Your blog is a biased, ATLA talking points, propaganda organ. However, you should make some attempt to maintain your credibility by checking the facts in the posts you publish.

Reflex sympathetic dystrophy (RSD) has no established cause. It may be caused by a surge in sympathetic output (a stress response) after injury, and possibly by some immune response gone wrong, not by surgical malpractice. How this person got his verdict, and why he has only two years to live is not clear. If his main condition is now RSD, his assertions do not explain his claims. RSD is not associated with early death unless he commits suicide, or has another illness.

This plaintiff likely was allowed to scapegoat his surgeon and physical therapy for a condition whose cause is unknown, by a rigged land piracy operation. RSD is not caused by medical malpractice. That a court blamed the physician for an unknown causation just shows the cult criminals on the bench are collaborators with land piracy.

The court is not competent to solve medical mysteries nor to settle medical controversies.

http://www.ninds.nih.gov/disorders/reflex_sympathetic_dystrophy/reflex_sympathetic_dystrophy.htm

Once the lawyer and his land piracy collaborator on the bench lose their self-dealt, lawless immunities from any accountability, watch me be lead plaintiff in a claim against these criminals on behalf of a class of all patients, from whom every penny of his settlement was taken, in the form of specie or reduced access to care.

Please, fact check better in the future. If you do not want to bother fact checking, post rebuttal articles to maintain balance and credibility.

I want to know the name of the plaintiff expert in this case. The judge in this case needs to be removed for his bias and incompetence.

Land piracy? Cults? Criminals? Wow.

Just to be clear, Cyrus was merely reposting an article written by a victim of either medical malpractice or a "medical mystery." The point Frank tried to make was that damage caps are inherently unfair. This man obviously was familiar with both sides of the issue.

Supremacy Clause argues that there is no established cause for this syndrome. I'll try and find the actual case and let's see what the court based its opinion on. As to our site being "biased" and a collection of ATLA talking points, people are free to judge for themselves. Note that the op-ed you are critiquing came from a former tort “reform” supporter, so it is impossible to say that it represents ATLA talking points.

This op-ed appeared in the New York Times, so if you're accusing me of not "fact-checking" you'll have to take it up with them as well...although an opinion piece is ultimately just that.

The purpose of the comments section is for rebuttals. We invite any and everybody to post rebuttals and rebuttal reports in these comments. I don't have the time to give counterpoints to everything I say or post, or that any other contributor posts..... but I would if I could....because it helps nothing but assist an honest and frank discussion of these issues, which I believe overall advances the discussion positively,

Supremacy Clause, let's get to the bottom of this issue together and both read the case and post some comments about what we find. I as much as you, want nothing but honest discussions here. I suspect that there are those who may disagree with you about your medical analysis above, but I’m happy to be wrong and let’ find out.

and let's just check supremacy clause's affiliations, while we're checking facts. insurance company stooge? one of the right-wingers who people the tort deform movement? or maybe even we got ourselves a real live pharmaceutical pr hack?

sorry, mr. supremacy, but you might want to remember P.T. Barnum's famous words about being able to fool some of the people some of the time but not all of the people all of the time. tort deform's days are numbered. . .and thank the heavens for that. there are so many Frank Cornelius' out there, thanks to a movement based on corporate America's greed.
geri

Cyrus: Fair. Let's get more facts about the case. The RSD may be a collateral matter in the case. I will be glad to run any facts by experts in the area and relate their opinion unedited.

This case makes a larger Civ Pro point.

1) If two experts testify to opposite standards of due care in good faith, you have a scientific controversy or the existence of two real standards of due care or scientific assertions.

The court is not qualified to solve scientific mysteries nor to settle scientific controversies. The sole path to these goals is to get more data. These support one side or the other, and end the dispute.

Once there are two good faith expert views, the case must be dismissed per se. Failure to dismiss violates the defendant's procedural due process right to a fair hearing.

2) The case and controversy requirement of any claim fails, because there is no legal controversy, but a scientific controversy.

3) A claim that involves opposing testimony of two experts is legally speculative per se. If two experts disagree, how is a judge or jury qualified to apply the facts to their opposing opinions? The existence of a substantial minority view of the question means that people in that field for years have not been able to reach a consensus.

4) If the opposing testimony addresses the liability element of the tort, the case must be dismissed.

RSD was not the only problem Cornelius had. That was an excerpt from his op-ed piece. Here is some more:

A few months later, when a physical therapist improperly red the instructions on a medical device, I received a tremendous current of electricity through my left leg. This seriously complicated my condition.

In August 1990, another physician proposed a medical procedure, but used the wrong instrument; that left me with several holes in the vena cava, the main vein from the legs to the heart. I would have to bled to death in my room if my wife had not come to see me that evening and called for help. As another physician tried to save my life, he punctured my left lung.I think it is fair to say that in a NYT op-ed piece it would be impossibly to distill down his entire medical history or the details of a medical malpractice trial.

--Eric
New York Personal Injury Law Blog

Eric: What permanent injuries did these medical errors cause? What do they have to do with RSD, the claimed injury? I ask to learn more, not to argue. Why does this person have a short time to live?

From personal experience, I agree. One should expect one life threatening error each day in the hospital. Every needless error is caused by the lawyer. Instead of a process of continual improvement from the thorough aircrash style investigation of each serious error, a cover up is forced by the fear of hospital closing litigation.

Every penny going to buy yet another personal jet for the lawyer comes from the care of other patients in the form of higher prices or reduced access. The hospital actually exploits the fear of litigation by raising costs for useless defensive medicine. That useless cost to avoid litigation could easily fund top end insurance for 20 million uninsured people. A mere tiny fraction could fund investigations of errors and their marked reduction. Not only is the lawyer the cause of every preventable medical error, but also the excessive cost of useless defensive care, and the high fraction of uninsured people.

The overwhelming fraction of medmal cases are bogus. So say juries in 70% of trials. I have discussed the way good faith opposing testimony by two experts moots the case per se. A medical controversy exists at that point. The court is not competent to resolve it. Only getting more research data may resolve a medical controversy. This idea is true wherever two experts disagree in good faith. If experts disagree, what is the role of a lay jury?

That a court seeks to impose a standard of care where the data are not sufficient, that over-reaching violates the procedural due process right of the defendant to a fair hearing. The judge and his employers should be made to pay all costs, actual damages to the doctor, and exemplary damages. To deter.

The comment that,"The overwhelming fraction of medmal cases are bogus. So say juries in 70% of trials" is badly mistaken.

Aproximately 85% if med mal cases settle before trial, leaving only the most difficult for verdict. So the fact that 2/3 of med mal cases results in def verdicts doesn't mean anything with respect to the majority of the cases brought.

In a study by a group from the Harvard School of Public Health and the Harvard Risk Management Foundation, entitled "Claims, Errors, and Compensation Payments in Medical Malpractice Litigation," that was published in the May 11 issue of the New England Journal of Medicine, the group found that,

"the malpractice system performs reasonably well in its function of separating claims without merit from those with merit and compensating the latter."

The assertion that, "Every needless error is caused by the lawyer" is more than a bit bizarre.

--Eric
New York Personal Injury Blog

Just for the record, I did some research on the Cornelius case for my book, Blocking the Courthouse Door. Frank Cornelius did commit suicide, not long after writing that op-ed in the Times, and did not die from his mishaps in the health care system.

Nonetheless, his original malpractice claim was vetted by the Indiana medical review board and found to have merit. Indiana has some of the strictest medical malpractice laws in the country, with a hard cap on damages and other obstacles to filing a suit. Given the hurdles set up to weed out nonmeritorious cases, I believe that Cornelius did have a legitimate claim, and that he suffered greatly as a result of the malpractice, even if it didn't kill him.

I thought the discussion here warranted a more substantial response than my prior one, regarding actual data on medical malpractice suits, to debunk some of the myths put forward by another.

I've put up a new post on the subject, The Myth of Frivolous Litigation, over at
over at the New York Personal Injury Blog
--Eric

I find it funny how trial lawyers cite the opinions from the Harvard study, but never cite the underlying facts: the Harvard study found that 40% of claims brought were meritless without any injury or without any wrongdoing, and that juries got it wrong 27% of the time or so. Eric's blog post leaves out the 40% figure entirely. If anti-reformers want to call that a system that is working well, they're entitled (though imagine what lawyers would say about a doctor who made diagnostic errors 40% of the time), but at least give the facts rather than just quoting opinions out of context so readers can judge for themselves whether the opinions are justified.

Ted, ignoring the disagreement we have about the study (I say it found three percent to be baseless, you say 40%) do you have either:

A: a response to the suggestion of the study's author that damage caps and the like aren't where tort reformers should focus their efforts;

B: any reason to believe that capping noneconomic damages would increase the accuracy of the decisions made by juries as to whether malpractice occured;

C: any suggestions on a way to change the justice system to ensure those who truly were victims of malpractice receive compensation? Your usual suggestions just focus on ways to prevent those who weren't victims from being compensated, which I agree is a noble goal, but one I feel not as noble as the former.

Justinian, you really don't get to participate in this conversation unless you've actually read the study you wish to talk about, and there is no way you read that study and honestly think only 3% of the cases were brought without medical error. Again, you're confusing the 3% of cases where there was no *injury* and leaving out the 37% of cases where there was no error.

In response to your questions:

A. I've said the same thing for years. (Most recently here.) Caps are an improvement, but they're not a panacea.

B. Yes.

C. Yes.

I've written on all of these issues for years. Fourteen comments down on a little-read blog isn't the place to repeat all that. It's not like what I've written about medical malpractice is a secret.

I'll tell you what, Ted. I'll make my next post about why I use the three percent figure, and you can argue that one with me.

I know you've written quite a lot about medical malpractice. You're so prolific that it's not really practical for me to read EVERYTHING you've written. That said, I don't ever recall reading anything from you on "B".

How on Earth can a damage cap, which juries shouldn't even be made aware of, possibly influence whether jurors correctly determine liability in a malpractice case? Or were confusing what I wrote with a question about determining damages?

In the words of Daniel Moynihan, you're entitled to your own opinion, but you're not entitled to your own facts. Read the study. Or, if that's too much work, read the press coverage: "Four out of 10 Medical Malpractice Cases Are Groundless"

I have read that one, but drew a different conclusion from the facts. I believe I wrote about it some time ago at Corpreform and my post was covered by Greedytriallawyer.com if you care to head over to either of those sites, else you can look for a more in-depth post here by tomorrow.

With respect to the post you linked to in "A": You raise interesting and valid points. I agree wholeheartedly that too many cases come down to "battles of the expert witnessess." Your suggestion that when two qualified doctors disagree about whether care was reasonable should automatically result in nonnegligence is intriguing to me. The glaring problem I see is that all a defendant would have to do is find one medical expert willing to testify in his or her favor, and it's game over for the plaintiff. (Surely, you'll finally concede that expert witnesses for the defense also have financial incentives to provide favorable testimony regardless of the facts.)

"In the words of Daniel Moynihan, you're entitled to your own opinion, but you're not entitled to your own facts."

Exactly, Ted. The entire judicial system is based upon controversy and conflict. There would be no need for adjudication if all of the facts, reasonable inferences,and therefore outcomes could be known without discovery, rules of evidence, and zealous representation.

Further, there is not necessarily a correlation b/w lack of actual injury and lack of ACTIONABLE injury. So, we have no way of knowing what percentage of the 4/10 had a reasonable, yet losing, cause of action.

So, to reiterate the point of our last dialogue, placing tort reforms such as caps on damages does nothing to improve health care outcomes or the efficiency of judical processes. It merely eliminates all but the most eggregious malpractice claims.
The same goes for dismissing cases in which experts disagree. There is NO bnefit to health care outcomes or efficiency of judicial process; the only benefit is...the elimination of all but the most eggregious and clear cases of malpractice, with no room for dipsute.

Also, Justinian says:
"Surely, you'll finally concede that expert witnesses for the defense also have financial incentives to provide favorable testimony regardless of the facts."

Wouldn't that be an interesting reform...to eliminate or cap financial incentives for expert testimony.

For those interested in reading the study, it can be read online here.

It is interesting to note (and not at all unexpected from someone who litigates these cases) that the reviewers had a high level of confidence in just 44% of their results, and that 23% were "too close to call". The reason this is not surprising is that many cases, especially those based on a failure to timely diagnose, are based on disputed facts. For example, the patient says s a complaint was made and a doctor doesn't appreciate the significance of it and record it in the records.

Resolving such cases can't be done simply by reviewing medical records. So while the report is interesting and useful, one should not also conclude that it is dispositive.

--Eric
The New York Personal Injury Law Blog

Wouldn't that be an interesting reform...to eliminate or cap financial incentives for expert testimony.

I'm all for it. I think for-hire quack experts benefit the plaintiffs' bar on balance.

Eric was perfectly happy to cite to the Harvard study when they agreed with him, but when they point out facts that are inconvenient to his position, their methodology is suddenly less than dispositive. So why cite the Harvard study at all? Sure, we don't know how many of that 40% of groundless cases reflect actual malpractice, but we also don't know how many of the 60% of supposedly merited cases reflect outcome bias, and studies have shown that reviewing doctors suffer from substantial outcome bias. That 40% figure could be too high--but it could also be too low. There's actual evidence to suggest that it's too low; there's attorney speculation that it could be too high.

The same goes for dismissing cases in which experts disagree. There is NO bnefit to health care outcomes or efficiency of judicial process

Well, that's just false on both counts. There would be substantial benefit to health-care outcomes, and the judicial process would be substantially more efficient. But I'm willing to empirically test that proposition and change my mind if I'm disproved. Are you?

New Zealand doesn't have medical malpractice lawsuits at all. Are they rife with medical error?

"But I'm willing to empirically test that proposition and change my mind if I'm disproved. Are you?"

A challenge? Why do I feel like I just got into a staring contest with a gold fish???

1)Yes, if disproved I would change my mind, I would be a fool not to.
2)No, I am admittedly unqualified, at this point, to conduct a reliable study of this magnitude.

"New Zealand doesn't have medical malpractice lawsuits at all. Are they rife with medical error?"
I don't know, but I would be very hesitant to simply correlate the lack of law suits with the quality of medical care. There are many other factors to be taken into consideration. It is no secret that the American health care system has a great deal to be desired when compared with many other developed nations.

Further, I would take issue with using "strife with medical error" as the bar by which we measure when health care issues need to be addressed. I made no claim that limiting med. mal. law suits would lead to large increases in medical error. Conversely, my point was that eliminating med. mal. law suits based on contradictory expert opinions does not necessarily lead to more positive outcomes.

"Sure, we don't know how many of that 40% of groundless cases reflect actual malpractice, but we also don't know how many of the 60% of supposedly merited cases reflect outcome bias, and studies have shown that reviewing doctors suffer from substantial outcome bias. That 40% figure could be too high--but it could also be too low."

Am I the only one who thinks its a bad idea to base our decisions on faulty data?

"New Zealand doesn't have medical malpractice lawsuits at all. Are they rife with medical error?"

I'll take the bait, Ted. Got some study up your sleeve that says New Zealand has the lowest malpractice rate in the world? Perhaps one that even ties the low malpractice rate to the elimination of medical malpractice suits?

I have reviewed almost every study in the last two years looking at closed claims on med mal cases, including two by our insurance comissioner in my own state of WA. Apparently, as I read the previous posts, a lack of understanding exists as to what constitutes a "claim." In these studies, a claim is generally defined (with minor variations) as any time an insurance company opens a file.

This can be triggered by many events. In our cases, calls and inquiries from insured doctors or clinics could trigger a "claim," even though a patient never did contact the insurer. Calls made by patients always triggered a claim file, even where no basis for a negligence payment was ever asserted. And patient witten claims or contacts, even without a lawyer always trigger a file, thus a claim, but very rarely result in an indemnity payment.

When looking at the correlation between claims and actual payments, its important to look closer than these broad categories. Significant numbers of the 40% of closed claims, which are being closed without any action by the insurer, and are assumed to be without legal and medical merit, also had no defense costs attributed. They were basically inquiries that never went anywhere. Thus, these studies, and the numbers of dismissed "claims" actually bolster argumets that the system works pretty well to winnow out claims without a basis in law and fact. Litigation focus and costs work well to get down to the most meritorious claims.

There is nothing magic about a "claim-" its just a definition that is used differently by different insurers. This is essential to understanding these studies.

-Tom