Saturday, October 13, 2007
Friday, October 12, 2007
Here. One man's estate is suing another estate for a death in a three-day sadomasochism session gone very wrong. As you can imagine, the key issue is the scope of consent. I've already had two students note the case for me, so if you're teaching Torts, you'll probably be hearing about it too.
Thursday, October 11, 2007
Details here,including the briefs. In short form, the plaintiff (a young girl) was very seriously injured by a driver who was allegedly overserved at a Giants game. The plaintiff prevailed at trial, but the judgment was reversed on appeal. On remand, the trial court has sealed pleadings (for reasons that are not immediately clear to me). Public Citizen is demanding that the documents be unsealed.
I'm heading down to Washington today to present tomorrow morning at the annual meeting of the Defense Research Institute. I'll be talking about non-traditional experts, litigation-driven scholarship, discovery into peer review, and related topics. If any readers are attending, I'd love to say hi.
Wednesday, October 10, 2007
You can't help but have a good day when you get to quote this lede:
Former "Survivor" contestant Jonny Fairplay sued Danny Bonaduce, alleging battery and emotional distress after Bonaduce tossed Fairplay over his shoulder at an awards show.
The state of Kentucky is suing the manufacturer of Oxycontin for expenses related to addiction treatment; the company has already admitted to misrepresenting the addictive qualities of the drug. NPR's Morning Edition had a commentary from a Kentucky native describing what it was like returning to the state after four years of college and finding many of her childhood friends addicted. It's worth a listen.
Tuesday, October 9, 2007
There's been a lot of talk about the New York Times story about the liability changes in Texas, and whether the increase in disciplinary actions coinciding with an increase in doctor licensures should be seen as an indication of a problem. One way to get a hint about this is to look at the discipline that's taking place. If it's disproportionately of new doctors (i.e., those coming to Texas since 2002), that might indicate that the reduction in exposure to potential liability is indeed attracting more negligent doctors.
I have a research assistant doing a more complete look, but just for a glance, I checked the licensure dates of the eleven doctors disciplined recently for quality of care violations. (The press release is here. The research assistant will look at all discipline that took place so far in 2007 and all that took place in 2002; if the results are interesting enough either way, I may expand the project.)
Below, I've pasted the press release discussion of the eleven cases and added in the year of medical school graduation ("Grad") and of obtaining a Texas medical license ("TXL"). In some cases, there's a later "registration" date; I have included the license date only below, since I'm assuming that the registration date is an administrative question. If I'm wrong, please tell me.
• CARLSON, DAVID W., GARLAND, TX, Lic. #H0233 Grad: 1985 TXL: 1986
On August 24, 2007, the Board and Dr. Carlson entered into an Agreed Order requiring Dr. Carlson to obtain 12 hours of CME in cardiovascular disease and payment of an administrative penalty of $2,000. The action was based on Dr. Carlson’s inadequate treatment and monitoring of a patient with atrial fibrillation.
• CHANG, JUNE-CHIEH, M.D., CONROE, TX, Lic. #K4020 Grad: 1972 TXL: 1997
On August 24, 2007, the Board and Dr. Chang entered into a three-year Agreed Order requiring that he have his practice monitored by another physician, complete a course in record-keeping, and complete an additional 10 hours of CME in pain management for each year of the order. The action was based on Dr. Chang’s failure to maintain adequate medical records, failure to examine whether treatment followed was effective and if there were any alternatives to that treatment, and inadequate monitoring of medications prescribed.
• DAVIS, JENNIFER L., M.D., CORPUS CHRISTI, TX, Lic. #J4070 Grad: 1992 TXL: 1993
On August 24, 2007, the Board and Dr. Davis entered into an Agreed Order requiring that she complete 10 hours of CME in risk management and that she pay an administrative penalty of $1,000. The action was based on Dr. Davis’s inappropriately prescribing antidepressants to herself and a family member.
• ELDERS, GREGORY J., M.D., GRAPEVINE, TX, Lic. #L8677 Grad: 1999 TXL: 2004
On August 24, 2007, the Board and Dr. Elders entered into a three-year Agreed Order requiring that Dr. Elder not treat or provide medications to his immediate family or himself, that he maintain a logbook of all prescriptions for controlled substances or dangerous drugs with addictive potential or potential for abuse, and that he complete an eight hour course in medical record-keeping and an eight hour course in ethics/risk management. The action was based on Dr. Elders’ inappropriate prescribing of medications to family members without maintaining medical records.
• HOZDIC, RICHARD L. II, M.D., ATLANTA, TX, Lic. #J8587 Grad: 1994 TXL: 1995
On August 24, 2007, the Board and Dr. Hozdic entered into an Agreed Order requiring that Dr. Hozdic complete 10 hours of CME in the area of pediatric ENT emergencies and that he pay an administrative penalty of $1,000. The action was based on Dr. Hozdic’s failure to adequately treat a patient who had a pebble lodged in his ear.
• MASSEY, WARNER, M.D., GRAND SALINE, TX, Lic. #D6084 Grad: 1969 TXL: 1969
On August 24, 2007, the Board and Dr. Massey entered into an Agreed Order which is an addendum to his February 16, 2007 Order and requires that Dr. Massey complete an additional 10 hours CME per year in pain management, 15 hours CME per year in the areas of psychiatry or psychiatric illnesses, and that he purchase and use a PDA in his regular practice with PDR/medical software installed. The action was based on Dr. Massey’s failure to adequately treat two patients with chronic headaches and anxiety.
• MONTELONGO, JUAN A., M.D., EL PASO, TX, Lic. #H6445 Grad: 1988 TXL: 1989
On August 24, 2007, the Board and Dr. Montelongo entered into an Agreed Order publicly reprimanding Dr. Montelongo and requiring the completion of 30 hours total in courses related to risk management, pediatric emergencies, and pediatric surgical conditions; passage of the Texas Medical Jurisprudence examination with a score of at least 75 within three attempts; completion of an Advanced Pediatric Life Support Course and Pediatric Life Support certification. The action was based on Dr. Montelongo’s failure to meet the standard of care by sending a child patient, who presented with bowel obstruction and gastroenteritis, to the ICU without obtaining an emergent surgical consultation to evaluate for an acute abdomen as a possible source of sepsis.
• PETEREK, WILLIAM, M.D., GALVESTON, TX, Lic. #D7384 Grad: 1970 TXL: 1970
On August 24, 2007, the Board and Dr. Peterek entered into an Agreed Order requiring that Dr. Peterek’s practice be monitored by another physician for two years and that he complete a course in record-keeping of at least eight hours. The action was based on his failure to adequately treat three patients with symptoms of hypertension, urinary dysfunction, and/or prostatitis, and failure to maintain adequate medical records.
• ROJAS, PETER P., M.D., VICTORIA, TX, Lic. #D7276 Grad: 1970 TXL: 1970
On August 24, 2007, the Board and Dr. Rojas entered into an Agreed Order requiring that Dr. Rojas complete eight hours of CME in medical record-keeping and eight hours of CME in risk management, and that he pay an administrative penalty of $2,000. The action was based on his failure to meet the standard of care for a patient who underwent ulcer surgery, as demonstrated by his failure to exercise diligence in his examination and treatment of the patient after the surgery and by failing to make and keep adequate records of examinations performed on two dates.
• SMITH, JEFFREY S., M.D., MIDLAND, TX, Lic. #K3476 Grad: 1991 TXL: 1997
On August 24, 2007, the Board and Dr. Smith entered into a three-year Mediated Agreed Order requiring that Dr. Smith’s practice be monitored by another physician, that he complete a course in spinal surgery of at least 20 hours and a course in medical record-keeping of at least 10 hours, and that he pay an administrative penalty of $3,000. The action was based on Dr. Smith’s not obtaining a discography as part of the pre-operative workup for two patients who underwent interbody fusions, and for pre-operative documentation for a patient that did not consistently document the presence of radiculopathy to substantiate surgical intervention.
• WIENER, ISIDORO, M.D., HOUSTON, TX, Lic. #G5769 Grad: 1977 TXL: 1983
On August 24, 2007, the Board and Dr. Wiener entered into an Agreed Order requiring that the physician obtain 10 hours of CME in the management of surgical complication. The action was based on Dr. Wiener’s delay in performing a “second-look” laparotomy for a patient who underwent a laparascopic lysis of adhesions and excision of a cecal cyst initially completed without complication, but who subsequently developed complications.
So, of the eleven, one obtained his or her license since the medical malpractice liability modifications were put into place, Dr. Elders. His degree was from the University of Michigan in 1999 (pre-modifications). Performing a search in Michigan's database indicates that Dr. Elders did not have any disciplinary proceedings there. His Michigan license was an "educational-limited" variety and lapsed in 2004.
One out of eleven seems roughly in line (or even low) with what you'd expect if the disciplinary proceedings were evenly distributed among physicians; as I noted earlier, doctor supply has increased by 22% since 2002. [Update: Ted Frank reminds me that given the lag time in investigations, the disciplinary proceedings expected percentage increase would be less than 22%.] Obviously, the absolute numbers are far too small to reach (or even hint at) any conclusions, but at least we can say that there's not a huge signal of a problem from that limited data set.
I will update as the project proceeds.
Next Wednesday, October 17, Anthony Roisman will present the second of the Western New England College School of Law Clason Lectures. Roisman is a Research Fellow at Dartmouth College and a managing partner at the "National Legal Scholars Law Firm" (website), a group of "law professors and other scholars who are ready to work with plaintiff counsel in their most challenging cases." He has been involved in many high-profile environmental toxic tort cases, including Anderson v. W.R. Grace, the inspiration for the book and film A Civil Action.
Just days after announcing a massive e. Coli-based recall (and contemporaneously with some of the first lawsuits being filed), Topps Meat Co. is closing up shop. The Chicago Tribune article suggests that the biggest financial concern for Topps was the expenses of the recall itself and of implementing more processes for avoiding future bacterial problems; lawyers are mentioned, but only down the line a bit.
After an infamous 1993 E. coli outbreak, the beef industry learned that investments in quality control pay off. Nowadays, meat companies spend millions of dollars annually on safety measures to fend off the deadly bacteria.
Topps appears not to have had some of those measures in place, analysts and industry officials say. So it was faced with an even more expensive proposition: fixing its safety problems and dealing with the expense of a recall.
Monday, October 8, 2007
William Meadow (University of Chicago Children's Hospital) and Cass Sunstein (Chicago) have posted a provocative new SSRN piece about causation evidence and how statistical evidence is used. The abstract:
To establish causation, a tort plaintiff must show that it is “more probable than not” that the harm would not have occurred if the defendant had followed the relevant standard of care. Statistical evidence, based on aggregate data, is sometimes introduced to show that the defendant's conduct created a statistically significant increase in the likelihood that the harm would occur. But there is a serious problem with the use of such evidence: It does not establish that in the particular case, the injury was more likely than not to have occurred because the defendant behaved negligently. Under existing doctrine, a plaintiff should not be able to establish liability on the basis of a showing of a statistically significant increase in risk. This point has general implications for the use of statistical evidence in tort cases. It also raises complex issues about the relationship between individual cases and general deterrence: Optimal deterrence might be obtained by imposing liability on defendants who engage in certain behavior, even though a failure to engage in such behavior cannot be connected with the plaintiff's harm by reference to the ordinary standards of causation.
Sunday, October 7, 2007
Eric Turkewitz has posted (also at his own site) a rebuttal of sorts to the NYT piece I mentioned a couple of days ago. The short version is that, while doctor supply has increased (by my numbers [from the Texas Medical Board site], about 22% from 2002 to 2007, the time frame Eric reasonably uses), disciplinary proceedings have increased more, about 78%.
As commenters point out at the TortDeform post, there have been other factors in play, with apparently the TMB focusing on more enthusiastic enforcement. That could be, perhaps, reflected by the spread of enforcement actions. From the most recent announcement of 88 enforcement actions:
Actions included 11 violations based on quality of care; seven actions based on unprofessional conduct; five actions based on violation of probation or prior board orders; four actions based on inadequate medical records violations; three actions based on impairment due to alcohol or drugs; three action based on nontherapeutic prescribing; one action based on inadequate supervision; two actions based on violations of board rules; seven voluntary surrenders; four advertising violations; one action based an another state board’s action; one temporary restriction and 39 minimal statutory violations by 38 physicians. The board issued two cease and desist orders against unlicensed practitioners.
Unfortunately, a brief look at a 2002 press release doesn't include a comparable breakdown; at a glance,it seems to be not dramatically different in the distribution of reasons. (But, it's worth noting, the descriptions are a bit vague at times.)
In any event, as with most things, it's probably somewhere in the middle. It seems fairly evident that more doctors are in fact going to Texas, with the malpractice liability changes probably one of the reasons. But there are many reasons to live in Texas, and that presumably applies to doctors too. And, as Eric points out, the doctors choosing to practice there because of malpractice modifications may on average be somewhat less skilled -- but they may also (perhaps probably) be solid doctors who are tired of paying higher rates elsewhere, since many carriers don't base rates on experience with individual doctors.