Professor Bainbridge...on law, politics, religion, culture & food

I don’t quite get the procedural situation here.  What does it mean for a coroners’ jury to declare a death to be a homocide?  I’m guessing this just means that the DA can investigate and possible press criminal charges.

Lawyers do suck.  They’ve ruined the moral and economic fabric of the country.

Shit really does happen, and the criminalization of what is at most malpractice means the lawyer who made this decision really does suck.

Criminalizing malpractice is a trend among publicity-seeking local DAs, often with some kind of involuntary manslaughter type charge.

My wife is one of the best RNs on the planet and I can’t wait for her to retire because she worries about lawyers and regulators all the time. An immense amount of time is taken from patient care for CYA.

"Lawyers do suck. They’ve ruined the moral and economic fabric of the country.”

Riiiight. 

Seriously, how about some sense of proportion here?  The “economic fabric” of this country is damned good.  To the extent that it’s not what it could be, it’s largely the fault of legislators and bureaucrats—who, even if they often have law degrees, aren’t acting as lawyers when they legislate/regulate. As for the moral fabric, well, when little kids start idolozing lawyers I’ll be ready to blame lawyers for the moral decline of America.  We’re just cogs in the system; your elected representatives create that system. 

As to the underlying story here, it’s insane.  If I were trying to guarantee that in a generation there’ll be no doctors to treat anyone’s heart attack, I could hardly do better than this.  Let’s hope the judge sees it for what it is—and let’s hope the legislature has given him a sufficiently clear and narrow statute to permit him to do what needs to be done.  But don’t hold your breath: Chicago judges tend to be the worst kind of political hacks.

It seems there’s plenty of questions of law here.

Beyond that, who in the devil is actually going to be charged? I’d be stunned if anyone but, if they were going bring charges then on who? The corporation or officers? Helathcare staff in the ER?

Clearly, reading an AP report doesn’t give us a full picture but just on the face this seems like a bunch of overzealous citizens running an activism scam on the people of Illinois.

If one of these ER staff were to step over a person collapsed on the sidewalk screaming for them to help, and then that person were to die does that amount to homicide?

I understand my social responsibilities as a future healthcare provider but attempting to extend those responsibilities so far beyond that of others, to the point that negligence in failure to provide care becomes homicide is not reasonable.

No wonder docs get so riled up with bizarre, unreasonable pressures such as this one bearing down on them.

Imagine if the legal profession was held to the same standards, enjoyed the same consequences for deviating from their standards as the medical profession. No personal injury attorney would escape unscathed.

Can we sue lawyers who lose their cases, yet?

I wish they would arrest me for trying to do my job in the insane pressures of an emergency room. I could get a few days off from spending my days trying to cover my ass so I won’t get sued while trying to put fingers in a leaking dike that any minute is about to explode. The idea that we sit in this war zone and take all the shit we do, then some rich guy in a $2000 suit can come in and tell us “you fucked up, give me a million dollars” will eventually lead one of us to lawyer homicide. I won’t do it but one of my colleagues eventually will. To our livelihoods, these bastards are a worse threat then any terrorist will ever be. And nobody gives a shit.

Ooops. Now this is malpractice. But not criminal, IMHO.

3rd premature infant dies after Indianapolis hospital administers accidental drug overdose
Associated Press
Wednesday, September 20, 2006 8:31 AM

The Professor’s trackbacks aren’t working. I linked to this post.

http://thefloridamasochist.blogspot.com/2006/09/knucklehead-of-day-award_20.html

I would like to know where those medical blog commentors work so I can avoid their hospitals/offices at all costs.  They really need to be reminded that it is a bad thing when a woman dies of a heart attack after waiting two hours in an emergency room waiting room.  They seem to have forgotten that.

To my medical colleagues:

Enough with the ignorant commentary, please? It’s embarassing.

“Homicide” simply means that death wrongfully followed from another’s actions. It is a legitimate judgment for a coroners’ jury to bring, and the facts as we have them so far do seem to support such a finding.

A *jury*, people, not “some lawyer” in “a $2000 suit”.

Neither the coroners’ jury nor the district attorney’s office have brought indictments against anyone. They might; they might not.
(Probably won’t, based on interviews quoted by the DA in MedPundit’s post.) But nobody’s arrested, nobody’s gone to jail, nobody’s been perp-walked… and the odds are nobody’s going to, with the possible exception of the triage RN, whose actions *might* rise to the level of criminal, negligent manslaughter.

MIGHT.

It’s far more likely that there is not sufficient evidence to take this case to criminal trial… and that recompense (such as it is) will come from the malpractice trial, and subsequent actions by the Board of Nursing.

Every ER physician I’ve read has noted, appropriately, that triaging chest pain to the waiting room is almost always a bad idea… especially when the pain is classic, the patient is middle aged, and layfolk such as the family is concerned.

What happened to Ms. Vance is outside the pale, and trying to make this a case of martyrdom at the pens of lawyers is simply…

simple. 

In the Old English usage.

cordially,
W. S. Ernoehazy, Jr, MD, FACEP
(since my weblog’s minged up, and people can’t go read it at the moment...)

De Doc:
Not so fast. The prosecutor’s already stated that he’s not going to charge any of the emergency room personnel, which leaves the nurse as the only direct actor. He also—for no reason, I’m sure—pointed out that in order to sue the company, he’d need to show wrongdoing from someone higher up. And there’s no proof of that.

Since criminal charges for the nurse is pretty much unheard of, it seems very likely that the point of this is to indict the nurse and get her to implicate someone higher up, thus opening the door for a lawsuit.

From a Doc - Our powers are modest. We cannot make most people well. Everyone dies. Our deal is to try our best to be helpful. Patients are not consumers, and we are not health-deliverers, and never have been. We can deliver neither health nor life, much of the time. People die every day in hospitals - it’s normal.
The one time I have been sued was a time when I had never seen the patient - and the case took three years and cost me much lost income before a sensible new judge finally threw it out. And, by the way, this was a charity clinic - no charge, and no payment to me. But it cost me plenty in time, headache, and it also cost me a change in attitude, but if you view every patient as a potential lawsuit, you lose your soul. So you do your best…

"lawyers suck”

Coming from a professor who does research into why it’s a good thing the business judgement rule insulates corporate officers from most lawsuits.  Anyone on the wrong end of a lawsuit (even if an insurance company is involved) and anyone likely to be on the wrong end of a lawsuit is going to have the “lawyers suck” attitude.

Yes, we have a terrible system.

But on the other hand the person should not have had to wait two hours for treatment.

As the system now stands using the legal system to address such issues apparently is the only (best) way to go.

Does anyone who is complaining about the legal system have a proposal of another way to assure that this hospital, or others like it, do not continue to make the same mistake?

The lawyers are not the ones that make the errors, so why don’t the medical professionals do something to eliminate the
lawyers opportunity.Don’t complain if you don’t have a proposed solution.

Our host wrote ...
The MD’s basic attitude seems to be “shit happens and lawyers suck.”

I completely agree with the MDs in this case.  Shit does happen ... or in this case, middle-aged women have heart attacks.  Even if it is determined that someone in the ER made a mistake, mistakes do happen as well.  It is insane public policy for people who make life & death decisions to be subject to criminal or civil liability for such errors on the job.

I can certainly see using this episode to drive improvements in the ER/triage/etc. systems, but only a lawyer would feel the need to involve the courts, criminal charges and lawsuits.

Yeah, I have a solution.

Why is the mechanic from down the street serving on a coroner’s jury or scratching his head trying to decipher the complex medical science of a med mal case?

For civil suits I truly believe in a complex case exception to the 7th amendment. I truly want healthcare courts. I truly want lawyers to face consequences when frivolous cases are brought. And before the lawyers rise up to shout me down - no this won’t hamper those truly harmed in getting compensation, not if the courts have competent people on the bench instead of a jury foreman named Cletus.

Putting aside Studdert’s sometimes contradictory findings on just how frivolous med mal cases are as a group, I truly think these two measures will limit the number of frivolous cases brought and the number which go forward. These two steps would generally make the entire system more precise and fair.

And along the same note, in Illinois, for God’s sake, take a LONG hard look at if you really want that farmer deciding whether a case constitutes a homicide or a natural death. What a joke. *rolls eyes*

Cocunut-shy is in Wikipedia.  It’s (apparently) a midway game where people throw balls at coconuts on posts. Given that, I suppose the metaphor is clear.

Coconut-shy I knew. What’s a midway game?

Spencer:

Unless we can talk patients into scheduling their emergencies there is no easy answer for Emergency Departments.

Better use of technology, quantitative studies of patient flow to project busy times, use of mid-level providers, splitting major versus minor cases at the door, everything is being tried, but at some points the flood begins and all hell breaks loose.

If only we knew in advance when people will crash their autos and shoot each other. And leaving a chest pain patient in the waiting room to watch tv is hard to justify, but we weren’t there.

” Even if it is determined that someone in the ER made a mistake, mistakes do happen as well. It is insane public policy for people who make life & death decisions to be subject to criminal or civil liability for such errors on the job.”

I agree.  Semi truck drivers, who make life and death decisions every time they pull onto a highway, should not be subject to criminal or civil liability. 

Are we going to be immunizing all physicians, or just ER docs?  Do dermatologists make life and death decisions?  But wait, if people are going to die anyway and medicine is a crapshoot, why are we paying physicians so much? 

Either they are doing something useful and should have some liability when they don’t do it correctly, or let’s pull out the leeches and pay them accordingly.  When they want to get paid, they wax poetic about the good they do.  When they want immunity, it’s all in God’s hands. 

And can we put to rest the “complex case” claims?  If you operate on the wrong knee, do you really need to have a medical degree to know that’s negligence?  Very few engineers, lawyers, insurance actuaries, accountants, and a host of other occupations don’t think their job is “complex”.  So exactly how many special courts are we going to have?

I will admit, though, that no one thinks their job is as complex, or indeed thinks more of themselves as a group, than physicians.  Stupid farmers, what do they know?

"I can certainly see using this episode to drive improvements in the ER/triage/etc. systems, but only a lawyer would feel the need to involve the courts, criminal charges and lawsuits.”

Yeah, hospitals aren’t motivated by negative financial consequences.  I’m sure the entity would gladly spend lots of money to improve their systems and their delivery thereof just because it was the right thing to do.  That’s how for-profit entities work, isn’t it?  I’m sure the same can be said about non-profit ones as well.  I bet the administrators would gladly take a significant pay cut to improve the systems.  That’s how corporations work, right? 

Let’s apply that to garden variety criminals with non-intentional violations, as well, not just corporate actors with good lobbyists who also have insurers with good lobbyists.  Why prosecute drunk drivers - they want to improve - what good comes of suing them for your medical bills when they run over your kid?

Well, its always nice to be reminded who the biggest whiners are in the professional community.  I’m sure that the good doctors NEVER sue anyone themselves.  If a hard working window-washer accidentally drops a bucket of water on the noggin of a surgeon walking below him, that surgeon would NEVER consider suing anyone for his closed head injury, because after all, shit happens.  After all, doctors and their licensing boards are always VERY careful to NEVER re-license doctors who commit cases of gross malpractice or even deal some drugs on the side. 

OK, back to the real world.  I have personally seen plenty of horrifying malpractice cases where a farmer or mechanic would have done the patient more good than the doctor being sued.  The doctor gets sued, loses his license, and gets a new license in a neighboring state within a month.  I know plenty of good doctors who will bitch about a malpractice case at another hospital, but then in the same breath declare that they would never bring anyone from their own family to THAT hospital.  Does more shit just happen at those hospitals?  Even better was the doctor, who when he found out another doctor was being sued, said, “man I knew that crazy asshole would get sued one day!  I never figured out how he made it through medical school!” How about this doctors, you have your state licensing boards regulate your assholes, and we’ll have our state bars regulate our assholes.

Hi Steve

Glad I found your site.

First, the important stuff. The wine. I had the good fortune to find Robert Parker shortly after he announced that 1982 was outstanding, at a time when the anal British wine establishment were under rating it. Parker was right. So I have some 82’s and then some 83 Palmers.... and then he introduced me to Cote Rotie…

But I digress…

Medics and the law. I read law at Oxford before I did medicine, so I feel I have a foot in both camps.

We are just beginning to see the UK criminal law used against doctors (manslaughter conviction for accidental intrathecal injection of vincristine that killed the patient - 18 months suspended).

Yes, I am very uneasy about medical cock-ups being taken into the criminal courts. Not because I am inapprorpriately protective of doctors, but because it will cause absurd “defensive” medicine to develop in the UK as it has in the USA.

I worked in Chicago for a while. I have many friends in the USA who are doctors, and I think each and every one has come across the lawyers.

In the UK I know even more doctors. I do not know a single one who has been sued.

I do not believe that US doctors are incompetant, far from it. So why the big difference?

Glad I found you!

John

I’m sure that the good doctors NEVER sue anyone themselves. If a hard working window-washer accidentally drops a bucket of water on the noggin of a surgeon walking below him, that surgeon would NEVER consider suing anyone for his closed head injury, because after all, shit happens.

Let’s not forget that it was a physician in Alabama who sued BMW in Alabama (receiving a $4 million dollar punative damages award) when the paint job on his new Beemer faded.  This followed an unsuccessful attempt by another Alabama doctor (represented by the same lawyers) to do the same thing.

But hell, what’s a corpse in the waiting room compared to the horror of showing up at the country club in a faded German luxury car?

Two hour waits for chest pain happen all the time, but an ECG should be done ASAP (not that it helps much). How can this happen, you ask?

At night, we have one doc. I’m supposed to have at least 6 nurses, but sometimes I only have five: one nurse in triage, four nurses covering 12 rooms. All 12 rooms are full. 6 chest/abdominal pains, waiting on ICU or telemetry beds. 2 nurses should be covering those patients, but I have to pull one to help out with the other patients. There are no ICU beds left in the hospital. One patient with DKA just came in, lethargic, hard to get IV access. A septic patient with a heart rate of 140, requiring one nurse (one on one) to get the drips set up. Two nurses would be even better, but we’ll make due. Two patients on backboards after an MVA. One patient vomiting blood, and I think a kid with a fever in the last room. I’m not sure, I haven’t had time to get to him yet.

So, yeah, when another patient arrives with chest pain, they might be behind four more with chest pain already waiting. We’ll get to them when we can.

To the two comments above… I do not know how often doctors sue other people. I DO know that from this side of the pond, the USA seems incredibly litigious and some of the gazillin dollar awards that are made seem preposterous.

A doctor who has committed a criminal offence should be prosecuted. And yes, reckless disregard for patient safety moves into the ambit of the criminal law.

But a mistake? A mistake made by a tired doctor/nurse? Civil liabitlity surely. But not criminal.

The problem with this case is we do not have all the details (well, I don’t). And as SCALPEL suggests, who knows how busy, how understaffed etc thay were.

Steve, do you have the full facts? Do please post them or give me a reference if you have

John

Why did the poor lady have to wait for two hours?  Perhaps we should indict any person who was receiving care in that ER during that time frame for a non-emergency.  By using the medical resources of the ER for non-emergency care, they are the persons actually responsible for this tragic death.

Here’s the deal....most people that come into the ER with chest pain aren’t having a heart attack. Most little kids with fever don’t have meningitis. But yes, shit does happen. You can’t just rush back every patient who had tacos for lunch and is holding their chest. We don’t have the staff to bring 20 patients back at once.

If people show up to the ER faster than we can admit or discharge them, then a line forms in the waiting room. It happens in every ER in the country, no matter how self-righteous some of my colleagues may sound. It’s just flow dynamics, and as often as not the restriction to flow isn’t the ER at all....it’s the availability of nurses to staff the inpatient units.

It only takes one sick patient to make a small ER get very very busy. A critical patient can require over an hour of dedicated physician time. Such a patient may require the services of two or three nurses and several ancillary personnel.

If the ER is full of patients, you can bet that the wait is going to be over two hours. It might even be much longer than that. You can only do what you can do. There is no requirement for a hospital to staff for the possibility of an infinite number of patients. We do the best we can with what we’ve got, every night.

Sorry, but that’s not homicide.

” I DO know that from this side of the pond, the USA seems incredibly litigious and some of the gazillin dollar awards that are made seem preposterous.”

That’s a testament more of the power of the tort reform lobby than it is an actual reflection of US law.  With regard to medical malpractice, of course we’ll have more litigation than Europe because we do not have the social safety net or universal health care.  Being the victim of malpractice here that results in a lifelong injury can bankrupt one and render them uninsurable, so it is imperative that they recover something.  And, given the cost of healthcare here, a cost the individual in Europe is largely insulated from, any award to compensate for that is going to be a large one.  A person with a catastrophic injury could easily collect $2 million dollar and not a dime of it go anywhere but to healthcare providers.

Put the social safety net and universal healthcare in place here in the US, and medical malpractice will disappear.

"Put the social safety net and universal healthcare in place here in the US, and medical malpractice will disappear.”

You might want to reconsider that statement.

You’re right.  I should have said “litigation resulting from medical malpractice” will disappear.  Now, I don’t mean literally disappear, but you get the gist.

Thanks for pointing out the error.

If you truly believe that increasing the extent of socialization in our already oversocialized medical system will even reduce malpractice (much less make it figuratively disappear), then you might want to reconsider that position as well.

The only way such a move would reduce malpractice litigation is if concurrent legislation were passed which immunized physicians from lawsuits.

As I stated, I don’t think it will reduce malpractice.  I think it will eliminate malpractice litigation.

I would expect that a workers’ comp style system would be enacted to compensate for lost wages and such.

Well, I sort of made the same error you did regarding malpractice vs. malpractice litigation.

Yet when I consider your hypothetical socialistic medical panacea, I wonder this...if the frequency of actual medical malpractice events were to stay the same, but the amount of malpractice litigation decreased, then that suggests to me that either you believe that we have too much inappropriate litigation in our current system, or that the system you propose would somehow squelch appropriate malpractice litigation.

“Eliminate” malpractice litigation? Not even I want to do that. But I despise Socialism with a far greater passion than I despise attorneys and lawsuits.