Injuryboard Commentary - medical malpractice

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

Medical Malpractice Insurers’ Profits Higher than 99% of All Fortune 500 Companies

Beth Janicek — Sat, 31 Oct 2009 17:58:31 GMT

The American Association for Justice (AAJ) recently released a statistic claiming that medical malpractice insurance companies’ average profits are higher than 99 percent of all Fortune 500 companies. AAJ points out that medical malpractice lawsuits only account for a small percentage of unnecessary costs. The bigger problem is medical errors and the profits of malpractice insurers.

The report released by the AAJ also states that the average profit of medical malpractice insurance companies is 35 time higher than the Fortune 500 average for the same time period, and that malpractice insurers have seen their profit margins range from 5.9 percent to 74.8 percent, with an average of 31.2 percent. In addition, the report finds that malpractice insurers have publicly overestimated their losses and underestimated their profits in an attempt to suggest that insurance business and medical practices face a crisis that must be resolved by tort reform. This report released by the AAJ shows that insurance companies profit the most, and obviously need Tort Reform the least.

AAJ President Anthony Tarricone said,

Insurance companies are gouging doctors on their premiums to mislead lawmakers…And today, injured patients are often left with no avenue to pursue justice, while health care costs continue to skyrocket.”

Originally posted at InjuryBoard by Beth Janicek

The Doctor Is In and He Says Tort Reform Isn't the Cure

David Mittleman — Wed, 28 Oct 2009 16:26:12 GMT

Even doctors are starting to speak out about our insurance crisis. I recently read a post online by Rahul K. Parikh, M.D. that had me nodding my head. Dr. Parikh went straight to task and took on the proponents of "tort reform" (Crooked Justice) with the following line:

"There's nothing "sure or quick" about changing medical liability laws that will improve healthcare or its costs. Defensive medicine adds very little to healthcare's price tag, and rising malpractice premiums have had very little impact on access to care."

Why does he get it? It's because he's willing to look at the facts and put people first, not profit, not even his own profit. First, he noted that no matter how you look at it, malpractice lawsuits aren't the major factor in rising health care costs. As Dr. Parikh put it:

malpractice costs account for less than 2 percent of healthcare spending. Saving 2 percent of the over $2 trillion we spend on healthcare isn’t going to bend the cost curve.

Second, malpractice lawsuits are not frivolous. By and large, if you're willing (both as a client and a lawyer) to go through the incredible expense of suing a doctor or hospital, something truly significant has probably happened to you. Dr. Parikh reviewed a Harvard study published in the New England Journal of Medicine. He nails it on the head when he says:

Most of the suits were not frivolous: Almost two-thirds of cases involved errors by doctors.
Seventy-three percent of injuries in which a doctor committed an error resulted in payments. Seventy-two percent of cases in which there was an injury not due to physician error did not result in payment. Those conclusions do not paint the picture of a medical-legal system burdened by ambulance-chasing lawyers and their litigious clients.

Yes, that's right. Lawsuits were more likely to result in payment when the doctor made an error. Lawsuits were more likely to result in no payment if there was no error. Where's the frivolity? It's PR propoganda.

What isn't propoganda is the following. Tort reform will not save lives. Giving doctors and hospitals less incentive to improve practices and maintain care at high levels only puts us in jeopardy. Maybe that's what the doc meant when he wrote:

So for those who push tort reform as a panacea for a sick healthcare system, working to prevent injuries is a much more noble pursuit than writing up baseless arguments for the back pages of a newspaper.

Originally posted at InjuryBoard by David Mittleman

A Doctor's Perspective on Tort Reform

Christopher Nace — Wed, 28 Oct 2009 10:46:32 GMT

Rahul K. Parikh, M.D. is a brave man. In an article he has penned for the online magazine Salon, Dr. Parikh takes on his colleagues, peers and the American Medical Association and challenges the idea that medical malpractice lawsuit reform, or tort reform, must be part of a national health care plan to bring down the cost of health care.

In addressing the myths of tort reform propounded by doctors and insurance companies, Dr. Parikh states that:

Their refrain is familiar to anybody following the healthcare reform debate. The only problem is that it's not true. There's nothing "sure or quick" about changing medical liability laws that will improve healthcare or its costs. Defensive medicine adds very little to healthcare's price tag, and rising malpractice premiums have had very little impact on access to care.

Throughout the article, Dr. Parikh challenges the notion that there has been a so-called "explosion" of medical liability lawsuits, that defensive medicine is driving the cost of health care up, and that lawsuits are driving doctors out of business.

In citing a Harvard study, Dr. Parikh explains that

In 2006, researchers from Harvard published a study in the New England Journal of Medicine that was designed to avoid the limits, and the biases, of prior research. What they found kills the notion of frivolous lawsuits. It suggests that most people who sue are suing for good reason.

As for defensive medicine,

Yet more recent analyses show that the effect of defensive medicine on overall costs is, at best, marginal. The most visible of them came from the nonpartisan Congressional Budget Office. In a 2004 report, it reviewed studies suggesting tort reform did reduce healthcare costs, including the Kessler and McClellan study. However, when the CBO applied the methods used in that study to a broader set of ailments, it found no evidence that restrictions on tort liability reduced medical spending. It also found no difference in per capita healthcare spending between states with and without limits on malpractice awards. More recently, the Kessler-McClellan study received another blow when two new authors reassessed their original work. Unlike the original study, this one looked at the effects of tort reforms over a longer time period. Just like the CBO review, it concluded that "Direct reforms (caps on damages, abolition of punitive damages, eliminating mandatory prejudgment interest, and collateral source offset) did not significantly reduce payments for Medicare-covered services."

Dr. Parikh seems to hit the nail on the head in his final paragraph:

Tort reformers neglect the fact that malpractice reform won't save one extra life. To make that difference, insurers, doctors and their lobbyists like the AMA need to find ways to improve patient safety. So for those who push tort reform as a panacea for a sick healthcare system, working to prevent injuries is a much more noble pursuit than writing up baseless arguments for the back pages of a newspaper.

I'm a lawyer. If you want to discount my blogs about tort reform, I can understand that. But take a moment and read Dr. Parikh's article. Perhaps you will find the honest views of a doctor more persuasive. Regardless of profession, we should all agree that patient safety should be the number one driving factor in any health care reform efforts. Dr. Parikh explains that tort reform is not a way to bring about better patient safety.

Originally posted at InjuryBoard by Christopher Nace

Rhode Island Hospital Operates on the Wrong Site for Fifth Time Since 2007

David Mittleman — Mon, 26 Oct 2009 09:20:25 GMT

A surgeon at a Rhode Island Hospital committed malpractice by mistakenly operating on the wrong part of a patient’s hand. Now, health officials are investigating how this mistake could have occurred. But even more alarming is that this isn’t the first time this happened: the same Rhode Island Hospital has a history of operating on incorrect body parts. In fact, this is the hospital’s fifth wrong-site surgery since 2007.

According to Timothy Babineau, the hospital president, the surgeon operated on the wrong finger last Thursday. The patient was meant to have surgery on two fingers, but instead underwent a procedure on the joint of a different finger. So far, the hospital has not released the name of the patient or the surgeon involved in the incident. The hospital also says that it will investigate what went wrong alongside the Rhode Island Department of Health.

Rhode Island Hospital was fined $50,000 after brain surgeons operated on the wrong side of the brain in three separate cases in 2007. The fourth case of wrong-site surgery involved a child who needed a cleft palate surgery. In that case, the wrong side of the child’s mouth was operated on.

http://www.youtube.com/watch?v=cUMgyoVIqNE

Our office has recently and successfully handled a case in which the wrong finger was operated on and received a substantial settlement for our client in the matter. If you feel a doctor has committed malpractice in a similar fashion against you, do not hesitate to contact us to discuss your case.

Originally posted at InjuryBoard by David Mittleman

Rhode Island Hospital Again Does a Wrong-site Surgery

Steve Lombardi — Mon, 26 Oct 2009 08:41:00 GMT

This is the 5^th time since 2007. This time the surgical site was the patient’s hand. Apparently, and the reports differ, it was the correct hand, the right finger but the wrong joint. I have to give the hospital credit for publicizing the mistake. It can’t be easy for the hospital’s president Timothy Babineau. Even though the mistake won’t help to make patients comfortable his honesty with the public is refreshing.

So how can patients increase the chances of avoiding a wrong-site surgery? It’s actually pretty simple. By having the doctor mark the surgical site with a surgical marker and reviewing the procedure, the identity of the patient and the body part/location that is to be operated on, mistakes would rarely occur. Here are two questions that would help. 1. Have you read the chart? 2. If so, then describe the procedure to be undertaken and to what part of the body. You might think this is an embarrassing discussion to have with the surgeon, but it’s your body so get over it. Here are three articles discussing the Rhode Island Hospital case. http://www.youtube.com/watch?v=cUMgyoVIqNE

Originally posted at InjuryBoard by Steve Lombardi