Honoring the Saints

Belogradshick, Bulgaria - photo by JoAnn Sturman

Scott Sturman

Having never witnessed a progressive cause it could not support, the Fresno Bee is a good example of not only how the news is reported but what is reported and where it is displayed in the newspaper.  When check out time arrives, we ordinaries are remembered with a few words in the obituary section, tucked away in a cranny well back from the front page.  There is an equality in death and in the obit section; individual articles and pictures may vary in size, but a eulogy is a eulogy.  Does it really make a difference who has the biggest grave stone or mausoleum?  Politicians and the rich and famous are notable exceptions, but what is the Bee’s infatuation with the deaths of personal injury and criminal defense attorneys? 

When the Grim Reaper visits, few question front page publicity for a judge or legal scholar, but why the same treatment for professional litigators who sue anyone anytime, and whose phone numbers can be found in the back pocket of every dead beat in the community?  It’s not due to the public’s respect for the profession.  Just as nurses and firemen consistently rate as the most respected professions, the legal profession doesn’t fare so well with personal injury and criminal defense attorneys hovering at the lowest strata.

Perhaps even Joe the Plumber sees through the victims’ rights and reverence for the Constitution arguments and understands this stagecraft increases the cost of all products, services, and health care and is responsible for the explosion of regulations and rules.  Trial attorneys are bright people and realize tort reform, loser pays, and the broken jury system pays the bills, and the Bee clearly stands in their corner.  

   Belogradshick - photo by JoAnn Sturman

Suing Anyone, Anytime, Anywhere

El Capitan - photo by JoAnn Sturman

Scott Sturman

A judge can be dismissed for only a few reasons, and stupidity is not one of them.   --W.R. Priskna

My friend’s recent experience with personal injury attorneys confirmed that this group of predators are among the lowest life forms on the planet.  When unhampered by financial limits to their demands, they exhibit a rapacious and disingenuous ability to push damages to the extreme.  The larcenous quest is assured when dunderheaded judges preside over a carnival atmosphere, and jurists are selected by how well they fit into a court fool’s costume.

A death occurred on a job site, when an entry level employee with a wife and small child thoughtlessly put himself in harm’s way.  In the hands of an elite team of personal injury attorneys, the story would be rewoven and embellished to convince a jury the fault was due to the employer rather than a careless mistake.  Punishment rather than compensation became the objective, as the attorneys were quick to point out the lifestyle disparities between the deceased and his employer.  As it is in the political arena, class warfare is a handy tool in the courtroom, when jurists lose sight of facts and rely on emotion to redistribute wealth.

Of all the penalties, punitive damages, awards, and attorney fees levied in the case, one element typified how matters spin out of control when personal injury lawyers run amok:  The jury was convinced that without a man in the house, the widow feared for her personal safety at night.  The obvious solution was to provide a security guard in her home while the sun was below the horizon–seven days a week, 365 days a year, for a lifetime.  The cost was only $1.5 million, and one the jury agreed was entirely reasonable, although before his death the husband earned only $20,000 per year.  And what if the widow had a live-in boyfriend or remarried at a later time?  This was a trifling consideration compared to the pain and suffering she had endured since her husband’s passing.
 
Physicians in California are protected from exaggerated pain and suffering awards by MICRA legislation which caps limits at $250,000.  The program reduces medical costs and discourages physicians from fleeing the state to escape a predatory legal climate.  Now the program is under attack by personal injury attorneys, who feel emboldened by a 2/3 Democratic majority in both the California Assembly and Senate.  The lawyers, of course, declare their only concern is adequate compensation to injured parties.  A healthy share of the settlement has nothing to do with their love of humanity.

Californians should consider the following before tinkering with MICRA and its effect on the number of physicians practicing in the state:  There is already a shortage of physicians that only will intensify when Obama Care is foisted on the public.  Educational debt for physicians continues to escalate and often far exceeds a quarter of a million dollars.  With sagging reimbursements, adding more fixed costs in terms of higher malpractice premiums will further discourage highly qualified students from entering the medical field or force them to practice in more physician friendly states.

Listening to NPR’s California Report on the way to work, an anti MICRA advocate was asked what he thought was a reasonable limit to pain and suffering awards, “At least a million dollars,” he quipped.  To an increasing segment of the public who don’t know how many zeros are in a million, it doesn’t seem like a lot of money, but its impact on medical practices translates into a financial burden that a select profession must bear.  When there are too few doctors available to tend to life threatening medical conditions, consider having a personal injury attorney take care of the problem.  If they can’t talk your way out of it, at least they can find someone to sue to ease your pain and suffering.

What Do You Mean by the Word "The"?

 Clouds Rest - photo by JoAnn Sturman

by Scott Sturman

Last November in Hawaii a Canadian pediatric cardiologist, an attorney practicing in California, and I sat down after dinner to sort out the American health care system.  Presumptuous by all means, but how could we could do a worse job than the politicians who have made a career running the wagon train off the cliff?  All on the panel prefer to simplify problems, so it wasn’t long until we settled on two topics to resuscitate another leadership failure.  Fraud and waste seemed like a good place to start.
 
The FBI estimates health care fraud costs $80 billion per year, while the New York Times put the value at $100 billion for Medicare alone and $250 billion for health care in the aggregate.   The latter value represents nearly 10% of the annual national health care outlay.  For Democrats that translates into a lot of food stamps and delta smelt and for their colleagues on the other side of the aisle plenty of tanks and airplanes.

When a television announcer proclaims, “If you’re on Medicare or Medicaid, this product won’t cost you a dime.  In fact we’ll fill out the paperwork for you, and XXX will be delivered to your door at no cost,” one should envision wheel barrows full of $100 bills leaving the U.S. Treasury and into the pockets of entrepreneurs.  Vendors must feel no small comfort that the odds of a customer examining an invoice with zero balance is virtually zero.

Solution #1: Whether its seeking health services or purchasing medical merchandise, even a modest financial obligation encourages patients to use them sparingly, peruse bills for accuracy, and report fraudulent activity. 

Our committee disagreed on the extent and cost of defensive medicine, but the attorney was out numbered, and victors write history as they see it.  As doctors, it has been our experience that tests and procedures frequently are ordered, which have as much to do with fending off potential lawsuits than being thorough.  What is the scope of these expenses?  Estimates reported in the Wall Street Journal range from $270-650 billion per year with potential savings of $2.6 trillion over the next ten years.   

Did you have sex with Ms. Lewinsky?”  a reporter asked Bill Clinton, while trying to extract information at a press conference about Monica and a cigar.

“What do you mean by the word ‘have’?” Clinton, the Georgetown University and Yale Law School graduate, responded.

At the time Clinton’s retort sounded ludicrous, but he simply reverted to his lawyer mantle, where even the definitions of basic words are contested.  Plaintiff attorneys thrive in this environment, and carefully chosen words translate into cash and a lot of it.  No where are these linguistic skills more lucrative than when used to tie dull jurist’s minds in knots to the point they actually wonder what the word “the” means.

 Last August my wife attended a seminar in Las Vegas on “Malpractice and Fetal Monitoring,” where both defense and personal injury attorneys discussed jury selection.  Suffice to say, each side is in the market for a different product.  A cynic could conclude the facts of the case are secondary, if a juror’s primary attribute is mental malleability.  

By its very name the Affordable Health Care Act purports to place a priority on financial prudence.  It stands to reason if medical malpractice costs and defensive medicine are a major contributors to excessive health care expenditures, then they should bear no less scrutiny than any other component.  That tort reform was deemed off limits by politicians who wrote the law smacks of obscene cronyism which places special interests ahead of the welfare of the country.

Solution #2:  Tort law is a major contributor to the unacceptably high cost of health care.  Loser pays, protection from frivolous law suits, and relying on a panel of experts rather than gullible juries would help rein in the reign of terror being waged by personal injury attorneys against the medical establishment.

It took us a couple of hours to save the country half a trillion dollars a year without reducing patient access to health care.  It is really not all that difficult if the primary motivation is solving the problem rather than trying to get reelected.    

Ostriches, Neville Chamberlain, and Doctors

On the Serengeti - photo by JoAnn Sturman

by Scott Sturman, M.D.

The United Auto Workers were at their best this week as they took to the streets in protest of Michigan’s Right to Work Law.  Woe to anyone who disagreed with their world view.  Despite inflated wages and the inability to compete without government subsidies, they were willing to put a fist in the face of anyone who felt otherwise.  At least one has to admire the passion and gall of a group whose skills can be easily outsourced to more efficient, non union automobile plants in the South.  To the union worker Right to Work is a call to arms and an invitation to resort to any means to prevent its implementation.

Doctors’ responses to Obama Care has been considerably more tepid.  Gaging the level of protest, one would think they were dealing with a minor traffic violation rather than being confronted with a program which will certainly destroy private practice medicine.  The promise of less independence and income with more restrictions and hours on the job and no talk of tort reform has done little to arouse the profession.  Rather than strike, punch a politician in the nose, or display abject anger to the public, doctors prefer to lay down hoping the outcome will not be all that bad.  They are team players and not confrontational by nature, so it best to avoid the withering censure of the media about selfishness and moral turpitude. 

Physicians require years of training, sacrifice, and expense to become competent.  The profession is utterly indispensable to society, but apparently its leaders prefer to disregard this bargaining tool.  Unlike the fire breathing UAW, physicians opt to complain among themselves and accept what has been thrust upon them.  This is a time for a Churchill not a Chamberlain, otherwise the profession resembles a gaggle of ostriches with their heads buried so deeply in the wrong place that it is unaware a battle needs to be fought.   

 Neville Chamberlain shows proof of Hitler's good intentions and proclaims "peace in our times."

One of Us?

Anchorage to Denali - photo by JoAnn Sturman

by Scott Sturman

As the only conservative in America whose favorite magazine is the New Yorker, I long ago stopped reading the editorial page.  Unlike the op-ed page, which reminds me of a high school valedictorian’s commencement speech proclaiming how their generation will right every wrong in the world, the articles are informative, entertaining, and well written.

Like many in my medical group I share the view there is too much waste in medicine, which is often exacerbated by needless regulations which make our jobs more difficult.  As an example, we are forced to discard perfectly safe and effective drugs which are not only scarce but expensive.  The insanity reminds me of my experience in the Air Force in 1973 when the nation was in the throes of a fuel shortage.  With cars backed up for miles at service stations, we flew so many hours that our butts cried for relief.   Even without a valid mission, Lt. Colonel Michaels ordered his pilots to bore holes in the sky and waste tons of JP4 for fear if not used, the unit would be allocated less flying time the next quarter.

And then in 1998 some articles began appearing in the New Yorker Magazine written by Atul Gawande, a physician who was also a surgical resident.  How did he have time to churn out these in depth, poignant observations, when at the time most surgical residents considered a hundred hour work week to be short?  Essays followed which discussed clinical problems from a unique, but refreshing point of view and exposed inefficiencies within the health care system which were expensive and extraordinarily wasteful.  Here was an eloquent spokesman for the medical profession and one of us.

After the Presidential election of 2008 Dr. Gawande’s writings took on more of a political slant, and although medical problems and waste were frequent topics, his articles were suffused with comments supportive of national health care.  His solutions to the the health care crisis made no mention of market forces, competition, or health savings accounts, but relied on central control, as he extolled the merits of ObamaCare.  If this bright man, whose success as a journalist was based on exposing inadequacies in the system, why did he virtually ignore tort reform and fraud as contributing causes?  He was no longer a colleague but the voice of socialized medicine.

An author’s background offers clues about personal motivations, and a glimpse at Wikipedia was revealing.  Medical students and residents may have political views, but most are not political activists; there is simply not enough time or resources.  This is particularly the case of general surgery residents, who battle fatigue and sleep deprivation, and extra time is spent collapsed in bed.  Dr. Gawande’s history is unusual in this respect.  As a student he volunteered for the Gary Hart Presidential campaign and again for Al Gore in 1988.  He took a hiatus from medical school in 1992 to campaign for Bill Clinton and served as a senior advisor for the Department of Health and Human Service in the Clinton Administration before returning to medical training.  During this time he cultivated contacts within the Democratic Party and main stream media which catapulted his career and gave him access to resources far beyond those of the normal surgical resident or practicing physician.

Dr. Gawande is a gifted writer, and he has used his skills to popularize issues in clinical medicine and to propose sweeping changes to the health care system.  However, when it comes to choosing between national health care or private practice medicine, he is one of them and not one of us.   

Suing God, Doctors, and the Kitchen Sink Without Risk

 Ice and Earth in Tibet - photo by JoAnn Sturman

Scott Sturman
fliesinyoureyes.com

Perhaps I exaggerate a bit with the title, after all attorneys incur some financial risk when they are forced to pay their employees to type and file their accusations.  Yet for the most part, they are free to concoct every imaginable offense without fear of being sued themselves for such outrageous conduct.  More often than not, the defendant is relieved just to leave the nightmare behind, knowing full well the ordeal had little to do with the plaintiff's Constitutional rights and much to do with billable hours and histrionics.

Imprimis Newsletter is known for outstanding essays, but the latest written by John Gordon Steele, “Economic Lessons from American History,” in the July/August 2012 issue is exceptional and answers a longstanding question.  “With regard to legal fees, why did the American legal system discard the ‘loser pays’ provision which is the standard among common law countries throughout the rest of the world?”  Here’s Mr. Steeles’s answer: 

The American Rule came about as what might be called a deadbeat’s relief act. The Treaty of Paris (which ended the American Revolution) stipulated that British creditors could sue in American courts in order to collect debts owed them by people who were now American citizens. To make it less likely that they would do so, state legislatures passed the American Rule. With the British merchant stuck paying his own court costs, he had little incentive to go to court unless the debt was considerable.

The American Rule was a relatively minor anomaly in our legal system until the mid-20th century. But since then, as lawyers’ ethics changed and they became much more active in seeking cases, the American Rule has proved an engine of litigation. For every malpractice case filed in 1960, for instance, 300 are filed today. In practice, the American Rule has become an open invitation, frequently accepted, to legal extortion: “Pay us $25,000 to go away or spend $250,000 to defend yourself successfully in court. Your choice.”

Trial lawyers defend the American Rule fiercely. They also make more political contributions, mostly to Democrats, than any other set of donors except labor unions. One of their main arguments for the status quo is that the vast number of lawsuits from which they profit so handsomely force doctors, manufacturers, and others to be more careful than they otherwise might be. Private lawsuits, these lawyers maintain, police the public marketplace by going after bad guys so the government doesn’t have to—a curious assertion, given that policing the marketplace has long been considered a quintessential function of government.

The reason for this is that when policing has been in private hands, self-interest and the public interest inevitably conflicted. The private armies of the Middle Ages all too often turned into bands of brigands or rebels. The naval privateers who flourished in the 16th to 18th centuries were also private citizens pursuing private gain while performing a public service by raiding an enemy’s commerce during wartime. In the War of 1812, for instance, American privateers pushed British insurance rates up to 30 percent of the value of ship and cargo. But when a war ended, privateers had a bad habit of turning into pirates or, after the War of 1812, into slavers.

Predictably, the American Rule has spread exactly nowhere since its inception at the same time as the decimal coinage system. There is not another country in the common-law world that uses it. Indeed, the only other country on the planet that has a version of the American Rule is Japan, where a very different legal system makes it extremely difficult to get into court at all.

The United States has more lawyers and more lawsuits, per capita, than any other country. But lawsuits don’t create wealth, they only transfer it from one party to another, with lawyers taking a big cut along the way. Few things would help the American economy more than ending the American Rule. Texas reformed its tort law system a few years ago and the results have been dramatic. Doctors have been moving into the state, not out of it, and malpractice insurance costs have fallen 25 percent. And remember, good ideas always spread.

Pundits argue how to bring down the costs of health care and save Medicare.  Some of the solutions will not work and others are inordinately complicated with savings and financial goals realized far in the future.  Here is a simple way to reduce the cost of medicine and most businesses by 20% across the board overnight:  Tort reform where loser pays, attorneys are liable for frivolous law suits, and non criminal cases are arbitrated by judges in a non jury environment.  These reforms should apply to the health care industry and to every businessman and woman in the country, who live under the threat of an overly aggressive and punitive legal system.

Imagine the boost to the American economy if suddenly the cost of all goods and services plummeted by 20%.  Attorneys could continue to file law suits, but by assuming a reasonable amount of risk with each action, the balance would be restored, and it would not be open season on the American public.  

After Two A.M.

Rice paddies in Nepal - photo by JoAnn Sturman

Scott Sturman
fliesinyoureyes.com

Climbing out of bed at two A.M. to drive to work brings a number of unrelated thoughts to mind:

Where am I?

What time is it?

Where are my clothes?

If I work all night, I’m going to be a zombie and may miss my kid’s game this evening.

What surprises lay in wait with this emergency surgery?

The IRS and State of California will get half of my pay.

What about the guy who is sleeping tonight with his pregnant girlfriend and won’t work tomorrow because he makes more on welfare than picking peaches on the farm?

If tonight’s patient doesn’t have any money, why is he entitled to sue a Good Samaritan for malpractice?

Perhaps I should feel guilty about these selfish thoughts, but as another tax season approaches I am reminded of people who perpetually take from the system and survive due to the generosity of those who are willing to get out of bed at two in the morning.

One wonders how many chances a heroin addict enrolled in a methadone rehabilitation program should receive, when he cannot resist the temptation to inject his beloved drug into a vein on his diabetic ankle. A life threatening infection ensues requiring multiple procedures which includes cardiac surgery when one of the heart valves is destroyed. The bill swells to hundreds of thousands of dollars and is paid by either the taxpayer or the hospital. It is difficult to envision any scenario where this is a prudent method to spend scarce health care dollars.

Personal injury lawyers dispute tort reform is an important part of health care reform, but personal experience teaches otherwise. Many years ago a neurosurgeon and I were called at two in the morning to care for a young man with massive head trauma. The patient suffered from a known seizure disorder but refused to take medication. He was standing high on a fifteen foot ladder while changing a light bulb. As luck would have it, he seized and fell head first on the cement floor beneath the ladder. He was found unconscious and transported to the hospital where he was diagnosed with a massive cerebral hemorrhage. Emergency surgery proceeded as well as could be expected, but the patient died two days later. Two months later the surgeon, the hospital, and I were sued for wrongful death. The case was meritless and eventually lapsed but not without wasting a lot of money and time.

With blood products in short supply, the two in the morning mind wonders if it appropriate to exhaust the blood bank to attempt to save the life of a gang banger shot in the chest by a rival. The dilemma intensifies if the patient shot a policeman and survived the aftermath long enough to reach the operating table. A cancer patient, a patient in shock from a bleeding colon, or a child injured in a motor vehicle accident have a more valid claim to finite, life saving resources.

Rule makers do not get out of bed at two in the morning. Their world is controlled, theoretical, and contemptuous of those who act under stressful conditions where risks and benefits must be considered. I wonder how they would react, if told there was no blood available for their son or daughter; the last pint was transfused to a convict stabbed in a knife fight, who despite the best efforts of the surgical team died in a pool of blood on the operating room table.

Medical Malpractice in Morocco

Sand Dune in Morocco - photo by JoAnn Sturman

Scott Sturman
fliesinyoureyes.com

Due to its position on the northwest corner of Africa, Morocco is not a closed, insular culture as one would find on the Arabian peninsula. Arabs, Europeans, and sub Saharan Africans have had a hand in molding this conservative and relatively stable country of 31 million.

The souks of Fez and Marrakech, the quaint sea side town of Essaouira, the rugged Atlas Mountains, and the stark Sahara are fascinating to visit. Yet, as with all travels, it is fruitful to delve under the surface and discover how people provide for their basic needs. Being a doctor, it is interesting to learn how a third world country deals with issues like medical malpractice and access to health care.

Medical malpractice litigation simply does not exist in Morocco where 98.7% of the population is Sunni Muslim. The faithful believe that life’s events are due to Allah’s will rather medical negligence and malpractice. In this religious country it would be futile for a medical malpractice attorney to try to convince a jury that his client was entitled to damages sanctioned and preordained by Allah.

Morocco is a poor country. Of the 227 countries listed in the CIA World Book, it ranks 150 in per capita GDP. The government provides health care services for a nominal fee. One would think free health care would be appealing in a country where resources are thin and every dirham counts. Yet most Moroccans will scrape, save, and defer other needs to pay for private health care services.

This is a reoccurring theme. Public health care in the third world generally tends to be of low quality, highly bureaucratic, and prodding. There are rare exceptions like Communist Cuba, but not unlike those living in Europe where national health care is available, people are willing to make enormous financial sacrifices to obtain higher quality care delivered by the private sector.

These experiences from faraway places should not go unheeded. Tort reform is central to lowering health care costs and improving efficiencies in the United States. Defensive medicine and unreasonable documentation requirements are wasteful and outrageously expensive. In theory national health care sounds like a panacea, but in time even the best conceived systems will degenerate into chaos. The next time a politician paints a rosy picture of government controlled universal health care, open the history book and study the promises made regarding Social Security and Medicare.

Ripping the Heart Out of a Nurse

Death Valley - photo by JoAnn Sturman

Scott Sturman
fliesinyoureyes.com

“Common sense is not so common”
Voltaire - French philosopher and writer 1694-1778

A call comes from the recovery room nurse caring for an out patient who is ready to be discharged after a minor surgical procedure, “Doctor, Ms. X. is ready to go home and you ordered Vicodin one or two tablets as needed before leaving the hospital. How many pills do you want me to give her?”

I know the nurse is as frustrated as I am. When this same patient, who has no medical training is discharged from the hospital and picks up a prescription later that day from the pharmacy, the instructions will read: “Vicodin 1-2 tablets every 4-6 hours as needed.” The patient will be required to make three simple choices: should I take the medication, should I take 1 or 2 pills, and should I take it every 4 or every 6 hours? In the hospital setting a registered nurse with years of experience caring for surgical patients is not free to make these decisions independently.

Last year the hospital administration declared nurses could not start routine IV’s on patients prior to surgery even though preprinted orders were in place. For nurses to do so was construed to be performing a procedure without adequate authorization from a physician. Even though placement of a preoperative IV is historically a nursing responsibility, nurses were expected to call the physicians at any time during the day or night to clarify the order. It is difficult to imagine not wanting to have an IV started prior to an operation, but to some nursing administrators this simple concept morphed into a complicated scenario.

Every year in a national poll nursing is selected as one of the most respected professions in the country. Nurses are lauded for their compassion, dedication, competence, and communicative skills but not the manner in which they fill out paperwork. Ironically, nurses are being forced to spend less time with patients and more time charting and attending to other clerical responsibilities. The explosion of information required for the medical record has transformed it into a legal document rather than one which highlights only pertinent medical information.

An observation in regard to medical documentation: most of it is never read unless by an inspector during an internal audit or by a lawyer in the case of malpractice litigation. Information which is accessed frequently such as the patient history and physical examination, orders, vital signs, medication lists, fluid status and laboratory results is important and should receive priority. The rest is boiler plate, a waste of time, and undermines patient care.

Many years ago while in the Air Force I had the misfortune of serving under an incompetent commander, whose primary motivation was promotion to colonel rather than improving the operational capability of the unit. He was paranoid that the slightest mishap would jeopardize his career, so he discouraged all but the most routine air rescue missions and kept his pilots out of the cockpit and at their desks filling out form after form. He believed, “the safest flight is the one that never takes off.”

In many ways hospital administrators and government bureaucrats remind me of my former commander. They discourage independent thinking and emphasize documentation at the expense of patient care. We all know the reason: any mistake puts their careers at risk and exposes hospitals to litigation. Supervisors play it safe and initiate overly restricted rules which are made for the lowest achievers. Transforming nurses into clerks and not taking full advantage of their intellectual talents may be the best strategy for personal careers and dealing with lawyers, but it is not the best for patients.

The Frivolous Law Suit That Drives You Crazy

Cathedral in Cusco, Peru - photo by JoAnn Sturman

Scott Sturman
fliesinyoureyes.com


Frivolous medical malpractice suits increase the cost of health care and burden the court system with needless litigation. Let me share a personal experience, probably not unlike thousands of others, that demonstrates there must be a better way.

Two years after entering private practice I provided anesthesia for a patient who had a fissure removed from his anal area. I gave medication via an IV while the surgeon placed local anesthesia in the operative area. The case lasted ten minutes and was soon forgotten until about a year later when the surgeon, a fellow colorectal surgeon, the registered nurse and operating room technician, the hospital, and I were sued for chronic rectal pain, anal incontinence, erectile dysfunction, painful urination, and depression stemming from these maladies.

The delay in filing law suits of questionable merit in not unusual. The one year statute of limitations is satisfied, and the medical staff finds it difficult to remember any details of the case other than what has been entered on the written record. I reviewed the chart and could not imagine how giving a patient an appropriate amount of intravenous fentanyl and versed could contribute to his alleged complaint. I notified the malpractice insurance carrier and soon after met with my assigned attorney, assuming I would be dropped from the case in short order. Little did I know this was the beginning a four year circus that cost a lot of money and time.

Interrogatories, depositions, and hearings followed for the next two years until the plaintiff’s attorney, realizing the insurance company was not going to pay to settle the case, resigned. The three physicians and hospital attorney breathed a sigh of relief, anticipating the travesty would come to an end. Undiscouraged, the plaintiff decided to proceed pro per.

At the three year point all parties, their attorneys, and the plaintiff met with a mediation attorney for non binding arbitration. The plaintiff arrived 30 minutes late dressed in combat fatigues, sporting a long beard, and carrying his records in a card board box. At the conclusion of the session the mediator stated unequivocally the plaintiff’s case had no merit and recommended charges be dropped.

The plaintiff disregarded the findings and over the next year an inane game evolved where the judge who was assigned to the case ordered submission of a series of pretrial documents. The defendants invariably responded on time, while the plaintiff never seemed able to fulfill his duties in a timely fashion. Yet in all cases, the judge excused his irresponsible behavior and allowed the plaintiff an extension. The message was clear -- the defendants must play by the rules, but the plaintiff need not.

During the four years I often asked my attorney why I remained a party to the case. A timid man, he suggested caution and patience and reassured me I eventually would be exonerated. Well, it’s easy to be patient when you are not the one being strung along for years. I brought my concerns to the attention of my colleague and good friend who was a tennis partner of my attorney’s boss, who also was President of the California Trial Lawyers Association. I called him that afternoon and condensed four years of legal frustration into five minutes. He promised to look into the matter and within a week the plaintiff offered to drop me from the case provided I would not sue him for generating a malicious law suit. I agreed but was left frustrated and angry with the legal system which allows the plaintiff to perjure himself with scant fear of penalty. In this dirty game a good attorney is priceless.

When last year the Democratic Congress drafted and enacted health care legislation, the domain of frivolous law suits was left untouched. Supporters of the status quo, the personal injury attorneys, were quick to defend their turf by offering euphemisms like “every patient has the right to have a day in court” or “we’re just protecting the constitutional rights of our clients.” Legitimately injured patients are entitled to these rights but not ones who lie to bilk the system or their legal accomplices who make a fortune driving up the cost of health care.

Next: New Rx’s to preserve patients’ rights and reduce the cost of litigation.

Saving Billions

Mt. Kilimanjaro, Tanzania

Scott Sturman

fliesinyoureyes.com

“Bureaucracy is the art of making the possible impossible.”

Javier Pascual Salced

Here I go again using personal experience to plant grave doubts in my mind about the promised savings from the Obama health care initiative. According to experts $500 billion in savings can be expected with implementation of electronic record keeping. If it sounds too good to be true then .....

Government agencies save money by reducing the number of employees, cutting salaries, or spending less for more product, but in reality this rarely happens. Government saves money by saving time, ostensibly so employees are free to work on other tasks. If this process sounds nebulous, it is an understatement. How does one compute time savings for public sector employees?

W.R. Priskna addressed this issue in an essay written for Flies in Your Eyes on November 13, 2009 entitled “Saving Millions.”

http://flies-talesoftheblue.blogspot.com/2009/11/priskna-ive-important-job-for-you.html

He recounts how his ideas “saved” thousands of dollars for his Air Force unit by moving the desks in his office every three months, so they were closer to the latrine. This required less time for the pilots to relieve themselves and return to their desks, allowing them to do more paperwork. As a result, Priskna was lauded for his efforts by his commander. There was also a plan to save time by redesigning the Air Force flight suit, but I'll let you read the story.

A major burden with medical record keeping is the volume of paperwork and electronic documentation, both of which have more in common with a legal document than a medical record. Much of the documentation required of health care workers is completed for the purpose of defending potential law suits and is never read again unless legal action ensues. It is an horrendous waste of time and money and begs the question why tort reform was not considered as a way to reduce medical costs. One could make the argument that excessive documentation rations health care in an insidious manner. At every level in the system the process of delivering services is delayed and made unnecessarily complicated which invariably directs more effort into fulfilling clerical needs and less towards patient care.

Some of the operating rooms in which I work use electronic record keeping and others do not. In the venues which use electronic charting the nurses assigned to the room spend a large portion of their time entering data into the computer – the most time consuming part of the process. In fact in many cases it is difficult for them to keep up with their clerical responsibilities, and they are forced to complete charting between cases – time when they normally would be preparing for the next patient. In hospitals where conventional record keeping is the norm, the nursing staff usually is able to care for their patients and complete the paperwork in the allotted time. In both cases, however, it is tempting and relatively easy for hospital administrations to add more superfluous documentation requirements to appease inspectors and purportedly enhance safety.

To hear electronic record keeping described as a seamless system of total medical conductivity where billions of dollars are saved may sound plausible to the lay public, but the promised rewards will never materialize. Bureaucracies do not work this way. A government sponsored system will be expensive to implement, time savings will be off set by larger amounts of data entry, and it will perpetuate a record keeping system which is devised more for legal protection than patient care. How much closer should I move my desk toward the bathroom?

Health Reform Sans Tort Reform

Wool in Fez, Morocco - photo by JoAnn Sturman

Scott Sturman
fliesinyoureyes.com

Kelly Johnson was a brilliant aeronautical engineer who designed airplanes decades ahead of their time. None of these innovations was more impressive than the SR-71 reconnaissance plane which could fly to great altitude at speeds well in excess of Mach 3. The Air Force gave him and his design team aircraft performance specifications, and it was their responsibility to meet these goals. Every component of the airplane was conceived de novo and built to function synergistically.

Now suppose Congress instructed the Air Force to proceed with the project under the following guidelines: Use new materials, state of the art avionics, and revolutionary fuselage and control surface designs, but maintain a conventional turboprop propulsion system. The Soviet Air Defense Ministry would have been licking their chops at the prospect of firing a few SAMs at this farcical hybrid.

Now the Obama administration intends to totally revamp the health care system, and power it with a turboprop rather than a ram jet. Meaningful tort reform is not being considered seriously in the master plan. To reconfigure 20% of the national economy and disregard a critical component of the design is absurd. In deference to the powerful trial lawyer lobby, it is simply off the table. Tort law contributes substantially to the cost of health delivery through the practice of defensive medicine, burdensome levels of documentation, and malpractice insurance rates.

Modest tort reform in California which restricted pain and suffering damages to $250,000 avoided the catastrophes experienced in states without such protection. A few more common sense based reforms are in order:
1. Frivolous law suits are a nuisance and expensive. To discourage these suits the plaintiffs and their attorneys should pay the defendants' legal costs if the case is deemed to be without merit.
2. Nowadays medical testimony is too complex for most lay juries to consider, particularly for jurists who are selected for their penchant to award large settlements rather than their ability to sift through detailed, scientific testimony. A panel of experts is more suitable to deliver sound and consistent evidence based decisions. Using a similar tact, Kaiser Hospital patients adjudicate grievances through a compulsory mediation process.
3. During litigation the plaintiff has the right to sue everyone involved in the case irrespective of their personal culpability. This shot gun approach to legal remedy forces innocent parties to spend time and money for their defense until they are dismissed from the case. Rules are needed to protect innocent health care workers from this treatment.

At times the health care system is like a bus in a third world country. There are people on the roof, on the hood, and crammed inside. There are pigs, chickens, and luggage bursting from every window and door. Despite the load the bus creeps along avoiding the pot holes as diesel exhaust belches from the tail pipe. It is unclear whether the current tort system is a pot hole or a hippopotamus riding in the bus, but it effects the ride.