Abbott Law Blog

Doctors have an ethical duty to acknowlegde that medical errors occur and to work toward reducing those errors.  The American College of Gynecology (ACOG) published an article in its journal in which the author recommended that obstetricians obtain medical tests in some situations and not others.  He encouraged them to not obtain certain medical tests when it was likely that the results would be “uncomfortably incriminating.”  In other words, if the test will show that the doctor messed up, don’t get the test.

By publishing this suggestion in its journal, ACOG has impliedly endorsed unethical medicine and medical cover-up.  ACOG is encouraging its members to act unethically.

Many doctors believe that the legal system is broken and they should not be subjected to it.  While I don’t agree, I wish we could all agree that doctors should not cheat in order to get out of paying for their mistakes.

The Supreme Court issued an important medical malpractice opinion today. In the case, a woman sued St. Mark’s hospital because she got kidney damage when her blood pressure dropped but the nurse either didn’t notice or didn’t do anything.  One of her claims was that the hospital was negligent because it was understaffed.

St. Mark’s had given an affidavit in which they claimed that they had reviewed all the patient files for patients on the unit that night and since none of those patients needed much care, they were adequately staffed.  The woman asked to see those records to verify the affidavit.  The hospital refused to let her see the records.

The Supreme Court told St. Marks that they needed to take out the names of the patients and then give the records to the woman to review.  This case is important because it will let this plaintiff, and other plaintiffs in the future, verify claims made by hospitals when the hospital says they reviewed other records and came to a conclusion which supports their position.  This decision allows plaintiffs to verify what the hospital claims.

I was listening to the Enid Greene program on KSL this Friday and Enid’s commentary reminded me of just how stupid the tort reform argument is.  Enid Greene argued that doctors do not order unnecessary tests when they will earn extra money by ordering the test but that doctors frequently order unnecessary tests to avoid the possibility of getting sued.

For those of you that don’t know, Enid Greene is a co-alum of mine at the BYU law school.  She went on to become a member of congress for a short time, then was the chair of the Utah Republican party and now hosts a radio show on KSL on Saturdays.

Enid Greene is in favor of tort reform.  She consistently rants about how tort laws increase the cost of health care.  She ignores studies that show that medical malpractice lawsuits add less than 1 penny for every dollar spent on health care.  She also claims that the mere threat of medical malpractice causes doctors to perform defensive medicine, thereby increasing the cost of health care.

So, this Saturday, she starts ranting against the Health Care Reform Legislation pending before congress.  One of the provisions would prevent doctors from owning hospitals and certain other medical facilities.  The reason for this is that studies have consistently shown that the number one factor in determining the frequency at which doctors order x-rays is whether the doctor owns the x-ray machine.  Now, it is fair to argue that the health care reform bill should not restrict a doctor’s right to own property.  That argument could be made on philosophical grounds, ie., in our free society, we should not prohibit a profession from owning certain types of property.

That is not the argument raised by Enid Greene.  Her argument is that she does not believe that doctors order more MRI’s when they have an ownership interest in the MRI machine.  Doctor’s would not order unnecessary tests to improve their financial condition.  Therefore, the legislation is not necessary.

So let me summarize.  Enid Greene does not believe a doctor will order more tests when the doctor gets a direct financial benefit from the billing for the use of the equipment but she strongly believes that doctors will order unnecessary tests because the doctor is afraid of getting sued.  She argues that the government should not regulate a doctor’s ownership of certain medical equipment because it is unnecessary but a the government should take away our right to trial by jury because doctors are driving up the cost of health care to protect their own back sides.

Her hypocritical and severely flawed logic show just how stupid the tort reform argument is.

Our right to trial by jury is sacrosanct.  We should not give it up.

It looks like the medical industry is going to push tort reform in the Utah State Legislature this year.  That is no surprise since they’ve pushed it almost every year during the past 20 years.  The recurring argument they make is that doctors are being put out of business by lawsuits.  “We need tort reform to keep doctors in business.”

Here is a list of the top paying jobs in the United States.  It is taken from Forbes magazine in May 2009.  This list completely debunks the doctors’ arguments.

No. 1 Surgeons
Average Annual Pay: $206,770
One-Year Change: +8.0%
Employees in Field: 47,070
Best-Paying State: Wisconsin
The Job: Treat diseases, injuries and deformities by invasive methods,
such as manual manipulation or by using instruments and appliances

No. 2 Anesthesiologists
Average Annual Pay: $197,570
One-Year Change: +2.5%
Employees in Field: 34,230
Best-Paying State: Kentucky
The Job: Administer anesthetics during surgery or other medical
procedures.

No. 3 Orthodontists
Average Annual Pay: $194,930
One-Year Change: +5.2%
Employees in Field: 5,500
Best-Paying State: New Hampshire
The Job: Examine, diagnose and treat dental malocclusions and oral
cavity anomalies. Design and fabricate appliances to realign teeth and
jaws.

No. 4 Obstetrician and Gynecologists
Average Annual Pay: $192,780
One-Year Change: +5.0%
Employees in Field: 19,750
Best-Paying State: Wisconsin
The Job: Diagnose, treat and help prevent diseases of women, especially
those affecting the reproductive system and the process of childbirth.

No. 5 Oral and Maxillofacial Surgeons
Average Annual Pay: $190,420
One-Year Change: +6.7%
Employees in Field: 4,760
Best-Paying State: Michigan
The Job: Perform surgery on mouths and jaws.

No. 6 Internists, General
Average Annual Pay: $176,740
One-Year Change: +5.7%
Employees in Field: 46,980
Best-Paying State: Wisconsin
The Job: Diagnose and provide nonsurgical treatment of diseases and
injuries of internal organs and systems.

No. 7 Prosthodontists
Average Annual Pay: $169,810
One-Year Change: +0.3
Employees in Field: 370
Best-Paying State: New Jersey
The Job: Construct oral prostheses to replace missing teeth and other
oral structures.

No. 8 Physicians and Surgeons, All Other
Average Annual Pay: $165,000
One-Year Change: +6.3%
Employees in Field: 26,850
Best-Paying State: Minnesota
The Job: All physicians and surgeons outside of the main specialties.

No. 9 Family and General Practitioners
Average Annual Pay: $161,490
One-Year Change: +5.1%
Employees in Field: 106,210
Best-Paying State: Wisconsin
The Job: Diagnose, treat and help prevent diseases and injuries that
commonly occur in the general population.

No. 10 Chief Executives
Average Annual Pay: $160,440
One-Year Change: +6.0%
Employees in Field: 301,930
Best-Paying State: New Jersey
The Job: Determine and formulate policies and provide the overall
direction of companies or private- and public-sector organizations
within the guidelines set up by a board of directors.

No. 11 Dentists, General
Average Annual Pay: $154,270
One-Year Change: +4.9%
Employees in Field: 85,910
Best-Paying State: Alaska
The Job: Diagnose and treat diseases, injuries and malformations of
teeth and gums and related oral structures.

No. 12 Psychiatrists
Average Annual Pay: $154,050
One-Year Change: +4.4%
Employees in Field: 22,140
Best-Paying State: Nevada
The Job: Diagnose, treat and help prevent disorders of the mind.

No. 13 Pediatricians, General
Average Annual Pay: $153,370
One-Year Change: +5.6%
Employees in Field: 29,170
Best-Paying State: Kentucky
The Job: Diagnose, treat and help prevent children’s diseases and
injuries.

No. 14 Dentists, All Other Specialists
Average Annual Pay: $142,070
One-Year Change: +18.0%
Employees in Field: 4,770
Best-Paying State: Oregon
The Job: Specialist dentists excluding oral and maxillofacial surgeons,
orthodontists and prosthodontists.

No. 15 Podiatrists
Average Annual Pay: $125,760
One-Year Change: +5.0%
Employees in Field: 9,670
Best-Paying State: Idaho
The Job: Diagnose and treat diseases and deformities of the human foot.

The doctors’ argument reminds me of when Jack Paar walked off the Tonight Show on February 11, 1960.  On that show he said “I’ve made a decision about what I’m going to do. I’m leaving The Tonight Show. There must be a better way to make a living than this, a way of entertaining people without being constantly involved in some form of controversy. I love NBC [...] But they let me down.”  He then walked off the show.

Less than a month later, March 7, 1960, he returned saying, “As I was saying before I was interrupted…I believe the last thing I said was ‘There must be a better way to make a living than this.’ Well, I’ve looked…and there isn’t.’”

14 of the top 15 paying jobs in the United States are in the medical industry.  Doctors aren’t leaving for better paying jobs.  There are none.

As the legislative session approaches, rumors are swirling tht the two big medical malpratice insurers in Utah are going to push numerous tort reform bills this legislative session.

It may sound funny to say this, but as a personal injury lawyer, I would love to see personal injury lawsuits come to an end.

In my opinion, the best way to do this is to create a safer world.  Unfortunately, the health insurance lobby is not interested in this.  They want to prevent people from suing without making any efforts to improve safety.

Harvard recently released a study showing that medical errors cause the same number of deaths as if a 747 crashed every day.  That’s scary.  Fortunately, most doctors are great.  They are smart, nice, kind and careful.  Unfortunately, we have bad doctors in our community.  If their patients who are injured don’t have the right to sue, who will take care of them and their medical bills? (presumably medicaid and medicare will pick up the tab).  My vote is to let bad doctors pick up the tab instead of us.

Recently two pilots lost their pilot licenses for working on their laptops and overshooting an airport.  Luckily no one was hurt or killed.  I can guarantee you that a bad doctor would never lose his/her license in Utah for doing something like that and causing a patient death.  We have alcoholic doctors that go on practicing medicine year after year.  In Utah, if a doctor gets hooked on prescription narcotics and injures a patient, it is very rare for the doctor to permanently lose his/her license.

I hope the legislature doesn’t get duped into letting the malpractice insurance companies off the hook when bad doctors mess up and hurt people.  We should be running those doctors out of town, not protecting them.

It is important to preserve the evidence in all personal injury cases. In medical malpractice cases it is especially important.

Attorneys who practice medical malpractice can tell too many stories of hospitals and physicians destroying or altering medical records in an attempt to cover up their mistakes. Doing so is dishonest and wrong.
I recently handled a medical malpractice case in which the mother of a deceased child told me that the nurse called the physician several times a day for two days in a row asking the physician to visit the sick child in the hospital. The doctor never came. Unfortunately, the child died. When we ordered the medical records, we received all of the medical records except those two days of nursing notes. That type of cover up is abhorent. If medical professionals make a mistake, they should own up to their mistake and try to make amends.

If you believe you, or a loved one, has been injured by medical malpractice, it is important to get a copy of your medical records immediately.

Call today for a free initial consultation.