June 23, 2015

Illinois Hearing Highlights Problems with Tort Reform

by Levin & Perconti

States around the country are making terrible mistakes by enacting draconian tort reform measures that strip injured patients of their rights to recover from doctors and other medical professionals who hurt them. The only way there is to hold these healthcare providers responsible for their negligence is by filing medical malpractice claims. In spite of the importance of medical malpractice litigation, some state legislatures like those in Missouri, Texas, and Wisconsin have taken steps to severely curtail these lawsuits. Fortunately, it appears that Illinois will not be falling for the tort reform any time soon.

Illinois Committee of the Whole Holds Tort Reform Hearing

Last month the Illinois Committee of the Whole held an hours long hearing on tort reform reports the Illinois News Network. There currently are not any official proposals on the table for tort reform in Illinois, but it is always a possibility and the insurance lobby never stops pushing for measures like damage caps. Fortunately at this hearing victims of medical malpractice had an opportunity to speak out and remind legislators why damage caps are so harmful. In addition to these medical malpractice victims, victims of other types of torts also came forward and testified about why general personal injury or wrongful death damage caps would be harmful. The widows of two dead state troopers were among those who testified.

Continue reading "Illinois Hearing Highlights Problems with Tort Reform" »

March 12, 2015

Dangerous Medical Malpractice Legislation Pending

by Levin & Perconti

State after state falls into the trap of pursuing wrong-minded so-called tort reform laws. These laws are marketed to the public as a necessity to prevent frivolous lawsuits. However, all these sorts of laws do in reality is deny those most injured by medical malpractice the ability to recover fully for injuries caused by the negligence of healthcare providers while often violating various constitutional provisions. Misguided and dangerous medical malpractice legislation is currently pending in the Georgia legislature.

Dangerous Tort Reform Measure Pending in Georgia

The Atlanta Journal Constitution reports that Georgia's legislature is considering medical malpractice legislation. The bill is Senate Bill 86. This new law would go even further than other states' prior tort reform measures, stripping patients seriously injured by their doctors of any right to a trial by jury at all. Instead every single medical malpractice claim in the state would be handled by a sort of administrative tribunal.

The bill is named the “Patient Compensation Act,” but in reality it would do the exact opposite of compensating patients. It would set express limits on how much money a medical malpractice victim can recover without consideration for the unique and special factors that each case of medical malpractice entails.

Problems With an Administrative System Replacing the Court System

The immediate concern with such a system is that it will chip away at patients' rights not only to a full recover for the injuries they suffer, but also to tested and proven mechanisms that are the very heart of our justice system. While our system of trial by jury is not perfect and mistakes are sometimes made, it is still one of if not they most brilliantly designed justice systems in the world. When it proceeds uncorrupted it allows for a beautiful combination of the democratic jury process and important judicial legal oversight to prevent the violation of parties rights. Safeguards are in place in the form of appeals so that if something does go wrong or is unjust in that jury process, it can be remedied. Additionally, in a world where the rich and powerful continually grow more rich and more powerful, the jury box is the one remaining area where regular, everyday people still get to make important ultimate decisions.

This democratic process is so important because health care, like any business, is profit driven. This means that in order for patient safety and quality of care to remain priorities we can not just rely on the good intentions of medical professionals. While any individual healthcare provider may care deeply for his or her patients' well-being, ultimately the agencies they work for often force them to make decisions to protect that bottom-line. This means that in order for hurting patients to be something the medical industry avoids, harming patients must hurt the bottom-line. Juries can make a determination in a case as to exactly how much that bottom line needs to be hurt in order to compensate the injured patient and deter future medical misconduct. Some set schedule with limited payments will not fulfill that role, particularly if, much like damage caps in other states, the amount of payments does not increase with inflation.

See Related Posts:

Imagery Taints “Tort Reform” Debate

South Dakotans Suffering the Effects of “Tort Reform”

January 12, 2015

Colorado and West Virginia are in Danger of Suffering from “Tort Reform”

by Levin & Perconti

While courts in states as varies as Illinois, Missouri, and Florida continue to hold tort reform measures designed to rob injured plaintiffs of their rights to recover for their personal injuries unconstitutional, legislators continue to push these measures in states that have not yet enacted them. Colorado is the next state to face the possibility of draconian tort reform measures this legislative term. Caps on medical malpractice damages are just one type of law that the insurance lobby is pushing for this year. West Virginians are also in danger.

Colorado Legislators Push for Tort Reform

Denver's News 9 reports that the Colorado legislature has already introduced 111 bills this session. Tort reform efforts are among those bills and apparently the effort is at least partially bipartisan. The Denver Business Journal reports that the efforts are large scale.

Continue reading "Colorado and West Virginia are in Danger of Suffering from “Tort Reform”" »

April 17, 2014

Proposed Birth Injury Fund Would Strip Medical Malpractice Victims of their Rights

by Levin & Perconti

The Baltimore Business Journal reports that Maryland lawmakers are considering creating a birth injury fund. While on its face this may seem like a wonderful and well-intentioned idea, it would ultimately hurt those families who are most severely harmed in birth injury cases.

Regular System With No Birth Injury Fund
In a regular system, like that in Chicago, parents file birth injury lawsuits w hen babies are injured during birth or before birth by the careless or intentional acts of a doctor, nurse, hospital, or other healthcare provider. When the actions are not criminal but are serious enough to hurt the baby, they are a “tort,” which means a civil wrong that can be sued over. When a meritorious law suit is filed, either both sides will come to an agreement as to what damages should be paid to the injured family, or there will be at a trial. Both sides will be represented by experienced medical malpractice attorneys who can advise them as to what risks they should and should not take. At the trial, if the jury determines that the hospital or healthcare provider is “liable,” or responsible, for the injuries, then the jury will determine how much the family should be compensated based on the individualized facts of the case.

Birth Injury Fund System
A birth injury fund would eliminate the entire regular system. In its report, the Baltimore Business Journal explains that the creation of such a fund would eliminate injured parents’ right to sue over their babies’ injuries. Rather than allowing a jury to make a determination as to the proper damages award given the individual facts and complex details of the case, some sort of schedule would determine the maximum damages the injured parents would be paid. While in the Illinois system a jury can determine how much money will be required to pay for the needs of this specific child, there would be no such individual determination in a birth injury fund system.

The Real Motivation Behind the Birth Injury Fund
The families of severely injured children would not benefit in the birth injury fund system. The insurance companies and the medical professionals who commit malpractice would be the ones to benefit instead. The Baltimore Business Journal report notes that the people pushing for the bill are doctors and other health workers. Those healthcare professionals cite rising malpractice costs caused by large verdicts.

The Frederick News-Post reports that in a two year period Baltimore City and Prince George’s County jury returned birth injury verdicts against hospitals for $55 million, $22 million, $18 million, $15.6 million, and $9.5 million. Those numbers weren’t just drawn out of a hat, however. They were settled on by a jury made up of presumptively reasonable people who had heard all the evidence. What those who disparage these large verdicts ignore is that large verdicts don’t happen unless two other things happen: (1) a medical professional commits malpractice and (2) that malpractice causes a lot of damage. The way to minimize damages collected in malpractice suits is not to strip the truly injured of their right to sue. The way to minimize the damages is to prevent malpractice from happening in the first place. And the only way to do that in a capitalist economy is to make it so malpractice is not profitable, by forcing those who cause injury to take responsibility for it.

Related Blog Posts:

Birth-Related Medical Malpractice in Illinois

Medical Malpractice Lawsuit Alleges Death During Birth

April 10, 2014

Florida Joins Illinois in Rejecting Medical Malpractice Damage Caps as Unconstitutional

by Levin & Perconti

The Florida Supreme Court struck down that state’s cap on wrongful death non-economic damages because the cap violated the equal protection clause of Florida’s constitution. Justice Lewis wrote for the Court that the $1 million cap was unconstitutional because “it imposes unfair and illogical burdens on injured parties when an act of medical negligence” effects more than one person. He explained that the cap resulted in some injured people receiving full compensation while arbitrarily denying others compensation, meaning people were not treated equally before the law.

Caps on non-economic damages prevent those harmed by medical malpractice from being compensated for their injuries. Non-economic damages are meant to compensate the victims for the intangible harms they suffer. In a personal injury case, non-economic damages can include those for pain and suffering and emotional distress, while in wrongful death cases they can compensate the harmed parties for loss of consortium or loss of companionship. Awarding these damages allows a jury to acknowledge that the loss of a child or spouse is not merely harmful to the survivor because of the medical bills or loss of income, but that the loss of the actual person and the relationship is also a real harm.

Florida joins Illinois in a growing number of states that are undoing the damage done throughout the 1990s and early part of this century to civil litigants’ rights to recover for these injuries. Like Florida, Illinois used to cap non-economic damages in medical malpractice suits. Then, in 2010, the Illinois Supreme Court brought an end to the caps in the landmark decision of Lebron v. Gottlieb Memorial Hospital.

History of Medical Malpractice Caps in Illinois
The plaintiffs in Lebron alleged that medical malpractice caused Abigaile Lebron to suffer severe brain injury, cerebral palsy, cognitive mental impairment, inability to be fed normally requiring a feeding tube, and an inability to develop normal neurological function. At that time Illinois law limited Abigail and her mother’s non-economic recovery just as the Florida law limited recovery in that state. Illinois, like Florida, held that the cap on damages was unconstitutional. But the two states used different reasoning. In Illinois it was not an equal protection complaint that won the day for injured parties. Instead, Lebron argued that the cap on recovery violated the separation of powers in the Illinois constitution. That is, it was an example of the legislature doing a job that was reserved for the judiciary. Illinois courts have the power of what is called “remittitur.” Remittitur is a doctrine of law that allows trial judges to determine whether a jury’s award is excessive and to reduce the award if necessary. Since this is a judge’s job, not the legislature’s job, the Illinois Supreme Court invalidated the cap.

The Future of Malpractice Caps in Florida
The Florida decision invalidates the cap in that state for now. But the fight is not over. Lebron was not the first fight over caps in Illinois. The issue had already been litigated years earlier in the Best case, but the legislature passed a cap a second time despite the Best decision. Undoubtedly the powerful lobbies of the insurance and medical industries will try to undermine the Florida Court’s decision by passing a new cap. However, the Tampa Bay Times reports that Sen. Tom Lee, a Republican who negotiated the now overturned law’s passage and who is currently the Senate Judiciary Committee chair, is not confident another damage cap could pass during this legislative session. Both medical malpractice attorneys and brave individuals will have to keep fighting in upcoming sessions in order to protect our rights.

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CJ&D Briefing Book: The Truth About Medical Malpractice Lawsuits

Medical Malpractice Verdict Highlights Problems With Malpractice Caps

March 20, 2014

“Safe Harbor” Reforms May Benefit Patients More Than Doctors?

by Levin & Perconti

It is no secret that litigating a medical malpractice claim can be stressful and difficult. The system is complicated, and resolving a case is not always quick. Our system of resolving medical malpractice claims is fraught with unnecessary impediments and flaws, such as frivolous lawsuits, lengthy settlement processes, and legal technicalities.

One such problem is that of doctor uncertainty. Accidents are called accidents because they are unexpected and unintended, and they can happen even in the care of well-intentioned, experienced doctors who have acted as they should. Still, they may be hit with lawsuits that gum up the courts, thus slowing the process for meritorious claims. To attack this problem, some experts propose what are called “safe harbor” laws. These are laws that protect doctors from malpractice suits in cases where they have followed accepted clinical guidelines. Essentially, doctors are provided with checklists that, if followed, will prevent their liability for malpractice claims. However, where they are not followed, the doctors will open themselves up to liability.

Despite being intended to protect doctors, a new study has found that safe harbor laws are likely more beneficial to patients than doctors. The researchers examined malpractice cases from Oregon between 2002 and 2009 to see whether they would have come out differently had Oregon had safe harbor rules in place during the period. The study found that safe harbor rules would have changed the outcome of the case in favor of the defendant physician in only 1 percent of the 266 claims it examined, so it seems that safe harbor laws do not help doctors very much.

However, while the stated purpose of safe harbor laws is to protect doctors from unwarranted lawsuits, the most important goal of any malpractice policy should be to raise the quality of care received by patients. After all, the best way to prevent lawsuits is to make sure accidents never happen in the first place. The study’s results support the notion that safe harbor rules tend to accomplish this goal. In 41 of the examined cases, the study found that the patient would not have been harmed had the physician followed the recommended guidelines.

Safe harbor rules may not reduce the number of medical malpractice claims overall, as the study shows. But they do seem to raise the quality of care patients receive, which is always an desired outcome, given that another recent study estimates that between 6 and 16 percent of hospitalizations result in preventable injuries. Doctors should be responsible for the work they do – if you feel you’ve been harmed during the course of medical treatment, you may have a claim. Please feel free to contact an attorney today.

See Related Posts:

What is the Standard of Care in Medical Malpractice Claims?

Scary Statistics on Medical Malpractice

December 26, 2013

State Legislature Amends Law Related to Medical Malpractice

by Levin & Perconti

It’s a nightmare scenario: A patient is having surgery, and something goes wrong because his health-care provider acted negligently. The patient has rights and deserves to be compensated for his damages. But the surgeon wasn’t the only person in the room. What if someone else committed the negligent act? Does the patient have rights under the law?

Who Is A Professional Health-Care Provider Under the Law?

Medical malpractice occurs when a health-care professional or institution provides care that deviates from the expected standard of practice and subsequently harms the patient. The appropriate “standard of care” is that which medical professionals generally accept as the best practice for treating a patient. In Illinois, doctors are not the only professional health-care providers who can be liable for malpractice. The law also protects against malpractice by physician’s assistants, nurses, dentists, and pharmacists, among others.

Other examples of a professional health-care provider can be found in the operating room. Earlier this month, Governor Pat Quinn signed into law a bill amending the Registered Surgical Assistant and Registered Surgical Technologist Title Protection Act. A registered surgical assistant provides services under direct supervision and “is not licensed to practice medicine in all of its branches.” A registered surgical technologist is not a physician. He or she also provides services only under direct supervision.

The answer to the question in the above hypothetical is yes. Registered surgical assistants and registered surgical technologists can be held liable for medical malpractice. They must adhere to a professional standard of care and can be disciplined if they fail to do so. The amendments to the Act affect supervision requirements, disciplinary proceedings, penalties and other administrative issues related to preventing and dealing with medical malpractice by registered surgical assistants and registered surgical technological assistants. These changes to the law take effect on December 31, 2013.

Some Amendments to the Law

1. “Gross malpractice” is one cause for disciplinary action. This is no longer limited to conduct “resulting in permanent injury or death of a patient.”
2. The Department of Financial and Professional Regulation collects information in its investigations of registered surgical assistants, registered surgical technologists and applicants to both positions. The law now requires that all collected information remain confidential.
3. When the Department conducts formal hearings related to not issuing or renewing registration, or whether or not to order disciplinary action, it must maintain records of all proceedings at its own expense. But when a registrant or applicant fails to appear or is found to have violated the Act, he or she might be required to pay the cost of the proceedings.
4. Only the Department, and not the registrant or applicant, may petition the circuit court to compel the attendance of witnesses and/or the production of relevant documents.
5. After the formal hearing, the hearing officer presents a written report of the facts, the relevant law, and his or her recommendations. Previously, the law required “that the severity of the discipline recommended bears some reasonable relationship to the severity of the violation.” The legislature eliminated this requirement.

If you are a victim of medical malpractice, contact our attorneys today to discuss your rights.

See Other Posts:
Doctors Discussing Medical Errors
Expert Testimony in Medical Malpractice Cases – Surgical Error

November 7, 2013

Doctor Admits - Malpractice Costs Are Not the Problem

by Levin & Perconti

Discussions about medical malpractice, tort reform, and healthcare costs are frequently framed in terms of “Doctors vs. Lawyers.” This is unfortunate, because it distracts from very real problems: the need to limit medical errors and reign in health care costs. Doctors are obviously focused on helping sick and injured patients with their medical needs. Lawyers are focused on helping sick and injured patients protect their legal rights. There is no inherent reason why those goals are at odds. A more holistic approach is needed to change focus on discuss the real underlying issues.

From that perspective, a new article written this month by a doctor Board Certified in Internal Medicine offers a helpful way forward.

The Reality of Med Mal Costs
The story makes a forceful point: medical malpractice insurance costs for doctors are not the cause of rising medical bills. As an example, the doctor confesses that his annual malpractice insurance costs are lower than many individual family health insurance policies. The connection between malpractice insurance and healthcare costs is a mirage--as is the connection to med mal lawsuits themselves.

As we have mentioned before, medical malpractice trends are in one direction: down. In the last decade the number of claims brought and payouts made has decreased anywhere from 30-40%. The number holds both for individual physician-defendants as well as hospital-defendants.

This trend of far lower payouts and lawsuits has not led to a similar decrease in the cost of healthcare (and, subsequently, health insurance). It is obvious, then, that there are other factors driving the costs. It is critical that we focus on those other factors instead of remaining mired down in debate about topics that do not address the issue.

Similarly, throughout this time of decrease medical malpractice lawsuits, the rates of medical errors have remain unchanged--some even argue they have increased. As a result, it is important to reiterate the need for improved quality of care.

In his closing argument, the doctor makes a forceful admission that one could only hope spreads far and wide. He explains:

“For a long time we've been in the middle of a great national debate on controlling our crippling health care costs. The next time a hospital, an insurance company or a politician says we can't control these costs because malpractice is so expensive, why don't you ask them if maybe they'd like to show you the real numbers and start looking at the real problem. Because now you know: it ain't the lawyers.”

It is high time that we have more honesty and frank discussion in regards to medical costs. As attorneys who help patients harmed by medical errors, we do not automatically believe that all doctors are suspect and any adverse outcome is caused by professional negligence. On the contrary, we appreciate that medical professionals are incredibly skilled, dedicated community members who save lives day in and day out. Hopefully, those in the medical field similarly concede that pursuing redress via the civil justice system is not automatically something to shun or attack.

See Other Blog Posts:

Doctors Discussing Medical Errors

Obamacare and Medical Patient Safety

November 1, 2013

Obamacare and Medical Patient Safety

by Levin & Perconti

Most are aware that starting last month, a large component of the Affordable Care Act (Obamacare) was rolled out. For the first time consumers were able to search for insurance via health care “exchanges.” The general idea is that prices will be lower when companies compete for enrollees. In addition, more and more community members discovered while enrolling in the program that they qualified for Medicaid. An expansion of Medicaid was made part of the law, with more families qualifying for support via the government program.

Unfortunately, headlines regarding the roll-out were dominated by technical glitches. The federal website created to manage the enrollment experienced a range of glitches, preventing many from completing the process and acquiring new insurance via the exchanges. Those working on the project explain that fixes are being made and everything should be running smoothly in a pair of weeks. Predictably, those opposed to the law have jumped on the problems as a sign of inherent problems with everything related to the law.

It is important, however, to step back and take a holistic approach to the law. Obamacare is a complex new law which overhauls many different aspects of the health care world in the United States. Most focus is on new requirements placed upon employers and individuals to purchase health insurance. But that is by no means the only component of the law.

In fact, the law also addresses quality of care concerns with an eye toward improving patient safety.

Preventing Medical Malpractice
This week a Forbes story was published that took a look at just that issue: how Obamacare may help minimize medical errors and prevent malpractice. The interesting point was made that one of the only policy changes that have been brought forward in recent years on the subject essentially has the exact opposite effect of improving patient safety: tort reform. Other than trying to take away legal rights of injured patients, lawmakers have done little to get the problem of medical errors under control, despite the fact that new research continues to show hundreds of thousands of preventable death from preventable errors every year.

The author notes that “large medical malpractice verdicts may be the strongest drivers in making healthcare safer.” After all, profit influences actions at these facilities. By making it abundantly clear that inadequate care will have financial consequences, civil lawsuits are a huge spur pushing policy changes that keep all patients safe.

In fact, an insurer and executive at a risk management firm explained that the main argument against expanded use of the civil justice system--so-called “frivolous lawsuits”--are exaggerated. He noted, “Plaintiffs whose claims lack the fundamental legal components are challenged to find an attorney willing to devote time and out-of-pocket resources, unlikely to find a tolerant court, and even less likely to receive compensation.”

The bottom line: when discussing the “overhaul” of the medical system post-Obamacare, it is important to keep a close eye on quality considerations. Beyond political squabbling and rants about technical glitches, we must not forget the main issue: are we ensuring all medical patients receive adequate care 100% of the time?

See Other Posts:

Medical Malpractice Arbitration Decision Vacated

ADR Clauses Making Their Way Into Hospital Agreements

October 29, 2013

Forced Arbitration - Eliminated Victim’s Rights

by Levin & Perconti

Last year we discussed a few alarming stories suggesting that various forms of “alternative dispute resolution” (including arbitration) were making their way into hospital admission agreements. What this means is that patients and their families need to be careful about unintentionally giving up their legal rights. In the event of medical malpractice, it is critical for families to have the option of pursuing their rights via the civil justice system.

As mentioned before, arbitration agreements essentially force those who are hurt by the negligence of others (usually big companies or enterprises) to go through a separate process to resolve their dispute. That separate process is slanted greatly against the consumer/patient. Historically, these agreements were never used in the medical context--and it is still somewhat rare. However, as use of arbitration agreements increases significantly in all situations, more and more medical establishments are trying to sneak in these clauses.

The Truth About Forced Arbitration
Recently, the American Association for Justice (AAJ) released a comprehensive new report that sheds light on forced arbitration clauses in all contexts. The analysis discusses how, like various other “tort reform” efforts, the entire purpose of forced arbitration is to prevent companies from being held accountable for their misconduct. The harm to individual patients and manner in which it covers up misconduct is of no consequences.

Virtually all of the benefit of forced arbitration goes to the largest companies in the world. Led by the lobbying efforts of the U.S. Chamber of Commerce, these entities spend millions working to influence policies for their own benefit--including upholding forced arbitration clauses. In fact many small businesses are also victims of forced arbitration in disputes against bigger companies. All claims that these agreements are to “protect small businesses” or “improve efficiency” are completely disingenuous; the facts do not lie.

The AAJ report notes that, “Forced arbitration is Corporate America’s Trojan Horse – a campaign to eliminate access to the courts and individual rights and replace them with big businesses’ own dispute mill. Though most Americans remain largely unaware of forced arbitration and its effects on their rights, more than half a billion arbitration provisions infitrate our everyday lives.”

Considering the prevalence of use for forced arbitration, many consumers remain completely unaware of the situation. That is exactly how these agreements have proven so successful; consumers do not know about them until it is too late. In the medical context, patients may be bound after signing admission documents. Of course, there is an obvious problem in these cases--patients often have zero options when in need of medical services. There is nothing “voluntary” about signing away rights to a hospital at the exact moment that you need medical care. For that reason, arbitration agreements are still not prevalent in this setting, but that is slowly changing.

Med Mal Attorney
Have you or a loved one been hurt by medical malpractice? Consider contacting our legal team to see how we can help. We work with residents in Chicago and throughout Illinois, ensuring you receive redress and accountability following preventable injury.

See Other Blog Posts:

Medical Malpractice Arbitration Decision Vacated

ADR Clauses Making Their Way Into Hospital Agreements

October 7, 2013

Pre-Suit Requirement Law in Medical Malpractice Cases Thrown Out

by Levin & Perconti

Tort “reform” efforts take many shapes. Imposing arbitrary damage caps on medical malpractice recovery is the most well-known component of these efforts, but it is far from the only one. Sometimes the alternative “reform” proposals brought by big insurance and business interests are even more harmful because they seek to limit community members access to the court system altogether.

Take, for example, a new law that passed out of a statehouse in Florida and went into effect on July 1st of this year. The law imposed new mandatory “pre-suit’ requirements on medical malpractice cases in the state. In other words, it added even more barriers for patients seeking to hold their medical teams accountable for sometimes deadly errors.

Specifically, the law required that plaintiffs in these cases--the patient and/or their family--affirmatively “authorize” the defendants in the case (including their insurance company and lawyers) to conduct “ex parte” interviews with other of the patient’s caregivers. Ex parte is a Latin term meaning “on one side only.” In the legal sense it refers to conduct done only by one side in a case--the defendants. Put another way, the law required plaintiffs to give up privacy rights related to their healthcare records and allow defendants in their case to interview their other doctors alone without oversight from the court or the patient themselves.

Rules of procedure are critically important in all civil cases, including medical malpractice. One of the hallmarks of our justice system is the care the we place on ensuring complete fairness throughout the process, protecting the rights of all those in the court. That is why these laws which seek to tilt the balance and edit procedure to the benefit of only one party are completely inappropriate.

Fighting Back
Fortunately, advocates for fairness in the civil justice system in the state did not take the news law laying down. Instead, they challenged the implementation of the matter in the courts. As discussed in a recent post, they won an important victory and had the ex parte law ruled invalid.

A group called the Center for Constitutional Litigation brought the case, Murphy v. Dulay, in the U.S. DIstrict Court for the Northern District of Florida. They sought to prevent the law from being enforced. The main legal argument was that the state rule was “preempted” by the federal law known as the Health Insurance Portability and Accountability Act (HIPPA). HIPPA is a well-known, critical federal law that protect the privacy rights of medical patients. Individual states are not able to pass their own laws which contradict the requirements of HIPPA.

Explaining the HIPPA requirements advocates noted that: “HIPAA mandates that there be an opportunity to object to specific information being sought for use in court, and any information ordered disclosed by a court should be no more than the minimum necessary for the legal proceeding. In other words, if the medical records are sufficient, there is no need for ex parte interviews with health care providers.”

Fortunately, the district court agreed. Last month they denied the state’s motion to dismiss the suit and granted the plaintiff’s

See Other Blog Posts:

Medical Costs: Malpractice v. Fraud

Hospital Readmission Rates: Canary in the Coal Mine?

October 4, 2013

Medical Costs: Malpractice vs. Fraud

by Levin & Perconti

Talk of the government shutdown dominates headlines this week. As many know, the root of the problem is the House Republicans’ refusal to pass a bill funding the government unless funding for the Affordable Care Act is pulled. The Act (colloquially referred to as Obamacare) was passed into law several years ago and upheld as constitutional by the U.S. Supreme Court last year. In other words, this latest move is a nearly-unprecedented attempt by one branch of Congress to hold all government funding hostage to neuter implementation of a law.

Unfortunately, there is much confusion regarding what the Affordable Care Act does or does not do. There is a good chance that your Facebook feeds are filled with arguments on both sides, with one common complaint: that medical costs and insurance costs) will go up as a result. There is a wide-range of data which suggests these fears to be unfounded.

Regardless, considering the topic is now being debated, it is a good time to share information on the complexity of medical costs and the misplaced priorities of many seeking to lower the bill

Tackling Medicare & Medicaid Fraud
As we often discuss, some misguided lawmakers, when asked about medical costs, go immediately to “tort reform” as some catch-all solution. They claim that eliminating the rights of a certain group of injured medical patient will magically lower healthcare costs for everyone and solve the problem. This argument is so divorced from reality that it is hard to imagine anyone with a basic understanding of how medical costs accrue to believe it.

A colleague recently shared a comparison that helpfully puts the issue into context. Consider this: according to estimates from the National Association of Insurance Commissioners (NAIC), about $5.8 billion is spent annually on medical malpractice defense costs. Keep in mind that this data comes from an insurance group--not plaintiff’s attorneys. At the same time, in the United States, about $2.6 trillion is spent on health care every year. That means that malpractice defense cost--in total---account for .3 percent of the overall cost….one-third of one percent. That is a tiny fraction. In other words, even if it was made impossible for any patient to ever hold their doctor accountable at any time, the effect on health care costs would be negligible.

On the other hand, consider annual fraud costs. U.S. Attorney General Eric Holder recently suggested in a USA Today story that anywhere from $120 to $160 billion in Medicare Fraud occurs each and every year. The fraud takes different forms but essentially refers to doctors and medical institutions billing the government for care in contrivance of federal law.

Fraud costs nearly 20x more every year that all malpractice defenses together. Anyone serious about reducing medical costs is simply wasting time by dwelling on tort reform laws that would do next to nothing to fix the problem. Instead, all attention should be on providing quality care devoid of fraud. it is entirely disingenuous for policymakers to tell constituents that eliminating patient rights will solve any health care cost problems.

See Other Posts:

Hospital Readmission Rates: Canary in the Coal Mine?

New Report: Medical Mistakes May Kill 400,000 People Annually

October 2, 2013

Setting the Record Straight on Illinois Lawsuits

by Levin & Perconti

It is common for those seeking to limit the legal rights of community members to use misleading examples and half-truths to make their case. For example, a recent article from the Journal Standard seemed to paint the picture that Illinois was rife with “frivolous litigation.” In making the case, the article points to the obviously a one-sided Chamber of Commerce “ranking” of Illinois as 46th for “legal fairness.” Fairness, of course, is a vague term. Fairness to whom, the injured consumer? Big businesses?

In addition, the story offers the example of gasoline cans and the largest manufacturer of the cans. The story claims that the manufacturer went out of business because of frivolous lawsuits from consumers who hurt themselves in fires. This is similar to arguments made about the famous “hot coffee” McDonald’s lawsuit.

The article over-simplifies everything and suggest that if only incompetent people did not make mistakes then everything would be fine. As a result of their errors, the company was forced to change its design to a safer alternative and then went out of business because of legal fees. Of course, the story fails to mention that the company’s assets were purchased by another business and is back and running just as it was before.

The story went on to quote the president of the well-known slanted tort reform group, the Illinois Civil Justice League. The leader noted that, “If someone is truly hurt and fault is found, they should be compensated for their economic damages — but not for perceived pain and suffering,”

One wonders what he say to young children who lose a limb or whose parents are killed by malpractice. Their “economic” damages are minimal. I suppose they should receive next to nothing for the life-altered damage they suffering simply because its not easily quantifiable in dollars and cents.

As a brief glance at the above makes clear, the article did not exactly present a balanced perspective. Advocates on only one side of the issue were consulted at all.

Setting the Record Straight
The President of the Illinois Trial Lawyer’s Association wrote a letter in response to this skewed perspective. He shared the story of the 3-year old girl who suffered burns all over her body when the gasoline container near her accidentally spilled in her family’s garage. And the example of the volunteer firefighter who nearly died after static electricity ignited gasoline can while filling up his chainsaw.

It was these and similar tales that spurred legal action which led to equipping gasoline containers with flame arresters. The flame arresters cost about $1 per container, but the company refused to add them, leading unaware individuals to suffer horrific accidents.

The company in question only filed bankruptcy after its product injured 75 people and killed 14 others in ways that could have been prevented. The ITLA letter to the editor points out that "the company knew its gas cans were hazardous and ignored multiple expert reports recommending it use flame arresters in the spouts of cans to prevent explosions and fire.”

See Other Blog Posts:

Hospital Readmission Rates: Canary in the Coal Mine?

New Report: Medical Mistakes May Kill 400,000 People Annually

September 23, 2013

De-Fund Obamacare Proposal Also Calls for Med Mal Damage Caps

by Levin & Perconti

Over the next few week expect to hear endless talk about the debt ceiling and a potential government shutdown. Republican and Democratic leaders are again at odds over various federal fiscal policies, and the sides are, yet again, locked in political stalemate.

Most recently, on Friday a bill passed out of the Republican-controlled U.S. House of Representatives that represents the preferred GOP plan. As New York Times story on the situation explains, essentially, the bill funds the government until the end of the year. But it is also filled with a range of other, unrelated provisions. Most notably, the law also calls for the complete de-funding of provisions of the Affordable Care Act (so-called Obamacare).

As a practical matter, there is virtually zero chance that the bill would make it out of the Democrat-controlled Senate or be signed by President Obama.

So what does any of this have to do with medical malpractice?

Hidden in the legislation that passed the House of Representatives on Friday is a provision that we have often discussed on this blog: arbitrary medical malpractice damage caps which would apply to all fifty states.

Federal Medical Malpractice Cap Laws
The law which pulls funding from Obamacare also creates a $250,000 cap on non-economic damages in medical malpractice cases. This would represent an unprecedented federal takeover of what has always been a states-rights issue. At the same time, of course, the GOP repeatedly claims to be the party that respects federalism and state’s rights. The hypocrisy is vivid.

In fact,the federalism issue is even leading many supporters of caps to reject these federal proposals. For example, a Pop Tort article on the situation points to former U.S Senator Ben Nelson. Now the head of the National Association of Insurance Commissioners, Nelson previously worked within his home state to pass devastating damage caps. Yet, he is opposed to this federal law, precisely because he believes that federal lawmakers have zero authority to encroach on this topic. It should be left to the states.

This sort of packaging different issues together in a single proposed bill is a very long-standing traditional among all legislative bodies. In particular, unpopular proposals are frequently added to larger measures in the hopes that no one will notice the addition or that opponents will grudgingly vote for the whole package.

Fortunately, as already mentioned, this exact package has virtually no chance of advancing. Yet, that is not to say that under no circumstances would these provisions make it into federal law. Compromises happen all the time, and it is not inconceivable for usual supporters of patient rights to cave on this issue in order to reach agreement on a larger bill that avoids a government shutdown.

For that reason, it remains incumbent upon advocates to continue to rallying cry on behalf of legal fairness. It is simply unacceptable for the costs of dealing with a catastrophic injury following medical malpractice to be shifted to the victim and taxpayers. The responsible parties should be required to pay for the full consequences of their negligence as deemed appropriate by a jury.

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September 19, 2013

State Court Judge Urges Reconsideration of Damage Cap Law Following Medical Malpractice

by Levin & Perconti

Illinois residents are fortunate in that several years ago our state Supreme Court struck down the unconstitutional law that placed arbitrary caps on damages in medical malpractice cases. As a result, local patients seriously harmed by misconduct are able to receive compensation for the full consequences of their loss, allowing the best chance of full recovery.

Unfortunately, residents elsewhere, including neighboring states, are still shackled by arcane laws that prevent them from getting anywhere close to full recovery following injury caused by others. The situation is so bad in some areas that even judges who are forced to uphold rulings are asking higher courts to consider a chance.

Court Opinion in Medical Malpractice Case
As discussed in a recent Wisconsin State Journal story, one circuit judge judge recently issued a ruling in a medical malpractice appeal. The legal matter involved a patient who died in 2010. He went to a local hospital with chest pains and shortness of breath. He was admitted to the hospital, but throughout his two day stay he was never given a blood test to check for clots. Only four days after his discharged he died suddenly as a result of lung clots.

Shortly thereafter his wife brought a suit against the public hospital involved, alleging that they acted negligently, not performing necessary diagnostic procedures which would have caught the problem. The case went to trial and a jury found that the hospital acted negligently. They awarded the wife $1.8 million.

However, based on a long-standing law in the state, all municipalities, including the hospital here which is owned by the government, capped damages at $250,000 (individual doctors not employed by the public have a $750,000 cap).

After the jury award was arbitrarily reduced, the family appealed the decision and the law. On appeal, the judge upheld the reduction, citing past case precedent that tied his hands. However, in his opinion he wrote dicta (comments that are not directly binding or relevant to the opinion of the case) suggesting that the law might be struck down by the state Supreme Court.

More specifically, even though the judge ruled against the plaintiffs, he wrote, ““I believe the plaintiffs provide cogent arguments that deserve close examination by our Supreme Court, which is the only court that can modify or overrule the decisions that I believe are controlling.”

Part of the argument is the fact that the very low cap put in place nearly 35 years ago, are worth less in today’s value than when first passed, because the amount are not pegged to inflation. For example, the $250,000 cap when first created is equivalent to $72,000 today. The judge pointed out that it’s hard to believe that the constitutional tests for caps are met when the plaintiff only receives 14% of what the jury awarded.

Similarly, the appellate judge suggested that the underlying roots of these laws which provide some protection to state and local governments are ill-suited in certain settings, particularly the practice of medicine.

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August 28, 2013

New Study Shows State Malpractice Caps Do Not Increase Access to Care

by Levin & Perconti

Blog readers may remember recent discussions about a medical malpractice “tort reform” debate that is brewing in California. As noted before, advocates are hoping to increase the arcane cap on certain damages for victims of medical malpractice in the state. This cap was put into place several decades ago and has never been increased. As it now stands, it significantly and arbitrarily distorts the compensation available to patients in the state.

We have previously noted how the cap on non-economic damages means that certain patients, like children, stay-at-home parents, and the elderly, receive far lower awards than others for the same injury caused by malpractice.

Right now the cap is at $250,000, but patient rights advocates are hoping to increase the cap to $1 million. To do so, the supporters are now gathering signatures in the hopes of acquiring enough to put the measure on the ballot. If they succeed all voters in the state can weigh in to change current law and increase the cap.

To put this into perspective, the $250,000 cap when translated into today’s dollars is about $65,000. The figure has never been raised for inflation.

As you might expect, the political push is garnering significant attention from all sides. Millions of dollars will likely be spent by proponents and opponents of the measure to sway public opinion.

Red Herring Argument
In the coming months we can expect the rhetoric from those against the increase to heat up. The arguments they bring out will probably be the same as those used in similar fights all over the country, including Illinois. As previously noted, there is already robust evidence that these caps do not lower medical costs, reduce so-called “defensive medicine,” or lower insurance costs. Those are some of the most common claims in support of taking away legal rights from patients.

Last week the Center for Justice & Democracy released a new study that took direct aim at yet another of the arguments often made by tort reform proponents: supposed increased access to medical care.

The argument is that doctors will choose to practice in areas with tort reform laws, increasing access to proper medical care for community members. While it may make an attractive three-second political talking point, that argument simply does not hold water.

As the CJ&D report, "Exposing Medical Myths: “Caps” And Physician Supply," shows, virtually all the work that has been done on the topic shows that caps have no effect on physician supply. When looking at data from individual states, government studies, and various academic projects, the truth is plain. Those interested in learning more should take a look at the entire study to get a feel for the breadth of evidence supporting this reality.

All patient safety advocates are urged to share information with family and friends about these issues. From dinner tables conversations to political rallies, every time another community member learns to dispel these tort reform “myths,” we are closer to ensuring fairness for all patients.

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July 19, 2013

Another Push to Ensure Legal Fairness for Medical Malpractice Plaintiffs

by Levin & Perconti

Many political issues seem to have a clear, historical trajectory. In other words, a concern is identified, and then a slow battle proceeds when the concern is addressed until it is generally accepted by the public. Consider classic issues related to civil rights, seat belt laws, consumer safety requirements, and many other matters.

But there are some issues that do not follow that path. Take tort “reform” laws. Various states and the federal government have considered many different apparent “reform” laws over the past few decades. Initially, some pushed these laws (like arbitrary damage caps), under the assumption that medical malpractice lawsuits were connected to rising healthcare costs, doctor shortages, and the like. However, as much more data has come in and many of those laws have passed, the truth became clear.

Medical malpractice lawsuits did not cause rising rates, and passage of these laws did not bring any of the claimed benefits. The only beneficiaries were insurance companies, who are able to rack up even larger profits at the expense of patients suffering the worst injuries as a result of poor medical care.

Since then, many states have tried to roll-back previous laws in an attempt to better ensure legal fairness. On top of that, many high courts have identified constitutional flaws in certain tort reform laws, recognizing underlying principles of separation of powers of inalienable legal rights.

Another State Looking to Protect Patients
For example, just this week, groups out in California are looking at changing laws which have been around for quite some time in order to provide more fairness to patients hurt by professional negligence.

As discussed in an LA Times story, many different advocates are working to push a ballot initiative which would raise the arbitrary cap that currently exists on certain damages that can be obtained in medical malpractice cases. As a testament to the comprehensive nature of the support, a coalition including patients rights attorneys, consumer advocates, and even members of the medical field--the nurses union--are supporting the political maneuvers.

The law in question has been around for nearly four decades. It caps non-economic pain and suffering damages at $250,000. As our injury attorneys have long-noted, these arbitrary caps do nothing other then remove decisions from juries and provide a boon to insurance companies. Even then, having a cap that doesn’t change for decades offers a serious burden on injured parties. To fix that the coalition is hoping to increase the cap to $1 million and peg it to inflation so that, at the very least, it remains functionally the same for the foreseeable future.

As it now stands the supporters are hoping to get the proposal on the state ballot in next year’s election--set to take place in November of 2014. To do so, they need to gather more than 400,000 signatures of voters. They plan to begin the collection process this September. It will undoubtedly be a long slog, and will surely rile up opposition. But it represents an important commitment to fighting back against past actions which unfairly targeted the legal rights of community members.

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July 8, 2013

Let’s Focus on Insurers, Not Injured Patients

by Levin & Perconti

Last week the “Pop Tort” blog pointed to a helpful New York Times article discussing health care costs. The NYT article tackling the issue in the context of childbirth costs. Unlike most countries, which consider childbirth to be a single medical event with a set price, in the United States, every individual aspect of the process has a separate price tag. Amazingly, the cost of childbirth--from the pregnancy to the delivery itself has tripled in the last ten to fifteen years. All told, about $50 billion is spent on medical care each and every year in the United States when the roughly 4 million annual births are counted.

Discussions. arguments, and hand-wringing in response to concerns about the staggering cost of receiving medical care is far from new. For decades all manner of observers have worried about the steady rise of medical care. Unfortunately, large corporations and chronic defendants jumped on the opportunity, making false claims connecting the civil justice system to the problem.

The now-debunked argument was that malpractice insurance costs for doctors (or “defensive medicine”) forced doctors to charge more for care and provide more unnecessary care. In other words--it was the medical malpractice victims fault that healthcare costs were rising. This line of thought was quite convenient for hospitals and insurers and it has shaped discussion of tort reform issues for decades.

But, as the Pop Tort blog points out, if we are actually serious about tackling the problem of health care costs--instead of just using it to advance specific agendas--then it is critical to stop making false claims. We need to understand exactly how the pricing works. Far too often in any discussion of medical costs, the concern about malpractice lawsuits is always thrown into the conversation--even though studies repeatedly show no actual connection. The post argues, “I wish reporters wouldn’t step into this politically toxic area unless they are willing to do more than repeat talking points [...] and understand how malpractice risk and insurance works.”

Interestingly, the post also points to Illinois as an example. As readers know, our state legislators previously passed a law creating an arbitrary cap on compensation for those harmed by medical malpractice. The Illinois Supreme Court struck down the law in 2010. Often forgotten, however, is that when the law was ruled unconstitutional, everything in the bill was lost--including parts dealing with insurance regulation. The laws were meant to protect doctors from unfair insurance practices which amped up their rates.

Not surprisingly, since those insurance regulations were lost in 2010, the insurance industry has thrived in our state. According to a Chicago Business article, the largest med mal insurer in Illinois had $57 million in profits last years--a new record. The insurance industry in thriving, but doctors are paying more and patients ultimately suffer as a result.

The bottom line: We need to shift focus from blaming patients to truly understanding how the insurance industry is able to gouge its customers. Let’s focus on changing the narrative, get beyond the tired old political talking points, and commit to actually improving the situation.

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July 3, 2013

Corporate Front Groups Use Civil Justice System Only When It Suits Them

by Levin & Perconti

Hypocrisy is a sad underlying theme among many attempts to use legislation to take away legal rights for those injured due to medical malpractice. Relying on public relations spin or confusing, misleading jargon, many of the biggest “tort reform” groups spend million on lobbying efforts to sell the idea that full and fair access to the civil justice system is somehow the cause of so-many problems: rising healthcare costs, fleeing doctors, increased taxes, and more.

If you believed even half the arguments made by some opposed to equal justice under the law, one might get the impression that the number one threat to the country was lawsuits filed by greedy exploiters.

Of course, advocates have pointed out again and again, virtually all of those claims are nonsensical. Instead, tort reform arguments are mostly just a cover for large interests to avoid being held fully accountable for their mistakes that harm others. It is perfectly natural for businesses to seek profit. But it is wholly unacceptable to do it in a destructive ways that hurts others and skirts legal fairness.

Do as I Say, Not as I Do
To get an idea of what many of these large corporate interests fighting for “tort reform” really think, it is best to look at their actions instead of their words. It does not take much searching before discovering that they seem perfectly happy using the civil justice system when their own interests are at stake. It is a classic example of legal hypocrisy--bashing the system when others seek fairness but exploiting it for one’s own purposes.

Recently, the President of the American Association for Justice penned a letter which touches on one recent case where the corporate groups appear eager to use the courts themselves.

As explained in the letter, one of the largest groups seeking to take away consumer legal rights, the American Tort Reform Association (ATRA), filed an amicus brief challenging a federal group charged to protect workers, the Occupational Safety and Health Agency (OSHA), from changing language to a safety protocol known as the “Hazard Communication Standard.” The Standard in question refers to labeling requirements for hazardous materials.

Essentially, the ATRA is arguing that any new rules “preempt” common law rules regarding safety with these materials, such as a duty to warn. In short, the tort reform front group is trying to lower the safety standards, immunizing those who may cause harm by violating these safety principles.

Tort Reform - Interwoven Principles
While it may seem bizarre that somewhat arcane preemption rules regarding dangerous chemicals may have any impact on medical malpractice lawsuits, it is important to keep in mind the basic principles at stake. The arguments made by the ATRA in this brief are similar to those brought forward in many arguments seeking to lower safety standards in all settings--including the hospital--at least for the purpose of allowing those harmed by poor care to seek full legal recovery.

For that reason all of us who believe in equal access to the justice system must stand arm in arm against all attempts to take away legal rights in any setting.

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June 19, 2013

The Chamber of Commerce & Protecting Consumer Rights

by Levin & Perconti

Litigation is an inherently contentious process, because it involves two sides with adverse interests. One party claims that a harm was done and demands redress from the other. However, it is a mistake to assume that all such matters in the civil justice system must therefore be filled with animosity, extreme disagreement, and prolonged feuding over every detail. Instead, when used fairly and reasonably, the process can be used to facilitate fair agreements involving responsibility and accountability.

In other words, in the medical malpractice context, it is not automatically evident that a medical malpractice lawsuit must end with each side engaged in a dragged-down, drawn-out courtroom fight. The sides can view the evidence fairly and reach agreement naturally with both sides satisfied with the outcome.

The same can be said for politics. While today it may seem as if political disagreements inherently involve each side stonewalling at every turn, it does not have to be that way. In reality, each side can share their perspective, be honest about the fairness of the other side’s argument, and make progress.

Chamber of Commerce: Digging In Their Heels
Unfortunately, over the years many lobbying interests have become more and more entrenched (and emboldened), becoming unwilling to compromise on nearly anything. This is one of the main reasons why we see different advocacy groups trying to push through more and more laws which limit the rights of consumers of every stripe (including medical patients) from holding wrongdoers accountable for their conduct.

In the medical errors context, these “tort reform” measures are certainly not new, but the battle is far from over. Unlike other issues where genuine middle ground might be sought, in most cases these tort reform laws epitomize the significant overreach by large business interests to simply make sure the rules apply differently to them than they do other members of the community.

A recent New York Times profile of the current U.S. Chamber of Commerce President discusses this descent into a more and more politicized and uncompromising attitude taken by big business groups on these issues in recent years.

The President of the Chamber, Thomas Donohue, has been at the helm for sixteen years. He admits that right away when he took the job “he vowed to make trouble for traditional adversaries like trial lawyers, environmentalists, and union leaders.” In other words, he moved the Chamber into more open political warfare with those entities which traditionally advocate for those without significant money or ability to advocate for themselves.

Sadly, this often means pushing for any number of legislative changes that enrich the largest companies at the expense of complete health, safety, and fairness for individuals--including pushing for tort reforms laws. In recent years, the Chamber has moved more and more into partisan politics, making big push in the last election to push for victories for Republican candidates in the U.S. Senate. They were unsuccessful in that effort.

All of this federal advocacy work on the Chamber’s part is big business. Donohue noted that it required $5 million a week to run the group. Most of that is funded by several large corporations. However, because talking about “small business” is more popular, the Chamber usually tries to downplay its corporate donors and position itself as an advocate for small business.

One can only hope that in the years to come, this unnecessarily aggressive, partisan attitude will wane, allowing consumers and everyday Americans a reprieve from the continued assault on their interests.

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