Jeff Segal, MD, JD, FACS

For some, 2011 was a great year. For others, not so good. The US Chamber of Commerce memorialized 2011 with its list of Top 10 Frivolous Lawsuits.

None of these lawsuits were in the medical malpractice category. And we are certain you can fill in those gaps.

Without further ado.

• A kidnapped couple was sued by a convict who kidnapped them. Why?  The couple failed to help him evade police. What was the couple thinking? Etiquette demands kidnappees assist the kidnapper. Haven’t they heard of the Stockholm Syndrome?
• A bar is sued by a man who broke the law by carrying a gun into that bar. Why? The bar shirked its duty to search him for a weapon.
• A mother is sued by her adult children – yes adult children. Why? She sent cards without gifts.  Further to everyone’s horror, she allegedly played favorites.
• A woman files a lawsuit against a store asking for $5 million – not a trifling sum. Why? A spat over an 80 cent refund she was supposed to receive. Now that would be quite a return on investment.
• A mother files a lawsuit against an exclusive preschool. Why? Something the school did or didn’t do allegedly affected her child’s college prospects. We’ll try to report back in 15 years.
• A man who filed a lawsuit claiming age discrimination. Fair enough. Then he argued the presiding judge was too old to hear the case.
• An obese man filed a lawsuit against a burger joint. His beef? The booths were a tad tight to accommodate his large frame.

And so on….

Help us round out the list from the medical world. Share your thoughts.

Michael J. Sacopulos, Esq.

A New York trial court judge received word that a juror had conducted some independent research during the trial by performing “google” searches on the parties.  Upon questioning, the juror admitted that he had “googled” the parties and gave the excuse that he was “curious.”   Apparently he wasn’t the only curious juror.  The trial court judge went on to question the remaining jurors.  Eight of his fellow jurors also admitted to conducting independent internet searches.  That is nine (9) out of the twelve (12) jurors.  The judge was forced to declare a mistrial.  This is not an isolated incident.  In another case, a juror was uncertain whether a defendant was guilty or not.  What did she do? She conducted a poll on her Facebook page.  This also resulted in a mistrial.

The social media revolution has inflamed other aspects of the trial process.  Attorneys now devote effort to reviewing the other party’s social media use.  Information that you post for friends or colleagues may well end up as a piece of evidence in a trial.  A simple rant posting following an unpleasant appointment or difficult staff encounter reported in a Tweet could end up as a line of questioning in your deposition or trial.  Social media sites have become a new frontier for lawyers to explore in litigation so be careful what you post.

Here are some tips on how to protect yourself: Continue Reading »

Michael J. Sacopulos, Esq.

An doctor was sued several weeks ago for her use of a healthcare financing company.  The suit was brought as a class action and is based upon consumer fraud laws.  The allegations center around the way the credit application was presented and when it was signed by the patient.  The patient claims that she did not understand that she was signing a credit application and that the practice performed unnecessary work in an effort to collect the entire amount of her line of credit.  The doctor needs to prepare for a long, painful process.  This is not a medical malpractice case, so normal professional liability policies will not cover it.  Further, given the general public’s current hostility towards finance firms, there is a risk to taking the case to a jury.

Basically, this is a predatory lending case.  Predatory lending is a general description for activities that violate consumer laws.  A common element to most predatory lending cases include the lender or lender’s agent engaging in fraud or deception to conceal the true nature of the loan obligation from an unsuspecting or unsophisticated borrower.  This means that a practice could be sued based on what information was presented to a patient or for how a signature of the application was secured.

It seems that this doctor is not alone.  Continue Reading »

Michael Kirsch, M.D. – author, MD Whistleblower

When lawyers talk, I listen. Two attorneys penned a piece on medical malpractice reform in the April 21st issue of The New England Journal of Medicine, the most prestigious medical journal on the planet. Here is an excerpt from their article, New Directions in Medical Liability Reform.

The best estimates are that only 2 to 3% of patients injured by negligence file claims, only about half of claimants recover money, and litigation is resolved discordantly with the merit of the claim (i.e., money is awarded in nonmeritorious cases or no money is awarded in meritorious cases) about a quarter of the time.

This is not self-serving drivel spewed forth by greedy, bitter doctors, but a view offered by attorneys, esteemed officers of the court. Apply the statistics in their quote to your profession. Would you be satisfied if your efforts were benefiting 2-3% of your customers or clients? Would this performance level give me bragging rights as a gastroenterologist? Perhaps, I should attach a new slogan to my business card.

Michael Kirsch, MD

Gastroenterologist

Correct Diagnosis and Treatment in 2-3% of Cases

We would have to build a second waiting room to accommodate the crowds of new patients who would be jamming in to see me. Continue Reading »

Michael J. Sacopulos, Esq.

There have been several recent cases involving Facebook that have been released. These cases continue to show how social media has permeated our society. They also show a darker side of social media. Although not directly related to the health care world, I think that they provide some useful lessons. But first the cases…

Several weeks ago a Connecticut judge ordered a couple in the midst of a divorce an exchange of passwords for Facebook and dating websites. The husband’s lawyer argued, that postings by the wife, were evidence of her inability to take care of the couple’s children. The husband was arguing for full custody. The court agreed that this might produce irrelevant information in order for the wife to disclose Facebook and dating website passwords. The court agreed it might provide irrelevant information and ordered that the husband and wife exchange Facebook and dating website passwords. Finally the court went on to order that neither spouse may post messages pretending to be the other. Continue Reading »

Jeff Segal, MD, JD, FACS

Remember how painful memorizing the Kreb’s Cycle was?

Try this. New patient walks in with a few freshly printed documents. He just plopped down a few hundred bucks for a personalized genetic profile – offered by 23andme, Decode, or any number of other direct-to-consumer vendors.

He points to SNP results linked to 9P21. He findings state Rs2383207 (G:G); Rs1333049 (C:C); and Rs10757274 (G:G). He’s heard these markers might bode poorly for heart attack.

“Doc, what do YOU think?”

Kreb’s Cycle doesn’t seem so hard now, does it?

Welcome to the exploding world of personalized medicine. There are several thousand discrete gene tests which can identify isolated single nucleotide polymorphisms. These SNPs sometimes predict if populations are at higher risk for certain diseases. Whether such findings are strong; weak, or fleeting or even applicable to individuals remains to be seen.

Sequencing the entire genome at one time cost millions of dollars. Today, some companies are offering raw data (sans interpretation) for under $10,000.

What responsibility do you have for interpreting tests not approved by the FDA? What about not ordering genetic tests for your patients? What about tests looking at genes that might impact drug metabolism – for example Coumadin or Plavix.

Interestingly, there is not much case law on these issues. And to make matters more challenging, many insurance carriers will not pay for some genetic tests.

If you are comfortable with the literature and making recommendations, then by all means do so. If not, consider referring the patient to a genetic counselor for guidance.

Finally, should you order genetic tests when prescribing drugs that impact metabolism? Maybe. I am no expert on pharmacogenomics. If the risk of getting the dose wrong is great; and the clinical effects of getting the dose wrong are significant, I personally would write the order to help guide treatment. What would you do?

Citrate → cis-Acontiate → Isocitrate → alpha-Keotglutarate….