Medical Malpractice

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As an Atlanta lawyer handling mostly catastrophic truck wreck cases, I tend to view doctors more as friends than adversaries.  However, the opinions of some notwithstanding, they are as human as the rest of us.

The X-Ray Technicians blog recently posted a list of medical procedures with very high profit margins, suggesting that at least some of them may be overutilized.  As consumers of medical services, we should be alert to wastes of money, whether our own or the insurance company’s.  Some of the items on the list have the smell of frivolity, e.g, medi-spa treatments, chemical skin peels and botox injections.  But if I ever need it, I don’t want any skimping on spine surgery (been there, done that), heart surgery, diagnostic imaging and chemo. And I can tell you that the cardiac scan sure gave me a lot of peace of mind.

  1. Medi-spa treatments: Spa treatments are spa treatments, whether you’re in a medical setting or not. The convenience factor and implied credibility of a medi-spa, however, means you’ll pay a lot more.
  2. Mammogram: This high cost screening procedure has been found to be ineffective and can even spread malignant cells. The Cancer Prevention Coalition recommends clinical and self-exams as an effective low cost alternative.
  3. Physician dispensed prescriptions: Doctors can make thousands of dollars a year dispensing medication out of their offices, and maintenance medications are especially profitable.
  4. Chemical skin peels: In 2003, chemical peels created an annual gross of more than $578 million in the United States. This highly elective surgery commands higher pricing than low demand, complex procedures. Chemical peels are almost never covered by insurance.
  5. Laser surgery: Laser-assisted surgery is a cash cow for both doctors and laser manufacturers.
  6. Cardiac catheterization: Many medical centers find that they have a high return on investment of an arterial closure device that facilitates cardiac catherization.
  7. Holistic medicine: Procedures such as acupuncture massage, and other alternative therapies are very lucrative, with a high margin of revenue when compared with the physician’s time spent.
  8. Gastric bypass: Gastric bypass centers are popping up all over the country because obesity surgery is a high-margin business. Even better, it’s often fully covered by insurance.
  9. Glasses and contacts: The glasses and contacts that you wear every day are a high-margin, repetitive product that makes a lot of money.
  10. Radiopharmaceuticals: These therapeutic and diagnostic molecular imaging radioactive pharmaceuticals present a profitable venture for medical practicioners.
  11. Heart scans: Cardiologists make millions by offering scans to baby boomers concerned with early screening.
  12. Spine surgery: Sine surgery isn’t generally regarded as a high-volume, high-profit procedure, but it is moving in that direction. The Medical District Surgery Center in Last Vegas reports that doctors who perform spinal surgery are reimbursed from $3,000 to $35,000 per case.
  13. Heart surgery: Heart surgery is an incredibly profitable procedure. So profitable, in fact, that a hospital in California carried out hundreds of heart operations instead of simpler, cheaper alternatives.
  14. Hysterectomy: Hysterectomy is a high paid surgery, and it is a relatively fast procedure. Many women undergo hysterectomies to take care of fibroids and other reproductive troubles, when there are alternative procedures that are not as drastic and profitable.
  15. Osteoporosis screening: This diagnostic procedure is a profit center for doctors, with an aging population that needs to be screened and insurance companies that are willing to reimburse generously.
  16. Fertility treatments: Many doctors who offer fertility treatments enjoy high profits from their work, some of them even earning a commission for finding egg donors.
  17. Circumcision: Circumcision create a billion-dollar a year industry. This unnecessary surgery is often recommended because it will prevent a variety of ills, however they have been largely discredited.
  18. Chemotherapy drugs: Oncologists almost always sell chemotherapy drugs, which is a highly profitable source of revenue. If you feel that you’re not getting the right treatment for your cancer or you’re being treated with unnecessary chemotherapy, get a second opinion.
  19. 24-hour access: Doctors can charge $3,000 or more every year by offering unlimited 24-hour access to themselves. So if you need help in the middle of the night, you’re going to pay for it.
  20. Lab work: Some doctors can earn as much as $2.3 million every year just by running a lab in the office. This is especially profitable for practices that have patients that require bloodwork on a constant basis, like diabetics.
  21. Outpatient procedures: Just about any surgery or procedure that’s performed on an outpatient basis is incredibly profitable because you can be discharged quickly.
  22. Lasik: Lasik is a popular and profitable surgery, although it’s almost never paid for by insurance. This expensive procedure is responsible for a significant jump in the compensation of most opthamologists.
  23. Diagnostic imaging: Procedures like CT, ultrasounds, and MRI will boost your doctor’s bottom line. An especially profitable imaging procedure is X-ray, because it’s cheaper to execute.
  24. Botox injections: These aesthetic injections are profitable because they’re in high demand, and also because you’ll need to make a number of repeat visits for follow-up injections every few months.
  25. Heart monitoring: Doctors can order devices like the Holter monitor without a huge investment, and reap large financial rewards for offering the service.

As a personal injury attorney in Atlanta, I was initially one of those who feared the worst when the Georgia legislature passed it omnibus tort reform legislation, Senate Bill 3, in 2005.   It was as if the political power structure had done everything it possibly could to kill victims of negligence — and the lawyers who represent them.  Some thought it was the death knell for personal injury tort litgation in our state.

However, as soon as the bill passed, a few of us began to gather for a series of weekly breakfast brainstroming sessions focused on how to survive and prosper in the new environment. Those sessions helped transform the law practices of several of the participants. Other lawyers around the state began to go through the same sort of process of evaluation and change.

Three years later, we have seen an increase in the frequency and geographical distribution of impressive jury verdicts in injury and death cases. Even counties that had been viewed as black holes for plaintiffs are producing seven and eight figure jury verdicts.

The most recent was a $5 million verdict this week in a hospital malpractice wrongful death case in Gwinnett County. That case involved the death of a new mother due to a fall, as the hospital personnel had not followed fall precautions which were indicated.

Until very recently many of us had simply declined to accept cases in Gwinnett because the juries there were so notoriously hostile to personal injury and wrongful death plaintiffs. I haven’t heard how the $350,000 cap on noneconomic damages in medical malpractice cases may affect that, if at all. It would not be surprising for an economist to reach a $5 million economic valuation on the life of a promising young adult.

A couple of weeks ago in Fulton County, which used to be a big-verdict venue but in recent years has become much more conservative, there was a $54 million verdict, which was reduced to a mere $10.25 million due to the statutory cap on punitive damages which was enacted in 1987.

Last year we had a $2.3 million verdict in a trucking case in conservative, rural Gordon County..  There have even been million dollar verdicts in some of the small, rural, deeply conservative counties.

The "loser pays" provision of S.B. 3 — an "offer of setlement" feature in OCGA 9-11-68 which can require a party to pay the other side’s attorney fees and litigation expenses if it fails to do 25% better at trial than in trial than in a rejected settlement offer — was designed to intimidate and oppress plaintiffs.  However, it has primarily hurt the defense side. In one medical malpratice case, the plaintiff got some $4 million in fees and expenses added to the compensatory damage award under this provision.

There are quite a few other examples that I have not taken the time to compileon a Saturday morning of a holiday weekend.

Why have we seen an increase in substantial verdicts in Georgia after the tort reformers got everything they asked for in the legislature?  Certainly a few minor details of S.B. 3 have been held unconstitutional, but none of those points are substantially involved in these cases.

Another hypothesis is that tort reform has forced plaintiffs’ lawyers to work harder and smarter in case preparation. With so many obstacles thrown in our path, we have to work hard in investigation, in selection and preparation of experts, and in all aspects of trial strategy and preparation.

When that enhanced preparation encounters the most democratic of all institutions in American society — a jury of ordinary people from all walks of life with no political fears or aspirations related to their service on one case — serious cases can get serious verdicts.

Three years ago, one might have predicted that by now we would be out of business and our clients would be out of luck.  Today, however, it’s a great time to be a lawyer representing good people with legitimate claims of serious injury or wrongful death of a loved one.

As a trial lawyer representing injury victims in trucking accident cases in Georgia, I’m always on the lookout for medications affecting driver alertness.  Another suspect medication has been added to the list.

The Federal Motor Carrier Safety Administration issued a warning Thursday on the anti-smoking drug Chantix, advising medical examiners "to not qualify anyone currently using this medication for commercial motor vehicle licenses." Chantix, made by Pfizer, Inc., was attacked in a study by a non-profit group on Wednesday for possible links to seizures, dizziness, heart irregularity, diabetes and more than 100 accidents. The U.S. Department of Transportation warned all of its agencies almost immediately after seeing the report which reported that Chantix was linked to 988 serious events in the last quarter of 2007.

For more information, see this article by Alicia Mundy and Avery Johnson of the Wall Street Journal.

Occasionally we get calls from potential clients who are interested in a possible malpractice suit based on alleged malpractice in a hospital emergency room. Even if the medical treatment appears to fall short of an appropriate standard of care, we have to explain to them that as a practical matter there is no case. The Georgia General Assembly chose in 2005 to change the law so that ER staff cannot be held liable for damages "unless it is proven by clear and convincing evidence that the physician or health care provider’s actions showed gross negligence."  The most common definition of "gross negligence" is "reckless disregard for the safety of a patient," which is almost impossible to prove in the emergency room.

The practical effect is virtual immunity from civil liability for any ER physician who cannot be clearly proven to be drunk or on drugs at the time of the incident. Virtually no attorneys are taking ER liability cases in Georgia  because even if it is a legitimate case of malpractice, and even after you invest hundred of hours and $50,000 to $100,000 in out of pocket expense, you still almost have to prove that the doctor was drunk or intended to harm the patient.

Now Senate Bill 286 would replace "showed gross negligence" with "failed to meet the applicable standard of care."  That is still a very tough standard to meet, and the defense would probably still win 80% of the time, but in an egregious case it would be at least possible to bring a case.  It is supported by at least 15 state senators, 10 Republicans and five Democrats, including the Senate majority and minority leaders. However, the Medical Association of Georgia and Georgia Hospital Association strongly oppose it.

Due to the power of the lobbying forces arrayed against it, however, I will be utterly astonished if it passes.

Though I have not personally encountered it yet, there apparently has been a recent proliferation of a defense tactic of offering to represent witnesses at no charge in order to limit the plaintiff attorney’s access to the witnesses.  This may be particularly a problem in medical malpractice cases but it could occur in any type case.  In a recent Georgia case against a nursing home and its CEO, defense counsel contacted witnesses who had been subpoenaed for depositions and offered to represent them at no charge. The defense lawyer then wrote to plaintiff’s counsel stating that he represented the witness so the plaintiff’s attorney could have no further contact with the witness without going through the defense lawyer.  On October 24th, Judge Frank Jordan of the Chattahoochee Judicial Circuit entered an order finding this created a conflict of interest in violation of Rule of Professional Conduct 1.7 and disqualifying the defense lawyer from representing the non-party fact witnesses.  However, the court stopped short of disqualifying the defense firm from participation in the case or precluding the defense from contesting the issues on which those non-party witnesses would testify.  The Butler Wooten firm did a great job of stopping that defense tactic in its tracks.

A study published yesterday in The Archives of Internal Medicine, reached the conclusion that doctors’ disclosures about themselves fail to either help patients or establish rapport with the patients. Rather, the study showed that many doctors waste patients’ time and lose their focus in office visits by interjecting irrelevant information about themselves. 

The researchers started with the hypothesis that some self-disclosure by physicians had  a potentially positive aspect to building a doctor-patient relationship.  To their surprise, patients were not comforted and conversations got off track. Four out of five times when a doctor interjected personal information, the doctor never returned to the topic under discussion before the interruption. However, the researchershope that  doctors do not conclude that the best course is to clam up completely about themselves.

I wonder if this is also applicable to lawyers’ interviews with clients, and if I should cut out some of the personal conversation about personal experiences that seem — to me at least — relevant to a client’s situation.  However, in the long duration of most of my cases, I still think there is value in developing genuine friendship with clients that goes beyond the nuts and bolts of litigation.

Two articles in the May 9th  New York Times highlight a pattern of pharmaceutical industry payments of doctors being linked to dramatically increased prescriptions of questionable drugs.

First, one report indicates that pharmaceutical companies have paid hundreds of millions of dollars to doctors in return for prescribing anemia drugs, the safety and effectiveness of which the FDA questions. . The anemia drugs are injected or given intravenously in physicians’ offices or dialysis centers. Doctors receive the rebates after they buy the drugs from the companies, but they also receive reimbursement from Medicare or private insurers for the drugs, often at a markup over the doctors’ purchase price.  Just  one group of six cancer doctors received $2.7 million from Amgen for prescribing $9 million worth of its drugs last year.

Second, an analysis of records  in Minnesota provides documentation of how financial relationships between doctors and drug makers correspond to the growing use of atypical antipsychotics in children, despite profound risks and almost no approved uses for minors.  From 2000 to 2005, pharmaceutical industry payments Minnesota psychiatrists rose more than sixfold, while  prescriptions of antipsychotics for children in Minnesota’s Medicaid program rose more than ninefold.  The New York Times data suggests that those who took the most money from makers of atypical antipsychotics medications  tended to prescribe the drugs to children the most often.

Doctors insist that payments from drug companies do not influence what they prescribe for patients, but the intersection of money and medicine, and its effect on the well-being of patients, has become one of the most contentious issues in health care.  This presents a real dilemma for patients who want and need to trust their physicians, but who are uninformed about the scientific studies about medications and the financial relationships between pharmaceutical companies, researchers, medical educators and prescribing physicians.