Post #25: Was Your Doctor ACTUALLY Negligent?

Summary: Just because a doctor’s action or inaction fell below the standard of care does not mean that he or she was negligent.

I watched the first episode of “Monday Mornings,” a television series that was on TNT created by David E. Kelley.  Mr. Kelley has created or been involved in various series including: (1) Ally McBeal; (2) Boston Legal; (3) Boston Public; (4) Chicago Hope; (5) Doogie Howser, M.D.; (6) LA Law; and (7) Picket Fences. This show involved five surgeons in a hospital and explored their professional and personal lives.

Post #13: The Golden Rules for Lawyers (or how NOT to be a Jerk)

Summary: It is not “do unto others before they do it to you” but rather “do unto others as you would have them do unto you.”  In other words, treat people as you would like to be treated.

I attended an ex parte hearing last Thursday at which time I was given the San Diego County Bar Association’s (SDCBA) Attorney Code of Conduct and the United States Constitution.  Now, I do not believe I was singled out since: (1) I do not think that I have a reputation as a reprobate; and (2) opposing counsel was also given one [I don’t think she falls into the reprobate category either].

Post #34: The Travesty Continues – Update on California’s Cap of $250,000.00 on Non-Economic Damages

Summary: A law was passed in California in 1975 (Medical Injury Compensation Reform Act, also known as “MICRA”) which, among other things, limited the amount of money awarded for non-economic damages (pain, suffering, emotional distress, etc.) to $250,000 in medical malpractice cases. There was no clause included which adjusted the amount for inflation which means, at this point, that $250,000 is worth about $60,000 now.

I initially addressed this issue in Post #7 published in July of 2012 entitled “Here’s Why the California Cap on Non-economic Damages Is Archaic.” I discussed it again in October of 2012 in Post #14 entitled “Until the California Supreme Court Takes a Gander, the California Cap on Non-economic Damages Will Stay Firmly in Place.” Finally, I dealt with it in July of 2013 in Post #28 which was an addendum to Posts 7 and 14.  I would ask that you read those for background on the reasoning behind this cap and why the law is so wrong.

Post #35: The Meat and Potatoes of Medical Malpractice Costs

Summary: Expert Witnesses – The Expensive Necessity in Medical Malpractice Lawsuits

Remember the song “Mammas Don’t Let Your Babies Grow Up To Be Cowboys” by Ed Bruce?  One part of the song’s lyrics is as follows, “Mamas’ don’t let your babies grow up to be cowboys.  Don’t let ’em pick guitars or drive them old trucks.  Let ’em be doctors and lawyers and such.”  I agree, but I would take it one step further.  I say, let them be expert witnesses.  They will be set for life.

As a practicing medical malpractice attorney, I only work with the most highly qualified and competent doctors to obtain opinions regarding the necessary elements of medical malpractice: (1) standard of care; (2) causation; and (3) damages.  These doctors have all graduated from some of the most reputable institutions and are board certified in their specialty.  I have the upmost respect for (most) all of them.  However, wow, are they expensive!

Post #9: The Naked Truth About My Colonoscopy Experience

Summary: I had a Colonoscopy back in 2012, and I thought that I would tell you about my experience.

I started going to my Primary Care Physician a short time after I returned from Colorado in 2004.  Among other things, she advised that I should get a colonoscopy by the time I turned 60.  About once a year, she would bring it up and I would dutifully nod.  Finally, last July, she asked about it again and I said, “You told me I just needed to do it by the time I turned 60.”  She then replied something like, “YOU’RE GOING TO WAIT UNTIL YOU’RE 60?”  Lovely woman but a bit of a temper.  Anyway, I assured her that I would get it done.  However, I kept putting it off, dragging my feet, taking my time, until I realized that the big SIX ZERO was looming.  By the time I called to make an appointment, I could not get one until eleven days past my birthday.  Close enough.

Post #33: Men, You Are Fine Just the Way You Are

Summary: Just Don’t Do It (Phalloplasty Surgery)!

Although I have no personal knowledge of this, I have heard that, when men go to the restroom, they check out each other’s penis size.  I would be inclined to think this is true since where else would men get the idea that they are too small?

Having said that, there was a porn star in the late ‘60s to late ‘80s, one John C. Holmes, who  starred in over 2,000 porn movies.  Stories varied as to the length of his penis, anywhere from 12-5/8″ long to 13-1/2″ long.  At the height of his career, Holmes claimed to have had his penis insured by Lloyd’s of London for $14 million, claiming that he was insured “for $1 million an inch”.  Thus, maybe it is the legendary Mr. Holmes who fueled the “need” for men to make their penises larger.

#32: SO, DOC, HOW LONG HAS IT BEEN SINCE YOU SLEPT?

CAN WE SAY “ MEDICAL MALPRACTICE WAITING TO HAPPEN?”

By: Patricia I. James

There is a private group that oversees physician training in the United States called the Accreditation Council for Graduate Medical Education ( “ACGME”). One aspect of its duties has to do with the number of hours a physician can work in a shift.

In 2011, when mounting evidence showed exhausted residents, that is, doctors in training, were endangering patients and themselves, work restrictions of no longer than 16 hour shifts were put in place. However, earlier this year, the ACGME, in its infinite wisdom, decided that, as of July 1, 2017, these first year residents are allowed to work 24 hours without a break and, sometimes as long as 28 hours, if a particular transition between doctors demands it.

POST #31: SO, A KID WALKS INTO A SCHOOL WITH A CLOCK….

Written by Patricia I. James

We have probably all read the story by now. Ahmed Mohamed, a 9th-grader at MacArthur High School in Irving, Texas, was arrested on Monday after bringing a homemade clock to school. Ahmed said he brought the device to school to impress his teachers.

I would have been impressed. How many 14 year olds know how to build a clock? For that matter, how many adults know how to build a clock? Not me.

Anyway, one of the teachers became concerned about the device and reported Ahmed to the principal. This, in turn, resulted in Ahmed being pulled out of class by the principal and five police officers (FIVE???) and taken to a room where he was questioned for about an hour and a half.

#30: Charlie Hebdo – I am Charlie

Despite my best efforts, I have been unable to find a political cartoon published following the 911 terrorist attacks. My best recollection is that it was a two panel drawing. The first panel showed a row of houses with a caption that read something along the line of “Terrorists thought that they would change America.” The second panel’s caption said, “They did.” The drawing showed that same row of houses, each with an American flag flying in front.

That image has stayed with me all of these years and I think it was about that time that I realized the impact of political cartoons which brings me to Charlie Hebdo.

Admittedly, prior to the terrorist attack in Paris, I had never heard of it. However, obviously, the French satirical weekly newspaper has been influential and, since its headquarters had been firebombed in 2011, continued to express its opinions in the face of danger.

Post #29: Why Can’t All Lawsuits be Settled so Easily? – Addendum to #27

Written by: Patricia I. James**

This post starts where Post 27 left off.

Ms. Rowling did in fact file suit, not against Russell Solicitors but rather against the lawyer, Chris Gossage, and his wife’s (former?) best friend, Judith Callegari. However, it was settled out of court. Russell Solicitors “agreed to reimburse Rowling’s legal costs and to make a “substantial” donation to The Soldiers’ Charity, which helps former military personnel and their families.” (http://www.theweek.co.uk/uk-news/54397/jk-rowling-wins-big-charity-donation-after-pen-name-leak).

It, along with Gossage and Callegari, also made a public apology, which was accepted by Ms. Rowling, wherein they stated that “[a]s a reflection of their regret for breach of the claimant’s confidence, including frustrating the ability to continue to write anonymously under the name of Robert Galbraith, the defendants are here today to apologize publicly to the claimant.”

#28: Addendum to Post #7: Here’s Why the California Cap on Non-economic Damages Is Archaic and Post #14: Until the California Supreme Court Takes a Gander, the California Cap on Non-economic Damages Will Stay Firmly in Place

Written by :  Patricia I. James**

In Post #7, I wrote about the cap of $250,000 on non-economic damages in California.  Basically, I said that it was an unfair cap that had not been revised since it was established in 1975.

In Post #14, I wrote that, if the Gavello case went to the California Supreme Court, it might find that the cap was unconstitutional.  I did not give that much hope but it was a thought.

As it turns out, there might actually be a change in the works.

Post # 27: When Attorneys Fail to Grasp the Concept of Attorney/Client Privilege, There Can Be Repercussions, Especially When the Client Is J.K. Rowling.

Written by: Patricia I. James**

For those of you who do not know who J. K. Rowling is, which might consist of approximately three people in the entire world, she is the author of the hugely popular Harry Potter series and also the author of “The Casual Vacancy.”

When I read the latter (having read all of her books, sometimes twice), I really felt like I could hear her voice, that I could see that she had written this. Having KNOWN that she wrote it, that quite possibly impacted my belief.

It has now been revealed that she wrote a book called “The Cuckoo’s Calling” under the pseudonym of Robert Galbraith. It was published in April of this year and received very good reviews. “The Casual Vacancy” had received mixed reviews.

#26: Make Sure Your Doctor Explains the Risks of a Procedure BEFORE You Are in the Operating Room.

Written by: Patricia I. James**

This post addresses a scene in the second episode of “Monday Mornings” (See Post #25). Again, it involved peer review known as “Morbidity and Mortality” and dealt with consenting a patient.

Neurosurgeon Tina Ridgeway, M.D. was invited to the podium to discuss the file of patient Francine Cash. Ms. Cash had a tumor on the brain and underwent an operation. Dr. Ridgeway said that the “procedure seemingly went well with no incident.” The Chief Surgeon, Dr. Hooten, pounced on the word “seemingly.” He asked Dr. Ridgeway about the risks of surgery. She said that the risks were bleeding, infection, stroke and possible damage to olfactory nerve (pertaining to the sense of smell) which ran proximate to the growth. If the nerve was nicked or cut, Ms. Cash could lose her sense of smell.

#25: Just Because a Doctor’s Actions or Inaction Fell below the Standard of Care, it Does Not Mean That He or She Was Negligent.

Written by: Patricia I. James**

I watched the first episode of “Monday Mornings,” the new television series on TNT created by David E. Kelley. Mr. Kelley has created or been involved in various series including Ally McBeal, Boston Legal, Boston Public, Chicago Hope, Doogie Howser, M.D., LA Law and Picket Fences. This show involves five surgeons in a hospital and explores their professional and personal lives.

The reason I am writing a post on this episode is based on a scene involving peer review of one doctor’s case. The most common educational setting for this review and discussion is known as Morbidity and Mortality (“M&M”). This is where physicians discuss other doctors’ behavior or analyze an adverse event. The information gleaned during M&M is not discoverable in most states. The reason is to have open communication and enable doctors to learn from their mistakes and try to prevent future ones. Doctors are going to be less forthcoming with regard to errors they have made if what they say can be used in a medical malpractice case.

#24: You had your chance, Lance.

Written by: Patricia I. James**

I will start by saying that it would be difficult for me to care less about sports. I did , once upon a time, root for the Denver Broncos but it was basically because I had a crush on John Elway. I also, from time to time, took some interest in the winter Olympics but that is probably because I have a thing for snow. I can’t remember the last football, baseball or basketball game I watched. Same for tennis, golf and bowling, although there is some grumbling out there that the latter two aren’t even a sport.

#23: Addendum to Post # 17: If You Are Not a Party to a Lawsuit, Good For You! However, if You Are or Ever Will Be, Well, Bless Your Heart.

Written by Patricia I. James**

Yesterday, I attended a Case Management Conference (“CMC”) (See Post # 3) in Riverside. I drove there. I know I should have made a telephonic appearance as did the two opposing counsel. However, it is so invigorating to get up at 5:00 a.m., hit stop and go traffic on the I-215, breathe in the exhaust fumes and just barely make it to court at 8:30 a.m. Nothing like that adrenaline rush.

Two things occurred at the hearing which were interesting, at least, to me. First, there was actually a court reporter at the hearing in Riverside. Although I have only attended two or three hearings in San Diego County since the cessation of court reporters, each time it has seemed strange to not see them. Now it seemed odd to see one. I guess the ax has not come down yet in Riverside County.

#22: Addendum to Post #11: Sick Dogs and Puppy Mills

Written by: Patricia I. James**

The City of Los Angeles has banned the sale of commercially bred dogs, cats and rabbits by pet stores. (http://www.examiner.com/article/los-angeles-bans-the-sale-pet-stores-of-puppy-mill-pets). The ban starts around May of this year and will expire on June 30, 2016 unless it is extended by ordinance. “The purpose of the three-year program is to ascertain how effective the ordinance is in increasing adoptions and reducing the number of animals euthanized per year.”

Although the law will allow individuals to buy directly from breeders, pet stores will only be allowed to sell rescued animals obtained from shelters, humane societies and registered rescue groups. A penalty of $250 will be incurred for the first violation, $500 for the second and $1000 for the third.

#21: Update to Post #20: The Ugly, the Bad and the Good

Written by Patricia I. James**

After publishing my Post yesterday, I read today that “New Haven, Connecticut-based attorney Irving Pinsky said he dropped the claim because he was evaluating new evidence, according to a report on CTPost.com.”

#20: The Ugly, the Bad and the Good

Written by: Patricia I. James **

The only thing the following three articles have in common is that I read them on the same day. The first two you’ll probably find sickening and the third should hopefully make you feel better.

1. Lawyer for Newtown Shooting Survivor Seeks to File $100 Million Lawsuit.
(http://usnews.nbcnews.com/_news/2012/12/29/16233914-lawyer-for-newtown-shooting-survivor-seeks-to-file-100-million-lawsuit?lite).

Irv Pinsky, a New Haven-based attorney, has filed a claim with the Connecticut Claims Commission requesting permissionto file a lawsuit on behalf of an unidentified client, referred to as Jill Doe. (It appears that Connecticut, along with California and probably every other state, requires that a claim be filed to request permission to file a lawsuit against the government).

#19: SO WHO NEEDS AN ASSAULT WEAPON?

Written by :  Patricia I. James**

What does this post have to do with medical malpractice? Absolutely nothing. However, what with the debate going on about gun rights, I felt the need to put in my two cents worth.

Let’s go back in time to the shooting at the theater in Aurora, Colorado. There was an article in the Washington Post on July 29, 2012 that addressed this and the impact it might have on cinema companies. (See Post #12). Following that, Ted Nugent opined that, “if a moviegoer had been carrying a “good gun,” the tragedy might have played out differently.” (www.huffingtonpost.com/2012/07/26/ted-nugent-aurora_n_1704112.html

My thoughts at the time were as follows: