Trial Lawyers Inc. vs. Patient Care

 The growing trend of lawyers having more impact on the practice of medicine than doctors is disheartening and dangerous.

As a practicing orthopedic surgeon for over 31 years who has performed thousands of intricate and complex surgeries—including knee and elbow reconstructions, total knee and hip replacements, and shoulder reconstructions—I have developed a level of professional judgment based on my education, extensive and continuing training, and vast experience that places me in an exceptional position to determine how best to care for each of my patients.  My ability to provide the highest standard of medical care should not be overridden by a group of plaintiffs’ lawyers seeking to cash in on junk science. Yet that is exactly what is at stake in a case that is of utmost importance to me and my fellow orthopedic surgeons who rely on the Bair Hugger patient warming system almost every time we step into the operating room.

The Bair Hugger is a special blanket that is placed over the patient’s chest and arms. A heating unit draws in air through a filter, at which point a blower pushes the warmed air through a hose into the perforated blanket and gently distributes the warmed air over the patient’s upper body, helping to regulate body temperature. The Bair Hugger has been used in more than 300 million surgeries and is currently used in over 50,000 surgeries every day, making it the most widely used system of its kind. The FDA reminded doctors as recently as 2017 that forced-air warming systems such as the Bair Hugger have been demonstrated to result in less bleeding, faster recovery times, and decreased risk of infection for patients.

A friend and long-time patient recently told me that my ability to use this invaluable device is being threatened by a lawsuit suit brought by none other than the inventor of the Bair Hugger, who now claims his invention causes infections.

Why would the inventor turn around and claim his invention endangers patients? It turns out that Dr. Scott Augustine, who invented the blanket, pled guilty to Medicare Fraud and had to give up his rights to the Bair Hugger. He then invented a competing device, only to find that the healthcare industry was perfectly satisfied with his original invention and had no plans to switch.

Dr. Augustine responded by funding research studies – which one of his authors characterized as marketing rather than research – to discredit the Bear Hugger, and then hired a plaintiffs’ firm to promote litigation against the current owners.

At trial, the plaintiff’s three general-causation experts, none of whom had studied the Bair Hugger, offered made-for-litigation opinions based primarily not on experience or testimony from doctors like me who use the blanket, but instead on computer modeling that raised the hypothetical possibility of adverse effects. The trial judge wasn’t swayed. She ruled that the experts’ testimony was wholly unreliable and put an end to the lawsuit. Unfortunately, the plaintiffs’ lawyers didn’t give up so easily. They appealed to the Eighth Circuit, which despite agreeing with the lower court’s findings that the ‘experts’ opinions were rife with “flaws, weaknesses, and gaps,” reversed the lower court, holding that the expert’s junk science was not “so fundamentally unsupported” that it couldn’t offer some assistance to a jury.

Let that sink in. Every medical professional who has used or studied the Bair Hugger has found that it prevents infections and benefits patient recovery, but a panel of three judges decided that severely flawed testimony by so-called experts who had not even studied the Bair Hugger should have been admitted. This is the point where we doctors scratch our heads, because the overwhelming consensus among healthcare providers is that devices like the Bair Hugger are of significant benefit to patients, and there is no reliable evidence linking them to infections.

I have used the Bair Hugger thousands of times over 31 years and can attest from personal experience that keeping patients warm with the Bair Hugger results in decreased infection rates, faster recovery in the recovery room and at home, and more energy for healing. Those are medical facts based on real-world experience, not computer model hypotheticals.

This case is not only about the Bair Hugger. It’s about the ability of lawyers and their paid experts with no real experience and made-up hypotheticals to determine how I care for my patients.  That is simply not right or just. In fact, it is dangerous to the health and well-being of surgical patients.

There is one chance to fix this mess. A petition was filed in the United States Supreme Court asking the justices to review this case and keep the lawyers and their junk science out of our operating rooms. We doctors are busy enough caring for our patients, which includes a significant amount of time studying the latest innovations, techniques, and advances in healthcare. We shouldn’t have to search court dockets for lawsuits that might impair our ability to practice medicine. It takes four justices to vote in favor of accepting a case. This case should get the attention and votes of all nine. Then I can stay out of the courtroom, confident I won’t have a lawyer second-guessing me in the operating room.

Dr. David Higgins is an orthopedic surgeon in Olney, Maryland and an active member of the sports medicine community at every level including caring for collegiate and Olympic athletes. He is also a Commander in the U.S. Navy Reserve and a former Chief of Sports Medicine for the United States Navy.

https://www.realclearhealth.com/articles/2022/04/27/trial_lawyers_inc_vs_patient_care_111334.html