On April 8, 1999, James Milford Gray, 39, went into the emergency room of St. Joseph Hospital in Lexington, KY complaining of belly pain.   Everything that happened afterwards is in dispute.  Whether Gray cooperated with the examiners, we don’t know, but he was sent out, by ambulance, without any laboratory testing or x-rays, less than five hours later.  Although Gray had been living with different relatives, the ambulance driver couldn’t find anyone to accept Gray, so he was brought back to the hospital.  The hospital put Mr. Gray up in a hotel, but soon the hotel sent him back to the ER because he was vomiting blood.  After a few more hours in the hospital, this time lab work and x-rays were performed, and Gray was discharged, for the second and last time, about 12 hours after he arrived the first time. Gray died shortly after his second discharge and an autopsy showed that death was from an undiagnosed ruptured duodenal ulcer and peritonitis.

Although the lawsuit was filed exactly one year later, the case did not come to trial until late in 2005.  The first trial ended in a mistrial.

Gray’s lawsuit was retried the following month, in November 2005, resulting in a $25,000 compensatory damage verdict against all defendants plus a specific $1.5m punitive damage award against the hospital, on an EMTLA claim for “patient dumping,” and led to the first appeal.

EMTALA is a prime example of a corrective law that arose out of problems purely created by previous laws.  Whoever heard of hospitals “dumping” patients before the Federal government began tampering with health care?  Hospitals used to compete for patients, not dump them.  Once all hospitals were forced to become charity hospitals, however, it became inevitable that marginal hospitals would seek ways of getting rid of nonpaying patients.  Government’s answer to the problem it created was to outlaw “dumping,” or transferring of so-called “unstable” patients for financial reasons.  Notice how the term “patient dumping” demonizes the hospital trying to survive financially and not the politicians who put the hospital into its predicament.

The Kentucky appeals court affirmed the $25,000 compensatory award, but agreed that the jury had been given improper instructions about punitive damages and so awarded the hospital a new trial on the punitive damages award only. Additionally, the court said that the amount of punitive damages was excessive.

Before the third trial took place, however, the case went back to the appeals court to reconsider its opinion about the EMTLA award in light of a recent Kentucky Supreme Court decision.  However, the appeals court found that the Supreme Court decision it was to apply to Gray’s case wasn’t particularly germane.  Other than wasting another couple of years, the case was finally sent back for a retrial on the matter of the Hospital’s punitive damages only.

The third trial finally took place earlier this month and the jury awarded about the same amount as in the second trial.  Because the present verdict is nearly as much as the previous verdict and the appeals court believed this verdict was excessive, there seems little doubt that the appeals court will find this recent verdict excessive, too.  Frankly, it seems to me this case should settle before everyone retires or dies of old age.

In 2004, Cynthia Renee Strong was admitted to Lanier Memorial Hospital in Valley, Alabama, a town of about 14,000, located in the southeast corner of the state. After surgery, Dr. Swaroop Nyshadham  gave a telephone order to discharge Ms. Strong despite a lab report of a white blood count of 50.3 (normal 5 to 10.) The doctor thought the result must have been a laboratory error, but the lab technician told the nurse he had run the test twice and confirmed the result.  Not long after discharge, Ms. Strong was readmitted in extremis and died.  Her autopsy showed she died of peritonitis and an expert testified that at the time of discharge proper evaluation would have revealed the peritonitis in time for life-saving treatment to be implemented.

Most injurious nursing errors are of the bonehead variety, e.g., giving patient A patient B’s medication.  Ms. Strong’s theory of liability against the hospital was unusual in that it actually involved some judgment.  Although most people may be unaware, the federal government—long before Obamacare was enacted—already controlled the way hospitals were run through the Medicare regulatory system.  In order for a hospital to receive Medicare reimbursement, the hospital must comply with extensive government regulations, one of which requires that each hospital have a system whereby nurses are required to report doctors’ orders to their superiors and up a so-called chain of command what they believe to be potentially harmful doctor orders, until the physician chief-of-staff can resolve the issue with the offending doctor.  Essentially, the government says that a nurse cannot use her judgment but must report anytime an order is suspicious, or risk her own job as well as the hospital’s accreditation to be paid for work already performed. Back in the old days, I can recall a nurse occasionally calling me about an allegedly strange order:  9 times out of 10 I could easily explain the situation to the nurse and that would be the end of it; the tenth time I had made my own bonehead error, like a misplaced decimal point on a prescription strength, that the nurse caught.  Either way, I would always stay on good terms with the nurses.  Nowadays the situation is far more adversarial.

It appears that Ms. Strong’s nurse did call the doctor, the doctor did not change his order and Ms. Strong was discharged without any report up the chain-of-command. In the old days, the doctor would be completely responsible for the mistake.   Now Lanier hospital is on the hook because the nurse didn’t snitch on the doctor.  Don’t be surprised if the nurse is soon on food stamps.

I could be neutral and say “no non-lawyer” would find interesting, but I think “no normal person” is more accurate.  There is nothing normal about much of what lawyers fight over and it disturbs me how often legal disputes turn on what normal people find absurd.  Justice fails when ordinary people see a so-called legally correct result that doesn’t meet the test of common sense.

I believe justice was served in this federal malpractice case, however, and had the identical facts occurred in a private hospital here in Georgia, as opposed to a federally affiliated hospital, the defendants’ appeal would have had no basis and would need no hermeneutical rhetoric from legal scholars.  On the other hand, change the facts ever so slightly in Georgia, and the plaintiffs would have been thrown out by the judge before getting to a jury.  You can read the full Arroyo v. United States opinion here, in which the family had a $29.1 million verdict affirmed by the United States Court of Appeals for the Seventh Circuit.

In a nutshell, Christian Arroyo was born premature on May 17, 2003 and he quickly developed neonatal sepsis.  The controversy centered on his doctors’ failure to diagnose this life-threatening infection for at least 12 hours.  Had the diagnosis been made within the first few hours and penicillin treatment started, Christian probably would have been a normal kid, certainly not quadriplegic.

The Arroyos did not file their lawsuit until December 30, 2005, i.e., apparently after the two-year statute of limitations had run.   The idea behind a statute of limitations is that, over time, memories fade and records are lost and, unless we’re talking about a murder, maybe it’s a good idea to let bygones be bygones under such circumstances. But, what if, in a particular case, solid evidence is still available and there would be no problem proving liability to a jury? What if, as a result of medical malpractice a person is left incompetent and misses the statute because of his incompetence?   What if the injured person is a child who doesn’t have the knowledge or ability to go out and hire a lawyer? For these and other reasons, statutes of limitation tend to be disfavored at law, and often particular statutes of limitations have a host of exceptions and conditions.  Whenever a legislature writes a statute, however, the political considerations get first priority and centuries of jurisprudence are an afterthought.

The political pendulum has mostly swung towards physicians.  A fairly common method to help doctors at the expense of malpractice victims is to shorten the statute of limitations for bringing a  lawsuit.  To shorten the statute for everyone might look unfair to voters, so the doctor-friendly legislature typically sets conditions that have the practical effect of shortening the statute.  For example, Georgia has no discovery rule, like many states have, which says that the statute of limitations does not begin to run until the patient discovers either that an injury occurred or that a doctor caused a known injury.  Suppose a doctor fails to diagnose a cancer and two years goes by before the patient is diagnosed with an inoperable tumor. Georgia law says tough luck for the patient.

Sometimes though, the legislature openly shortens the statute.  It used to be that a child was allowed to grow up before the two-year limit began to run.  An infant injured at birth used to have two years following his twenty-first birthday–the former age of majority, now eighteen–to file a malpractice suit.  During one of Georgia’s regularly occurring “malpractice crises,” the legislature decided that seven-years old was time enough.  Had Christian been born at a private Georgia hospital, he would have had until his seventh birthday to file, so his suit was filed timely and would not have been an issue on appeal.  On the other hand, suppose Christian were ten-years old when he developed an overwhelming hospital acquired infection that went undiagnosed for twelve hours.  Then the two-year statute of limitations would be strictly enforced and Christian could not get into a Georgia courtroom, a technicality worth $29.1 million.

Christian was born in Northwestern Memorial Hospital, and the culpable doctors were actually employees of the Erie Center and on staff at Northwestern Memorial, a major teaching hospital of Northwestern University School of Medicine.    Because the Erie Center was part of the United States Public Health Service, the United States of America was substituted for the doctors as the defendant and the case proceeded in federal court under the Federal Tort Claims Act.  Unlike Georgia law, under the FTCA there is a discovery rule.  The appeal to the Seventh Circuit centered on when the Arroyo family discovered that Christian’s injury was caused by federal employees’ negligence.

Enter judges Easterbrook and Posner, famous for their work in the Law and Economics movement, which dominates judicial thinking these days.  The Law and Economics movement is very controversial because it gives credence to the most efficient economic solution to a dispute rather than simply determining the legal property rights of the litigants, regardless of economic consequences, but that’s a topic for another day.  In any event, these well known jurists opined at length that the Arroyos never knew that the doctors could have prevented Christian’s injuries until about a year after his birth and, therefore, the lawsuit was, indeed, filed within two years of discovery.  In Georgia, of course, Christian would have had until his seventh birthday to file his lawsuit and there would be nothing to appeal.

Clay Chandler was a police lieutenant in his forties when in March 2007 he went to Memorial Hospital in Jacksonville, Florida for bariatric surgery, i.e., obesity surgery.  Chandler had first gone to a required class from the hospital’s bariatric center and was led to believe that his surgeon had a high level of experience and that the hospital was a well-oiled machine.  Yes, the surgery had its risks, but continuing on with morbid obesity was likely to lead to an early death.  The hospital used the American Society of Bariatric Surgery’s Center of Excellence seal in advertising pamphlets even though Dr. DePeri, who performed Chandler’s surgery, did not at that time have the requisite experience to be accredited by the Society.

Following his surgery, Chandler’s heart stopped.  For whatever reason, eight days went by before a leak in Chandler’s bowel was discovered and repaired.  By that time Chandler had suffered severe brain injury and is now confined to a wheelchair.  He cannot bathe or dress himself and a video shows him to be emotionally labile. To make his life even more miserable, while Chandler was on a respirator for an extended period, the nurses didn’t keep his eyes properly covered and moist and he wound up injuring his corneas. His medical bills are some $250,000 annually and he is expected to have a normal life expectancy.

Obviously, the jury awarded Chandler much more than his medical bills.  The jurors were plainly angered not merely by the deficient care that Chandler received but because the hospital used deceptive techniques to lure obese patients into their maw.  But, you say, Chandler is a cop and should be used to liars and frauds in his line of work.  Perhaps.  But arresting crooks is a bit different than deciding whether to have elective surgery.  At some point a patient has to trust the recommendations of his physicians, particularly when he is told that if he doesn’t have surgery he is likely to die young.  Chandler went to cop school, not medical school, and it was reasonable for him to rely on the hospital’s reputation.  Too bad the reputation wasn’t deserved.

The perfect storm occurred in Jackson, Mississippi recently.  In 2003, Daschica Thomas went to the Jackson Women’s Health Organization abortion clinic.  This week, a judge awarded Daschica and her husband Christopher over $600,000 in damages.

It appears that for some reason, Dr. Joseph Booker started an abortion procedure on Daschica but told her he was unable to finish.  He sent her home with instructions to return at another time when another doctor would be able to complete the procedure.  Daschica, a diabetic, did as instructed and soon developed a serious infection.  She spent a week and a half in a coma before she awoke.  She apparently went on to recover.

The odd thing about this case is that it was set for trial on November 29, 2011, but no one showed up for Dr. Booker. Under the circumstances, the judge is required to look at the allegations in the lawsuit and assume them to be true.  If these facts that are assumed true lay out a case of medical malpractice, then the judge must enter a “default judgment” against the doctor.  On January 10, 2012, the judge held a damage hearing on the default judgment and awarded the Thomases $600,435, of which $500,000 was for pain and suffering.

Why didn’t the doctor show up in court? The reasons are unclear, however, we do know that Dr. Booker has sued the clinic for not responding to the Thomas’s lawsuit on his behalf. It seems like the clinic didn’t respond to Dr. Booker’s lawsuit either, so he is seeking to have his own default judgment entered.  The end result could be that the Thomases will have to chase after Dr. Booker for their money and he, in turn, may have to chase after the owners of the clinic for contribution.  It’s a mess.

I once had a medical malpractice defendant default.   I had sued two different doctors and two different emergency rooms.  Everyone answered except the first emergency room my client went to.   The default was the result of a SNAFU.   A big law firm represented this emergency room and a competent young lawyer wrote out a proper legal answer.  The young lawyer gave the paperwork to an assistant, but somehow the response never made it to the courthouse.  Because there were four defendants and, therefore, four times the usual amount of paperwork, I didn’t myself immediately realize one of the defendants had defaulted.   And, even after I did, the big law firm that the young lawyer worked for put up a herculean fight that lasted nearly a year before the judge finally entered the default judgment.  I don’t know why it took some six years for the judge to enter the default for the Thomases, but courts as a rule do not like to award money damages without reaching the merits of a case, so a party that loses on a technicality often has many avenues of appeal.

I’ve written about Feres before.  Justice Robert Jackson wrote the infamous decision in 1950.  Justice Jackson ruled that a man on active duty may not sue the military for negligence.  No matter how incompetent a military doctor is, for example, a serviceman injured through negligence has no recourse.   The Feres decision itself involved three personal injury lawsuits against the military, one of them a medical malpractice case in which an army surgeon left a 30 x 18 inch towel in a dogface’s belly.

A few months back, the Supreme Court had an opportunity to overturn Feres but decided to walk away.   I’ve written about the Witt case previously.  Witt was an airman who developed a simple case of appendicitis that would not normally challenge a first-year surgical resident assisted by a medical student and a couple of student nurses.  Witt’s medical professionals, however, managed to kill him in a series of blunders so awful that even military investigators couldn’t find excuses for them.  Every court his widow went to turned her down, based on Feres, and now even the Supreme Court has said no.  There will be no justice for military negligence victims now until Congress repeals the Feres doctrine.

Lee apparently paid what he believes is an excessive fee out of pocket, but has been unable to obtain his medical records to submit to his insurer for reimbursement.  Lee posted negative comments on Yelp and elsewhere about the coloratura.

According to the complaint, filed in Federal Court in the Southern District of New York (Manhattan,) Lee alleges that he was required to sign an agreement waiving any right to comment publicly on Maknevich’s services before she would treat him for his toothache.  Moreover, Lee says the agreement assigned any copyrights of such writing to the coloratura (I can’t stop using this word.  To understand why, read James M. Cain’s, “Mildred Pierce,” a non-mystery novel written by the renowned mystery novelist.)   Under a copyright infringement theory, the coloratura began billing Lee $100 a day as long as his articles remained online.  Dr. Makhnevich’s attorney also sent Lee an in terrorem letter threatening legal mayhem.  Anyone wanting to read all the gruesome details of what happened should read the complaint at the link above.   You won’t be disappointed.

Talk about things getting out of control!  How in blazes did a common-place problem become a class-action lawsuit? After all, Mr. Lee believes he was overcharged and the dentist no doubt believes she charged a fair price.  Sounds like the coloratura and her office staff need to learn how to handle disgruntled patients.  It’s not very hard: You return phone calls, you help your patients file their insurance claims (or file the claims for them and increase your fees, if necessary, to cover the service) and don’t blow off complaints.  A complainer must be considered a potential plaintiff.  I know what I’m talking about: I’ve been a doctor for 40+ years and never once was sued for medical malpractice, let alone sued as a defendant in a class action.

Lee received a letter threatening litigation,  got scared I’m guessing and ran to a lawyer.  It might be more accurate to say the letter drove Lee into a lawyer’s office.  I still don’t understand why this problem was not resolved without a lawsuit, but I don’t know all the facts and have more sense than to speculate.  What I do know is that a lot of bad law gets made out of bad cases and I wouldn’t be surprised if the courts have a field day with this one.

I’m not going to repeat the now self-evident principles that have been logically deduced from undeniably true premises and written down by Mises and the Austrian economists.  I’m merely going to lament, which sounds better than whine.

As a trial lawyer, I wade in government muck every day.  The civil justice system is government’s way of dealing with ordinary noncriminal disputes between people.  The civil justice system doesn’t work because nothing about it is voluntary: Defendants are commanded into a lawsuit by subpoena, i.e., the government orders them into the lawsuit, at the point of a gun, if necessary. The jurors are similarly subpoenaed into the jury pool.  And, the judge is paid by taxpayers, which means that few would contribute to his salary unless forced to.  The party that prevails in a lawsuit is too often made to feel like crime pays and the party that loses feels like he was swindled.

The criminal justice system is even worse. Prosecutors routinely hide exculpatory evidence from the accused and are infrequently punished if caught.   Mike Nifong was a rare exception to the general rule because the story sounded fishy from the beginning and every news organization in the world was watching him. In the more typical case, nobody is watching or gives a damn and if the prosecutor gets caught by dumb luck, it is a rare judge or bar that will punish him. Even when a genuine criminal is convicted, what does the victim get, other than vengeance at seeing his victimizer locked up?  Real restitution to the victim is uncommon.

I am appalled by people who say, “America has the best justice system in the world; if you know of a better one, then go there to practice law.”   The saddest part of this statement is that the premise may well be true:  America may have the best justice system in the world.  Our system may be the best available, but that doesn’t mean that justice is dispensed very often.  Some people are willing to settle for an opportunity to get justice.

Is there any way to improve our justice system?  Sure.  The whole thing could be privatized.  Much of the civil justice system is already privatized through arbitration and mediation, although the private system has the state system hanging over its head enough to nullify much of its functionality.  Nonetheless, existing private law in the civil justice system is a step in the right direction.

The criminal justice system could also be privatized, but whenever I make this statement to another lawyer, he generally looks at me like I just got off a spaceship.  That’s right, I believe that there very well could be competing private police forces, private judges and private penal systems that provide productive work, and in which the prisoner wouldn’t get out until his victim was made whole.

Is privatization of the justice system likely?  Not unless attitudes change.  The financial system may be approaching a point, however, in which attitudes could change rapidly about what government is genuinely capable of doing.   I’ve got to admit that I expect more tyranny before I see more justice.

Markell VanSlembrouck, now 15, was a 10-pound, 12-ounze baby—too big to be delivered through the birth canal.  If an obstetrician suspects that a baby is this large before the delivery, he would plan a Cesarean section and might even do it electively, at the mother’s convenience, near the end of the pregnancy.   Although the news stories give no specifics about what the doctors and nurses at the Beaumont Hospital in Royal Oak, Michigan did negligently, we do know Markell’s mom was allowed to go to term and a vaginal delivery performed with disastrous results.  Markell had a brain hemorrhage and will need 24-hour-a-day care for the rest of her life. Beaumont Health Systems vows an appeal.

These cases are tricky and difficult to prove.  Arguably the South’s most adroit medical malpractice lawyer recently wound up with a hung jury in want appears to be a very similar case here in Georgia.  The central problem with a too-big-baby case is proving that the obstetrician knew or should have known that the baby was too big to make it through the birth canal.  This burden of proof is a lot tougher than it sounds because even an ultrasound study is not as accurate as you might think in predicting whether a baby is too large to be delivered safely. The hospital typically gets dragged into the case because the obstetrical nurses who monitor the course of the mother’s labor fail to recognize the signs of fetal distress and notify the doctor in a timely manner.  The problem is that the signs of fetal distress are not always clear cut.

I hope the best for Markell and I salute Geoffrey Feiger.