Law: Response to a Comment

February 2, 2008

So I realize that since this is my blog, I can do pretty much whatever the heck I want with a comment (for example, delete it).  That said, after reading a recept comment, I decided to take the low road and reply to it here.

The comment in question was the following:

You’re a selfish, ignorant, greedy little punk.  Your writing flows as well as a septic tank on a cold day, and you can’t spell. Not even a sweatshop like Skadden would hire you. Good luck with your career reviewing document productions as a temp at 40k a year as you struggle to pay off your student loans. Ha ha! Hope you enjoyed the whisky.

I think it would be better to break my response to this one up into parts.  With that in mind, I’m going to quote, and then respond. 

First our commenter asserted:

You’re a selfish, ignorant, greedy little punk.

There are a lot of negative things that one could say about me without much effort (as is true about most people), but I don’t know about these three.  I’m not in a position to comment about me being selfish.  Clearly I don’t think I am or I’d change my behavior.  That said, given that the poster doesn’t know me, it seems silly to call me selfish.  I read through the comment he responded to, and I tried to figure out what led to the selfish…. I guess he feels like I shouldn’t take advantage of free things from firms.  By that logic, me and the vast majority of law students at top law schools are selfish.  Perhaps he was bothered by the fact that I based my attorney interaction score on how little I talked to attorneys.  If this is his issue, I’ll plead guilty becuase I see nothing wrong with this.  Next he called me ignorant.  Again, there was 100% nothing in that post to lead to me being called ignorant (it was a post 100% about my experience one evening, what was there to be ignorant about?)  As for greedy, he may have me there, but only in the sense of “I am going to law school and hope to make a lot of money when I graduate.”  If you use that definition, he is 100% right that me, and a huge number of people going to law school are in fact greedy.  The other possibility is he thought my goal of getting lots of free food from firms was greedy.  Again, if thats the case, I’ll plead guilty as charged.  But since when do we feel people trying to get as many free drinks out of a law firm with hundreds of millions of dollars in revenue is greedy?  Little punk is 100% false as anybody that knows me can attest.  I am certainly not “little” and I’m about as prep as you get.

Perhaps the poster is more bothered by the general tone of my posts.  I am a republican and I don’t see anything wrong with that.  I work hard for my money and I think I should be able to keep a large portion of it.  I also have no tolerance for those that could work, could find employment, and choose not to because they think the job is “below them” or “not worth it.”  Either way, I think it is the poster himself who is showing himself to be ignorant.

Next he asserts:

Your writing flows as well as a septic tank on a cold day, and you can’t spell.

As any of you that read this blog often know, I cannot spell.  I have said that very sentence on this blog many times.  I don’t understand how the blogs spell check works and when I copy from Word the formatting gets messed up.  If the spelling bothers you, I’m sorry, but I have tried to be as open an honest about that as I can.  As for writing flow, the last post was 100% a short summary broken into points.  The idea was clarity not flow.  Often time when I post, I’m ranting, not trying to articulate a court-quality argument.  The goal it to get my views onto the blog for others to read.  I don’t think the writing has ever been so poor that it made it tough to follow my view, so who cares.

Not even a sweatshop like Skadden would hire you.

I’ll post about this one when I know what I’m doing this summer and when I know what I’m doing next summer.  I’m thinking and hoping the poster is wrong.  Based on my school’s placement numbers, it seems like he will be.  I’ll update you more on this later.

Good luck with your career reviewing document productions as a temp at 40k a year as you struggle to pay off your student loans.

Without blindly attacking the poster here, I would bet the poster isn’t making a lot of money.  I don’t have anything to base this on, its just a hunch.  Since I have no intention of becoming a contract lawyer (or temp as some call them) and I intend to work in biglaw which pays more than 40K, I don’t think I’ll have trouble paying off my loans.  Again, this seems like a commenter that is sour grapes telling me that I won’t be able to get a job despite not knowing what my grades will look like. (Note to the fates:  Please don’t screw me for saying I will be able to get a job.  Please let my grades turn out well so I can really drive home the point that this commenter is an ignorant dbag.  Please please please let me succeed academically.  Thanks)

Finally the comment ended with:

Ha ha! Hope you enjoyed the whisky.

Glad a negative post about somebody you haven’t talked to could bring some joy to your life.  And thank you, the whisky was fantastic.

Now, what I think the commentor was reacting to is the fact that I’m commenting/critiquing these firm receptions in general.  After all, we are just law students and law firms are paying huge amounts of money just for the opportunity to have a few short conversations with us.  I agree, the situation is silly.  Despite it being silly, I am lucky enough to be in the position to experience it, and I plan to take advantage of the stupidity to get free food, drinks, and swag.  If you think I’m a bad person for doing so, I would love to hear a well articulated reason why.  We pay a lo of money to go to school and we are taking advantage of this nice perk.  If your pissed that we have these receptions and your school doesn’t, I’m sorry about that but its the way of the world and if you did your research before picking a school you would have known these things exited.  If you just couldn’t get into a school that employers want to hire from badly enough to throw these parties, then I think your complaint is just sour grapes, but if you have a more articulate argument, I’d love to read it in the comments.

Yes I am critiquing (and in many ways complaining) about these receptions.  If the firms put noticable effort into trying to match or bette each other, why shouldn’t I provide my feedback on the event?  After all, I am their target audience, I think my opinion counts.

If you don’t like it, don’t read it, but I’m going to continue to post the reviews of firm events because I think the whole situation is hilarious.

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So my first plan for tonight was to write an article celebrating the end of finals.  Never fear fans, that article is soon to come.  In light of the incredibly interesting article that Kurzman posted earlier, I thought I would take a few minutes to post  response. 

 First of all, I should echo the idea that when I read about the legal industry or lawyers, I tend to get defensive, unfortunately, unlike doctors, it seems my professions flaws are often less defensible. That said, I don’t see any problems with the waythe legal system played out in the case at hand, lets consider some of the element that may be pointed to as “faults”. 

First, no lawyer would take the case.  Ok, so I totally see how the outside looks at this, “She was wronged but those slimy lawyers are only concerned with profit, so they won’t help her.”  Look guys, I understand that we are a part of a profession, and as Danny M. P.C. likes to say “we have a monopoly on the legal system,” so its not that I don’t see that side, I do.  The thing is,when you tell a malpractice lawyer he should take a case like this, what you are really saying is “Look buddy, she deserves help, so take money out of your own poket and give it to her.”  In theory, whoever represents here is going to front their time with no garantee of payment.  Then they are going to pay her filing costs.  Then they are going to pay the other fees related to trial. This is a Malpractice case, if I remember correctly from gym class torts, that means that a medical expert is REQUIRED.  That means a medical expert is going to have to be paid, out of the lawyers pocket.  Lets be really conservative and say an hour in court (he will almost certainly bill an hour minimum in court) plus a few hours to prepare.  Lets say 5 hours total at an extremely conservative $500, thats $2,500, plus another $500 or so in court fees, thats $3000 out of his pocket, assuming he doesn’t have to pay a dime in legal research, staff fees, or anthing else, all with zero return on his time.  Now we go to trial, and it is a complicated trial.  Overall he puts in perhaps 40 hours on the case.  They go to trial, and if he is lucky he wins $50,000.  Assuming a standard 1/3 that gives him about $16,500 minus $3000 or so, so he makes about $13,500.  Not bad for 40 hours work right?  Now lets say she doesn’t win.  He gets nothing.  Lets say that he can win about 50% of these cases, that means that his expected value for a case like hers comes out to less than $90 per hour.  Or, he can take another case for somebody who believes they are hurt, helping them instead, and earn an expected value much higher.  What would you do?  Think of it like this.  You are going to paint a fence.  There are two fences of equal length and height.  One person offers you $40 to paint it. Another offers you $200, which fence would you paint?  Why is it that we can act in our self interest but these lawyers cannot.

2.  Why aren’t we blaming the doctor?  I see two possibilities.  Possibility one, this was a tough surgery for which there are risks and the doctor shouldn’t be held liable.  Fair enough, I can definately respect that.  Surgery is a skill very few people have, we are better off as a society because people have the skill, if they make a mistake that isn’t gross negligence, we aren’t outraged by their conduct.  I can respect that.  Seriously, if thats the policy decision we want to make, I think its great.  BUT lets make it understanding what that means, some patients will have bad things happen and not get compensated.  That appears to be what MAY have happened here.  Not all bad results entitle someone to an award.  It appears to me that there was doctor’s error here, but I don’t know anything about the surgery and even if I did, I wouldn’t understand it.  If you think this woman should get money, then the outrage should be “hey, doc, why haven’t you coughed up the cash, not “hey lawyer, why aren’t you taking the case?”

3.  One way professional responsibility.  It seems to me that this is a case of one person acting in good faith and he other not.  This women is attempted to treat the medical profession as a profession and treat a fellow professional with respect, he is refusing to pay and not picking up the cost of surgeries to fix the problem.  Many lawyers (including the type I hope to be) charge by the hour, I don’t have a problem with that, but I think a lot of the outrage here is the result of the fact that the doctor doesn’t seem to be dealing in good faith.

4.  Mike’s Plan:  I think the plan Mike supports is good. Fix the problem, treat the patient like any other service provider that made a mistake would, and attempt to reduce problems by negotiating in good faith.  This seems lik a case of the medical profession needing to police their own.  Failing that, why are we imposing standards on lawyers we wouldn’t want to live up to ourselves?

5.  Small claims, small skills.  This woman went to a Malpractice lawyer.  CNN likely called a high end malpractice lawyer.  If this woman really wanted to be vidicated, she would perhaps find a way, it just wouldn’t be convenient.  Low desirability work required increased rewards, thats just the way it works.  Some possibilities would including finding a recent graduate of a non-top-tier school thatis looking for some ways to make money and build skills (she would almost certainly have to front the fees herself, but fair is fair), find someone willing to take the case pro bono, or she could agree to some unique fee structure (perhaps a larger contingency fee a flat number amount to the lawyer if he wins, or a promise to pay AT LEAST a certain amount with a contingency fee possibility. )  I don’t know if any of these are used, or even legal, but when your claim is small and difficult, you have to try new paths.  People don’t have a RIGHT to have someone press their claim automatically with no cost or risk to them.  Sometimes the payout just isn’t worth the amount of hours that are needed. I want to build an exact replica of US Cellular field as a swimming pool, but you know what, it just not worth it.  I don’t mean to make light, I mean to say, sometimes the use of people’s services aren’t cost more than it is worth, this appears to be one of those.

Perhaps this is a need for the profession to regulate itself.  Perhps we are so used to a feeling that a harm is entitled to relief regardless of how it happens that we forget bad life sucks.  Perhaps there is some third solution, but I don’t know what it is.  This got really long, I’m going to stop, relax, and then come back to post about my last exam.

Before I get into the main part of this post, I want to share an interesting insight I had about 10 minutes ago:

Just one semester into the rest of my life (Read: Medicine), I have already begun to take on the characteristics of my future role. I was browsing on CNN.com and came across a headline entitled, “Should I Sue My Doctor?” Immediately a feeling of disgust came over me, and I became pretty pissed off about another alarmist article that would seemingly encourage litigation against medical professionals. As explained below, these sentiments were a bit premature, but I still found it interesting than even the good liberal college kid Kurz reacts so strongly to seeing anything about malpractice litigation.

That being said, the article was actually quite interesting–it was a very unique situation. For starters, the patient trying to decide whether or not to pursue a lawsuit is a practicing physician. Secondly, the doctor in question immediately disclosed the problem and have worked with her to right things. If you’ve been following this blog for a while, you would know that a similar program exists here at UIC, and has prevented a lot of lawsuits. Quick summary: Problems are immediately disclosed, patients are financially compensated, and the doctors work with the patients and hospital admins to outline how the problem is going to be fixed.

While performing a hysterectomy, the doctor accidentally nicked the ureter with a cauterizing tool. When she presented with problems a week later, he hypothesized that this is what occurred and they went on from there. She’s had three surgeries since then to fix the problem, and is not done yet.

But here’s the problem–the hospital didn’t actually offer any compensation. And she’s had to miss a whole lot of work. Her family has pushed her to pursue litigation, but being a medical professional herself, she wanted to keep the figure realistic to her damages: $50,000. Sounds good. Except for one major thing.

Because of the relatively small amount she is seeking, no lawyer is really interested in the case. Plus, they say that it’s actually a hard case to litigate: “Plus, he said, it would be a very difficult case to win, because it would be tough to show the injury was the result of the doctor’s negligence.” Given that this was a laproscopic surgery, this error was not exactly some grand fuck-up. And people (and consequently, juries) are starting to understand the whole “doctors are not perfect” concept.

She’ll probably end up settling with the hospital, as both sides of this case seem to be acting rationally. But it provides an interesting look at our current system: Crazy people seek crazy money and win it, while this woman seeking a reasonable compensation is stuck between a rock and a hard place.

It’s obvious why lawyers would say that this “admit and compensate” system won’t work–they won’t get paid! Maybe then they’ll be forced to take on cases over $50k. 🙂

Clegal–I don’t think malpractice litigation should be a future goal. Just a lil FYI.

http://www.cnn.com/2008/HEALTH/01/09/ep.suing.docs/index.html

Med: Quaid Follow-Up

December 4, 2007

It’s been a few weeks since I first discussed the situation regarding the newborn twins of Dennis Quaid. To recap: They were given the wrong dosage of a blood thinner (heparin) that could have killed them. Though details are not being made available, the children are reportedly doing ok.

As I had mentioned, I had previously heard of this problem at the AMSA Conference here at UIC. Heparin and it’s low dosage variant Hep-lock (used to keep IV ports open) are packaged in nearly identical bottles. Despite my attempts, I was not actually able to find a picture of these–but I have seen them and they are very similar. And it now appears that Dennis Quaid wants to do something about it, as he is bringing a lawsuit against Baxter Healthcare Corp., the makers of Heparin.

http://www.cnn.com/2007/SHOWBIZ/Movies/12/04/people.dennisquaid.newborn.ap/index.html

Quoting the CNN article: “[The lawsuit] claims that Baxter Healthcare Corp., based in Deerfield, Illinois, was negligent in packaging different doses of the product in similar vials with blue backgrounds.”

And continues:

“The heparin was “unreasonably dangerous” as it was packaged and sold because both the small and large dosage vials had labels with blue backgrounds when the vials “should have been completely distinguishable (by) size and shape,” the lawsuit argued.”

Because I am entering into a profession that has been generally flooded with lawsuits, I feel like I’m preprogrammed to be against them; however, such is not the case here. This is not an isolated incident; rather, the lapse in judgment that led to these vastly different concentrations of medication receiving similar packaging has resulted in many documented medical errors–in Chicago, Indianapolis, and surely elsewhere.

What’s more, Baxter was perfectly aware that the packaging had caused these problems. Instead of changing the packaging and acknowleging some responsibility, however, they felt content with issuing a letter to health care workers telling them “to carefully read labels on the heparin packages to avoid a mix-up.”

I guess even the deaths of children aren’t enough to overcome the mighty dollar. And hey, recalls are expensive…and drug company execs have 3rd houses to buy.

http://www.cnn.com/2007/SHOWBIZ/Movies/12/04/people.dennisquaid.newborn.ap/index.html

Hey everyone,

I’m not usually the type of person that invests too much time into the lives of celebrities; however, this latest example really caught my eye/ear. I was listening to the radio, and a brief mention was given to the fact that Dennis Quaid’s newborn twins were given a 1000x dosage of “some drug.”

I immediately thought back to the AMSA conference and one of the issues brought up by Dr. Tim MacDonald–the Associate Chief Medical Officer of Safety and Risk Management at UIH. He mentioned a potential problem in the labeling/packaging of the drug Heparin. Heparin is a blood thinner used in adults; however, there is a 1000x smaller dose version called Heplock used to simply keep IVs/ports open in newborns. The bottles look VERY similar, and one can be easily confused with the other.Looking into the Quaid issue, it appears something like this happened. The article that I link below doesn’t specifically mention Heplock (only Heparin), but given the circumstances it seems very likely that this is the case.

http://www.cnn.com/2007/SHOWBIZ/Movies/11/21/quaid.newborns.ap/index.html

I bring this up to make a few points. First, the fact that the bottles for 1000x different doses of the same drug are made to look similar is complete idiocy. But I also want to make the point that medical errors are not always the result of negligence on the part of a doctor.

For example–regarding Heplock–Dr. MacDonald presented this scenario (which is what I believe occurred here in Chicago a few years ago):The problem begins with the person stocking the shelves of the medical supply room. This isn’t the doctor and may not even be a registered nurse–it could just be a random hospital employee. Envision an overworked/unpaid supply room person that takes these similar bottles and accidentally puts them on the same shelf thinking that they’re the same. Then when a doctor writes an order for Heplock, the nurse runs into the room and pulls one quickly down from the shelf–forgetting to check it. And then a doctor–also overworked/tired/stressed, happens to not check the medicine before it’s administered.

Being early in my medical career, I’m not sure if a doctor is “supposed” to check it or if the trust is simply placed on the nursing staff to deliver it correctly. In my mind, a doctor that prescribes a med should see it before it’s given.

So where do you place the blame is this situation? Perhaps the doctor should have performed a final check. And surely the nurse should have actually made sure that she/he grabbed the correct med. And of course hospitals depend on the supply room staff to get the job done quickly and correctly.

This isn’t on one person–it’s a systemic breakdown.And it highlights the need to move everything into the electronic realm. It goes something like this:

a) Doctor puts order for Heplock into the computer.

b) Nurse sees the order, and goes to the supply room to get it (Also, there could could an electronic aspect to the supply room).

c) When the nurse reenters the patient’s room, she must scan in–think barcodes–all meds that she is now carrying. If she has Heparin instead of Heplock, the computer goes crazy, alarms sound, and that medicine never even makes it close to being administered.

How hard could a system like this actually be to set up?

First–congrats to Clegal on the fantasy football W. He didn’t just beat me–he pounded me into the ground. But as he said, I’m near the top of the league, so I’m not gonna fret too much. I digress…

This past weekend, AMSA of UIC (American Medical Student Association) hosted the midwest regional conference. As an exec board member of AMSA (in an invented position but whatever…), I had the opportunity to play a role in helping pull it off and it was a great success. I must admit that before this, I was very skeptical of the usefulness of such a conference; however, it proved to be great for learning some new things and making contacts.

There were many aspects of the conference worth highlighting, but given the nature of this blog I would like to focus on one in particular. I was the liason (speaker greeter/escort) for a talk entitled The Patient Safety Initiative. While I initially thought this might be a bit dry, it quickly became my favorite talk of the weekend.

The speaker was Dr. Tim MacDonald, one of the primary risk managers at the University of Illinois Hospital. Still a practicing physician a few days per week, he had actually gone back to school to earn his law degree–making him a great resource as part of the risk management program. This program primarily deals with the response to the occurence of a medical error–i.e., those things that lead to malpractice suits.

A new idea–originating at the University of Michigan–is one of “Rapid Disclosure and Compensation.” In years past, doctors would generally avoid admitting mistakes to patients unless absolutely necessary (something too obvious to be ignored. And i’m also generalizing because surely there were doctors who wouldn’t do this). Eventually, the mistakes would be uncovered, leading to a massive breakdown of patient/doctor trust and a lawsuit.

The current trend in medicine is instead setup to maintain that level of trust. It has been demonstrated the patients are–for the most part–willing to accept mistakes at the hands of the doctors; however, they demand honesty and admission of error (and SOME financial compensation). The way the program works is this:

When an error is discovered, it is immediately remedied and the patient is informed about the details (What happened, what they’re doing to fix it, what future treatments will be necessary, etc.). All of the hospital bills (current and future) are waived, and a financial settlement is immediately reached (significantly less than those involving lawsuits and also avoiding the extreme cost of litigation itself). All in all, a great deal of money is being saved–and patient/doctor trust is being maintained. UIH hasn’t had a malpractice lawsuit since the program began. Good deal all around–except for the lawyers of course.

One point Dr. MacDonald made was to say that lawyers do not like this system. Lawyers for the plaintiff are paid on commission, and therefore they are losing serious money. Defense lawyers are paid based on how long a trial drags out. By cutting out unnecessary litigation–especially the plethora of unwinnable cases–defense lawyers are also losing money. These same lawyers also like to claim that this new type of system doesn’t work, but all of the data seems to state otherwise.

So take THAT Clegal and you damn ambulance chasers (No, Clegal is not one of those but I’m just making a point). Looks like the future of malpractice in medicine may be changing for the better. Find another profession to fuck over.