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Attn Lawyers!...... Legal Question: Did I goof??? - Page 2

post #16 of 42
Quote:
Originally Posted by Shikar View Post
J, she had absolutly no side effects/problems from the drug, so why still sue the original doctor who had prescribed a FDA approved medicine for an approprite medical indication?

Regards.

Probably because of the learned intermediary doctrine. Even if she didn't sue you the manufacturer would have likely filed a third-party complaint against the prescribing physician, so you probably would have been in the case one way or another.
post #17 of 42
Quote:
Originally Posted by Shikar View Post
J, she had absolutly no side effects/problems from the drug, so why still sue the original doctor who had prescribed a FDA approved medicine for an approprite medical indication?

Regards.

When exposure to a given substance (including a pharmaceutical) causes an increased risk of future medical problems, a plaintiff can bring a "medical monitoring" claim in order to recover the future costs of care. In some jurisdictions, such a claim requires some proof of a present injury, but in others it does not. So the absence of past or present side effects/problems doesn't necessarily kill the lawsuit right out of the gate.

The original prescribing doctor would be named as a defendant because (1) depending on how discovery pans out, it may be possible to claim that he could have or should have known of risks associated with the medication, and (2) he has insurance.
post #18 of 42
Quote:
Originally Posted by retronotmetro View Post
The original prescribing doctor would be named as a defendant because (1) depending on how discovery pans out, it may be possible to claim that he could have or should have known of risks associated with the medication, and (2) he has insurance.

The patient is informed of risks by a doctor as well as the pharmacy when picking up the drug (little side effect booklet comes with each script these days). Thus the patient is aware of the pros and cons of each medicine and makes an informed and educated decision fully aware of risks of use/non-use. EVERY SINGLE medicine has risks associated with its use.... Why still hold the doctor liable?

Regards.
PS. Thanks for your help, I greatly appreciate understanding the other side of the coin.
post #19 of 42
Quote:
Originally Posted by Shikar View Post
The patient is informed of risks by a doctor as well as the pharmacy when picking up the drug (little side effect booklet comes with each script these days). Thus the patient is aware of the pros and cons of each medicine and makes an informed and educated decision fully aware of risks of use/non-use. EVERY SINGLE medicine has risks associated with its use.... Why still hold the doctor liable?

Regards.
PS. Thanks for your help, I greatly appreciate understanding the other side of the coin.

I'm a defense attorney and I find the above post to be quite specious.

Physicians can be quite full of themselves - if they explained it to the patient in the 5 seconds they spend with the patient and gave them the package insert, the patient must have understood.

Oh, and one more thing, it would probably be legal malpractice for the attorney not to name the physician in the circumstances you described.
post #20 of 42
Quote:
Originally Posted by odoreater View Post
I'm a defense attorney and I find the above post to be quite specious.

Physicians can be quite full of themselves - if they explained it to the patient in the 5 seconds they spend with the patient and gave them the package insert, the patient must have understood.

Oh, and one more thing, it would probably be legal malpractice for the attorney not to name the physician in the circumstances you described.

I guess its not enough to have the doctor explain to the patient about risks, then the pharmacist, then have them sign waivers about procedures, then have the drug come with more literature and have my nurse spend half her time explaining more to patients.
It seems the attorneys care more about the patients health than doctors.....

Regards.
PS. The one more thing comment above... does that mean the original prescribing doctor should have sued correctly and not me? How does legal Malpractice apply there?
PSS. The fun part about all this is my Father, Paternal Grandfather and 6 cousins are lawyers! My Maternal Grandfather and 4 cousins, wife and myself are doctors. Makes for interesting family meetings.
post #21 of 42
Have you ever gotten a prescription? No one is really interested in going through every single possible side effect. That pamphlet thing that comes with is sometimes hard for me to understand and I'm probably well above average with medicalese/legalese/technical jargon. Someone who reads a billboard and calls the number on it is probably not capable of fully understanding all of the potential side effects on his/her own. Also, I don't think anyone in the chain (except the patient, if they know enough, see above) necessarily has all the info to tell whether someone is prescribed two drugs that will interact, especially if they go to more than one pharmacy or doctor. It's basically a huge mess and the doctor gets the blame. If they spent all the time necessary to explain every prescription fully, an appointment would take an extra hour and cost that much more. There's just no solution that's good for anyone except medical malpractice lawyers.
post #22 of 42
Medicare pays about $70 to see a 65+yr old with multiple medical problems (Diabetis, Hypertension, Heart Disease etc.) on usually 10+ meds .........how long should i take to go over each drug and its side effects...then the interactions between drugs etc? BTW, i am one of those very very few doctors that does NOT see Medicare or Medicaid patients for exactly those reasons, and because i dont need the extra buisness.
Do you feel doctors should get paid for answering patient calls at night?
J, the perfect system does not exist, but how can the one we have be improved?

Regards.
post #23 of 42
Quote:
Originally Posted by Shikar View Post

PS. The one more thing comment above... does that mean the original prescribing doctor should have sued correctly and not me? How does legal Malpractice apply there?

It's legal malpractice not to sue a party who might be liable and whose identity was reasonably ascertainable (in my jurisdiction you can also sue John Does). Especially if you blow a statute of limitations or some other deadline.

Quote:
Originally Posted by Shikar View Post
the perfect system does not exist, but how can the one we have be improved?


New Jersey, where I practice, has a pretty good solution. It's called an Affidavit of Merit. Any time you file a lawsuit based on professional malpractice you have to get a member of that profession to sign an affidavit that says that your case has merit. So, if you want to sue a physician for medical malpractice, you have to find another physician who will sign an affidavit where he swears, under oath, that the case has merit and is not frivilous.
post #24 of 42
A "member of that profession"? What stipulations are assigned to this Affidavit of Merit? A Peds resident or, better yet, just-graduated MS4 starting PGY1 is technically an "MD", a member of the profession, but can sign off that a case has merit? This is like those commercials for fat-burning pills that have "Resident Doctor So and So" endorsing some snake oil.
post #25 of 42
Quote:
Originally Posted by thebeatblitz View Post
A "member of that profession"?

What stipulations are assigned to this Affidavit of Merit? A Peds resident or, better yet, just-graduated MS4 starting PGY1 is technically an "MD", a member of the profession, but can sign off that a case has merit? This is like those commercials for fat-burning pills that have "Resident Doctor So and So" endorsing some snake oil.

It's just a threshold requirement. It doesn't necessarily have any evidenciary value, but it at least has the effect of getting rid of some frivilous cases at the outset. Here is the Affidavit of Merit Statute:

Quote:
In any action for damages for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, the plaintiff shall, within sixty (60) days following the date of the filing of the answer to the complaint by the defendant, provide each defendant with an affidavit of an appropriate licensed person(s) that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint fell outside acceptable professional or occupational standards or treatment practices. The Court may grant no more than one additional period, not to exceed sixty (60) days, to file the affidavit pursuant to this section, upon a finding of good cause. The person executing the affidavit shall be licensed in this or any other state; have particular expertise in the general area or specialty involved in the action, as evidenced by board certification or by devotion of the person's practice substantially to the general area or specialty involved in the action for a period of at least five (5) years. The person shall have no financial interest in the outcome of the case under review, but the prohibition shall not exclude the person from being an expert witness in the case.
post #26 of 42
^ thats a great idea
post #27 of 42
Quote:
Originally Posted by Shikar View Post
Medicare pays about $70 to see a 65+yr old with multiple medical problems (Diabetis, Hypertension, Heart Disease etc.) on usually 10+ meds .........how long should i take to go over each drug and its side effects...then the interactions between drugs etc? BTW, i am one of those very very few doctors that does NOT see Medicare or Medicaid patients for exactly those reasons, and because i dont need the extra buisness.
Do you feel doctors should get paid for answering patient calls at night?
J, the perfect system does not exist, but how can the one we have be improved?

Regards.

Actually, I don't think doctors who refuse to see Medicare/Medicaid patients because of reimbursement limits are as rare as you suggest.

Nobody's saying it's a perfect system, but you changed your argument midstream. First you started out arguing that it can't be the doctor's fault, because the doctor spends copious time explaining everything to the patient in detail. Then you argue that doctors can't be blamed for not spending the time to go over everything in detail because they aren't getting reimbursed enough to make that economically viable. Either of those arguments could be true, but not both simultaneously).
post #28 of 42
Quote:
Originally Posted by lawyerdad View Post
Actually, I don't think doctors who refuse to see Medicare/Medicaid patients because of reimbursement limits are as rare as you suggest.

Nobody's saying it's a perfect system, but you changed your argument midstream. First you started out arguing that it can't be the doctor's fault, because the doctor spends copious time explaining everything to the patient in detail. Then you argue that doctors can't be blamed for not spending the time to go over everything in detail because they aren't getting reimbursed enough to make that economically viable. Either of those arguments could be true, but not both simultaneously).

Since twain cannot exist, i dont see medicare/medicaid etc patients. I thus upcharge by time spend discussing with patients, so therefore can go over things in details. Some of my patients do wish me to spend an extra 90-120 minutes with them going over stuff and are comfortable paying a $1000.00-1200.00 copay in addition to what i bill their insurance. Expecting a doctor who is capped by medicare etc to do the same is not feasable for a $10 copay and billed another $70 or so.
Rather than pick on my arguments like any good lawyer, why not offer a solution?

Regards.
post #29 of 42
It seems to me that plaintiff's lawyers just get lists of names and put everyone on the list in their suite. I mean, I have seen cases where an ER doc makes a note in the initial H&P saying he plans to write a referral to Dr. So-and-so and then the patient died before getting to Dr. So-and-so for the referral. Dr. So-and-so still gets served papers as his/her name came across someone's radar. I have been served papers on cases that happened prior to being employed at the organization in question. Now, Dr. So-and-so will get off the suite fairly quickly and easily usually, but it still have to frost their asses and cost them some money.
post #30 of 42
Quote:
Originally Posted by Shikar View Post
Since twain cannot exist, i dont see medicare/medicaid etc patients. I thus upcharge by time spend discussing with patients, so therefore can go over things in details. Some of my patients do wish me to spend an extra 90-120 minutes with them going over stuff and are comfortable paying a $1000.00-1200.00 copay in addition to what i bill their insurance. Expecting a doctor who is capped by medicare etc to do the same is not feasable for a $10 copay and billed another $70 or so.
Rather than pick on my arguments like any good lawyer, why not offer a solution?

Regards.

I'm not smart enough to know the solution. I am smart enough to know when people are arguing out of both sides of their mouths, or consistently changing their position.
I understand you don't see medicare/medicaid patients. You said that in your last post. I was simply pointing out that your posts seem to take inconsistent factual positions, which tends to undermine your credibility in general. That's a shame, since you certainly have more relevant knowledge to bring to a discussion of health care economics than I do.
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