legalsmeegal

The Battle over Patient Rights and "Tort Reform" Begins Again

2011-02-02T21:04:00.002-05:00

It is time for me to dust off my blog site and to begin again to post about patient rights. The new Republican Congress has wasted no time in renewing last year’s effort to enact draconian restrictions on the rights of negligently injured patients. In fact, the first new ‘tort reform” bill was introduced on the first day after the new Congress was sworn in and seeks to emasculate patient’s claims by arbitrarily limiting recovery of human suffering damages to $250,000 in all cases. It also seeks to make it more difficult for patients to obtain representation in their cases by severely limiting the contingency fees that attorneys can receive in medical malpractice cases. If the result of the amount you can potentially recover (if you are successful) and the contingency fees you can received (if you are successful) is that you will lose money even if you win, you simply cannot afford to represent the client regardless of the validity of his medical malpractice claim. The result is that the negligently injured patient is effectively denied his day in court to seek just compensation for the harm he has suffered.
But enough about what the new Republican Congress is trying to do. Maybe the best way to pick up on where we left off last year is to remember why medical malpractice lawsuits exist. The lawsuits exist because patients continuie to be badly hurt due to poor medical care. The medical malpractice lawsuits provide the means for injured patients to seek fair compensatation for the harm they have suffered and, by compensating them, an incentive for the health care industry to do a better job by holding them accountablefor their poor medical care.

Hospital Safety Still an Issue: Better Medical Care, Not Tort Reform, Is the Answer

Whether for a check-up, injury or major surgery, we expect to leave the hospital in better shape than when we arrived. Unfortunately, a recent study in the New England Journal of Medicine, is the latest in a series of reports which clearly demonstrates that efforts to improve the safety of our hospitals are failing and poor medical care in the hospital is resulting in countless injuries and numerous deaths each year. The problem in health care costs is not unnecessary and groundless medical malpractice lawsuits. Instead, it is the poor medical care that is continuing to needlessly harm a significant number of patients each year.
The most recent study examined 10 North Carolina hospitals from 2002 to 2007. Records of over 2,300 patients were reviewed at the hospitals during this five year period and researchers uncovered 588 incidents of medical mistakes that resulted in harm to patients. The types of adverse events resulting from medical mistakes varied and included injuries such as falls, low blood pressure, excessive bleeding during surgery and, most commonly, hospital-acquired infections.
A significant portion of the errors were severe. Forty three percent of the adverse events uncovered by the researchers required an extended stay in the hospital. In just over eight percent of the cases, the adverse events were life threatening and in 2.4 percent of the cases, the mistakes caused or contributed to the patient’s death, according to an analysis of the study in The New York Times.
Also of interest was the fact that the researchers did not find a statistically significant decrease in hospital errors over the life of the five year study and instead noted “little evidence of widespread improvement.”
Though the NEJM study focused on one geographic region, the authors of the study were not expecting that other areas of the country were faring any better. In fact, the research notes that North Carolina was selected as the focus of the study because of its “high level of engagement” in efforts to improve patient safety. What this suggests is that , if anything, the extent of medical mistakes and patient harm in hospitals in other parts of our country is likely worse than what the study found.
The New York Times report notes this study is the largest attempt to quantify hospital safety improvement since the Institute of Medicine’s 1999 report. That 1999 report is the one that concluded that hospital errors were injuring one million people and causing 98,000 deaths annually.
Now is not the time to curtail the rights of injured patients. Instead, we should be using our efforts and resources to improve the quality of patient care and let improved care and reduced medical mistakes effectively lower the need for medical malpractice litigation.

A Final Look at Tort Reform Until the Next Battle

2010-03-29T18:44:00.001-04:00

The health care reform bill that President Obama has now signed into law did not contain tort reform provisions such as caps on damages in medical malpractice cases. Unfortunately, this does not mean the push for tort reform legislation is over. The battlefield now will simply shift back to the State level while we await the mid-term Congressional elections.

Interestingly, the pendulum may be swinging back in favor of victim’s rights on the State level. In February, the Illinois Supreme Court held that the Illinois statute imposing caps on damages in medical malpractice cases was unconstitutional (http://www.state.il.us/court/OPINIONS/SupremeCourt/2010/February/105741.pdf). Then, in March, the Georgia Supreme Court reached the same conclusion about the Georgia medical malpractice damage cap statute (http://www.gasupreme.us/sc-op/pdf/s09a1432.pdf).

“Tort reform” statutes are continuing to be closely scrutinized by Courts because they run counter to our core beliefs of what’s fair and what works. Consider these examples:
1. People are accountable for their own conduct and, if their wrongful conduct causes harm, they should be responsible for the harm they have caused.
2. People should pay what they owe.
3. Money is a motivator that should be used to encourage good conduct and deter wrongful conduct, not the reverse.
4. The ability to enjoy life is important.
5. All human beings are entitled to be treated with dignity.
6. There is no privileged class in America
7. Our fellow citizens from our local community are better suit to make decisions on what’s fair for our local community than our politicians in Washington, D.C. or our State capitals.

Most of these fundamental beliefs are reflected in our Constitution. Statutory caps on damages in medical malpractice cases are inconsistent with each one of these beliefs.

Caps substitute an artificial amount of compensation for the fair compensation that a jury has determined a wrongdoer owes for the harms his wrongful conduct has caused. By so doing, damage caps relieve wrongdoers of accountability for at least part of the harm their wrongful conduct has caused another person. When the actual harm is horrendous, as is often true in medical malpractice cases, and the maximum damage cap is $250,000 , it is the major part of the harm wrongdoers have caused for which they are no longer responsible.

Caps on damages in medical malpractice cases dilute the motivational ability of money to improve conduct. Consider for example, a case where poor medical care in a hospital has resulted in a patient suffering $2,000,000 of harm. What will motivate the hospital more to seek ways to prevent the recurrence of that same poor medical care in the future-----being required to compensate the patient $2,000,000 for his or her entire loss, or being required to only pay $250,000?

Caps denigrate the value of being able to enjoy life. It is the determination of the amount needed to fairly compensation an injured person for his or her loss of the ability to pursue happiness and enjoy life that the statutory caps on damages undercuts and reduces to a artificial, predetermined, fixed amount.

Caps are a slap in the face to a segment of our society----the victims of medical malpractice. Having gone through a lengthy and costly court battle to right a wrong and receive compensation for the harms they have suffered, the victims of medical malpractice are told at the end of the day that their harms and losses don’t count and what they have gone through doesn’t matter. The message being sent by reducing their fair compensation to some artificial figure is nothing short of “So what! You are a loser and your loss is not important!”

Caps on damages in medical malpractice cases establish a privileged class in our country where there are not suppose to be any Kings or Queens. With caps, the members of the health care profession become special people with special entitlements that no one else has----the right to be relieved of paying what they owe; the right to be unaccountable for the harm their wrongful conduct has caused.

Finally, our Constitution guarantees us the right to a jury trial in civil and criminal cases because our Founding Fathers believed it to be the fairest way for decisions affecting our lives to be made and because they also believed it was needed to protects us from the power of our elected politicians . Yet, caps achieve the exact opposite result. Caps substitute the arbitrary decision of powerful politicians as to what’s fair for the judgment of a jury of peers drawn from our local community which has considered all the relevant evidence.

Caps aren’t fair and they have no legitimate place in our country.

Doctors and Attorneys Can Be Friends—Part II

2010-01-31T22:12:00.000-05:00

For those of you who have not read the comments of Dr. Kaufman to my last post, “Doctors and Attorneys Can Be Friends”, I recommend that you take a moment to do so. It is a thoughtful comment spoken from the heart by someone who clearly seems to be a caring physician. We don’t see things quite the same way but I may have found a friend! Dr. Kaufman’s comments are at least an opportunity to further identify some of what our two professions have in common.

Dr. Kaufman writes that he is a physician because: “Helping people is priceless and is the only reason left for choosing a career in medicine.” As it turns out, I chose medical malpractice plaintiff’s work as the focus of my practice for the same reason.--the opportunity to help people who are really in need of assistance and can’t otherwise afford it.” And neither Dr. Kaufman nor I are alone or exceptions in our respective practices. Yet both of us have colleagues who portray each other’s profession as an unholy group of uncaring cads who are more interested in their stock portfolios, golf games, and fancy automobiles than their patients or their clients. This decade should be more about civility and understanding between our two professions and less about malicious characterizations.

Dr. Kaufman wants me to concede that: “Frivolous lawsuits against physicians are real and they are a real problem, hiking up our med malpractice insurance and eroding our income.” I concede the first part--that frivolous lawsuits are real. Not only are they real but the medical malpractice plaintiffs’ bar dislikes them just as does the medical profession. Frivolous medical malpractice law suits give my profession a bad name. They serve to alienate the medical profession, the judges who hear them, and the general public when a frivolous law suit receives publicity. I’m sure it’s the same for the medical profession and that good physicians shudder when they read a news report of a surgeon who has cut off the wrong leg or an internal medicine physician who has used his office as a source of narcotics for users and dealers. In each instance our respective professions are being done a disservice and we each might do better policing our own if our two professions were more collaborative and shared thinking about such subjects instead of crowing over each other’s embarrassments.

But I don’t subscribe to the second part of Dr. Kaufmans’s statement that frivolous law suits are the “real problem” behind high malpractice insurance rates and the erosion of physicians’ income. I believe frivolous lawsuits are the exception, not the rule, and I do not believe there is any solid data to support Dr. Kaufman’s conclusion. So I would ask Dr. Kaufman to come half way and meet me in the middle on this. Join me in advocating for the creation of an impartial panel to investigate and provide an objective, unbiased assessment of these issues.

Finally, when you read what Dr. Kaufman wrote about “defensive medicine’, you don’t get the impression he is a doctor who is ordering unnecessary tests on patients he sees in his emergency room, particularly ones that expose the patient to risks over the long haul, because he is thinking about his own skin and protecting himself against a future law suit. Do Dr. Kaufman and other ER physician end up ordering tests that are ‘unnecessary”? Of course, but at least for the good and caring physicians it’s not because of a calculated decision about what will best serve their own personal well being. They don’t have the time to engage in that type of extraneous thinking as they deal with the needs of their patients. And I simply have too much respect for the medical profession to believe that there are any more than a handful of physicians who are regularly placing the welfare of their patient second to their own well being as they practice their profession.

Doctors and Attorneys Can Be Friends

2010-01-10T17:00:00.000-05:00

If farmers and cowboys can be friends, why can’t doctors and attorneys? If both sides would take a step back, they might realize they have a lot in common. It would be refreshing if we declare posturing out for 2010 and working to find common solutions in as we start a new decade.

For example, Plaintiff’s attorneys are interested in finding more economical and efficient means of resolving medical malpractice claims. Sound familiar? It’s one of the leading arguments advanced by doctors for “tort reform”. Why don’t both sides stop huffing and puffing about the value or evils of tort reform and spend time together trying to identify ways that both sides can support that will help reduce the costs and time involved in resolving medical malpractice claims.

Doctors hate the fact that all settlements of medical malpractice claims must be reported to a federal agency and become part of a national data bank. It may surprise the medical profession but many plaintiff’s attorneys feel the same way, including me. I will discuss why this reporting requirement should be abolished in a later blog. For now, it serves as an example of where the interests of doctors and plaintiff’s attorneys overlap and where a combined effort to achieve a common goal could make a difference.

Are doctors prematurely leaving their practices because of the high cost of medical malpractice insurance? Many doctors claim this is so. Plaintiff’s attorneys do not agree or are at least not sure. But, if it is so, it is not something that plaintiff’s attorneys either seek or desire. Plaintiff’s attorneys have the same medical problems as everyone else and need doctors to deliver our babies, to see our loved ones in the emergency room, and to monitor our health through annual physical exams.

Instead of arguing, why can’t doctors and attorneys join forces to insist that a thorough and objective investigation be undertaken to definitively determine the reason for the exorbitant costs of medical malpractice insurance? Is it due to price gouging by a very unregulated industry? Is it the result of poor management and investment decisions within the insurance industry? Or is it a reflection of the cost of defending and resolving malpractice claims as the nsurance industry claims?

Having found the answer to that question, doctors and attorneys can then work together to solve the underlying problem, whatever it may be, and bring doctors'insurance premiums down to reasonable levels.

Doctors and attorneys can be friends. If they would, they could accomplish a great deal in the next decade, unlike the decade past.

Happy New Year.

The Right to the Pursuit of Happiness

2009-12-14T21:43:00.000-05:00

“Pain" and "suffering” have become dirty words in America. Through an artfully constructed, decades-old, public relations campaign lead by the insurance industry and its allies, "pain and suffering" has become a phrase that the American public now subconsciously associates with "malingering,” and “exaggeration.” As a result, many people have no problem with the Republican proposal to place a $250,000 cap on non-economic damages in medical malpractice cases since it would only compromise damages for harms that fall within the category of “pain and suffering” while allowing economic damages to remain intact. The current effort for a federal cap on damages will apparently fail but the issue is not dead as caps on damages remains a primary goal of the insurance and medical profession tort reformists.

Is severely restricting compensation for non-economic harms consistent with the core values of our society? To consider this question, we have to move beyond thinking about non-economic damages in terms of “pain and suffering”, both because of the bias the term triggers and the fact that it does not fairly represent the category of harm that the insurance industry and the Republican Party seek to marginalize.

So let’s use "the pursuit of happiness". It’s a more comprehensive and accurate term for the important intangible things patients lose in medical malpractice cases , in addition to losing the ability to earn money. For example, if due to medical negligence you are left with severe pain in your fingers that prohibits you from earning a living with your hands it is a terrible economic loss. But if the severe pain in your fingers also prevents you from playing the piano or the guitar - something you have done on a daily basis your whole life - and you can no longer play catch with your children, play golf or tennis or football or baseball with your friends and you cannot squeeze the hand of your loved one, the pain itself is really just a small part of the picture. The more important loss is how the pain that should never have been interferes not only with your ability to earn a living but also with your ability to engage in those activities that bring you peace, pleasure and happiness in your life.

Are not the workplace loss and the pursuit of happiness loss of equal importance? Do we not in our country value the freedom to pursue happiness as much as we value the freedom to make money? And what is the ultimate goal of work? To provide for our basic needs, of course, but is it not also to provide us with the means to enjoy life. What do we cherish the most? Is it our Mondays through Fridays or our weekends, when we can chose to do what we want to do that is of interest to us and provides us with personal happiness?

The importance in our social values of our right to pursue happiness is demonstrated by its specific reference in our Constitution---the right to “life, liberty and the pursuit of happiness”.

How is it that a value our Founding Fathers felt was important enough to recognize in our Constitution could become so cheapened that today it only warrants a $250,000 price tag if it is completely and wrongfully taken away from us?

As Fagan said in Oliver, “I think I better think this out again.”

Reducing Health Care Costs Through Tort Reform—A Myth Not A Reality.

2009-11-30T08:11:00.000-05:00

The idea that tort reform, specifically caps on the amount of money paid to satisfy medical malpractice claims, would reduce health care costs is a myth. Instead of saving the average American money, these caps will simply increase the profits of the already wealthy medical malpractice insurance industry.

Reducing the amount that has to be paid to satisfy medical malpractice claims does not reduce the cost of health care in our country. It does not even reduce the costs health care providers incur in providing health care. Defending and resolving medical malpractice claims is not part of the business of health care—instead, it is part and parcel of the medical malpractice insurance business. Reducing the amount spent to pay judgments and settle claims by putting a cap on what a medical malpractice victim can recover simply reduces the medical malpractice insurance industry’s cost of doing business and increases its profit. The cost doctors and hospitals incur relating to medical malpractice claims is not the actual cost involved in doing so, but the premium doctors and hospitals pay the medical malpractice insurance companies for shielding them from those claims.

Take, for example, a patient who would normally be entitled to receive $2,000,000 as compensation for the harm he has suffered due to a hospital’s medical negligence. If there is a $250,000 cap on medical malpractice damages, the cost of resolving that patient’s claim has just been reduced by $1,750,000. That’s a pretty significant savings but it is just a savings to the medical malpractice insurance company who insures the hospital. It only indirectly impacts the hospital’s cost of doing business if the medical malpractice insurance industry decides to share the windfall profit by a reducing its premiums and thereby allow some of its profits to trickle down to its insured doctors and hospitals.

But with enactment of a cap on damages, the medical malpractice insurance industry most likely would keep all or at least the bulk of its windfall savings rather than let them trickle down. Medical malpractice insurance, after all, is a business and the goal of any business is to make as much profit as it can. There is also nothing to stop the insurance companies from pocketing 100% of the savings. The legislation to cap damages offered by the advocates of tort reform does not contain any requirement that the medical malpractice insurance industry identify the amount of savings it receives from those caps and pass that savings on to the medical profession via a reduction in insurance premiums. There also is no “market” pressure on the insurancde companies to pass along savings since there is so little competition in the medical malpractice insurance industry. The industry is exempt from federal anti-trust and price fixing laws that apply to almost all other businesses in our country.

Imagine the discussion in the corporate boardroom of a medical malpractice insurance company after enactment of federal tort reform legislation that placed a $250,000 cap on damages. The discussion would come down to something along the lines of “Shall we keep the money we are going to save or shall we reduce our premiums? Let’s see, keep the money, reduce the premiums, keep the money, reduce the premiums…..” Tough decision but the common sense guess is that the vote will be to keep the money.

Even in the unlikely event that the medical malpractice insurance industry decided to reduce its premiums a tad and allow some of its new found profit to trickle down to the medical profession, you and I as the ultimate consumers of health care are not going to benefit from it. All that would happen is that the insured hospital's and physician's cost of doing business would decrease by the amount of the decrease in the premiums they had to pay and in turn result in an increase in the profits of the hospital and physician.

We would need a second trickle down before any real difference to national cost of health care could happen. The hospitals and doctors would in turn have to voluntarily decide to reduce their medical fees and thereby pass their cost of doing business savings on to their patients. It is easy to imagine a corporate boardroom scene similar to the one described above except this time it is the boardroom of a large hospital whose medical malpractice insurance premiums have just been reduced. “Shall we keep the money we are going to save or shall we reduce our fees? Let’s see, keep the money, reduce our fees, keep the money, reduce our fees…..” Tough decision but the common sense guess is that the vote again will be to keep the money.

A cap on damages in a medical malpractice case is legislation that directly benefits only the insurance industry. It has nothing to do with the cost of health care unless you assume that two major for profit businesses (medical malpractice insurance and the medical health industry) will both voluntarily chose to decline the windfall profit they would realize from a federal cap on damages and pass the savings on for the common good. You don’t have to be a cynic, only a realist, to conclude that any cost savings realized from a cap on damages is only going to line the pockets of the medical malpractice insurance industry.

Mammogram Preventive Service Task Force: Can’t See The Trees For The Forest

2009-11-21T10:41:00.001-05:00

I intended to stay focused on issues related to tort reform until we got past the latest effort to pass federal tort reform legislation. But the pronouncements this week by the Task Force on screening for breast cancer changed my mind.

I have not had breast cancer although men do suffer from this disease. But I know breast cancer as a husband, a brother, a friend, and an attorney for breast cancer clients in my medical malpractice law practice. So I have known women who have died from breast cancer and I know both women who are living with metastatic spread of breast cancer with the likelihood of dying from it and women who are breast cancer survivors without evidence of recurrence. From my vantage point the Task Force recommendations are simply outrageous.

The Task Force report has a number of serious flaws. The most glaring is in its central recommendation which is to cut back on mammogram screening for women over 50 from once a year to every other year. The Task Force tries to portray its recommended 50% reduction in mammogram screening as being innocuous by pointing out that the screening every two years would still produce 81% of the benefits in mortality reduction that annual screening produces. At first blush, the Task Force Recommendation almost sounds reasonable. However, as always the devil is in the details.

The flip side of 81% is 19%. What does a loss of 19% of the benefit of annual mammogram screening mean in human terms? The Task Force acknowledges that annual mammogram screening results in a 15% reduction in breast cancer mortality. Based on the most recent information available, approximately 40,480 women are dying each year in our country from breast cancer. That means that annual screening saves the lives of approximately 6,000 women each year. Losing 19% of the benefit of annual screening by reducing screening to every two years would mean approximately 1,150 women will die from breast cancer annually who would otherwise have survived.

That’s a lot of women.

What was going on with the Task Force that losing the lives of 1,150 women does not give them pause? Part of the answer lies in the composition of the Task Force’s 15 member Panel. There was not a single board certified oncologist and only one board certified gynecologist on the Task Force Panel which, of course, was considering important oncology and gynecology issues. There were even more pediatricians on this breast cancer screening Task Force (2) than the combined total number of oncologists and gynecologists (1). Go figure.

This Task Force was overwhelmingly dominated by Public Health and Epidemiologist experts who are great at crunching numbers, doing statistical regression analyses, and preparing fancy charts. But in the process of looking at the “big picture”, they lost sight of the trees because of the forest. The Task Force needed clinicians to provide a broader perspective, physicians who are in the trenches treating women with cancer on a daily basis and who care about the tress, not just the forest. Unfortunately, whoever appointed this Panel failed to appoint clinicians from the appropriate fields of medicine to provide the balance the Task Force needed.

Is it important to reduce the overall amount of money being spent for screening mammograms in our country by 50% in order to achieve a better cost- benefit for saving lives from breast cancer? Maybe, but if so, why didn’t the Task Force focus on reducing the prices being charged for mammogram screening instead of reducing screenings by 50%? Do mammograms have to be so expensive? Are mammograms one of the cash cows of the hospitals’ radiology departments? Are the profit margins for mammograms so out of line that what is being charged for them represents price gouging? And why do mammograms in the United States cost so much more than they do, say, in Japan?

And, finally, the Task Force’s suggestion that saving women from the anxiety of waiting for the results of a breast biopsy is on the same plane as saving women’s lives is an insult. Aren’t we way past the paternalistic attitude that we need to protect ‘the little woman” from anxiety” least she wither and faint?

Women handle the stress that comes from demanding careers in industries and professions that still discriminate against them and from being advocates for their children in school and health care systems that fight them every step of the way. Worrying for a few weeks over whether you may have breast cancer while you wait for your biopsy results is not what any woman wants to do. But most women I believe would rather worry for a few weeks over a biopsy than stick their heads in the sand and pretend that life is free of worry when it is not.

Tort Reform: Why The Special Treatment for the Business of Medicine?

2009-11-12T21:02:00.001-05:00

Okay. The Teamsters Union is not really trying to become part of the tort reform movement. I just made that up. My last blog post, of course, was meant to be humorous. But it was also intended to raise a question: Why does the medical business think it’s so special that it should be treated differently than any other business in our country?

Medical liability insurance costs and the need to compensate negligently injured patients for the harms they suffer are adding to the cost of health care in our country. But that’s true for every business. The reason that’s true is because, in America, we require that a company engaged in making money be responsible if it negligently injures one of its customers or an innocent bystander. That’s true for the grocery retail business, the trucking business, the taxicab business, the airline business and the business that makes widgets. That’s also true for every professional business---from attorneys and CPA’s to manicurists and morticians.

In most, if not all, of these business segments the primary cost incurred in addressing that legal responsibility is the cost of liability insurance, just like it is in the medical business. And “tort reform” would have the same effect in every business. All tort reform does is reduce the cost of claims by imposing an artificial low maximum limit on compensation awards. Tort reform would work the same way and just as effectively in any other business as it would in the medical business in bringing down the cost of doing business.

So why not, by legislative fiat, give all businesses the huge economic advantage that tort reformologists want to secure for the medical business? Because in our hearts we know that it isn’t right. To do so just isn’t consistent with the values we espouse and hold dear in America.

For example, a truck driver runs over and kills a college coed in the crosswalk because the driver is texting and doesn’t see her. We are not going to agree to denigrate the value of her life and the loss to her proud parents of their only daughter by placing an artificial value of $250,000 on her life and the loss to her family in order to save the trucking company a few bucks on its bottom line. Metro subway trains collide because of Metro’s cavalier attitude toward safety. Nine valuable members of our society are killed; scores injured. We are not going to agree to denigrate those human beings by putting an arbitrary price tag of $250,000 on each of their tragic and painfully lost lives and the holes that have been created in the family fabric of those they left behind in order to save Metro a few bucks on its cost of doing business.

Why then would we do it for a hospital? Why is a hospital any different than a department store? Both solicit your business, spend hundreds of thousands of dollars convincing you to come to it—the hospital because it is touted as “the heart center”, the caring “cancer center”, or the whatever center you want center. Then, having convinced you to walk through its doors, the hospital wants to denigrate the value of your life by saying a $250,000 payment is all that is needed to balance out the value of your lost life when you leave feet-first instead of upright because of the rotten medical care you received. If that’s not acceptable for the department store, why is it for the hospital?

By the way, have you ever wondered what would happen to the “savings” we would theoretically achieve in our national health care costs if federal tort reform is enacted? Is it likely that we, as consumers, would actually receive any of the financial benefit from tort reform? Or is it possible that the savings achieved would just end up being used to increase the bottom line profits of the medical and insurance industries?

More on that in my next blog.

Tort Reform Expanded to Include Truck Drivers

2009-11-07T16:31:00.000-05:00

Legislation has just been introduced in the Congress to expand the Republican’s proposed medical malpractice tort reform legislation to include protection for truck drivers. “If it’s good for doctors, it’s good for truck drivers too” the Teamsters Union stated in a Press Release.

A Teamster Union funded study concluded that the cost of liability insurance for truck drivers and the cost to defend truck drivers against claims by those they have negligently injured are the primary reason for the skyrocketing cost of transporting durable goods. If those costs could be eliminated, the retail cost of durable goods that are essential in every home such as washers, dryers, refrigerators and furniture would be dramatically reduced, the Teamster study concludes.

Moreover, according to Teamster’s spokesperson, Mr. Otto Mieway, there is a hidden additional cost as a result of the litigation over truck accidents, just like there is in medical malpractice litigation. “Our member truck drivers regularly engage in the practice of defensive driving because of the fear of law suits”, said Mr. Mieway during his appearance before a Congressional Committee. As he explained, “Truck drivers are travelling at the posted speed limits instead of going 20 miles per hour faster; they’re staying in the right hand lane instead of passing on hills, they’re taking safer routes to get to their destinations even though it wastes time, and they’re even stopping to sleep rather than driving straight through for 24 hours like they’re suppose to do.”

As with medical malpractice tort reform, truck driver reform’s central feature is a limit on the amount of compensation persons injured by negligent truck drivers can received for their injuries. As Otto Miway sardonically noted:
“If a person is seriously injured because of a truck driver’s negligence so that they should normally receive $1,000,000 in damages for their injuries, and we can arbitrarily limit their recovery to only $250,000 like they want to do for doctors, we have just saved the trucking industry $750,000. The proof is in the pudding, so to speak, whether you’re talking doctors or truck drivers, and the Teamsters Union wants in.”

Mr. Mieway concluded his remarks to Congress by noting the similarity between persons injured by medical negligence and those injured by truck driver negligence. “When an obstetrician screws up, it usually means a little baby is seriously injured. When a truck driver drives his semi into a car, it usually means pretty bad things are going to happen to the people in that car. You put limits on damages in cases involving truck driver negligence, you’re talking big buck savings, just like in medical malpractice cases. What possibly could be wrong with that scenario?”

Tort Reform--The Price We'll Pay for Questionable Savings

2009-10-29T17:53:00.000-04:00

The Congressional Budget Office (CBO) recently published a report on the health care cost savings that would be achieved by tort reform measures currently under discussion in Congress. The accuracy of the CBO’s report has been challenged and whether the tort reform measures would achieve any meaningful reduction in health care costs remains controversial. For a discussion of the inaccuracies in the CBO analysis, go to:
http://www.centerjd.org/archives/issues-facts/CJDCBOCritiqueF.pdf www.commondreams.org/view/2009/10/13-13 www.Mcclatchydc.com/washington/story/76639.html

While the cost savings that would be achieved is controversial, it is clear that a significant loss of legal rights would occur if these tort reform measures became law.

A good way to understand why this is so is to apply the tort reform measures to an example of a case of clear medical negligence in which a patient has suffered an unquestionably serious injury. The example we will use is surgical amputation of the wrong leg since it clearly fits that criteria. We will make our patient, whom we will call Ann, a thirty-two year old, college graduate who works in an administrative capacity for a governmental agency who for medical reasons needed to have her left leg surgically amputated.

Let us now apply the following tort reform measures involved in CBO’s cost analysis to Ann’s medical negligence case –a maximum limit on non-economic damages of $250,000,a maximum limit on punitive damages of $500,000 and the elimination of the collateral source doctrine in all medical negligence cases.

Ann sustained substantial non-economic damages. She will likely be a double amputee as she will have to proceed with the originally planned amputation of her left leg after being informed that her healthy right leg had been mistakenly cut off.

Ann’s human suffering injuries include mental anguish, pain and suffering, physical deformity, humiliation, embarrassment, loss of ability to fully enjoy life, and depression. The tort reform measures would limit Ann’s compensation for all of these human loses to $250,000. No punitive damages would be added to this amount. Ann’s doctor was grossly careless in cutting off her healthy leg but he did not do it “maliciously” or “intentionally,” which is what is required for an award of punitive damages.

Due to the elimination of the collateral source rule, Ann would also not receive any compensation in her medical negligence case for her significant loss of time from work during her rehabilitation or the cost of the medical care that she required which exceeded $200,000. Ann had accumulated substantial sick leave during her employment and had good medical insurance through her work for which she paid half of the monthly premium. As a result, all of Ann’s leave from work was paid leave and all of her medical bills were covered by her insurance.

Under existing law, the fact that a third party paid for Ann’s lost time from work (her employer) or her medical expenses (her medical insurance company) would not serve to reduce the compensation her negligent doctor would owe her for these losses. With the elimination of the collateral source rule, that would no longer be the case. Ann’s negligent doctor, not Ann, would receive the benefit of the paid leave she had earned and the medical insurance coverage she had in part paid for and in part earned by work. Ann will not even receive reimbursement for the premiums she paid for the medical insurance benefits which her negligent doctor will use to reduce his obligation to her. That Ann no longer has sick leave available to use for other medical problems will also be of no importance to her medical negligence case.

Finally, Ann is now understandably concerned about her long term ability to remain successful in the work force because of the injuries she has sustained. However, Ann was able to return to her administrative job after her rehabilitation. As a result, she will receive no compensation for lost future earnings because the risk of such a loss is only a possibility, not a probability, which is what the law requires.

So, with the tort reform measures in place, Ann’s compensation in her medical negligence case will be at most $250,000. That’s $250,000 for becoming a double amputee at the age of 32 because of someone else’s negligence. And it’s $250,000 solely because that someone else happened to be a doctor.

Pretty sweet deal if you’re the negligent doctor or his liability insurance company. Not so sweet if you are Ann.

Cost savings? Unclear. Substantial loss of legal rights? Roger that.

Defensive Medicine---“The Devil Made Me Do It!”

2009-10-08T21:05:00.000-04:00

If unnecessary tests and procedures are major reasons for the high cost of health care in our country shouldn’t we make an effort to identify the doctors engaging in such practices and take steps that will cause them to stop?

We are not doing that. In fact, no effort is being made to identify the culprit doctors. And for those who publicly claim they are in the practice of ordering unnecessary tests or know of fellow doctors who do so, nothing is being done to reprimand, sanction, or even criticize them by either the American Medical Association or State medical societies. Instead, commentators and our legislators accept whole cloth the doctors’ claims that they are being forced to engage in such practices because of the “fear of being sued” and express sympathy for their “plight”.

The excuse that is being given for the practice is nothing other than the “The Devil Made Me Do It” defense. It’s what you said when your hand got caught in the cookie jar - your Mother didn’t buy it and your hand was slapped - we shouldn’t buy it either. Those in the medical profession who are engaged in ordering unnecessary tests should be given a dose of tough love with their hands slapped instead of a “there there” and a hug.

It’s more than an unnecessary expense that is making health care costs in our country soar. Ordering tests that are not necessary is blatantly unethical and dangerous.

Let’s take the most commonly cited example of “unnecessary tests” that are being ordered in our country----radiology studies such as X-rays and CT scans. These are not innocuous studies. X-rays and CT scans can have major adverse health consequences such as cancer for the patients who are being x-rayed and scanned. A recent study has concluded that as much as two percent of cancer cases diagnosed in our country are likely related to cumulative over-exposure to radiation.

We all absorb a small level of radiation in our daily lives from a variety of sources such as radon, which exists in the soil and emits low levels of radiation, but the major single source of our exposure to radation during our lifetimes is from radiology imaging studies such as X-Rays and CT scans. A CT scan exposes a patient to an estimated 1,000 millirems of radiation per study. Exposure to 2,000 millirems of radiation in the course of one’s lifetime is considered “high". After two CT scans a patient has been exposed to a high dose of radiation! That’s the serious consequence to the patient if his doctor knowingly orders an unnecessary CT scan. For more information on the study referenced above go to the following link: http://www.washingtonpost.com/wp-dyn/content/article/2009/10/05/AR2009100502908.html)

All doctors take the Hippocratic Oath. It is an oath which traces its origins to the early days of medicine in the fifth century BCE. It is a sacred vow to “do no harm” in administering to a patient’s medical needs. The Code of Medical Ethics of the American Medical Association incorporates this same ethical principal by stating “A physician shall be dedicated to providing competent medical care, with compassion and respect for human dignity and rights.”

For a doctor to order tests that he knows are unnecessary flies in the face of the Hippocratic Oath, violates the Medical Ethics sanctioned by
the AMA and rubs raw because it is placing his or her vaguely threatened self interest above the best interests of his patient.

The “devil made me do it” is no defense to this unethical and dangerous practice. Doctors take an oath-they should abide by it.

TORT REFORM AND COTTON CANDY

2009-09-26T16:50:00.000-04:00

Tort Reform is like cotton candy. It looks so good and seems so substantial. Then you bite into it and realize it’s nothing but air.

For example, the insurance industry claims we need tort reform to eliminate the flood of frivolous malpractice law suits. They claim all of these frivolous law suits are driving up the premiums they must charge doctors for liability insurance and that this in turn is driving up the cost of medical care and driving doctors out of practice.

But are the premiums being charged doctors for liability insurance so high because of frivolous lawsuits or are the insurance companies simply charging very high premiums because they don’t need to worry about losing business to a competitor who charges less? Are insurance companies agreeing behind closed doors to divide markets and fix prices?

But, you say, the insurance companies couldn’t do that. It would violate the federal law against price fixing and the Antitrust Division of the Department of Justice would be all over them. Think again.

• Federal laws that make it a crime for businesses to conspire to fix prices do not apply to insurance companies.

Competing insurance companies who are in the business of insuring doctors against medical malpractice claims can bypass healthy competition and conspire to fix prices with impunity because the insurance business has always been exempt from federal price fixing laws.

There is reason to believe this is occurring. Did you know that most States only have one or two insurance companies to whom the doctors can turn for liability insurance? Did you know that in States where there is more than one company offering to sell liability insurance to doctors the difference between the premiums the different companies charge for the same insurance policy is typically insignificant? Unlike the competitive auto insurance industry, fifteen minutes won’t save you $500 in purchasing medical liability insurance.

But what about the flood of frivolous law suits? The insurance industry’s claim that they are being “forced” to charge hefty if not downright outrageous premiums because of a flood of frivolous law suits lacks corroboration from any outside institution.

• No insurance company has ever opened its books to outside objective auditors to show that the high prices they charge doctors for medical malpractice liability insurance are really due to ‘frivolous law suits’.

• No medical malpractice insurance company has ever disclosed detailed information on all the cases they have defended or settled for any fiscal year to support the claim that the majority or even a significant portion of those medical malpractice claims were ‘frivolous’.

Tort reform is not the answer to the high cost of medical care in our country because frivolous law suits are not the problem. The problem is just corporate greed.

Like cotton candy, tort reform is not what it seems. Once you bite into it you find that all tort reform really does is help the insurance industry maintain its profit margin and bottom line without doing anyone else a bit of good.

DEFENSIVE MEDICINE: REAL OR JUST ANOTHER BOOGEYMAN?

2009-09-07T20:50:00.001-04:00

The cost of defensive medicine is one of the justifications being used for adding “tort reform” measures to whatever health insurance reform bill makes it out of Congress.
Tort reformologists blame greedy plaintiff’s lawyer and their injured patient clients for the high cost of health care. Objective studies demonstrating that defensive medicine adds to the problem of high health care costs are never cited by these tort reform advocates because no such study exists. Instead, they rely on anecdotal stories such as the following which recently appeared in an article advocating tort reform.
“All one has to do is walk the halls of hospitals or eat in the doctors' dining rooms in order to hear the ongoing frustration of physicians as they discuss ordering of unnecessary and excessive tests to protect themselves from the legal profession.”
Is it just me or is it hard to picture a group of doctors having lunch in the hospital cafeteria discussing their frustrations over all the unnecessary tests they had just felt compelled to order that morning? Doesn’t the picture seem more believable if they are, instead, discussing their frustrations over the stock market or their golf games?
Do doctors really routinely order tests they know are not necessary? Keep in mind that running up a patient’s bill for no good reason would violate: (a) medical ethics; (b) the fiduciary duty physicians owe their patients; and (c) federal law and regulations governing Medicaid and Medicare.
It may be that too many expensive tests are being ordered. If that is the case, the reason is more likely profit, not fear of some law suit being filed in the future. Acquiring diagnostic equipment represents a huge capital investment for a hospital. The hospital wants the expensive equipment to at least pay for itself, if not become a profit center. The only way the new state of the art MRI in the radiology department can become a cash cow for the hospital is if the hospital’s physicians used it extensively.
There is also a human factor that helps explain hospital physicians’ over-use of expensive diagnostic equipment. Emergency Room doctors are over-extended because hospitals under-staff their ER to save money. Screening a patient to determine if he or she should have an MRI or a CT Scan, for example, would typically entail a careful physical exam and a detailed medical history, both of which require time. With 10 other patients in curtained off ER rooms waiting to be seen, the temptation to skip the screening and just order the MRI or CT Scan “because we’re probably going to need it anyway” must be very powerful.
Defensive medicine. Boogeyman or real? In the absence of hard data, does it really seem likely defensive medicine is a factor in the overall cost of health care in our country? At the very least, should we not demand convincing proof that it is the culprit before agreeing to include “tort reform” restrictions on the rights of injured patients in the health care reform legislation that our country truly needs?

2009-08-24T06:55:00.013-04:00

FRIVOLOUS LAW SUITS----WHY NOT IDENTIFY THEM IF THEY REALLY DO EXIST?

How do we resolve the he-she argument over whether frivolous medical malpractice law suits are a major reason for the high cost of medical care, as “tort reform” advocates claim?

Why not be from Missouri and say “show me”. Don’t show me some old law suit from the insurance archives of outrageous court cases. The claim being made is that the current medical care “crisis” is due to frivolous medical malpractice law suits so let’s focus on current cases.

We will, of course, need to know how many medical malpractice cases are currently pending so that once the frivolous cases are identified we can determine what percentage of the total cases they represent and whether frivolous medical malpractice cases are a systemic problem. Obtaining that data should not be a problem. The medical malpractice liability insurance consortium probably is already keeping track of such things and could easily determine the total number of pending cases if they were willing or forced to do so by, for example, a Congressional committee.

But how do we identify the potential “frivolous” cases to see if they really are frivolous? We don’t have to. The physicians who see themselves as defendants in current “frivolous” medical malpractice law suits simply need to speak up. Clearly, if a defendant doctor doesn’t think the case against him is frivolous, we can assume that it isn’t. We can then take each case that is identified and gather the needed information from the court file to see if the case does appear frivolous. If we have difficulty deciding whether a particular case is “frivolous” we put it in the ‘maybe” category and let a blue ribbon panel take an in-depth look to make that determination.

If it turns out that there are none or that the truly frivolous medical malpractice cases comprise only a very small percentage of the total it would seem we could safely conclude that frivolous law suits are not a significant factor in the high cost of medical care. If the percentage of truly frivolous cases appears to warrant it, the final step would be to identify the financial costs associated with these cases—how much did it cost to defend them and did they result in an award of money to the plaintiff, by settlement or court judgment.

Are “frivolous medical malpractice cases a real problem or is it just a boogie man being used by the insurance and health care industry in their on-going efforts to take away the rights of the seriously injured and their families?

The proof is in the pudding. We’re from Missouri, so show us if the problem is real if you want us to believe you. Raise your hand, physician, if you think you are being victimized by a frivolous medical malpractice law suit.

The Driving Force Behind the High Cost of Medical Malpractice Insurance for Obstetricians

2009-08-02T07:59:00.004-04:00

Medical malpractice insurance for obstetricians is very expensive. However, you don’t need “too many frivolous lawsuits” to explain why that is so. Common sense will give you the answer. If you don’t do your job when you are delivering a baby the consequences of your carelessness can be catastrophic injuries and the cost to provide for the life time needs of the catastrophically injured new born is enormous. As a result obstetricians will always pay significantly higher premiums for medical malpractice insurance than physicians in the business of treating, for example, acne, so long as doctors are not insured as one large pool but are grouped together by specialty for insurance purposes.

And the cost of the insurance likely will also be pretty healthy because of the compensation the injured newborn and his or her family needs to meet their harms and losses when an obstetrician’s negligence causes injury. A recent study concluded that the core cost of raising a cerebral palsy child is over $900,000. That does not include a ton of costs that anyone who has ever raised a cerebral palsy child knows are also required. On top of that, you have the equally enormous expense providing for the cerebral palsy children when they are adults and their parents are no longer alive or physically capable of being their primary caretakers and providing a home for them, a service by the way that typically is not even included in calculating the economic needs of raising a birth injured cerebral palsy child.

Do ‘frivolous law suits” add anything to the high cost of obstetrical malpractice insurance? The liability insurance industry probably can pull up some examples of “frivolous” medical malpractice cases from their vast data bank of claims. But “frivolous cases” do not regularly win in court. “Frivolous cases” are not being regularly settled by the insurance companies. And “frivolous cases’ are not regularly approved for settlement by the obstetricians who have been sued. The bottom line: no published study on health care costs by any government agency or independent body has ever concluded that ‘frivolous claims” play any real role in the high costs of medical care or medical malpractice insurance.

Is the cost of medical malpractice insurance so high that obstetricians are being forced out of the field and new physicians are being deterred from entering it? Good studies do not exist that answer this question. But if, as some claim, that is happening then the first thing that should be done is determine if this high cost is really justified or if, instead, it represents price gouging by the insurance companies.

Does the amount the insurance companies pay out on obstetrical negligence claims justify the huge premiums they charge obstetricians or are the insurance companies using “litigation crisis” scare tactics to cover their tracks while they rake in an obscene profit?

Who has the data to answer this fundamental question? The medical malpractice insurance industry, of course. Is the medical malpractice insurance industry sharing this data with the public? No. Who should evaluate the data to determine where the truth lies? Congress or a blue ribbon panel committee appointed by Congress and invested with full subpoena power to make sure they get the truth.

Has this been done? Not yet, but it would be a step in the right direction.

The exhoribant cost of medical malpractice litigation--who's the culprit?

2009-07-02T21:42:00.042-04:00

One of the claimed justifications for the “tort reform” proposal of putting caps on damages in medical malpractice cases is that this drastic step will reduce the exorbitant sums of money that is being spent on medical malpractice litigation. There is no question that the cost of medical malpractice litigation is exorbitant. But before you can design effective steps to address this problem, you first need to determine who is responsible for the problem in the first place. The fact is it is the Defense not the Plaintiff’s side which has created this problem.
To understand why that is so, ask yourself a fundamental question: which side benefits from medical malpractice litigation costing more and taking longer to resolve----the plaintiff or the defense? Does the injured plaintiff patient who has limited financial resources and his or her attorney who is being compensated strictly on a contingency fee basis derive any benefit if the medical malpractice litigation costs more or requires more time? Clearly not.
On the other hand, does the medical malpractice insurance industry with its extensive financial resources derive any tactical advantage over its limited resources plaintiff adversaries if the litigation in which they are engaged requires substantial out of pocket expenses? And do defense attorneys, who are paid on an hourly basis and whose total compensation will depend not on outcome but how much time they spend on a case, stand to gain financially if medical malpractice litigation lasts longer and is more time consuming? You don’t need CSI to know that the answer to both of these questions is a resounding yes.
If defense has the motive to make medical malpractice litigation more expensive, do they actually do it in defending malpractice cases? Unfortunately, yes. Why would they do it? Deterrence. Their goal is to make medical malpractice cases so unprofitable due to the huge costs involved and the risk-reward analysis so dicey that an injured patient will not be able to find an attorney who will take their case.
Do the insurance companies actually engage in this practice of making medical malpractice litigation as expensive and risky as possible in order to deter other cases from being pursued? Once again, unfortunately, the answer is yes. Most of the insurance companies do it quietly. Some do it openly. An example of the latter is Pro Assurance, a national medical malpractice liability insurance company which makes no bones about their business strategy of seeking deterrence by increasing the costs of litigation. Pro Assurance follows a policy of forcing virtually every medical malpractice case they defend to trial, regardless of the merits. A defense panel review of a case will conclude the case is defenseless. The doctor involved prefers to settle. Pro Assurance will still force the case to trial because of its “drive the costs up” policy.
This, of course, is contrary to the best interests of society, the legitimate rights of the injured patient to an affordable venue to resolve their legitimate claims, and the goals of our judicial system which seeks to reduce not lengthen litigation, reduce not increase litigation costs, and resolve cases on a reasonable basis through mediation, not trial.
How do you stop the medical liability insurance companies like Pro Assurance from snubbing their nose at the financially disadvantaged injured patient, society and our courts? There is no easy answer. But the starting point is to focus on the culprit, the medical liability insurance industry and companies like Pro Assurance, not the injured patient plaintiff and the attorneys who are willing to represent them. And for sure, caps on damages are not the answer.

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THE REAL TRUTH ABOUT FRIVILOUS MEDICAL MALPRACTICE LITIGATION---IT'S THE DEFENSE!

2009-06-29T22:35:00.007-04:00

Most defense verdicts in medical malpractice trials represent wrong decisions for wrong reasons that have had nothing to do with the merits of the case. The favorable verdicts defense obtain in the vast majority of medical negligence cases that go to trial are touted by the "tort reformers" as evidence that there is too much frivolous litigation against doctors. The claimed doomsday result is that, unless we find ways to stop this barrage of frivolous litigation, physicians will be driven into early retirement or to abandoning their health care professions in favor of a less litigious work life.

Nothing could be farther from the truth.

Think about it. In the first place, why would so many of the medical negligence cases that go to trial be frivolous? Putting aside the safeguards built into the system that are designed to weed out frivolous cases before they reach the trial stage, what attorney in his right mind would do it? Not many, if any, and those few that might do it once will not be around long enough to do it twice. Medical negligence cases take 3-4 years of hard work from the time they come through the door to the time they go to trial. In addition to devoting a significant part of your work life to the case during those three years, a plaintiff's attorney is also committing a significant portion of the available time of his legal staff to this case. The plaintiff's attorney is also investing typically from $100,000 to $300,000 of his own money into the case in order to bring it to trial. And. of course, unless his client's case is successful, the plaintiff's attorney has done all this and spent all this money for nothing---the representation has been on a contingency fee basis which means if there is no recovery, there is no fee and no reimbursement of costs.

The only attorney who can afford to be involved in a frivolous medical negligence case is the defense attorney. Defense attorneys don't select the cases they will defend---the cases are assigned to them by their medical liability insurance clients. Defense attorneys don't have to screen the cases for their merits because, whether they win or lose, they get paid---they don't work on a contingency basis. And defense attorneys don't have to worry about the merits of the case they are defending as far as how much the case will cost out of pocket because all of the litigation costs are paid for by their insurance company client.

The importance of this difference is the impact it has on what kind of frivolous cases go to trial. By and large, the frivolous medical negligence cases that go to trial are those that are frivolous from the standpoint of the defense!

Why then, do the majority of medical negligent cases that go to trial end up with a defense verdict? Because the playing field is not level and the injured patient has an uphill battle to overcome from day one to the day the verdict is rendered. The entire system is gamed in favor of the defendant.

A recently published article bears this out. The article reported on a retrospective study of medical negligence cases that had gone to trial. Each case was submitted for a blind review by a panel of physicians to determine whether the medical negligence case was meritorious. The result was that in the vast majority of the medical negligence cases where the jury had returned a verdict for the defense, the medical panel found the case was in fact meritorious and that the health care provider involved had been negligent.

Tort reform is needed in our civil justice system. But the reform we really need are changes to our system that will level the playing field and eliminate the unfairness that currently exists to those seeking compensation for harm they have suffered due to the medical negligence of their treating physician. What we don't need are any more draconian measures that will further insulate negligent members of the health care industry from responsibility for their carelessness.

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Breast cancer and medical malpractice---sometimes game, set, and match for defense before you get to serve!

2009-06-14T09:36:00.010-04:00

“Tort reform” sounds like it should be about correcting laws that are unreasonably unfair. It's not. It’s really about expanding unfair advantages the health care industry already has and completely ignores the unfairness that already exists for those seriously injured as a result of medical negligence.

In recognition of the recent Susan B. Komen Race for the Cure walk and run, Legalsmeegal in this post will focus on an unfairness in our legal system that particularly impacts breast cancer medical malpractice claims. This is the “Statute of Repose”. Statutes of Repose are specially enacted laws that extinguish the rights of injured patients to file medical malpractice claims against their negligent physicians after a specified time has passed from the date of the medical negligence. In Maryland, for example, the Statute of Repose is five years. The problem is that the Statute of Repose runs from the time of the negligent act and, in many instances, it takes a breast cancer patient more than five years to even know she has been subjected to medical negligence.

Here’s how it works. Let’s take as an example a woman residing in Maryland who, in 2002, has a small breast malignancy for which she has a lumpectomy. The pathology report on her surgical specimen indicates that the margins are clear----no cancer cells were bumping up against the edges of the tissue removed. The patient and her surgeon are thus led to believe that that there were no cancer cells left behind. The goal, of course, is to get ALL of the cancer cells, not just SOME. However, in this instance, the pathologist screwed up as he failed to see under the microscope that the cancer cells had extended all the way up to the edges of the tissue removed on one side of the surgical specimen. Six years later, a breast lump appears in the patient’s same breast in the area of the incision for her 2002 lumpectomy. It is the same cancer, not a new cancer. Unfortunately, the cancer has now had enough time to not only grow into a new palpable breast mass but to also spread to the patient’s lymph nodes, lungs and bones. The patient’s prognosis is dire, even with very aggressive treatment.

Okay, you say, but the pathologist did not do it on purpose and at least he will end up having to provide reasonable compensation to his patient for the horrendous harm that has resulted from his oversight. Wrong. For any other type of negligence claim in Maryland the injured party has three years from the time he knew or had reason to know he had been injured by someone else’s negligence to file a law suit. That’s the Statute of Limitations. But when the negligent party is a member of the health care industry, the Statute of Repose also requires that the injured patient must file a law suit within five years from the date of the negligent act. That means our breast cancer patient lost her medical negligence claim against her negligent pathologist in 2007, a year before she even learned she had recurrent cancer. In short, game, set and match for the negligent pathologist before his patient was able to do anything about it.

Breast cancer victims are not alone in being unfairly precluded from seeking accountability from negligent members of the health care industry. The draconian Statute of Repose affects all patients who have cancers that can take years to become clinically apparent and are curable with early diagnosis and treatment. For example, colon cancer patients whose primary care physicians don’t take the time to look for occult blood in stool specimens or who fail to order colonoscopies for their patients beginning at least at the age of 50, can go years before their undetected cancers rear their ugly heads. The same is true for cervical cancer patients whose positive pap smears are misread and misreported as normal and years go by before the cancer in situ has become an invasive deadly cancer.

How can you justify cutting off the right of horrendously injured patients to file medical malpractice law suits against their negligent treating physicians before the patients have reason to suspect the negligence? You really can’t. But, yet, you hear nothing about correcting this gross unfairness in any of the discussions about the need for “tort reform”. Why? Because it was the “tort reform” movement that resulted in these unfair Statutes of Repose being enacted in the first place. And this is not just a problem for Maryland patients. The health care industry and its aligned medical liability insurance industry have been successful in having Statutes of Repose enacted in many States throughout our country.

“Tort Reform”. Sometimes you can’t tell a book by its cover.

Caps on Damages-it only hurts the one you hurt

2009-05-03T17:09:00.016-04:00

A trial is not conducted on a level playing field. In civil cases, it is substantially tilted in favor of the defendant. On its surface, that does not seem very fair. While there are reasons why tilting the playing field in favor of the defendant is justified in a criminal case, there is little, if any, justification for this to be so in a civil case. Unfortunately, the result of the uneven field is that many seriously injured individuals who have been harmed due to the carelessness of another person do not receive any compensation for the losses they have suffered. Of the many reasons why the bad guy is able to dodge the bullet of responsiblity for the harm he has caused, one of the most egregious protectors of the negligent are Caps because Caps result in the seriously injured still losing even though their claims have been found to be legitimate and they have won.

Caps. The bane of the injured and the Holy Grail of the liablity insurance industry.

Caps are legislatively imposed maximums on the amount of damages a negligently injured person may recover from the negligent hospital or physician who caused their injury. Caps are the cornerstone to "tort reform" and, in particular, to "health care reform" legislation promoted by the insurance industry and the medical profession.

Is there any benefit for the common good achieved by Caps? There are many claims regarding the good they achieve but little evidence to back up those claims. Most, if not all, of the studies into the value of Caps that have been conducted by objective organizations have concluded they serve no real purpose other than to benefit the liablity insurance industry. But what is often lost in the discussion of Caps is the real price we pay for having Caps. Regardless of the value of Caps, whatever it might be, you cannot tell if Caps are worth it unless you know the price you are paying for them.

The devil is in the details, of course, and the best way to appreciate the price we pay for Caps is to look at what happens in cases where they come into play. In doing this, the first thing to note is that Caps have nothing to do with "absurd vedicts" and 'out of control" jury awards that drive much of the argument of tort reform advocates. A trial judge, by the way, always has had the ability to intervene in the rare case where such unreasonable results occur and order a new trial or reduce the amount of the jury verdict. Caps, by definition, apply only to cases with merit. The medical negligence case has been validated by a jury that has found in the injured patient's favor and has made an assessment of the compensaton needed to fairly address the injuries suffered. Before Caps apply, the merit of the case has been further validated because the trial judge has reviewed the jury's verdict and has found the jury's decision on negligence to be reasonable and its award of compensation to be fair. In short, by the time the Caps come into play, the "frivilous cases" have been disposed of, one way or the other.

To see the effect of Caps, we will use as an example an adult in his thirties who is a computer programer and an outdoor enthusiast whom we will call Bob. Bob has a wife and two young children. Bob suffers a herniated disc injury during a family camping outing and elects to have surgery to repair the disc. Bob suffers a permanent spinal cord injury during the surgery that leaves him a paraplegic with bladder and bowel incontinence and impotence. A civil medical negligence case is filed alleging that Bob's injury during the surgery was due to carelessness on the part of the surgical team.

On the eve of trial, the surgeon and hospital admit that negligence occurred and that it was the cause of Bob's paraplegia. Bob's paraplegia does not impact his employment or his career as a computer programer since he is able to do his work from his wheelchair using his brain instead of his brawn. Bob has medical insurance that covers the $350,000 of medical expenses he incurred for treatment and rehabilitation. However, Bob's paraplegia and related injuries have clearly impacted on other aspects of his life, both as an individual who enjoyed a wide variety of sports and recreational activities, as a father in participating physically with his children in their activities and in family outings, and as a husband in his personal relationship with his wife.

The jury's verdict is for $2,350,000 representing $350,000 for the medical expenses and $2,000,000 as compensation for the human suffering and loss of enjoyment of life Bob had suffered and and will experience the rest of his life. One would be hard pressed to argue with the reasonableness of this jury verdict or that the compensation awared was not justified.

But what will Bob actually receive. Enter the Caps! The effect of the Caps will vary as each State's Caps have their own peculiarities. For our example, we will use Maryland since it is at least fairly representative of how most States' Caps work.

$2,000,000 of the compensation Bob was awarded by the jury will be automatically reduced to $650,000 because, in Maryland, that is the Cap on "non-economic" damages that can be recovered in a medical negligence case, regardless of how seriously the physician or hospital has needlessly injured their patient through their carelessness.

What about the $350,000 "economic" damage award? That really does not factor into what Bob will receive. Even though Bob paid the premiums to have the medical insurance coverage, the $350,000 will go to the medical insurance company which has a lien on Bob's recovery for the amount of medical expenses it paid.

Cost to Bob of the Caps---$1,350,000. Cost to society------the price we pay in the long run for not having a judicial system that is fair and for having an ever enlarging segment of our population that not only feels cheated and betrayed but in fact has been cheated and betrayed. Bob is just an example, of course. The artificial ceiling on what is fair compensation for injuries caused by medical negligence applies to everyone and every type of human suffering that is non-economic. Caps apply to the life time suffering and the diminished ability to enjoy life experienced by our cerebral palsy children whose brains are oxygen starved and injured at birth because the obstetrician ignored the labor and delivery nurse's call and stayed in bed. It applies to our breast cancer wives, mothers and daughters who spend the rest of their shortened lives fighting metastatic disease or living in fear of it because a radiologist did not see what was there to be seen in a mammogram. And it applies to our fellow citizens who go from being productive care giving people to damaged, physically deformed and completely dependent individuals because they were ignored for hours in the Emergency Room while they suffered an evolving stroke or heart attack.

This is not a small price to pay. And for those that are asking us to pay it, should we not first insist on their producing hard evidence to back up their claims that Caps will actually achieve a benefit to our socieity that is significant enough to justify allowing the seriously injured and their families to be second class citizens in our Courts of law? So, someone please explain---what is the benefit and where is the proof?