Maryland Injury Lawyer Blog

The Baltimore Sun continues to push the idea of medical malpractice cases being placed into some sort of health court. Naturally, as is their practice, the Sun offers no real details and no balance to the editorial besides blaming trial lawyers for everything but the Blizzard of 2010. More problematically, they support a solution without really identifying a problem. What is the evidence of a problem with the judges that are currently handling medical malpractice lawsuits in Maryland? This would seem to be a prerequisite to offering a solution.

The Sun thinks that the governors of this state have nominated judges that cannot understand how to administer medical malpractice lawsuits. Either this is nonsense or we have a gubernatorial malpractice claim against Governors Mandel, Hughes, Schaefer, Glendening, Ehrlich, and O'Malley. I'm going with the nonsense theory myself. It is also silly to suggest that doctors are so vested in this idea. Even if trained malpractice judges are better malpractice judges, I don't think anyone has any idea of whether having malpractice specific judges is going to help plaintiffs or the doctors' lawyers in discovery or at trial.

The Sun goes on to tout the importance of a new "I'm sorry" law so doctors can admit they screwed up. On its face, it sounds okay. There is evidence that patients and their families benefit when doctors disclose medical errors and apologize. But did we do a study as to how these same patients feel when these apologetic doctors admit to their patients what they did but then can make a farce of that admission by denying it publicly later? Will this make a mockery of the victims and the court who sanctions what is going to approach or reach perjury?

The reality is a sympathetic "I'm sorry" when any professional (or even the other driver in a car accident) makes a mistake is going to make it less likely that the victim is going to bring a claim. Doctors should say they are sorry because it helps the patient, themselves and because it is the right thing to do, not because they are given immunity for the apology.

I also don't think the law is going to make much difference. Good, decent doctors (the vast, vast majority) will apologize if they think they make a mistake. Doctors that won't because they fear malpractice probably wouldn't apologize anyway.

The Illinois Supreme Court made big news nationally when it issued its much awaited opinion in Lebron v. Gottlieb Memorial Hospital yesterday, The court overturned in a 4-2 ruling the Illinois five-year-old medical malpractice cap on damages because limiting compensation for injured malpractice victims for pain and suffering violated the Illinois constitution.

Specifically, the court found that the Illinois malpractice cap violated the “separation of powers” clause because imposing a cap imposes on a decision that should be made not by legislatures but by juries.

The underlying lawsuit involves a catastrophic birth injury. Plaintiff’s lawyers alleged the infant Plaintiff’s severe cerebral palsy was caused by the negligence of the hospital, her obstetrician, and a nurse.

The appellate path taken in this case was atypical. Plaintiff sought summary judgment on the issue of whether the cap applied, which the trial court granted before the case was tried. Procedurally, this is odd and the dissenting opinion took exception to the idea of deciding this case without a verdict. I understand the dissent’s thinking on this. But the parties at least are best served taking this path because they both know how the law is going to be applied. This makes the case much easier to settle and settle fairly whichever direction the court takes. After the trial court’s ruling, the Defendants appealed directly to the Illinois Supreme Court.

Essentially, the court found that a cap on damages is a legislative remittitur and the failure to leave the issue of remittitur to the court which decides the issue on a case-by-case basis represents legislative intrusion on the powers vested in the court by the Illinois constitution.

One favorite part of the opinion for me was the way the court responded to the defendant’s argument that other states had damage caps: “That ‘everybody is doing it’ is hardly a litmus test for the constitutionality of the statute.”

Continue reading "Illinois Malpractice Cap Ruled Unconstitutional" »

The Baltimore Sun has an interesting article on the race among lawyers to attract St. Joseph stent lawsuits that includes some quotes from me.

• More on St. Joseph's Stents (Drug Recall Lawyer Blog)
• Original Maryland Injury Lawyer Blog Post

A federal court jury in Baltimore found that an Elkton obstetrician was not liable in a medical malpractice lawsuit. The core of the case is bound to raise moral concerns with at least some jurors. Plaintiff claimed she would have terminated her pregnancy if she had been advised that her child had Down syndrome, claiming the child’s expected future medical care was projected to be as much as $16.4 million.

The plaintiff claimed that her triple screen blood test found that she had a 2.6% chance her daughter would be born with Down syndrome. The case was a classic case of he said/she said. The doctor claimed the patient was told three times of her test results and that she rejected the doctor’s suggestion that she get the more invasive amniocentesis test.

Most likely, the jury believed the doctor’s notes were accurate and made contemporaneously with his discussions with the patient regarding the results. Only the doctor, the Plaintiff, and God know exactly what information was conveyed. But I also wonder the extent to which this federal jury had a problem with the “I would have had an abortion” claim from Plaintiff. Statistically speaking, someone on that jury strongly believed that abortions are immoral.

Continue reading "Defense Verdict in Medical Malpractice Lawsuit in Baltimore" »

St. Joseph Medical Center in Towson, a hospital known and respected in no small measure for its cardiology department, is being accused of conduct that goes well beyond medical malpractice. The allegations are beyond stunning: at least 369 of St. Joseph's heart patients have received coronary stents that were not medically necessary, putting these patients at greater risk of complication or further injury. People with minimal blockages were allegedly given stents and told they had near complete heart blockages.

Stents are used to fight artery blockages. St. Joseph Medical Center is a hospital that puts in a lot of stents. Many patients drive past University of Maryland Hospital and Johns Hopkins Hospital to get stents put in at St. Joseph's. Think about how remarkable an accomplishment this was for St. Joe. Now, one doctor trying to earn a few extra bucks may have tarnished the reputation of a hospital and a lot of great work done by a lot of great doctors, nurses and other health care providers. Obviously, the biggest tragedy is the patients who have been subjected not only to an unnecessary heart procedure, but have likely also been over- medicated, as if their condition had been more serious. But I also feel bad for the good guys at St. Joseph who were not involved in any of this and are now tarnished by it all.

The doctor at the center of this scandal lost his privileges at the hospital last summer without notice to his patients or any comment from hospital officials. There is a lot of information that needs to come out, but this raises the obvious question: if hospital officials knew something was going on, why wait so long to convey this information to patients? If it is important for St. Joseph's to tell patients now, why were patients not told this summer? I don't want to prejudge this, but it is a question that is going to be raised.

Do these 369 patients have malpractice claims? I don't think there is going to be significant injury in most of the cases. But you can certainly expect some valid claims to arise. Moreover, this is a a classic - and rare in the real world - case of a malpractice lawsuit that has a great settlement value than trial value. Because St. Joseph's has to be eager to settle these claims and put this debacle behind them.

• More on St. Joseph's Stents (Drug Recall Lawyer Blog)
• Baltimore Sun Article on Lawyers Fighting for St. Joseph's Stent Lawsuits)

In a 7-0 decision, the Maryland Court of Appeals overturned a Montgomery County trial judge’s ruling in Lockshin v. Semsker that Maryland’s medical malpractice cap applies to all malpractice lawsuits, including those where one of the parties waived health claims arbitration.

But that is not the only blow the opinion gives to Maryland malpractice lawyers and their clients. The court also ruled that because the cap applies, any pro rata reduction – in this case $1 million – applies after the cap has been applied. The practical difference in this ruling for the Plaintiffs in this case is that it reduced their already reduced jury award from $2,172,936 to $1,766,686, a difference of more than $400,000.

The practical impact of this rule? The exact opposite of what the Maryland legislature wants: more malpractice trials. Applying a "cap first" approach will encourage defendants not to settle because if the non-settling defendants believe that the plaintiff has negotiated a good settlement (which is often the case when one party settles and the other does not), remaining defendants are going to be more willing to roll the dice to get the full benefit of plaintiff’s good settlement.

Finally, in a non cap related issue, the court also ruled that if medical bills have been waived, Defendant can seek, via a post trial motion for remitter, to reduce the verdict by the amount of the waived or reduced bills after the verdict.

Continue reading "Maryland Medical Malpractice Cap Opinion: Plaintiffs Lose. Big." »

The Kentucky Injury Lawyer Blog reports that a federal judge in New Jersey held the line on rampant expert fees last week, holding that while neurosurgeons should be able to demand steep prices for their time, $7,000 for two hours is "near to being extortionate." I like when courts spare us the euphemisms and start throwing around words like extortionate.

The expert, a neurosurgeon in Philadelphia, charges $5,000 for the first hour of deposition and $2,000 for every hour thereafter. Please don't extrapolate that over the course of a year. Your head will explode.

I have mixed feelings about this issue. I really think experts should be allowed to largely charge what they want. If they want to price themselves out of the market because they don't like to testify all that much, I'm fine with that. Generally, I hate interference with what someone wants to charge if there is a willing buyer on the other side. Alex Rodriguez is not overpaid. He is worth exactly what the Yankees were willing to pay him. For better (usually) or for worse (sometimes), that is your free market economy.

Continue reading "Expert Fees: Court Ruling in New Jersey" »

Yesterday in Burnside v. Wong, the Maryland Court of Appeals affirmed the Court of Special Appeals and a Baltimore City trial judge’s finding that Baltimore County was the appropriate venue for a medical malpractice lawsuit filed in Baltimore City.

The doctor had two contacts with Baltimore City that Plaintiff’s malpractice lawyer argued constituted doing business in the jurisdiction. The doctor had privileges at Mercy Medical Center in Baltimore City, and he held active-staff part-time privileges and had a faculty appointment at Johns Hopkins Hospital.

The doctor argued he no longer was seeing patients in Baltimore City and that merely having privileges was not enough to constitute doing business. The Court of Appeals agreed, finding that the proper time period for determining whether a defendant carries on a regular business or habitually engages in a vocation in the venue is when the complaint is filed. The court also rejected the idea that the injury occurred in Baltimore City, in spite of the fact that a doctor provided an affidavit that showed to a reasonable degree of medical probability that Plaintiff’s injury more likely than not occurred in Baltimore City. In other words, while the misdiagnosis may have been elsewhere, the manifestation of injury was likely in Baltimore City.

I think this is a bad decision because I thought the idea in the big picture was to defer to Plaintiff’s choice of venue when in doubt. If the Plaintiff appeared to suffer injury in Baltimore City – and an affidavit said she did – that would seem good enough for me, particularly coupled with the fact that the doctor had privileges and appointments in the city. Believe me, if he testifies, you will hear a lot of throwing “professor at Johns Hopkins” around. Geography should matter a little here, too. Should this defendant doctor really be surprised to be amenable to suit in Baltimore City?

While six smart people obviously disagree with me, I’m heartened by the fact that at least Judge Bell agrees. He believes that under the majority’s interpretation, the venue statute loses it rightful voice in determining venue. From the court’s analysis, Judge Bell points out, every misdiagnosis medical malpractice case must be brought where the misdiagnosis occurred. This does not seem to be the intent of the venue statute. He argued that prior case law makes clear that a plaintiff who experiences pain before, during and after a misdiagnosis, suffers an “injury” for venue purposes. (I'm simplifying a bit, you need to read the opinion.)

You can find the opinion here.

Normally, when the Pop Tort writes a post, I'm sitting in the amen chorus. Today's post is a little different.

The post talks about excessive salaries of hospital executives, particularly at hospitals that are struggling financially. In the abstract, I do not mind hospital executives making a great deal of money. Money attracts talent and hospitals are complex enterprises that need quality executive talent. We want the talented people working at hospitals instead of running widget manufacturers.

Are some hospital administrators woefully overpaid? Of course, there are a lot of hospital executives making a great deal of money at struggling hospitals. How do they justify that? Some can't. But the ultimate question is what shape would the hospital be in if not for the quality leadership at the top? If the answer is "millions of dollars worse," then you have someone who ought to be paid very well.

Baseball has a way to measure this statistically for hitters: value over replacement player (VORP). This statistic determines how much a hitter contributes in comparison to a fictitious "replacement player," who is the statistical average for his position. How many more runs do you score with Derek Jeter compared to Joe Average shortstop?

Of course, in real life, it is much more difficult to value talent because there are so many variables at play and it requires so many judgment calls. Accordingly, the only people who can begin to value the worth of a hospital administrator are the Board of Directors of the hospital or whoever is evaluating the top hospital administrators. If they neutrally and objectively believe their top guy is worth millions of dollars to their hospital because of the administrator's unique skills and talents, I say pay the woman (or man).

Gauging the next “move” based solely upon how much the other side has budged- “tit for tat” negotiations with no bearing on one’s own case evaluation is another common mediation mistake. It is understandable that negotiators and mediation participants desire proportionality and reciprocity in adjusting demands and counteroffers. The problem is that many adjusters think that plaintiffs have no ceiling on the amount that they can demand, whereas defendants can never offer anything less than zero. For this reason, arguments that, “We’ve come down by $100,000 so you need to come up by $100,000” often fall on deaf (adjuster or defense lawyer) ears.

Defense lawyers often set up mediations better than personal injury lawyers. The defendant's lawyer will call you and ask for a demand. You decide to be reasonable. So when you show up at the mediation, the range is between reasonable and zero. That is the wrong psychology to settle a case.

The best way to address this problem: if defendant puts you in this game, don't be above the game with your reasonableness. Your opening demand under this dynamic should mirror the defendants’ maximum exposure. Most states now have caps on non-economic damages. Add up your economic damages: past and future medical expenses, past and future lost wages, loss of earning capacity, vocational training and/or rehabilitation. Add that number to the amount allowed under the applicable non-economic damages cap. This should be a good approximation of the maximum exposure on the claim. With any luck you will be right around the amount of the reserve the insurance carrier has set for the claim. This should help in estimating the settlement value of the case on the continuum between maximum value and zero. This will let you calibrate your demands to where you want to end up on a case, not necessarily to match the other side amount for amount.

This tactic only works in a case where it is possible a jury would give such an award. Not likely but "best day possible." If you are demanding the cap in a soft tissue injury claim, you are also sending the wrong message. Similarly, when you demand $5 million in a case where your cap is $2 million, you are sending the same "I'm not exactly sure what I'm doing" message.

The Maryland Court of Appeals republished University of Maryland Medical Systems v. Waldt today. One of our lawyers, John Cord, has created a document comparing the two opinions.

This PDF document highlights the differences between the October 20, 2009 opinion and the November 10, 2009 opinion. However, the document has been created by electronically comparing the two opinions, and some highlighted portions reflect changes in formatting, page location, or the idiosyncrasies of the conversion process, and do not necessarily mean that the exact wording has changed. Still, it helps you cut to the chase of what the differences are between these opinions.

• Analysis of Original Opinion
• Blog Post When CoA Withdrew the Opinion
• Informed Consent in Maryland
• Goldberg v. Boone (no bright-line test or all-inclusive list of items that must be disclosed by a doctor in order to procure informed consent from a patient)

Medical malpractice lawyers, victims’ advocacy groups, doctors (and their lobbyists) and insurance companies have produced a heretofore unprecedented spate of editorials on medical malpractice reform in the last few months. Even I’m bored with it.

But this editorial in Salon is a little different because the message – that medical malpractice tort reform is not the answer – comes from a pediatrician. The doctor methodically and concisely attacks the premises behind the tort reform movement, including the idea that there is a pandemic of frivolous medical malpractice lawsuits:

Instead of a swamp of frivolous lawsuits, what the data shows is a system that functions. Insubstantial claims tend to collapse, while the medical industry usually opts to pay off injured patients instead of going to trial. The doctors and the insurers choose to fight to win when they think they can, and when there is enough money at stake, and usually do win.

Certainly, the fact that it is coming from a doctor does not make it so. But it certainly lends a different authenticity.

This morning I blogged about University of Maryland Medical Systems v. Waldt in one of the longest posts in Maryland Injury Lawyer Blog history. Apparently, in light of my blog post and the criticisms contained in the post, the Maryland Court of Appeals withdrew the opinion. (Okay, maybe it did not happen quite that way. But allow me to pretend.)

What does this mean? I have no idea. The Maryland high court substantively changed its opinion a few years back in Erie v. Heffernan on the question of the impact of insurance companies waiving subrogation in uninsured motorist claims. But the court reaffirmed the deleted portions of the opinion in Heffernan in Maurer v. Pennsylvania National. I'm still perplexed by the thinking on all of that to this day. I'm sure there was a logical reason. But the Maryland Court of Appeals does not share its thinking on these things.

Anyway, the Vegas odds are that this means nothing of great substance. I doubt one of the four judges in the majority is going to flip and join the dissent to make a majority. The changes could just be trivial. But anything is possible and we will have to wait and see.

The Maryland Court of Appeals reached a decision in University of Maryland Medical System v. Waldt, a case that is reverberating among medical malpractice lawyers in Maryland. (Note: In yet another incredible turn, the Maryland high court has - temporarily at least - withdrawn this opinion.) Yet the back story is better than the case. The case was tried by two of the most prolific lawyers in Maryland’s history: Steve Snyder and Billy Murphy. As discussed below, Steve Snyder said he would retire if he lost this case on appeal. (I think he will get a takey-backsie on this one.) At some point in the trial, the Baltimore City judge that tried the case was obligated to give this admonition:

“This is it. Last warning to everybody,” she said. “No finger-pointing, children. No stomping your feet. No screaming. No yelling. No dancing around. No calling names. No throwing sticks and stones. No putting gum in each other’s hair.”

So it got out of control. (More on that later.) But this opinion is important; the underlying trial was an epic and personal war, and Maryland malpractice law is either much more clear or an abyss of confusion, depending upon who you ask. While you take a breath, let’s talk about the facts.

This is the tragic case of a Mount Airy woman who was paralyzed on her left side as the result of an operation to treat a brain aneurysm. Plaintiff underwent a procedure at University of Maryland Hospital to treat an aneurysm which caused bleeding that lead to her injuries, according to the evidence offered by Plaintiff’s attorney at trial.

At trial, Plaintiff called an expert to offer opinions both on the standard of care and on informed consent. The trial judge, Baltimore City Circuit Court Judge Lynn Stewart, excluded the expert’s testimony because the expert devoted more than 20% of his professional activities to activities that directly involve testimony in personal injury claims. (Maryland law requires malpractice experts to spend less than 20% of their time in medical malpractice or other personal injury cases.) Because this was Plaintiff’s only expert, the court directed judgment in favor of the Defendants.

The expert was not just some random guy. He held positions at Massachusetts General Hosptial, Harvard, and John Hopkins. The doctor was also not caught up in the medical malpractice testifying racket: he made less than $50,000 a year. He had not, however, seen patients since 2001 and was no longer licensed to practice medicine in the United States. Interestingly, he said he had a medical license in France, but only to write prescriptions for family members. His professional activities included conducting literature peer reviews, reading journals, observing procedures, and discussing patients with former colleagues. His testimony at trial:

Murphy: Now, you testified that you no longer practice medicine but you handle cases for plaintiffs’ lawyers who are suing others for malpractice?

Expert: Yes.

Murphy: That’s all you basically do now except for read journals and go to an occasional meeting, right?

Expert: Yes.

Murphy: So, you are a professional witness, sir, aren’t you?

Slutkin: Objection, your honor.

Judge: Overruled.

Murphy: You are a professional witness, aren’t you, sir?

Expert: I guess I am.

The Maryland Court of Special Appeals disagreed that the expert should be disqualified, finding that the evidence showed that the expert did not violate the 20% rule. The Maryland Court of Appeals reversed and affirmed the judgment.

(Brief intermission: technically, it is the Court of Special Appeals of Maryland and the Court of Appeals of Maryland. But I think it sounds funny.)

Continue reading "New Maryland Medical Malpractice Opinion" »

This from NPR:

In the ongoing health care overhaul drama, the Obama administration and the health insurance industry have gone from uneasy allies to bitter adversaries.

One result is that health insurers stand to lose a privilege their industry has enjoyed for the past 64 years: They, like Major League Baseball, have been exempt from federal antitrust laws. Congressional Democrats are now pushing to strip the health insurance industry of that exemption.

Things turned ugly earlier this month after the health insurance industry rejected the health care makeover it once supported. President Obama dedicated his most recent weekly address almost entirely to blasting those insurers; he accused them of skimming big profits off ever-escalating premiums.

"They're earning these profits and bonuses while enjoying a privileged exception from our antitrust laws, a matter that Congress is rightfully reviewing," the president said.

I teach insurance law. I consider myself very knowledgeable about most issues pertaining to insurance law. I have no idea why I'm admitting this but I had no idea that health insurers had a federal antitrust law exemption. Did you know this? I don't know how I didn't. It is like Derek Jeter not knowing he can run on a third strike when the catcher drops the ball. Okay. Not really. But you get the idea.

The Georgia Supreme Court recently ruled in Condra v. Atlanta Orthopaedic Group on an interesting issue in medical malpractice cases: can the standard-of-care medical expert be subject to cross examination about what the expert would have done if the doctor had treated the patient?

(If you are not interested in the nuance of the facts, skip the next two paragraphs to cut to the chase.) Plaintiff went to an ortho for back, neck and arm pain. The ortho prescribed a 30-day regimen of the anti-convulsive drug Tegretol, which was followed by another 30-day regimen when the patient failed to improve. During the second regimen, Plaintiff began to experience leg cramps and shortness of breath. Ultimately, she was diagnosed with aplastic anemia, an awful bone marrow disease where the bone marrow does not produce sufficient red blood cells, requiring many a bone marrow transplant. (Marie Curie was thought to have died as a result of aplastic anemia.) Plaintiff’s lawsuit against her doctor, who belongs to a huge Atlanta orthopedic practice, alleged that Tegretol was the wrong drug to prescribe and that the doctor should have monitored Plaintiff’s blood count during the Tegretol therapy. Had he done so, according to Plaintiff, this terrible disease could have been avoided.

The doctors’ experts admitted that there is medical literature to support blood count monitoring during Tegretol therapy as appropriate but weaseled out by arguing that it was not "mandatory or essential" even though it was both experts’ regular practice. They also fought the doctor’s malpractice lawyer’s favorite alternative argument: it would not have made a difference if he had done what the Plaintiff’s experts said should have been done because blood monitoring would not have detected aplastic anemia.

The key point on appeal was whether the defendant’s experts could be cross examined on the fact that it was their practice to do the very thing that they testified was not a breach of the standard of care. So the defendant doctor’s expert says in deposition, “Sure, I do what you say the doctor should have done in this case but the standard of care does not require it.”

The point here is not subtle: Plaintiffs’ malpractice lawyers want the jury to conclude that if the defendant’s experts are taking the same precaution that they claim is above and beyond the standard of care, it underscores what the real standard of care is. Think about it. If a doctor testifies that the defendant's failure to take a precaution conforms with the "acceptable standard of care", the credibility of that doctor’s testimony is severely diminished if the medical expert concedes on cross examination that he/she makes sure to do exactly what the plaintiff contends should have been done.

Of course, no one can argue that the standard of care cannot be established by what the defense expert does. But while the expert's personal practices may not establish the appropriate standard of care, if even the doctors selected by the defendant’s malpractice lawyer are doing what plaintiff says should have been done, it is pretty powerful evidence. This is particularly true in the real world where most doctors’ opinions about standard of care are not based on real data but what the doctor personally believes is – or should be - the standard of care.

Continue reading "Evidence of Expert's Personal Practices: A New Opinion in Georgia" »

The Pop Tort has a blog post underscoring that Texas’ draconian medical malpractice tort reform, while a boon for doctors, has hardly improved medical care in Texas.

There has been a lot of talk about how doctors are flowing into Texas as a result of tort reform. Setting aside the issue that facts do not support this contention – Texas ranks 43rd in doctors per capita - you cannot help but wonder exactly which doctors were motivated to pack their bags and head to Texas in light of malpractice tort reform.

Who would do that? Who were the fence sitter doctors who decided to move to Texas because of tort reform? Let’s take a look at who might.

A doctor who has not been successful enough to have a quality existing practice? Check.

A doctor for whom malpractice rates are particularly an issue because malpractice rates are so high for frequent flyer malpractice doctors? Check.

A doctor who wants to get out of Dodge and get a fresh start because of a shaky disciplinary record? Check.

Sure, this is a dramatic overgeneralization. I’m sure good doctors flock to Texas every year because Texas has warm weather, everything is bigger in Texas, blah, blah, blah. But you really have to wonder who is being enticed to Texas by cheaper medical malpractice premiums.

In response to a call from one doctor for medical malpractice reform in Montana, Thomas C. Bulma, a Missoula lawyer, points out the following facts:

• Only one Montana dentist has been the subject of a lawsuit in Montana in the past 10 years. The dentist prevailed.
• Only one podiatrist was sued. The podiatrist prevailed.
• There have been 24 medical malpractice trials in Montana in the last 10 years. Ten years.
• Plaintiffs in Montana have won 5 medical malpractice cases in the last 10 years.

Let's play along and agree that medical malpractice premiums are going through the roof in Montana. We should place blame for this on medical malpractice lawyers? What exactly is a Montana dentist or podiatrist paying in malpractice premiums given the one lousy claim in the last ten years. Exactly how much of those premiums are "administrative costs" (which include profit)?

An article in Slate raises an interesting question: are doctors overpaid? Unquestionably, the article points out, doctors in the United States make a lot of money relative to doctors in other countries. American doctors make four times what French doctors earn. Four times! Comparatively, the gap between what doctors make and rest of us make is larger in the United States than in other countries.

The numbers are eye popping. In the 1990s, the ratio of the doctor's income compared to the American employee's income was about 5.5. In France, it is 1.9. In Great Britain, it is only 1.4. As I wrote last week in my response to Dr. George Hossfeld's email, the top five highest paying jobs in the United States are all doctors.

Is it a travesty that one profession makes 5.5 times what the rest of us make? I don't think so. I think doctors should make a lot of money because in the big circle of life, it is more important that doctors do their job well than at least 99% of the rest of us, and we need to recruit the best and the brightest. So I'm cool with doctors making a lot of money. What I have a harder time digesting, however, is the suggestion that doctors are not making enough money, so we should turn our civil justice system - that has been in the works for hundreds of years - on its head so doctors can make more money.

The new popular wisdom that gained currency last year is that doctors who apologize for their mistakes are less likely to face a medical malpractice lawsuit than doctors who refuse to come clean. This supports what medical malpractice lawyers have long claimed: patients are often most angered by concealment of the malpractice and the concern that it will happen again to another patient.

KevinMD reports today an even more updated conventional wisdom, citing a study presented in the Journal of General Internal Medicine that says there is likely no correlation between a patient's intent to bring a medical malpractice lawsuit and whether the doctor apologized.

I question the methodology of the study which relied on videos of actors pretending to be doctors with people trying to put themselves in the shoes of malpractice victims. A controlled study like this really takes the emotion out of a case and ignores the powerful dynamics of a relationship between a doctor and a patient (and the abject suffering experienced by most medical malpractice plaintiffs). You can't manufacturer that in a "make believe" study and expect meaningful data that translates to the real world.

The results from the University of Michigan and the University of Illinois contradict this Journal of General Internal Medicine study. At Michigan, one of the first to experiment with full disclosure of malpractice, existing claims and lawsuits dropped to 83 in August 2007 from 262 in August 2001. The number of medical malpractice lawsuits against the University of Illinois has dropped by half in two years after it started its program.

I suspect that apologies do help, but in the end, it does not change the obvious: when you hurt someone - either in the operating room or when you bump into them on the street - apologizing is the right thing to do. This social contract we all signed should really trump the question of whether malpractice lawsuits increase or decrease.