Sunday, July 25, 2010

Tort Reform and the Rain Forest: Lawyers' Advice Needed

When this post hits, I will be out of the country in a rain forest thousands of miles from home. I hope the experience won’t be an opportunity to learn about the tropical diseases I memorized in medical school, and promptly forgot after the test. Prior to leaving, I surrendered my arm to hepatitis A and typhoid vaccines. I hope that they deliver. Of course, if I do get struck by typhoid, then this would have to be someone’s fault. In the medical world, when an adverse event occurs, the interrogative response is often, who screwed up? Hmmm. This gives me an idea. If I did get sick abroad, who could I hold responsible for the medical misadventure? Who could I sue?

As is often pointed out on this blog, I know nothing about the law, rules of evidence or even the most rudimentary aspects of American jurisprudence. So, I need some help from lawyerly readers. Below is my list of potential defendants to blame, if I were to get sick in Central America. I’m sure I have overlooked many ripe targets, and I hope that you will comment on my oversights.



Kirsch vs ?

  • The vaccine manufacturer. Obviously they are at fault becauseI did not experience a perfect outcome.
  • The Republic of Costa Rica: The government should have sterilized the country.
  • My Mom: She did not provide me with adequate immunity. (Pssst, Mom, we can split the recovery.)
  • My Wife: The vaccines were administered by her staff. Clearly, they messed up. (Sorry, honey, business is business.)
  • The Salmonella Germ: I haven’t figured out how to initiate this lawsuit, or to collect afterwards, so I really appreciate some pro bono advice from any erudite juris doctors.
  • God: He could have turned the germ into a pillar of salt, as he boldly did to Lot’s wife in Genesis. Wow, a lawsuit against the Omipotent? Now, that would be 'divine justice'!

Of course, my fervent hope is to remain germ free. I certainly would not want to get sick just to have access to someone else’s cash. It doesn’t seem fair to make someone compensate me for an event that was not his fault. Who could defend a system like this?



     

26 comments:

LeisureGuy said...

It's sad the degree to which the medical profession (you, in this instance) focuses obsessively on the law as the source of their problems when it comes to medical malpractice, without ever (a) learning about the actual situation regarding medical malpractice and (b) taking any effective action to remove from the medical profession the relatively small number of doctors responsible for most of malpractice. Indeed, doctors strive to protect their colleagues and in general cover up for doctors guilty of malpractice. (Honorable exception: anesthesiologists, who faced up to their professional responsibilities and surfaced and did a root cause analysis for each instance of malpractice, with the result that their malpractice rates (and insurance premiums) nose-dive.)

Most specialties have reacted as you do: Deny responsibility, ignore the actions that they can take unilaterally, within the profession, to combat the problem, and focus their attention exclusively on "greedy" lawyers and "ignorant" patients, while preserving their own ignorance about the actual sources of the problem (your continual lack of time, for example, to read a single informed book on an issue of such importance to you---I refer to The Medical Malpractice Myth) and collecting some few anecdotes that they trot out at every opportunity.

I notice that, true to form, you don't include in your list any blame for yourself or your profession: it's always someone else's fault, isn't it? The same attitude that you project onto those who suffer medical malpractice and bring lawsuits. Now you perhaps can grasp the source of that projection.

A. Bailey said...

I'd go for the big money. Sue the pharmaceutical company.

LeisureGuy's self-serving and emotional response shot up my blood pressure. If I suffer an adverse effect I'll be looking for a remedy in his direction.

I may just sue you, too. I have no idea why, but in the next year or two, as the complaint works it's leisurely pace through the Legal System, I'm sure I'll find an expert witness who needs the money to support my claim.

Transor Z said...

Since every doc I know packs his/her own little mobile pharmacy with Cipro or their favorite multi-spectrum antibiotic, I'm afraid you're going to have to sue yourself if you get bad treatment in Costa Rica. Have a great trip.

Anonymous said...

How about you sue your mother for not using RU-486, you sarcastic, self serving quack?

Anonymous said...

A. Bailey:

You are too stupid to understand what e-turds you are typing about. You can't sue for anything, you moron.

If you want to sue me, I would love you to.

Anonymous said...

Last comment:

A. Bailey: You obviously lack the IQ to comprehend the quality of medical experts you need in order to win a med mal case. Top schools, no blemishes (suspensions public reprimands, etc) and they should publish and be respected in their field... in other words these guys are a hell of a lot smarter than you.

Anonymous said...

A totally different anonymous,

Wow. Great post and it appears that it just might have gotten under someone's skin. Good job. You should sue them all. Isn't that what liars, oops I mean lawyers do.

Anonymous said...

I dont know, last anon. Isn't this what bottom feeding quacks like you do? Harm patients and blame it on someone else?

Anonymous in Texas said...

LOL, this blog entry sure pushed some buttons.

Michael Kirsch, M.D. said...

From deep within the rain forest, I welcome all spirited comments, but some are approaching the threshold of incivility. Take a few deep breaths before hitting the post comment button. Thanks.

So far, I have been symptom free here. Good news?

Evinx said...

Dr K - you must think like you are playing a game of tag -- sue everyone who came in contact with you or the vaccine.

That means, the needle mfr, the vaccine maker, your wife (perhaps your children), the airline, the hotel you are staying in, the rental car or bus companies you may have used in CR.

Chances are if you sue enough people, you can extract a relatively small settlement from each (bcs of the relatively small amount, it would not pay for them to litigate) but it will add up to a hefty amount for you.

Best of all, should they refuse and you sue and lose -- well then, you can sue your former attorney for negligent representation. In fact, even if you win, you can still sue him bcs had he been diligent, he would gotten you more money than you received.

And if he settles with you, maybe you can hire a third attorney to sue the second attorney who was negligent in representing you to the first attorney.

Is this a great country, or what?

A. Bailey said...

Some of those comments really hurt my feelings. Suing for pain and anguish, anyone?

Dr. K, I was watching TV and saw some lawyer by the name of Soccer Love run a commercial that said this: "If you've ever taken Cipro and had a tendon injury, call us at 1-800-TORT-REFORM."

Just sayin'.

Michael Kirsch, M.D. said...

Evinx, appreciate the comment. I may consider you as a legal consultant. @ABailey, I did pack some Cipro in case Montezuma's Revenge strikes me. Maybe this will be my opportunity for revenge. Thanks for the tip!

doc said...

Thanks for the thought stimulating post and some of "entertaining" comments it generated.

Anonymous said...

A physician was in the news not too long ago and ended up running into a house and injuring some people. I believe he was texting or doing something with his phone. He was not driving a Toyota, he was just speeding and missed the curve.

Who can he blame so he isn't held responsible?

1) the house- because it was in his way

2) the builder of the house- because he put the house there

3) the guy who sold him the car- because he used the car to get there, and everyone knows, doctors never make errors

4) some guy who was at the dealership when the doctor bought the car- beause if that guy bought the car first, the doctor would not have bought it

5) the injuried parties- because they are beneath the doctor and need to suffer because they dared try and hold doctor responsible for their injuries

6) John Edwards- because he is a lawyer and all people who try and hold doctors responsible should be banished from the earth. Everyone knows- doctors never commit error, and if they do, they deserve a "special" tribunal because citizens are fungible and the Constitution doesnt apply to doctors.

Anonymous said...

Also, Kirsch...

You never responded to whether you grabbed a Rules of Evidence or other legal publication to educate yourself about the system so you quit spewing out garbage. Did you do so?

Of course not. You would rather believe Rush Limbaugh and spew out nonsense on here even if the truth is different. You are like a child who finds every excuse in the world not to do his homework.

Who can trust physicians anymore?

Michael Kirsch, M.D. said...

@anonymous, your derisive comments are noted. At least I and others sign our names to our posts and comments. Feel free to stand behind your own name also.

Anonymous said...

Kirsch:

My name is not relevant to this topic.

What is relevant is that you didn't address the issue. Did you pick up any legal books to educate yourself or do you choose to spew out garbage you obviously got from Rush or someone else who has no idea what he/she is talking about?

Most lawyers on here are not trying to hide anything like you are, in fact we want you to educate yourself about the law so you quit discussing junk science without knowing what you are talking about. You refuse to educate yourself. Making stuff is better.

Perhaps a list of how many red herrings/ ways you find to skirt the issues should be established..

#1- Inquiring about my name instead of addressing the issue about willful ignorance of the law

Michael Kirsch, M.D. said...

I'll let readers weigh the respective tone and content of our expressed views and decide where reason and reasonableness resides.

Anonymous said...

Red Herring #2- punts off willful ignorance of the law onto readers.

Somehow they are responsible for Kirsch's refusal to read the law so he can enter into an educated discussion. Intead he prefers constructively lying about it

Anonymous said...

Boy this anonymous dude seems to have a thing for you. Hey, anonymous whey don't you pick up a book on GI and the art of colonoscopies.
As an attorney, Dr. Kirsch seems to know quite a bit about the law. What do you know about medicine?
I will post this anonymously since I could put my firm in an unpleasant situation.

J.T. said...

The doc made a valid point by the rhetorical question. A few sad sacks want to snag a few seconds of fame by posting dull-tipped barbs. As Anthony Hopkins recited in Legends of the Fall, "SCREW 'em!". (If I got that wrong, sue me.)

I'm not a doctor. I don't even play one on your CRT. I'm a sane, reasonably intelligent person who views such things from a neutral perspective and realizes that doctors put themselves through all of the trials of becoming a physician because they want to help, to heal people. So I'm just not inclined to be betraying their good intent and the good they bring to our lives when stuff doesn't go as well as we hoped.

Personally, I'm all for suing God. He's got time for that sort of thing. Me, I'm a mortal. I don't. I'm too busy with today and tomorrow to be trying to cash in on mistakes made yesterday. Okay, so that means I'd be a lousy trial lawyer... but then they're all lousy, so... sue me.

Bottom line? I'm glad doctors are there. I'm even glad surgeons are there if they make mistakes, because without them, I'd have been dead before puberty set in, and then again when the gall bladder went south. Am I thrilled with every physician? No. There are a couple I might even have right to sue. But I don't think they meant to do me harm, and I don't think they're responsible for my condition in the first place, so I just leave it at being grateful that they're there at all.

There's an organization I came across, Medical Justice ( http://MedicalJustice.com ) that stands up for doctors, helps protect them from the Anonymous and not-so anonymous greedy creeps who want something for nothing. You good doctors may want to check them out. THey seem to be pretty effective! Gotta do something to protect yourselves from jerks like those who posted here!

Thanks, Docs, for the years of doing without while in school, on behalf of the thousands of grateful people you help every year. Know that SOME of us appreciate your aid and sacrifices and don't require that you be perfect!

Former Anon said...

"Of course, if I do get struck by typhoid, then this would have to be someone’s fault."

If that's your belief, you only illustrate your initial comment that you know next to nothing about the law. Simply because you suffered a bad outcome doesn't mean it was someone else's fault.

If that were the case, there would be far, far more malpractice claims.

"The doc made a valid point by the rhetorical question."

What was that valid point? It seemed to be the usual mocking tone based on a lack of understanding about the law. It's a common position, no doubt, but that doesn't make it valid or useful.

Former Anon said...

"I'll let readers weigh the respective tone and content of our expressed views and decide where reason and reasonableness resides."

Your original tone was mocking, was it not? Not sure why you're trying to cloak yourself in "reasonableness" at this point.

You speak a lot about "reason", but you've yet to explain the "reason" behind your support of the tort reform that you want - caps. It doesn't achieve any of your stated goal of more people who are victims of malpractice getting compensated.

You can say things in as measured a tone as you like, but if they don't make sense, they're still useless.

LeisureGuy said...

I just came back to this comment thread. Too many people called "Anonymous" to keep them straight. Can those who wish to be anonymous use some consistent label: "Anonymous A" for example could then be distinguished from "Anonymous B".

@A. Bailey: I gather you didn't much care for my comment, but I don't understand your judging it as "self-serving." How on earth is it self-serving?

LeisureGuy said...

Ah, wait: I've got it. I'm encouraging the medical profession to do a better job of policing itself and weeding out the bad doctors. That's self serving, I suppose, since I as a patient benefit. But then anyone who seeks improvements in any area is self-serving to the extent that they (along with others) will benefit from the improvements. I still don't get it.

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