When the courts ignore scientific principles

26

Category : Medical Rants

New York appeals court allows single-case evidence (AMA News subscription required)

The case, Zito v. Zabarsky, stems from a November 2003 trial court hearing to screen expert witness testimony. New York courts require the testimony with the plaintiff’s filing of a medical liability case to determine the validity of claims made. Judges follow the Frye standard, derived from a 1923 federal ruling that established that novel scientific evidence presented in court must “have gained general acceptance” in the relevant scientific community.

Pamela Zito sued Queens internist Gary Zabarsky, MD, alleging that he had prescribed her an “excessive” dose of the cholesterol drug, Zocor (simvastatin), which caused her to develop an autoimmune disease, court records show. Dr. Zabarsky denies the allegations.

The physician first prescribed 20 mg of another statin drug, Pravachol (pravastatin), to Zito, which he later increased to 40 mg. He then changed Zito’s prescription to 80 mg of Zocor, the highest recommended daily dose. Shortly after taking the medication, Zito was diagnosed with polymyositis.

Zito’s experts, a pharmacologist and an internist, conceded that there were no studies that linked polymyositis to the Zocor therapy, according to court records. But they presented a single report in a May 1997 article from the medical journal The Lancet of a patient who had developed polymyositis after taking a generic form of Zocor.

Zito’s experts explained that she developed a well-known side effect of the drug, a muscle condition called myopathy, which could have triggered the release of an antibody associated with polymyositis. As a general principle, the experts further said, the bigger the dosage of a drug, the bigger the effect it will have on a patient, court records show.

The trial court dismissed the case, finding that the experts did not include any peer-reviewed medical literature to support the theory.

The appeals court reversed that decision. Although the judges agreed the medical opinion was “novel,” they determined that the “dose/response” principle and the other evidence was sufficient to support Zito’s claims.

The trial court “apparently believed that the Frye test could only be satisfied with medical texts, studies or other literature which supported the plaintiff’s theory of causation under circumstances virtually identical to those of the plaintiff. However, the Frye test is not that exacting,” Judge Daniel F. Luciano wrote.

The appeals court also expressed concern that under a strict interpretation of the standard, “first users of a new drug” would not be able to sue if they were injured.

This ruling is simply outrageous. If we practice medicine based on a single case report, we are fools. We need evidence, and one case report is not evidence. Case reports can generate new hypotheses, but they cannot prove anything.

I cannot fathom what the appeals court is thinking.

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Comments (26)

The ruling wasn’t based on a single case report. Nor does it mean the plaintiff’s theory is correct – that’s for the jury to decide.

Such is the problem with reaching conclusions without reading the actual evidence. The actual opinion can be found here:

http://www.courts.state.ny.us/reporter/3dseries/2006/2006_00506.htm

I’d like to suggest that you actually read the source document….rather than rely on the AMA to filter your information. They have an agenda which tends to color their views.

“The fact that there was no textual authority directly on point to support the experts’ opinion is relevant only to the weight to be given the testimony, but does not preclude its admissibility. ”

I think reading the decision, in its ENTIRETY, is best summed up by the aboved statement.

On the one hand the court seems to say the content found in the medical literature is indeed miniscule, but not Zero. The fact that myositis link to Zocor was “plausible “should be suffcient for the case to proceed.

This, of course, will be later discovered in testimony that the medical data is overwhelming concerning the safety of Zocor and the rarity of polymyositis.

Physicians treat hypercholesterolemia to prevent the 1.5 million annual epeisodes of heart attack and stroke in this country.

To be held liable for a 1 in a million event while trying to prevent a 1/100 event is about as reasonable as a suing your dentist for dental cleaning , although 1/million develop sometimes fatal endocarditis.

There have been many more cases where the physician has been sued for not agressively treating hypercholesterolemia and thus failing to prevent later vascular disease.

This is an excellent reason why Health Courts as proposed by http://www.cgood.org

Based on this ruling, it seems that any health provider, especially a physician, if making a decision to treat someone according to generally accepted and promoted guidelines can be sued. If this is the case, then provding medical care within standard guidelines is grounds enough to be sued.

For an attorney suing is relatively easy, perhaps as easy as filing tax returns. As easily, the attorney can sue the same physcian for not prescribing Zocor or another statin in another patient who did develop coronar artery disease. The public health perspective does not matter to this attorney. A settlement is income and attornies need incomes.

The common good is at risk when such trivial cases find their ways to court rooms.

CJD doesn’t like it but this case clearly argues the need for Health Courts as outlined in

http://cgood.org/brochure-hcare.html

Reading the case as outlined in the above link provided by CJD is truly a wake up call to physicians that they can be sued while doing good quality work to prevent the epdemic of coronay aretry disease.

PCD,

You need to read closer. This decision only says that the expert testimony may be presented to the jury. That’s all.

No one has been held liable. WHat makes you so sure the experts on your star chamber wouldn’t agree with the plaintiff’s experts? After all, as the opinion notes, no one disputed their qualifications to opine on the subject.

Suing is relatively easy only to those who have never done it. I’d bet you’re one of those. Strange how the “common good” always seems to be exactly what you think is best.

It is interesting that you feel qualified to opine on what is “good quality work” without reviewing a single medical record. Is your name Bill Frist?

“No one has been held liable”

I understand that this issues has been brought up in two separate courts. So CJD , in your honest opinion, what would be the intention to bring up the case on two cases ?

It is easy to speak on the subject as the link YOU provided gave ( I presume) an adequte summary.

First you argue that the AMA summary is lacking, and readers who want to know more should read the link posted. Now that a commentary was posted on the actual link you provided, you quickly change your argument and say that only after reading the charts can someone render an opinion.

You seem to argue…to win an argument and not expose the truth.

Assuming the link you provided actually correctly summarizes the case evidence and the comments that the judge makes are an accurate reflection of his judicial expertise after reviewing the case evidence, then I see no problem stating the following

Truth : Coronary artery disease and stoke afflict and kill millions of Americans/year.

Truth : the literature reports concerning the association of polymyositis to Zocor use
is almost nonexistent.

Truth: A physician who does use Zocor in a patient with significant vascular risks or a similar cholsterol lowering drug will be according to widely accepted guidelines issued by the NCEP and ATP consensus
panels, as well as numerus other medical literature sources. The bottom line….lowering cholesterol, with Zocor or other techniques does serve the common good. It is curious that a Jury whose members likely never read or studied the effects and treatment of atherosclerotic disease, read or studied on epidemiology, read or studied use of HMG-CoA reductase inhibitors can expect to be informed adequtely by lawyers on the theories of good practice in medicine ( in one weeks time.)

Truth: Bill Frist has nothingto do wth the use of Zocor, polymysositis, or this case which has n0w been presented to two different courts.

Truth: A Health Court as proposesd by
http://cgood.org/brochure-hcare.html

likely will have sufficient expertise to make a judgement that is reasonable.

Truth: I do not know how a Health Court would judge on this issue.

CJD it is intersting that you feel qualified to opine on what is ” Good quality work” without knowing the basic epidemiological, statistical evidence behind medical practice.

Truth: I have never sued anybody

“No one has been held liable. WHat makes you so sure the experts on your star chamber wouldn’t agree with the plaintiff’s experts? After all, as the opinion notes, no one disputed their qualifications to opine on the subject. ”

But now they ridiculously have to go to trial–which is both expensive and time consuming.

“I understand that this issues has been brought up in two separate courts. So CJD , in your honest opinion, what would be the intention to bring up the case on two cases?”

Here’s what happened, as best I can tell. One evidentiary issue regarding expert testimony was brought up in the trial court, and the trial court ruled on it. It was appealed, and the appellate court reversed and ordered the case be retried or finished (they may have taken it up to the appeals court midway through the case). Happens every day on all types of evidentiary issues.

“It is easy to speak on the subject as the link YOU provided gave ( I presume) an adequte summary.”

I am not commenting on the medicine, I’m commenting on the law. What I posted isn’t a “summary” of the law, it’s the law as it pertains to that subject in that case. Again, I am not commenting on the medicine aspect.

“You seem to argue…to win an argument and not expose the truth.”

This a purely evidentiary issue. There is no truth or untruth. The only question is admissability of the experts’ testimony. Truthfulness will be judged by the fact finder.

“It is curious that a Jury whose members likely never read or studied the effects and treatment of atherosclerotic disease, read or studied on epidemiology, read or studied use of HMG-CoA reductase inhibitors can expect to be informed adequtely by lawyers on the theories of good practice in medicine ( in one weeks time.)”

They won’t be informed by lawyers. They will be informed by the witnesses. The witnesses present the facts of the case.

“The bottom line….lowering cholesterol, with Zocor or other techniques does serve the common good.”

What does this have to do with anything? This case appears to be about the actions of the physician in upping the amount so quickly. That’s all.

“Truth: A Health Court as proposesd by
http://cgood.org/brochure-hcare.html
likely will have sufficient expertise to make a judgement that is reasonable.”

That, my friend, is an assumption. Not an objective truth. Just because you believe it does not make it true. Nor would your star chamber’s definition of “reasonable” constitute an objective truth.

“CJD it is intersting that you feel qualified to opine on what is ” Good quality work” without knowing the basic epidemiological, statistical evidence behind medical practice.”

I don’t, and that’s why I didn’t. Read what I wrote, not what you think I wrote. It is you who made the assessment that it was quality medical work without reviewing any of the medical records. Which was reminiscent of Bill Frist’s television diagnosis of Ms. Schaivo.

I am happy for you that you’ve never had to sue someone, because it’s always disappointing when a dispute comes to that. However, given your admitted lack of knowledge about the process, I’m not sure how you can favor one system over another, when you’ve no idea how one of them works.

“But now they ridiculously have to go to trial–which is both expensive and time consuming. ”

Both sides had the opportunity to avoid trial, and evidently they chose not to. And since we don’t know all the facts of the case, it’s pretty hard to say whether it’s ridiculous that it came to a lawsuit. It may well be that they had an honest disagreement simply on the value of the case, so they are submitting it to a jury to decide.

Hey PCD, CJD,MD…blah blah blah.
its obvious that you guys operate in two separate spheres and think differently. I think the that the million or so lawyers in this country would go broke if anybody cuts them out of the pie. Imagine a million lawyers with less work. Of course they will fight to preserve their work.Anyone would in the same boat. Fisherman want to keep fishing and they fight for more ocean access, lawyers want to keep lawyering and they fight to keep all matters related to dispute in their “courts”
Doc’s are at the other extreme, they are too busy and any extra work involved with legal things justs adds more work. They wan’t things done fast, the and would rather trade a fast solution for a long drawn out court /lawyerly issued solution.
The JD wants more work and the MD wants less. Two different needs sets up two different world views.

“And since we don’t know all the facts of the case”…

You make it sound like we need to. The argument that is being presented is exceedingly limited. We’re not trying to determine the outcome of the trial here. We know the basis on which the appellate court sent the case back. I think we’re misfocusing the argument. This is a dysfunction of the rule of law. It is a call for a complete reorganization of the way technical civil cases are judged. The basis on which and interpretation of the Frye test by the higher court may be sound under the law but if such is the case then the test itself is foolish.

The idea that twelve everyday men and women can make a judgement on the validity of this “novel” complex technical evidence is ridiculous. The expert witness system intended to bring the “facts” (as you say) down to a level understandable for a jury is as flawed as can be imagined. It is why study after study show that jury verdicts in med mal cases correlate so terribly poorly with actual negligence.

I wouldn’t trust myself to sift through testimony and charts to render judgement in a suit against a manufacturer after a plane crash. I certainly don’t trust an engineer or a mechanic to sift through evidence and testimony in a malpractice case.

This is so blatant that reasonable men cannot disagree on this issue. Any arguments by yourself to the effect that jury trials are the only fair way to decide this issue either shows judgement clouded by intention and bias or a general lack of critical reasoning skills. I doubt its the former.

As primary care doc says, “You seem to argue…to win an argument and not expose the truth.”

We seriously need health courts.

Well, actually I don’t know how many jurors would hear this case in New York, probably less than twelve, but the point in the post above remains the same.

“It is why study after study show that jury verdicts in med mal cases correlate so terribly poorly with actual negligence. ”

What studies are those? Considering that physicians win 75% of all jury trials, are you suggesting that the rate should be lower? What percentage of time would health courts find for the physician?

“I wouldn’t trust myself to sift through testimony and charts to render judgement in a suit against a manufacturer after a plane crash.”

Why not? Why is it that you are capable to do your job as a physician (I assume), but not capable of understanding testimony, evaluating witness credibility, and reaching a conclusion? Should we have special courts for literally everything? Insurance contracts, buildings, a separate court for every type of product? If a physician operates on the wrong leg, why do we need health courts to tell us that?

“This is so blatant that reasonable men cannot disagree on this issue.”

Ever notice how “reasonableness” is always defined as exactly the same opinion as the speaker?

“As primary care doc says, “You seem to argue…to win an argument and not expose the truth.””

The difference between you and I is that I don’t believe that my opinion automatically constitutes the truth simply because it’s my opinion. That’s probably why you believe you don’t need to know the facts of the case to determine what the result would be. The truth is simply what you say it is.

“What studies are those?”

There have been at least a few studies cited in the past, in reponse to comments you’ve made at various blogs. That is beyond the point, I’ll be happy to cite a few more of them:

Holohan TV. Colestro J. Grippi J. Converse J. Hughes M. Analysis of diagnostic error in paid malpractice claims with substandard care in a large healthcare system. Southern Medical Journal. 98(11):1083-7, 2005 Nov.

Phillips RL Jr. Bartholomew LA. Dovey SM. Fryer GE Jr. Miyoshi TJ. Green LA. Learning from malpractice claims about negligent, adverse events in primary care in the United States. Quality & Safety in Health Care. 13(2):121-6, 2004 Apr.

Greenwood C. Newman S. Impey L. Johnson A. Cerebral palsy and clinical negligence litigation: a cohort study. BJOG: An International Journal of Obstetrics & Gynaecology. 110(1):6-11, 2003 Jan.

There are plenty more if I wished to spend the time but these more than suffice for a comment war on a blog.

The chance of a physician being sued simply does not match up with actual negligence. Patients who are the actual victims of negligence have far too little of a chance of compensation and physicians who have done nothing wrong end up with improper marks on their records, payments, higher premiums, and the emotional drain of dealing with a frivolous suit.

While med mal suits fail to correlate with negligence they certainly do with bad outcomes. You see this across the board, bad outcomes drive legal action not actual negligence, but it is even more pronounced when graphic and tangible adverse events occur (death, disfigurement, etc.)

The success rate for the current system is so poor it simply must be reworked from the ground up.

“Why not? Why is it that you are capable to do your job as a physician (I assume), but not capable of understanding testimony, evaluating witness credibility, and reaching a conclusion? Should we have special courts for literally everything? Insurance contracts, buildings, a separate court for every type of product?”

No, I cannot judge the credibility, of say, a car manufacturer engineer to the level of accuracy that should be required for these cases. Beyond what they may believe, very few can judge an expert witness under the current system.

When there are men who make a living reviewing cases for plantiffs or defendants and collect no more income than for those services then the entire system is suspect. There is almost nothing I could not get an “expert witness” to testify to for money. I don’t want to get into unsubstantiated hyperbole but may God have mercy on you, if you think these jurors are judging these expert witnesses on anything more than who has the best smile and whose degree says Harvard or Stanfrod or whatever on it.

Jurors are incapable of judging the validity of the actual evidence because expert witnesses have to chew it up for them before they can swallow it.

Finally, on the matter of technical courts, no offense if this happens to be up your alley, but looking through an insurance contract isn’t exactly rocket science. For a defective toaster or other commercial product it is unnecessary to bring in a toaster repairman as a judge. A med mal case and a breach of contract suit aren’t even on the same playing field.

You make it sound like its unreasonable to hold special courts for technically complex issues. For many major issues its unlikely such courts need to be staffed full time. There’s a major plane crash then you bring the experts together. Ford Explorers start rolling over then you bring the experts together.

The current system is broken. It doesn’t matter than 75% of cases are won by defendant physicians. Its a travesty that those that are harmed aren’t compensated and those that aren’t are, at levels that boggle the mind. At levels that are impossible to write off as simple mistakes of an otherwise successful system.

I’m not trying to lay out the specifics of technical courts or define what should have its own court or not. I hope you don’t take my paragraph above as such. However, to say healthcare courts shouldn’t be done because they can’t be done or because we can’t do it for all non-lay issues is not a sound argument at this time.

I doubt anyone here has the requisite experience or authority to rule out the practical feasability of such courts.

Beyond that the debate should be limited to if they would actually improve the current situation. Such is the issue that certainly must be settled first.

Your links don’t support your claims that the jury system is broken, because they only analyze paid claims. Those could well be settlements as well as actual cases. And your cerebral palsy study simply shows that CP caused by malpractice is rare. No one disputes that. Since you don’t know what the ratio of CP claims to cases of CP is, you can’t say that there are too many. Did you review the links before you posted them?

“While med mal suits fail to correlate with negligence they certainly do with bad outcomes. You see this across the board, bad outcomes drive legal action not actual negligence, but it is even more pronounced when graphic and tangible adverse events occur (death, disfigurement, etc.)”

This is the kind of statement that you simply lack the statistical basis to make.

“The success rate for the current system is so poor it simply must be reworked from the ground up.”

Again, no statistical basis or even evidentiary basis. What’s more, you cannot say how your proposed star chamber would do any better. What’s more, the only “reform” actions which get any legislative traction have nothing to do with “reform”, but rather capping the damages of those injured the worst regardless of the degree of negligence.

“When there are men who make a living reviewing cases for plantiffs or defendants and collect no more income than for those services then the entire system is suspect. ”

Have you ever volunteered to do it? I love it when physicians who wouldn’t testify no matter what, regardless of the degree of negligence, lecture others on the evils of the expert witness. Particularly when the requirement of expert testimony is a hurdle for plaintiffs inserted by physicians.

“if you think these jurors are judging these expert witnesses on anything more than who has the best smile and whose degree says Harvard or Stanfrod or whatever on it.”

Sometimes, the unbridled arrogance of physicians makes me ill. What’s it like to know the minds of people you’ve never met, never spoken to, and have the ability to criticize their decisions on evidence you’ve never seen?

” no offense if this happens to be up your alley, but looking through an insurance contract isn’t exactly rocket science.”

Go read your homeowner’s policy and then get back to me. I realize you’re the smartest person in any room, but there are reams of case law interpreting insurance contracts as they apply to different fact patterns. Perhaps we should have an insurance court and just let you judge?

“Its a travesty that those that are harmed aren’t compensated and those that aren’t are, at levels that boggle the mind. At levels that are impossible to write off as simple mistakes of an otherwise successful system. ”

This would mean more first if you had any statistical basis for your statements, and second, if any of the actual proposals involved getting more actual victims of negligence paid. They don’t.

“However, to say healthcare courts shouldn’t be done because they can’t be done or because we can’t do it for all non-lay issues is not a sound argument at this time.”

It can’t be done because of the 6th Amendment to the Constitution, thankfully. But the argument is an entirely correct one. Why should physicians have the benefit of being judged by their own, but no one else? There’s really no reason.

Someone should actually show there is a problem with the current system, and to what degree, before you change it. Right now, the only problem seems to be liability insurance premiums. No system you or I devise will ever be perfect. Adam and Eve ruined that for us.

“Right now, the only problem seems to be liability insurance premiums”

Well among the many opinions presented above are doubtful, the last opinion immediately above represents a lack of understanding of the negative influence on practice patterns that is caused by the current medical “justice” system. Defensive medicine is a real and very expensive result the current system. It is estimated that defensive medicine costs
exceed 75 billion dollars/year.

Indeed, No system will be perfect but Health Courts as outlined in http://www.cgood.org will likely represent an improvement.

Considering that defensive medicine may be the most unquantifiable statistic out there, that may be the weakest argument yet. What is defensive medicine? Whatever a physician says it is.

Even assuming your number is correct, total health care spending for ’04 was 1.9 trillion, which means at its highest estimated cost, defensive medicine is 4% of total expenditures. And surely you’re not going to argue that if you had your star chamber, defensive medicine would vanish entirely?

So now you’re reduced to throwing out the Constitution because your star chamber “will likely represent an improvement” over a system you’ve never even been involved with? That doesn’t sound very compelling.

If 75 billion dollars/year does seems meaningless you…then by simple addition the 10 year costs approaches
1 trillion dollars …which might have more meaning to you.

The number is a fiction, as it is objectively unmeasurable. But even were it fact, the cost after 10 years would still be about 4% of the total healthcare expenditures.

“This would mean more first if you had any statistical basis for your statements, and second, if any of the actual proposals involved getting more actual victims of negligence paid. They don’t.”

“Again, no statistical basis or even evidentiary basis.”

GO LOOK UP MY CITED SOURCES. ALL PROVIDE THE STATISTICS YOU ASK FOR.

“It can’t be done because of the 6th Amendment to the Constitution, thankfully.”

I think you mean the 7th amendment. I understand this isn’t your area of expertise but even a cursory glance at the history of right to jury trial revels that a lower federal court has certainly held a “complex case” exemption to the 7th amendment and plenty of legal theory has been written on the issue. The Supreme Court has never ruled on it but healthcare courts would certainly have case history to stand on. Making a blanket statement such that the bill of rights prohibits healthcare courts is just…untrue.

Please, just read the sources given to you and do a little research on the issue before commenting. Statistical evidence is provided in the peer reviewed articles I listed above along with numerous others, which show the complete ineptitude of the current tort system for compensating those actually injured through medical negligence. “Complex case” exceptions to the right to a jury trial are well discussed.

“Someone should actually show there is a problem with the current system, and to what degree, before you change it.”

All the studies I cited and others show such a problem. There is physically nothing more to be shown…if you choose to disbelieve such findings and rant against them, so be it I guess. We can hold an apple in front of you all we want but we can’t make you stop calling it an “orange”.

An amendment to my above post.

I wish I could think of all I wanted to say and make all the explanitory statements I need to in a single post. I’m not that organized however.

I understand that the complex case exemption has revolved around patent cases primarily and that certainly its lack of extensive acceptance means that it could very well be nothing more than law review fiction and lower court legislating. However, the existence of such an exemption prohibits bold, blanket statements such that the Constitution prohibits healthcare courts. Obviously not. It is not a defined area of the law, but it is certainly not as black and white as CJD’s comment made it to be – that healthcare courts were unconsitutional, as if anyone could see that.

“GO LOOK UP MY CITED SOURCES. ALL PROVIDE THE STATISTICS YOU ASK FOR.”

I did. They don’t. They talk about paid claims, and they talk about how rare CP is. They don’t prove that juries consistently get it wrong. “Paid claims” does not equate to a jury trial – it equates to payments by insurers. The CP cite merely says that CP is rare. For all we know, lawsuits on CP may be rare statistically. That’s why your stats don’t prove your case. Have you read them?

” I understand this isn’t your area of expertise but even a cursory glance at the history of right to jury trial revels that a lower federal court has certainly held a “complex case” exemption to the 7th amendment and plenty of legal theory has been written on the issue. ”

I do mean the 7th- thank you for the correction. Can you point me to these courts that have decided this “complexity” exception? Maybe a case cite? Incidentally, most med mal cases are in state court, not federal.

” Making a blanket statement such that the bill of rights prohibits healthcare courts is just…untrue.”

Except that it’s not. There are actually cases out there pointing out that medical negligence cases were cases at common law which predate the founding of this country. The 7th absolutely guarantees the right to a jury trial in those cases.

Patent cases are not taken out simply because they are complex – they are taken out because they were not a suit at common law. They are a wholly statutory scheme. Removing the right to a jury trial in a negligence case such as med mal is unconstitutional.

“I understand that the complex case exemption has revolved around patent cases primarily and that certainly its lack of extensive acceptance means that it could very well be nothing more than law review fiction and lower court legislating.”

This statement here is akin to me explaining heart surgery to you.

Here’s a fairly readable discussion of the distinction I’m referring to:

http://caselaw.lp.findlaw.com/data/constitution/amendment07/02.html#2

“Except that it’s not. There are actually cases out there pointing out that medical negligence cases were cases at common law which predate the founding of this country. The 7th absolutely guarantees the right to a jury trial in those cases.”

I understand the idea presented but I hope you aren’t trying to argue that pre-18th century English medicine is anywhere near the complexity of today’s. I don’t think this argument carries very far — they had juries for actions againsts healers hundreds of years ago, so they should now.

Indeed, many scholars argue that a complex case exemption existed in English common law. This specific defense for the complex case exemption was rejected by the 3rd court in the case below but a more notable and successful argument centered around the comflict between the 7th amendment and a possible violation of the right to due process when the issue is too complex for a jury to reach a fair verdict.

The case you need to look at, while limited in scope is the 3rd Court of Appeals’

In Re Japanese Electronics Products Antitrust Litigation, 631 F.2d 1069 (3rd Cir. 1980)

The 3rd Court defended its ruling upholding a complex case exemption by citing the Supreme Court’s Ross v. Bernard which seemed to imply that such an exemption might exist. A footnoted section of the majority decision read,

“Seventh Amendment question depends on the nature of the issue to be tried rather than the character of the overall action.”

The footnote to the above line read,

“As our cases indicate, the ‘legal’ nature of an issue is determined by considering first, the pre-merger custom with reference to such questions; second, the remedy sought; and third, the practical abilities and limitations of juries.”

It is a footnote, but was merely an opening for the third court to more concretely define such an exemption.

In no way is this a defense of the constitutionality of healthcare courts.

However, as others have written it is not farfetched to imagine a complex case exemption for medical malpractice cases. It could very well be such courts would be allowed…or not. However, it is impossible to write them off or define them as unconstitutional before they exist.

Moving on,

““Paid claims” does not equate to a jury trial – it equates to payments by insurers. The CP cite merely says that CP is rare.”

I understand that most studies look at paid claims and that as unlikely that it is to imagine that insurers settle non-negligent at an unacceptable rate but somehow magically actually win the non-negligent cases that go to trial; that none of the above cases have evidence for such and assuming such (however reasonable it appears) won’t be acceptable in this debate.

What plenty of studies, some of which even a casual search through Ovid or other academic journal catalogues will reveal, is that patients who suffer negligence get compensated at poorer rates than those who don’t. That alone is enough to impeach the current system.

Evidence for such can be found in the article cited blow. Similiar findings to this particular study appear in other articles, several of them are referenced in the specific study I list below.

We have here certainly more than enough evidence to meet the Frye requirement. Just kidding.

I quote the following article:

Studdert DM. Thomas EJ. Burstin HR. Zbar BI. Orav EJ. Brennan TA. Negligent care and malpractice claiming behavior in Utah and Colorado.[see comment]. [Journal Article] Medical Care. 38(3):250-60, 2000 Mar.

The study’s look at 14700 patient charts found

“Eighteen patients from our study sample filed claims: 14 were made in the absence of discernible negligence”

“Of the patients who suffered negligent injury in our study sample, 97% did not sue.”

Now, this provides no evidence as to why those who suffered did not file claims or to the factors that drive civil injury attorneys to take on clients (as it doesn’t seem to be based concretely on negligence). It can only offer subjective conclusions on these issues but I find the author’s opinion in trying to fit the pieces of their data together very compelling.

With such evidence in hand, the argument can be turned to how such a situation can be fixed, and indeed arguing over how healthcare courts would actually improve access for those who are underrepresented. Such is a very more opinion driven debate. Certainly however, SOMETHING dramatic must be done with the current system.

I believe in healthcare courts as part of the solution. Healthcare courts could be a major part of removing attorney’s fees as the driving force of medical malpractice cases. Let me set my opinion straight as I’m sure it is likely to draw ire. I have no problem with contingency fees or high med mal lawyer incomes. But I believe,

“Malpractice litigation is rarely initiated without attorney involvement; hence, prospective litigants’ ability to claim typically hinges on an attorney’s willingness to take on their case. Because the financial return accruing to plaintiffs’ attorneys in tort cases is generally linked to the size of the award through contingency fees 37 and because lost income typically forms a significant component of malpractice awards, a plaintiff’s lawyer would tend to maximize his own income by choosing to act for clients with ongoing sources of income.38,39 (Indeed, the costs of costs of bringing a claim may simply exceed the damages recoverable.)

The elderly and the poor are particularly unlikely to generate income. Moreover, what income they do generate is less likely to be “lost” because of a decline in physical capacity occasioned by negligent injury. Within the Medicare population, however, younger beneficiaries generally have a greater capacity to earn income relative to older beneficiaries, making them somewhat more attractive clients, all else being equal. This probably explains why age >=75 years has independent explanatory power in our multivariate model. In addition, the size of any award to elderly patients will usually be constrained by their shorter life expectancy, and some in this group can be expected to have trouble recognizing that they have suffered a medical injury, much less substandard care.”

Healthcare courts may reduce the costs of trial and attorney out of pocket costs by streamlining and shortening the process, and by eliminating the costs of impressing a jury. By such I mean the presentation of evidence and some expert witnesses, etc. Such a decrease in upfront costs may offset the lower contingency fees as I lay out below.

With a higher burden and ability to actually decipher negligence healthcare courts would, in my opinion, cut down on frivolous lawsuits. With a higher burden of proof; where negligence was actually in reasonable debate, attorneys would have less cases to choose from. As you said yourself defendants win 75% of all trials…so maybe not such a huge loss. With fewer cases that have a shot at victory, then independent on the actual lost income of the patient attorneys would have to take cases or have a slightly empty appointment book.

And of course the counter argument is that any judge with medical training would naturally be sympathetic to physicians and a higher burden translates into a skewed court in favor of doctors, etc. I’m sure there are some other very well put refutes to my argument for healthcare courts as well.

We can only sit here and repeat ourselves on the issue, neither convincing the other.

I am firm however in my claim that the current system and its rules of evidence and its reliance on unacceptably ignorant juries is broken. I really do not see how others don’t see the inexcusable faults in the current medical tort system.

Arguments for how to fix the sytem are more teetering and open for debate.

“I understand the idea presented but I hope you aren’t trying to argue that pre-18th century English medicine is anywhere near the complexity of today’s. I don’t think this argument carries very far — they had juries for actions againsts healers hundreds of years ago, so they should now. ”

There are lots of people who aren’t fans of the Constitution. That’s fine if you’re one of them.

An antitrust action in no way equates to a med mal negligence action. And who says all med mal negligence actions are that complex? It you remove the wrong kidney, do I need an expert to tell me that?

“I understand that most studies look at paid claims and that as unlikely that it is to imagine that insurers settle non-negligent at an unacceptable rate but somehow magically actually win the non-negligent cases that go to trial; ”

Did it ever occur to you that perhaps the insurers might have a better idea of what constitutes negligence than the physicians? Given physicians’ inability to settle on bright line rules for the standard of care, as evidenced by the EBM debate, it’s pretty clear it’s an open question – unless one is in a lawsuit – then you’re all sure that the defendant didn’t violate it.
I’ve seen that contingency fee argument before. Essentially, what you want is to cap one side’s fees, while leaving the other free to pay whatever it wants. I don’t know how or why you think this is fair, but I guess you do.

Of all your studies you have 18 claims filed? That’s your statistical evidence of failure of the system?

“I am firm however in my claim that the current system and its rules of evidence and its reliance on unacceptably ignorant juries is broken.”

That’s clear. What’s also clear is that you’re talking about something you barely understand. It’s like me arguing that physicians salaries should be capped to reduce the cost of medical care. It sounds great, but I really don’t know what I’m talking about.

You do allude to probably the primary fault of the system though – that those with smaller damages cannot be heard. And perhaps your health courts would allow them to be heard, although it’s doubtful because their damages will still be low.

But the proposal to allow “experts” decide damages is designed solely to lessen their recovery. Which is the point of all tort reform. No proposal that’s ever been anywhere in a legislature of any type has ever been designed to make sure MORE people get paid. The insurers wouldn’t back it if it were.

It was a pleasure discussing this with you.

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