The University of Chicago Medical Center may have been cutting corners.   The neonatal intensive care unit was overcrowded with babies to such an extent that the Illinois Attorney General described the situation as “absolutely terrifying.” The hospital spokesman denied any patients were harmed.  So far, nothing seems out of the ordinary; when parties settle, the agreement typically includes a statement that denies the defendant’s culpability.  Essentially,  the plaintiff sells the defendant the right to claim innocence.

This case is unusual because the specific terms of a settlement are typically kept secret as a condition of the settlement.  Usually, the defendant does not want the publicity, for obvious reasons.  But, the way the money is being allocated is the strangest part of all.  The bulk of the award, $5.2 million, will go to various hospitals and clinics “that provide preventive medical care for low-income women who face chronic and long-term health issues linked to problems they had in giving birth.”  Regardless of your opinion of the merits of this eleemosynary,  what does this remedy have to do with a hospital that was overcrowding its neonatal ICU?  I doubt this particular charity was picked at random.  Was this award representative of the political cronyism that Chicago is famous for?  I don’t know, but it sure sounds fishy.

Another strange allocation is that the Center for Medicare and Medicaid Services will receive $500,000. Why is the federal agency that runs Medicaid getting a refund?  I can understand that when a Medicaid beneficiary gets an injury settlement, the State Medicaid agency that paid the medical bills should be entitled to a refund.  We have a longstanding tradition in this country that a defendant should not get the benefit of a victim’s insurance.  But, why should the federal government get anything, especially if no Medicaid patients were actually injured?  This particular award may be related to undisclosed facts, but normally the federal government is not entitled to a refund of fees paid out for a Medicaid patient’s care, only the State Medicaid agency has this entitlement.

Frankly, the only part of this award that I do understand and agree with is that the two nurses who blew the whistle about the overcrowding conditions will share $1.4 million.  The report indicates that the two are former employees of the hospital.  I suspect they were either fired or resigned because of intense pressure.  All they did was act in the best interests of their patients by reporting the dangerous conditions to authorities.  Yet they are now unemployed and I don’t think it will be easy for them to find other jobs.  I know one whisleblower who won a seven figure settlement and then spent years seeking employment, nearly going broke in the process.  I hope these two nurses find new employment soon.

The law considers a doctor to be a fiduciary, which means that he and his patient are in a relationship of trust and confidence.  The doctor must act for the benefit of his patient.  He owes a duty of loyalty to his patient and he may never put his own interest above that of the patient.  The same applies to a lawyer and his client. A physician fiduciary who takes advantage of his position to benefit himself at the expense of his patient is self dealing and the law should treat him harshly.

Such is the accusation against Dr. Yasser Awaad, a pediatric neurologist formerly at Oakwood Hospital in Dearborn, Michigan and now practicing in Saudi Arabia.  Dr. Awaad is being sued for falsely diagnosing epilepsy in hundreds of children in the Detroit area merely to increase his income.  According to the newspaper, Dr. Awaad earned $600,692 in 2005, more than anyone else at the Oakwood Hospital.    His base salary was $250,000 and the rest of his pay was for bringing business to the hospital.  If true, Dr. Awaad is a scoundrel and Oakwood Hospital is even worse.

There is plenty of blame to go around. The Michigan Department of Community health has been investigating charges of wrongdoing by Dr. Awaad since 2006, and isn’t done yet.  By 2007, Dr. Awaad closed shop and left the country.  Last September, Michigan Medicaid settled a fraud case against the hospital for more than $300,000 that evolved from Dr. Awaad’s care of indigent patients.  Dr. Awaad would order numerous tests at the hospital and, even if the tests were negative, start the patient on antiepileptic drugs, which would require regular follow up.  Dr. Awaad would also send the patient back to the hospital for expensive follow up testing and monitoring.  Dr. Awaad repeated the process hundreds of times between 1994 and 2007.  Some frustrated parents took their children to see different doctors who found completely normal diagnostic tests even though Dr. Awaad had diagnosed epilepsy.  Despite several physician complaints, no one in authority did anything until the investigation that started in 2006.  A court hearing last week prompted the newspaper report.

Dr. Awaad’s story, though contemptible, is not rare.  Why did he get away with it for so long?  Other doctors reported him and yet he continued his schemes.  Some would argue that government must do more to put a stop to these kinds of practices.  I would argue that government obviously failed here and is likely incapable of solving this kind of problem. Increasing government oversight will typically impair honest doctors, reduce care to the people who need it and the deceivers will still find new ways to trick the oversight mechanisms.  As long as a big pot of money is available from a third party, some crook will come along to take it.

How many times have you had an intramuscular injection of a medication?  Intramuscular injections are common enough, especially if the drug needs to be given only once or twice and in small volume.  The injection usually assures full delivery and absorption of the drug with a minimum of trouble for both the patient and the person giving the injection, usually a nurse.  But, no medical procedure is risk free, and an inept nurse can cause a lot of damage doing something that should almost never go wrong.  I’ve probably ordered hundreds, if not thousands, of injections during the course of my medical career, even given a few of them myself, but never once had an injured patient.

The main potential problem with an intramuscular injection is sticking the needle into something other than muscle and then injecting the drug where it is not intended.  The picture shows the sciatic nerve and, just observing the size and length of it, demonstrates that an injury to the sciatic nerve will cause a lot of problems. The sciatic nerve is easy enough to avoid, if an injection is given in the upper outer quadrant of the buttock.

Earlier this month, a court in Syracuse, New York awarded Tina Holstein $1,690,000 as compensation for a permanent sciatic nerve injury.  Ms. Holstein was vomiting after she delivered at baby at Community General Hospital, and a nurse gave her an intramuscular injection of anti-nausea medicine. Unfortunately, the nurse injected the medication into Holstein’s sciatic nerve, which caused a permanent injury.  Holstein now has lower back problems, difficulty sitting and standing for any length of time and limitations on her physical activities.  Holstein, who is herself a nurse, was undoubtedly upset at being the victim of another nurse.

Shoulder dystocia is the usual cause of a baby getting stuck in the birth canal during delivery. The baby’s shoulder gets hung up on the mother’s pubic bone and the obstetrician has only a short time window to relieve the situation before the baby, mother or both are seriously injured. Sometimes shoulder dystocia can be predicted, sometimes it cannot. Even if it can be predicted, shoulder-dystocia injuries cannot always be avoided. Sometimes medical malpractice is at the root of a shoulder-dystocia injury but sometimes the most skillful obstetrician cannot prevent a shoulder-dystocia injury. Consequently, it is relatively easy for a negligent obstetrician’s attorney to blow smoke into the jury’s eyes and it takes a skillful plaintiff’s lawyer to distinguish a negligent case of shoulder dystocia injury from an unavoidable one.

A Cincinnati Ohio jury awarded Dylan Nitzsche and his parents $1,630,000 last week over a shoulder dystocia injury. In a previous pregnancy, Dylan’s mom had gestational diabetes, a problem seen in about 5% of pregnancies. Because gestational diabetes causes macrosomia, i.e., a big baby, it is a strong risk factor for shoulder dystocia. Even though the obstetrician was notified of this history, he did not take proper precautions monitoring Dylan’s mother during the pregnancy and did not perform a Cesarean section, even though she had requested one. Instead the obstetrician performed a vaginal delivery and injured Dylan in a failed effort to maneuver him out.

Why was Dylan’s case negligence but other cases of shoulder-dystocia injury are not? For one, careful monitoring and treatment of gestational diabetes reduces the risk of macrosomia and subsequent shoulder dystocia. For another, even though some shoulder-dystocia injuries can occur prior to any manipulation during vaginal delivery so that even Cesarean section won’t prevent every single shoulder-dystocia injury, Cesarean section prevents many of the injuries and, in this case, with the mother’s prior history of gestational diabetes and her request for one, a Cesarean section should have been performed.

Was the award excessive? Dylan was five-years old at the time of trial, so it’s safe to assume that his injury is permanent. He will have a partially paralyzed arm forever. Imagine a childhood in which Dylan will be stared at by his peers and in which he can’t fully participate in sports or any other activity that requires use of both arms. The handicap will follow him throughout his life, which may affect his choice of livelihood and how he is viewed by potential employers. Hopefully, Dylan will have the character to overcome his disability, as many others have. If not, the money won’t mean much anyway. But if he can work his way through this problem, this award will help him make up for some of the financial losses and the pain that he will surely have.

I don’t plan to discuss only trials that medical malpractice victims have won.  Justice is a rare commodity, I believe, so I would give the wrong impression if I only presented the winners.  Because medical malpractice cases are so expensive to bring to trial, I have to turn down a lot of meritorious cases, for example, before I can take one that even makes economic sense.  Sometimes I have to turn down a case that might make economic sense, but the courthouse where the case would be tried has a history of turning a cold shoulder to patients who have been injured by their doctors.

Although I have no first hand information about the malpractice trial I am about to describe, I do know what it means to try a plaintiff’s case in Gwinnett County, Georgia.  For readers not from the Atlanta area, Gwinnett is a large, vibrant, suburban county with mostly middle and upper middle class residents, where median household income, homeownership and college education are well above the average in Georgia.    Although Gwinnett has more than the average number of Hispanics, the racial breakdown is otherwise similar to the rest of the state.  Early in my legal career, I had a client who was rear-ended in Gwinnett County and incurred some $30,000 in medical bills as a result.  The case went to trial and I enlisted a trusted colleague with decades of trial experience to be lead counsel.  I was the second chair, getting to do some of the direct examinations of witnesses, but my colleague did the heavy lifting giving the opening statement, the client’s direct examination, all the cross examinations and the closing statements.  The jury was out for less than an hour.  We lost.  How can you lose a rear-end-collision case you ask?  It’s easy in Gwinnett.  I had been warned by experienced lawyers before I took this case, but I had to learn my lesson the hard way and at my personal expense.  I’ve never brought another case in Gwinnett.

Two years ago a medical malpractice case was tried in Gwinnett County that certainly looked like the real McCoy.  Troy Moon was a 47-year-old real estate agent with a wife and two kids.  He made about $85,000 a year, but he drank too much.  One morning he developed pain in his belly and went to Gwinnett Medical Center; ten days later he was dead of pancreatitis.

Mr. Moon went to the emergency room and was sent home.   He returned to the emergency room later that day with worsening pain and had a CT scan of his abdomen.  The doctor diagnosed pancreatitis, but sent Moon home again with instructions to drink plenty of fluids and see a gastroenterologist the following morning.  The next day, the gastroenterologist sent Moon back to the emergency room, where he was admitted to the ICU.  But it was degringolade from there.  Moon never made it out of the ICU.  The summary of this case that I read in the Georgia Trial Reporter did not mention whether an autopsy had been performed.  From a strategic standpoint, I usually demand an autopsy in a medical malpractice case to avoid the defense attorney raising a confusing argument about the cause of death.

Every medical student knows that you take your time before feeding patients with pancreatitis.  Feeding them too early typically causes the disease to get worse.  As a general statement, you put the patient on intravenous feeding until you are quite sure that re-feeding will cause no harm.  Telling an alcoholic patient with severe abdominal pain and a swollen pancreas on CT scan to drink plenty of fluids sounds negligent to me.  But alas, this Gwinnett jury took only an hour and a half to find for the defendant.

If a mismanaged toe injury can be worth $11.5 million, what about paraplegia?  A suburban Baltimore jury recently awarded $3.5 million to a 53-year-old woman whose legs became paralyzed following vascular surgery.   So, a bum toe is worth more than three times the ability to walk?  Let’s look at the facts more closely and see whether they make any sense.

According to the newspaper account, doctors used an improper grafting technique that caused bleeding and consequent damage to Victoria Little’s spinal cord.  She walked into the hospital wearing high heels, but never walked again after the surgery.  The jury awarded $200,000 for the medical bills already incurred, $2 million for future medical bills and $1.3 million for pain and suffering.  The jury apparently gave Ms. Little nothing for lost wages.   Compare this jury to O. J. McDuffie’s, which awarded $10 million for lost wages and $1.5 million for pain and suffering to the highly paid NFL star in the toe-injury case.  Perhaps Ms. Little was unemployed before her surgery.

Lawyers call damages that can be precisely calculated, e.g., lost wages or medical bills, “special damages.”  Damages that are left up to the so-called enlightened conscience of the jury, e.g., pain and suffering, are called “general damages.”  In Little’s case, the general damage award represented nearly 60% of her special damages (1.3/2.2) but only 15% of McDuffie’s special damages.    Viewed this way, I could argue that Little’s jury was more sympathetic to her pain than McDuffie’s jury.  Being paralyzed ought to be compensated more than being forced out of a career.

Tort reform is so easy to trumpet as a way to fix health care until you consider someone in wheelchair who should still be able to walk.  I have my own ideas about how health care costs could be brought into line, but it has nothing to do with jettisoning the tort system.

I’m just a casual football fan (though I never turn down an invitation to a Superbowl party and I’ve even hosted a couple of them) so I hadn’t heard of McDuffie until I read about his lawsuit.  He had an outstanding college career at Penn State and then became a frequent target of Dan Marino, even leading the NFL one season for total pass receptions.  And, unlike the other O. J., this one sounds like an all-around good guy who devotes a lot of his time to charitable causes.

McDuffie injured a toe during the 1999 season and then only played two of six regular season games and both post season games. An MRI showed tendon injuries in the toe, and McDuffie claimed the team physician ordered him to play through the injury.  McDuffie suited up for nine games in 2000, but never played in 2001 and was cut before the 2002 season.  He had three years left on his contract.

According to the news account, McDuffie claimed that his career was shortened because of the mishandling of the injury by the team physician.  The jury believed he proved his case and awarded $10 million for lost wages and $1.5 million for “anguish.”   McDuffie apparently settled with other defendants before trial.  Ordinarily the judge will reduce the jury award by the amount of the other settlements–no double recoveries allowed–but I don’t know what the judge did here.

So, was this verdict jackpot justice?  It doesn’t sound like it to me.  A star player like McDuffie probably made several million dollars every year.  The jury may have had to guess how many more seasons McDuffie would last in the rough and tumble of pro football, but it knew that the Dolphins certainly had to pay him for another three years regardless.  By the way, under ordinary circumstances, the Dolphins probably did pay him.  The doctor does not get off the hook just because the patient he injured was compensated for his lost wages by his employer.  For us mortals who make less money than pro athletes, that means if you lost two weeks of work after an automobile wreck, you still are entitled to two weeks of wages from the tortfeasor even if your boss paid you two weeks of sick leave.  The principle that a tortfeasor should not profit from third party payments also applies to health insurance benefits.

What about the mental anguish award?  Think about it.  Your career is over.  Even if you can get another job that pays as much, it’s not the job you really want or what you planned to do.  It is not unusual for a jury to put a large price tag on this kind of damage, if the injured party was a high earner, as McDuffie certainly was.  Relatively speaking, the mental anguish award was only 15% of the underlying award.

In the end, however, some people will see in this trial result another example of why the jury system should be changed.  High cost of health care and all that mumbo jumbo.  Before you sneer at McDuffie or his lawyers, however, ask yourself how much money you would take to hang up your spikes.

cottonmouth snake

Every medical malpractice  lawyer has this recurrent nightmare: You bring a case to trial with all the ducks in a row. Your expert gave a great deposition.  Then he gets up on the stand and turns to jello.  He contradicts half of what he said at his deposition and stumbles through the little he didn’t contradict.  The judge gets restive and jurors start to frown.  I usually wake up at that point.

A related phantasmagoria rattled a trial lawyer in Lagrange, Georgia recently.    His client had been in such a bad automobile wreck that she had a stroke.    She was seen by several physicians in the emergency room, including a general surgeon who failed to diagnose her ruptured spleen.  The poor lady died two weeks later and the pathologist opined that she died from the ruptured spleen.

The accident happened in 1997 and though I can’t even speculate why this litigation has taken more than 13 years and counting, a little delay surely must be attributed to a side battle about the testimony of the plaintiff’s expert.  To get a medical malpractice lawsuit going in Georgia and in many other states, the plaintiff must file an affidavit swearing that some act of the defendant failed to meet the standard of care.  In his affidavit, the expert said that if the general surgeon had intervened, the lady would have survived.  In his deposition, however, the expert only gave her a 50-50 chance of survival.  Because Georgia law requires that proof in a medical malpractice trial must rise to a “reasonable degree of medical probability,” which requires that the patient needed slightly more than a 50-50 chance of survival, the defendant moved for summary judgment.  The judge denied summary judgment and an interlocutory appeal followed.  A sharply divided Georgia Court of Appeals ruled in favor of the plaintiff, so that this case will proceed, however, one of the judges openly called on the Georgia Supreme Court to change the law.

The majority opinion was that conflicting testimony by an expert is a credibility issue for the jury to decide, not a judge.  Although this result would make perfect sense to an average four-year old (quick, go out and find me a four-year old, as Groucho Marx once said), lawyers spend hours struggling over such issues.   In Georgia, as in most states, we have a legal doctrine that allows the judge to believe the worst if a party to the litigation gives self-contradictory testimony.  Typically, and especially if the self-contradictory party is the plaintiff, the judge will believe the worst and throw the case out of court.  But, our courts have been (so far) unwilling to extend the rule of self contradiction to experts.  The judge who called for the Supreme Court to reverse itself on this stance gave this extreme hypothetical:  Suppose the expert admits during his deposition that he had been smoking marijuana when he signed the affidavit and that the affidavit was a pack of lies. Should the defendant have to go to the time and expense of a jury trial to be vindicated?  Somehow I just can’t imagine any judge allowing a case to proceed in which the expert admitted he lied in his affidavit.  After all,  the judge is the gatekeeper of all expert testimony here in Georgia and being a dope-smoking liar seems to me a likely disqualifying trait.  But then again, some accuse me of having about as much common sense as a four-year old.

Reading the tea leaves of what the Supreme Court will say about this case, I believe that this ruling will stand.   The Supreme Court just threw out caps on pain-and-suffering damages ruling unanimously that the Georgia constitution guarantees that the “right to trial by jury shall remain inviolate.”   Allowing a judge to cashier a case because of the expert’s credibility or lack thereof seems to me to encroach upon the traditional role of the jury.  It is often said that you can never know what a jury is going to do.  The same can be said about judges and Justices of the Supreme Court.  I could be completely wrong about our Supreme Court.  Keep posted.

Atlanta Hyperbaric is changing and so is this blog.  For now, at least, I want to wear my lawyer’s hat and discuss legal topics.  My law practice is inextricably intertwined with medical issues anyway–what a surprise.

The law is a moving target.  Even before officious legislatures began telling us how much water we can use to flush a toilet, judges made law when deciding cases and, of course, they still do.  But nowadays, the most sweeping changes in the law come out of our legislatures, which are venal by nature.  Legislatures enact laws that are reactive to events and influences and calculated to promote legislators rather than the general welfare.  Nothing new here.  We all suffer under some very bad law and we try to muddle through.

Our Federal and State governments have self corrective mechanisms that occasionally do fix the worst messes the legislatures produce.  Once in a while the legislature creates a law that so offends legal principles that a court will show some spine and kill the law.   A unanimous Georgia Supreme Court did just that recently.

In the November 2004 election, Republicans took control of both houses of the Georgia legislature and the governor’s mansion for the first time since reconstruction.  This brash group couldn’t wait to get to work in January and by early February the governor had signed a comprehensive tort-reform bill in a Hollywood-style ceremony held at a prominent hospital in a swanky north Atlanta suburb.  The party of limited government had just vastly increased the power of Georgia government and thrown a huge dollop of money at its friends in the insurance lobby. It was one of those bills that passed so quickly and modified so many existing laws, some of which stretched back to the original Georgia constitution of 1798, that you couldn’t possibly understand what was in it until after it passed and the snakes started coming out from under the rocks.

So-called tort reform fits the classic profile of smarmy politics.  Politicians love a scapegoat to blame their own shortcomings on.  And, who better than the trial lawyers: we’re ambulance chasers, don’t you know, and if only doctors didn’t have to practice defensive medicine (whatever that is) there wouldn’t be a health care crisis.  Medicare, Medicaid and Social Security have nothing to do with the high cost of medical care.  Don’t even think that ham-fisted mandates and State regulatory schemes on health insurance–which cause insurance companies to issue indistinguishable expensive policies in order to pass muster with the insurance commissioner–have anything to do with high premiums and preexisting-condition coverage. I knew the day this abomination passed that I would never see a nickel’s reduction in my medical malpractice premiums and, sadly, I was right.  The main disappointment I had was trying to explain the ramifications of Georgia’s tort reform to my physician friends, only to find them refusing to believe that the legislature did not act in their best interest. My colleagues couldn’t understand that the legislature only threw some bones to its pals in the insurance industry.  Even after five years of increasing premiums, most of my doctor friends believe that the legislature just didn’t pass the right laws.

Somehow the party of strict constitutional construction always forgets the Seventh Amendment of the U.S. Constitution and its Georgia Constitution equivalent.  That’s the part of the Bill of Rights that guarantees people a civil trial under the common law when disputes arise.  Many people don’t realize that during the Colonial period, our forefathers haled each other into court constantly, maybe even more than we do today. It’s a little more civilized than killing one another over money, after all, and in the old days people didn’t gasp when they saw someone carrying a pistol. The Constitutional guarantee of a civil trial had a threshold of twenty dollars (Spanish silver dollars, not the paltry sum of $20 for dinner in a modest restaurant in today’s inflated fiat currency) so that the courts were not overwhelmed with trivial disputes. The civil trial law system worked reasonably well for a long time, until the legislature started using it for a playtoy.

Among many other things, the 2005 legislature capped pain-and-suffering damages in medical malpractice lawsuits at $350,000.  Perhaps you might consider $350k a just sum for pain and suffering, unless it was your wife’s face that had been disfigured by a plastic surgeon.   A local jury thought a poor woman’s face was worth $900,000 plus another $250,000 for her husband.  Instead of reducing the award by $800k, however, the trial judge had the gumption to declare the cap unconstitutional.     The appeal made it to Georgia’s Supreme Court, which in a unanimous decision issued on March 22, found that the caps could not be squared with our constitution.  In particular, the Court found that damage caps were incompatible with the phrase, the “right to trial by jury shall remain inviolate,” because under the common law only a jury can decide the amount of damages.

So there it is: what you learned in your high school civics class was right after all.  If you’ve been injured, you’re entitled to bring the person who injured you in front of a jury and let the jury determine how much, if any, money to award you.  For the last five years, that was not the law in Georgia if you were injured by a doctor or hospital employee.  Tough luck for those victims who had their constitutional rights violated the last five years, but at least this part of the law is back where it had been for the last two hundred years.

I came across a forthcoming article, Supertaskers: Profiles in extraordinary multitasking ability, which caught my attention even though it had nothing to do with hyperbaric oxygen or the neurologic conditions we treat at Atlanta Hyperbaric. Other studies have shown that cell phone usage while driving increases accident rates, braking time, object detection etc., i.e., generally increases driver error.    But, many people believe that they can use a cell phone while driving and it doesn’t impair them at all.  These authors looked at 200 college undergraduates to determine just how many of them really could drive unimpaired while talking on a cell phone.

The students took the operation span (OSPAN) test of executive attention, which requires memorizing items and recalling them in the correct order while concurrently performing distracting math problems.  They also performed a driving test in a simulator.  The simulation consisted of freeway driving in traffic while being monitored for braking time and distance from vehicles slowing in front of them.

Overall, participants did significantly worse when doing the two tests at the same time for brake reaction time, following distance, memory performance, and math performance.  But, three men and two women (2.5%) scored in the top 25% on the memory and driving tests and stayed in the top quartile on all measures when talking and driving at the same time. Their memory scores actually rose 3% while multitasking.  The other students showed a 20% increase in braking time, 30% poorer ability to keep pace with traffic, 11% worse memory performance, and 3% lower math scores.

The researchers suggested that these rare “supertaskers” have a genetic or biological advantage rather than simply being more experienced at driving while on the cell phone.  They believe supertaskers could provide information on the nature of cognition in multitasking. Nevertheless,  most of us exhibit a significant decrease in ability when we try to perform two tasks at the same time.