Back in January, I blogged about seven ways to reduce our health care costs without limiting the rights of medical malpractice victims. One of the proposals was to educate patients about whether, according to surgical guidelines readily available through the National Guidelines Clearinghouse, surgery was indicated for someone with their particular condition.
The idea is that some specialists, responding to financial incentives, are wont to recommend surgery in situations even where the professional consensus is that surgery is not necessary. Having patients educate themselves via reading the guidelines might empower them to decline surgery and pursue a less invasive (and more promising) course of treatment than surgery.
Now comes a brand-new study, published in the Journal of the American Medical Association, showing that cardiac surgeons are ignoring evidenced-based guidelines and continuing to perform cardiac stent surgeries on patients who would be more likely to benefit from drug therapies.
In 2007, a massive clinical trial known as COURAGE, published its findings on the relative efficacy of stent surgeries known as Percutaneous Coronary Interventions (PCIs) and drug therapies.
The COURAGE study found that for patients who had never suffered a heart attack, drug therapies (cholesterol-lowering statins, aspirin, blood pressure medications) worked better than the PCI surgery.
In fact, the PCI surgery actually endangered patients who had never before suffered a heart attack because it put them at risk for complications such as stroke, emergency bypass surgery and death while under anesthesia.
The COURAGE study helped establish surgical guidelines that PCI surgery be used only after a patient fails to respond to drug-based therapy.
The JAMA study shows that cardiac surgeons are following the guidelines less than half of the time.
In other words, the majority of patients getting PCI surgery are having surgeries done that are actually contrary to what the research-based guidelines recommend.
Dr. William Borden, the lead author of the COURAGE study, thinks he knows why cardiac surgeons are continuing to order these unnecessary surgeries: surgeons have every financial incentive to order PCI over a course of drug therapy. Drug therapy is cheaper and pharmaceutical companies, not surgeons, profit from pills. As Dr. Borden told a Reuters news reporter, “There are no financial disincentives to avoiding PCI. On the contrary, in a fee-for-service model, physicians are paid for doing procedures.”

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• The folks over at Abnormal Use have a fascinating interview with University of Maine law professor Jennifer Wriggins, who has just published a book, “The Measure of Injury: Race, Gender and Tort Law,” which deals with how plaintiffs of different races and genders are compensated under personal injury law. Consider a wrongful death action involving a child who has no history of earnings.
  Under most wrongful death statutes, the child’s estate is entitled to recover her lost lifetime earnings. Normally, the value of these earnings is determined by economist expert witnesses, who rely on tables of data relating to incomes of adults. Because of the income gap between men and women, the lifetime earnings of a woman will be assumed to be less than a man. And so the a girl victim of a wrongful death may be under-compensated.
  Coincidently, over at The Volokh Conspiracy the other day, Eugene Volokh blogged his criticism of a Texas wrongful death case where the judge excluded evidence that the wrongful death victim was an immigrant with a forged green card. The defendant corporation in that case tried to use the fact that the worker was subject to deportation to argue that the the victim’s lifetime earnings should be discounted. (If deported to his native country, his income would be substantially less than what it was in the United States).
  It seems to me that the Texas courts (for once) made the right call. The phenomenon of disparities in compensation partially based on race and gender is one I hope to get a chance to blog about in the near future.

• There’s so much great legal information on the web now, that often I miss some of the best sources for a topic I’m blogging about. In blogging about the Feres doctrine last week, I missed some of the great posts that Professor Bernabe has done on the topic. For an in-depth treatment of Feres, you can click here.

• The PopTort calls out an anonymous Boston doctor.

• Of course the story that dominated this week’s news was the death of Osama Bin Laden. I just got done talking about all the great information that’s available for free on the web nowadays, including legal information, but not everyone takes advantage of it, such as these people who have no idea who Osama Bin Laden is. If you know how to Twitter, how can you not know how to Google?

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• The Pop Tort calls it for what it is. It’s not “tort reform”; it’s a license to do harm.

• Frank Pasquale with a great post showing how the “elite consensus” that we can’t afford Medicare and Medicaid should not be taken at face value. Although he does not post as regularly as some bloggers, Pasquale is quickly becoming a “must read” blogger for me.

• Abnormal Use replies to my post about a legal blog someday winning a Pulitzer with the eminently sensible proposition that they’ll leave the Pulitzers to other bloggers in favor of becoming “EGOTs” (a winner of an Emmy, a Grammy, an Oscar and a Tony). I have no doubt that Jim Dedman and the rest of the crew over at Abnormal Use will someday find themselves in the illustrious company of Whoopi Goldberg, Liza Minelli and Barbra Streisand. Those guys are hipper than hip over there. If I ever had to square off on Jeopardy against anyone from Abnormal, I’d definitely be skipping any categories having to do with comic books, rock n roll, movies or TV and rolling the dice on Renaissance poetry or The War of the Austrian Succession or somesuch.

• Alarm fatigue – The Boston Globe is running a series on “alarm fatigue,” the phenomenon in which hospital personnel become so conditioned to warning alarms going off that they tune them out and/or ignore them. Sometimes, though, the alarms are real and patients die as a result.

• Cert petitions to watch – The Supreme Court may hear a case in which an Air Force officer was killed as a result of gross medical malpractice in a military hospital. The Air Force staff sergeant’s widow sued but found her legal claims barred by the so-called Feres doctrine, which holds that the military is not liable for injuries caused to service members through negligence. The reasoning behind Feres is that the federal government has to consent to being sued and the Federal Tort Claims Act (which allows some lawsuits against the federal government) does not extend to negligence claims brought by service members.
  In a 1987 case, Justice Scalia said that Feres was wrongly decided. The family of the late Air Force Staff Sergeant hopes that holding military hospitals liable for their medical malpractice will improve the quality of care in military hospitals.

• Massachusetts escalators not inspected – In the wake of the gruesome death of a child on an escalator at the Auburn Mall, The Boston Globe investigated and found that seventy-five percent of Massachusetts mall escalators do not have current safety inspections. Yet more proof that trial lawyers do a better job of protecting us than government regulators.

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As Professor Pasquale notes over at the Concurring Opinions blog, the award of a Pulitzer prize to the ProPublica website for its series of stories on Wall Street corruption marked a historical first: the first time the Pulitzer committee ever awarded a Pulitzer for stories that never appeared in print. The ProPublica series, “The Wall Street Money Machine” ran exclusively on ProPublica’s website. Even if you had wanted to, you couldn’t have bought a copy of the ProPublica articles at your local newsstand.
The ProPublica Pulitzer (say that ten times fast) made me realize that someday a legal blog will win a Pulitzer for journalism. Probably not next year, probably not this decade, but sometime in our lifetimes I think there’s a good chance that a legal blogger will win a Pulitzer for his or her legal reportage.
It’s sort of a fun exercise to imagine what that blogger will be like. Legal bloggers tend to fall into three camps: there are the practicing lawyers (e.g., New York attorneys Eric Turkewitz and Scott Greenfield), the legal academics (e.g., Bernabe, Althouse, Volokh), and the professional news media (e.g., The Wall Street Journal‘s Law Blog, Gawker Media’s Above the Law).
What category of legal blogger is the likeliest to win legal blogging’s first Pulitzer? Obviously, the professional media outlets like WSJ’s Law Blog and Above the Law have the most resources. And those resources are important to doing the kind of investigative digging that one could see earning a legal blogger a Pulitzer.
One of the most important resources that the bloggers at professional media sites have is time. As Eric Turkewitz pointed out in his most recent post, it’s hard to find time to blog, “when you also have to do work for actual clients.” But I see practicing attorneys who blog as having one major Pulitzer advantage over the professional news reporters: we’re a lot closer to the ground, we’re the first to pick up on legal trends, the first to learn of new species of courtroom injustices. For example, we’ve all read about the foreclosure mills grinding out foreclosures based on sham affidavits generated by mortgage company “robosigners.” Who were the first to learn of these foreclosure problems? Practicing real estate lawyers. You could imagine a (busy) but informed foreclosure lawyer blogging the phenomenon with a perspective that only a lawyer who handled dozens of these cases would have. (Unfortunately, I haven’t come across any such blog and Rolling Stone‘s Matt Taibbi scooped the lawyers on a day-in-the-life of foreclosure practice).
Legal academics also have a chance at bagging legal blogging’s first Pulitzer. For example, The Volokh Conspiracy‘s Randy Barnett has formulated an argument against the constitutionality of the Affordable Care Act that has gained a lot of attention, including this recent Boston Globe profile of him. His argument has been set out in a series of blog posts.
Barnett’s constitutional theorizing is the sort of esoteric musings that would never get published in a traditional newspaper’s op-ed page but that can find a receptive and influential audience in the legal blogosphere. I don’t agree with Barnett’s conclusions and don’t think his work will convince the Supreme Court to strike down President Obama’s Affordable Care Act, but if someday some Barnett-like law professor managed, through a series of blog posts, to formulate a novel argument that persuaded the Supreme Court to invalidate a major piece of legislation, then surely such a blogger would be in the running for a Pulitzer that year.
Someday, somewhere, some legal blogger is going to win a Pulitzer. I look forward to reading the stories.

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We’ve all heard the old adage, “Justice is what the judge ate for breakfast.”
The maxim is actually attributed to a famous jurist – Jerome Frank – but I’ve always tended to write it off as overly cynical. Judges, at least here in Massachusetts, are among the most competent and conscientious of public servants. By and large, they take other people’s problems, other people’s dilemmas and handle them with as much care as they would their own.
But some new research is suggesting that there may be a lot more truth to that old saying than we may be comfortable acknowledging. (H/t Andrew Sullivan). According to a recent article published by a couple of Israeli psychology professors, judges deciding whether to grant inmates parole start off the morning (when presumably they have just had their breakfast) very generously: they grant parole to approximately two-thirds of the inmates to come before them. As lunchtime approaches, however, the judges grant virtually no inmates parole.
When the judges return to the bench after lunch, they start out again by granting parole to two-thirds of the inmates they see. And the numbers decline from there, as the judges’ stomachs empty.
The graph of this phenomenon (below) is astonishing.
Was it really the judges’ stomachs that were driving decisions? The study’s co-authors, Shai Danzinger and Jonathan Levav, managed to rule out a number of alternative hypotheses. The same pattern applied regardless of the judges’ personal philosophies or the racial and ethnic makeup of the prisoners before him. Nor was it the case that the judges had some sort of unconscious “quota” of the number of prisoners to whom they would grant parole, and once that number was up, they denied parole; some careful analysis disproved this possibility.
The only readily apparent remaining theory is that judges were less inclined to leniency as their stomachs began to growl.
And it’s not just the judges who are human, all too human. A couple of weeks ago, David Brooks wrote about research suggesting that people given bitter tasting drinks were more likely to judge moral transgressions harshly than people given sugary drinks. (H/t Althouse). As Brooks pointed out, one upshot of this research is that perhaps criminal defense lawyers should strive to make sure that Coca-Cola gets served in the jury room.
So should we be doing anything to combat the effects of food and drink on our powers of justice dispensation? Well, most judges already do something that might mitigate the effects of their appetites on their decision making: they tend to take their rulings “under advisement” and issue them at a later date, after an opportunity for further consideration. Judges making snap decisions, the way Israeli judges apparently do with potential parolees, is relatively rare outside of a trial, where judgments necessarily have to be made on the fly. Of course, if this “hunger effect” is so pervasive, it might just wind up shifting the disposition of a case to a time when a judge is even hungrier.
Another thing we might want to consider is letting judges and jurors snack in open court. In recent years, we’ve seen a lot of judges allow jurors to do things that a generation ago were frowned upon – such as letting jurors pose questions of witnesses for clarification purposes and other innovations.
But jurors are not allowed to snack in any courtroom that I know of. Partly this is a matter of decorum: when a defendant’s life is on the line, or a child’s future medical expenses are at stake, we want jurors to take their job seriously, and it does not really seem to comport with that notion to have them popping Cheez-Its instead of listening intently to trial.
Maybe we should experiment with this though. And make sure our judges have personal chefs as well as law clerks.

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• New York state is going to eliminate parents’ right to sue doctors who injure their children. Professor Bernabe has the grotesque story here.

• The PopTort reports on a new Health Affairs study showing that medical errors are ten times more frequent than we thought and occur in one-third of hospital admissions.

• Massachusetts Lawyers Weekly runs a front-page story on a recent victory of mine.

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• Over at Torts blog, Professor Bernabe has a great post on Snyder v. Phelps, the Supreme Court case decided this week that said the funeral protests of the Westboro Baptist Church are protected by the First Amendment. What does the First Amendment and constitutional law jurisprudence have to do with torts?
  Well, lots, as Professor Bernabe points out. This case arose after the father of Lance Cpl. Matthew Snyder filed a lawsuit against the Westboro Baptist Church for money damages. The basis of that lawsuit was a tort action – intentional infliction of emotional distress. Torts isn’t all personal injury, you know.

• AbnormalUse has a great and easily comprehensible review of last week’s Supreme Court preemption opinions. AbnormalUse manages to square the circle by reconciling Williamson v. Mazda and Geier v. Honda. If Gallivan, White & Boyd made up the Supreme Court, we’d probably see an even stronger pro-defense bias on the Court but the Court’s preemption jurisprudence would be a lot more lucid.

• Eric Turkewitz demolishing New York’s proposal to cap noneconomic damages in medical malpractice cases.

• Walter Olson reviewing me reviewing him. (Is that meta enough for you?).

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A little over a month ago, I blogged about the honor of being included in the ABA’s Blawg 100 – 100 law blogs hand-picked by the editors of the Journal of the American Bar Association as their favorites.
This month, after the close of voting by members of the public, the ABA Journal handed out special awards based on voting by readers. I wanted to congratulate Abnormal Use for winning in “Torts.” I enjoy Abnormal Use’s substantive posts on product liability law, and I relish their lighter fare – from their interview with Phil Morris (aka “Jackie Chiles” of Seinfeld fame), to the pop art aesthetics of their favorite legally-themed comic book covers.
I also wanted to thank Eric Turkewitz. In the first and second Blawg 100 awards, the editors of the ABA Journal neglected personal injury lawyers and Eric’s on-line campaigning got the ABA Journal to pay attention to the great personal injury law blogs out there.
While it’s inevitable that in a subjective contest like this, some deserving blogs will be omitted, I don’t envy the work that the editors of the ABA Journal have to do in reading thousands of blogs and agreeing upon 100.
So thanks to Eric and the ABA Journal and congratulations to Abnormal Use. And let’s all keep on blogging for the Fifth Annual Blawg 100!

You know how some days something unexpected happens that makes your day? Today was one of those days. I woke up to discover that this blog has been selected by the editors of American Bar Association Journal as one the Top 100 Law Blogs in all the land.
It’s a great honor to me. The ABA Journal is the publication of the American Bar Association and has a monthly readership of about half of the nation’s 1.1 million lawyers. This blog was selected as one of the Top 100 from more than 3,000 law blogs.
The ABA Journal will also be awarding “best of” honors in each of the twelve fields represented by the Top 100 blogs. You can vote for us in our category – “Torts” by clicking here and registering. But honestly, I could care less about winning that. I’m satisfied with the distinction of being chosen one of the Top 100 in my first full year of blogging.
PS – I have made a solemn vow to Eric Turkewitz to revamp this blog’s design in 2011.

• A belated congratulations to Eric Turkewitz on his one thousandth post. This is my 126th post this year. Eric basically doubles my annual output. On top of that, he trains for marathons, runs good times in them, and spends quality time with the kids. Oh, I nearly forgot – on top of that he runs a top-notch personal injury practice. If Eric ever teaches a class on time management, I’ll be in the front row.

• Professor Bernabe eviscerates Professor Mello’s case for medical malpractice tort reform here.

• You can read an interview with Professor Bernabe here. I just added “Class Action” to my Netflix queue.

• A picture’s worth a thousand words and the Pop Tort’s picture of a hair stylist wearing a gas mask while applying a hair product containing formaldehyde speaks volumes.

• Bedbug lawsuits: people suing their landlords for bedbugs.