Healthcare Reform

By Dr. JD, a plaintiff’s attorney, practicing in the Northeast

High-low agreements are a unique type of settlement mechanism. Unlike settlements that avoid trials, these are settlements that are contingent on the result of a trial.

High-low agreements are pre-verdict arrangements that set an alternate payment framework that the verdict will trigger.

Under a high-low agreement the plaintiff and the defendant negotiate:

(1) A “high” – a maximum amount that the defendant will pay if the verdict is for the plaintiff, even if the actual verdict is higher than that pre-set amount.

(2) A “low” – a minimum amount that the defendant will pay the plaintiff if the jury’s verdict is for the defendant or is for the plaintiff but below that pre-set amount.

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One psychiatrist on a physician blog site recently wrote:

“If you’re a shrink and your patient kills someone, be prepared for being sued for your defective clairvoyance….

What we do is this: we help patients who come to us and want to be helped.

We are not some kind of extrajudicial, unconstitutional, coercive agents of social control.

We’re not society’s last, best line of defense against rampage killings.

We don’t have magic Jedi powers to make people do our bidding.”

 

Here’s what triggered the response.

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By Dr. JD, a plaintiff’s attorney, practicing in the Northeast

 

We continue our series of articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eyes. This attorney is a seasoned veteran. The series includes a number of pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and fully relevant. Please give us your feedback – and let us know if you find the series helpful.

 

One doctrine likely to set surgeons’ teeth on edge as the legal construction that they are the “captain of the ship” in the OR.

 

Surgeons have been led to believe that their mere presence in the OR makes them liable for all other staff members.

 

The doctrine actually holds that they are legally responsible for the negligent acts of operating room staff (not their employees) only when they are in the position to discover and prevent such negligence through their own ordinary care.

 

The “captaincy” aspect goes to their right to actually exercise control over the work being done by the hospital employee in a way that temporarily detaches that employee from the hospital’s control and instead makes them the “borrowed servant” of the surgeon. Not an easy sentence to swallow.

 

This is actually a fairly high standard to meet. Just giving instructions to a staff member or having the right to supervise them does not create liability for the surgeon.

 

That’s why the surgeon cannot be held liable for the negligence of the anesthesiologist, who is deemed to be an entirely independent specialist.

 

In other words, unlike respondeat superior, another type of imputed liability in which an employment relationship alone underpins the liability, under “captain of the ship” there is a genuine hands-on requirement.

Let’s have a look at an old California case, Fields v. Yusuf to see how this plays out.

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A provocative article caught my eye recently. Justice in Crisis: Victim Access to the American Liability System. The author, Joanna Shepherd, is an Associate Professor of Law at Emory. The question she intended to answer was simple. What amount in damages must a medical malpractice plaintiff’s attorney expect in exchange for representing a potential client? The common refrain from the trial bar is that everyone deserves their day in court. But, if many would-be plaintiffs can’t find a lawyer to represent them, isn’t that aspiration hollow?

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Physicians are permitted to prescribe drugs off-label. By off-label, I really mean “silent label.” Silent label implies the manufacturer has not received FA approval to market the drug as safe and effective for treating the off-label condition.

 

An example: some antibiotics have been approved for those 18 or older. The label granted by the FDA likely reflects the submission. The manufacturer might have wanted to keep costs down and only test adults. Most manufacturers know that if a drug is approved for adults, some physicians will prescribe the medication for younger patients. And the law generally allows physicians to do precisely that. (We are aware of only a narrow class of restrictions where the federal government dictates the uses for which a drug can be prescribed – anabolic steroids and human growth hormone). Eventually, the literature will accumulate data about the safety and efficacy of the antibiotic’s use in minors.

 

So doctors have had significant latitude to prescribe medications off-label.

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Here’s one doctor not afraid of the future of healthcare in the U.S.

Meet rheumatologist Dr. Ephraim Engleman who will turn 102 in March.

He said he has no plans on retiring. He drives from San Mateo to the campus of UCSF three days a week. He treats eight long term patients (one wonders just how long term). He spends the rest of his time directing the Rosalind Russell Medical Research Center for Arthritis. He has held that position since 1979.

Dr. Engleman also plays the violin once a week with a chamber music group.

His only ailment: spinal stenosis which forces him to walk stooped over with a cane.

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A good question was posed on physician forum. Why do doctors treat medical malpractice differently than being in an auto accident? Shouldn’t we just turn it over to our carriers and be done with it?

The reason: The two systems have little in common. First, a med-mal lawsuit is packaged as an assault on your reputation. If you doubt that statement, just read the typical cut and paste summons. It often includes language such as “with willful and wanton neglect” and so on. It’s never couched in language such as “you are a talented doctor who made a mistake. We understand you are human and care deeply about your patients. But, with Mr. Smith, the injury has cost him lost wages and future medical costs.”

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Finally…a non-controversial blog post.

 

My mother taught me not say anything if I could not say something nice. Suffice it to say, many times I have fallen short of that aspirational goal. And, diving deep into the Affordable Care Act, I could not find much positive to say.

 

In particular, there was almost nothing written about reigning in the dysfunctional medico-legal tort system. To the extent anything about med mal is buried in the ACA, it is limited to a “sense of the Senate” – a nonbinding statement used to express the position of the Senate on a particular issue. Through this language, the ACA suggests states should be prodded to “develop and test” alternatives to the existing medico-legal tort system. And Congress should “consider establishing a State demonstration” to run pilot projects on such solutions.” The ACA, however, includes no funding or binding provisions to those ends.

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