Injuryboard Commentary - medical malpractice

Straight Talk on Tort Reform from Texas

Bret Hanna — Mon, 23 Nov 2009 23:20:37 GMT

Texas passed sweeping tort reform legislation in 2003 that, to a great extent, eliminated medical malpractice cases in the Lone Star State. Jennifer Bard is the Alvin R. Allison Professor of Law and director of the Health Law Program at Texas Tech University School of Law and an adjunct associate professor in the Department of Psychiatry, Texas Tech University School of Medicine, and she incorporates the Texas experience with tort reform into her analysis which concludes that such measures do not reduce health care costs. Here is her piece which appeared Saturday in the Houston Chronicle:

It's not as rare as you think for President Barack Obama and Gov. Sarah Palin to be in complete agreement on an issue of national importance.

In August, she wrote on her Facebook page that “we cannot have health care reform without litigation reform.” Speaking to the American Association of family physicians a few weeks later, President Obama said, “I have talked to enough doctors to know that defensive medicine may be contributing to unnecessary costs. ... So I am proposing that we move forward on a range of ideas about how to put patient safety first and let doctors focus on practicing medicine.” Both of them are wrong. There is no evidence to suggest that limiting the rights of individuals to bring lawsuits will either lower the cost of health care or increase its quality. In fact, were this true, Texas would have the cheapest and best health care in the nation. The provisions of the tort reform legislation passed in 2003 have essentially eliminated medical malpractice suits. Indeed, things are so bad the lawyers for the insurance companies are complaining about the loss of business.

The only evidence we have that defensive medicine, defined as doing extra tests or surgery based on fear of litigation, drives up costs is from the least reliable source possible — the doctors themselves. Doctors' objections to law suits aren't financial — they are philosophical. Doctors are on the whole good people who devote their lives to helping others. Yet somewhere in their training they acquire the idea that this puts them beyond the constraints and hassles faced by every other professional. Lawsuits are time-consuming and embarrassing. They require explaining one's actions to a group of nondoctors, something doctors feel inappropriate. What doctors want isn't reform, it is an exemption. And that's just not how we do things in the United States.

As in all other cases involving a professional, every medical malpractice case depends on another physician's testimony that the offending doctor caused the patient's harm by acting below the standard of a reasonable physician in similar circumstances. To say that a jury isn't qualified to choose the testimony of one expert witness over another in a medical malpractice case is to say they shouldn't be allowed to do so in cases involving exploding tires because they are not automobile engineers. Unless Obama and Palin are interested in trading in our legal system for one with less citizen input — say one more like China's — then not only isn't litigation reform a necessary part of health care reform, it is no part of health care reform.

But don't throw out the baby with the bath water. Perhaps doctors are practicing defensive medicine, but that doesn't mean litigation reform will change their habits. First, it is hard to attribute overtesting to fear of litigation when the current payment system financially rewards doctors and hospitals for the number of tests they order and procedures they run, rather than on the time they spend talking to the patient to find out what's wrong. Second, it is entirely possible that those interested in selling them malpractice insurance have greatly inflated the risk. After all, given the relative rareness with which medical malpractice suits are brought, fear of litigation should no more be motivating a doctor's decisions than fear of alien abduction.

No one has ever suggested that civil litigation can directly reduce medical error. Reducing infection rates by adopting uniform protocols for hand-washing and instrument sterilization is not the same as pressuring a company to withdraw a defective product from the market. But our system of civil justice, as outlined in the United States Constitution, is not to blame for health costs or medical malpractice. Health reform can take place without litigation reform — both systems may be broken but they are not dependent on each other.

So perhaps if Obama and Palin really want to lower the cost of health care and improve its quality, they should be listening to economists and safety experts rather than either doctors or lawyers.

This analysis is spot on and from someone who does not appear to have "skin the game." Yes she is a lawyer, but not one that makes her living representing those injured by medical malpractice or working for the insurance companies that hire lawyers to defend doctors when claims are pursued against them for malpractice. We should consider her analysis in the objective light in which it is presented.

Originally posted at InjuryBoard by Bret Hanna

New York State Bar Takes Stand Against Tort Reform

Bret Hanna — Sun, 15 Nov 2009 14:33:10 GMT

The New York State Bar Association took a strong stand against tort reform last Friday. President Michael Getnick issued a statement calling on the U.S. Senate to reject calls for caps on pain and suffering damages in medical malpractice cases as part of health care reform. Here is the press release:

ALBANY, NY (11/13/2009)(readMedia)-- New York State Bar Association President Michael E. Getnick (Getnick Livingston Atkinson & Priore, LLP and of counsel to Getnick & Getnick of New York City), in a letter today, called on the U.S. Senate to reject any proposals that would discriminate against medical malpractice victims while also jeopardizing public safety by capping the amount of compensation that victims could receive for pain and suffering. Such proposals have been raised in the debate over national health care reform legislation.

In his letter to U.S. Senators Charles Schumer and Kristin Gillibrand, President Getnick restated the State Bar's long-held position that the authority to change medical liability laws should rest with the states and not the federal government.

"As Senate activity on this topic continues, I want to reiterate our long standing objections to those tort and medical malpractice reform proposals that have resurfaced as part of the current debate," wrote Getnick. "We object to legislation to cap pain and suffering compensation for victims of medical malpractice. Such caps would unjustly discriminate against classes of accident victims who suffer devastating physical and psychological losses.

"For over 200 years the authority to promulgate medical liability laws has rested with the states, which are the repository of experience and expertise in these matters," Getnick noted in the letter. "I am pleased that the House, in passing Bill 3962, The Affordable Health Care for America Act, refrained from including provisions advocated by some members that would have resulted in federal tort laws encroaching upon the authority of the states."

Getnick noted that legislation recently passed by the House of Representatives would provide for incentive payments to states that adopt alternative medical liability laws without imposing caps on damages and other unacceptable measures. According to Getnick, providing such incentive payments to states is an appropriate alternative to proposals that would impair the ability of victims to seek remedy in the justice system.

"In assessing the current tort system, it is at least as important to consider the victims of malpractice in comparison to those who cause them personal injury," he said. "We have seen in the past that the attack of tort reformers is a movement that favors cost savings over quality and that emphasizes the corporate bottom line over safety of the public.

"As the health care debate progresses with you and your colleagues in the Senate we strongly urge Congress to focus on health care problems and to ensure that the individual victims of medical malpractice are not placed in a secondary position as compared to those who have created the very victims from which they seek protection in the name of tort reform," Getnick concluded.

A copy of the letter can be found here. This very public support for the civil justice system and the rights of those injured by medical malpractice should be applauded and endorsed by Bar Associations across the country. In addition, all citizens interested in preserving their rights should contact their senators and convey the same message.

Originally posted at InjuryBoard by Bret Hanna

Protect Yourself From Bad Doctors

Ed Normand — Sat, 14 Nov 2009 17:03:00 GMT

Did you know...

While the new health care bill is being debated in Washington, there is something individuals can do right now to ensure that they are receiving the best possible care. Most of the doctor malpractice in the country is committed repeatedly by just a small percentage of physicians. The Florida Department of Health publishes public profiles for every licensed medical doctor, osteopathic doctor, chiropractor, podiatrist, and advanced registered nurse practitioner practicing in the state. Each profile contains self-reported information about the medical practitioner that may help in selecting a doctor, or finding out more about the health professional that is currently treating you. The website also lists whether the practitioner carries medical malpractice insurance, and whether they have been involved in any medical malpractice litigation. For the website, go to: Medical Malpractice .

Originally posted at InjuryBoard by Ed Normand

Woman's Experience at Hospital Exemplifies Problems with Mistaken Identity and Wrong-Site Surgeries

David Mittleman — Fri, 13 Nov 2009 10:12:47 GMT

When Kerry Higuera started bleeding three months into her pregnancy, she instantly rushed to the hospital. Fearful that she was miscarrying, she knew that seeing her doctor would most likely give her the best chance to save her pregnancy. Unfortunately, that decision ultimately changed her life for the worse.

Upon arriving at Banner Thunderbird Medical Center in Glendale, Arizona in February 2008, a nurse lead Higuera to a room and was instructed to wait for a doctor. However, just a few minutes later, another nurse poked her head into the room and told Kerry that the doctor wanted her to undergo a CT scan of her abdomen. Kerry questioned the nurse, but followed along anyway, confident that her doctor knew the correct procedures to perform.

After the CT scan, the nurse led Kerry back into a waiting room. Soon, the emergency room physician, two radiologists, and a representative from the hospital’s human resources came to speak with her. With such large crowd, Kerry was positive that it was bad news that she had miscarried. In fact, it was much worse news. According to the group of doctors, there were two Kerrys in the hospital that night: Higuera and another, younger woman named Kerry who needed the CT scan. Immediately, the hospital staffers offered to purchase Kerry Higuera flowers and also offered her coupons for free meals in the hospital cafeteria.

No large studies have been done on the effects of CT scans on fetuses. However, experts say that a fetus exposed to radiation can, in some cases, develop physical and mental growth problems. Kerry is being represented by legal counsel in the matter and appears to be moving toward litigation against the hospital, according to a CNN report. Her child, Nathan, is now 15 months old and shows signs of delayed growth. Kerry feels guilty for going to the emergency room that night in February 2008. However, her story is not unfamiliar: patients trust doctors and other hospital staff to be informed and aware.

Indeed, the five wrong-site surgeries at Rhode Island Hospital exemplify the fact that it isn’t uncommon for a hospital patient to fall victim to hospital errors. However, according to Jim Conway, the senior vice president of the Institute for Healthcare Improvement, there are some steps you can follow to avoid falling victim to wrong-site surgery or mistaken identity blunders. For example:

1. Say: "My name is Mary Smith, my date of birth is October 21, 1965, and I'm here for an appendectomy."

You might feel like an idiot, but say this to every doctor, nurse, and technician who takes care of you.

2. Say: "Please check my ID bracelet."

Hospital staff is supposed to confirm your identity in at least two ways, according to Nancy Foster, vice president for quality and patient safety policy at the American Hospital Association. One of those ways is to check your ID, or scan it if it has a bar code. Another way is to ask you for your name and date of birth.

Of course, you should check your bracelet to make sure the information on it is correct.

3. Say: "Please look in my chart and tell me what procedure I'm having."

If a nurse states that you're having an appendectomy and she's right, that's not enough, because that nurse won't necessarily be there with you in the operating room.

"Make sure the nurse is looking at your chart when she tells you what procedure or test you're having," says Ilene Corina, president of PULSE, New York, a grass-roots patient safety organization.

4. Say: "I want to mark up my surgical site with the surgeon present."

Hospitals these days often hand patients a pen and ask them to mark where they're going to have surgery. Corina says you should do it in front of the surgeon who will be with you in the operating room, and not just in front of the person who hands you the pen.

"If you mark it and the surgeon doesn't know about the marking, what's the point of marking it?" Corina asks.

5. Be impolite.

Foster, the executive at the hospital association, gives this example.

"If the nurse comes in and says, 'Are you Mary Jones?' and you're really Miriam Jones, you might just nod your head and say yes because you're too polite to correct her," Foster says. "Don't be polite."

Higuera now wishes she'd been impolite and followed her instincts.

Originally posted at InjuryBoard by David Mittleman

Tort Reform Myth Debunked - Damages Caps do not Lower Malpractice Insurance Premiums

Bret Hanna — Thu, 12 Nov 2009 16:49:08 GMT

We've all heard the claims. Jackpot payouts in medical malpractice cases have caused malpractice insurance premiums to go so high that doctors are leaving certain specialties or leaving the profession altogether. To combat this, tort-reformers everywhere call for caps on non-economic damages as a magic bullet for fixing this "problem." Utah is no different.

The Utah Medical Insurance Association, or UMIA, bills itself as the "premier non-profit professional liability insurance in the Intermountain West." The UMIA website offers the following description of the company:

UMIA is a physician owned and directed medical liability insurance company. Practicing physicians are its foundation and strength. As UMIA enters its 28th year of service of the physicians of the Intermountain area, the vision of the future includes a dedication to:

Maximizing the value of the insured’s premium dollar

Reducing patient injury by improving patient care

Providing innovative leadership in fair patient compensation for culpable liability claims

Developing effective practice and risk management programs

The Utah Medical Association started UMIA in response to a loss of affordable and available medical liability insurance because the commercial multi-line insurers providing coverage at that time withdrew from the market or raised rates astronomically. UMIA is a reciprocal inter-insurance exchange providing liability insurance in Idaho, Montana, Utah, and Wyoming.

UMIA is financially strong with assets at 185.9 million and 43.1 million in surplus. The Company is rated (A-) Excellent by the AM Best Company and has held this rating for many years. A major strength is the leadership provided by the Board of Directors and Board of Governors, both comprised of practicing physicians who understand the needs, trends, concerns, and pressures of current medical practice. Competent and responsive service to policyholders had been and remains the essential element of the Association’s mission and success. Risk management and loss prevention activities remain a high priority.

The bulk of UMIA policies are written in Utah which has been "tort-reformed." Here is a list of "reforms" that have passed in Utah:

Shortened Statute of Limitations §78B-3-404

Statute of Repose (claims expire even if patient unaware of injury such as undiagnosed cancer) §78B-3-404

Abrogation of Collateral Source Rule (negligent care provider gets the benefit of insurance that the patient paid for or that taxpayers provide) §78B-3-405

Cap on Noneconomic Damages §78B-3-410

Periodic Payment of Future Damages Delaying by Years or Decades the Patient’s Receipt of an Award §78B-3-414

Arbitration Agreements §78B-3-421

Restriction on Informed Consent Claims §78B-3-406

Restriction on Warranty, Guaranty and Contract Claims §78B-3-408

Limits on Use of Admissions of Fault §78B-3-422

Governmental Immunity Act Time Limits for Claims against the University, residents and other trainees

Governmental Immunity Act total damages limits in certain circumstances §63G-7-604

Immunity for Emergency Medical Assistance (including paid services) provided by governmental employees §63G-7-302(5)(s)

Increased Burden of Proof for Emergency Room Care §58-13-2.5 et seq.

Notice of Intent Required Before Lawsuit §78B-3-412

Prelitigation Screening Mandatory Before Lawsuit §78B-3-416

Federal Tort Claims Act limits on Claims Against the VA Hospital

Absolute Immunity for 911 Calls §69-2-6

Prohibition on Access to and Use of Peer Review, Incident and Credentialing Materials §26-25-1

Limit on Attorney Fees §78B-3-411

Limitation on Therapist’s Duty to Warn §78B-3-604

Limitation on Damages for Loss of Consortium §30-2-11(7)

Good Samaritan Act §78-4-501

Extension of Good Samaritan Act and Health Care Providers Immunity from Liability Act to nurse practitioners §58-31b-701

Immunity for care provider who renders care at scene of emergency without duty to respond §58-13-2

Immunity (except for gross negligence or willful misconduct) for uncompensated care §58-13-3

Immunity for certain care providers during emergency declarations §26-49-501

Retired health care provider volunteers are immune from suit if care is uncompensated §58-81-104(5)

Separate prior trial on any statute of limitations issue §78B-2-114

Most of these "reforms" have been in place for years, if not decades, so there can be no argument that not enough time has passed to evaluate their effectiveness. This is particularly true when looking at the effectiveness of the caps on non-economic damages which injured patients have suffered with for a long, long time. Given that, let's look at 5 years worth of historical data taken from UMIA's 2008 Annual Statement:

In 2008, gross premiums written were $70,607,300, up $16 million from 2004.
In 2008, the total assets of UMIA were $230,718,580, up $64 million from 2004.
In 2008, the total losses paid were $26,601,949, up $13 million from 2004, but only $2.5 million from 2006.

These numbers demonstrate that UMIA took in almost 3 times more just in premiums in 2008 than they paid out in claims and a similar ratio applies for each year. Moreover, these numbers underscore that damages caps do not lower premiums. Just because tort reformers repeatedly claim a connection between damages caps and lower premiums does not make it so.

Originally posted at InjuryBoard by Bret Hanna

Michigan Medical Malpractice Claims Fraught With Obstacles

David Mittleman — Wed, 04 Nov 2009 15:58:00 GMT

Most of us know little or nothing about the practice of medicine. When we go to our doctors, for everything from a routine checkup to a serious emergency, we trust in them to conduct a proper and thorough examination and to formulate an adequate plan of care. Sometimes, as a result of the carelessness or inattention of the physician or other medical provider, a patient is harmed rather than healed.

Doctors and other medical providers have a legal duty to provide patients with treatment that meets the "standard of care." In layman's terms, the standard of care is what an ordinary and prudent doctor should do in a given situation. If a doctor breaches the standard of care, and the patient is injured as a result, the doctor has committed medical malpractice.

Medical malpractice is more than just a breach of duty, it is a betrayal of trust. However, Michigan law can make it very difficult and expensive for victims to hold the at-fault doctors accountable. There are numerous procedural requirements demanded by law that must be strictly followed. Failure to follow these rules precisely could (and often does) result in the dismissal of an otherwise valid medical malpractice claim. Injured victims have only two years to bring a claim for malpractice, while victims of other types of negligence have three years. Moreover, the victim is required to procure the testimony of other doctors in order to prove his or her case. This is an expensive requirement, and the injured person's doctors must have exactly the same credentials as the at-fault doctor or the claim may be dismissed.

In Michigan, even if a victim of medical malpractice can satisfy all the procedural requirements and prevail in court, their level of compensation may be limited. Medical malpractice damage caps operate to prevent severely hurt patients from fully recovering for their injuries.

Our office handles medical malpractice claims regularly, and our attorneys have extensive experience navigating Michigan's legal obstacle course. If you suspect that you or a loved one is a victim of medical malpractice, contact our office to see if we can put our expertise to work for you.

Originally posted at InjuryBoard by David Mittleman

Loser Pays Tort Reform Would Bar All Medical Negligence Cases

Christopher Nace — Wed, 04 Nov 2009 10:24:23 GMT

A story in the Atlanta-Journal Constitution discusses a plan by Senator Lindsey Graham of South Carolina and Senator Saxby Chambliss of Georgia to enforce a "loser pays" system in medical negligence cases as part of health care reform. Such a plan would close the courthouse doors to many individuals harmed by medical negligence cases each year, including the 98,000 who die from medical errors every year.

But the losing party would be required to pay its opponents' legal fees, which could be in the hundreds of thousands of dollars.

The idea of loser pays means that if you take a case to court and lose, you are responsible for the other sides costs. Costs include minor costs such as filing fees and copying costs, but also would cover costs such as expert fees and possibly attorney fees. These costs in a medical negligence case--if you included the attorney fees--could reach into the several hundreds of thousands of dollars. Ask yourself this: if you were injured as a result of crystal clear medical negligence would you risk being on the hook for $250,000 if a jury found against you at trial? Cases would never get filed. Senators Graham and Chambliss either know this and have no desire but to close the court house doors to injured individuals or have been irresponsible in studying the issue.

Others who have weighed in on the idea see it as a preposterous approach to a minor cost on our health care system:

According to the left-leaning advocacy group Public Citizen, malpractice litigation costs represent less than 1 percent of the total cost of health care in America.

"This is worse than bad, it's really ridiculous," David Arkush, director of Public Citizen's Congress Watch division, said of Chambliss and Graham's proposal.

Arkush said that medical malpractice litigation costs have actually declined in recent years and are at an all-time low, despite the fact that overall health care costs continue to rise.

Attorney Robert Peck said the senators' proposal isn't just unnecessary, it's dangerous for patients.

"It's not going to solve any problems," said Peck, president of a Washington, D.C., law firm called the Center for Constitutional Litigation. "But it will significantly destroy the access to the courts for patients injured by the negligence of their health care providers."

The fact is that a medical negligence case will cost a plaintiff at least $75,000 in his or her own costs to file and prosecuted. These cases are very complicated and challenging as well as expensive. The idea that there are a number of frivolous lawsuits being filed is simply wrong.

The economics of a medical negligence case are such that frivolous cases simply don't get filed. A loser pays system would do nothing more than close the courthouse door to individuals who were harmed by the negligence of others. Shouldn't those that are injured through the errors of others at least have a chance to let a jury decide their case without the risk of a punitive, $250,000 penalty for losing that case?

Originally posted at InjuryBoard by Christopher Nace

Radiologists Reluctant to Admit Mammography Errors to Patients

David Mittleman — Tue, 03 Nov 2009 12:54:31 GMT

According to a new study released this month, radiologists may not be so honest when it comes to admitting their mistakes. Specifically, radiologists may not disclose mammography errors to patients, resulting in delayed treatment for progressive cancers.

The study, conducted by the departments of medicine and bioethics & humanities at the University of Washington, surveyed 364 radiologists at seven different Breast Cancer Surveillance Consortium sites located in separate geographical areas. The radiologists were given a hypothetical situation in which comparison screening mammograms were placed in an incorrect order, so that it appeared as if breast calcifications were decreasing in number in a patient when they had actually increased. The doctors were then told that there was an error, which resulted in a delay in treating the cancer. The radiologists were then asked to respond to three questions: 1) how likely they were to disclose the mistake, 2) what information they would share, and 3) what were their actual experiences and attitudes with malpractice.

The results of the study indicated that:

24% responded that they would “not say anything further to the patient”
31% responded that they would tell the patient that “the calcifications are larger now and are suspicious for cancer”
30% responded that they would tell the patient “the calcifications may have increased on your last mammogram, but their appearance was not as worrisome as they are now”
15% responded that they would tell the patient that “an error had occurred during the interpretation of your last mammogram, and the calcifications had actually increased in number, not decreased”

74% of the radiologists claimed that they were more reluctant to tell patients of mistakes because of fears over medical malpractice. Apparently, failure to report errors to patients was not an uncommon practice for many of the radiologists surveyed. In fact, 49% admitted that they had been sued for medical negligence. However, other factors also had an effect in the radiologists’ degree of honesty. For example, physicians have expressed concerns over increasing stress in patients after admitting a medical error. Furthermore, the study author also hypothesized that some physicians feel uncomfortable with their communication skills, and struggle to admit to a patient that they had mad a mistake. Despite these other factors, 15% is not a comforting amount of radiologists who say they would be completely honest about their mistakes. Hopefully, continued studies like this will help to improve doctor and patient communication.

Originally posted at InjuryBoard by David Mittleman

Unemployed and Uninsured

Ed Normand — Tue, 03 Nov 2009 12:41:17 GMT

So far in 2009, almost 300,000 Floridians have lost their health insurance, along with their jobs. The link between health coverage and the rise in unemployment is important, because nearly two-thirds of people under the age of 65 get health coverage through their employment, or the employment of a spouse. Florida ranks third in the nation, among working age-adults, in the number of people who have lost their health insurance since January 2009, behind only California and Texas.

Several options are available to those who become unemployed, including COBRA, where you pay to extend current health coverage, but oftentimes individuals do not have the necessary financial means. However, the current trend of citing tort reform as a means to reduce health insurance costs are misplaced. During a time when more and more individuals are needing to purchase insurance on their own, it might be easy for some to point the finger at the alleged “evil” of medical malpractice lawsuits. Much has been proposed about the potential reduction in insurance costs if awards in medical malpractice cases were capped, or eliminated altogether. What individuals don’t realize is that in actuality, little to no savings in premiums have resulted from current attempts at tort reform. In fact, insurance companies in Florida like Aetna, have stated that tort reform has produced little or no savings in insurance rates in Florida, due in part to lawsuits only making up a tiny fraction of the overall healthcare spending in the United States each year. Reducing costs needs to come from within the system, starting with reducing the myriad of preventable medical errors committed by the small percentage of bad apple physicians each year.

Originally posted at InjuryBoard by Ed Normand

Kansas Supreme Court Called to Protect Patients From Tort Reform

David Mittleman — Mon, 02 Nov 2009 16:35:06 GMT

Kansas, like Georgia, will be visiting the problem of tort reform this year as it decides whether or not caps on damages in medical malpractice cases violates a patient's rights after he or she has been injured by a doctor's negligence.

The legal battle surrounds a wrongly removed ovary. Amy Miller of Eudora, Kansas, went to have her right ovary removed. Dr. Carolyn Johnson unfortunately removed the left ovary instead. Ms. Miller filed a lawsuit and a Kansas jury comprised of her peers returned a verdict for $759,680.

However, because of laws in Kansas that place limits on damages for pain and suffering (noneconomic damages) in medical malpractice, the Judge in the case stripped $150,000 of the verdict that had to do with future noneconomic loss.

Attorneys for Ms. Miller argue that Kansas's law on medical malpractice caps violates Kansas's constitutional guarantees to a jury trial.

In addition to the Constitutional violation, her attorney argues that it violates the seperation fo powers by allowing the Legislature to unnecessarily take away a power vested to the judiciary and juries.

Most important, however, is the fact that caps on noneconomic damages do nothing but place the greatest limitations on the people who have been injured the most. Follow us as we let you know how these pivotal cases are decided across the country.

Originally posted at InjuryBoard by David Mittleman