Anne M. Valentine

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Heart Disease is Costly – Cardiac Care Is A Money-Making Machine That Too Often Favors Profit Over Science

As baby boomers hit their 60s and heart disease remains the No. 1 killer of all U.S. adults, it’s no surprise that ads exploiting people’s concerns about their heart are cropping up everywhere.

“Find a new way to tell Dad you love him,” suggests an ad from the Heart Hospital of Austin, in Texas. “Show your love with a Heart Saver CT.”
The website Track Your Plaque warns, “The old tests for heart disease were wrong—dead wrong.” It says heart scans are “the most important health test you can get.”
“Does your annual physical use the latest technology to prevent … heart disease before it strikes?” asks the radio ad for the Princeton Longevity Center, in Princeton, N.J. The center’s website promises that its full-day exams—which can include heart scans and usually aren’t fully covered by insurance—can detect the “silent killers that are often missed in a typical physical exam or routine blood tests.”
Those and similar ads are not unusual. They are part of a marketing strategy by hospitals, medical centers, and doctor groups to cash in on consumers’ fears.
“It’s a big problem,” says Kimberly Lovett, M.D., a physician at Kaiser Permanente and a member of the San Diego Center for Patient Safety at the University of California, San Diego School of Medicine. “These marketing strategies exploit patient fears and promote tests that aren’t necessary for most people.”
In a June 2011 editorial in the Journal of the American Medical Association, Lovett suggests that inappropriate testing can lead to inappropriate treatment. “Direct-to-consumer cardiac testing may pose more harm than benefit,” she writes.
Lovett is one of a growing chorus of physicians calling for a crackdown on indiscriminate testing and treatment in favor of an evidence-based approach to cardiac care.
But money talks—often loudly enough to drown out those voices. As doctors and hospitals add more and more expensive high-tech gadgetry to their arsenals, all too often it’s profit, not science, driving decisions on how heart disease is detected and treated in the U.S.
A Consumer Reports investigation—including interviews with doctors and other health professionals, our own survey of more than 8,000 subscribers, and analysis of medical research, marketing materials, and the available data on heart doctors—shows the following:
• People often get the wrong tests. Good tests detect heart disease and lead to effective treatments. But many heavily marketed cardiac tests don’t do that. “I can understand how people would think ‘what’s the harm?’” Lovett says. “But not only is the wrong test a waste of resources, it can be downright dangerous if it leads to inappropriate treatment.”
• Angioplasty is overused. Recent research suggests that many patients in nonemergency situations are rushed to angioplasty, an invasive procedure to clear blockages in the coronary arteries, when dietary changes and exercise, plus drugs, would be just as effective and much safer. Other research shows that angioplasty is also too often used for severe blockages, when surgery to bypass the occluded arteries could provide longer-lasting benefits.
• Consumers don’t have enough information on heart doctors. To help fill that gap, we’ve teamed with the Society of Thoracic Surgeons to publish ratings of heart-surgery groups that perform bypass surgery. Unfortunately, there’s no comparable registry for interventional cardiologists, who perform angioplasty. So if you want information about those doctors, you’ll have to ask some tough questions.
• Real differences exist among heart surgeons. When there is solid information on doctors, such as with heart-surgery groups, the data show that quality can vary in important ways. In addition, recent research reveals that many practices aren’t following the latest guidelines. It pays to thoroughly explore your options.
• Heart disease is often misunderstood. Many patients, and even some doctors, have an outdated understanding of the best way to prevent heart attacks.
“Medicine doesn’t change quickly or easily,” says Steven Nissen, M.D., chairman of the department of cardiovascular medicine at the Cleveland Clinic in Cleveland, Ohio. “It may take years for evidence to trickle down to private practice.”
Another reason for consumers to be alert, Nissen adds, is the health-care system favors expensive procedures. “Physicians are reimbursed far more for a 20-minute angioplasty than an hour-long discussion,” he says. “Those financial incentives inevitably drive clinical decisions. That’s why patients have to do their own due diligence to get the best care.”
Heart myths busted
Of course, paying attention to your heart is a good thing. Everyone should have their blood pressure and weight measured at each doctor visit. Many should undergo basic tests such as those for high blood sugar and cholesterol. And knowing heart facts, like the signs of a heart attack, can be lifesaving.
But our online survey of 8,056 readers ages 40 to 60 found that many people overestimate their risk of heart attack. For example, 29 percent of the people with no history of heart disease and normal blood pressure and cholesterol levels described themselves as being at risk of heart disease, though only 9 percent said they had actually heard that from a doctor.
Many people also overestimate the ability of screening tests to provide reassurance. Healthy respondents whose recent tests included an electrocardiogram (EKG) were more likely than those who didn’t to agree with the statement “going through the testing process is worth the peace of mind that comes with knowing everything is OK.”
But the heart facts are that the test can produce falsely positive results in people without symptoms who are at low risk for heart disease. Almost no one recognized that potential harm: 87 percent completely or somewhat agreed that it was “better to have a scare that turns out to be nothing than to not get tested at all.”
Truth is, the best things for your heart often aren’t fancy tests or aggressive treatment. “People tend to view heart doctors as some sort of action hero and think the more aggressive, the better,” says William Boden, M.D., a professor of medicine at the University at Buffalo Schools of Medicine and Public Health in New York. “But a conservative approach should never be considered passive or inferior.”
The push to overtest and overtreat heart disease stems at least in part from outdated notions of it as a kind of plumbing problem. Doctors would often test for blockages and then clear them using angioplasty.
In that procedure, also called percutaneous coronary intervention (PCI), the doctor inflates a thin balloon in the narrowed artery to crush deposits, typically leaving a cylindrical insert called a stent in place to prop the vessel open. When performed within hours of a heart attack to clear a blocked or nearly blocked artery, the procedure works very much like clearing a clogged pipe. In those situations, it can be a lifesaving treatment.
But in nonemergency situations, the analogy breaks down. As it turns out, diseased arteries are riddled with smaller deposits that are the real troublemakers. We now know that most heart attacks occur not because a large deposit blocks an artery but when a smaller, less stable one ruptures, producing a blood clot that cuts off oxygen to the heart.
The latest research shows that drug therapy and lifestyle changes are the best first-line treatment because they address the underlying risk factors that cause deposits to form and trigger attacks. While angioplasty can help relieve symptoms such as chest pain or shortness of breath in people with stable disease, it doesn’t prevent heart attacks or prolong life better than medical therapy alone.
Moreover, angioplasty triggers heart attacks in 1 to 2 percent of patients and adds thousands of dollars to the cost of treatment.
Furthermore, there’s no need to scan people willy-nilly, because most people have some deposits in their arteries by the time they reach middle age. “I’m sure I have some arterial buildup,” Lovett says. “It’s just a process of aging.”
Too many heart tests
In our survey, 44 percent of people without heart risk factors or symptoms reported undergoing a heart-specific screening test such as an electrocardiogram, exercise stress test, or ultrasound of the carotid arteries, even though such tests aren’t recommended for healthy people.
And most underwent testing without first getting crucial information on the accuracy of the tests, the potential complications, or what they would need to do if the tests came back with worrisome results.
Julia Brown, a registered nurse in Washington, D.C., was one of the exceptions, a healthy survey respondent who opted out of extra testing. “You have to be careful,” Brown says. “These shotgun screening tests often lead to additional testing and treatment that has its own dangers. In my line of work, I get to see firsthand the disasters that occur.”
A recent study of 2,000 healthy middle-aged adults bears out Brown’s experience. It found that people who had a heart scan were more likely than those who didn’t to be prescribed medications and to undergo invasive tests and procedures such as angioplasty and even heart bypass. But they are no less likely to have a heart attack or other cardiac event. According to the researchers, those heart scans “do not have a role” in screening low-risk people.
“Once a doctor sees something even remotely abnormal, the reflex is to try to ‘fix it’ even if there’s no evidence that what you saw will cause a problem or that what you are doing will help,” Nissen says. He points to a 52-year-old nurse featured in a case study he co-authored in the Archives of Internal Medicine*. False positive results from her heart scan led to unnecessary angioplasty, which set off a cascade of complications and further surgeries, including, finally, a heart transplant.
Proponents sometimes say that the risk of overtreatment is outweighed by the benefit of discovering disease that wouldn’t be detected any other way. Not true, our experts say. Standard assessment tools that use information gleaned from basic checkups, such as age, weight, and blood pressure, are good predictors of risk and can help determine effective ways to reduce it. While there are some heart attacks that occur truly without warning, Nissen says it’s “rare to have significant narrowing of the arteries and have no symptoms and no other risk factors.”
What about the motivational value of picturing the inner workings of your heart? A heart scan does produce “a pretty picture,” Lovett says, “but it ultimately doesn’t lead to better outcomes.”
Paul Ridker, M.D., director of the Center for Cardiovascular Disease Prevention at Brigham and Women’s Hospital in Boston, has studied the scans and concluded that they aren’t useful for screening. The “deposits cardiologists worry about are the less stable plaques that CT scans routinely miss,” Ridker says.
There’s one more downside of scans that the ads never talk about: radiation—as much as 200 times the radiation of a standard chest X-ray for some types of CT angiography. Some newer devices use less radiation, but any exposure from an unnecessary test is excessive.
Too much angioplasty
Overuse of angioplasty has made national headlines this past year, with the Department of Justice and the Senate Finance Committee investigating incidences in which hospitals subjected hundreds of patients to needless angioplasty procedures.
But recent research suggests that the problem is not isolated to a few overzealous practitioners. Only half of procedures that used angioplasty to open narrowed arteries in nonemergency situations were clearly appropriate, according to a study of almost 500,000 cases published in July 2011 in the Journal of the American Medical Association. The researchers also uncovered wide variation among hospitals; the rate of clearly inappropriate angioplasty procedures varied from less than 6 percent at some to greater than 16 percent at others.
Equally disturbing, a third of patients in another large study were not discharged with the right drugs. And without the necessary drugs to control risk factors such as high cholesterol and hypertension, heart disease can be expected to progress.
Some hospitals have become such angioplasty factories that the procedure is used even when surgery to bypass the occluded artery would be better. Many patients who would have had bypass surgery a decade ago now undergo angioplasty instead, according to a recent study that tracked the rate of procedures at U.S. hospitals between 2001 and 2008.
The heart tests you need
Which heart tests you need depends on whether you have symptoms that could indicate heart disease, such as angina (chest pain) and shortness of breath.
People without symptoms should focus on tests for high blood pressure, cholesterol, and blood sugar levels, since the best way to prevent heart attacks and strokes is to control those risk factors. And you don’t need high-tech tests to check for them. “The question is not whether you can test for disease, but whether you should,” Ridker says. “If a test can’t define the necessary therapy and doesn’t help with follow-up, then it should not be ordered.”
In our survey, 12 percent of healthy respondents said they underwent stress testing, which measures the heart’s function while it is stressed by exercise. That’s usually a bad idea because in low-risk people the test produces a lot of falsely positive results. The exceptions: older airline pilots, bus drivers, and others whose job affects public safety, or people who are middle-aged or older with multiple heart risk factors who are starting to exercise.
People with symptoms usually need an exercise stress test, possibly with an echocardiogram (which uses sound waves), or a nuclear test (which uses radioactive material) to produce an image of the heart.
CT angiography might be appropriate for people with inconclusive stress-test results to see whether a somewhat more invasive test, standard angiography, is necessary. But the results are often so uncertain that they have to be followed up with standard angiography anyway.
In standard angiography, a doctor threads a tube from the groin into the coronary arteries and injects a dye so that blockages show up on X-ray. Skipping the stress test and going straight to angiography is warranted only for people at very high risk of having a heart attack or who have symptoms or underlying conditions that could make stress testing risky, such as chest pain that occurs even at rest.
Get the right heart treatment
When testing confirms heart disease but shows no imminent threat of heart attack, our experts say the best approach is a long-term commitment to lifestyle changes plus drugs to lower blood pressure and cholesterol levels, ease chest pain, and prevent blood clots. After three to six months of therapy, if you still have troublesome symptoms, you could consider more invasive options.
If testing reveals severe blockages, angioplasty or bypass surgery might be warranted. But even then you should weigh your heart-treatment options. If the doctor recommends angioplasty, ask why that’s preferable to bypass. If he or she suggests bypass, ask about angioplasty. If you’re not satisfied, consider getting a second opinion. Bypass is often called for when the heart’s main artery or three other major arteries are occluded; angioplasty might be an option if one or two vessels are blocked.
When choosing a bypass surgeon, there’s reliable data to draw on, as our ratings show. While many hospitals and cardiologists track similar data for angioplasty, that information is not publicly available. One indicator of physician quality is the number of procedures he or she performs. Look for an interventional cardiologist who performs at least 75 angioplasties a year and a hospital that does at least 400. To avoid a physician or practice that churns out too many, ask whether the doctor’s and hospital’s procedures undergo regular peer review.
But you need to know about more than just volume. “Consumers can ask whether a practice participates in our registry, which indicates the hospital can benchmark their performance against a national standard,” says Frederick Masoudi, M.D., associate professor of medicine at the University of Colorado in Denver and senior medical officer for the American College of Cardiology’s National Cardiovascular Data Registry. Masoudi says the data is being reorganized into a more accessible format and is expected to be released within the next two years.

Consumer Reports September 2011

Leeseberg & Valentine has earned an impressive placement ranking in the 2011-2012 U.S. News – Best Lawyers “Best Law Firms” list. The rankings are based on a rigorous evaluation process that included thousands of clients, highly skilled lawyers and law firm representatives. An unprecedented amount of data was collected, emphasizing the scope of this endeavor and the significance of our firm’s presence in this unparalleled guide to law firm expertise.

If you represent the plaintiff, the verdict you want the jury to bring in is a finding of liability and comprehensive damages. In the present era of litigation where difficult and enormously costly barriers and hurdles have been placed in the way of a plaintiff seeking to recover, it is not economically feasible for plaintiff’s counsel to recommend that a client pursue a claim without very substantial damages. It seems axiomatic that the larger the award required to compensate a plaintiff, the greater the burden of persuasion.

Persuading a jury to bring in the verdict you want obviously begins long before closing argument: without the proper foundation, an “effective closing argument” is impossible. It is not the purpose here to discuss how to prove liability or damages as a predicate to having the jury “bring in the verdict you want,” but rather to provide some ideas for when, and how, it might be beneficial to ask the jury to award a specific amount of damages.

Trial strategy always involves the question of when and how to broach the subject of damages with the jury, and whether “numbers” should be mentioned, suggested or requested. This discussion should include the question of whether the jury should be asked to return a specific amount of damages and, if so, how that should be done. Careful consideration must be made, because if done ineffectively or in inappropriate circumstances, you risk alienating the jury – resulting in the jury bringing in a verdict you do not want!

For a plaintiff attorney, there is no wisdom in taking cases that are weak or questionable as to the merits, or to retain mediocre expert witnesses to support the claim. Nevertheless, having a strong, meritorious claim supported by highly qualified experts does not provide any assurance a case will be settled, or if tried, there will be any shortage of qualified defense experts willing to defend the case. However, having justifiable confidence in your case and how it will play out at trial – and not just wishful thinking – is a requirement for considering whether to ask a jury to award a specific amount of damages. This is because your ability to get the jury to respond favorably to a request for a specific damage award is largely going to be a function of your credibility.

One of the most frequently asked questions by prospective jurors during voir dire is “how in the world can we be expected to determine what appropriate damages are?” in the event liability in the case is proven. The standard, formulaic response is that counsel and the court will provide the jury with some guidance through evidence, argument, instructions of law and otherwise, and that the collective wisdom of the jury will be relied upon by the parties to do what is right. What the jurors hear amounts to “blah, blah, blah.”

The very asking of the question reveals that the jurors clearly want help in answering this question. As long as you begin and end the trial with credibility, there is no reason why you should not be the person they can rely upon to answer that question. This is especially true since the court will not even approach answering the question despite the convoluted legal mumbo jumbo contained in the damage instructions.

If the trial goes as anticipated, defense counsel should have far less credibility than you in the eyes of the jury. After all, it was you who told the jury that the evidence would prove the defendant was negligent. Defense counsel denied the evidence showed negligence, wanted the jury to ignore that evidence, and refused to accept responsibility for her/his client. Having kept your promise, you hold the high moral ground; why should the jury believe defense counsel on the issue of damages if s/he was not worthy of belief on the issue of fault? In closing the jury should be reminded of any concrete examples where defense counsel improperly represented the evidence to the jury, or of concessions obtained from defense experts calling into question the general credibility of the denial of responsibility.

But, the ability to credibly ask for a specific monetary award begins long before the closing. Start, for example, with civil rule 8:

Rule 8. General rules of pleading
(a) claims for relief. A pleading that sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the claim showing that the party is entitled to relief, and (2) a demand for judgment for the relief to which the party claims to be entitled. If the party seeks more than twenty-five thousand dollars, the party shall so state in the pleading but shall not specify in the demand for judgment the amount of recovery sought, unless the claim is based upon an instrument required to be attached pursuant to Civ. R. 10. At any time after the pleading is filed and served, any party from whom monetary recovery is sought may request in writing that the party seeking recovery provide the requesting party a written statement of the amount of recovery sought. Upon motion, the court shall require the party to respond to the request. Relief in the alternative or of several different types may be demanded.

It is a violation of the civil rules to file a “$15 million lawsuit,” despite the fact that it is frequently done as evidenced by newspaper headlines. If a plaintiff seeks more than $25,000, the complaint “shall so state.” Of concern to this discussion, a defendant can compel the plaintiff to provide “a written statement of the amount of recovery sought.” Presumably, this relates to a defendant’s legitimate need to determine, inter alia, whether there is adequate liability insurance coverage available. However, a cavalier response should not be made, and precautions always taken, whenever such a statement is requested, regardless of the monetary amount set forth. A proposed response to this request is set forth below:

Objection: plaintiff is not legally competent to respond to this request. Furthermore, there is no requirement that a plaintiff ever specify or request a precise amount of general damages sought to be awarded by the jury, and plaintiff reserves the right not to do so. To the extent this request seeks information not related to special and/or economic damages, it also seeks to invade confidential attorney-client communication, and/or privileged attorney work product and trial strategy. Moreover, plaintiff may not know until the conclusion of presentation of evidence at trial what award of damages is supported by the evidence. Notwithstanding the foregoing, and without waiving objection, based on the evidence as presently known, plaintiff states that s/he may seek [$ amount ] in damages at the trial of this case. Inasmuch as pleadings are not evidence, plaintiff further objects to any mention and/or attempt to introduce at trial the response to this request for statement of damages. This amount is not to be construed as a settlement demand and has no bearing on the good faith effort of plaintiff to settle this matter.

The concern, of course, is that an effort will be made by unscrupulous opposing counsel to use the response for any purpose beyond assessing adequacy of insurance coverage, particularly at trial. If a plaintiff cavalierly sets forth an “outrageously” large “recovery sought,” any manner of communicating this in any fashion to the jury by opposing counsel could have a devastating effect on the plaintiff, in the eyes of the jury. Thus, the response to this “request for statement of damages sought” should be made the subject of a motion in limine so that opposing counsel does not “inadvertently/unintentionally” mention it in the presence of the jury.

Notwithstanding the foregoing qualifications to the response, a well thought out response can have a favorable impact in the event a verdict comparable to the response is obtained and a motion for prejudgment interest is pursued. It is suggested, therefore, that considerable care be given to the response. Similarly, as trial approaches and settlement negotiations are explored, a consistent and measured initial settlement demand, which is characterized as the upper range of a potential jury verdict range, if proven to be reasonable by the jury’s eventual verdict, can add further support to a claim for prejudgment interest.

Moving toward the actual trial itself, the questions loom:

• Should I ask the jury for a specific amount of damages?
• If so, when should I first discuss an amount?
• How should I approach the issue?

It should be understood that asking for a specific amount is the exception, and not the rule. In the typical case you want to provide the jury with some guidance without appearing to be attempting to invade their province and telling them what to do. The answer to the first question, therefore, depends on any number of circumstances. A few of these factors are set forth below:

• Are the operative facts underlying your theory of liability largely undisputed, or strongly supported by the evidence?
• Is your liability case strong? (if facts are proven, do they strongly suggest negligence?)
• Does the case have facts that may provoke the ire of the jury?
• Does your client have finite, objectively supported special/economic damages?
• Does the magnitude of the injury far exceed the special damages?

In general, the circumstances described above indicate that you, as advocate for the plaintiff, will be able to tell the jury what the facts are, and be proven absolutely correct. Conversely, to the extent defense counsel has refused to admit those facts, his/her credibility will be diminished. If the defendant is on record denying facts that have subsequently been proven to be true, this should be emphasized. This sets up a situation where the jury will justifiably and confidently look to, and rely upon, you to answer the question, “how in the world can we be expected to determine what appropriate damages are?” As long as the requested damages are reasonable given the magnitude of the injury, defense counsel really has nothing to offer the jury, and a challenge to defense counsel to comment on a damage request in rebuttal is often ignored for obvious reasons.

This reliance on you, and rejection of any position the defense takes with regard to damages, is further enhanced if facts are proven that reflect adversely not just on the conduct of the defendant, but on his/her character. While defense counsel can fairly be expected by the jury to argue about the facts in advocating on behalf of his/her client, it is a major problem for defense counsel to have to be able to vouch for a defendant whose conduct – in the underlying circumstances of the case, in discovery, or during trial – is offensive in any way. You want the jury to ask defense counsel, even if only subconsciously, “why should we listen to anything you have to say on behalf of this defendant?”

When special damages are well-defined and finite, and the major aspect of the damages claim is general damages – the all-encompassing “pain and suffering” – jurors are particularly desirous of assistance in answering the question “how in the world can we be expected to determine what appropriate damages are?” The defense is really not in any position to credibly offer an opinion on this: the defendant does not suffer from the injury and defense counsel’s mission is to minimize his/her client’s responsibility. The jury needs to be reminded of this and defense counsel’s argument should be carefully scrutinized to avoid the impermissible “expression of personal opinion” by counsel.

As to when and how a specific damage amount should first be discussed, it is suggested that the process begin during voir dire. It is always important to inquire of jurors whether they have any perceived damage award beyond which they would not consider awarding, regardless of the evidence and the court’s instruction on the law. When a juror responds to this – and regardless of the nature of the response: “No”, “I don’t know”, or “Yes” – an appropriate segue is as follows:

• “For example, let’s assume a person bringing a claim has $5 million in damages. Would you have any hesitancy to make an award of damages in that amount, simply because of the size of the award”

You have implanted the idea of making an award of $5 million without tying it in any way to your client’s case. You are simply making an academic inquiry at this point about the juror’s willingness to follow the law and consider an award, regardless of the size of the award. To make it easier for jurors to grasp the concept of awarding $5 million, this line of questioning could be premised on a hypothetical involving a $5 million building that burned to the ground because of a defendant’s admitted negligence.

Listen carefully to the prospective jurors’ responses. Remember, they have all been sworn by the court to speak the truth, and their responses are a matter of the official record that all the prospective jurors have heard. In this regard, they can be in some sense as “witnesses”. When a prospective juror has said “absolutely, in the right case, assuming there are serious injuries and the defendant’s responsibility for the injury is proven, I would have no problem making such an award,” you now have the juror establishing the criteria you must meet to ask for such an award.

After the jury has been seated, during opening statements plaintiff’s counsel should circle back to the juror’s comments during voir dire:

• “As you will recall, during voir dire I asked each of you whether you would be willing to consider making a large award of damages, as high as $5 million, if the evidence and the court’s instructions on the law supported such an award. Each of you indicated that you would have no hesitation in making such an award. That was not just a hypothetical or academic question, because we firmly believe the facts of this case, and the severity of Mrs. Smith’s injuries justify an award of $5 million. And, at the conclusion of this case, we will be asking you to award Mrs. Smith $5 million.”

By taking this approach, you have obviously staked yourself out to meeting your burden of proof and maintaining your credibility. But, if you have thoroughly conducted discovery, properly analyzed your case, are prepared for trial, and desensitized the jury, this should not be considered a high stakes gamble. There is no reason why you cannot stand up during closing argument and address this issue head on:

• “I started this case during voir dire discussing the issue of damages. You all stated your collective willingness to consider a substantial verdict, as much as $5 million should the evidence support such a verdict. During opening statement we also talked about damages, and I reminded you of our discussion in voir dire about awarding damages of $5 million, and why I felt such an award would be proven, justified and reasonable in this case. I told you that at the end of the trial I would be asking you to make an award of $5 million. And during the course of this trial, I have not heard a single piece of evidence that suggests that an award of $5 million is not appropriate.”

Assuming you have properly analyzed and prepared your case, and there is no risk of having to back down from your consistent assertion about damages from the outset of the trial, there is no reason why the jury should not feel comfortable looking to you for guidance and “bring in the verdict you want.”

If the jury accepts your recommendation, and the verdict is consistent with your response to a Civil Rule 8 request for statement of damages and/or your settlement demand and negotiations, you will also have gone a long way to preserving the amount of the verdict against attack on appeal, as well as establishing the basis for prejudgment interest.

Gerald S. Leeseberg

Leeseberg & Valentine would like to express our gratitude at being able to assist Neal Aquino’s family in obtaining a settlement that has helped them establish a fund in his honor and memory.

When Alumni Weekend takes place May 13-15, 2011, an alum from the University of Cincinnati College of Medicine will be noticeably absent, and dearly missed: Neal Aquino, MD, who passed away from surgical complications in 2007.

To honor Aquino’s memory and his affinity for his alma mater, his family—Nestor Aquino, MD, a Cincinnati anesthesiologist, his mother, Althea, and sister, Aileen—have seeded a scholarship fund in Neal’s name with $50,000 to assist other aspiring physicians with the cost of attending the UC College of Medicine.

When asked to put into words what the College of Medicine meant to her brother, Aileen Aquino eloquently wrote, “From a young age, Neal Aquino knew he wanted to be a doctor…The years he spent at UC in medical school were some of the best, most challenging, yet truly rewarding experiences in his life.”

Aquino’s was indeed a lifetime of great experiences, even before medical school. This brilliant young man began reading at the age of 3, skipped two grades at Covington Latin School and earned double degrees (and two minors) from Xavier University before enrolling in medical school at age 20.

“Our wish is to keep Neal’s memory alive by helping exceptional students reach their full potential and, like Neal, achieve their goals,” he says.

By Angela Koenig
Bulletin / UC College of Medicine Medical Alumni Association March 2011 Student Life and Scholarships

For more information on how to contribute contact Dawn Perrin, director of development/educational initiatives, at 513-558-2304 or e-mail her at dawn.perrin@uc.edu.

Editor’s Note: Recently, Ellen Hobbs Hirshman [EHH] hosted a “roundtable” conference call with three plaintiffs’ lawyers, one defense lawyer, and a judge, to discuss obstructionist tactics during depositions, and how to handle them. The plaintiffs’ attorneys were Gerry Leeseberg [GL] of Leeseberg & Valentine in Columbus, Ohio; Steve Collier [SC] of Connelly, Jackson & Collier, in Toledo, Ohio; and Toby Hirshman [TH] of Linton & Hirshman in Cleveland, Ohio. The defense attorney was Bill Bonezzi [BB]of Bonezzi, Switzer, Murphy, Polito & Hupp in Cleveland, Ohio. The judge was Richard McMonagle [JRM]of the Cuyahoga County Court of Common Pleas. Here are some of their insights. Special thanks go to Laura Ware, who acted as Court Reporter for this conference call..

EHH: We’re discussing how to deal with speaking objections and inappropriate conduct in depositions. Let’s start by talking about the type of conduct we encounter in our day-to-day practices. Gerry, why don’t we start with you.

GL: Oh, boy. You know, I think I’ve matured, and most of the attorneys I’ve practiced with and against have matured, to the point where speaking objections are not as big a problem as they used to be.

I find myself being guilty of speaking objections when I encounter defense counsel who I believe is intentionally attempting to distort the record. It often occurs with my clients who are unsophisticated. I find myself having to jump in to stop what I consider to be a distortion of my client’s testimony.

The concern is that it’s difficult after a deposition has been completed to supplement a client’s testimony with an affidavit clarifying what they’ve said. Especially in federal court, not so much in state court, that is really frowned upon. And unless you’ve got a clean and accurate record, that deposition is often used against us in motions for summary judgment, motions in limine, and things of that nature.

So I do find myself, on occasion, being almost forced to engage in speaking objections, to clarify the record, where defense counsel is supposedly reiterating what my client or my expert testified to, and mischaracterizes it as a predicate to the next question. And by doing so, confuses the issue and confuses what the next answer to the question will be.

And I guess I’m not that concerned about being dragged in front of the court on these occasions because I’ll be able to defend my conduct in light of what defense counsel is doing.

TH: Perhaps I’m not as mature as Gerry, because I seem to run into speaking objections from defense counsel fairly frequently. There are certain lawyers who are repeatedly guilty of it. It’s usually a situation where they decide that the facts aren’t beneficial to them so they attempt to steer testimony in one direction or another by making objections that are calculated to suggest an answer. You can make your objections to their objections. Sometimes that’s effective in putting them in line, sometimes it’s not.

So I see it as an occasional problem, but when it’s a problem it can be a significant one. And if you don’t grab it by the horns, it can change the complexion of the case in a significant way. The question is how do you deal with that.

EHH: Now, Gerry suggested he doesn’t confront speaking objections as much, while Toby and I encounter them quite frequently. As Toby suggested, when we do confront them, they have distorted and sometimes ruined what could have been a very productive deposition.

So I’m wondering if anybody else encounters these types of talking objections which suggest an answer, and are clearly inappropriate.

GL: Ellen, I didn’t mean to suggest I don’t run into the problem. I do. It’s exactly on the occasions Toby was talking about. It seems like the better the deposition is going, the more you run into the problem from defense counsel.

And they do it for exactly the reasons Toby pointed out. When they make an objection, it’s almost like a red flag they pick up and wave in front of their witness, saying, “Okay, understand that I’ve got a problem with this question so I want you to think about it.” And if that’s not sufficient, they even add an explanation to their objection to help the witness understand exactly what their concern is about the question.

SC: I think sometimes depositions can bring out the worst in an attorney. When you see your case going down the drain, whether you’re plaintiff or defense, you have this desire to prevent that from happening. Unfortunately, it results in some of the conduct that was just discussed.

I think it can range from the very simple “If you know” instruction – to which the witness usually responds, “Oh, I don’t know” -

GL: What a coincidence.

SC: — to the long speaking objection Gerry spoke of, which I think is more problematic when it’s a predicate to a question and is not factually correct. But both these kinds of objections are problematic. If a witness, such as a doctor, is ready to give you an answer that is very helpful, and he is instructed, “Doctor, only answer if you know,” all of a sudden he may not know.

One way I try to confront this – particularly if I know the attorney and know that this might be a problem – is by telling the expert witness at the beginning of the deposition, “Look, I don’t want you to answer any question you don’t know, and if you don’t know the answer to a question, you can say that and this will prevent your lawyer from having to remind you of that during the deposition.” It’s not foolproof, but at least it’s something to help out, particularly if you’re making a record for the Court at a later time.

BB: I have noticed that the older or more experienced the defense counsel is, the less likely they are to object. Maybe it’s because younger or less experienced individuals feel they have to try to control the deposition, or that they have to show their physician or their client that they’re in charge.

However, as a defense attorney, I have also noticed that there are certain defense lawyers from certain law firms who constantly interrupt, interrupting the flow and the thought process of the individual. It’s done for a couple of reasons. One of them, which I find wrong, is that they don’t prep their witness well enough beforehand, so they interrupt and try to stop the flow of good questioning to make up for their lack of preparation.

The important thing is how you get around it. I don’t spend a great deal of time arguing with people in depositions anymore. I just don’t think it’s worth it. There are times you would like to jump right in and say something to disrupt the flow because you know you’re getting pounded. But, at the same time, those are the facts of the case. You have to deal with them and see how your witness is going to operate under pressure anyway.

But the fact of the matter is, we’re all going to continue to encounter speaking objections with certain attorneys, and I’m not sure how to stop it.

EHH: Steve has suggested one way to deal with these kinds of objections is to make a comment at the beginning of the deposition that, “I only want you to answer questions you know the answers to.” Another thing you can do, that I’ve done in some cases, is to explain at the outset, “Your counsel may object from time to time, and your counsel knows that it’s inappropriate to make talking objections, or to suggest an answer in his objections. So if he objects, he’ll probably just be saying the word ‘objection.’ And unless he or she instructs you not to answer, you go ahead and answer the question.”

It doesn’t always work, but it’s one thing I’ve tried.

SC: If there are a lot of interruptions, I usually remain calm and at the end just say, “Have you said everything you want to say now? Because I’m going to start speaking, and when you were speaking I did not interrupt, and I would appreciate the same courtesy from you.”

What I’m trying to do at that point is create a record. I’m not going to go to the Court very often, but when I do I’d like to have the record reflect very specific conduct where I’m remaining calm, doing what you’re supposed to do, and the other side is constantly interrupting or leading.

Because if you’re going to go to the Court, you don’t want to go crying wolf. You want to go there only when you have a very good record.

JRM: This is interesting because it sounds like an echo that I’ve been hearing for 30 years. We’ve had untold amounts of alleging unprofessionalism, codes of conduct, and everything, and it still seems to be the same dilemma. I appreciate what Mr. Bonezzi said about how the lawyer can lessen the impact of these kinds of objections or the number of times they occur. But I believe that occasionally the Judge would be interested in hearing about this misconduct – particularly if it is extreme.

The question is, how do you get to the judge? Most judges I’m familiar with insulate themselves from deposition disputes because they have their staff attorneys. So to get this misconduct before the judge, you have to pass through the filter of the staff attorney, which isn’t easy.

I think one thing that can be done is to have a video taken of the deposition. I’m not sure whether you do this routinely, or whether it’s feasible to do in all cases.

TH: I’ve often thought that with certain attorneys it might be necessary to at least have a tape recorder available, even if you don’t intend to videotape the deposition. This would be useful not only for speaking objections, but in those rare instances when an attorney becomes abusive. If you have a tape recorder there, at least you can put it on the table and say, “Listen, from now on I’m tape recording this, and you can continue in your present behavior or you can stop.”

JRM: When the record is so sterile, they can make a comment that, when you read it, does not seem all that serious. You’re right, Toby, when you get a video of it, or if it’s recorded, that can make a difference.

BB: I think it does. I think that often when it’s not on video there are shenanigans that take place, but once there’s a video that’s providing the information for all to see, it just doesn’t take place any longer.

GL: The problem is each deposition is expensive, and we’re not even sure when the problem is going to arise. To incur the expense of video-taping every deposition across the board on an annual basis is like trying to kill an ant with a sledgehammer.

One of the problems that we have is once the speaking objections have taken place the damage is done and the witness’s response has been shaped accordingly. The question then arises, what relief, what sanctions, am I entitled to from the Court?

And I would like to hear what the Judge has to say, but I personally have never filed a motion for sanctions against an attorney for engaging in that conduct. I’ve just tried to stop it through the different means already mentioned – with varying degrees of success. But I’ve never filed a motion for sanctions, and I’m not sure if one would be granted, or, if granted, what the sanctions would consist of.

JRM: I’ve never seen one, and I imagine that normally most of these problems are settled and long gone and forgotten. In most instances, we wouldn’t want to be bothered with something like that, which is being critical of the parties. We just want to see who’s ready to go to trial.

EHH: Gerry just brought up a good point. In Cuyahoga County we have local rules that give us some recourse by specifically prohibiting speaking objections. I know Lake and Summit counties have similar local rules, and the Federal Rules also deal with this problem.1 And some judges have some very specific rules about appropriate conduct in depositions, and about not making talking objections in the presence of the deponent.

Which leads to the question Gerry raised. How many of us ever bother to move the Court to get involved? As Gerry says, usually the cat’s out of the bag and they’ve already destroyed what would have been a brilliant deposition by plaintiff’s counsel. Right?

TH: The other side of the coin is the comment Gerry made when he started – that sometimes the talking objection is absolutely essential to prevent abusive questioning. So when a judge is confronted with this question, it’s not a one-sided question. He has to get to the heart of the matter, as to what the interactions were and what the real situation was in the deposition.

And my guess is, Judge, that’s not always an easy matter to ferret out.

JRM: No. You can’t. That’s why I like the video idea. You know, there’s a little sign on my desk that says, “There’s three sides to every story: yours, mine, and the facts.” And everybody is going to have their version of what really went on and their description of the other party, which can’t be fully understood from the written record.

And actually, I’m trying to look up our local rule here as we’re speaking.

EHH: Local Rule 13, right?

JRM: Is it 13? Yeah. “Decorum. Opposing counsel and the deponent shall be treated with civility and respect, and the questioner shall not engage in repetitive, harassing or badgering questioning. Ordinarily, the deponent shall be permitted to complete an answer without interruption by counsel.”

“Speaking objections which refer to the facts of the case or suggest an answer to the deponent are improper and shall not be made in the presence of the deponent.” counsel violates any of these rules at a deposition, the Court may order sanctions or other remedies, including those sanctions available under Ohio Rule of Civil Procedure 37.”

So, you know, if you bring them to us, we’re supposed to follow these rules. I just haven’t seen this.

BB: But, Judge, what is the sanction? Putting aside what the rules may call for, what is the pragmatic sanction for something like this? Everything is already done, everything is on the record, the testimony is in. What exactly is going to be done, ultimately? Because you certainly aren’t going to be able to strike the questions or the answers.

JRM: Well, I think you could. I think you could say, “Look, this is improper. This is not the way it’s done. Do it over.”

SC: I guess my other suggestion would be that you may not be able to undo what’s already happened, but if the Judge says, “If I find that conduct in the future, you are going to be removed as counsel, you are going to be limited in some way,” that is the type of thing that would be a cure – if anything would.

JRM: Of course, money always slows people down, if you want to penalize somebody with a sanction. But, to be honest with you, I’ve never seen this happen. I’ve been here for 33 years, and we just figured the attorneys settle these problems themselves.

SC: In my experience, we’ve been taught that judges don’t want to be bothered with these, and that’s the main reason they don’t come to the courts’ attention. I’ve only made a motion once, and on that occasion I created a very detailed record. I’d anticipated I might be making a motion, so all of my conduct during the deposition was letter perfect. I did not interrupt anybody, and I had this long record that – even without a video – you look at it and say, “Boy, that doesn’t look very good.”

GL: Steve, you’re a consummate gentleman and professional. I’d like to know how you respond to abusive tactics by a defense attorney who makes statements about a question, or the predicate to a question, distorts or mischaracterizes your expert’s or your client’s testimony, or uses compound questions where the answer is going to be damning simply because of how the question is phrased.

SC: The rules do allow you to stop the deposition. If opposing counsel is being abusive, or harassing, or whatever, I have at least threatened to stop the deposition before. Once, when a doctor was being deposed, I started to pack up to leave, and the doctor told his attorney, “Wait a second. I don’t want to have to come back here for another deposition. Can’t we work this out?” So we took a break, and it didn’t happen against the rest of the deposition.

I don’t do that all the time. That’s a rare circumstance. But I think if it gets to that point – particularly if you’re taking the deposition of the defendant or the defendant’s expert – it’s a useful tactic.

GL: I’m talking about when you’re defending a deposition, Steve. Opposing counsel is engaging in abusive tactics, and distorting the record in questioning your client, and your client is unsophisticated, and no matter how much preparation is easily misled.

SC: I would say one of the two things that you suggested. I don’t think you’re guilty of a speaking objection then because, as I read the rules, you’re allowed to prevent harassment from taking place. So your options are either to do that and clarify what you’re doing on the record, or to stop the deposition and try to get the Court involved at that time, if possible.

And sometimes the mere threat cures the situation. But I’m not suggesting that it works all the time.

TH: I think sometimes in that situation the speaking objection is essential. If you are truly dealing with dishonesty on the other side, in terms of rephrasing the facts as previously stated by the witness, sometimes you can shame people into changing the way they construct the question.

Sometimes that’s pretty effective, and I think you have to do it under those circumstances.

SC: One of the other things we have to deal with are the constant objections from the other side. We know
they’re not required. Rule 32(d)(3) sets forth the ones that are required or would otherwise be waived.

I think the constant objections are usually a sign of the objecting attorney’s insecurity. As we age, or evolve, or whatever you want to call it, you realize that all those objections may not be necessary and you get the confidence not to do it as much.

TH: Yeah, but in the situation Gerry is describing what you’re really objecting to is the form of the question, isn’t it? It’s an inappropriate question; you’re inserting facts that shouldn’t be there. And I think that objecting to these kinds of questions is allowable under any of these rules.

BB: Let me ask a question. How often do you really encounter this type of problem? I guess I’m looking at it from my point of view, because I do nothing but medical malpractice. And, I really don’t see these kinds of problems much, other than the occasional situation. Most of the time the attorneys opposite me are folks like you, Toby, or Steve, or Gerry, or Ellen, who are strong enough within your own personalities to control the situation in a way that is acceptable to everyone in the room, including the witnesses.

All you have to do is speak to the individual who is doing whatever it is that is causing the problem, and most of the time the problem will be corrected. Am I right or wrong in that?

GL: I think you’re absolutely right, Bill. I’ve seen young lawyers complain about a defense lawyer doing
something, and I say, “Well, what did you do about it? And if you didn’t do anything about it, as long as you let them do it, they’re going to continue to do it.”

This is the converse of what Steve was saying. It’s a manifestation of their insecurity; they’re not confident in the correctness of their position, so they don’t do anything to intercede. I think it’s absolutely imperative that you know the rules inside and out so that you have them as your weapon and as your moral high ground.

But invariably, when you get to the pressure points in an important deposition of a defendant or a defense witness, even counsel with whom you’ve got a lot of experience who are, themselves, experienced and sophisticated, will start to fidget and will try this tactic.

But, I think you’re exactly right, Bill. It’s really a question of how do we respond to try to bring it under control and make sure it doesn’t continue. Or, if it’s going to continue, to make a clear and proper record so that at least the threat of obtaining a sanction is there.

SC: Along those same lines, I remember one of my first videotaped depositions for trial. I was nervous and the attorney on the other side objected to every opinion question. And I’m thinking, well, I even had this written out and I know this is right, but I’m still wondering, did I do this right or is this whole thing blown?

That doesn’t happen to me anymore. They object to opinion questions, I go right on. But in the earlier days that can really be problematic for a young lawyer, and I think that’s probably why it’s done sometimes.

BB: I think you’re right.

EHH: And I think the true sign of professionalism is to be able to sit there and keep your mouth shut when things aren’t going well.

SC: That’s hard to do. I mean, it’s hard for me to do, too. You almost wish the witness could hear your thoughts, “Can’t you see that I am dying inside because of the way you’re answering the question?”

BB: We’ve all been there.

SC: But Bill is right, at some point in time the facts are the facts. And I think we’ve been through it enough that you say, “You know what, my livelihood, the essence of me, isn’t going to live or die in this deposition.”

BB: I’ve also found when I go back into something and I see that somebody is objecting strenuously, I literally will mark that area for trial purposes because I know somehow I’ve just hit on something. I may not recognize it at that moment, but hopefully by the time of trial I will, because that’s when you object. When there’s something really important. And if it’s not important, you’re not going to object.

EHH: I think we’re at the point where we’re going to have to wrap this up. But I would be curious to know if any other judge has ever confronted these issues, and, if not, are they open to dealing with them? And if they are willing to deal with them, how do we get them past the staff attorney?

SC: Judge, what about the idea of having one judge appointed in each jurisdiction to handle discovery disputes, instead of the judge handling the case?

JRM: That probably is not a bad idea because it gets the judge assigned to the case out of the mix and it becomes a more independent ruling. The parties can’t feel, “Gee, this judge is going to hate me through the rest of the trial because look what I pulled.”

SC: It would also be good to have that judge serve as a sort of clearinghouse for all complaints. He would begin to see a pattern with certain attorneys.

JRM: Well, we’ve had our Eighth District Judicial Conference recently, and won’t be having it for another year. I’m the head of it, and this wouldn’t be a bad topic for discussion there. Because this is a recurring complaint over the years, but nobody ever gets the judges involved. It’s something to think about because at the Eighth District Judicial Conference, you have a great amount of the bar there and all the judges are there, and when everyone puts their heads together on these kinds of issues, you get some great recommendations.

End Notes
1. See Cuy. Cty. C.P. Loc. R. 13; Lake Cty. C.P. Loc. R. V(E)(1); Summit Cty. C.P. Loc. R. 17.02; Fed. R. Civ. P. 30 (c)-(d); N.D. Ohio Loc. R. 30.1.

Cleveland Academy of Trial Attorneys
News Spring 2011

Gerald S. Leeseberg
Leeseberg & Valentine

Thank you for allowing me the opportunity to address the Committee concerning SB 129. I have been practicing in the area of tort litigation since 1979, predominantly in medical malpractice. I am a past President of the Franklin County Trial Lawyers Association, and have served several terms as Chair of the Medical Negligence Section of the Ohio Academy of Trial Lawyers (now Ohio Association for Justice). I have testified numerous times on behalf of the OAJ before the Ohio Legislature on issues related tort reform legislation in general, and medical malpractice in particular. Additionally, I have participated in the drafting of statutes and Civil Rules dealing with issues related to medical malpractice, including Civil Rule 10 affidavits of merits, affidavits of noninvolvement, and sanctions for frivolous conduct.

ANALYSIS OF THE BILL
Breadth and Scope of Immunity:
Proponents of SB 129 from the America College of Emergency Physicians [ACEP] originally characterized this Bill as providing much needed liability protection for medical first responders to widespread disasters such as hurricanes and terrorist attacks (despite a paucity of such events and the absence of any evidence that responses in the past have been impeded in any way). This description of the scope of the Bill by its proponents was misleading.

Close scrutiny of the Bill revealed what the proponents really intended it to be: blanket immunity for the negligence of the medical profession for harm caused to any patient whose first contact with the medical system is through the emergency department of a hospital. It applies to every emergency room in every hospital in the state. This blanket immunity from accountability and responsibility for negligent medical care applies to any medical provider from any medical specialty, rendering any kind of medical care or service, to any patient, under any circumstance, to any patient in an emergency room. When the proponents were challenged on their original description of the scope of this Bill, they conceded it is, indeed, a grant of blanket immunity against patients in emergency rooms.

Proponents of the Bill then claimed this Bill is necessary to protect emergency medicine physicians who practice under exigent circumstances requiring snap judgments in the face of chaos in medical emergencies, and who care for patients with whom they have no prior relationship, and no knowledge of their medical history.

They claim it is unfair to hold this unique group of physicians to the same standard of care as primary care physicians, for example, who care for patients under calm circumstances in an office setting where there is more opportunity and time to evaluate patients with whom they are familiar. This claim is also misleading.

• Ohio law expressly provides that the conduct of emergency medicine physicians must be evaluated taking into consideration the unique circumstances in which they practice medicine, and not be judged by the standards of care applicable to other medical specialists.
• OJI jury instructions explicitly set forth this requirement that an emergency medicine physicians be judged by what other reasonably prudent and skillful emergency medicine physicians would do under the “same or similar circumstances” presented by a particular patient.
• In fact, under Ohio law, only physicians who are trained and experienced in providing emergency medicine are legally permitted to judge the care of another emergency medicine physician. And this must be done according to prevailing standards of care applicable only to emergency medicine physicians.
• Under Ohio law, a medical claim against an emergency medicine physician cannot proceed without the prior approval of an emergency medicine physician.

Furthermore, anyone who has ever been to a hospital emergency room knows that the vast majority of patients are not seen for immediate life-threatening conditions, and a typical emergency room environment is anything but chaotic. Moreover, every member of ACEP has received extensive training to prepare them specifically for their medical specialty.

Most importantly, as set forth below, the additional fallacy in the proponents’ argument is that SB 129 is not limited in scope to emergency medicine physicians, to emergency rooms, or to patients being seen under emergency circumstances.

Definitional Issues:

• Disaster: “any…occurrence of injury…that results from any…act of a human.”
• This includes patients injured by drunk drivers, children falling off playground equipment, victims of rape or other violence, elderly patients injured by falls, workers injured on the jobsite, etc.
• Care for all such patients falls under “wilful and wanton” standard.
• Immunity for the care for patients injured by “disasters” is not limited to EMTALA emergency room care. (B)(2),(3)

• “Emergency care”: NOT defined or limited. Includes any care rendered in any emergency room by any medical provider, but is not limited to emergency room care. Includes Code Blue responses to patients in an ICU department or patient floor, as well emergency response and/or resuscitation for intra- or post-operative complications in the OR, PACU, or patient floor.

Because of definitional vagueness and ambiguity, it is important to note that careful scrutiny of the blanket immunity conferred by this Bill reveals it is not even limited to emergency medicine physicians, or to care provided in emergency rooms. This immunity applies to:

• Undefined “emergency care” provided to any patient by any medical provider.
• Radiologists who never set foot in an emergency room.
• Hospitalists who are requested to write admission orders for patients being admitted to the hospital through the emergency room. (A physician’s admitting orders that are negligent, improper and inappropriate, and follow the patient into an admission, are immune from liability, even if they do not result in harm to the patient until days or weeks after the patient is admitted and has left the emergency room.)
• Orthopedists, cardiologists, and infectious disease physicians who are asked to consult on patients in an emergency room, even hours after a patient’s condition has been diagnosed and stabilized.
• “Code Blue” situations for patients who are in the Intensive Care Unit as a result of “any act of a human” (viz., “disaster”).
• Patients who are placed in “Observation Units” in emergency rooms for up to 23 hours for evaluation of conditions that cannot be immediately determined to be life threatening or benign conditions.

While proponents cite Florida law granting limited immunity for emergency room care as precedent for SB 129, the immunity under Florida law is extremely limited: it applies only to emergency room patients who are unstable, and exists only during the limited time prior to the patient being medically stabilized.
Under (B)(1) EMTALA mandated care, a physician is only liable for improper emergency care if they are shown to have had “reckless disregard” for their duty and obligation to provide proper care.

However, under (B)(2) “disasters”, applicable to the vast majority of emergency room visits (including all EMTALA care), a negligent medical professional is only liable if they were “willful or wanton”.

• Thus, under this Bill no medical provider has any responsibility to provide proper medical care to a patient who comes to the emergency room, for example, with chest pains and is placed in an Observation Unit.
• No radiologist in the quiet of a darkened radiology suite interpreting films in the ordinary course of their practice has any responsibility to a patient in an emergency room to properly interpret an x-ray to identify fractures, blood clots on an ultrasound, lung tumors on a chest x-ray, or hemorrhage on a CT scan of the brain.
• An orthopedist that improperly sets a child’s broken arm, or an elderly patient’s fractured leg, has no responsibility to the patient.
• A medical provider that orders or administers an incorrect drug dosage to a patient in an emergency room has no responsibility for one of the most common medical mistakes in hospitals, even for disabling, catastrophic or grievous injury.

Reckless Disregard = Wilful or Wanton Misconduct = Blanket Immunity

Under Ohio law as defined by the Ohio Supreme Court and appellate courts, the common law of other states, and the Restatement of Law 2d, Torts, Sec. 500, “reckless disregard” is synonymous with “wilful or wanton misconduct”. This standard requires a showing of “conscious indifference” to a high degree or probability of risk, a “failure to exercise any care whatsoever”, and a “disposition to perversity”. Fabrey v. McDonald Village Police Department. This standard has been applied by statute to governmental EMTs, and review of the case law reveals it is virtually impossible to survive a motion for summary judgment in such cases, even where the care has been “inept”, or “incompetent”, or involved multiple medical mistakes: for the “mere piling up of negligent acts does not…convert negligence into wilful and wanton acts.”

• Restatement of Law 2d, Torts, Sec. 500
• Fabrey v. McDonald Village Police Department (Ohio Supreme Court)
• State v. Earlenbaugh (Ohio Supreme Court)
• Robertson v. Dept. of Public Safety (Franklin County Court of Appeals)
• Byrd v. Kirby (Franklin County Court of Appeals)
• Smith v. McBride (Franklin County Court of Appeals)
• Gauvin v. Clark (Massachusetts Supreme Court)

Immunity not provided or defined by, or limited to, EMTALA mandated care:

EMTALA does not provide any immunity for improper medical care.

Despite this, proponents of the Bill have also argued that emergency room physicians should not be held liable for medical mistakes and errors because they are mandated by EMTALA to provide care to patients in the emergency room, even though the patient may be uninsured. They have asserted it is unfair to hold emergency room physicians liable for negligent medical care for which they are not being compensated; thus, the poor and most vulnerable should be deprived of the requirement for proper medical care.

Even if such a position were consistent with the Hippocratic Oath, the bill is not limited to care provided to uninsured patients which EMTALA was enacted to protect; it also applies to you and me and anyone else even though we have purchased comprehensive medical or health insurance.

The suggestion by proponents of SB 129 that emergency room physicians do not get compensated for EMTALA mandated care of uninsured patients is also false: emergency room physicians are either salaried employees of the hospital, or more commonly, salaried employees of an independent corporations that have contracted to provide emergency room physician coverage. Under either scenario, the physician gets paid regardless of the uninsured status of the patient.

EMT Immunity Not Analogous:

While the proponents of this Bill cite the grant of immunity to EMTs, inter alia, as justification for seeking their own blanket immunity, the rationale for providing immunity to EMTs does not rest upon the “similar” nature of EMT job responsibilities, as the proponents claim; rather, EMT immunity is premised upon their status as government employees, and the need to protect the public treasury from liability claims. No such interest exists for privately employed, highly compensated, and privately insured medical professionals.

If privately employed and insured medical professionals were for the first time given immunity under this Bill, others will be in line soon. For example, medical providers who work at urgent care facilities in all our communities will undoubtedly seek the same favored status and special protections being sought in SB 129. The net result will be that in times of urgent need for proper lifesaving care for ourselves and our families, there will be no assurances and no accountability for such care when any of us seek it.

Equal Protection and Constitutional Infirmity

As originally introduced, SB 129 was unconstitutional on its face because it sought to limit the remedy – the right to recover damages – in wrongful death claims, which is expressly prohibited by the Ohio constitution. In an effort to avoid this constitutional infirmity, the proponents have expressly excluded wrongful death claims from the blanket immunity under the current version of SB 129. Thus, the statute will be now unconstitutional “as applied”: the practical effect will be to deprive only some, but not all people similarly situated, of a right to a remedy.

Apart from the constitutional defect, this dichotomy points out the absurdity, and unfairness, of the application of the Bill in the real world. Consider, for example, two children who arrive at the emergency room of a hospital at the exact same time with the exact same illness (e.g., strep throat), and are given the wrong drug, or an incorrect dosage of medication. If one child dies and the other suffers severe brain damage because of the medication error, the family of the child who has suffered severe brain damage is completely precluded from seeking any compensation for the catastrophic harm to the child or future medical expense, caused by the negligence. The family of the child who died, however, would be able to pursue a claim against the very same medical providers, based on the exact same negligent care.

Conclusion

As other opponents of SB 129 have pointed out, the blanket immunity provided by this Bill is totally unnecessary.
• Medical claims against all specialties have fallen dramatically.
• The liability insurance market is profitable and expanding.
• There is no shortage of emergency medicine physicians that is in any way related to medical claims.
• Emergency medicine physicians are specifically trained to deal with the unique circumstances under which their care is rendered, and they are judged by Ohio law according to those unique circumstances.

Most importantly, this immunity applies to all patients under any of these circumstances who are ignored and abandoned, who are not timely or thoroughly evaluated, who are misdiagnosed, or who are mistreated.

Respectfully, the immunity proposed by SB 129 proponents is a “solution in search of a problem”, where none exists.

I have been asked why I want to take part in the discussions when the state legislature considers changes to our civil justice system in Tennessee. I am certainly aware of the ideological boxes that advocates like to put folks in when it comes to “tort reform.”

Republicans and conservatives are supposed to be for anything called tort reform. However, I’ve never subscribed to these boxes. Not when I was in the U.S. Senate faced with these issues, and not now.

Some argue that the legislature should tell Tennessee juries that they can award only so much compensation in certain types of cases against certain types of defendants — regardless of the facts and circumstances of the case. I don’t agree with this approach, and I don’t think it’s “conservative.”

To me, conservatism shows due respect for a civil justice system that is rooted in the U.S. Constitution and is the greatest form of private regulation ever created by society. Conservatism is individual responsibility and accountability for damages caused, even unintentionally. It’s about government closest to the people and equal justice with no special rules for anybody. It’s also about respect for the common-law principle of right to trial by jury in civil cases that was incorporated into the Seventh Amendment to the Constitution.
As someone who practiced in the courts of Tennessee for almost 30 years, I believe that a Tennessee jury of average citizens, after hearing all the facts, under the guidance of an impartial judge and limited by the constraints of our appellate courts, is more likely to render justice in a particular case than would one-size-fits-all rules imposed by government, either state or federal.

Our system “ain’t broke.” It is based upon tradition and common law and has provided justice to individuals and businesses alike.
The legislature has made adjustments to our tort law from time to time. For example, in 2008 a law was passed requiring plaintiffs to get a written statement from a medical professional saying that the lawsuit had merit, thereby reducing medical-malpractice suits. This was reasonable and appropriate. However, never has the legislature imposed a dollar limit in cases where damages and negligence have already been proven.

I recognize that several other states have imposed such rules. It’s understandable. The pressure to do so is very strong. That does not make it right or sound policy. Tennessee does not make a habit of simply following a path that has been cut by others. Forty-one states have a broad-based income tax, and I am proud to say that Tennessee does not, and I believe it is much the better for it.
No system ever devised by man is or can ever be perfect. But our civil justice system has served us well, and any substantial changes to it should be made only if the change is needed, fair and beneficial to all Tennesseans. I hope that I can be helpful in discussions that we will soon be having on these important issues.

Fred Thompson is an attorney and former U.S. senator who has joined the legislative team for the Tennessee Association for Justice.

by Fred Thompson
The Tennessean
January 30, 2011

Susan Saladoff’s documentary is entertaining and informative, vividly illuminating the wrongs of systems like tort reform.

PARK CITY – Hot Coffee is strong brew, a scalding documentary on tort reform that should stir up your blood pressure faster than a triple espresso. The Sundance audience rendered a favorable verdict on this impressive film debut of filmmaker Susan Saladoff.

Like many excellent documentaries, Hot Coffee is more a visual editorial rather than an all-encompassing and comprehensive distillation of a subject matter, in this case, our tort system. Essentially, it will play to standing ovations with the Trial Lawyers Assn., but be deplored by corporations and such entities as the U.S. Chamber of Commerce. Such is the direct force of its message.

No matter whether your politics leans left or right, Hot Coffee is a potent and provocative documentary. In this heady presentation, Saladoff presents a compelling case on how corporate America has utilized sensationalized lawsuit settlements to curry public opinion against “frivolous” lawsuits. Most jarringly, she focuses on the infamous McDonald’s case where a woman was awarded millions for spilling hot McDonald’s coffee on herself. Lending perspective, Saladoff also includes numerous man-in-the-street interviews, which clearly indicate that the general public’s uninformed view of the case was that it was outrageous for someone to sue over hot coffee.

Filmmaker Saladoff pinpoints that case, interviewing the elderly plaintiff, as well as showing graphic medical photographs of the burns she suffered in her private areas that are so jarring and horrific that one must look away. Saladoff also presents vividly McDonalds’ arrogant and dismissive treatment of the woman when she initially sought just to have her medical bills covered. All the while, McDonald’s had in its files numerous other reports where McCustomers had been injured by their overly hot brew.

Saladoff also presents three other outrageous cases, including one against Halliburton by a 19-year-old girl who, when assigned to Iraq, was quartered with males, and gang-raped and badly beaten. Her complaints went unheeded by the mega-defense operator.

In the film, Saladoff also addressed two other outrageous cases, which further delineated how appeals courts, whose judges are often elected, tend to be corporate friendly. Big companies funnel large sums of money into the campaign coffers of “business friendly” candidates.

Another jarring issue that emerges from Saladoff’s fertile film is “mandated arbitration.” It’s an often hidden clause in such seemingly innocuous documents as cell-phone and credit-card contracts where the recipient signs away his/her rights to sue the company for “harm,” which is what a tort is.

More serious, employment contracts also often contain these clauses, again buried amid the legal mumbo-jumbo, that stipulates that an employee forfeits their right to sue if they suffer injury or harm while employed; in a nutshell, they must settle their claim through arbitration. And guess who selects the arbitrators? The mega-employer, of course. Plus, the arbitration hearings are sealed and only the verdict made public.

Saladoff’s presentation is informative and, best yet, entertaining. She takes an important issue like tort reform, hardly a “sexy” subject and illuminates vividly the wrongs of the system. It would not seem improbable that a K Street public relations firm representing big business might soon be engaged to produce a counterpoint documentary – so compelling is Saladoff’s film.

Fluidly paced, including interviews with such informed luminaries as John Grisham and Al Franken, Saladoff has invigorated what many would consider dry legal subject matter and put a human face on it. It’s likely that most audience members will see that human face when they look in the mirror, as each of us is vulnerable in personal and unique ways to this stacked-deck, tort system.

The Hollywood Reporter
1/26/2011 by Duane Byrge

Several years ago the legislature capped financial awards for medical malpractice lawsuits and now the state’s largest physician group wants lawmakers to expand legal protections for doctors into additional areas.

The Ohio State Medical Association wants the General Assembly to pass a proposal that would significantly raise the legal standard for civil suits against doctors working in emergency departments, Tim Maglione, senior director of government relations, said in a recent interview.

OSMA also hopes lawmakers will effectively shorten the statute of limitations for physician liability in cases where the claimant is a child, he said. In addition, the group is also working on a proposal for doctors who treat Medicaid patients that could help lawmakers rein in state health care spending in the upcoming biennial budget.

Attorneys that represent injured patients are preparing to fight additional limits on medical malpractice litigation, but recognize the tide is not in their favor since Republicans now control both chambers and the Governor’s Office.

Mike Dittoe, spokesman for Speaker Bill Batchelder (R-Medina), said medical malpractice would likely be one of several areas of tort law that House Republicans are planning to revisit.

“The caucus, I believe, will be looking at comprehensive tort reform in the coming weeks and months,” he said.

John Van Doorn, executive director of the Ohio Association for Justice, said restrictions on tort litigation that the General Assembly passed several years ago has denied many Ohioans their legal rights.

“The data clearly shows fewer Ohioans have filed suit and their recoveries are smaller. The question is, isn’t that enough?” he said.

Nevertheless, Mr. Maglione was optimistic that the proposal to grant immunity to doctors working in emergency departments would pass under the GOP-controlled legislature. A similar bill (SB86, 128th General Assembly) cleared the Senate last session, but saw no action in the Democrat-controlled House.

“Certainly the climate should be more ripe for a discussion of these things,” he said.

The measure would have raised the legal standard from ordinary negligence to “willful and wanton” misconduct by the emergency room physician. However, the Senate revised it down a step to “recklessness” before passing the bill.

Restrictions on medical malpractice litigation enacted several years ago have had a positive effect on doctors’ insurance rates and additional limitations can only help more to control skyrocketing health care costs, he said.

Since 2005, the number of medical malpractice lawsuits has declined by about 35%, and physicians’ insurance rates have decreased by about 22%, he said. At the height of the litigation “crisis” there were only three insurance companies writing malpractice policies in Ohio and now there are more than 15.

“The market is more competitive, and it’s more competitive because of the stability that’s been created by tort reform,” Mr. Maglione said. “But malpractice insurance is still a considerable expense for many physicians and that’s why we want to continue to do things like Senate Bill 86 that can help the trend line even more.”

OSMA will work on another front to limit the “statute of repose” timeframe to help control insurance rates for obstetrician/gynecologists and pediatricians, he said. Currently child patients can sue physicians until one year after they reaches age 18.

“That long tail of liability is one of the contributing factors why malpractice rates for OB/GYNs is so expensive,” he said. About 20 states have enacted a separate statute of repose for minors that requires claimants to file suit by the age of 10.

Years ago the Ohio Supreme Court found a similar measure unconstitutional, he said. “But of course you can try to modify the statute to address the court’s concerns. And then you also have a different philosophical makeup of the court today than maybe you did back when it was previously overturned.”

OSMA is also working on a malpractice proposal that could help the state address the impending multi-billion dollar budget shortfall, Mr. Maglione said.

Offering “qualified protection” for doctors that participate in Medicaid could have a considerable impact on state health care expenditures, he said. While OSMA hasn’t completed cost savings projections, the Congressional Budget Office said adding a similar proposal to the federal health care bill would save the country $54 billion over 10 years.

“You could extrapolate that kind of savings” to Ohio’s Medicaid program, Mr. Maglione said. “Its certainly there.”

Mr. Van Doorn, however, maintained Ohio law is already skewed against the average citizen.

“Ohio doesn’t need to pass more regulations and more legal exceptions that let wrongdoers off the hook and saddle taxpayers with the bill,” he said.

Similarly, Gerald Leeseberg, past president of the Franklin County Trial Lawyers Association, said there was no legitimate basis for granting immunity to emergency room physicians for making medical errors.

“This is a solution in search of a problem,” he said, noting that statistics from the Ohio Supreme Court showed very few malpractice claims were filed against emergency room doctors.

And reducing the age that a patient can file suit could effectively eliminate legal remedy for children who have been harmed by a doctor, he said. “If you’re the child not of majority age, you don’t have the legal right to bring a lawsuit on you’re behalf. Therefore, a child can be deprived of the protection of a civil case by their parents.”

Moreover, in many cases parents and children are not aware of the nature or cause of certain medical problems, such as cerebral palsy, until many years later, he said. “They’re often lied to by the health care providers, and have this condition described as a birth defect rather than having it explained to them that it’s the result of improper medical care.”

Mr. Leeseberg said Republicans’ support for such measures is at odds with their often-stated values.

“They, on the one hand, espouse personal responsibility and accountability as a virtue, and on the other hand to seek to excuse people, in any walk of life, from being accountable and responsible for their negligence,” he said.

Gongwer News Service

Volume #80, Report #10, Article #1–Friday, January 14, 2011