Articles Posted in Useful Publications

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The Chicago Tribune reports that a new tool is available to help you choose a doctor. For decades patients have had to rely on word of mouth and insurance listings to choose their physicians. Both of those sources can offer incomplete information, and leave a prospective patient frustrated and just going to whatever doctor has an opening. Most doctors are quite good at what they do and are compassionate people who want to help their patients. But some are not. And going to one of the bad ones can result in suffering personal injury. Just like you would want details about a contractor and how she compares to other contractors in town before having her work on your house, you should want to know about a doctor and how she compares to her peers before she works on you. Having that information could even help you avoid becoming a victim of medical malpractice. Treatment Tracker is a tool to find the information you have been looking for.

The Tribune reports that the purpose of the new tracker is to allow patients to compare health providers with one another based newly released information regarding Medicare Part B. ProPublica, the news agency that created the tracker, used data released by the Centers for Medicaid Services last month that explains the payments made by the agency to 880,000 health care professionals who cared for beneficiaries of Medicare Part B in 2012. The services included in this data are:

*Services delivered to seniors and the disabled by doctors, optometrists, physical therapists, and some other medical practitioners *Ambulance mileage *Lab tests *Outpatient services *Drugs administered

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At the end of 2013, the Congressional Budget Office (CBO), an independent nonpartisan entity that performs economic and financial calculations and projections for Congress, issued a report entitled Options for Reducing the Deficit: 2014 To 2023. The CBO routinely calculates projections for how certain bills, if passed into law, would affect the government’s balance sheet. This particular report is interesting in that it makes recommendations on how to reform medical malpractice laws, which are normally the sole province of the states rather than the federal government.

Healthcare providers carry malpractice insurance to cover themselves in the event of liability on a malpractice claim. The premiums on that insurance are passed along to patience through higher medical fees and costs. The CBO Report recommends a number of reforms to medical malpractice torts around the country that could lower these costs.

CBO Recommendations

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In order for a matter to be brought before a court of law the action must be brought within the applicable statute of limitations (SOL). Generally, the SOL is set by the respective jurisdiction’s statutory code, though occasionally courts may look to precedent if statutory authority fails to give sufficient guidance. Because medical malpractice in the United States overwhelmingly falls under state law, state statutory codes are the starting point for determining if an action for medical malpractice can properly be commenced.

In Illinois, the basic general statute of limitations for a medical malpractice claim is two (2) years. This means that after a plaintiff has discovered or reasonably should have discovered the existence of an injury caused by a medical professional that person must file a formal complaint within two years or else the court will likely refuse to hear the matter and dismiss with prejudice. Dismissal with prejudice is the more severe form of dismissal a court can dispense and usually results in the barring of that lawsuit from being refilled, unless exceptional circumstances exist or new information is discovered. An absolute bar under the Illinois constitution at the four year mark; this means any lawsuits are prohibited regardless of exceptional circumstances.

Cases in which minors are potential med mal plaintiffs present guardians and attorneys with unique demands. Most broadly, minors are not legally autonomous beings and thus cannot enter into contracts (with some exceptions) marry, or bring lawsuits on their own behalf. If a minor holds a potential medical malpractice claim in Illinois the guardian must be aware that an eight year SOL applies. However, Illinois law bars any claim arising from the years the plaintiff was a minor from being commenced after the age of twenty-one. The only possible exception to this rule is where the minor was mentally disabled at the time of injury: as with all possible med-mal plaintiffs, the SOL in Illinois does not begin to run until after the mental disability abates.

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Recently, the Aon/ASHRM Hospital and Physician Professional Liability Benchmark report was released for 2013. According to an article on the release from Claims Journal, this marked the fourteenth year that the study has been conducted. Considering that the project has been underway for nearly a decade and a half, it offers a helpful example of trends in the area of professional liability. Of course, it must be kept in mind that the report is crafted from the insurance perspective, but it is still useful to examine the results to get a feel for one analysis of current malpractice claim and insurance trends.

The Results

Perhaps the most headline-grabbing takeaway from the report is that the rate of medical malpractice growth is at the lowest in the entire history of the report itself. This reflects the same results we have seen time and again in similar reports–medical malpractice payouts are lower than ever. This basic fact is contrary to the claims of so many who continue to push for various tort “reform” efforts to take away even more rights from injured patients.

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How do you prove your doctor committed medical malpractice? What specific evidence may be used in the case to convince a jury of what happened?

Every case is different, but in general, all of this information is collected by a plaintiff’s attorney via the “discovery” process. As the name implies, discovery is the part of the civil lawsuit process where both sides interview relevant parties (depositions), request access to documents that each side possess, and otherwise gather evidence to be used in a potential trial. It is hard to overestimate the importance of the discovery process. It is often the crux of any medical malpractice lawsuit–where the truth about what happens truly rises to the surface.

Unfortunately, for the same reason that this process is so critical uncovering misconduct, those who are often held responsible for misconduct–large corporations–are working to limit the discovery process.

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Medical care today is increasingly complex and specialized. The days of having a single doctor who takes care of all of your health care needs–big and small–are long gone. Instead, it is not uncommon to have many different caregivers, each working on very specific aspects of your health. On one hand, this is obviously a superior model in allowing doctors to become incredibly skilled in certain areas, improving overall care and (hopefully) minimizing errors caused by professionals working in unfamiliar areas.

On the other hand, the segmentation of care makes it more important than ever for proper communication between medical professionals and with the patient. Asking questions, being extremely clear about a diagnosis or medical history, and similar matters are critical.

A recent article published in the New England Journal of Medicine touched on one unique aspect to that communication: doctors explaining errors to patients that were committed by other doctors.

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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

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Sometimes numbers get so large that they lose all meaning. The human mind has a hard time grasping sizes on a certain scale, and it is easy to lump all figures into general categories (small, medium, large). That may be the case when it comes to the total number of people killed each and every year as a result of preventable medical malpractice.

In the past, figures like 100,000 were frequently used a shorthand estimate for the number of preventable yearly deaths. That figure alone is enormous, and it is hard to truly wrap one’s head around 100,000 different people with with their own with mothers, fathers, children, spouses, and friends.

But a new study finds that the 100K figure may be far too low–the real total might be 400% larger.

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Medical malpractice lawyers and other patient rights advocates often comment on questionable connections between money and medical care. Because of the way that the compensation system works in many settings, there is a high risk of a conflict between medical care and a hospital’s profit incentive.

Of course, the vast majority of those in the healthcare industry, from individual doctors and nurses to administrators are ethical individuals who are committed to providing the best care possible all of the time. Mistakes are sometimes made, and it is important that those affected be helped to heal, but, on the whole, we should be proud of the wonderful work of so many caring medical workers

The Bad Apples

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The most recognizable argument made in public policy debates about “tort reform” laws is the supposed connections between medical malpractice liability and medical costs. The reason that proponents make this claim is obvious: it moves public opinion.

Few people expect to be affected by a medical error, but everyone pays for medical care at some time or another. Therefore, it is a persuasive argument to claim that in order to help everyone by lowering medical costs we need to take away rights from a smaller group–those hurt by medical malpractice. The argument seems to go straight to everyone’s pocketbook. That logic has swayed many to support tort reform laws.

There is only one problem. The argument is not at all true.