Kanye West’s Mother

So, some government officials want caps on malpractice claims.  The plastic surgeon who operated on Donda West, mother of Kanye West, has faced two malpractice lawsuits which resulted in settlements, and he has been arrested twice for driving under the influence.  Kanye West’s mother is now dead at age 58 most likely because this doctor is still practicing.

This is the problem.  The profession does not properly police itself, and what the profession does to its own is not made public.  Would Donda West have allowed this doctor to treat her if she knew about his history?  It’s doubtful.  Is Ms. West’s life worth only $250,000.00 in non-economic damages (the proposed cap by the George Bush administration)?  No!  The insurance carrier which insured this doctor should have taken action to put this physician out of business instead of providing insurance, and that carrier and this doctor should pay through the nose for her death if it is shown he committed malpractice.

Caps do nothing but allow incompetence to thrive.  This physician may not have committed malpractice in this case, but based upon his history, he shouldn’t have been given the chance to commit malpractice – AGAIN!

Merck Changes Mind

Merck vowed to fight til the death.  They vowed to litigate each Vioxx case to conclusion.  Apparently, that vow only applied until the statute of limitations ran on most of the cases. 

On Friday, November 9, 2007, Merck agreed to a global settlement for the Vioxx cases in the amount of $4.85 billion dollars.  According to Merck’s executive vice president, Kenneth Frazier, “without this settlement, the litigation might very well stretch on for years.”  Didn’t they know this when they defiantly stated they would try each case?  Surely, their thousands of attorneys making enormous hourly rates informed them of this fact.  So, why settle at this stage of the game?  After only fifteen (15) trials (they estimate that there are 45,000-50,000 lawsuits pending)?  That’s a far cry from fighting to the death.

Maybe it’s because Merck knows it has problems.  In fact, in the settlement agreement, Merck makes a huge concession which contradicts its position over the last few years.  To qualify for the settlement, claimants will have to show that they received enough pills to support a presumption that they were ingested within two weeks before injury.  Previously, Merck claimed that Vioxx caused harm only after eighteen (18) months of use.  Hmmm.  That’s a pretty big concession from a company that was fighting every case to verdict.

A Montgomery, Alabama attorney, Andy Birchfield, a partner with the law firm Beasley, Allen, Crow, Methvin, Portis, & Miles, P.C. led the negotiating committee for the MDL (Multi District Litigation).  According to Jere Beasley, “it was a very good settlement which will ensure that those who suffered injuries as a result of Vioxx are compensated fairly and efficiently.”  Isn’t that what Merck should have done to begin with?

Do You Have the Right Doctor?

You hear about doctors’ inability to get malpractice insurance.  You hear about malpractice insurers leaving certain states because of the many malpractice lawsuits.  You hear about premiums going up.  What you don’t hear about are the legitimate claims. 

Take, for instance, the recent report regarding a cancer physician in Montgomery, AL.  On Thursday, October 25, 2007, the Alabama Medical Licensure Commission fined Dr. David Gay Morrison $266,000.00 and ordered him to surrender his medical license.  Why?  Allegedly, Dr. Morrison prescribed unnecessary medications and treatments to 19 patients which nearly killed a 57 year old leukemia patient by ordering chemotherapy which sent the woman into cardiac arrest.  According to cancer experts, the woman could have been treated on an outpatient basis with simple medication to control her white blood cell count.

Should this doctor not be liable to his patients for such unnecessary treatment?  Should this doctor not be financially punished for such treatment?  Should the insurance company which insured the doctor (if he had insurance) be responsible for not investigating his practice?  Should damages be capped because of a falsely created insurance problem (rates go up because of the financial markets and company profits, not lawsuits – see our earlier post)?  Or, do you want to be able to bring a claim against a doctor who makes a mistake because he’s incompetent or because he performed surgery under the influence of alcohol or drugs?

These are questions we usually don’t ask until we are in the situation.  Maybe we should start asking them.

Caps Needed – Not in Alabama

In a recent study conducted by the Kaiser Family Foundation, a nonprofit health-policy research institute in California and Washington D.C., it was found that Alabama was tied for 50th with regard to medical malpractice claims paid per 1,000 active physicians.  The study found that Alabama had a total of 41 claims paid through judgment or settlement in 2006.  This figure equates to 3.7 claims paid per 1,000 active physicians in the State.  The national average was 13.3.  The 41 claims paid ranked Alabama 41st among the states.  Finally, the total payout for these 41 claims was $15,867,500.00 which ranked Alabama 38th nationally.

This study should debunk the myth that there are too many frivolous lawsuits against physicians.  Contrary to President Bush’s rantings about this “problem” a few years ago, the fact of the matter is these cases are too difficult and expensive to win for a lawyer to take on a frivolous claim on a contingent basis.  What attorney wants to invest $50,000.00 or $100,000.00 in a frivolous claim?  That attorney would have more fun taking his money to Las Vegas.