TOV Injury and Safety Blog

Risks and dangers inherent in the Notice of Intent

A recent split decision by the Court of Appeals demonstrates the risks inherent in drafting a Notice of Intent.

Dentists object to practice by dental therapists

In previous blog entries we have reported on the shortage of dentists in the U.S. and the decline in dental care as schools graduate fewer dentists and more dentists retire.  Despite this documented and increasing shortage, the documentation of declining dental health, and increasing income for dentists, dental advocacy groups and lobbyists continue to fight the licensing of dental therapists to provide more mundane dental services, particularly in rural areas.

Undiagnosed asthma patient loses her day in court

Catrina Gee's malpractice case, brought on behalf of her daughter against the  daughter's pediatrician, was dismissed despite the Defendant's expert's acknowledgement that the doctor didn't comply with the standard of care.

When does a consultant become "your" doctor?

In Bacon v. Martin, et al., the Court of Appeals was forced to address this question and not for the first time.  It concluded that no doctor-patient relationship was created by the entry of an order for consultation, followed by a telephone conference between physicians.

Is a malpractice victim's family limited to the evidence they had before they filed suit?

  Two separate panels of the Court of Appeals recently answered this question in the negative, in response to technical procedural motions by malpractice insurers, attempting to limit claims to the evidence that was known to the victim's family prior to discovery being undertaken.

Mayo Clinic provides optimal care, cheaply

  The recent publication of the latest edition of the Dartmouth Atlas of Health Care, (published by Dartmouth's Institute for Health Policy and Clinical Practice) compared the cost of health care at a number of top-notch institutions.  Medicare spending for patients in the last two years of life at the top five teaching hospitals in the country showed quite a variance:  from $93,000.00 per patient at UCLA  and $85,000.00 at Johns Hopkins, to $53,000.00 per patient at the Mayo Clinic. 

      Are residents of the east and west coast generally sicker than midwesterners?  Certainly the statistics on mortality and health care costs would not support that conclusion.  So what explains the difference?  First, the general cost of living in Baltimore and LA is higher than the cost of living in the Twin Cities; that probably plays a role.  But the cost of living isn't double: the study found that services were priced relatively similarly. 

     Rather, the difference is primarily a function of UCLA and Hopkins providing more services and more in-patient days.  Why does that occur if the patients are no "sicker"?  Physicians at UCLA and Hopkins are paid on a fee-for-service basis; Mayo physicians are salaried:  the incentives in the former institutions are all toward performing every possible service that can be justified.  The incentive at Mayo is to tailor services to the patient--and no one claims that Mayo provides second-rate service.

Effort to control "kickbacks" to doctors

  New Jersey's highly political U.S. Attorney, Christopher Christie, recently changed the focus of his investigation from the manufacturers of orthopaedic devices, to the doctors who are paid to endorse or install them.  His goal is to shed light on the significant "kickbacks" paid to some orthopaedic surgeons in return for using a particular company's product.

Hospital not responsible for anesthetist who assaulted patients during surgical procedures

  The Court of Appeals recently held that  no one else was responsible for damages when a certified registered nurse anesthetist (CRNA) sexually assaulted patients undergoing surgery.

The anesthesiologist left the room and an assistant burned your face? Not his fault.

Dr. Bruce Adelman was sued by the Estate of Minnise Holt, after his botched surgery left Holt with first- and second-degree burns involving his face and airway.  He died ten weeks later from complications including pneumonia.  Adelman had put the patient under and then left him under the management of a nurse-anesthetist (CRNA).  Oxygen was allowed to accumulate under a drape over the patient's face, and it burst into flames when it was sparked by a Bovie cauterizing device.

U.S. Supreme Court upholds legislation granting immunity to defective medical devices

  President Bush spent much of his two terms in office repaying favors to various industries that supported his election.  One of the most substantial contributors to his elections was the medical/pharmaceutical industry, and that industry has also been a major beneficiary of his largesse.  This week the Supreme Court upheld the legislation Bush's Administration sought and obtained, intended to immunize medical device manufacturers ifor injuries resulting from product defects, so long as the device had been approved by the FDA.  A similar new law, addressing drugs approved by the FDA, will be before the Court soon.

Management of bedsores or "pressure ulcers"

The New York Times reported on several recent studies that have addressed the severe health problem presented by bedsores in hospitals and nursing homes.  If such a sore becomes infected, it can be fatal.  Even without infection, these wounds can can be so deep and sore that the patinent must be treated with narcotic pain relievers.

The gender of your surgeon may affect your care?

In a somewhat surprising study published out of Columbia University, researchers attempted to assess why one in four women being treated for breast cancer do not receive radiation therapy after a lumpectomy.  The researchers noted that such therapy is consistent with the standard of care, but still neglected too often.  They identified four factors that contributed, statistically, to a women over 65 not receiving radiation:  the oldest subjects were less likely to be radiated, black women were less likely, unmarried women were less likely to receive this therapy and women outside urban areas were less likely to receive the treatment.  After controlling for these factors, however, the researchers identiifed an additional, surprising factor.  Women treated by women surgeons were more likely to receive radiation therapy than were women treated by male surgeons.  Perhaps there is an issue of communication or of empathy which negatively influences treatment decisions; regardless, it is unfortunate and should be addressed.

You may read the Ney York Times blog article Well: The sex of your surgeon may matter here.

Low back pain: Controversy over back surgery and Prodisc

The January 30 issue of the New York Times included a lengthy critique of the conflict of interest that has been uncovered with the artificial spinal disc "Prodisc".  The artificial disc sells for about $10,000.00 and has generated significant profits for its manufacturers and investors, even though Medicare and many private insurers will not pay for its use or the expensive surgery to install it.

The Times reported that it has recently come to light that the medical researcher/doctors who endorsed the Prodisc and who were involved in the study that purportedly demonstrated its effectiveness were also investors in the product.  Thus, there is substantial question whether they were neutral, objective researchers with regard to the effectiveness of the surgical installation or the analysis of the resulting data.

More on Michigan malpractice "reform" and rate increases

In recent years, knowledgeable critics have criticized Michigan malpractice insurers  for failing to reduce their liability rates in response to the draconian "reforms" of the late 80s which significantly eroded consumer rights and victims' rights.  Apparently in response to these criticisms, one Michigan insurer attempted to achieve maximum public relations value out of its recent decision to drop 2008 rates by about six percent.  American Physicians Insurance Corporation, the malpractice insurer with the largest share of the Michigan market (about 30 percent) announced a rate cut of 6.5 percent. 

Delays in the Emergency Room

  If you have health insurance and were inclined to consider yourself protected from the problems facing the increasing proportion of uninsured Americans, consider this.  A recent study undertaken through Harvard Medical School documented that the delay in obtaining treatment through an Emergency Room has increased substantially from 1997 to 2004.  Regardless of insurance status, the average wait for all patients increased from 22 minutes in 1997 to 30 minutes in 2004.  The interim for the sickest heart patients increased from 8 minutes in '97 to 20 minutes, on average.  One-quarter of those patients waited 50 minutes or more, at a time when their triage diagnosis indicated that every minute of delay could be fatal or cause permanent harm.

Breast implants and infection

Infection is a frequent basis for malpractice complaints. Unfortunately, many hospital-acquired infections are not evidence of sub-standard treatment: these "nosocomial" infections can occur without negligence and are a significant risk for all patients.  All-in-all, it is not a healthy thing to gather many sick people under the same roof, penetrate their protective skin on a regular basis, and circulate treaters among them:  if we could provide "isolated" care to everyone, infections would be less of a problem.

Nevertheless, as described elsewhere in this blog, effective steps can be taken to minimize the risk of infection, and the Johns Hopkins Checklist emphasizing simple hand-washing demonstrated very encouraging results.

A recent study reported in the Archives of Surgery documented an additional perspective on operative infection.  In a St. Louis hospital, 50 of 949 patients receiving breast reconstruction suffered an infection at the site within one year.  The infection occured with twice the prevalence among women whose reconstruction included surgical implants.  No one offered an explanation for this discrepancy, but it certainly suggests that the introduction of even a sterile foreign body may increase the likelihood of infection.  Or, then again, maybe the utilization of one additional foreign body simply increases the potential for contamination.

Problems in rural medicine

  Rural and especially rural, poor communities in the United States have always been under-served by medical professionals.  Physicians cannot earn the living in rural areas that they can earn in urban areas, and practicing a specialty in urban areas has always been more lucrative than practicing general medicine.  This problem is compounded by the high cost of higher education:  a physician who graduates with substantial debt has even less flexbility regarding where he will commence practice.

  As a result, many small towns either no longer have a hospital, or their hospital is staffed in a manner that would not be considered "standard of care" in larger metropolitan areas.  Emergency Rooms may frequently be staffed by physician assistants rather than medical specialists, and doctors have to address and manage a wider variety of medical problems.  A consultant  may not be available in sub-specialty areas and expensive testing resources (such as CT scans or MRIs) may not be readily available.

  The New York Times reported last week that this problem of under-served rural areas is becoming more acute, nationwide, and that the Governor of New York was recommending a higher Medicare payout for rural doctors to help address the problem.  Other proposals have included the creation of a medical "peace corps" system providing two years of low-cost service by young doctor volunteers, and a grant system to support it.

  In our experience, rural northern Michigan residents fully understand that they cannot expect the same quality of care that would be provided in metropolitan areas.  A u.p. juror once told us, after a mediocre trial outcome, that "If it weren't for poor medical care, we wouldn't have any."

 

Rejecting the life saving checklist

    Last year Johns Hopkins University published a report on a program that installed a simple five-step checklist in every ICU in Michigan.  The checklist was an attempt to protect against infection, and it reminded doctors to do simple things like wash their hands thoroughly between patients, or to don sterile gloves and gown before inserting an IV.  Past medical studies have identified a profound problem with basic sterility practices that has caused thousands of unnecessary hospital deaths.

     The Hopkins' study generated remarkable results:  within three months the rate of bloodstream infections from IV lines droppe by two-thirds.  The average ICU cut its infection rate from 4 percent to zero.  It is estimated that during the 18 months of its existence, the program saved more thatn 1500 lives and nearly 200 million dollars in medical treatment expense. 

   The Federal Office for Human Research Protection recently shut the Michigan program down, claiming that by introducing the checklist and tracking the results without patient and caregiver written consent, the study was unethical.  Hopkins was unable to duplicate the Michigan program in New Jersey and Rhode Island, as had been planned.  As medical ethicist and writer Atul Gawande noted, the federal government's decision threatens to improperly elevate theoretical scientific ethics above actual ethical medical care requirements.

Hospital response to cardiac arrest

    A recent study involving more than 6500 patients at 369 hospitals showed that many lives could be saved if all hospitals responded appropriately to a patient's heart-stoppage.  Frequently, such a stoppage can be addressed through the immediate application of electical shock with a defibrillator.  Widely available in many environments, defibrillators can restore normal cardiac electric function immediately and if the underlying systemic condition is then addressed, the patient can survive the incident.  Hospitals call responding to this kind of an incident a "Code Blue" and they have protocols for rapid response with a properly-stocked "crash cart" and trained personnel.

   The New England Journal of Medicine found a widely divergent outcome in "shockable" abnormalities in heart rhythm.  According to the authors, the electric shock needs to be administered within two minutes to be effective.  They found, unfortunately, that in thirty percent of all cases, the shock could not be administered that quickly.

     While 39.3 percent of shockable patients survive to be discharged if they are defibrillated in a timely manner [within two minutes], only 22 percent survive if the shock is delayed.   Such delays are most likely to occur if the abnormality occurs at night or on the weekend, if it occurs in a hospital with fewer than 250 beds  or in a unit without cardiac monitors, or if it happens to a patient who was not admitted for an identified cardiac problem.  The authors noted that since the study involved patients from hospitals who had agreed to a national registry for cardiac arrest, it is likely that the results reported are better than the actual average accross the country.  Since these hospitals were already attempting to meet a higher standard in cardiac care, it is likely that they address cardiac incidents better than the average hospital which is not participating in the national registry.

      The authors point out that betwen 370,000 and 750,000 hospital patients suffer cardiac arrest and are resuscitated each year.  Between one-third and one-half are caused by arrhythmias that could be successfully treated with electric shock.  Thus, the study suggests that more than 30,000 theoretically "preventable" deaths occur each year to hospitalized patients.

Survey from Massachusetts General confirms doctors' reluctance to police profession

   A recent survey from Mass General, one of the nation's most respected health institutions, shed some light on a topic that people in the legal and medical professions already understood:  Doctors don't wish to police their own profession.  The survey was published in the Annals of Internal Medicine.

   The researchers reported a "disturbing reluctance" to report incompetent doctors or serious mistakes.  While the vast majority of 1600 doctors who were consulted acknowledged that they owe a duty to report such matters, nearly half who had directly encountered such situations in the past three years confirmed that they had not made any report.  Our society is replete with situations where co-workers and companions refuse to "rat out" their peers, and doctors are no exception. 

       Sadly, in liability situations where a victim cannot have a "day in court" without a comparable expert's support, this reluctance can mean some tragedies are uncompensated and other victims must rely upon "professional witnesses" with diminshed credibility.  A decade-old Harvard study confirmed that about 7 out of 8 malpractice events are never even recognized by the victim or his family--or if recognized, no claim is made.

      Other disturbing findings included the fact that a large majority of physicians reported that they would refer patients to an imaging facility in which they had invested--a practice considered unethical in the legal profession due to the potential conflict of interest--and one-quarter of respondents said they would not disclose their financial conflict of interest to patients.  That, also, would be considered an ethical violation among lawyers.

Activist Supreme Court majority overturns its own decision

   In the year 2000, the Michigan Supreme Court addressed the statute of limitations involving malpractice and wrongful death, in the context of the new requirement to provide Notice of Intent to Sue.  The Court held in the Omelenchuk case that if the Personal Representative of an Estate filed a Notice of Intent to Sue within the statutory time limit, the Notice would "toll" (or delay) the expiration of the statute of limitations for the six-month time period after the Notice was given, (and during which suit cannot be filed).  The alternative, as a practical matter, was to conclude that adoption of the Notice of Intent and six-month waiting period by the Legislature resulted in the inadvertent reduction of the statute of limitations by the duration of the six-month waiting period.

      Less than four years later, after Governor Engler had stuffed the Court with his arch-conservative appointees, the Supreme Court chose to reconsider this issue, and overturned the Omelenchuk decision in Waltz v. Wyse.  This kind of abrupt reversal of precedent is precisely what most people consider to be inappropriate "judicial activism".    The conservative majority of the Court then summarily suggested in two later opinions that the Waltz decision overruling Omelenchuk should be applied with full retroactivity--in other words, to cases that had applied the Omelenchuk analysis and relied upon it to delay filing:  if practitioners had [wrongly] assumed that the Supreme Court's holding was law and hadn't anticipated an activist court re-considering and re-writing the law four years later, their clients would be punished for their lawyer's lack of prescience.

        Several Court of Appeals Judges, particularly including the veteran practitioner Peter D. O'Connell, refused to accept this unjust interpretation and wrote opinions in which they refused to countenance full retroactivity and punishment of clients whose attorneys had reasonably relied upon "settled law".  The intellectual acuity and courage of these Court of Appeals' judges was rewarded this week when the unanimous Supreme Court recognized that applying the change in the law retroactively contradicted Michigan jurisprudence.  While this latest decision will rescue about fifty claimants from an unfair outcome, many litigants whose cases were rejected in the interim will not regain a "day in court".  The decisions in their cases are either too stale to re-open or they gave up on the work and expense of what appeared to be a hopeless appeal.

Rating physicians

     The State of New York has been active in the analysis of rating systems for doctors.  Many insurers do actively rate physicians, however, the ratings are often based not on national standards or measures of effectiveness, but rather on how well the control expenses.  In other words, the insurer's highest-ranked doctors are, unbeknownst to consumers, simply the cheapest.

      New York Attorney General Andrew Cuomo has reached agreement with a number of insurers, requiring them to disclose publicly the basis of their rating system and to include factors other than cost.  This approach has been endorsed by a number of consumer groups and medical organizations.  Neither approach would include a clearinghouse for malpractice claims or disciplinary actions which are frequently a matter of confidential hospital privileging or peer review:  neither publicly reportable nor admissible in court. 

        Unfortunately, many states (including Michigan) have virtually avoided the topic of physician rating or reporting, altogether.   Doctors and patients deserve a reporting system that is accurate and inclusive.   Certainly consumers should not be misled by an insurance-based system that considers only cost.

More information on the safety of drug-coated stents

        The November 12 issue of the New York Times reported that the medical and pharmaceutical industries are re-examining the issue of drug-coated stents.  These stents had been in widespread use over the past decade as a means of reducing the likelihood of re-clotting at the location of a stent used to preserve the integrity of coronary arteries.  Over the past 18 months, research had suggested, however, that drug-coated stents presented a new hazard of later-developing clots.  As a result, there was a dramatic reduction in the use of drug-coated stents, with the NYT suggesting that the sale of these stents dropped from 6 billion to 5 billion dollars over the last year.   Very sick patients opted for open-heart surgery as an alternative, while other coronary artery disease patients chose bare metal stents or chemotherapy alone.   Patients treated with drug-coated stents were placed on a longer regimen of anti-clotting medications as a precaution.

        Newer studies have demonstrated that the issue is not as simple as originally thought, however.  Some studies have suggested that perhaps the original studies identifying the risk of clotting may be skewed because drug-coated stents were used in sicker patients.  Another study of 17,000 patients suggests that the survival of drug-coated stent patients is better, long-term, than the survival of bare-metal stent patients.  Other physicians point to the  risks and complications of open-heart surgery that must be weighed against the risk of late-developing clots.  It will probably require several years of experience and more subtle investigation to tease out the "truth" about drug-coated stents.  In the meantime, this is an issue that should be examined carefully by every patient and his or her physicians.

Cancer death rates

  The American Cancer Society recently announced data that showed a continuing decrease in cancer deaths in the United States.    Death rates have been dropping, on average, by more than one percent per year since 1993, and by two percent the past few years, according to researchers.  In the U.S., one percent means 5,000 lives saved.  Researchers attributed the improvement in survival to mundane improvements in prevention, early detection and treatment and pointed in particular to decreased smoking and increased use of screening tests such as mammograms and colonscopies.  Unfortunately, the data also shows that poverty, lower education levels, lack of insurance or access to medical care have resulted in higher cancer rates for some insular groups, including Native Americans.

        Cancer remains the second-leading cause of death in the U.S., after heart disease.   A 2002 study that linked breast cancer to the use of hormone therapy after menopause and resulted in a significant reduction in hormone therapy is considered to have resulted in a signficant reduction in the incidence of breast cancer.  Lung, liver and esophageal cancers are still occurring at a higher rate than previously, among select populations.

        The spokespersons commenting on the data emphasized the impact of available health insurance in the fight against cancer.  The one most common denominator separating good outcomes from bad outcomes appears to be the availability and affordability of standard screening methods.

Recall of defibrillator leads

  Once again, the activism of Dr. Robert G. Hauser, a cardiologist at the Minneapolis Heart Institute, has improved safety for cardiac patients worldwide.  Dr. Hauser published an analysis earlier this year that suggested problems with the leads in Medtronic defibrillators, and unnecessary, painful firings of the defibrillator.  Dr. Hauser's research had previously resulted in the recall of malfunctioning defibrillators manufactured by Guidant Corp.  Dr. Hauser brought his findings to Medtronic's attention earlier this year, but was told that there was insufficient data to support a recall or reach any conclusion.  Data from other clinical trials has since corroborated Hauser's concerns and resulted in the decision to halt sales.

        It turns out that the small wire leads on Medtronic defibrillators were showing a pattern of stress failures that had already resulted in five documented deaths by the time Dr. Hauser's research was published.  Medtronic has now begun urging doctors to use a different, larger implanted lead and indicated a willingness to pay a limited amount ($800.00) to re-implant fractured leads in uninsured patients.  Medtronic is unwilling to voluntarily replace defective leads which have not yet fractured, however.

        Approximately a quarter million patients have the small diameter "Fidelis" lead implanted, and Medtronic estimates that 4 to 5 thousand of these patients will experience a lead fracture in the next 30 months.   It is far more dangerous to replace these leads than it is to replace a defibrillator.  The leads Medtronic was using prior to 2004 are larger in diameter and have not demonstrated a history of failure.  The two other manufacturers of defibrillators claim that they have not experienced similar difficulties, due to the use of different materials or larger diameter leads.

        According to FDA records, one patient death was linked to a lead failure in August of 2006.  Two additional deaths were identified in FDA records in January and March of 2007.  A Medtronic spokesman confirmed that it had identified two additional deaths since March.

        While Medtronic acted more quickly than Guidant responded to similar problems several years ago, it still responded more slowly than it should have.  The defibrillator market is a six billion dollar business and each implant costs $30,000.00 or more.  Medtronic, with 12 billion dollars in sales in 2006, has 55 percent of the defibrillator market and according to the New York Times, the device is its "biggest" product.  Needless to say, it would delay an announcement that would disrupt its sales and upend its stock price for as long as possible.

        The New York Times quoted Dr. William Maisel, a heart device expert at Beth Israel Deaconess Medical Center in Boston, who pointed out that the general reluctance to stop sale of a lucrative device is compounded in the medical device field because manufacturers have not created monitoring methods of anticipating or recognizing potential failures and device manufacturers are consistently scrambling to "catch up" with safety developments.

        Thirty-five year old Stephanie Martinson, a speech pathologist in Palo Alto, California, puts a human face on this problem:  her Fidelis lead gave her 26 painful shocks in a single hour before the lead was removed in March of this year.  It was replaced, with another Fidelis lead, unfortunately, in May of 2007.  This was almost a year after the first FDA-recognized death, two months after Medtronic sent a warning notice to doctors, but four months before the product was recalled.  Sleep well with your new lead in place, Stephanie.

Health Insurance Reform and malpractice reform

     Former Republican Secretary of the Treasury and commentator Paul O'Neill raised issues related to national health coverage in his column of October 16, 2007.  Acknowledging the need for uniform health coverage and the inevitability of moving away from employer-based coverage, O'Neill still endorsed the intermediary role of insurers.  O'Neill did offer a new idea or two, however, when he acknowledged that too many medical errors are "buried" with the patients, resulting in a failure to recognize and address common sources of malpractice.  Of course, O'Neill blames "fear of malpractice suits" for this secrecy and suggests a remedy that involves the creation of a special administrative process that would reimburse victims or their families for economic damages, only.

        There are several assumptions in O'Neill's essay which deserve consideration, and several which disclose either a lack of sophistication or an inherent bias.  The first assumption is that no good can result from compensating victims or their families if the patient suffered no economic loss.  In our experience, the brittle elderly are less resilient and more likely to suffer death or catastrophic outcome as a result of a medical error.  If medical care providers are to learn from these errors, some value should be assigned to these patients' lives--even if the victim no longer earned an outside income.  This same philosophy applies with respect to housewives who don't have an income outside the home and to children.  And of course, there is the added question of justice--something that a Republican Treasury Secretary would likely be trying to quantify in dollar terms:  aren't these non-earning lives worth something and isn't their health and happiness of some value when it is taken by negligence?

        O'Neill's comments must also be considered in the context of the well-entrenched insurance lobby.  It is likely that no major party politician will bite that wealthy hand:  certainly not the element of the Republican party that is captured by "big business".  Insurers and arguments over insurance coverage result in a substantial administrative overlay of expense on top of medical care.  By some estimates, fully ten percent of all jobs in medical care are insurance-payment related.  Insurers can also be an influence to drive down prices--but perhaps in a manner that does not serve patients or medical providers.  No solution to America's health care expense crisis should assume that insurers have the primary role or that their influence is benign.

        Finally, should the victim's and the health care provider's right to a "jury of one's peers" be sacrificed to achieve universal coverage?  It is heresy for a trial lawyer to say this, but perhaps that suggestion deserves consideration.  Studies have documented that jurys are less willing to recognize malpractice than are medical experts:  it appears that victims and their families would be better served by a tribunal that is sophisticated in medical issues----provided it is a neutral and objective fact-finder.  Unfortunately, when these systems have been tried in the past, they have resulted in one of two outcomes:  in Ohio, where a fair system of binding arbitration was devised, medical providers quickly realized that it was more likely to hold a negligent provider accountable for mistakes and immediately sought legislative intervention to discard the system.  In Michigan, the system of binding arbitration that was devised in the 80s was so skewed in favor of health care providers that it hardly paid lip-service to due process for victims.

        It would be easier to consider insurers' and health care providers' pleas for "reform" if the first stage of "reform" did not always turn out to be a grab for greater insulation from even legitimate malpractice claims.  With respect to the issue of "burying mistakes", most states have bought into a system of "peer review" that encourages a bunker mentality among health care providers.  In Michigan, for example, when a mistake is identified or suspected, a conference or an investigation can be conducted, and the results of the investigation or conference will not be disclosed to the victim or his or her family.

        We sincerely question whether this process is fair to anyone and we doubt that it serves a legitimate public policy.  Overall, it is our assumption that truth and disclosure are always the best policy, and if some form of legitimate malpractice "reform" is necessary to achieve a more open policy, it is probably a worthy goal and the means may justify the end.

Cold remedies for infants and toddlers

   NPR reported yesterday that in response to pressure brought by a group of Pediatricians, several makers of infant and toddler cold medications were pulling the medications from the shelves.  The withdrawal was voluntary and included only medicines designed for children under the age of two.  The Pediatrician and consumer groups whose activism led to the withdrawal claimed that it did not go far enough and should have included all meds marketed to children under the age of six.  The physicians and consumers maintain that these drugs are not effective in children under the age of six and that they result in nearly 100,000 overdose hotline calls per year.  Manufacturers conceded that the drugs have not been tested in younger children and that accidental overdoses administered by parents (in the middle of a sleepless night) must be addressed.  The manufacturers deny that the drugs are dangerous on any other basis and continue to sell medications designed and marketed for "infants".  Between 1969 and 2006 there were more than one hundred confirmed deaths of children related to the administration of antihistamines or decongestants.

Third-world dental care in the U.S.

        When a child dies due to infection caused by decaying teeth, we tend to think we are talking about a third-world issue.  Not so, apparently.  THIS YEAR, children's deaths in Mississippi and Maryland were documented to have occurred as a result of tooth decay.  Thousands of children suffer illness and pain due to dental problems that are only miserable but not fatal. 

        While most middle and upper class children enjoy "straight white teeth as a virtual birthright", the New York Times reported the above deaths and the fact that untreated tooth decay has reached higher rates among children (27 percent) and adults (29 percent) than the U.S. has seen in decades.  100 million people in the U.S. (one-third of the population) lack dental coverage, most dentists won't take Medicaid patients, and the waiting list for care in state-supported institutions often reaches six months or more.

        The number of dentists in the U.S. has remained relative flat--150,000 to 160,000 (including part-timers who are more common today) since 1990, while the population has risen by 22 percent.  In 2004, the average income for dentists was $185,000.00, while oral surgeons and orthodontists reported average incomes of more than $300,000.00 annually.  Several dental schools have closed their doors, leading to fewer graduates in 2003 (4440) than there were in 1982 (5750), and an average age among practitioners of 49.  This is apparently because training dentists is expensive and there is no hospital training ground or "hands-on" resident finishing school for dentists.

        In most other first-world nations (50 to be precise), "dental therapists" have been trained to perform simple cavity treatment, however, in the U.S., the ADA has fought the licensing of this type of therapist, even in areas of Alaska that have never seen a real-live dentist.  The result is a decaying dental health system that is deadly for poor children but very lucrative for dentists.

Cold medicine for children under the age of six

Last week, safety experts urged the FDA to consider an outright ban on over-the-counter cough and cold medicines for children under the age of six.  Marketed under product names such as Toddler Dimetapp, Triaminic Infant and Little Colds, these medicines are reportedly of little effect in that age group, yet as many as 54 children have died in the past eight years after taking decongestants, and during the same period 69 children died after taking antihistamines.  The 300+ page report to the FDA points out that since these deaths are reported only on a voluntary basis, the actual death toll is probably significantly higher than the voluntary reports would suggest.

        An industry trade group that objects to the report from the FDA's scientists would limit the FDA to adding warning labels to pediatric cold medicines  advising against administering them to children under age two, in place of the current advisory to "consult a physician" before giving such medicines to infants:  despite this 150 page industry report--released on Friday, October 5, some companies such as Johnson & Johnson, continue to sell products labeled "infant" with labels depicting children under twenty-four months.

        The Centers for Disease Control and Prevention found that more than 1500 children under 24 months have suffered serious health problems associated with cold medicines in just the past three years.  In an article published on October 1, the New York Times reported that the Journal of the American Medical Association--one of medicine's most prestigious journals--demonstrated that more than one-third of all 3 year olds had received over-the-counter cough and cold medicines during a single 30 day period.    In 1990, American consumers spent almost $2 billion dollars on 30 separate brands marketed for kids--who suffer 6-10 colds per year, on average. 

        On Friday, the FDA also warned makers of 200 unapproved prescription medicines containing hydrocodone to discontinue sale of these medicines for use with children under age six.  There are reportedly a total of 800 pediatric cough and cold medicines on the market, despite consistent research findings suggesting that these products are not effective in children.  While it was once widely assumed that separate testing on childrens' bodies was unnecessary (and therefore has never been conducted), most scientists reject that assumption today.

Nursing home liability

     The New York Times conducted a study of 1200 nursing homes purchased by large private investments groups since 2000.  It compared the data it collected against data collected by the government on 14,000 other nursing homes.  When this data comparison was completed, it showed that nursing homes purchased by private investment groups fared worse on 12 of 14 indicators used to track ailments of long-term residents.  (In other words, on virtually every indicator of chronic illness (i.e., bedsores, need for restraint, easily preventable infection), these residents fared worse than average.)  Many of the same homes scored above the national average before they were "privatized" to achieve maximum profit for investors.

        An example offered by the Times to document the trend of minimizing services in order to maximize profits is the Habana Health Care Center in Tampa, Florida, with 150 beds.  It was struggling economically in 2002 when it and 48 other nursing homes were purchased by private investment firms.  The new managers quickly cut the number of clinical registered nurses in half and cut other costs by substantially reducing budgets for nursing supplies, residential activities and other services.  Investors were quickly earning millions of dollars a year from the 49 homes, but as the Times put it "residents fared less well".  Over three years 15 residents allegedly died from negligent care, according to family members.  The Florida agency that regulated Habana cited it numerous times for under-staffing and inadequate safety and care standards.  The Times quoted one woman whose mother died of a large bedsore that became contaminated by feces. 

        Unfortunately, the same "reorganizers" who do the cost-cutting also create a corporate shell-game to immunize the operators from litigation.  In Habana, for example, a principal in "Formation Properties" unabashedly defended the corporate structure that immunized his mangagement from legal responsibility, claiming that "we should be recognized for supporting this industry when almost everyone else was running away".    At Habana, this "support" meant owning the property as Formation Properties I, leasing it to Florida Health Care Properties, which became Epsilon Health Care Properties who subleased the operation to Tampa Health Care Associates (affiliated with Warburg Pincus--a large private equity firm).  Not only is it impossible to identify who is making staffing and budgeting decisions, in this structure, it is also impossible for injured residents to create a collectible judgment---or for the government to identify whether products and services are being purchased "at arms' length" prices from wholly-owned subsidiaries and associates.

        Putting the lie to Formation Properties' claim that this was a neglected industry, the president of Fillmore Capital Parnters, which recently purchased a large nursing home chain, claims that "I've never seen a surer bet", because of the aging of American baby-boomers.  Private investment companies now own almost ten percent of nursing homes, nationwide, according to the Times.  Reports filed by these facilities document a profit of more than $1700.00 per resident.  On average, they are 41 percent more profitable than the average facility.

        Sixty percent of the homes purchased by private investment groups have immediately cut the number of registered nurses employed.  According to government statistics, these homes provided only about 3/4 of the registered nursing time deemed essential by the government and other privately- and publicly-owned homes.  Registered nurses are the professionals most relied upon to provide professional care in these homes, and homes purchased by private investment groups provided only one R.N. per 20 residents, about 35 percent below the national average.  The typical number of "serious health deficiencies" was almost 19 percent higher in homes purchased by private investment groups, according to the Times' study.  The Times offered operators this data and the opportunity to comment, but virtually all declined.  One offered a mixture of explanations and excuses and the suggestion that conditions and staffing were improving at its facility.

        The Times also quoted a number of Florida lawyers on the impact of these corporate structuring changes on accountability.  One noted that he had to sue 22 different entities before the responsibile parties were brought to justice.  Another had incurred $30,000.00 in costs and substantial delay in attempting to identify the entity responsible for a resident's death.   In one case, a family eventually chose to accept a $25,000.00 collection when they could not collect their full verdict of $400,000.00.

       State regulators experience the same problems.  Homes owned by Formation and operated by the investment group Warburg Pincus are among the worst in Florida, in terms of "nutrition, hydration, restraints and abuse, and quality of care", but at the same time at Habana one Warburg Pincus affiliate paid nearly $600,000.00 to another Warburg Pincus affiliate for "management advice and services"--at the same time it was cutting resident services to the bone.

        While the "privatizers" who claim these corporate shell games were necessary to preserve nursing homes from excessive litigation, outside experts point to the fact that the same Formation company sold Habana and 185 other facilities to General Electric in 2006 for a price of $1.4 billion.  A prominent industry analyst estimated that the Formation investors earned more than $500 million dollars from that sale---in four years.

        One would think that we could protect our elderly better than this.  Litigation should be available to prevent abuse and abusive management, however, if some form of regulation of litigation is necessary, it should be achieved in the public sector with thoughtful and reasonable parameters.  "Reform" should not be achieved through corporate obfuscation in a manner designed to make illegal or unethical profits undecipherable. 

          For that matter, doesn't this industry report demonstrate yet again that services are not automatically improved when a private profit has to be scraped off the top in an unregulated manner?  If an industry was already struggling, the introduction of an increased demand for profit for investors may be inimical to the services provided.  While we need to scrutinize the provision of governmental and non-profit services carefully to prevent waste, simply "privatizing" that decision-making process is not the proper answer where essential public services may be short-changed in order to extract higher profits.

Your money or your life?

   A recent study published in the Journal that serves Dermatology specialists contained depressing  news relative to the American medical profession.  The authors performed an extensive survey/investigation to assess how long it takes to schedule an appointment to see a Dermatologist.  In particular, they wanted to compare the time it takes to get in for a lucrative, cosmetic procedure such as injecting Botox, with the time it takes to be seen for a worrisome, potentially cancerous mole.

        The authors noted that because patients must pay cash up front for cosmetic procedures, and because they involve no paperwork, third-party payors, or regulated prices, Botox injections are more lucrative than normal (medical) office visits.  The authors also noted that worrisome moles can be deadly melanoma and should be examined promptly, since pre-metastasis, they are not life-threatening, but if present for too long they turn fatal. 

        When they compared the average time to be seen by the doctor for these two exemplar problems, the authors found that your money is more important than your life:  the average time to be seen by the dermatologist for a Botox injection:  8 days.  The average time to be seen for examination of a potentially cancerous mole:  26 days.  When asked to comment for the media, the head of the national Dermatology society suggested that "patients who are concerned about a cancerous mole must insist on being seen urgently".  More evidence of the need for patients to be assertive to protect their own health, and more evidence that in America, on average, your money speaks more loudly than your health.

Medicare payment revisions

  This week the Federal government announced a new plan to withold payment to medical providers for services that were necessitated by the providers' own negligence.    As a starting point, Medicare will no longer pay for the removal of surgical tools or sponges left in a patient; it won't reimburse for extra care given after the transfusion of incompatible blood or the injection of an air embolism.  Treatment for bedsores that develop in-hospital, hospital falls and certain nosocomial (hospital-acquired) infections also won't be covered.

        While the underlying logic of this strategy is unassailable (why should we pay more to the negligent entity that caused a problem?), it will be interesting to see what happens to candor as a result.  We have seen multiple examples over the years of medical charting that was shaded--or even changed--to obfuscate the cause of a complication.   For example, the Discharge Summary that we were provided after ordering a young woman's medical chart from a local hospital was later identified as a re-written substitute prepared after her torn jejunum was diagnosed during a subsequent admission:  the original damning Discharge Summary which identified the symptoms but failed to rule out the diagnosis was mailed to us anonymously, weeks later, under separate cover.

       Giving health care providers an additional financial incentive to obscure the actual cause of preventable complications may actually interfere with the identification, treatment and understanding of these problems.  The medical community has a long history of applauding the confidentiality of "peer review", where errors are investigated and disclosed, but only in secret procedures.  Some medical and legal authorities believe that this type of secrecy is just and is essential to proper medical care, so there is already a sense within the community that something less than full disclosure is reasonable and fair.  Under these new rules, it is likely that more families will be informed of the "preventable" nature of their complication because of Medicare resistance to payment, but it is also likely that some complications will be even more completely "buried" in the patient chart so that they won't disrupt timely payment. 

        It is also highly likely that some medical providers will order blanket tests on admission to ferret out any existing infection and that providers will order that more patients be restrained to avoid even a minimal risk of falling.  An acceptable risk from the standpoint of the patient's health may be less acceptable to some administrators if it implicates the accounting bottom line.

Inconsistent cancer treatment and newly adopted guidelines

  Recent work in the medical industry confirmed the inconsistency of cancer care in America.  The physician authors confirmed that despite the many burdens they are already carrying, cancer patients and their families must actively research and control the care they recieve and advocate on their own behalf in order to be assured of proper care.  Dr. Nina Bickell of Manhattan's Sinai Hospital noted that despite the wonderful breakthroughs in American medicine, many patients who would benefit do not receive them.  A 1999 report by the Institute of Medicine in Washington concluded that "there is a wide gulf between what could be construed as the ideal and the reality of [American's] experience with cancer care."

       Dr. Stephen Edge, of the Roswell Park Cancer Institute in Buffalo, noted that "it's scary how much variation there is" in drawing attention to new rudimentary guidelines for cancer treatment.  "While they're fairly simple and straightforward, and they seem very basic, it's quite surprising how many people do not get the care that's recommended".  The guidelines are available at www.facs.org/cancer/qualitymeasures.html. 

        The primary causes of inconsistent care are considered to be varied.  One cause is a common denominator of most sub-standard medical care--simple lack of experience.  Doctors who treat a particular condition or who perform a particular procedure repeatedly gain proficiency with practice.  So do the hospital staff that they rely upon.  Cardiac studies have shown that open-heart surgery is safest where the entire OR staff performs more than 200 procedures per year.  Pathologists gain skill in recognizing aberrant cells if they study abnormal cells on a consistent basis.  Specialization carries inherent rewards in proficiency.  Other explanations for inconsistent care included poor communication, lack of screening (either by the patient or by the medical provider) and failure to seek a second opinion from a tertiary care center.

Hospital "nosocomial" infections

        A Veterans Administration hospital in Pittsburgh has performed research and instituted new procedures that are shedding new light on the subject of hospital infections.  When you gather many ill people under the same roof and then create openings in their protective skin-covering, infection is a signficant and deadly concern.  It has long been recognized that many patients actually acquire infections in the hospital, and studies show that such infections occur more commonly in tertiary care or regional referral hospitals than in community hospitals.  Thus, part of the problem is not merely cleanliness and proper procedures:  part of the problem is the relative illness of the patient-base.  It has been more-or-less assumed that these infections cannot be eliminated or controlled and that nothing can be done to prevent the spread of antibiotic-resistant germs that may thrive in hospital settings.

        The work done at the Pittsburgh VA in conjunction with the Centers for Disease Control and Preventation,  however, shows that the 1.7 million nosocomial infections that occur in the U.S. each year can be controlled.   Data shows that one of every 22 hospitalized patients develops infection and 99,000 of these patients die each year.  The recent studies have focused on the benefits derived from active screening and isolation of incoming patients, combined with "a relentless focus on hygiene".  At the VA Hospital, this reduced the number of methicillin-resistant Staph infections from more than 60 per year to only 17.  The 40-bed surgical unit cut its infection rate by 78 percent.  Several European studies have documented similar results and Netherlands and Finland have virtually eliminated methicillin-resistant Staph through similar efforts.

        Eighteen states now require hospitals to disclose their infection rates publicly, however, citizens in most states, including Michigan, do not have access to this information.  Further, it is very hard to pursue a malpractice claim arising out of a nosocomial infection because many health care providers consider them to be unavoidable.  The theory goes like this:  "If it can happen without 'fault', and you can't prove our rate of occurrence or the procedures we follow, you can't prove that it happened to this patience because of our negligence."  This argument is effective in Michigan and many other states. 

        Betsy McCaughey, New York's former Lieutenant Governor, noted the irony in the fact that most hospitals screen for HIV on admission, but not for bacterial infections, despite the fact that bacterial infections account for SEVEN TIMES as many deaths as HIV and the annual cost of treatment runs in the tens of billions of dollars, nationally.  Apparently, HIV just sounds scarier.

Medical malpractice "reform" and insurance rates.

          In the July 16 issue of the Michigan Lawyers Weekly, dramatic rate information was published, documenting the impact of twenty years of malpractice "reform" on insurance premiums:  for the most part, the impact was non-existent.  Although the reforms had reduced the number of paid claims by about fifty percent, and the number of filings even further, the cost of premiums continued to increase dramatically faster than the rate of inflation for every insurance company except one.    The newspaper headlined the fact that after twenty years of "reform", filings dropped by 75 %, while rates experienced average overall increases of nearly 150 percent.

          The newspaper noted that the subject "reforms," which dramatically diminished the right to compensation of injured citizens, were justified by the  need to reduce malpractice premiums.  The primary sponsor of the House bill, Richard Bandstra, confirmed to the authors the legislative intent to lower premiums or to prevent their escalation.    While the resulting malpractice court filings have "plummeted"  (3,500 in 1986; 1,500 in 1992; 930 in 2006); and payments to victims have shrunk from 1017 made in 1995 to 472 in 2005 (median payment of $96,000.00); the cost of malpractice insurance has continued its exorbitant rise with most carriers.

The Michigan Supreme Court and malpractice

          Perhaps a growing reputation as an ornamental shill for the insurance industry is causing second-thoughts on Michigan's Supreme Court.  This week, after declining on nine separate occasions to "correct" the lower courts' "mis-application" of the "reforming" majority's Scarsella decision, the Supreme Court finally corrected an injustice it had allowed to linger for nearly seven years.  The Scarsella decision was widely believed to require that a reviewing Court dismiss any medical malpractice claim if the Affidavit of Merit filed to support it was defective--even if the defect was marginal and even if the Defendant waited until after the statute of limitations had run to raise the issue of the claimed defect.  This harsh approach to Plaintiff's pleadings has been a constant for the "reforming" majority of the Court.

          This month, the Supreme Court overturned a lower court decision that had allowed a sand-bagging Defendant to wait until the statute of limitations had run, and then permanently dismiss a claim that was based on an affidavit containing a defect-- without affording the Plaintiff any right to amend.  The Court belatedly held that the time remaining to the Plaintiff when the affidavit was filed would remain available to the Plaintiff after a Court ruled its original affidavit was inadequate.  In this way, clerical and other minor errors can be repaired if they are addressed promptly.  There will be no advantage to any party associated with playing games with deadlines or alleged errors.  Unfortunately, this belated response to the lower courts' misapprehension of Scarsella and the other Supreme Court decisions which had implied such a harsh result, comes too late for a significant number of Plaintiffs whose appeals were previously denied by the Court, or who gave up without filing for Leave.

          There is widespread speculation with regard to whether the conservative majority will apply this decision with equal force to minor flaws identified in the Notice of Intent which the Plaintiff is required to file prior to initiating a Complaint or conducting discovery.  In equally surprising news, the Supreme Court concluded that the provision which grants mentally incompetent people temporary relief from the statute of limitations applies to malpractice claims:  while it was assumed for several decades that this provision of the Revised Judicature Act applied to all personal injury claims, the conservative majority of the Court recently held that it does not apply to grant a reprieve to children or incompetent adults with no fault claims.  There was widespread suspicion that if any half-reasonable argument could be identified to justify it, the majority would extend their nullification to malpractice claims as well.  Oddly, they didn't.  Two Democratic Justices and one Republican cited the "plain language" of the statute in a concurring opinion that refused to engage in the nugatory nonsense which has become a trademark of the current Supreme Court majority.

Pennsylvania reforms unearth malpractice data

        An interesting by-product of Pennsylvania's effort to bring down health care costs was the development of data documenting the added cost of medical malpractice.  Although the study was not designed to identify or measure the cost of malpractice, it did identify several areas of substantial added cost that contributed to significant health care expense.  For example, it documented 19,154 cases of hospital-acquired infections in 2005, generating nearly 400,000 additional patient days at a total cost of more than 3.5 billion dollars. 

        Of course, some nosocomial or hospital infections are unavoidable, particularly in tertiary care centers.  We have gathered many ill people under the same roof and some have particularly contagious illnesses or greatly reduced defense mechanisms.  Nevertheless, the number of hospital infections can be controlled, and Pennsylvania has already significantly reduced infection rates at several Pittsburgh hospitals through the adoption of basic hygiene practices as simple as hand-washing more frequently. 

           The study also identified nearly 200 additional hospital medical errors that stood out during a 30-month period, many of which were classified as "wrong-site surgeries".  Unfortunately, the terms "medical malpractice", "frivolous lawsuits" and "trial lawyers" have been deliberately used to vilify a system of compensation that was designed to compensate innocent victims, identify errors and to deter unsafe [and expensive] practices.  As a result of this demagoguery, few elected officials are willing to examine these issues in a clinical and reasonable fashion, divorced from special interests (whether they be "trial lawyers" or the medical societies and their insurers).

        We have noticed over the years, though, that the public servants who have cried "wolf" over the cost and harm of litigation are frequently the same people who  express the greatest shock and dismay when they learn that they or a family member is precluded from taking legal action to right a perceived wrong.  A prime example would be Supreme Court Justice nominee Robert Bork who advocated "lawsuit reform" for two decades before he tripped while mounting the stage for a speech, and then had the audacity to file suit claiming millions of dollars in compensatory and punitive damages.   We wish him all of the success that he would have allowed himself if he were sitting as a judge.

Drug payments to doctors

     Following in the footsteps of the State of Minnesota, the State of Vermont recently required drug companies to disclose payments to physicians.  Although Vermont is a small state without a significant number of specialists, some intriguing numbers came out of the Vermont data.  For example, just as in Minnesota, it turns out that Psychiatrists take home more drug company money than any other specialty.  Further, the numbers show that Psychiatrists who took the most money also tended to be more likely to prescribe dangerous, expensive and controversial antipsychotics to children--a practice which has been questioned.   The Minnesota study also found that a significant share of the psychiatrists who were highly compensated had been disciplined in the past and had impaired credibility.

          Overall,  in 2006 drug makers paid $2.25 million dollars to Vermont doctors, their universities or hospitals, for fees and travel expenses.  Payments to psychiatrists doubled from 2005 from $20,835 to $45,692 on average.  This number does NOT include the cost of free drug samples or the salaries or expenses of sales representatives.  The manufacturers' data show that they spend roughly twice as much on marketing the drugs as they spend on researching them.

          Endocrinologists earned the second largest average marketing fees from drug makers:  $33,730 per year.  The top 100 doctors who received the highest compensation included 11 psychiatrists and 5 endocrinologists.  Although we are not privy to the data and couldn't tell for certain, it appears that the averages annual payment was computed for the highest-paid specialists, not for all specialists in the state.

         It appears to be self-evident that doctors' prescribing decisions should not be influenced by drug money.  This kind of back-scratching behavior is inappropriate in any circumstance, but it is deplorable when it occurs in two wealthy professions and the health of innocent people is at issue.  "Bribing" doctors to prescribe a company's drugs should be criminalized so that there is not even the appearance of unethical behavior.  The studies in Minnesota and Vermont confirm our common sense assumption that these payments are influencing the treatment decisions of medical professionals.

Case filings and "Reform"

        In an incredible display of audacity, the Chamber of Commerce continued its war on victims' rights by asking the legislature for additional legal reforms in Michigan.  It falsely claimed that "forty percent fees" are "often" charged by attorneys, even though attorneys in Michigan are limited by law to charging a maximum one-third fee in contingent fee cases.  The Michigan Chamber must have been too lazy to investigate and simply dropped this line from the Chamber's national lobbying campaign into the Michigan literature.

          The Chamber suggested that Michigan needs contingent fee reform to protect Michigan from "frivolous cases" without documenting that frivolous cases are occurring or explaining why a limit on fees in meritorious cases would have an impact on the filing of frivolous cases.  Clearly, the Chamber has become so brazen that it no longer believes itself subject to normal rules of reasoned discourse or logic.  The Chamber also asked for "additional sanctions" for pursuing frivolous claims, but failed to mention that Michigan currently has one statute, three Court Rules and one rule of Professional Ethics which all ban and punish frivolous claims and which can lead to payment of costs, sanctions and fees by lawyers or litigants or to discipline by the courts or the State Bar.

          The Chamber suggests that too many cases are being filed, without citing the actual numbers.  Even a glance at the actual numbers will demonstrate that Michigan's role in the Chamber's national campaign is absurd and incredibly cynical.  For example, while there were 1,925 medical malpractice filings in MIchigan in 1983, and 3,629 in 1986 as legislative reforms were being implemented, only 931 cases were filed in Michigan in 2006. Michigan has averaged fewer than 100 malpractice trials per year for the years 2002 through 2006, and Michigan ranks in the bottom eight to 14 states nationally, for the median payout on malpractice claims.  In the year 2000, for example, insurers paid compensation on only 300 malpractice cases in Michigan, total.

          While the population of doctors and patients has increased substantially during this twenty years, the number of filings has been reduced by at least fifty percent, and compared with 1986 by 75 percent.  By any measure, if filings are down from 3600 to 900, the number of "frivolous filings" is no longer a problem--if it ever was.  (See Michigan Lawyers Weekly, June 25, 2007 21 Mich L.W. 940, pp. 1, 32)  These arguments have become so brazen and so detached from reality that the Michigan Defense Trial Counsel organization has joined the State Bar in repudiating the Chamber's claims.  When the organization that is directly compensated for representing your interests no longer supports your arguments, it should be an indication that you are departing from reality.  As both of these organizations explained, the Chambers claims are entirely divorced from the actual practice of law in Michigan and are clearly politically oriented:  we already have a form of "loser pays" which the Chamber is apparently unaware of; we already have two mandatory forms of settlement-inducement procedure which the Chamber ignores; there are no frivolous claims any longer; and by the Chamber's own numbers, only 19 percent of the total recovery is normally paid to Michigan lawyers--not the "forty percent" it hypes. 

        The Lawyers Weekly also made another interesting observation.  It noted that while medical malpractice reform was touted as a means of bringing physicians to Michigan, in fact, as the number of claims has come down, the increase in the number of doctors practicing in Michigan has trended downward over the two decades of "reform".  In fact, liability is only one small factor in physicians' choice of geographic location--and for the past ten years physicans have increasingly gone elsewhere despite Michigan's relatively attractive liability climate.

          By the way, even the Chamber had to admit that reducing the number of malpractice claims by between fifty and seventy-five percent didn't reduce malpractice premiums:  it claimed that as a result, premiums "stabilized".    One wonders by what percentage we would have to reduce lawsuits for the insureds to reap an actual savings in liability premiums if 75 percent wasn't enough?

          In truth, this is simply a cynical effort to trash what was the best and most consumer-oriented legal system in the world.  By making scapegoats of lawyers and courts, the Chamber can continue to assure high corporate profits.  Compare these statistics with the recently released record Michigan insurance profits discussed elsewhere in our weblog.

Who educates doctors?

         You may be surprised to learn that continuing medical education for doctors is not provided exclusively--or even primarily--by the medical profession or the university system.  The New York Times for June 13, 2007, reported that a sea-change has occured in continuing medical education over the past decade.  In 1998, drug-industry financing of continuing medical education amounted to 300 million dollars.  By 2007, the drug manufacturing industry was contributing 1.12 billion dollars and paying for half of all continuing medical education in the United States.

         The risk associated with this situation can be demonstrated by Vioxx, the pain-killer that was responsible for an estimated 140,000 cases of serious heart disease between 1999 and 2004, according to Dr. David Graham, safety researcher for the FDA.  When drug manufacturers sponsor physician education, they have a natural profit-incentive and cultural bias toward minimizing the potential health risk associated with a particular drug, and toward promoting drug use in general.  Education about drug use and risks tends to be entirely one-sided and unbalanced.

          To counter this common-sense problem, the organization that accredits and certifies continuing medical education forbids drug manufacturers from paying physicians who teach continuing medical education courses.  To circumvent this prohibition, the drug companies hire for-profit "medical education communication companies" to organize CME courses.  These companies launder drug company dollars that compensate physician lecturers and writers--who then present data as though it were originating from a neutral source.  A recent lawsuit against Pfizer documented that physicians were even compensated for appending their name to medical journal articles ghost-written by the industry.  In case you think that this risk is only theoretical, you should realize that Republican Charles Grassley of Iowa and Democrat Max Baucus of Montana headed a U.S. Senate Committee that recently concluded--after a two-year study--that drug companies do in fact use this educational process unethically as a marketing device.

More information on drug research and approval

          Minnesota disciplines a lower percentage of doctors than most states, however, it is also the only state that allows public access to its records.  Periodically and frequently this data base allows for the collection of some enlightening information.  This week, analysis of Minnesota's public records showed that many of the doctors who are recruited by drug companies to test or market their pharmaceuticals have documented convictions for fraud, reckless conduct, suspended licenses and other problems that would seem to make them ineligible to supervise drug studies.

          In this recent study, at least 103 doctors who had been disciplined or sanctioned by the state medical board had received a total of $1.7 million dollars in compensation from drug makers.  The smallest payment was $1250.00; the largest was $479,000.00.  Of the 103, the New York Times reported that 39 were sanctioned for inappropriate prescribing practices, 21 for substance abuse, 12 for sub-standard care and 3 for mismanaging drug studies.  The FDA inspects fewer than one percent of drug trials, but when it approves a drug--usually through a committee dominated by drug manufacturer's representatives--the company becomes immune to suit in Michigan, even where there has been fraud or reckless non-disclosure.         

            A prime example of the disciplined doctors was a psychiatrist who was convicted of "reckless, if not willful, desregard for the welfare of 46 patients," five of whom died under his care or immediately after release. His license was suspended and then restricted  for two years.  When he came back to practice, he resumed overseeing drug testing on his patients and was handsomely paid by pharmaceutical companies for doing so.  He claimed to have assisted in the study and approval of Paxil, Prozac, Risperdil, Seroquel, Aoloft and Zyprexa. 

          A child psychiatrist who was convicted of fraud involving a Ciba-Geigy study continued to be hired by Eli Lilly for drug marketing until he decided, on his own, that given his reputation, he lacked credibility and was being hired only "to influence his own prescribing habits".  A former drug marketer told the authors of the investigation that manufacturers select phyisicians for marketing and speaking fees solely on the basis of the volume of prescriptions they are able to write.

         Another Minneapolis psychiatrist who was criticized and forced to clinical re-training in 1994 told the authors that he was paid more than $350,000.00 over a seven year period (including $314,000 by Eli LIlley) because he is "respected by his peers".  Another, who pleaded guilty in 2003 to Medicaid fraud, collected $63,000.00 in 2004 and 2005.  He described the author's questioning as "ridiculous" and "insulting" and managed to justify prescribing Resperdil in the same way he justified buying his new Mercedes. (The maker of Resperdil paid him $30,000.00 over a two year period.) He concluded by telling the authors "I will pray for you daily."   I guess we should be prayi