Google and Apple vs. the Patent Trolls

With Apple and Google settling their patent disputes, some have noted that the two companies are now teaming up to urge legal reforms directed at patent trolls. In simple terms, a patent troll is a company that does not produce anything, but instead builds a library of patents that it uses to make demands for compensation or to launch lawsuits, often strategically timed to coerce a quick settlement, against companies that they allege are violating their patents. Many start-ups end up having to choose between settlement or burning through hundreds of thousands of dollars in legal fees, often significantly more than the patent troll demands to settle the claim, instead of investing that money in their business. The patent troll may wait to file a lawsuit until a company is in merger or acquisition talks or announces an IPO, knowing that in those contexts companies will often want to quickly settle any litigation.

At the same time, large companies are notorious for being unwilling to license outside technology and, upon learning of an innovation, of trying to find a way to replicate its best features without running afoul of the existing patent. Also, absent a huge bankroll, it is a rare private inventor who can afford to litigate even an egregious patent violation. Although I am not claiming it to be at all typical, or at all common, it's not difficult to see why an inventor who lacks the resources to directly capitalize on a patent, who can't find a manufacturer willing to license or buy the patent, and who sees what appear to be violations of his patent by existing companies, might choose to license or sell a patent to a company that could reasonably be described as a "patent troll".

One reform that is sometimes proposed as a way to greatly reduce patent trolling is to eliminate software patents. However, we're now in an era in which traditionally patentable devices covered with switches, buttons and knobs can be replicated on a touch screen, purely through software. We're in an era in which the patentable elements of a breakthrough computer innovation may be entirely software-based, and where product development could involve the investment of millions, even tens or hundreds of millions of dollars, but where replication of the idea is comparatively cheap and easy. That's the context of the Samsung-Apple litigation, with Apple having spent $150 billion or more developing the iPhone and Samsung, displeased with its own efforts, choosing the much easier path of imitation.

If you deprive the innovator of any patent protection, it's highly unlikely that they're going to make the necessary investment to produce that type of innovative product as they would be concerned that immediate imitators would prevent them from obtaining a return on their investment -- or might turn that investment into a gargantuan loss. Also, given the $billions that major companies have spent building their patent portfolios, even if it would make sense in the long-term to narrow the protection available through software patents, it's difficult to imagine that those companies will support reforms that would significantly reduce the value of their patents. At the same time, it should be possible to get broad support to narrow eligibility for software patents, and perhaps even to significantly shorten their duration, reforms that would help keep dubious patents from being used coercively against manufacturers and service providers, and allow companies to recover their investments while limiting the amount of time in which competitors are reluctant to build upon a patent holder's breakthrough or essential technology.

Another reform that is often suggested, and which seems quite reasonable, is to provide that a patent holder can only obtain injunctive relief is if it actually manufactures a product covered by its patent. A reform along that line seems reasonable, although I think it would be appropriate to provide for injunctions if the patent holder can demonstrate that it is in the process of developing products or that the alleged violation is intentional. Otherwise, the coercive impact of an injunction could cause a company to settle a frivolous claim in order to keep a key product on the market or to reassure investors or its distribution network.

I've also seen it suggested that, if sued, a company should be permitted to ask a court to declare that the patent holder is a patent troll and, if the court agrees, that the company should be required to post a bond to cover the alleged violator's legal fees if its patent litigation is not successful. While the most noteworthy example I've seen, the proposed Shield Act, attempts to define "patent troll", its definitions remain problematic. For example, the requirement that a company seeking to protect an acquired patent "provide documentation to the court of substantial investment made by such party in the exploitation of the patent through production or sale of an item covered by the patent" would put a significant hurdle in front of a patent holder trying to sell a patent that is already being infringed, or in front of a company that acquires a patent that is infringed prior to its commencement of production and sale of a covered product.

The bond requirement imposed on a company determined to fall under the act would be oppressive to a company bringing a legitimate patent claim, but there's no reciprocal requirement -- either for a bond requirement or for an award of legal fees against a defendant company that loses its defense of a patent case -- that would discourage a company from defending a patent that it believes is, or probably is, valid. While there's something to be said for reducing a patent troll's ability to coerce a settlement from a company that might prevail if the case were litigated, the Shield Act seems to substitute one problem for another -- now a willful infringer can create a litigation environment in which a company that has acquired a valid patent could come under intense financial pressure to settle for far less than the claim is worth.

A more modest reform bill is pending in Congress, and it does include a reciprocal attorney fee provision, but it is not widely viewed as having a large chance of passing. The bill includes some interesting elements that attempt to limit the ability of a patent holder to coerce another company based upon nebulous claims of patent infringement, and potentially create a cause of action against a patent holder who violates those provisions.

Google and Apple are in a powerful position to push for meaningful patent reform. Let's hope that they push for balanced reforms, even at risk of devaluing their patent portfolios, and that more tech companies join their effort.

Inadequate Funding of Defense Experts

The New York Times has taken note of a 28-year-old case in which the defense, given only $1,000 to hire an expert witness, hired an inadequate expert.

Anyone who has hired a lawyer knows $1,000 doesn’t buy you much. But when Anthony Ray Hinton was on trial for his life in Alabama, that’s the total amount his court-appointed attorney thought he could spend on a key expert witness in firearms evidence. All he could find for that price was an elderly one-eyed man with a degree in civil engineering who was laughed out of court for his inability to answer basic questions.

If you look at the Supreme Court's decision, the reason that additional proceedings have been ordered in the defendant's case is much less the amount of money that was authorized, and much more the fact that the defense lawyer did not know he could seek more money and thus made no attempt to do so:

Operating under the mistaken belief that he could pay no more than $1,000, Hinton’s attorney went looking for an expert witness. According to his postconviction testimony, he made an extensive search for a well-regarded expert, but found only one person who was willing to take the case for the pay he could offer: Andrew Payne. Hinton’s attorney “testified that Payne did not have the expertise he thought he needed and that he did not consider Payne’s testimony to be effective.”...

Hinton’s attorney knew that he needed more funding to present an effective defense, yet he failed to make even the cursory investigation of the state statute providing for defense funding for indigent defendants that would have revealed to him that he could receive reimbursement not just for $1,000 but for “any expenses reasonably incurred.”

This was a capital trial, and the court was not trying to be stingy, authorizing the largest amount it believed was available under state law. But when I read people who have never been involved in indigent expense scoffing at the grant of $1,000 for an expert witness, I have some amazement at the gulf of understanding between what people believe should occur in criminal cases and what typically happens. Note, the attorney fee granted for that capital trial was a mere $1,600. The only way you can represent a client in a capital case -- or any serious felony case -- for that type of compensation is by cutting a lot of corners or by accepting that you'll be investing perhaps hundreds of hours in a case for which you'll ultimately be paid significantly less than minimum wage.

I recall a case I worked in the mid-1990's, where the court granted $1,500 for expert witness fees in an arson case. I commented to another lawyer that the amount was inadequate. He responded, "That's the most I've ever heard of a judge in this county authorizing for an expert." The situation can be at least as dire for defendants who retain counsel, where they will typically have to come up with additional money out-of-pocket to retain an expert. When it comes to expert testimony, between police investigators, crime lab technicians and their own funding for private experts, prosecutors have an enormous advantage.

Fortunately for my client, I found a fire investigation firm that was both highly qualified and willing to take the case, Safety Engineering Laboratories, with testimony provided by Donald J. Hoffman and Michael Kroll, but the $1,500 didn't even cover their out-of-pocket expenses -- they did the right thing, but no expert can devote that type of time and energy into what amounts to pro bono work on a regular basis. I recall also seeing a case in which a lawyer, having been denied adequate funding for certain pretrial work, had taken his claim to the Court of Appeals which had found his claim reasonable and had ordered reimbursement -- but for the time his case and the subsequent appeal were pending, that was money out of the lawyer's own pocket.

Perhaps the environment has changed in recent years, with the increased use of scientific evidence, but given the relatively low funding available for appointed criminal defense work in much of the country I would be surprised if judges are now routinely granting adequate amounts of money for defense experts. The type of funding you see in high profile cases, covered by the media, are anything but the norm.

Medical Malpractice Litigation Really Isn't All That Special

One of the common threads you see in the criticism of medical malpractice litigation from the medical community is that medicine is special - it's so complex that it's just not reasonable to trust malpractice litigation to a jury of laypersons. We are told that we need "health courts", an undefined concept that generally appears to translate into "courts where people like me get to decide what is or is not malpractice." And all of that is fine, insofar as it goes, except...

There's actually nothing special about malpractice litigation. Many incredibly complex cases are resolved within the jury system. An argument could be made that all technologically complex cases should be removed from juries, but that's really an argument for the abolition of the jury system itself - and disregards a long and involved history of how we came to have juries in the first place, why we protect the right to trial by jury in the Constitution, and why we have perpetuated that system into the modern era. The fact is, not all malpractice cases are complex. You're supposed to remove the patient's diseased, left kidney, and you instead remove the patient's healthy, right kidney? That's not difficult to understand. And sometimes what one might assume to be simple cases, let's say a car accident, can end up involving experts in engineering, accident reconstruction, economic damages.... Let's not forget, also, that juries are called upon to decide incredibly complex cases involving business disputes, environmental contamination, intellectual property, antitrust.... There's simply nothing about the complexity of medical malpractice litigation that meaningfully distinguishes it from other types of litigation.

Dr. Robert Centor argues,

We need special health courts. The jury process induces lawyers to couch their words, use sophistry, and work hard to present part of the story. This is clearly true for both the defendant and the plaintiff legal teams. If we had special health courts, then we could have a nuanced discussion of all the details of patient care. A jury trial leads lawyers to focus on details and try to “make mountains out of mole hills”.

I've tried to engage Dr. Centor in the distant past about what he means by a "special health court", to no avail. Pretty clearly, his concept of the "health court" would be a non-adversarial court system, and would not involve a jury. Perhaps he's thinking of something akin to a coroner's inquest (of the type that does not use a jury), or some sort of inquisitorial tribunal system. One can only guess.

It's not at all clear, though, why he believes such a system could be created and yet be completely non-adversarial. It's difficult to imagine a doctor, accused of malpractice, beaming with delight at the thought of having his case tried in a "health court" as opposed to a regular trial court, or being content with lawyers who argue, "We're not actually representing you - our duty is to help the court find the truth, even if that means you're found to have been culpably negligent." All you have to do is look at the effort that doctors and the insurance industry have invested in keeping confidential the results of peer review in malpractice cases to recognize that the medical profession is not interested in placing all of the facts on the table.

We presently have trials that don't involve juries - bench trials - and although the conduct of the trial can be affected by the absence of a jury, even in medical malpractice cases the litigation remains adversarial. There are pro's and con's to the adversarial system, certainly, but on the whole parties like to be represented by advocates who zealously represent their interests.

Dr. Centor, himself, highlights a significant flaw with his apparent notion of a "health court", in that no "health court judge" or tribunal will be expert in every area of medicine:

Some physicians will testify in cases about which they really understand little. Reading the depositions of some other physicians saddened me.

I will continue my personal philosophy of only accepting to testify in malpractice cases for which I believe I have clear expertise. Over the years I have accepted less than 10% of offered cases. I had testified once previously approximately 25 years ago, and had been deposed once in another case. But generally, I avoid malpractice cases because I do not consider myself qualified.

If you have judges, even specially trained judges, presiding over a trial where the proposed medical experts are testifying outside of their area of expertise, how is that an improvement over the current system? The judges can't be assumed to have a better understanding of medicine than the experts testifying in court, and Dr. Centor argues that many of those experts aren't qualified. If litigants seek out Dr. Centor due to his credentials and expertise, yet he deems himself qualified to serve as an expert in only 10% of those cases, by Dr. Centor's measure what are the odds that a randomly selected health court judge is going to be qualified to hear an assigned case?

For all of the kvetching, every comprehensive effort to review the outcome of medical malpractice cases suggests the same thing: Malpractice lawyers are very selective about the cases they take, when they take cases that turn out to be weak it's almost always because they lack the information necessary to fully assess the case and cannot get that information without filing a lawsuit, when there's ambiguity in a case juries tend to side with doctors, and to the extent that error occurs it usually favors the doctors. As is quite typical, even when arguing that the case shows a "need" for a health court, Dr. Centor argues that the jury came to the correct verdict. His concession reduces his argument to this: "The system worked. so let's replace it with something I can't define that I think will be more fair."

I'm not going to dispute this:

he psychological impact of these charges on the defendants was palpable. These hard working, conscientious defendants had years of having these charges hanging over their heads. They did nothing wrong. That really does not matter in jury trial.

The distinction between professional negligence litigation and standard negligence litigation is that somebody is pointing their finger at you and claiming, "You weren't competent in this case, and your incompetence caused somebody to suffer an injury." One of my law school professors liked to edify his students by explaining legal practice in very blunt terms. One of his declarations was, "You will all commit malpractice." The fact is, everybody makes mistakes - the big question being, how you respond when you make a mistake. Most mistakes can be fixed and, if you detect your error or omission quickly enough, harm can be minimized or avoided.

When you look at why patients look for malpractice lawyers or bring malpractice lawsuits, you find that bedside manner is a huge factor. When something went wrong, was the doctor helpful? If the doctor made a mistake, did he apologize? Rick Boothman, chief risk officer for the University of Michigan Health System, has advocated for years that doctors and hospitals change their approach to litigation, and has documented that an approach of disclosure, apology and cooperation reduces the number and cost of malpractice claims. No need to reinvent the system. It's an approach more institutions and doctors should take.

A comment on Dr. Centor's blog suggests, as an argument for "health courts", "Attorneys will drag out a weak case in hopes of a settlement getting something instead of nothing." The commenter confuses the exception with the rule. The principal reason that malpractice litigation drags on as long as it does is not due to plaintiff's lawyers. It's due to the successful lobbying by the medical malpractice insurance industry for measures that increase the cost of litigation for a plaintiff and prolong the litigation process. By imposing up-front costs and delays, small but meritorious malpractice cases are squeezed out of the system. The longer a case drags on, the more likely it is that a seriously injured malpractice victim will settle for less than the case is worth. As Mr. Boothman indicates, plaintiff's lawyers are happy to work collaboratively with a doctor or hospital to arrive at an early settlement. No plaintiff's attorney wants to invest $50,000 to $100,000 or more in taking a case to the point of trial (and yes, malpractice litigation is extremely expensive) if they can settle it quickly. The exceptional cases involve the late disclosure by the defendant of information that undermines the plaintiff's case, where the plaintiff's lawyer then angles for a modest settlement to try to avoid taking a loss on the case, or where the plaintiff's lawyer isn't competent to litigate malpractice cases in the first place.

A last point on "health courts": Let's assume an efficient health court system that accurately distinguishes actual malpractice cases from maloccurrence that results from non-culpable negligence, outside factors or bad luck. I very much doubt that health insurance companies would support the implementation of such a health court system. Why? Because right now, only a very small percentage of valid medical malpractice cases are prosecuted. The estimate is usually around 12%. The rest of the cases involve patients whose cases are too small to litigate under the present system, patients who lack the capacity or understanding to pursue a malpractice cases, patients who dread the thought of litigation and, perhaps most importantly, patients who like their doctors. If you create a sufficiently painless system, with efficient, low-cost resolution of malpractice claims, inspiring a significant percentage of that majority to pursue their valid claims, the amount paid out to settle claims could increase substantially. Even if Dr. Centor believed that such a system would be better than the status quo, the malpractice insurance industry would fight its implementation, tooth and nail.

Is the Zimmerman Case a Recipe for a Miscarriage of Justice

In one sense, there can be no question but that the Zimmerman prosecution is a recipe for at least a perception of a miscarriage of justice, because no matter what the verdict there will be an enormous population of people who will be convinced that the outcome was unjust. Chicago Tribune blogger Eric Zorn suggests that the "Zimmerman trial has all the ingredients for a miscarriage of justice", but in saying that he's concerned only with wrongful conviction - which, in fairness, is a far worse outcome from a standpoint of the integrity of our legal system than a wrongful acquittal.

In following the George Zimmerman trial somewhat closely online last week, I noted a familiar pattern:

A "heater" case that draws intense media interest.

Sympathetic victim.

Unsympathetic defendant.

Evidence of innocence explained away with far-fetched theories or else ignored.

Evidence of guilt magnified and bolstered with irrelevant detail and innuendo.

These are among the key ingredients for all the wrongful convictions I've written about in the last 20 years.

I think that Zorn's statements about the defendant and victim are misleading - I cannot recall a murder case in which I've heard more impassioned defenses of a killer, and I would be hard pressed to find one with greater public vilification of the victim. Even Zorn gets into the mix:

Martin wasn't the slight middle-school student seen in first photos of him made public, but a tall, athletic 17-year-old who'd had plenty of time to walk safely home once he knew he was being followed. Zimmerman was of mixed ethnicity, and he'd lost sight of Martin that night while attempting to keep an eye on him for police.

Zorn later expresses to a critic of that statement,

[H]ere http://blogs.chicagotribune.com/news_columnists_ezorn/2012/03/trayvon-martin-shooting-death-initial-police-reports.html I accurately report the documents showing him to be 6 feet' 170 lbs.

Actually, here Zorn accurately reports him to be "5-feet-11, 158 pounds, according to his autopsy". The incident report estimates Martin to be 6', 160 pounds, which is a pretty good estimate under the circumstances but still a good 10 pounds lighter than Zorn's "accurate" recitation. A survey of Zorn's comments on the case suggest that he is trying to be reasonably objective but that his sympathies lie with Zimmerman - and that he's inclined to spin up some pretty convoluted theories to try to turn Martin into an aggressor.¹

If Zorn has followed homicide cases, then he knows that if you're claiming to be innocent of homicide you have two basic defenses, the stronger of which is "That other guy did it," and the weaker, "Some other guy did it". When you're in a position where you can't deny committing the homicide, the defense presented is typically, "The victim deserved to die." That is why the Zimmerman team has made a long-term, concerted effort to attack Martin, to raise allegations they know or should know to be false, and bringing media attention or seeking to use at trial evidence that they know is irrelevant to the case but feeds into the anti-Martin narrative his supporters are so quick to grasp - and let's not forget, leaks and sensationalistic claims from both sides can be reasonably be assumed to be intended to influence the jury pool.

I think that Zorn's comments are better viewed as problems with the adversarial system of justice. The prosecutor in a homicide case will typically try to make the defendant look like a bad person and the victim look like an innocent, because that makes conviction more likely. The defense in a "he deserved to die" case will do the opposite because if the jury buys the notion that the defendant is basically a good person and the defendant deserved what was coming to him, the odds of acquittal go up. When you observe that the prosecutor is depicting the defendant as a bad guy who caused harm to a good person, you're doing little more than describing what happens in criminal cases hundreds of times each day, every day of the week.

The same holds true with regard to how the prosecutor explains away theories of innocence, or emphasizes evidence suggesting guilt. That's the prosecutor's job. It's the job of the defense to emphasize theories of innocence and evidence suggesting innocence. This is why we call the system "adversarial" - the two sides are working at opposite purposes. Although Zorn doesn't acknowledge this, you can only push your "explaining away" so far - if you overplay your hand you risk losing credibility with the jury. If the theory of guilt is far-fetched, the jury is much more likely to accept a theory of innocence that is plausible.

In terms of media attention, I suspect that the reason Zorn, a reporter, sees more miscarriages of justice in cases that draw media attention is because he's a member of the media. Certainly, there are some notable cases in which the police were in a hurry to close out a high profile case and a wrongful conviction followed, but those cases typically have what to me are the better predictors of when a case is more likely to result in wrongful conviction:

1. A heavy or exclusive reliance on eyewitness testimony; and

2. A statement that is contended by the police to be self-incriminating, or where the defendant actually falsely confesses to a crime.

I recall one case in which a defendant's "confession" turned out to be a remnant of an interrogation on a different case, with the police recording the defendant's statement on a recycled tape and, with no actual intent to do so, creating for lack of a better word a mix-tape in which the new interrogation ended right before the defendant in the prior case, whose voice was similar to the defendant's, admitted committing a crime. False confession cases can be difficult at times to wrap your head around - and the reasons that defendants give for having made what was later proved to be a false confession don't necessarily help. The defendant is often, but not always, of lesser education, possibly with a cognitive impairment.

Eyewitness testimony is dangerous because it is highly persuasive, but often contains errors and inaccuracies. If you ask enough questions, no matter how good the memory of the eyewitness, they'll get something wrong. The confidence of a witness is his or her testimony is not a good measure of its accuracy, but juries nonetheless tend to perceive confident, forceful testimony as being strong evidence.

Another factor in somee high profile wrongul conviction cases, is police, prosecutorial, or witness misconduct - including witholding evidence, destroying evidence, fabricating evidence, and coaching or influencing witnesses to give statements on matters for which the witness is uncertain or even where up to that point the witness has given contrary testimony that, if not changed, would be harmful to the prosecution.

On the whole, save for the intense publicity and public interest, the most unusual aspect of the case is that the defendant has managed to raise hundreds of thousands of dollars to cover his legal fees, expert witnesses, investigators, and the like. The publicity has been at worst a double-edged sword, and arguably has given Zimmerman advantages over a defendant who faces similar charges but makes "too much money" to qualify for a court-appointed lawyer, or lives in a jurisdiction where the compensation given to court-appointed lawyers is a bad joke.

I personally believe that the most important prosecution witnesses are going to be the forensic witnesses who describe the fatal gunshot wound and shooting angle, and George Zimmerman himself, through the statement he has made to the police and media about how the shooting occurred. I personally suspect that it is the forensic evidence coupled with those inconsistent statements, not the public reaction, that led to Zimmerman's being charged. To be specific, I suspect that the state's evidence will be that Zimmerman's stories are not only inconsistent, it's impossible to reconcile any of those stories with the angle of the gunshot wound. The question then becomes, will Zimmerman testify with yet another story - and open himself up to an interrogation that will flyspeck all of his prior statements and scrutinize his motivations - or will he instead try to overcome the contradictions through other witnesses and arguments presented by his lawyers.

Regrettably, only two people are in a position to tell us what actually happened that night, one of whom is dead and the other of whom will likely choose not to testify in his own defense.
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1. In the comments, Zorn argues "Trayvon Martin could easily, at a leisurely walk, have covered the distance between the clubhouse, where he was first spotted, and Brandy Green's townhouse in the elapsed time from the beginning of Zimmerman's 911 call, when Zimmerman first spotted him, to the end of Zimmerman's 911 call", and accuses those who question his interpretation of the time line as engaging in speculation. He argues, "To make your story work, Martin has to simply linger there wondering if he's being followed (since I'm sure you don't want to accept the narrative in which doubles back to challenge Zimmerman)" - implying pretty strongly that, despite possession no evidence beyond speculation over the time line, he believes that last narrative. I would like to hear Zorn's explanation of how Martin would have known, after leaving the roadway and walking down the sidewalk between the houses, that Zimmerman would park, leave his vehicle and continue to either follow or appear to follow him into the area where the shooting occurred.

What's Mitt Romney's Plan for When He Runs Out of Empty Chairs

All this talk of empty chairs has brought to mind a change in the law that took place in Michigan some years back. Prior to the change, in a case in which more than one person might be responsible for an injury, a plaintiff could sue the person he believed to be primarily or solely liable without suing everybody under the sun. After the change, the justifications for which are best reserved for another day, the defendant no longer had to bring in the additional defendant - he could instead use the "empty chair defense", arguing that the person the plaintiff did not sue was the person who caused the injury.

Clint Eastwood provided a pretty dramatic example of how the empty chair defense can work. When nobody is sitting in the chair, you can attribute actions to the absent person that weren't his, you can argue that he's responsible for things that were outside of his control, you can put words into his mouth.... In court, the person who put you on trial can object, or attempt to argue a different theory - although in most cases, upon receiving notice that the "empty chair" defense is coming into play, they'll add the third party to the lawsuit. At a political convention, there's nobody to object.

But what Mitt Romney's doing isn't much different from what Clint Eastwood did. Romney tried running a campaign against the actual person named Barack Obama, the President, and he realized that he was losing. So he has changed his approach and is running against a fictional person, coincidentally named Barack Obama, who happens to have said and done a lot of questionable things, and may not even have been born in the United States (a joke...). As with the convention, though, Mitt Romney's attacks on his false Obama amounts to little more than hectoring an empty chair. The real Barack Obama is not invited to the party.

Romney appears to want to pull back a bit from his mendacity and race-baiting, and at the convention that job fell principally to others. But it would certainly be fair game to ask him about some of his allegations at a debate, when he's face-to-face with the actual President, and even if no direct question is asked we can expect the President to put Romney in the hot seat. And it's quite certain that if Romney huffs his usual falsehoods in the direction of the President, he's going to get a strong response. Romney seems intent on telegraphing every punch.

I think it was a big mistake for Romney's campaign to decide that he should get his hands dirty. Even if the thought was that Romney no longer had plausible deniability that his campaign was being intentionally dishonest - you can't, for example, premise your party convention on a lie without getting stuck with some responsibility - and even if Romney's advisers believed that certain portions of the base would be reassured, there is a difference between having the word's come out of the mouth of a proxy like John Sununu and speaking the words yourself. A proxy goes too far? They can apologize, have their role reduced, even be fired. You go to far? Those words are much more likely to come back at you.

Defensive Medicine and Fear vs. Reality

Robert Samuelson describes the hypothesized fear that some claim causes doctors to prescribe unnecessary (and sometimes potentially harmful) tests to avoid a potential malpractice claim,

The [journal Health Affairs] argues that rapid growth [in health spending] was driven partly by powerful non-medical forces: Demanding patients insisted on scans; doctors feared malpractice suits if they refused; and doctors and hospitals wanted to maximize revenues. What explains slower growth is that these incentives weakened....

One change was the adoption of prior authorization by many private insurers. Doctors usually had to get permission for advanced imaging and, if patients’ conditions didn’t comply with guidelines, explain why. This may have discouraged referrals, because doctors don’t like being overruled. Patients also became less demanding, because deductibles and co-payments rose.

Yet despite less of this expensive testing in cases where it's not needed or where the need is borderline, there has been no increase in malpractice litigation. To the contrary, the number of malpractice lawsuits continues to drop.

The leading problem with the argument that unnecessary imaging studies were driven by fear of malpractice litigation is that a doctor can only be held liable for malpractice if he violates the governing standard of medical care - a standard defined by doctors, not by lawyers. The conceit is that the additional test might reveal something that did not show up in prior tests, saving the doctor from a "failure to diagnose" claim, but even without the test if the doctor established that he adhered to the governing standard of care the claim would not succeed.

Under the former model implied by Samuelson, the doctor meets with the patient, the doctor either says "This really expensive imaging study is unnecessary and won't help me diagnose your problem," or makes a statement he knows to be misleading, "We need this really expensive test to verify your diagnosis", the patient responds, "I want it anyway", and the doctor goes along with the patient's request.

The first explanation offered for the drop in testing, that insurance companies became more likely to require prior approval and "doctors don’t like being overruled" undermines the notion that fear of malpractice litigation is a significant factor. It is difficult to believe that a doctor who is willing to order medically unnecessary tests on large numbers of patients in order to avoid the tiny chance that one will later file a frivolous lawsuit against him is going to have such a dramatic change of heart, "I'm not even going to mention the additional test because the patient might want it, and then the insurance company might say 'no'."

Further, Samuelson informs us, "Data from one insurance group suggested that about half the MRI slowdown involved lower back, elbow and knee pain." (The article Samuelson references also mentions low-value MRI's of the pelvis.) Lower back pain can be associated with serious medical conditions, but the study distinguishes MRI's "used to diagnose lower back pain" from those ordered when a patient is "considering surgery or physicians strongly suspected systemic disease". But leaving the lower back aside, it's difficult to believe that doctors are ordering large numbers of knee and elbow MRI's as "defensive medicine".

More than that, its unlikely that the doctor is going to know what any given insurance company will or will not approve before his office checks the policy terms and, if necessary, makes the request. It's even less likely that it will be the doctor making the call. Why would a doctor fret if an insurance company says "no" to one of his clerical staff? If the doctor believes that the test is medically necessary, he is likely to fight the insurance company. I've dealt with medical clinics who have a full-time employee whose only job is to push back against insurance companies' efforts to deny or limit care.

The second explanation, speculation that "Patients also became less demanding", seems like a big stretch. If a test is medically necessary, the doctor is going to push the patient to get the test despite the out-of-pocket cost. If your doctor tells you, "You need a $5,000 medical test in order for me to diagnose your condition," even if you're one of the "27 percent" of "workers with deductibles exceeding $1,000", odds are you're going to bite the bullet. Odds are you'll be billed after-the-fact, and you only pay a deductible once. If you're looking at very expensive medical testing odds are that you have an underlying medical condition that is going to take you across that line, anyway.

The concept of "defensive medicine" Samuelson implies would also presuppose a highly informed patient. They see the doctor for diagnosis and treatment. The doctor provides care he believes is appropriate. They then ask, "Shouldn't we also use the [specific expensive medical test or imaging study]?" The reality is, confronted with a non-specific diagnosis or statement by the doctor about a low-probability but high consequence possibility in a differential diagnosis, the patient is likely to ask, "Isn't there anything else we can do," with the doctor identifying the additional test that could be performed.

It's difficult to see how the "defensive medicine" line would have changed. It's unlikely that the doctor who is inclined to order unnecessary testing is fretting, "Oh no, if I mention the test there's a one in four chance that they have a high copay and they might refuse it," or "Oh no, if I mention the test they may have insurance that requires pre-authorization and the request may be denied." If they don't mention the test to the patient they're right where they would be without "practicing defensive medicine" - they can still be accused of not mentioning or ordering the test. If they recommend the test and don't push the patient to fight an insurance company denial or to pay the copay, they are similarly exposed.

If the assumption is that certain doctors will liberally prescribe medically unnecessary tests only if they don't expect to encounter friction - only if they expect an insurance approval, and only if they believe that the patient's contribution to the cost of the test will both be known to the patient in advance and not scare off the patient - then "defensive medicine" really translates into, "I'll order whatever testing I think the insurance company will pay for." There's a madness to that method, as there's always one more test you could order and, frankly, the patients with the best insurance likely fall within the population that is least likely to sue.

It could be hypothesized that the economic changes have forced a learning process on the part of doctors - that frivolous malpractice lawsuits are so rare, ordering unnecessary medical testing has no meaningful impact on whether or not any given doctor gets sued. But then, as Samuelson notes, there's the elephant in the room:

Finally, some reimbursement rates fell. In 2005, Congress mandated that Medicare couldn’t pay free-standing imaging centers — often owned by doctors — more than it paid hospitals for outpatient imaging. This “reduced profits for imaging centers and resulted in extensive consolidation in the industry,” the study said. Under complex reimbursement rules, doctors had incentives to establish imaging centers or install scanning devices in their offices, says Levy. And these imaging centers seemed “particularly active in stimulating demand.”

That is, it appears that the leading cause of unnecessary medical imaging, performed at the highest cost, was physician self-referral - sending patients to receive tests at centers owned in whole or in part by the doctor making the referral, with the referring doctor having both the need to keep his imaging center busy and receiving a share of its profits. No, I'm not going to argue that this was a standard practice across the board, and even within the context of self-referral I'll give the majority of doctors the benefit of the doubt, that they referred patients to their own clinics for tests they would have ordered anyway - the difference being much more one of where the test is performed than whether it is ordered. But self-referral has long been identified as one of the leading causes of unnecessary medical testing, a genuine, documented cause of medical inflation.

It is easy to understand why a doctor does not want to be accused of malpractice under any circumstances, and why a doctor would want to avoid being sued even in a context in which he will easily defeat the suit in the early stages of litigation. People who argue that "defensive medicine" plays a large role in the cost of medicine ignore the fact that to the extent that "defensive medicine" exists, it is largely driven by emotion. Were "defensive medicine" is driven by facts, you would expect to see a reduction in low-value medical testing when the rate of malpractice lawsuits drops. Yet the prevalence of low-value testing and the cost of medical care is not correlated to the number of malpractice lawsuits. If doctors believed that certain expensive tests were necessary to avoid potential lawsuits, even if not medically necessary, you would see them pushing patients to pay for the tests and fighting insurance companies to gain approval. Instead you see them deferring to insurance companies or, it would seem, not even mentioning to patients tests that might stretch the patients' pocketbooks.

What you do see through studies such as the one Samuelson describes is that you can reduce the number of low-value tests across the board by changing the economic environment for such testing. That is, whether referrals for low-value testing are driven by a strong desire to diagnose a tricky condition, self-referral and profiteering, or "defensive medicine", there appears to be an across-the-board reduction in the number of such referrals when you change how you compensate doctors for the tests and the amount that patients must contribute in order to obtain the low-value test. Rates of malpractice litigation, damages caps and the like don't matter.

As long as any malpractice lawsuits are allowed, you're going to see doctors express that they fear frivolous lawsuits. History tells us that, short of a grant of absolute immunity, changing the tort system won't affect how doctors practice medicine. (The prior, ugly history of when doctors were all-but-immune from malpractice litigation should not be forgotten.) But, to the extent that defensive medicine even exists, if you can eliminate most or all "defensive medicine" by adjusting financial incentives, it's a peripheral issue - something that can be successfully addressed through indirect, economic reforms. Given that despite years of debate, there's still no consistent definition for or objective measure of what constitutes "defensive medicine", and "tort reform" has had no impact on its supposed practice, focusing on economics seems like the way to go.

Just Sayin'

Let me state up front that Michael Coakley is a fine lawyer and I would not hesitate to hire him to represent me in a defamation lawsuit. But if I were the largest law school in the state - the largest in the nation - and were accused by a former student of being little more than a diploma mill, I would make a special point of finding a graduate of my own institution to lead the litigation. (Well, no, even if I believed in its merit I wouldn't file the case at all, for reasons summarized here, but if for some reason I were to file such a case....)

Playground Safety Isn't a Bad Thing

John Tierney appears to have no love for internal consistency. In complaining that modern playgrounds are too safe he argues,

While some psychologists — and many parents — have worried that a child who suffered a bad fall would develop a fear of heights, studies have shown the opposite pattern: A child who’s hurt in a fall before the age of 9 is less likely as a teenager to have a fear of heights.

What does this mean in relation to modern, "safe" playgrounds?

“There is no clear evidence that playground safety measures have lowered the average risk on playgrounds,” said David Ball, a professor of risk management at Middlesex University in London. He noted that the risk of some injuries, like long fractures of the arm, actually increased after the introduction of softer surfaces on playgrounds in Britain and Australia.

The problem, then, is that safe playgrounds are making children less fearful of heights? While it's easy to believe that minor bumps, scrapes and bruises can help a child recognize that certain activities that look scary are reasonably safe, there's no reason to believe that the same holds true for serious injuries. Tierney chooses not to identify or link to any of the "studies" that support his assertions, but I doubt it's as binary an issue as he would have us believe. As kids are still getting injured, albeit in many cases less seriously, they should still be building a tolerance for heights.

“I think safety surfaces are a godsend,” [Adrian Benepe, NYC parks commissioner] said. “I suspect that parents who have to deal with concussions and broken arms wouldn’t agree that playgrounds have become too safe.”

Tierney blames the move for safer playground equipment and safety surfaces on lawyers, purporting that "Fear of litigation led New York City officials to remove seesaws, merry-go-rounds and the ropes that young Tarzans used to swing from one platform to another", linking to this article:

Monkey bars are disappearing in all parts of America, as safety guidelines, guarantees of accessibility for the handicapped and the play industry's self-policing have coalesced to force them out.

"The biggest reason is that this old playground equipment is not safe," said Dan Wagner, vice president of Landscape Structures Inc., a major manufacturer of new-style equipment based in Delano, Minn. "It's going on everywhere in the country."...

Many doctors agree that monkey bars are dangerous. "Of all the equipment in parks, it seems like the jungle gyms are worst in terms of injuries," said Ann DiMaio, director of pediatric emergency room services at New York Hospital/Cornell University Medical Center.

The article does mention fear of litigation, but does not suggest that those fears as opposed to the changes being principally motivated by improved safety and compliance with updated safety guidelines. The most serious injury mentioned in the article was a broken collarbone, with no indication that anybody even hinted at suing.

Here's the deal: Yes, safety standards change over time. Yes, as a result a lot of things that used to be less safe and more fun are now more safe and, in some case, less fun. Yes, that means if you ignore modern safety standards and regulations, you open yourself up to potential litigation when somebody is injured as a result of your bad choices. But Tierney's own source makes plain that the principal reason for making playgrounds safer is nothing more than that - diminishing the frequency and severity of injuries. That's a bad thing?

Also, while Tierney suggests that modern playground equipment is less fun than historic playground equipment, he misses a number of important issues. The first is highlighted in the article he references:

Dr. Harold Koplewicz, chief of child and adolescent psychiatry at the Schneider Children's Hospital of Long Island Jewish Medical Center, said the important thing is to give children of all ages as great a sense of freedom as possible. If a parent is screaming at a child to be careful on the monkey bars, it defeats this goal.

"We all had glorious times on the jungle gym when we were kids," Dr. Koplewicz said. "But for today's child, there is no loss. It is better for him not to be watched all the time."

The second is that children engage in a great deal of play that does not involve playgrounds and play structures. Tierney confuses novelty with sustained interest:

Still, sometimes there’s nothing quite like being 10 feet off the ground, as a new generation was discovering the other afternoon at Fort Tryon Park. A soft rubber surface carpeted the pavement, but the jungle gym of Mr. Stern’s youth was still there. It was the prime destination for many children, including those who’d never seen one before, like Nayelis Serrano, a 10-year-old from the South Bronx who was visiting her cousin.

There are monkey bars in a school playground near where I used to live, along with a couple of modern play structures, an older wood structure, swings, basketball hoops, and other amusements. The monkey bars, most often, are abandoned. As were the monkey bars at my childhood elementary school.

For all of Tierney's concern about a loss of opportunity for "risky play" on playgrounds, I'm left wondering how much time he has actually spent watching kids play. I took my daughter to a playground a couple of years ago, and while she was enjoying the structure, slides, tunnels, and was practicing jumping or dropping to the ground from what to a four-year-old was still a considerable height, a couple of tweens were also playing on the structure. And I do mean on - canopies and covered slides may be intended to keep the elements out and kids contained, but for older kids they can be just another platform to climb on. As for the concern,

“Older children are discouraged from taking healthy exercise on playgrounds because they have been designed with the safety of the very young in mind,” Dr. Ball said. “Therefore, they may play in more dangerous places, or not at all.”

At my childhood elementary school, the play structure was for "the little kids". Older kids were simply expected to find other ways to play, and the older kids did exactly that. Further, the idea that a school can provide a play structure of sufficient size and with sufficient variety to keep kids interested in sustained play, day after day, year after year, is absurd. If they're occasional amusements, fretting that they won't be the principal source of a child's exercise, moreso an older child's exercise, is similarly absurd.

You Know What We Need? A Bigger Trial Tax!

The "trial tax" is a term given by lawyers to the tendency of courts to impose higher sentences on defendants who are convicted after trial as compared to those who plead guilty. There are many rationalizations for the trial tax - the guy who pleads guilty shows remorse, the guy who presents a trumped up defense or gives false or misleading testimony is wasting the time and resources of the state, etc. But there is an inherent tension between a defendant's right to be presumed guilty and increasing the defendant's penalty if he makes the state prove its case. The worst aspect of the trial tax is not that a guilty defendant gets a longer sentence, but that an innocent defendant may be forced to choose between a light sentence or probation if he accepts a guilty plea, or going to prison if he's convicted.

Deborah Orr is outraged that some defendants not only present false defenses at trial, but can display the same type of sociopathy or sadism they demonstrate in their crimes as part of their defense. She's from England, so she's focusing on some of the outrageous accusations the murderer of a thirteen-year-old has directed at some of the witnesses, including the child's father. But the same thing happens here. Orr's solution seems to lie somewhere between imposing a severe trial tax and (although she claims otherwise) weakening the presumption of innocence:

I am not suggesting changes in the law, or for an eroding of the rights of defendants in court. I am suggesting a change of emphasis in sentencing, whereby defendants no longer have nothing to lose from telling lies on a slender punt and absolutely everything to gain if their lies succeed. Clarke's proposed reforms invoked the carrot. Their flaw was that even a person who had no chance of being found not guilty would be further rewarded for pleading guilty. He needs to take another look at his ideas, and invert them. He needs to invoke the stick. Plead not guilty, and risk exposure as a vexatious liar, if you dare. No parole, no privileges, no quarter, just a straight, cold, maximum sentence, if you really think that you want to mess everyone around.

But the thing is, most defendants are guilty and the entire concept of plea bargaining centers around a quid pro quo - the guilty defendant does benefit from pleading guilty. At risk of projecting the U.S. system onto Britain, I expect that the child murderer whose antics so offend Orr is in the same position as a child murderer in a typical U.S. court - he is looking at the same outcome whether he pleads guilty or not guilty, and thus has nothing to lose. Will you inspire him to act more ethically in his defense if you threaten him with serving "life plus ten years" in prison as opposed to simply "life"? Obviously not.

But you can rest assured that the prosecutor who is looking at a difficult case will be warning the defendant, "If you do not take this plea bargain, after you're convicted I will be asking the court to find that you lied, and to give you a sentence with 'No parole, no privileges, no quarter, just a straight, cold, maximum sentence'". Such an outcome would come pretty close to a "gimme", given that the defendant's conviction would inevitably mean that his defense was not believed.

Orr's column reflects a layperson's frustration with the rules of evidence, specifically hearsay rules, and a remarkable lack of insight into how those rules work. She describes how, many years ago, her four-year-old let a woman into their home and, when the woman was prosecuted for burglary, she was told that she could not repeat her child's statements to her on the basis that they were hearsay:

The burglar had knocked on our door, and been let in by my four-year-old son, while I was feeding and settling his three-month-old brother. I knew nothing of this until I found my son sitting on the front doorstep, with the door open. He told me that he had answered the door – which at that time had clear glass panels – to "the lady in the red coat". Where was this lady now? She had gone upstairs, "to see Dad"....

I was amazed when my burglar entered a "not guilty" plea. I was even more amazed when, a few minutes before the trial began, six months after the incident, the Crown Prosecution Service told me I could not mention anything my son had said because it was hearsay evidence. That ripped my truthful narrative to shreds. Thus restricted, I was just not able to credibly explain what had happened.

In simple terms, a hearsay statement is an out-of-court statement being offered as proof of the matter asserted. In our adversarial system each side is supposed to have the opportunity to challenge the other side's evidence and cross-examine witnesses, an ability that is lost if hearsay evidence is allowed without discrimination - but there are many exceptions and exclusions to the hearsay rule, such that hearsay statements often do end up introduced into evidence, and sometimes the statement will be admitted for reasons unrelated to its truth. I expect that most lawyers will infer that the defense brought a motion in limine asking that the child's statements be excluded as hearsay, anticipating that the child would not be presented as a witness, and that at the time the trial started the court had put limits on whether and when the hearsay statements could be introduced. Orr continues,

The defence line was that this woman had found my son in the street and had been searching for me in the house, to deliver him to safety. As a mother herself, she had been appalled to find him wandering in the road, in danger.

But her good deed had been totally misread, and had landed her in this amazingly terrible mess. Her brief went further in her summing up. Citing the James Bulger case, she contended that people such as the defendant were afraid to intervene and save children because people such as me distorted their kind motives so grossly. People such as me, she argued, were responsible for the "walk on by" society. People such as me, she spat out contemptuously, would rather see an innocent woman go to prison than admit that they only saw the bad in people.

The trial took five days, about 20 minutes of which were taken up by the jury's deliberations. Largely, I think, because I had strongly insisted on presenting the hearsay evidence, despite the consequences and against the advice of the CPS,¹ and the jury had believed me.

What nonsense. Had Orr presented testimony in violation of the court's ruling she would have been admonished by the court and, at a minimum, that portion of her testimony would have been stricken from the record with the jury admonished to give it no weight. What happened was either that under the court's pretrial ruling the defendant's use of this particular defense opened the door to the introduction of the child's statement, or that the prosecutor successfully convinced the court to reverse its prior ruling based upon the content of the defense case. This is not an instance of a witness bravely staring down the court and forcing inadmissible evidence into the record, resulting in the defendant's conviction; does Orr truly believe that's what happened?

Here's another little secret of the system: prosecution witnesses often lie in court, and rarely face a consequence for lying. Would Orr balance out her trial tax by imposing severe consequences on prosecutors and prosecution witnesses whose arguments and testimony are rejected by the jury, or are later proved to be reckless, deliberately misleading, or presented with full knowledge of their falsity? As she suggests for defendants, should willful falsity be effectively presumed by a jury's rejection of the prosecution's case?

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1. I suspect that advice was along the lines of, "If you introduce the child's statements the defense may try to call him as a witness." But ultimately that, also, wouldn't have been Orr's call.

Pull The Other One

Would you believe this if you were a juror?

"I searched for chloroform," said Cindy Anthony, as jurors leaned forward, riveted, in the Orlando courtroom.

"I was searching for 'chlorophyll' because I was worried that it might affect my dogs," Cindy said. "I was worried about them eating bamboo."

I guess it's more plausible than attributing the search on a two-year-old, but really. I guess the thought process is, "My dogs were eating bamboo, I realized that bamboo contains chlorophyll, I wanted to know if chlorophyll is harmful to dogs, so I searched for 'chlorophyll' - but I didn't know how it was spelled so I ended up searching for 'chloroform'."

I suspect that most people searching for information on the possible consequences to their dogs from eating grass search for such terms as "dogs eating bamboo", and that most people who are looking for the effect of chlorophyll on dogs would search for something like "chlorophyll dogs", perhaps ending up with a twisted search term that would be of concern to PETA but not of much relevance in a criminal trial.

If Kids Eat it in a Commercial...

It must be nutritious, right? I mean, kids are eating it. In a commercial.

Who would have thought that if you take some type of nut butter and add sugar and chocolate, you would end up with, you know, candy. (To borrow another product's one-time tagline, "Candy? For breakfast? It's Reese's!") And if you taste Nutella, surprise - it tastes like candy.

As I recall, the commercial doesn't say "Nutella is healthy". Its statements are more along the lines of, "I use Nutella to get my kids to eat healthy food," and "I spread a little on all sorts of healthy things." It seems to me to be akin to touting cheese sauce as a way to get kids to eat broccoli.

Ah, childhood memories....

So Sayeth the Winklevii

Skip this post if you haven't yet seen The Social Network.

The Social Network, with a rather unsympathetic depiction of Mark Zuckerberg, helps carry itself by presenting a series of characters who are even less sympethetic. In the early part of the film that role was filled by Cameron and Tyler Winklevoss. In the later part of the film, by Sean Parker. Which isn't to say there aren't elements of humanity to those characters, or by the same token somebody whose arrogant disdain helps humanize the Winklevoss brothers (enter Larry Summers), but the elements of caricature and exaggeration (along with Jesse Eisenberg's impressive portrayal of 'Zuckerberg') help carry the film forward.

The film doesn't quite answer the question of why Zuckerberg played the Winklevoss brothers for suckers. One interpretation is that they treated him with arrogant disdain, as somebody who was capable of scripting their vision of a social website but not worthy of getting past the bike room of their social club. The other is more mercenary: that Zuckerberg didn't believe in the brothers or their vision of a social network, but he recognized the importance of primacy. He strung them along because had he done otherwise they might have sought out a different programmer and become the first to market. One way or another, it was Zuckerberg's failure to simply tell them, "No, I'm not going to work with you," (along with, if accurately depicted, his behavior during depositions) that breathed life into a lawsuit that would otherwise have had no legs.

David Brooks recently lectured us that the Harvard that is depicted in the movie doesn't actually exist. That there is no longer an elite Harvard with "the old WASP Harvard of Mayflower families, regatta blazers and Anglo-Saxon cheekbones" squared off against "the largely Jewish and Asian Harvard of brilliant but geeky young strivers". The Winklevoss brothers, celluloid personifications of the "old WASP Harvard" who were depicted in the film as wearing regatta blazers at the time of their decision to sue Zuckerberg, appear to disagree:

The 29-year-old identical twins, who are suing the Internet site on claims they came up with the idea for Facebook while students at Harvard University, said on Saturday they were pleased with the way they were portrayed in the Hollywood film.

“It does a great job of capturing the factual events of the 18 months of the founding of Facebook. It is a true story,” Cameron said in an interview.

Whatever reticence the brothers once had about suing has apparently evaporated, as "the twins have taken up legal action again, saying they were given misinformation about Facebook’s value and that relevant documents were withheld." A few 'Zuckerberg' quotes, then, from the "true story":

If you guys were the inventors of Facebook, you'd have invented Facebook.

The "Winklevii" aren't suing me for intellectual property theft. They're suing me because for the first time in their lives, things didn't go exactly the way they were supposed to for them.

A guy who makes a nice chair doesn't owe money to everyone who has ever built a chair.

Gingrich & Goodman Idea #8: "Eliminate Junk Lawsuits"

One of the interesting aspects of healthcare reform has been how quiet the insurance industry has been. When you hear people like Newt Gingrich talk, you would think that "tort reform" was perhaps the most pressing issue that must be addressed as part of a reform package. But instead the insurance companies appear happy with the status quo.

If you think about it, the insurance industry has good cause to be happy with the status quo. Despite their squawking about evil "trial lawyers," they have achieved their "tort reform" goals in pretty much every state. They have consistently focused on four goals: limit damages awards, so that the most severely injured individuals recover get little compensation for their pain and suffering; abolish "joint and several damages" and implement the "empty chair defense" to force plaintiff's lawyers to sue every conceivable defendant and drive up the costs of litigation; require notice periods and "certificates of merit" before a lawsuit can be commenced so as to prolong and again drive up the cost of litigation; and shorten statutes of limitations and implement statutes of repose, such that patients have a narrow window of time to make their claims before they're permanently barred from doing so, regardless of a claim's merit.

I read an article recently by a doctor who was sued as part of a malpractice case and who was ultimately dropped from the suit. She asked her defense lawyer "Why was I sued" and the defense lawyer lied, "I don't know." The defense lawyer does know. If you have a system of "joint and several liability", you can sue those you believe are most responsible. If a defendant believes others are in fact responsible, or are more responsible, the defendant can bring those others into the case. Insurance companies have worked very hard to abolish joint and several liability and to create the "empty chair defense" - so that a defendant can point to the "empty chair" where that defendant "should be sitting" and argue at trial that the plaintiff didn't sue the actual culprit, and that the actual culprit is responsible for most or all of the damages. That defense may amount to lies and innuendo, but courtroom arguments won't support a defamation case and the goal is to win, right? So to avoid that outcome the plaintiff now brings every conceivable defendant at the start of the litigation. This pro-insurance industry reform increases the cost and burden of litigation, and measurably harms the health professionals (and others - this isn't limited to malpractice) who are brought into claims to avoid the "empty chair defense". Plaintiff's lawyers would be happy to go back to joint and several liability with the onus on the defendant to bring in a supposedly culpable third party, and that should work out quite well for doctors, but the insurance industry is not going to give up this "reform".

Of the four leading "reforms", arguably the "certificate of merit" should help avoid "junk lawsuits" but in reality malpractice lawyers work hard not to file meritorious claims. Even without that requirement, due to the high cost of litigation, malpractice lawyers pay medical professionals to help them screen their cases - they don't want to waste their time and money on cases they cannot win. The dubious claims get filed because lawyers lack the information necessary to fully assess the merits of the claim without discovery - without forcing that information out of the defendants and their insurance companies. The certificate of merit prepared for such a case is prepared by a doctor who is similarly forced to make assumptions about what happened. So in practice it's a great way to generate revenue for doctors who prepare certificates of merit, drive up the cost of litigation and drag out the settlement process, but does little to ensure that a case is meritorious.

Some realities of medical malpractice litigation:

• Most malpractice cases are correctly decided.


• Those in which are arguably wrongly decided in favor of the plaintiff have smaller-than-average recoveries, and claims without merit are "generally resolved appropriately".


• About one in six malpractice cases are wrongly decided in favor of the doctor.

Further,

the malpractice system performs reasonably well in its function of separating claims without merit from those with merit and compensating the latter. In a sense, our findings lend support to this view: three quarters of the litigation outcomes were concordant with the merits of the claim.

And, when "non-error claims" were made, it was not for a lack of diligence by the plaintiff's lawyers:

The profile of non-error claims we observed does not square with the notion of opportunistic trial lawyers pursuing questionable lawsuits in circumstances in which their chances of winning are reasonable and prospective returns in the event of a win are high. Rather, our findings underscore how difficult it may be for plaintiffs and their attorneys to discern what has happened before the initiation of a claim and the acquisition of knowledge that comes from the investigations, consultation with experts, and sharing of information that litigation triggers.

The most serious problem identified?

Although the number of claims without merit that resulted in compensation was fairly small, the converse form of inaccuracy — claims associated with error and injury that did not result in compensation — was substantially more common. One in six claims involved errors and received no payment. The plaintiffs behind such unrequited claims must shoulder the substantial economic and noneconomic burdens that flow from preventable injury. Moreover, failure to pay claims involving error adds to a larger phenomenon of underpayment generated by the vast number of negligent injuries that never surface as claims.

That's right - not enough people injured by malpractice receive fair compensation for their injuries. All of that information coming from the New England Journal of Medicine.

One of the criticisms of the malpractice system is that too much of the money that goes into the system goes to the cost of litigation, with too little ending up in the pockets of an injured plaintiff. It's a fair criticism. It's also fair to recognize that delay and increased cost are a defense lawyer's friend, and the plaintiff's lawyer's enemy. A dream case for the plaintiff's lawyer would involve calling the defendant's insurance adjuster, negotiating a fair settlement, executing the settlement agreement, and getting a check at the earliest possible date. It almost never happens. Instead, even when liability is blindingly obvious, insurance companies want to make plaintiff's lawyers work for the money, and benefit from prolonging litigation during which time a severely injured plaintiff may decide that they would rather take a small settlement now than have to wait additional months or years to be more fully compensated. Returning to the New England Journal of Medicine:

Frivolous litigation is in the bull's-eye of the current tort-reform efforts of state and federal legislators. The need to constrain the number and costs of frivolous lawsuits is touted as one of the primary justifications for such popular reforms as limits on attorneys' fees, caps on damages, panels for screening claims, and expert precertification requirements. Our findings suggest that moves to curb frivolous litigation, if successful, will have a relatively limited effect on the caseload and costs of litigation. The vast majority of resources go toward resolving and paying claims that involve errors. A higher-value target for reform than discouraging claims that do not belong in the system would be streamlining the processing of claims that do belong.

Plaintiff's lawyers would get on board with that. Why won't Newt Gingrich's clients in the insurance industry?

Frankly, "tort reform" is a subject that a few poeple find interesting, but makes most people's eyes glaze over. That's why the insurance industry and its shills use misleading sound bites "junk lawsuits", "lawsuit lottery", etc., to mischaracterize the facts. (Why don't "tort reform" advocates ever show us the paraplegic in a wheelchair, or the severely brain injured child, who "won" this "lawsuit lottery"?) When there's real scholarship available from credible sources, such as the NEJM article quoted above, it's disgraceful that the mainstream media gives unquestioning coverage to the insurance company spin than they do to the facts, but... that's pretty typical of mainstream media coverage of contentious or scientific issues.

Speaking of shills....

The Newt Gingrich, John C. Goodman editorial is subtitled, "We don't need to study lawsuit reform for one minute longer", so I guess they've read the NEJM article and... yeah, right. They don't want to study lawsuit reform for one minute longer lest some facts enter the debate. It's enough to declare that "The current system is broken" then demand "reforms" that will ensure that even fewer victims of medical malpractice receive any compensation, and fewer of the rest receive fair compensation. And of all states to hold up as an example, Texas - a state that went farther than any other to kowtow to the insurance industry to the significant detriment of victims of malpractice. Tort reform was sold on lines like this: "52 counties in Texas now have no obstetrician. Wide swaths of Texas have no neurosurgeon or orthopedic surgeon". Four years after "tort reform", the number of counties without obstetricians is unchanged--152 counties still have none, according to the Observer's examination of county-by-county data at the state Medical Board... Nearly half of Texas counties--124, or 49 percent--have no obstetrician, neurosurgeon, or orthopedic surgeon. Those specialists aside, 21 Texas counties have no physician of any kind." Let's not forget the New Yorker article, in which a doctor turns a spotlight on high medical costs in Texas:

Some were dubious when I told them that McAllen was the country’s most expensive place for health care. I gave them the spending data from Medicare. In 1992, in the McAllen market, the average cost per Medicare enrollee was $4,891, almost exactly the national average. But since then, year after year, McAllen’s health costs have grown faster than any other market in the country, ultimately soaring by more than ten thousand dollars per person.

“Maybe the service is better here,” the cardiologist suggested. People can be seen faster and get their tests more readily, he said.

Others were skeptical. “I don’t think that explains the costs he’s talking about,” the general surgeon said.

“It’s malpractice,” a family physician who had practiced here for thirty-three years said.

“McAllen is legal hell,” the cardiologist agreed. Doctors order unnecessary tests just to protect themselves, he said. Everyone thought the lawyers here were worse than elsewhere.

That explanation puzzled me. Several years ago, Texas passed a tough malpractice law that capped pain-and-suffering awards at two hundred and fifty thousand dollars. Didn’t lawsuits go down?

“Practically to zero,” the cardiologist admitted.

“Come on,” the general surgeon finally said. “We all know these arguments are bullshit. There is overutilization here, pure and simple.” Doctors, he said, were racking up charges with extra tests, services, and procedures.

So Texas-sized "tort reform" left it with one of the highest cost, most wasteful healthcare markets in the nation. And when confronted with that fact doctors still try to blame "malpractice litigation" even though virtually no malpractice suits are filed.

In 2006, Medicare spent fifteen thousand dollars per enrollee here, almost twice the national average. The income per capita is twelve thousand dollars. In other words, Medicare spends three thousand dollars more per person here than the average person earns.

It must make Newt Gingrich very proud.

All of that said, let me briefly touch on the reasons why I don't think that the insurance companies are eager for the federal government to impose Texas-style "tort reform" upon the nation, and are instead appear largely content with the softer reform measures that exist in both the House and Senate bills. It's not that they're trying to silence their shills, but even Gingrich put "malpractice reform" eighth on his list of "ideas". If you impose a national cap on damages, it's likely to be higher than many state caps - many such caps were imposed decades ago and have not since been raised - and to be indexed to inflation.

Further, it's easier to target Congress with a litany of cases in which a cap brought about an unjust result, both because you're targeting one legislative body instead of fifty and because you're better able to get media attention, potentially having the cap raised in subsequent years. It's hard to make a "conservative" case for a federally imposed statute of limitations for malpractice cases, and you suffer the same consequence - it is easy to find examples of people, particularly people injured as minors, whose claims were cut off by a statute of limitations before they realized the severity or cause of their injury, or before they were legally competent to pursue the claim. A national statute of limitations could significantly expand the number of people able to bring claims currently time-barred under state law. Imposing an abolition of joint and several liability would be hard to disguise as anything but an intrusion on states rights. Further, all of these restrictions would be subject to appeal to the U.S. Supreme Court which, although largely pro-industry, might nonetheless have a difficult time finding a constitutional basis for supporting the federalization of a single type of tort, or reading the 7th Amendment out of the Constitution.

You would also think that a "conservative" like Newt Gingrich would want to empower states - any of which can, right now, emulate Texas - to enjoy the right to fashion their own remedies consistent with their own views of public policy. Surely he's heard of this thing called "federalism"? Instead, as with insurance regulation, he'll apparently support anything his industry sponsors want even if it undermines federalism. Of course, that's no surprise if you look at his track record.

(Return to Parent Article.)

Class Actions and Coupons

Law.com offers yet another insight into the sweet settlement deals where the targets of class actions pay the victims of their wrongdoing with coupons, yet compensate the class lawyers with cash:

Sacramento County Superior Court Judge David De Alba authorized the settlement of a class action that lawyers argued could be worth as much as $500 million to people who owned Ford Explorers during the 1990s.

In exchange for dropping the lawsuit that alleged rollover problems unfairly diminished the resale value of Explorers, Ford customers could receive a $500 discount coupon toward the purchase of a new SUV or a $300 coupon to buy another Ford vehicle. Consumers had until April 29, 2008 to apply for the coupons.

De Alba awarded the lawyers $25 million in fees and expenses after presiding over a 50-day trial without a jury in 2007. The case settled before the judge reached a verdict.

How has this worked out for the car owners?

A report filed with the court in June showed just 75 coupons have been redeemed for a combined $37,500.

There's something else to remember: If your compensation for something I've done to you is a coupon, valid only for a new financial transaction with me, what am I really losing? A $500 discount would be a relatively small dealer or manufacturer incentive toward the purchase of a new vehicle - had a million consumers used these coupons to purchase new Fords, do you think Ford would be sobbing about how costly this program was? Everybody wins but the consumer.

I have two proposals that could limit this type of collusive, abusive settlement:

• Keep the present system in place, but mandate that the terms of the coupons permit them to be sold and aggregated. So I could go out and buy 100 of these coupons from people who didn't want them, at $100 a pop, and use them to buy myself a $50,000 Ford.

• Pay the plaintiff's class lawyers based not upon the theoretical value of the coupons, but based upon their actual use.

I think a 25% return on the $37,500 in coupons that were actually used would be generous compensation, given the actual value of the coupons the class action lawyers negotiated for its members. Oh sure, they spent a lot of money litigating the case, and claim great surprise that the coupons weren't honored... but then, why not negotiate a backup provision - such as the distribution of any balance of the $500,000,000 supposed value of the settlement to class members who didn't use the coupons?

Another option, tried then reconsidered by a judge:

Earlier this year, for instance, a Los Angeles Superior Court judge ordered that a class action lawyer receive 12,500 $10 gift certificates for winning the discount for the roughly 43,000 customers of clothing retailer Windsor Fashions, which solicited personal information during credit card purchases. The judge later reversed himself and ordered the lawyer paid in cash.

But really, had the lawyer been able to sell those coupons to people who would want and use them, that wouldn't have been such a bad fee, would it?

The Innumerate Michael Kinsley

It should, perhaps, go without saying that you shouldn't take financial advice from a guy who can't do simple math, but in case you somehow glossed past this doozy from Michael Kinsley on healthcare reform:

My list would start with malpractice reform. An achingly balanced CBO report last year cited a study showing that victims of medical negligence are 2 1/2 times more likely to get compensation than people who were not victims. This was an argument against reform: that for every dollar going to victims of malpractice, "only" 40 cents goes to plaintiffs who have no case at all.

Does it need to be explained that his conclusion isn't supported by his claimed data? Nothing in the snippet he presents describes either the frequency of claim by people who are "not victims" or the relative amounts of recovery.

Kinsley could have easily tracked down the study online. It's easier than ever - before I had even finished typing the third word of the title into Google, it was offering to auto-complete the title as a search term. Ten seconds.

Looking at some of the data from the study, the issue seems to be this: The study found that of 1452 malpractice claims, 889 involved both error and injury. Of those claims, 73% of claimaints received compensation. In contrast, by the study's criteria, 515 claims involved injury without medical error at 37 claims involved neither injury nor medical error. Of those claims, 151 (27%) resulted in compensation. 73% is "approximately 2 1/2 times" 27%.

But as the study plainly states:

Our findings point toward two general conclusions. One is that portraits of a malpractice system that is stricken with frivolous litigation are overblown. Although one third of the claims we examined did not involve errors, most of these went unpaid. The costs of defending against them were not trivial. Nevertheless, eliminating the claims that did not involve errors would have decreased the direct system costs by no more than 13 percent (excluding close calls) to 16 percent (including close calls). In other words, disputing and paying for errors account for the lion's share of malpractice costs. A second conclusion is that the malpractice system performs reasonably well in its function of separating claims without merit from those with merit and compensating the latter. In a sense, our findings lend support to this view: three quarters of the litigation outcomes were concordant with the merits of the claim.

That is, Kinsley would have difficulty being more wrong if he tried.

Since Kinsley raised the subject, though, it is fair to ask "Exactly what would this 'malpractice reform' look like?" Would it diligently ferret out all actual claims of malpractice - as the study indicates, "the great majority of patients who sustain a medical injury as a result of negligence do not sue." Apparently not. Even if administrative costs were pared to the bone for such a system, that approach would significantly increase expenditures on medical malpractice claims. What if there were better ways to ferret out claims without merit?

Although one third of the claims we examined did not involve errors, most of these went unpaid. The costs of defending against them were not trivial. Nevertheless, eliminating the claims that did not involve errors would have decreased the direct system costs by no more than 13 percent (excluding close calls) to 16 percent (including close calls). In other words, disputing and paying for errors account for the lion's share of malpractice costs.

So what precise reforms does Kinsley propose that will save us the 13-16% of current malpractice expenditures that go to defending against claims that should not have been filed?

The authors of the article explain why these cases are filed in the first place:

The profile of non-error claims we observed does not square with the notion of opportunistic trial lawyers pursuing questionable lawsuits in circumstances in which their chances of winning are reasonable and prospective returns in the event of a win are high. Rather, our findings underscore how difficult it may be for plaintiffs and their attorneys to discern what has happened before the initiation of a claim and the acquisition of knowledge that comes from the investigations, consultation with experts, and sharing of information that litigation triggers. Previous research has described tort litigation as a process in which information is cumulatively acquired.

Well, we could require the disclosure of the outcome of peer review to patients and their families. (You think doctors howl about malpractice... just try legislating public peer review.)

Having noted the fact that a huge factor in the cost of malpractice litigation lies in trying to penetrate the wall between the patient and information that can lead to proper assessment of malpractice cases, the authors of the study make this curious suggestion:

The combination of defense costs and standard contingency fees charged by plaintiffs' attorneys (35 percent of the indemnity payment) brought the total costs of litigating the claims in our sample to 54 percent of the compensation paid to plaintiffs. The fact that nearly 80 percent of these administrative expenses were absorbed in the resolution of claims that involved harmful errors suggests that moves to combat frivolous litigation will have a limited effect on total costs. Substantial savings depend on reforms that improve the system's efficiency in the handling of reasonable claims for compensation.

The authors' mistake, of course, is in assuming that malpractice reforms are primarily meant to reduce frivolous litigation. It should be patent from the result that they are designed to make it more difficult and enormously more costly to get any malpractice case to trial, to increase risk to the plaintiff's lawyer both by vastly increasing the amount of money it takes to litigate a claim and by forcing a significant expenditure to investigate other claims before they can even be properly reviewed for merit, and to place economic pressure on the plaintiff to settle by dragging out the litigation process and by imposing caps that limit the amount of damages that a severely injured plaintiff can recover.

If we truly wanted to create an efficient system that allowed plaintiffs' lawyers to minimize the number of questionable cases they bring, reduced the cost of litigation, shortened the time it takes to litigate a case, and ensured that people received fair and appropriate damages, a good place to start would be by jettisoning the "reforms" that have been implemented to date that largely benefit the insurance industry and taking a good hard look at other systems. I suspect that malpractice victims would be largely supportive of a two-track system, one of which involves fair, fast administrative review of malpractice claims but with limits on non-economic damages (perhaps even a schedule of damages) and limits on attorney fees similar to worker's comp, and a more traditional tort-based system. Mind you, a number of "small damages" cases that aren't economically viable under the current system (e.g., negligent misdiagnosis of appendicitis resulting in a rupture) might become viable under such a reform, but damage awards for such claims should be small. I'm not convinced that such a system would turn out to be cheaper, but it should turn out to be a lot more fair and a lot more efficient than a pure tort-based system.

In short, the study Kinsley indirectly relies upon suggests that we would get minimal savings from reforms directed at "frivolous" cases, but that the greater sin of the current system is that an even greater number of actual malpractice victims end up with no recovery. That is, if you were to somehow make the authors' wishes come true, and the system were made more accurate, you would end up increasing the cost of the system due to the appropriate grant of compensation to claimants who are wrongly denied recovery.

I don't think Kinsley's a stupid man. But given the magnitude of his errors on this subject, he should perhaps reflect on whether he should limit his writings to subjects he actually understands.

Picking Only Fights You Know You'll Win?

My comments on brinksmanship probably should have been followed by an anecdote.

An experienced trial lawyer heard a younger colleague claim, "I've never lost a trial."

"You know what that means," the older lawyer asked.

"What?"

"It means that you don't try enough cases.

Being a good trial lawyer arguably makes it harder to try cases, because you're more likely to get acceptable offers of settlement before trial. The younger lawyer may well be winning some trials that less skilled lawyers would lose. If you expect to lose a trial, you should be prepared to settle. If your client prefers the bird in hand and instructs you to settle, you may end up settling a case that you would prefer to try. But whatever your skill level, there's that range of cases down the middle where things could arguably go either way - and where the client is looking to you to decide whether to settle. If you always settle those cases you will protect your perfect record, but you forego the opportunity to stretch your skills, and potentially get a more favorable verdict (or mid-trial settlement) for your client.

President Obama is a skilled but cautious lawyer. If he switched careers to trial litigator, I would not be surprised to find that he had a perfect trial record and was winning some "unwinnable" cases. But it's fair to observe that he is exceptionally cautious. It's that caution that drives some of his fiercest critics on the left to frothy anger. They want him to take up their causes now, and fully apply his skills to getting the result they desire (which may in fact be a desirable result) now. But instead he's evaluating whether he can win, and whether he should be expending political capital on that battle. If he decides that the fight isn't worth the price, he's open to compromise or putting things off.

Obama's correct to limit the issues he tackles, to set priorities, and to avoid fights that will damage his ability to advance his agenda. That's good political sense. But I do get the sense that there are some issues where he could prevail if he were willing to push them, yet nonetheless chooses inaction. Yet at the same time I think he needs to trust his political instincts. Were he to tackle a thorny issue and have to be the one who blinks, right-wing and likely also the mainstream media would happily drub him. For now I can see why that's a risk he chooses not to take.