Report from Counsel
Legal Myths:Hardly the Truth
USA Today
By Jonathan Turley
Have you heard about the guy who injured himself while using his lawn mower as a hedge clipper, and then won $500,000 in a lawsuit against the lawn mower company? How about the woman who threw a soft drink at her boyfriend, slipped on the wet floor, and then won $100,000 in a lawsuit against the restaurant? These are only two of the common examples of lawsuit abuses that are fueling the call for "litigation reform." They are also completely untrue - part of a growing collection of legal mythologies that are appearing widely in the national media.
Image is everything in tort reform, such as President Bush's visit earlier this month to a "judicial hellhole" in Illinois where tort cases supposedly flourish. He has made tort reform a priority of his second term and is expected to repeat these calls in his State of the Union address Wednesday. It is all part of a well-funded campaign to limit damages against companies and physicians across the country.
Horror stories offered by industry groups play to a weakness in the media for "you-are-not-going-to-believe-this" stories. Of course, it is not surprising that the stories are unbelievable - because many never occurred.
Take the ubiquitous hedge-clipper man story. It has appeared in print, on TV programs, in law school classrooms and in political speeches for decades. Former vice president Dan Quayle used it in his call for reform (though he reportedly referred to the man cutting his hair with a lawn mower). In reality, the story originated in an ad campaign by the insurance firm Crum & Forester, which later admitted that it knew of no such case. Yet, proving that facts should never stand in the way of a good story, it remains perhaps the most cited example of abuse - the best $500,000 that the insurance industry never paid.
Bad lawyering
Even true stories often prove not to be examples of bad law, but bad lawyering. Take the list of the "wackiest consumer warnings," released this month by the Michigan Lawsuit Abuse Watch to show the need for reform. Included are such things as a warning on a toilet brush that reads, "Do Not Use for Personal Hygiene" or a sign on a scooter that reads, "This product moves when used." These are not fabrications, but none of these warnings make any more legal sense than they do practical sense. No company has to warn consumers not to use a toilet brush on their teeth or hair.
Legal legends can be irresistible, even for the most respected newspapers, magazines and networks.
U.S. News & World Reportowner Mort Zuckerman used the story of the soft drink lady in Pennsylvania in an article denouncing lawsuit abuse. He is not alone. The tale of Amber Carlson and her soda has appeared in countless television and print sources. Zuckerman also cited the case of a woman who knocked her teeth out while sneaking through a nightclub's restroom window to avoid paying a $3.50 cover charge - and then won $12,000 from a jury. It is also false.
Both stories have been attributed to the Stella Awards, an annual listing of loony lawsuits. But the Stella Web site points out that they both are complete fabrications. Yet they continue to appear in print and on the Internet.
Other examples of fabricated "true cases of lawsuit abuse":
.Kathleen Robertson of Austin received $780,000 from a jury after she tripped over her own son in a furniture store.
.Carl Truman, a 19-year-old in Los Angeles, was awarded more than $74,000 when his hand was run over by a neighbor. The neighbor did not see Truman, who was in the process of stealing his hubcaps.
.Terrence Dickson of Bristol, Pa., was given a $500,000 award after he was inadvertently trapped in the garage of a house that he was burglarizing.
.A Mr. Grazinski won more than $1,750,000 and a new Winnebago after he put his new motor home on cruise control at 70 mph and then went into the back to fix himself some coffee - only to crash on the highway.
Merely legal legends
These are the legal versions of the urban legends about alligators living in the New York City sewers. Everyone knows that alligators brought back by kids as pets from Florida have been flushed down the toilets, only to thrive below the streets of New York City.
Legal legends fit the stereotype of litigation so well that their falsity becomes secondary. Of course, law is not alone in such fabrications. Consider my favorite story about Pia Zadora's dismal performance as the lead in The Diary of Anne Frank. Zadora was so bad that, during the scene where Nazis break into the house screaming, "Where is Anne Frank?" audience members screamed, "She's in the attic!" It is a brilliant story, but I was crushed to learn recently that it is also completely untrue: Zadora has never played Anne Frank, and there is no such scene in the play.
I loved the Zadora story for the same reason people such as Zuckerman loved the fabricated lawsuit stories: They capture a critical idea with an element of humor or absurdity. There is, however, a great difference between using urban legends to dish on some actress and using them to make massive changes in the law. So, as we begin this latest debate over tort reform, one small piece of advice: If you hear about a case that is almost too good to be true, it probably isn't.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and has testified before Congress on tort reform. He is also a member of USA TODAY's board of contributors.
Links to this post:
The vote in Baghdad and here...
January 29, 2005OP-ED CONTRIBUTOR New York Times The Long Road to a VoteBy BAKHTIAR DARGALI
Plano, Tex. BY the time you read this, I'll have packed my suitcases into the car and will be headed for Nashville, Tenn., one of the five American cities where Iraqi exiles in this country are gathering to vote in the Iraqi national elections this weekend. In the past few weeks, I've been helping to organize trips to Nashville for some of the 5,000 Iraqi Kurds who live in the Dallas area and who are eager to vote, even if it means taking time off work and enduring a 24-hour round trip. But until recently, I wasn't so sure that I wanted to vote myself. In 1976, when I was 15, my older brother and I left behind our parents, four brothers, three sisters, 500 cousins and our beloved village of Dargala, in the Kurdish part of Iraq, to come to the United States. We also left behind many bad memories: of hiding out in freezing caves in the mountains to escape the Baathists' bombardment of the Kurds, of seeing our uncle's family blown up by government planes. What we didn't have was any memories of seeing anyone in our family vote. Saddam Hussein's candidates always won 100 percent of the vote, but the election booths in our section of Iraq were in the form of mass graves. There was no indelible ink to prevent fraud in elections, only the indelible pain of broken dreams and the loss of loved ones since our part of Kurdistan was annexed to Iraq in the 1920's. When I voted in this country for the first time, I thought how lucky Americans were. A vote is taken for granted here, while back in Iraq people died (and are dying now) for it. I've voted in every election here since. And on Sunday my large family in Iraq will all vote. For my 72-year-old father and my 70-year-old mother, it will be their first time. My mother told me that she would brave the current blizzard in the mountains of Kurdistan to go vote, even though she is very ill. My father, a Kurdish freedom fighter for two decades, looks forward to voting as eagerly as a child waiting to open his Christmas gifts. They do not want America to fail in its effort to bring democracy to Iraq. Above all, they and the seven million other Kurds want to cast a vote for a new Iraq that will be based on the principles of freedom, federalism, and the recognition that any union between the Arab majority and the Kurdish minority is voluntary. Nonetheless, when I heard about the plans for Iraqis in the United States to vote in the national elections, my initial reaction was not to participate. Although I feel a strong tie to my homeland, I am an American citizen, and my life is here now. But then came the news that 31 marines died on Wednesday in western Iraq when their helicopter crashed as they were on what Gen. John Abizaid said was a "mission in support of the election." How can I ignore the sacrifices of these marines who died so my family can vote? The best way for me to honor their martyrdom is to vote myself. That means that my wife, Allea, and I are driving to Nashville. Coming along with us will be our 7-year-old daughter, Connie. She will get to see something that I never got to see as a child: her parents voting for freedom in an Iraqi election. Bakhtiar Dargali is a partner in an environmental consulting firm.
|
|
Links to this post:
Legal Battles Far Less Likely to Go to Trial than During 1980's
From the January 21, 2005 print edition - Cincinnati Business Courier
Risings costs, dispute resolution leading to more settlements
Kathy Robertson, Courier Contributor
The prevailing image of litigation involves a judge and jury, yet the number of civil trials in federal courts nationwide has dropped a whopping 60 percent since the early 1980s, a new study shows.
This turnabout comes as just about every other indicator of legal activity has increased. There are more lawyers, who file more cases that take longer and cost more than they used to, but there's been a sharp decline in criminal trials, bankruptcy trials and trials in state courts, too.
"The general reaction, both among lawyers and judges, is surprise when they see the numbers," said Marc Galanter, an author and law professor at the University of Wisconsin-Madison, who wrote an article about the subject in the November edition of the Journal of Empirical Legal Studies.
Galanter was looking through legal literature when he noticed that the pattern holds true across criminal, civil and bankruptcy court systems.The number of civil trials in federal courts dropped almost 60 percent between 1982 and 2002. Civil trials in statecourts dropped 28 percent over the same time period. Yet the number of plaintiffs, motions, defenses and length of time consumed per case all increased.
The decline in trials owes something to mass settlements in tort cases and efforts to suppress prisoner petitions, the study shows. There's more "managing" from the bench, increased use of alternative dispute resolution -- and the time and money it takes to get to trial simply dissuades many from going that far. Still, on almost any other measure -- the number of lawyers, the amount spent on law and the size of legal literature --law has flourished, Galanter says in the study. There were 1.1 million lawyers in the nation in 2002, up from 617,320 in 1982.
"It seems curious, then, to find a contrary pattern in one central legal phenomenon, indeed one that lies at the very heart of our image of our system -- trials," he added.
Alternative dispute resolution is taking many cases out of the courtroom, said Joe Genshlea, a Sacramento, Calif., litigator. "There's been a much bigger effort in the last 20 years to settle cases," he said. Not early on, however. "Most still settle on the courthouse steps," he said.
Links to this post:
Extravagance
From Keith Burgess-Jackson: Count me among those who object to the extravagance of the presidential inauguration. I don't care whether the money comes from private sources.
This is my government. Celebrations should be kept to a minimum. If the Bush family wants to expend its resources on a private party in Kennebunkport or Crawford, so be it; but keep the government out of it. I'm not saying that the money should be used for other purposes (such as tsunami relief). Nor am I concerned (much) about the awkward symbolism of celebrating while American soldiers are dying in Iraq. I'm an Epicurean. I value frugality in my own life and in my government.
I concur. rlg
Links to this post:
Allstate Ins. Co. - doing well financially
Per Allstate's 2003 annual report:
$24,677,000,000 in premiums (property-liability only)
$17,432,000,000 paid out or held in reserves for claims for these premiums
collected. In the same year, the reported
$3.85 net revenue per share with 703,500,000 outstanding shares =
$2,708,475,000 dividends paid to shareholders if my math is right
Some insurance crisis.
Allstate's 2003 annual report is available at
allstate.com. The profits
were nearly double in 2003 than in 2002 and 2001.
Links to this post:
POSNER ON TORT REFORM
There is a movement afoot, assisted by the strengthening of Republican control over Congress, to impose federal limits on tort litigation, particularly medical malpractice; premiums for malpractice insurance have soared in the last two years and physicians are protesting vigorously. The costs of malpractice premiums are only about 1 percent of total U.S. health-care costs. Moreover, insofar as physicians are forced to swallow the cost of the premiums rather than being able to pass them on to their patients or their patients insurers in the form of higher prices, the premiums do not actually increase total health-care costs. There is an indirect effect, however, insofar as malpractice liability causes doctors to practice defensive medicine. But there may be offsetting benefits, to the extent that defensive medicine actually improves outcomes for patients; and surely it does for at least some. What is more, because malpractice insurance is not experience-rated physicians are not charged premiums based on their personal liability experience malpractice liability may have only a slight effect on physicians' methods or carefulness, except insofar as physicians are pressured by their insurers to change their methods in order to reduce the amount of malpractice litigation. The relation between malpractice premiums and malpractice judgments is also uncertain. No doubt capping judgments, which is the principal reform that is advocated, has some tendency to reduce premiums, but perhaps not much, because there is evidence that premiums are strongly influenced by the performance of the insurance companies' investment portfolios. A better reform would be to permit, encourage, or even require insurance companies to base malpractice premiums on the experience of the insured physician, much as automobile liability insurance is based on the drivers experience of accidents. That would make malpractice liability a better engine for deterring malpracticewhich in turn would reduce malpractice premiums by reducing the amount of malpractice. Capping judgments, in contrast, would reduce the incentive of insurance companies and their regulators to move to a system of experience-rated malpractice insurance. It is always important to distinguish between financial and real costs. Insofar as malpractice liability merely transfers wealth from physicians to (some) patients, aggregate costs are unaffected. The real cost of malpractice liability is limited to the cost of the actual resources consumed by such liability, principally the time of lawyers and expert witnesses (roughly half the total amount awarded in judgments goes to pay lawyers and expert witnesses), unless defensive medicine is assumed to cost more than its benefits in improving treatment outcomes. The real benefit of malpractice liability is its effect if any in deterring medical negligence; reducing that benefit would impose a real cost. Hence it is simplistic to assume that the total annual malpractice premiums paid is a good index of the net social cost of malpractice liability, or that measures to reduce those premiums by capping malpractice liability would result in a net improvement in welfare. To repeat, part of the premiums represent simply a wealth transfer from physicians to the patients who receive malpractice judgments or settlements paid by insurers. The part (roughly half) that pays for lawyers and expert witnesses should be understood as the cost of maintaining a system for increasing medical safety; the efficacy of the system could be improved, I have argued, by experience rating, but not by capping judgments. In any event, there is no compelling case for federal limitations on malpractice liability. The issue belongs at the state level, and as reported in a New York Times article last Friday, a number of states have adopted or are seriously considering adopting the kind of caps being advocated in Congress. Federal legislation would simply stifle state experimentation with different methods of regulating physicians and prevent us from learning which is best. There is a stronger case for federal regulation of class actions, as in the case of suits against asbestos manufacturers. When the members of a plaintiff class are scattered across the country, the class lawyer has a wide range of places in which to sue, and there are certain counties in the United States in which judges and juries are disproportionately generous to tort plaintiffs. Most of the costs of a large judgment or settlement in such a case are exported to other states, while the benefits are concentrated in the locale where the suit was litigated, because of the business generated for local lawyers, as well as the judgments or settlements received by the members of the class in the locale. This is a formula for abuse, concretely for a tendency for such judgments and settlements to exceed an unbiased estimate of the true costs imposed on the class by the defendants misconduct. Malpractice litigation does not give rise to such an abuse to any very great extent, because patient and physician are usually in the same state, and a single plaintiff has only a limited choice of courts in which to sue. This is another reason not to make medical malpractice the principal object of federal tort reform. We should be cautious about tort reform. It would be unfortunate if interest-group politics, and anecdotes concerning outlandish lawsuits (such as the suit against McDonald's by the customer who spilled hot coffee in her lap), were allowed to obscure the difficult policy issues. |
|
Links to this post:
Lawson - Ohio Supreme Court's Gift to the Insurance Industry
NOVEMBER 2004
NOT AGAINST PUBLIC POLICY TO WRITE OUT MADE WHOLE DOCTRINE IN OHIO
By a 4-3 decision, the Ohio Supreme Court has held that it does not violate public policy for a provider of health benefits to enforce a clear and unambiguous reimbursement provision against an insured, regardless of whether the insured was made whole. See Northern Buckeye Education Council Grp. Health Benefits Plan v. Lawson (2004) 103 Ohio St. 3d 188.
In Lawson, the Northern Buckeye benefit plan paid $85,945.37 in medical expenses related to a motor vehicle accident after Lawson signed a separate subrogation and reimbursement agreement. After recovering $100,000.00 from the tortfeasor's carrier and $150,000.00 from her own underinsured motorist carrier, Lawson refused to reimburse the plan arguing that she was not made whole by her recovery. The Ohio Supreme Court followed Federal Court precedent out of the Sixth Circuit Court of Appeals and held that a reimbursement provision that establishes both (1) that the insurer has a right to recover when there is a full or partial recovery and (2) that the insurer has priority over its insured, is an unambiguous and enforceable contract.
In doing so, the Court maintained Ohio's long held precedent of enforcing contracts as they are written, but ignored all case law on "adhesion contracts."
"Cases of contractual interpretation should not be decided on the basis of what is just or equitable. This concept is applicable even where a party has made a bad bargain, contracted away all his rights, and has been left in the position of doing the work while another may benefit from the work." Lawson, 103 Ohio St. 3d 188.
It remains to be seen whether courts will enforce reimbursement provisions which are not identical or strikingly similar to the language used in the Lawson benefit plan. Many health and accident plans had already amended their language to ensure that it was unambiguous based upon prior decisions out of the Federal Courts. Property and Casualty carriers will undoubtedly review the subrogation and reimbursement provisions in their policies (i.e. medical payments coverage) or separate subrogation and reimbursement agreements to ensure that they are unambiguous and enforceable.
This all begs the question -- these contracts are not"negotiated" -- they are "adhesion" contracts, that is, the insurance company says "take it or leave it".
Links to this post:
Hazelwood Award nominee:
McDonald's sues 'slow food' critic
McDonald's has labelled as "defamatory and offensive" an influential Italian
food critic, who poured scorn on the quality of the fast-food giant's
cuisine.
The corporation has sued Edoardo Raspelli, a critic and commentator for the
Italian newspaper La Stampa, after he compared its burgers to rubber and its
fries to cardboard, in an article last year.
McDonald's is seeking undisclosed damages, possibly as much as the 21m euros
(£15m; $25m) it spent on advertising in Italy last year.
Mr Raspelli has refused to back down, telling La Stampa earlier this week
that he found fast food "repellent".
"I defamed hamburgers... but I have not insulted anyone," he said.
Fast and slow
The case has aroused enormous interest in Italy, where a powerful
"slow-food" movement has emerged in recent years, dedicated to preserving a
respect for traditional culinary values.
Mr Raspelli said he had received hundreds of e-mails of support.
McDonald's is, however, hugely popular in the country, feeding 600,000
Italians each day in its 300 local restaurants.
The chain has made huge efforts to persuade customers of the quality of its
offerings, and uses many local products.
The court case is proceeding slowly - the judge this week asked Mr Raspelli
and McDonald's to seek ways to mend their differences.
"We trust this matter can be resolved out of court and in an amicable way,"
spokesman Mike Love said.
Story from BBC NEWS:
http://news.bbc.co.uk/go/pr/fr/-/1/hi/business/2951486.stm
Published: 2003/05/30 19:06:31 GMT
Links to this post:
Dr. David Vinson, Jr. From the May 21, 2003 Columbus Dispatch Section 01E:
An Ohio doctor accused of a trail of botched and unneeded surgeries,
including an elective procedure on an 86-year-old woman who subsequently
died, could permanently lose his license. The woman had heart trouble and
was not in good shape for surgery, but Vinson went ahead with an elective
surgery designed to alleviate chronic constipation, according to the report.
After surgery, Vinson wrote that the patient was awake and in satifactory
condition, according to medical records. But according to nurses, she never
awoke and was transferred to intesiveive care, where she subsequently died.
Other mistakes include:
-Leaving a 10 inch by 8 inch plastic retractor inside a 65 year old man
- injuring both ureters and the bladder of a 35 year old worman during a
hysterectomy
- removing too much of a 60 year old man's duedenum
- removing a 20 year old woman's appendix when the real problem was a kidney
stone
- unnecessarily removing the gallbladder of a 76 year old woman, who
suffered post operative complications
- improperly removing a 70 year old man's gallbladder and spleen when the
real problem was Chrohn's disease
- inserting a catheter in the wrong place on a 37 year old mastectomy
patient
According to the Dispatch, June 12, 2003, 07C, the medical board permanently
banned him.
Links to this post:
Nominee for Hazelwood Award
Another nomination for the Hazelwood Awards:
Dr. David Vinson, Jr.
From the May 21, 2003 Columbus Dispatch Section 01E:
An Ohio doctor accused of a trail of botched and unneeded surgeries, including an elective procedure on an 86-year-old woman who subsequently died, could permanently lose his license. The woman had heart trouble and was not in good shape for surgery, but Vinson went ahead with an elective surgery designed to alleviate chronic constipation, according to the report. After surgery, Vinson wrote that the patient was awake and in satifactory condition, according to medical records. But according to nurses, she never awoke and was transferred to intesiveive care, where she subsequently died.
Other mistakes include:
-Leaving a 10 inch by 8 inch plastic retractor inside a 65 year old man
- injuring both ureters and the bladder of a 35 year old worman during a hysterectomy
- removing too much of a 60 year old man's duedenum
- removing a 20 year old woman's appendix when the real problem was a kidney stone
- unnecessarily removing the gallbladder of a 76 year old woman, who suffered post operative complications
- improperly removing a 70 year old man's gallbladder and spleen when the real problem was Chrohn's disease
- inserting a catheter in the wrong place on a 37 year old mastectomy patient
According to the Dispatch, June 12, 2003, 07C, the medical board permanently banned him.
Links to this post:
Insurance Industry TV Ad Budgets
According to the January 8, 2005 Columbus Dispatch, the
biggest 5 TV insurance ad budgets in 2004 were:
GEICO $205,400,000.00
Progressive $169,900,000.00
Allstate $144,800,000.00
State Farm $105,000,000.00
AFLAC $ 53,700,000.00
TOTAL OF TOP 5 TV BUDGETS FOR 2004:
$678,800,000***
The Dispatch also reports that
Nationwide will spend about
$100,000,000.00 (give or take) in 2005 on
marketing (not just TV).
Links to this post:
Hazelwood Award nominee:
McDonald's sues 'slow food' critic
McDonald's has labelled as "defamatory and offensive" an influential Italian
food critic, who poured scorn on the quality of the fast-food giant's
cuisine.
The corporation has sued Edoardo Raspelli, a critic and commentator for the
Italian newspaper La Stampa, after he compared its burgers to rubber and its
fries to cardboard, in an article last year.
McDonald's is seeking undisclosed damages, possibly as much as the 21m euros
(£15m; $25m) it spent on advertising in Italy last year.
Mr Raspelli has refused to back down, telling La Stampa earlier this week
that he found fast food "repellent".
"I defamed hamburgers... but I have not insulted anyone," he said.
Fast and slow
The case has aroused enormous interest in Italy, where a powerful
"slow-food" movement has emerged in recent years, dedicated to preserving a
respect for traditional culinary values.
Mr Raspelli said he had received hundreds of e-mails of support.
McDonald's is, however, hugely popular in the country, feeding 600,000
Italians each day in its 300 local restaurants.
The chain has made huge efforts to persuade customers of the quality of its
offerings, and uses many local products.
The court case is proceeding slowly - the judge this week asked Mr Raspelli
and McDonald's to seek ways to mend their differences.
"We trust this matter can be resolved out of court and in an amicable way,"
spokesman Mike Love said.
Links to this post:
Being sick to death of the Stella Awards and the recent list of most absurd product warnings, The Okey Law Firm is accepting nominations for the first annual Hazelwood Awards, named in honor of Joseph Hazelwood, renowned captain of the Exxon Valdez. The awards will be given for stunning achievements in negligence, malfeasance, and endangering others.
The first nominee:
Barberton Citizens Hospital, who blinded seven people  in one day!  by using the wrong eyewash during routine cataract surgery. (The hospital was fined a whopping $3,000 by the Ohio State Board of Pharmacy.)
Links to this post:
January 5, 2005 - NY TIMES
Panel Seeks Better Disciplining of Doctors
By ROBERT PEAR
WASHINGTON, Jan. 4 - Experts retained by the Bush administration said on Tuesday that more effective disciplining of incompetent doctors could significantly alleviate the problem of medical malpractice litigation.
As President Bush prepared to head to Illinois on Wednesday to campaign for limits on malpractice lawsuits, the experts said that states should first identify those doctors most likely to make mistakes that injure patients and lead to lawsuits.
The administration recently commissioned a study by the University of Iowa and the Urban Institute to help state boards of medical examiners in disciplining doctors.
"There's a need to protect the public from substandard performance by physicians," said Josephine Gittler, a law professor at Iowa who supervised part of the study. "If you had more aggressive policing of incompetent physicians and more effective disciplining of doctors who engage in substandard practice, that could decrease the type of negligence that leads to malpractice suits."
Randall R. Bovbjerg, a researcher at the Urban Institute, said, "If you take the worst performers out of practice, that will have an impact" on malpractice litigation. "Most doctors have few or no claims filed against them," he added. "But within any specialty, a few doctors have a high proportion of the claims."
The focus on doctor discipline is noteworthy because Mr. Bush, in numerous speeches, has sided with doctors against plaintiffs' lawyers.
Mr. Bovbjerg said several factors appeared to work against medical boards. The boards usually have small budgets and small numbers of employees to cope with thousands of complaints each year, he said. Moreover, he said, revoking an incompetent doctor's license can take months or years and cost a great deal, especially if the case goes to a full hearing before a board of examiners.
State medical boards took 5,230 disciplinary actions against doctors in 2003, according to the Federation of State Medical Boards, the national umbrella group for the state agencies. The total was up 7 percent from 2002 and up 41 percent from 1993.
Timothy S. Jost, a law professor at Washington and Lee University and a former member of the Ohio State Medical Board, said: "It is extraordinarily difficult to discipline a doctor based on incompetence. Everybody knows that some doctors are incompetent, but identifying them is a very difficult task."
Massachusetts has adopted an approach that experts say may provide a model for other states. Without waiting for a complaint to be filed, the Massachusetts Board of Registration in Medicine conducts a clinical review of any doctor who has made three or more malpractice payments to patients as a result of jury verdicts or settlements.
Nancy Achin Audesse, executive director of the board, said: "Three is a magic number. Doctors who have to make three or more payments are also more likely to be named in consumer complaints and to be subject to discipline by hospitals and the medical board."
In Massachusetts in the last 10 years, Ms. Audesse said, "one-fourth of 1 percent of all the doctors - 98 of the 37,369 doctors - accounted for more than 13 percent of all the malpractice payments, $134 million of the $1 billion in total payments."
On Wednesday, President Bush is to take his campaign to Collinsville, in southwestern Illinois. The city is in Madison County, where business groups say judges often favor plaintiffs in personal injury suits.
In December, the American Tort Reform Association, a coalition of business and professional groups that want to limit personal injury suits, called Madison County the nation's No. 1 "judicial hellhole."
Laws governing malpractice cases have historically been controlled by the states. But Scott McClellan, the White House press secretary, said Tuesday, "It's a national problem that requires a national solution."
Mr. McClellan asserted that "unlimited and unpredictable liability awards raise the cost of health care for all Americans through higher premiums for their health insurance." And rising costs of malpractice insurance have forced some doctors to "close up shop," he said.
But Representative Jan Schakowsky, Democrat of Illinois, said: "President Bush is offering a solution that is irrelevant to the problem. The insurance industry has repeatedly refused to say that it will lower rates even if caps are imposed."
The House has passed several bills that would set a $250,000 limit on payments for noneconomic damages like pain and suffering, but the measures have died in the Senate. White House officials said they hoped such legislation would sail through Congress this year because Republicans gained seats in the Senate.
Dr. James N. Thompson, president of the Federation of State Medical Boards, said that most disciplinary actions had been taken because of criminal conduct, drug or alcohol abuse, sexual misconduct or other unprofessional behavior.
"But increasingly," Dr. Thompson said, "state boards are taking disciplinary action because of issues involving the quality of care. They are trying to identify doctors who provide marginal or substandard care, before the doctors put more patients at risk."
Links to this post:
Vioxx data publication OK'd 07:45 PM CST on Monday, January 3, 2005
Associated Press
WASHINGTON Â The Food and Drug Administration has given a whistle-blower scientist permission to publish data indicating that as many as 139,000 people had heart attacks that could be linked to Vioxx, the scientist's lawyer said Monday.
Dr. David Graham, who works in the FDA's drug safety office, has said he was not allowed to publish his data questioning the safety of Vioxx, a pain medication principally used for osteoarthritis.
Manufacturer Merck voluntarily pulled Vioxx from the market in late September.
Dr. Graham testified in November before a Senate committee that the FDA fumbled in its handling of safety concerns around Vioxx. He contended that the FDA has an inherent conflict of interest that triggers "denial, rejection and heat" when product safety questions emerge.
The FDA denies the allegations, and controversy over the agency's role continues.
The FDA told Dr. Graham on Monday that he could publish his research, which shows that 88,000 to 139,000 people have had heart attacks that could be linked to Vioxx, with 30 percent to 40 percent of them fatal, said his attorney, Tom Devine.
The report will be resubmitted to the Lancet, a British medical journal, Mr. Devine said. Lancet editor Richard Horton has been sharply critical of the FDA as well.
Dr. Graham could not be reached for comment.
Links to this post:
