you have caused the person damages and should most likely be liable for them.
      If the alleged medical mistakes did not (or could not) cause the patient’s damages, the proper resolution would be to express sympathy to the family who lost their loved one and to try to improve the process in the future.
      Unfortunately, some organizations believe that micromanagement improves processes when often in medicine the opposite effect occurs. But that is another story.

  10. Matt says:

    Throck, similar to most doctors, has no understanding of the “economic model” of a plaintiff’s practice. A plaintiff lawyer has no incentive to delay a case, or to waste money in trying it. Not from a monetary or from a client satisfaction standpoint. The only party who benefits from delay is the physicians insurer. If the physician doesn’t like the length of time it takes, he has only his own insurer to blame. Likewise, if the physician wants to quickly compensate the injured party, there is nothing stopping him from doing so. If he does not, then the fault is not the other side’s lawyers but his own.

    As far as standards of care go, these are also entirely within the power of the medical profession to set. However, whenever this is suggested a physician tells you that every patient is different and so on and so forth.

    As far as having physicians judge their own, that is fine so long as physicians extend that courtesy to all defendants. Even when physicians are the plaintiffs the defendants in their suit should be judged by others who do what the defendant does. It’s only fair.

    • throckmorton says:

      Looking at the different reforms that are out in the states, I saw that since Tennessee required a certified letter from a medical expert stating that there was a question of deviation from the standard of care, medmal cases in the state dropped by 2/3. There was a flury of cases filed before the law took effect to avoid having to have a statement of merit.

      Matt:

      Could you please explain the econimics of a medmal practice? Since most cases get dropped without a settlement, why is it worth the time or money to file cases that are just going to get dropped? Since the cases that do go forward almost always are settled isnt the goal to force settlement for the highest amount and the most billable hours?

    • WhiteCoat says:

      Plaintiff attorneys have a large incentive to take a case in which there are large damages, find a biased expert’s opinion, see if they can get health care providers to make statements against their interests, then pick a jury in which they can invoke emotion about the plaintiff’s injuries to see if they can hit the jackpot.
      The incentive is to play poker with the other side to try to convince them you have a multimillion dollar case and then extract a settlement of several hundred thousand dollars as a compromise.

      When medical organizations go after rogue experts for testifying about inappropriate standards of care, then plaintiff attorneys cry “witness intimidation” and file lawsuits against the organizations.

      • Matt says:

        Wait, aren’t you the guy who shopped around for an expert until you found one that agreed with you in your own case?

      • WhiteCoat says:

        Hmmm.
        “Shopping around” versus “requesting that someone provide a scientific basis for their opinion”.
        Big difference.
        Keep pitching those red herrings and fact distortions, though. Maybe some day someone will believe you.

      • Fyrdoc says:

        “Keep pitching those red herrings and fact distortions, though. Maybe some day someone will believe you.”

        WC – If he is to be believed, Matt is a practicing attorney. As such, red herrings and fact distortions are his stock in trade. He has nothing else to offer if the facts don’t suit his side (and in this case they don’t).

  11. Sarah says:

    I think that from an EM physician’s perspective, the most frustrating thing is to find yourself in a position where a case could go two ways and see yourself potentially getting sued and losing either way. For example, you have an older gentleman come in complaining of chest pain but he mentions that it radiates through to his back. Maybe a heart attack but could be a dissection. Your options include getting a CT chest, but if has renal failure or he develops an ST elevation MI in the near future and a cath is delayed due to the dye load, you could get sued for that. You could, knowing that dissection is substantially less likely than ACS, check bilateral upper extremity blood pressures, check pulses in the feet, and treat with heparin. But you could miss a dissection that still had a substantial true lumen that was maintaining pulses and then give heparin, worsen the dissection, and get sued for that.

    You might have great training, plenty of time to reassess the patient and consider the best management, the best intentions, and be at an institution that has every resource imaginable. But if the right patient with the right family comes along, you can still get dragged through a trial for several years. And you still might lose. It’s one of the worst things about our job.

    • DensityDuck says:

      I’m sure that Matt would say that if you couldn’t determine the proper care then you OBVIOUSLY weren’t a good enough doctor and DESERVE to be sued into oblivion. After all, it’s all about providing the best medical care to the patients, right Matt? We can’t have any bad nasty incompetent indecisive doctors out there, gotta sue sue SUE and winnow out the bad ones!

  12. […] A Rhode Island hospital settles a med mal case [White Coat] […]

  13. Ron Miller says:

    Supremacy Claus, would the same go for a lawyer who defends a case where there is clear malpractice?

    In most states, doctors have to sign off on a malpractice claim too. Would you sue them too?

    But I agree with you: loser pays is a well intentioned idea that practically does not work for either side.

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