Archive for the ‘Tort Reform’ Category

Legal Boot Camp (Class Three): Sean and Kristy’s Story – Wrongful Death and Survival Actions

Wednesday, June 8th, 2011

From the Editor – Please see ourdisclaimer at the end of this blog for a better understanding of the limitations of this series and our mission statement.

Last month, Sean turned 24.  He and Kristy are married. Their daughter, Kira, is 2-years old.  Sean just entered medical school. Kristy’s parents support them, while Sean is in school.  Sean has never held a job.  Kristy is a stay at home mom. A month ago, Sean was driving home when a drunk driver pushed him off the road. In the accident, Sean broke his sternum. He also sustained a number of vascular injuries, which caused internal bleeding. He was rushed to the nearest hospital. Soon after his arrival, Sean underwent surgery to stop the bleeding.

Sean was recovering beautifully. Unfortunately, on his third day in the hospital, he developed rapid breathing, shortness of breath, and his chest pain got worse. A CT scan of the chest revealed that Sean had a pulmonary embolism. He was immediately ordered anticoagulation medication. The physician ordered 100 mg of anticoagulation medication to be split into two doses a day. The nurse misread the order and mistakenly administered 1000mg all at once. The overdose caused Sean to have extensive bleeding. Sean was scheduled for discharge within the next 3 days. Instead, he died within a few hours.

Now, think about this: Sean died prematurely at the young age of 24. Kira, lost her father. Kristy lost her husband. She now has a child to support all by herself. She has no income of her own, and she can’t rely on her parents indefinitely. After careful consideration, Kristy decided to sue the nurse (and her employer, the hospital) who overdosed her husband.

In Maryland, what will she be able to recover against the nurse in a medical malpractice suit if the jury finds the nurse (and/or her employer the hospital) negligent?

Recovery in a Maryland Survival Action

The answer to that question depends on the type of action brought against the nurse and/or hospital . Kristy, as the Personal Representative of Sean’s Estate, can sue the nurse  (i.e. a survival action). In a survival action, Kristy is essentially bringing a claim on behalf of her deceased husband for damages that he would have been entitled to claim against the nurse had he lived (i.e. had he survived – thus the name “survival action”).  In such an action, the monetary award would go to Sean’s Estate, and it would be distributed according to his will or, if he died without a will, according to Maryland’s Intestate Statute. In a survival action, Kristy can recover the medical expenses incurred by Sean as a result of the nurse’s negligence. This amount would be insignificant because Sean died within a couple of hours from the time the medication was administered.

Kristy may also recover any of Sean’s lost earnings from the time of his injury to the time of his death. Well, there are no such damages here because Sean was unemployed. Kristy could recover Sean’s funeral expenses up to five thousand dollars. She could also recover non-economic damages associated with Sean’s pain and suffering from the time of his injury to the time of his death.  In Maryland, however, these damages are limited in Maryland to about  $650,000.  Therefore, the most Kristy could recover in a survival action would be limited to about $655,000.

Recovery in a Wrongful Death Action

Kristy could also bring an action for wrongful death. In this action, Kristy could recover economic damages that she personally sustained as a result of Sean’s death. She is also entitled to recover economic damages equal to the financial support that she would have had from Sean had he lived.  In this case, it is difficult, if not impossible, to make such a determination. Sean was unemployed at the time of his death. He had no employment history.  Sean was not supporting his family financially. Kristy’s parents supported both of them.

So, how does one calculate the financial support that Kristy’s could reasonably have expected to receive from Sean in the future had he lived? One could argue, pursuant to a number of Maryland cases, that Kristy is not entitled to recover any of Sean’s future lost wages because he never worked and because he never supported Kristy financially.

Theoretically, Kristy could make a claim for loss of household services (cooking, cleaning, babysitting, etc.). In this case, however, Sean was a busy medical student, and Kristy was in charge of the household.  Therefore, it is unlikely that she would recover any such damages.

Wrongful Death – Solatium (non-economic damages)

Since her case would be in Maryland, Kristy could claim damages for her mental anguish, emotional pain and suffering, loss of society, loss of companionship, comfort, protection, marital care, attention, advice and counsel associated with Sean’s death. Here again, these damages are limited to about $650,000 notwithstanding the severity of Kristy’s pain and suffering.

Total Recovery in a Survival and a Wrongful Death Action

If Kristy were to bring a survival action and a wrongful death action in Maryland, her damages for pain and suffering under both actions would be overall capped somewhere between $812,000 and $868,000 (the “cap” on such damages is determined by the year the “cause of action accrues). It is possible that this is all she would be able to reocover against the nurse if she brought claims for wrongful death and survival.

Sean’s daughter, Kira, has a wrongful death claim against the nurse as well.  She would be entitled to recover the value of the support, which Sean would have provided to her had he survived.  Again, because Sean never actually supported Kira financially and because he never worked, that may be something very difficult to prove.  Kira, just like her mother, will be able to claim damages for her pain and suffering resulting from her father’s death. However this recovery would also  be limited to about $650,000. This cap is imposed on both Kira and Kristy’s recovery. That is, if a jury were to award Kristy $650,000 for pain and suffering and another  amount  of $650,000  to Kristy for pain and suffering, both Kira and Kristy would recover an overall amount of $650,000 (not $1,300,000).

Keep in mind, these “possible recoveries” are reduced by the costs and fees associated with litigation.

Justice or Injustice?

Now, think about this for a second… Sean’s normal life expectancy was going to be approximately another 50 years. All things being equal, he would have had a normal working life expectancy. Kristy’s life expectancy is about the same. Kira has another 16 years before she reaches the age of 18. The average cost of living in Maryland is about $3400/month, and in some places it is a lot more. Generally speaking,  college tuitions can be anywhere between $8,000/year and 35,000/year. The average cost for family health insurance is about $13,300/year.

So, you do the math: How long is Kristy’s recovery going to last?  How are Kristy and Kira’s lives going to be affected by the Sean’s death? Is Kristy’s recovery sufficient compensation for her loss?  The principle of compensatory damages is to put a litigant in the same position that she/he would have been in had the loss not occurred. I, for one, think that this is hardly achieved in this case.

If in a survival action the Estate can bring an action that Sean himself could have brought had he survived, why should his Estate not recover all of his lost future income as a doctor? After all, Sean was expected to earn income as a physician for many years. Why should Kristy be precluded from recovering some of Sean’s future lost wages under the wrongful death action simply because Sean was not employed or contributing financially to his family at the time of his death? Surely, it is reasonable to assume that Sean would have contributed some or most of his income to his family. Finally, why should the State dictate what the value of Sean and Kristy’s pain and suffering is? Shouldn’t this be decided by a jury of their peers? What are your thoughts?

Related Posts:

Malpractice Wrongful Death Lawsuit by Couple Falsely Accused of Abusing Their Child Filed Against Children’s Hospital

Maryland’s Cap and a Message from the former MAJ President re the Goings-On in Annapolis

Legal Boot Camp (First Class): The Story of Pam – Maryland’s Law on Earning Capacity

“Wrongful Death and Survival Actions”

Disclaimer: As is the case with all of our blogs and the writings posted on our website, we are not offering legal advice to our readers. This information in our series,Legal Boot Camp, is being presented in the hope that we can provide some education about the law in Maryland and the District of Columbia. The law in the field of personal injury (and particularly in our sub-specialty of medical malpractice) can be complex and confusing at times. Even in these two jurisdictions where we are licensed to practice, the laws and their interpretation by the courts can vary significantly. It is simply our hope that by presenting this series – Legal Boot Camp - that we can provide a better understanding of some legal principles that can come into play when bringing a civil claim or lawsuit for damages as a result of the wrongdoing of others.
For those who do not live in either Maryland or the Washington, D.C., we hope that we can at least raise some issues for you to consider when you speak with an attorney licensed to practice in the state in which you live. Many times the basic concepts of law are similar. We hope that by raising some of these issues applicable to Maryland and the District of Columbia, you will at least have a basic understanding of some terms and principles that may apply to your situation. Don’t be afraid to raise these issues with your attorney. Education – be it in law or medicine – is our main goal.
Finally, please see our introductory blog for Legal Boot Camp for a better understanding of our mission in presenting this series.


 

 

Health Reform: What voice does the patient have in the debate?

Tuesday, April 26th, 2011

Recently, I came across an Op Ed entitled Health Reform Requires Listening to Doctors. The very title suggests that  physicians and the health care system in general don’t have much of a voice in the discussion of health care legislation.

The question struck me – can that really be true? If the medical profession and health care industry are crying “poor us,” as the Op Ed author would suggest, that’s rather disingenuous at best. It’s well-known in today’s world of American politics that one sure way to have a voice is to hire a lobbyist. According to the Center for Responsive Politicsover $1 billion was spent on lobbying related to health care in 2009 and 2010. Who were the big players and payers in the hiring of lobbyists?

CNN Money tells the tale of the tape:

[L]obbyists for 1,251 organizations disclosed that they worked on health care reform in 2009 and 2010, according to the center and an analysis by the Sunlight Foundation. The number of individual lobbyists who reported working on health related legislation last year hit 3,154 in 2010.

Big Pharma topped the list. The Pharmaceutical Research and Manufacturers of America spent $22 million and deployed an army of no fewer than 52 lobbyists, according to the center.

Blue Cross Blue Shield, which used 43 lobbyists, spent $21 million. The biotech company Amgen (AMGNFortune 500) employed 33 lobbyists and spent $10.2 million.

Yet another source, iWatchnews.org, reports the following:

A Center for Public Integrity analysis of Senate lobbying disclosure forms shows that more than 1,750 companies and organizations hired about 4,525 lobbyists — eight for each member of Congress — to influence health reform bills in 2009.

Among industries, 207 hospitals lined up to lobby, followed by 105 insurance companies and 85 manufacturing companies. Trade, advocacy, and professional organizations trumped them all with 745 registered groups that lobbied on health reform bills, illustrating the common Washington strategy of special interests banding together to pool money and increase their influence.

Seems like a whole lot of money was spent by the health care industry to have a voice.

This blog, however, is not intended to address issues relating to the Obama Health Care Reform (or as it is referred to in some circles as ObamaCare). I don’t claim to understand the in’s and out’s of that political football. I’ll leave that for the so-called pundits to address. What does strike me, however, is the travesty that recently played out in the setting of a threatened federal government shutdown.

Health Care Reform – the goal of the President’s Plan

What was the stated purpose and goals of the President’s health care reform? Look no further than the online posting by the White House for the answer:

Health reform makes health care more affordable, holds insurers more accountable, expands coverage to all Americans and makes our health system sustainable.

Sounds good in principle, right? Putting aside all the politics, rancor and ranting surrounding the debate over the specifics of health care reform, don’t you find it rather ironic that when recent budget cuts to avoid a government shutdown were the topic du jour, those who had very little, if any, voice were the people who desperately need can’t afford health care?

Recent Budget Cuts and Who Paid the Price

As I learned last week, when the back room deals were struck, those without a voice were the victims of political expediency.

As our own Jason Penn reported in his blog post, Budget Crisis Avoided, But What About the Babies? Can They Live With $504 Million Less in Funding?:

At the 11th hour, cuts were made, backroom deals were struck, and Washington spoke:  there will be $38 billion dollars trimmed from the federal budget.  On a positive note, federal agencies will remain operational until the end of September. Reason to cheer? Maybe. Before we break out the party hats and noise makers, let’s take a look at how healthcare fared.  The following areas are among those cut:

-         Special Supplemental Nutrition Program for Women, Infants and Children (WIC):  $504 million

-         Community Health Centers:  $600 million

-         Substance Abuse & Mental Health Services Administration:  $45 million

-         Infectious Disease prevention:  $277 million

Total:  $1.426 Billion.  Yes, billion, with a “B”!

Isn’t the answer of who does and who does not have a voice in the bigger picture of health care legislation and so-called fiscal reform self-evident. Who was there in the back rooms of our hallowed halls of Congress protecting those in need of good primary care programs? I suspect that when it’s crunch time, political expedience wins the day. Need cuts to keep a bloated beast alive and floundering? Snatch it from the ones who will be heard the least – the ones who don’t have the ability to spend over $500,000,000 a year for lobbyists so they can have their voice heard.

As Written in the Book of Isaiah the Prophet…

Apparently it’s just “politics as usual.” For all the rhetoric about making primary health care available to all Americans and improving and sustaining programs to deliver critical healthcare to those who need it the most, the voice crying in the wilderness was not loud enough. Maybe, as the Op Ed author claims, everything the medical profession and health care industry has to say is not being heard or at least being accepted. Nevertheless, they have a voice, which is more than can be said for those they claim they want to protect. How many of the enormous lobbying dollars did the medical community and health care industry spend to protect primary care programs from the budget-cutting ax? I suspect we all know the answer.

 

Image source: fromtheleft.wordpress

 

The Reality of Medical Malpractice Lawsuits: Demystifying and Dismantling the Medical Profession’s Arguments

Monday, December 20th, 2010

A couple of weeks ago, Dr. Kevin Pho published a blog in which he argued that medical malpractices lawyers do not help improve patient safety. My mentor and good friend, Brian Nash, (a medical malpractice lawyer) posted a counter-blog, disputing the validity of Dr. Pho’s conclusion. As a result of these two postings, the two author’s agreed to post Brian Nash’s piece on Dr. Pho’s website – KevinMD.com. This posting, Open dialogue on medical malpractice and patient safety led to an amazing, extensive, thought-provoking and still ongoing public discussion about the role of physicians, lawyers and patients in promoting patient safety. The last time I checked, this discussion generated just over 190 comments

Although many topics were addressed during this discussion, I could not help but notice an underlying sentiment of distrust with respect to lawyers in many of the comments posted in support of Dr. Pho’s blog.  Statements like “lawyers don’t care about the quality of their cases as long as they make money,” or “the medical malpractice system is failing because most cases are filed over bad outcomes and not medical negligence.” Such comments reflect an overall attitude that medical malpractice lawyers are the reason why there is an alleged nationwide medical malpractice crisis.

This argument is terribly misguided and, frankly, based on a number of false assumptions about the practice of law. In part, the misunderstanding stems from the fact that most critics are not lawyers and, thus, not familiar with a lawyer’s everyday incentives, interests, limitations, and obligations. Although a law review article would be more befitting this subject, the following discussion outlines a few considerations that should hopefully illuminate what drives a lawyer’s analysis with respect to the type of cases that should be pursued.

Ethics

Let me begin with the consideration that is most important to me. Lawyers, unlike most other service providers in the workforce, are bound by a code of ethics.  If they don’t follow it, they can be disciplined and even disbarred.  It is as simple as this: in each state, lawyers are subject to a plethora of proscriptive and prescriptive rules. For example, in Maryland, each lawyer must comply with the rules of professional conduct. These rules govern virtually every aspect of legal practice (i.e. conflicts of interest, acting in good faith, etc). In addition to these rules, Maryland lawyers must also abide by local rules of court, the rules of civil procedure and a plethora of cases dictating how lawyers should act.  In this matrix of Rules, many rules directly or indirectly prohibit a lawyer from making frivolous claims, pursuing claims without a good faith basis, and taking unsupported positions during the course of litigation, among other things.

In the District of Columbia, relatively recent legislation requires the giving of a substantive (i.e. not just – I’m going to sue you) notice to the potential defendant(s), which outlines the essential theories of the claim. Failure to give some notice in timely fashion can – and often does – result in the dismissal of a lawsuit in which this notice was not given. Once filed, a patient-plaintiff is, in essence, bound by the same requirements of proving his/her case as in Maryland, but more on that later.

A cynic may argue that the rules are no good if lawyers are not willing to live by them. The assumption that most lawyers don’t care about the rules of professional conduct is just that, an assumption – and a misguided one at that! Most of us care deeply about our clients. Most of us are very proud to be lawyers, and the vast majority of us diligently and religiously comply with our ethical obligations.   You don’t have to believe me; call your state’s bar association for studies directly on point.

As in any other profession, a few bad apples give us all a bad name from time to time.  When this happens, other lawyers are quick to initiate disciplinary actions. In medical malpractice cases, the persons with the greatest incentive to report unethical behavior are the defendant health care providers and their lawyers.  As you may suspect, reporting bad behavior in an adversarial system is a bit more incentivized when compared with reporting among physicians, who practice in a collaborative and non-adversarial environment (i.e. the same hospital, practice group or health care system).

The Financial Realities

In addition to various ethical constraints, I am convinced beyond all doubt that a lawyer would have to be completely out of his/her mind to pursue a meritless medical malpractice case. Don’t forget that a law practice is a business just like any other business. The vast majority of plaintiff medical negligence lawyers practice in small firms. Operational and the litigation costs are very high (if you know physicians who testify as experts in medical malpractice cases, for plaintiffs or defendants, ask them what their hourly charge is to review medical records, give depositions and testify in court. It would be enough in an of itself to make you reconsider your career choice). Generally speaking, most medical malpractice cases (conservatively estimated) require between $50k and $100k to bring to trial. Additionally, each lawyer can only pursue a small number of cases to insure diligence, and yes, compliance with the ethical rules of professional conduct. Keep in mind that the vast majority of medical malpractice cases are contingency fee cases, which means that the law firm (where permitted by law and ethics) advances all of the costs. None of these costs are recouped if the case is lost.

The obvious question – or at least what should be an obvious question is: why would a lawyer want to invest his/her money in a meritless or questionable case?  The simple economic reality of a medical malpractice firm is that it can never afford to pursue frivolous or meritless claims.  Pursing even questionable cases is a good way to go bankrupt. When a frivolous case is filed, guess who is waiting on the other side of the aisle ready to devour it and the lawyer who filed it? Unlike plaintiff lawyers, defense lawyers get paid by the hour. Their spending power on litigation is enormous since they have the financial backing of multi-million dollar insurance companies and/or self-insured institutions.  Because defense lawyers get paid by the hour, they have every incentive in the world to use every known legal tool and maneuver to increase the costs of litigation and defeat the claims against their clients.

Simply put, survival of the fittest (and the smartest) is the name of the game when it comes to choosing cases for litigation.  Every plaintiff’s lawyer asks this question more than any other before signing a case: just how strong is the evidence of negligence? The last thing a lawyer wants to  do is spend thousands of dollars on a case that is frivolous and destined to fail.  When handled by lawyers who are experienced in handling cases of medical negligence/malpractice, if case is in litigation, believe me, it is as far from being frivolous as it can get. This doesn’t mean the patient/plaintiff always wins. It simply a matter of common sense – experienced medical malpractice lawyers screen cases vigorously and don’t (and certainly can’t) make a living out of filing non-meritorious lawsuits.

Procedural Requirements

Assuming that a lawyer foolishly chooses to represent a client with a weak or meritless claim, there are still a number of procedural requirements that are purposely designed to prevent such claims.  In most states, a number of procedural/jurisdictional thresholds must be met before a case can even be filed in court. Such requirements are specifically designed to weed out non-meritorious cases.

For example, in Maryland, a lawyer must obtain a very specific certificate and report from a qualified physician, specifying that the defendant health care provider breached the standard of care (failed to act reasonably under the circumstances) and that this breach of acceptable medical standards of care caused the patient-plaintiff’s injuries.  The case must first be filed with a special arbitration commission and have certifying expert certificates and reports before it can be filed in court.  Throughout litigation, a plaintiff is required to obtain supportive, competent opinions from a number of medical experts. These experts cannot just generally or vaguely support the patient-plaintiff’s claim. They must specifically establish 1) what the defendant  health care provider should have done to comply with the standard of care, 2) that the  defendant health care provider breached the standard of care, 3) that the breach in the standard of care caused Plaintiff’s injuries, and 4) what patient’s injuries actually are – not just sheer speculative damages. Such testimony can not come from the lawyer, his/her client, or a lay person; it must come from other physicians. Medical malpractice litigation is not possible without the participation of health care providers, who are willing to testify as experts on behalf of the patient. As if this was not enough, an expert’s testimony cannot be based on a guess, speculation, or conjecture. Each expert opinion must be expressed to a reasonable degree of medical probability, and it must have a scientific basis. These procedural requirements are just the tip of a very large iceberg designed to prevent meritless cases.

Don’t Buy Into the Myths

The simple truth is that real (those who know what they are doing in this specialty area of law) medical malpractice lawyers have very little – if any – incentive to pursue frivolous, weak or questionable cases. Such cases are expensive, they must be supported by other physicians, and they must survive the rigor and scrutiny of litigation.

I often hear people say that most medical malpractice cases are filed because of bad outcomes and not because of real medical malpractice.  I am utterly convinced that such a statement could not be further from the truth. If it were true, most, if not all medical malpractice lawyers would be out of business. That’s the hard, cold reality. Don’t buy into the myths that are many times at the core of this s0-called medical malpractice crisis debate.

Have you been a party in a medical malpractice/negligence lawsuit? Have you been a juror in a medical negligence case? Even been a witness in these cases? What has been your experience? Share your story – let’s get to the real truth of issues that should be at the core of the “discussion” – “debate.”

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Related Posts:

Every Bad Outcome Does Not a Malpractice Case Make! Some Practical Advice

Malpractice System Doesn’t Improve Patient Safety – Oh Really?

Tort Reform or Just Plain Medical Care Reform: the debate continues as thousands are injured annually in US

Many Doctors Don’t Blow Whistle on Colleagues



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Tort Reform or Just Plain Medical Care Reform: the debate continues as thousands are injured annually in US hospitals

Monday, October 25th, 2010

HEADLINES AND EXCERPTS

Wall Street Journal, September 28, 2010, diagnostic errors kill 40,000 to 80,000 patients annually based on autopsy studies over past 4 decades.

American Medical News, August 23, 2010, an estimated 1.5 million medical errors cost the US economy $19.5 billion in 2008.  

CNBC.com, October 19, 2010, the Colorado Physician Insurance Company found between 2002 and 2008, 25 surgeries were performed on the wrong patient, and another 107 surgeries were performed on the wrong body part. One-fourth, approximately 6 patients suffered significant injury. There was 1 death.

News from the National Academies, October 21, 2006, medication errors injure 1.5 million people annually. 400,000 injuries occur in hospitals; 800,000 occur in longterm care; and 530,000 occur in Medicare outpatient clinics. Estimates were conservative.  Treatment of hospital injuries cost more then $43.5 billion annually. Lost wages, productivity, or additional healthcare costs were not included.

HealthGrades, April 2008, published 3 years of Medicare data from 2004-2006 in their 5th Annual Patient Safety in Hospitals Study. They found 1.12 million patient safety incidents occurred representing a 3% incident rate; and 270,491 in hospital deaths were directly attributable to an incident. The incident rate was unchanged from the 4 previous annual reports.  The incidents accounted for $8.8 billion in excess cost.

HealthGrades, April 2009, also reported improved data in the 6th Annual Patient Safety in Hospitals Study.  Inpatient Medicare admissions from 2005 to 2007 were studied. Only 913,215 patient safety incidents occurred with an associated $6.9 billion in excess costs. Instead of a 1 in 5 chance of dying from a safety incident in 2004-2008; patients’ odds improved to 1 in 10 chance of dying from an incident by 2007.

Institute of Medicine of the National Academy of Sciences, 2000, estimated medical errors kill up to 98,000 US hospital patients each year.

_______________________________

I decided to write about patient injuries in American hospitals 2010 because – frankly – my career in healthcare quality assurance and risk management was launched as a direct result of a landmark study released in 1978.  Don Harper Mills, M.D. published a study known as the California Medical Insurance Feasibility Study (CMIFS). In 1978, no one knew how many people were actually being injured in hospitals. There was a crisis of available liability insurance for physicians and hospitals, and as a result, compensation alternatives were being considered. In order to fund compensation alternatives for patient victims, actual injury data was needed.

Dr. Mills and his colleagues manually reviewed 20,864 hospital patient medical records from 23 representative California hospitals for the year 1974. They found 970 patients were directly injured by a medical mistake. This was 4.5% of the entire records sampling.  What shook the healthcare industry to the core in 1978 was the following:

When expanding the study sample size to the full statewide population, the data showed there were:

  • 6.5% minor permanent injuries – 9,100 patients;
  • 3.8%  major permanent injuries – 5,300 patients; and
  • 9.7% suffered death – 13,600 patients.

If all of these patients were to be fully compensated under full disclosure and/or no fault insurance plans, the state would not have been able to fund the approach. Insurance companies and states across the country began looking at closed medical malpractice claims, statewide data, medical records that showed the same trends were a national and not just a “California” problem.

Throughout the early 1980’s, we saw state and federal regulations mandating hospitals implement physician peer review and quality assurance programs. Medical malpractice insurance companies and brokers sent consultants into hospitals to begin teaching staff how to set up systems for monitoring care and correcting/improving systems.

The American Society of Healthcare Risk Management was born creating national and state-based initiatives to reduce injuries. The American College of Surgeons published their first Patient Safety Manual for medical staff leadership.

Initiatives from the Joint Commission for the Accreditation of Healthcare Organizations continued into the 1980’s and 1990’s with expanded quality improvement standards.

This great computer age has allowed more sophisticated and widespread comparison of insurance, state and national data than ever before. The data tragically continues to reveal dismal results despite decades of government, state, regulatory, and social pressures for hospitals, physicians, and healthcare professionals to improve.

THE DEBATE RAGES ON …WHAT WILL FIX IT?

While the AMA continues to whine about being sued too often and the tragic impact on physicians, as you see the data show that for decades, patients continued to be significantly injured. A study by Harvard researchers, who reviewed 1452 medical malpractice closed claims in 2006, reported 75% had legal awards consistent with their merit. Two reports by Dartmouth economists in 2005 and RAND in 2004 found awards were consistent with the rising costs of medical care and average awards grew less than real income. The more costly medical care was responsible for more then half the jury awards. A study of American insurance data between 2001 and 2004 showed malpractice awards per doctor were stable or fell, and premium increases were not connected to awards.

In 2009, the Canadian Medical Association Journal reported there was no evidence US doctors were experiencing increasing numbers of lawsuits during 2001-2004.  Over 15 years, states had reported physician insurance premium rates were flat or declined relative to economic and population changes.  The article cited opinions that the problem was not litigation; the problem was malpractice.  However, the AMA is persistent in claiming financial relief is needed. One means they propose is to limit of non-economic damages for pain and suffering nationally to $250,000.

Very recently, American Medical News (amednew.com) issued a summary of 20 new grants issued by the Dept. of Health and Human Services at a cost of $25 million. The grants are to find ways to cut medical errors and improve communication between doctors and patients.  Highlights were:

  • New patient safety programs that include data designed to link with medical liability claims.
  • New York won $3 million to expand and test a judge-directed negotiation program for surgery and obstetrical injured patients.
  • The University of Washington in Seattle won $2.97 million to train physicians, nurses, and pharmacists to communicate.
  • Ohio State University of College of Medicine won $186,214 to establish a statewide database on pregnancy-related deaths for study towards improving outcomes.
  • South Dakota and Sanford Health won $299,995 to develop a state model for collecting medical error data and to design a patient complaint reporting system.

Ironically, the Wall Street Journal article (September 28, 2010) reported physicians were learning from reviewing closed lawsuit claims data. As a result, “Some doctors are using electronic alerts and reminders to order tests, follow-up lab data, and communicate with referral specialists.”

WHY AREN’T THEY ALL DOING THIS?

This June’s Archives of Internal Medicine reported 91% of doctors practice defensive medicine and order too many tests adding huge unnecessary costs to the healthcare system.  The Wall Street Journal article reported a better solution is to  improve larger system failures and prevent errors. Kaiser Permanente uses medical malpractice data for education, but also focuses resources on technology to reduce patient injuries, i.e. close tracking and follow-up of patients with abnormal testing results. The VA is doing the same through an electronic medical record system. This is encouraging.

The insurance company representing Harvard University affiliated hospitals and doctors uses lawsuit data to focus on improvement strategies. Again, from my perspective having worked in the past for a large insurance broker, a statewide project funded by an insurance company, and a medical malpractice insurance company, this is NOTHING NEW.  Out of 456 high severity cases resulting in serious harm to patients, most were diagnostic errors. The insurance executive for the Harvard account is hoping to spur changes in systems and procedures and reduce this finding.

I am hoping he will see results. I trust the headlines will continue to print those results and trends for us to follow.

We can only hope that the coming years will see a dramatic reduction in these preventable medical injuries.

So just what is ‘Defensive Medicine’? The other side of the ‘story’ being told.

Wednesday, July 14th, 2010

There is a recurring theme being pushed on the public that trial lawyers are driving up the cost of healthcare by making doctors so afraid of lawsuits that they are practicing “defensive medicine” in order to protect themselves.  A recent survey reported in the Wall Street Journal indicates that approximately 90% of doctors surveyed believe that doctors order more tests than needed in order to protect themselves from lawsuits, with an estimated $60 billion being spent each year on such unnecessary treatment.  This report must be taken with a grain of salt at best.

First off, what exactly is defensive medicine?  Is it performing medical procedures that are unnecessary? Is it tests to check for diseases that are statistically unlikely?  Is it tests whose results turn out to be negative (and, therefore, deemed not needed in the first place)?  There is no clear-cut definition of what constitutes defensive medicine.  A quick review of the term on Google shows a number of definitions that all boil down to some variation of the following – ordering tests or procedures out of concern to reduce exposure to malpractice suits rather than out of concern for quality patient care, or refusing to treat high-risk patients or undertake high-risk procedures with the same goal in mind.  In other words, it is the doctor’s motivation in ordering a test – and not the appropriateness of the test itself – that apparently defines defensive medicine for the purposes of these studies.

Even if you can define defensive medicine, how is it measured?  By asking subjective questions of the doctors themselves as to how often they believe they practice defensive medicine.  Are doctors keeping track of each order they write over the course of a year?  Are they keeping track of each test or procedure they perform with a notation of the specific motivation that drove them to get each test?  Of course not! This survey does nothing more than capture a doctor’s subjective (and clearly undocumented) “feeling” as to how often defensive medicine is practiced.  And then a dollar figure is thrown in at the end of the study that is supposed to represent the cost of defensive medicine.  However, without a clear definition, and without a clear test for measuring what tests and procedures are being performed unnecessarily, it is impossible to assess a monetary value for defensive medicine or test the validity of the “estimated $60,000,000,000. (Also, given that doctors are the subject of lawsuits, might one reasonably assume that the doctors have a bias in answering these questions?).

Inherent in this theory of the high costs of defensive medicine is that trial lawyers are constantly bringing frivolous lawsuits that are resulting in million dollar settlements or jury verdicts.  This is simply not the case.  I don’t know any reputable malpractice lawyer who sets out to file frivolous lawsuits.  Those who do should be sanctioned.  At our law firm, we decline the vast majority of inquiries we get from injured patients, which is in line with the experience of other law firms that specialize in medical negligence.  Many of these cases are rejected only after careful review by expert physicians in the field, who tell us that they believe the care was appropriate.  Furthermore, the law in Maryland requires that before a lawsuit can even be filed against a doctor or hospital, the plaintiff must obtain a certificate under oath from an expert in the same field of medicine who, after reviewing the records, has determined that the defendant doctor violated the standard of care and caused injury to the patient.  Frivolous lawsuits cannot even make it past the system’s initial screening stage.

This theory of defensive medicine also leads us to a more fundamental question – what level of care does the law expect of doctors? It is a common misperception that plaintiff’s lawyers expect doctors to perform every available test on every patient, no matter what, or else they’re going to get sued.  Some doctors go to great lengths to perpetuate this myth.  For example, in a recent article on the topic of greedy trial lawyers, a doctor was quoted as saying (and I’m paraphrasing) that if someone comes into an Emergency Department nowadays with a headache, that person is going to get an MRI, a CT scan, you name it.  With all due respect to this doctor, he is wildly exaggerating to make a point.

To answer the question of what is expected for doctors, the law has developed a standard to which health care providers must comply, and that standard is “reasonableness.”  A doctor breaches the standard of care when he or she fails to do what a reasonable physician would have done in the same or similar circumstances.  No more and no less.  The law does not demand perfect care or extraordinary care, and the law does not punish doctors simply because there has been a bad outcome. (There is actually a jury instruction in the District of Columbia called the “Bad Result” instruction that tells jurors they cannot find the doctor liable just because there simply was a bad outcome).  The law only requires that a doctor act reasonably in the circumstances.

As a simple example, let’s say that a patient (a 50-year-old man) sees his primary care physician because he developed low back pain after a weekend spent lugging around bags of mulch in his back yard.  His back is painful and stiff. In that context, what level of care do we expect of the doctor?  If we are to believe the theory of defensive medicine, this primary care doctor would immediately refer the patient to get an MRI, a CT scan, and a consultation with a neurosurgeon just to be sure that he doesn’t get sued.  For anyone who’s ever had back pain and gone to the doctor, he or she can realize how silly this scenario is.

Let’s take another example.  A 38-year-old man comes into the Emergency Department with chest pain.  Questioning by the doctor reveals that he has no history of heart problems or other serious illness.  It is also learned that he just wolfed down a large pizza and a few beers after his company softball game.  The doctor thinks it’s probably just a case of indigestion or heartburn, but to be safe he orders an electrocardiogram to check for heart problems.  This test comes back normal.  Is this defensive medicine?  Does this ER doctor consider it defensive medicine for the purposes of answering survey questions?  Should the EKG not have been done because the odds of a heart attack were minimal?  In this situation, one can easily make the argument that the EKG was reasonable.  Even though the risk of a heart attack was small, the severity of harm to the patient if the diagnosis is missed is great.  Shouldn’t we encourage reasonable testing that catches life-threatening illness?

There is obviously a balance between over-reacting and under-reacting, which is where the concept of reasonableness comes into play.  We applaud doctors exercising medical judgment as they were trained to do, and we expect them to act reasonably.  However, when doctors fail to act reasonably and injure a patient, the law provides a mechanism by which the patient can recover. At the end of the day, it isn’t trial lawyers who determine what is reasonable or unreasonable treatment.  It is juries that decide, after listening to both sides of the story.

Study Finds Differences Among Doctors, Risk Managers in Admitting Errors – Joint Commission Resources – Answer: Just Tell the Truth!

Sunday, April 4th, 2010

The Joint Commission Journal on Quality and Patient Safety recently issued a report on how Risk Managers (those who handle claims in hospitals as part of their duties) vary from physicians in admitting errors.  The report was based on anonymous surveys of nearly 3,000 risk managers and roughly 1,300 physicians.

Some of the key findings from this survey were as follows:  

  • Risk managers have more favorable attitudes about disclosing errors to patients compared with physicians
  • Risk managers were less supportive of providing a full apology
  • Risk managers expressed more favorable attitudes about the mechanisms at their hospitals or health care organizations to inform physicians about errors
  • Both Risk Managers and physicians agreed that there is a lot of room for improvement in systems to report errors.

The news release issued by the Joint Commission then contains the following quote:

“Fulfilling patients’ expectations for full disclosure of medical errors remains a complicated process. Our data offer additional insight into the complexities of these conversations and reflect the evolving roles of stakeholders beyond the physicians involved in the error,” says lead author David J. Loren, M.D., Assistant Professor of Medicine, Division of Pediatrics, at the University of Washington, Seattle, Washington.

Why is it so complicated?  This past Friday, I reported on an article from the New England Journal of Medicine, in which the concept of acknowledging wrongdoing early in the process is central to current programs to minimize litigation costs and seek alternative methods of coping with “national tort reform legislation.”

If physicians and risk managers only had some idea of how many people we interview for potential claims and lawsuits, who are seeking legal assistance because they ‘just want to know what happened’ or who are just plain angry because no one would talk to them about what went so terribly wrong or even ,in some instances, flat-out lied to them about what happened, they might not need to do a study to conclude – there is a “lot of room for improvement.”

I know – it’s fear of lawyers that leads the health care industry to have such angst over just telling the truth.  What they don’t get is that we, the lawyers, would probably have a lot less people calling us to investigate their claims if someone had just taken the time to figure out what went wrong and told the patient and/or the family the truth.

Malpractice Reform — New England Journal of Medicine – New Alternatives Analyzed

Friday, April 2nd, 2010

There is a thought-provoking article in the New England Journal of Medicine entitled “Malpractice Reform — Opportunities for Leadership by Health Care Institutions and Liability Insurers,” which was posted online on March 31, 2010.  In essence, the authors suggest that health care institutions and insurers not wait for national tort reform legislation (“a political gridlock”) but rather become leaders in the development of alternative methods for “providing compensation for medical injuries.”

While the concept is somewhat intriguing, the methods discussed are in many instances nothing but a privatization of tort reform at its worst. Each “alternative method” will be examined seriatim.  

The overall concept seems to be rooted in what is commonly referred to as the “disclosure-and-offer” approach.  Three models are discussed: the reimbursement model, the early-settlement model and health courts.

Please refer to the article itself for a more thorough description of these models.  The length of this blog is concerning enough.

In essence, with the “reimbursement model, institutions offer to (as the name denotes) reimburse patients for some out-of-pocket expenses related to the injury and for “loss of time.”  Typically, there are pre-determined limits for each category,which often are $25,000 for expenses and $5,000 for loss of time. Clear cases of negligence, fatal injuries, cases that are the subject of a lawsuit or where an attorney is invovled are excluded from the program.  There is no investigation into “possible provider negligence” in this matters. Patients who accept money do not waive their right to sue.

As a general comment, this plan makes the most sense but does not really deal with the infamously named “malpractice crisis” to any large extent.  First, most cases of medical malpractice that make their way to the courthouse could not conceivably fall within these financial parameters.  If a malpractice lawyer takes on a case with $30,000 in special damages (economic losses such as medical bills and lost wages), that lawyer needs to reassess their intake procedures. Given the economics of costs of litigation (not fees), mandatory reimbursements such as Medicare and Medicaid, liens from private insurers and the like, it would be foolhardy for a lawyer to become involved in such matters since the client’s net recovery would be non-existent.  What does make sense, however, is no-fault reimbursement to patients with minor, non-permanent injuries as a sign of goodwill by the providers of health care.  In that respect, the “reimbursement model” is a good program – given its express limitations.

Another major defect in this “reimbursement model” is the premise that there is no “investigation into possible provider negligence.”  If I am reading this correctly (none of the hospitals with which I am familiar in our geographical area have such plans presently; therefore, I am not certain how this works), the risk manager or claims person simply decides to write-off the loss as potentially a cost-savings measure.  One of the positive features of our current litigation system (when meritorious cases are brought) is that it does serve to correct errors in the health care delivery system.  When a major injury case is brought, many valuable lessons are learned by providers of health care.  Whether there is a “system problem” or just a dangerous method of practice at play, people do (unless they are completely arrogant and/or dense) learn lessons so that other patients do not suffer the same harm. One of the goals of the medical profession in analyzing, handing and resolving cases of medical errors is to identify problems and take steps to correct those problems for future injury avoidance.  An entire essay, rather than a blog, could be devoted (and maybe will be) to this concept of the health care industry policing itself through conscientious, rigorous self-appraisal and correction when wrongs are identified.

The “early-settlement” model is described in the NEJM article as follows: “no preset limits on compensation,” but compensation is not offered unless the institution, “after an expedited investigation, determines that the care was inappropriate.”  Offers may include compensation for all elements of damage – economic as well as non-economic (e.g. pain and suffering) damages.  To accept the money, the patient must agree that such payment constitutes a “final settlement” – thus obviating the bringing of a lawsuit.

More research into this ‘early-settlement” model is called for since the NEJM article does not go into other critical details associated with such an approach.  Since the model was “pioneered by the self-insured University of Michigan Health System,” I intend to devote a separate writing to this program once more research on its possible limitations and efficacy has been accomplished.

Suffice it to say for the present that if such a model precludes attorney involvement, then this is a fatal flaw.  The reason individuals come to a lawyer when tragedy occurs in the medical context is because those of us who specialize in this area of law know and understand (1) what  proper claims should be made and (2) what the fair and reasonable parameters of just compensation are for the victims of medical malpractice.  Sure, one can take a jaded approach and scoff – “All the lawyer wants is a fee and that’s why you are against this model”  Simply not so.  A substantially reduced fee arrangement may well be in order in such instances.  If the client is at least properly represented and the case is handled expeditiously and the compensation is fair and reasonable, then I for one believe that a reduced fee is in order which would further benefit the patient/client.

That’s not the full story, however, when it comes to discussing this so-called model.

In our current system of medical malpractice litigation, the system would work a whole lot better and be much less expensive and be much more efficient if these same principles were applied to the current claims handling practices of insurers and self-insured health care providers.

One of the largest drawbacks  for both the health care system and for the patient/client are the costs associated with medical malpractice litigation.  I recently wrote a blog regarding the issue of costs and their effect on the so-called malpractice crisis.  When clear-cut cases of medical negligence exist and are ignored or denied by risk management or insurance claims  personnel, the costs sky-rocket.  The health care insurer or provider hires counsel at an hourly rate to defend the case.  Discovery in the form of record production, depositions and the like proceed with sickening and dollar-wasting frustration for the plaintiff lawyers and their clients.  Cases slog along unmercifully through the system for months if not years. If you have a clue what you are doing as an experienced medical malpractice lawyer, you have a pretty good sense of what cases have merit and which do not.  Of course, no one is infallible, but for the most part, “good cases almost try themselves.”

Applying the principles of the “early settlement” model to what exists in today’s world of medical malpractice, I suspect that nationally, on an annual basis, billions of dollars would be saved in ridding our system of the needless waste of money in defending cases that should have been resolved early in the process.  Why not take the principles of this model and apply them to what exists in the current system?  That’s what the health insurance industry should have been doing years before now.  Did they need a new “model” to tell them that? If insurers took a more responsible approach by fairly and honestly assessing these cases and did so in an “expeditious” fashion, our courts would not be clogged with needless litigation, the health care industry would save enormous amounts of money, and – most important – patients would be justly and timely compensated.  If only the public knew just how much waste there is in our current system due to the lack of due diligence and timely claims handling, they would perhaps have a more balanced approach to this ‘discussion’ of tort reform.

Institutions and insurers that are responsible in their claims handling practice are not the problem.  Fortunately, in my work for  years as a defense lawyer, I had the privilege of working for one such organization. Unfortunately, they are not in the majority.  I would love to see figures of defense costs (fees and expenses) on those cases that are ultimately settled or unsuccessfully defended.  I have zero doubt that those numbers are staggering.  If those fees and costs were substantially reduced through conscientious and timely claims handling, we might well not be having this discussion of tort reform in the first place.  When critics say blame the plaintiff lawyers – they may have half the phrase right – just not the right adjective.  A fuller discussion of the abject waste due to poor claims handling and delaying tactics by the defense bar is the subject for future consideration.

Finally, the infamous option of the ‘health courts.’  Succinctly stated (in the interest of relative blog-brevity), the essentials are described in part as follows:

A panel of experts, aided by decision guidelines,determines whether the injury was avoidable — a determination that turns on whether the injury would ordinarily have occurred if the care had been provided by the best specialist or an optimal health care system; the avoidability standard is more generous than the negligence standard. For avoidable injuries, the institutionoffers full recompense for economic losses plus an amount for pain and suffering according to a predetermined compensation schedule that is based on injury severity.

Various alternatives for this model are discussed in the NEJM article and include items such as making the program voluntary, permitting limited appeals to some extent and so on.  As one reads further, however, repugnant elements start rearing their ugly heads.  Just some of these components of the ‘health court’ system proposal are (1) waivers of the right to file a lawsuit “as a contractual condition of receiving care,” (2) so-called “decision guidelines,”  and (3) “predetermined compensation schedules.”

Waivers of right to a jury trial as a condition to receiving care screams “void for being against public policy.”  Who is advising a patient in need of care what his or her rights are when signing a waiver. Can’t you just picture the following scenario?  Mr. Jones is clutching his chest in the ED and before care is rendered he’s asked, “Would you like to receive care here?  If so, you will need to sign this waiver form.”

Predetermined schedules of compensation?  Is this a euphemism for contractually created caps?

The NEJM article raises some valid issues and concerns. A great deal more thought of how to fix the system is warranted.  The answer may well  lie in the underlying approach being advocated in the article – malpractice reform should be self-initiating for health care institutions and liability insurers.  They should take a leadership role and not sit passively on the sideline shouting the same old song – “We need caps….Our system is about to crumble…It’s all the fault of the greedy plaintiff lawyers!”  Maybe a new model is in order – grab a mirror and examine how to better police your own claims-handling practices.  Stop wasting everyone’s time and money through poor claims practices.  Expeditiously and honestly assess claims.  Offer fair compensation early in the process.  Maybe if the health care and insurance industries tried fixing their own practices in the framework of the current system of civil justice, these endless calls for restricting injured patient’s rights might stop and the so-called crisis just might be averted.  Ever consider working with the plaintiff malpractice bar….or is just a lot easier blaming them?

Tort Reform – Consider the Consequences – Lesson #1

Sunday, March 28th, 2010

Lost in all of this discussion about how tort reform and caps on damages will save the medical profession has been a discussion of what is really behind all this nonsense.  The Republicans claim that the reason the healthcare system is broken is because of the rising costs of malpractice insurance due to high verdicts, ‘out of control’ juries, the plaintiff lawyers and every other specious argument that sounds good but has no basis in reality.  Study after study has demonstrated that jurisdictions with caps do not affect malpractice insurance rates.

Has anyone really thought about why these naysayers are incessantly calling for a cap of $250,000 on non-economic damages?  It’s a simple matter of mathematics.  This number is not based in any reality of insurance rates – now is it?  Have you seen a single study that uses this ‘magic number’ to demonstrate how this will save healthcare?  If you have, please share it with the rest of us.  That comment will be posted in a heartbeat.

So what is behind this ‘number’?  What is the usual contingent fee being charged these days – 33 1/3 or 40 percent?  How much does it cost to investigate, file and try to conclusion a medical malpractice case of any consequence?   Answer: it can range anywhere from $75,000 to $150,000 (rough averages but pretty accurate). What is the largest cost?  Answer:  medical experts, who charge anywhere from typically $350 to $1,000 per hour.  What part of the population typically receives less than optimal (read ‘Cadillac’) care – answer: lower income patients without any coverage or without ‘the best coverage. ‘ When those patients seek care, how are those bills often financially covered?  Answer:  Medicaid or Medicare.  Do you have any understanding of what a ‘super lien’ is?  Answer: Medicare and Medicaid have an absolute right to complete reimbursement of any related medical expenses paid out in such cases.

So how do all these numbers, issues and forces play out in the real world of medical malpractice? What effect would a cap of $250,000 on non-economic damages have on whether a bona fide lawsuit (read: awful care causing serious injury) could ever be brought to court?

So that this posting can stay within the realm of reason in terms of length, I’ll just give you the above factors to ponder for a bit.  Later posts will give you more concrete examples of how, in the real world of malpractice cases, these specious arguments for caps and ‘tort reform’ are nothing more than an attempt to deny patients and their families of access to the courts.

Let’s leave you with a thought – a patient on Medicaid receives awful medical care leading to horrible injuries requiring hundreds of thousands of dollars in past and future care needs.   What do you think a client would recover in such a situation under ‘tort reform’ and a cap of $250,000?

Recovery of those costs do not go to the patient but are the subject of a reimbursable lien.  That potentially leaves recovery for non-economic damages only.  Apply a fee of one-third (answer:  just over $80,000) and costs of (let’s say) $125,000 (totally within the ‘usual’ range).  Have you done the math?  That’s about $45,000 to the client.  How does a lawyer satisfy a client’s needs in that scenario?  You can’t.  Do you do the case ‘on the cheap’ and not hire the experts or do the discovery you need to do?  You can’t – that runs the risk for the client of not winning – in which case the recovery is nothing.

Now are you starting to get the picture what is really behind the proposed ‘tort reform’s cap’?  Don’t think for one minute that the medical profession and its insurers haven’t done the math.

More to come….

Ga. Supreme Court Upholds Key Medical Malpractice Law Requiring Proof of Gross Negligence for Emergency Room Physicians

Wednesday, March 17th, 2010

Another legal ruling in the ongoing debate over tort reform – this one from the State of Georgia. MSNBC is reporting (citing Associated Press) that the Georgia Supreme Court, in a divided 4-3 opinion, has upheld a 2005 state law that requires patients to prove “gross negligence,” rather than ordinary negligence, in order to prevail in a medical malpractice case against emergency room physicians.

A Georgia woman, who suffered a stroke after receiving allegedly negligent treatment at an emergency room, challenged the constitutionality of the 2005 law, claiming that it created an insurmountable hurdle at trial.  The Georgia Supreme Court disagreed.

The court’s majority opinion, penned by Justice George Carley, found that it was “entirely logical” for lawmakers to approve the legislation in hopes of stemming the rising cost of medical malpractice insurance.

Usually, the focus of tort reform legislation has been in either instituting a cap on damages, or restricting attorneys’ fees, or both. In 2005, however, the Georgia legislature implemented an additional mechanism that was designed not to limit the amount of recovery in successful lawsuits but was instead specifically designed to make it more difficult for injured patients to prove their case at trial.

Prior to the law enacted in 2005, in order for a patient to prevail in a medical malpractice action, the patient had to be able to prove that the defendant doctor was negligent – i.e. violated the standard of care, which has usually been held to mean that the doctor failed to do what a reasonably competent doctor would have done in the same or similar circumstances. Under the new law in 2005, however, patients were required to prove that the defendant doctor (at least in the emergency room setting) committed “gross negligence,” which is a much higher level of negligence, generally defined as near-total disregard for the rights of others, reckless disregard, or willful or wanton indifference to the consequences of one’s actions.

Clearly, forcing patients to meet this higher burden will make it more difficult for injured patients to sue emergency room physicians, which was the very intent of the Georgia legislature. The ruling also means that negligent doctors who would have been found liable under traditional law will now get off scot-free, leaving injured patients with no recovery.

The same court is expected to rule later this month on the constitutionality of Georgia’s cap of $350,000 on damages for pain and suffering.

Maryland’s Cap and a Message from the former MAJ President re the Goings-On in Annapolis

Saturday, March 13th, 2010

Normally I don’t post materials from my News Feeds on Facebook – however – when you see a particularly well written piece that needs to ‘get out there,’ I make an exception. The following is a wall posting from the past President of the Maryland Association for Justice, Wayne Willoughby.

by Wayne M. Willoughby                            
Past President, Maryland Association for Justice 

In 2004, hysteria struck Annapolis. Hordes of physicians in white coats descended upon the State House demanding so-called “tort reform” as the fix to their rising malpractice premiums. The Maryland Association for Justice (then known as the Maryland Trial Lawyers Association) stood virtually alone in opposing the fear-driven throng.

MAJ retained a highly respected insurance analyst, Jay Angoff, to examine the recent malpractice premium hikes. Mr. Angoff was the third-longest serving insurance commissioner for the State of Missouri and previously had served the State of Maryland as the State’s insurance expert in other matters. His conclusion: the malpractice premium increases that caused the panic were totally unjustified; the doctors were being gouged by their insurance carrier.

So, MAJ advised the members of the General Assembly that they were being hoodwinked. What was needed was aggressive insurance regulation to prevent carriers from gouging doctors, not new laws depriving injured patients of full and fair justice in our courts.

Nevertheless, swept up in the frenzy, the General Assembly enacted House Bill 2 containing a premium subsidy for physicians and some measures that severely punished injured patients. One such measure lowered the damage cap on wrongful death and survival claims to the point that the life of a malpractice victim in Maryland is now worth at law only 50% of the life of a victim of other forms of negligence.

Time proved MAJ was correct, the malpractice “crisis” of 2004 had been a cruel hoax on the public and the General Assembly. Within seven months after passage of HB 2 – years before HB 2’s tort “reforms” could affect claims payouts and premiums – Maryland largest malpractice carrier, Medical Mutual, announced it would not increase premiums for 2006.

For 2007 the carrier lowered its base premiums by 8% and announced a $68.6 Million dividend for its insured physicians. With a new consumer friendly Governor in office, and his new insurance commissioner at the helm, Medical Mutual’s move was greeted by the Maryland Insurance Administration with a cease and desist order.

As a result, the taxpayers of Maryland were able to recoup from Medical Mutual the approximately $84.Million that had been paid to the company for rate stabilization under HB 2. Medical Mutual’s finances were so superb that it still issued a $13.8 Million dividend to physicians and lowered its premiums 8% for 2008 despite paying $84 Million back to the State.

Then, in 2009 Medical Mutual lowered its premiums by 31% (an 11% base premium reduction and a 20% dividend for renewing physicians). Again, in 2010, Medical Mutualannounced another 31% premium reduction (11% plus 20%).

Consequently, the events after the 2004 Special Session demonstrate the truth of what MAJ has said all along: The “crisis” of 2004 was no crisis at all. It was little more than a raid on the public treasury and the legal rights of injured patients accomplished though the use of fear to manipulate public opinion and the legislature.

Although the taxpayers of Maryland have been made whole because of the decisive actions of Governor O’Malley’s insurance commissioner, and doctors have access to “available and affordable” insurance (per the official Maryland Insurance Administration’s report), there is one group that has not been made whole from the damaging effects of the contrived crisis of 2004: injured patients.

Now pending before committees of the General Assembly is a cross-filed bill to rectify this situation. House Bill 622/ Senate Bill 769 will return the damage cap on medical malpractice claims to their pre-hoax levels. If this bill is enacted, injured Marylanders once again would be treated the same under the law irrespective of whether their injury resulted from negligent medical practice, negligent driving, or a defective product.

All people who believe in civil justice should contact the members of the House Judiciary Committee and the Senate Judicial Proceedings Committee and demand that they vote in favor of HB 622/SB769.

Keep up all your hard and good  work, Wayne.