Legal - Medical Justice

Promotional Guidance – FTC Update on Advertising Applies to Physicians with Online Presence

August 15, 2024December 1, 2010 by Jeffrey Segal, MD, JD

Florida Medical Magazine Winter Volume 2010, Number 1; Pages 29 to 31 By: Jeffrey Segal, MD, JD, FACS Michael Sacopulos, JD

Cell Phones, Heath Information and Physicians

August 15, 2024November 18, 2010 by Jeffrey Segal, MD, JD

Recently the Pew Internet and American Life Project released results of a study it had conducted by Princeton Survey Research Associates between August 9th and September 13th of this year. The study looked at the use of cell phones to access health or medical information. Here’s what they found: 17% of cell phone users have … Read more

From Subprime Loans to Financing Lawsuits

August 15, 2024November 17, 2010 by Jeffrey Segal, MD, JD

Here’s history in the making.

At one time, before many of us were born, plaintiffs had to bankroll their own lawsuits. There, they would pay the attorney for his time and counsel. The plaintiff bore the entire risk for the outcome. But, if he won, he kept the entire pile of money, minus his expenses paid to the attorney.

The next – and dominant – paradigm: contingency fees. There, the risk is transferred to the attorney. In exchange for accepting that risk, the attorney keeps a healthy portion of any settlement / judgment after expenses. That amount is generally 33 to 40%. Naturally, the plaintiff’s attorney must diligently assess the risk / benefit for each opportunity. If the attorney loses, the plaintiff does not go bankrupt.

Enter the modern age.

Third party financing of lawsuits, as reported in the NY Times on November 15th:

More About Being an Expert Witness

August 15, 2024November 9, 2010 by Jeffrey Segal, MD, JD

By Joseph Horton, MD (This is a follow up to Dr. Horton’s earlier blog Patience is the Hunter’s Greatest Weapon) When I began my academic medical career, Chuck Kerber was with me when I was going over a talk I was about to give. I was understandably nervous about it. I set up the slides … Read more

Patience is the Hunter’s Greatest Weapon

August 15, 2024November 2, 2010 by Jeffrey Segal, MD, JD

by Joseph Horton, MD

I was raised by a pair of criminal lawyers in New Orleans. Being raised by wolves is not intrinsically pleasant, but it does give one a certain sense of being invulnerable to specious attacks—like while being on a witness stand. The inevitable education about courtroom and trial procedure doesn’t hurt either.

Of the two, my mother was the litigator. Tiny in size (I’m 5’3” tall and I dwarfed her), in court she stood, oh, about 11 feet tall, breathed fire, and was bulletproof. It was not a good idea to cross her there—or anywhere else, come to think of it.* One of the things that she drilled into my head was the First and Second Laws of cross-examination.** The First Law is never to ask an opposing witness a question you don’t know how he’s going to answer. The Second Law covers what to do on the very rare instances when it is OK to ask a question you don’t know how they’re going to answer: refer to the First Law.

It always amazes me how many opposing attorneys missed that lecture. Probably half the time I’ve been to trial as an expert witness, I get asked a question that there is no way they can know how I’ll answer. My best guess is that they believe that, since I really am physically small (and gray and nebbish-looking), I can’t possibly help anyone’s case but theirs. Best bet is to look as unassuming as you can, and wait for the opening. (Remember that patience thing?) Then overwhelming force usually stops the attack.

A couple examples:

Curbside Consults are Kosher: A Breath of Fresh Air

August 15, 2024October 29, 2010 by Jeffrey Segal, MD, JD

How often are we told as doctors? You can’t do this. Don’t do that.

We are sometimes made to feel as if we are two-year-olds.

Now for the good news. An article published by Victor Cotton, MD, JD* pushes the opposite position. Curbside consults. If you follow the basics, you’re on safe ground. A breath of fresh air.

As a neurosurgical resident, we were cautioned to avoid curbside consults. Attending physicians admonished us to get the formal consult. At Ben Taub County Hospital, our service was busy. The internal medicine service was busy. Everyone was busy. The one commodity we did not have was time.

I was forced to use the following strategy to coax an internist to see my patient – one suffering from a head injury, in the Neuro-ICU, with a gazillion lines penetrating his skin and a blood sugar of 450.

“I know you are really busy and I hate to bother you. I have a patient with severe head injury and a blood sugar of 450. Do you give one amp or two amps of insulin?”

“What! Don’t do anything. We’ll see your patient in a matter of moments.”

Mission accomplished. The more stupid I sounded, the easier it was to get a consultant to the patient’s bedside.

That made no sense to me then. It makes no sense to me today.

When Experts Opine Outside Their Core Competence. The Lockerbie Bomber

August 15, 2024August 19, 2010 by Jeffrey Segal, MD, JD

We’re fans of the British professional liability system. Across the Pond, the loser pays the legal fees of the winner. Not surprisingly, there, medical malpractice cases are screened more diligently before going forward. The cost of getting it wrong is stiff.

So, what happened to the convicted Lockerbie bomber? His tale has nothing to do with medical malpractice, but everything to do with how “experts” can control the outcome of a legal case.

John Stossel, Tort Lawyers and Defensive Medicine

August 15, 2024July 14, 2010 by Jeffrey Segal, MD, JD

John Stossel recently wrote an excellent editorial entitled “Parasitic Tort Lawyers.” OK, anything with that title will get our attention. While we concede that the headline is a little over the top (although not much) the article is well thought out – and echoes what Medical Justice has said for years. Stossel begins,

Tort lawyers lie. They say their product liability suits are good for us. But their lawsuits rarely make our lives better. They make lawyers and a few of their clients better off — but for the majority of us, they make life much worse.”

Why is this so? Because people are, for the most part, rational beings. If I touch a hot stove and burn my hand, I learn not to touch a hot stove again. Painful lesson, but lesson learned. How does this make our lives worse? When a person gets burned, whatever the reason, that person will naturally avoid that stimulus in the future. If that person is a doctor, and that stimulus is a frivolous lawsuit, the future behavior will be to avoid that stimulus (the frivolous suit) by “protecting themselves” via defensive medicine. If the effects of that behavior only impacted the doctor, then no real harm done. However, that rational, protective behavior (read defensive medicine) impacts our entire healthcare system. So much so, that some studies estimate the impact between $200 and $400 billion dollars per year. That’s billion with a B.

Health care law will exacerbate physician shortage

August 15, 2024June 1, 2010 by Jeffrey Segal, MD, JD

MAG Journal June 2010 – p 16 By: Newt Gingrich and Jeffrey Segal, MD, JD, FACS Forum: Health law will worsen doctor shortage Posted: Saturday, April 24, 2010 By Newt Gingrich and Jeff Segal Now that President Obama has signed his health care legislation into law, the focus is supposed to be on the millions … Read more

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