May 12, 2014

Treatment Tracker Allows for Informed Decisions

by Levin & Perconti

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

ProPublica entered this data into an interactive application that allows you to search for doctors in your area. Of course, not all doctors are listed because not all doctors serve enough Medicare Part B patients to be included in the data. However, even if your doctor is not included in the data you can at least compare what your doctor is doing in your case up against what other doctors are doing in your area.

To that end, the Tribune provides some questions in its report that you should keep in mind when using the tool. These include:

**Does your doctor perform more services and order more tests per patient than others in his or her specialty and state? Is your doctor’s cost per patient higher than peers? If the answer to either of these questions is yes, you may want to ask questions to be sure you are not being over treated. Mechanics face the unfortunate stereotype of being the ones who will sell an uninformed consumer services he does not really need, but some unscrupulous people are like that in any profession. If you think your doctor is ordering too many tests you may want to look for a second opinion to be sure they are necessary.

**Are the most common services and treatments chosen by your doctor similar to others in the same specialty and state? If so, find out why? It could be that your doctor is very good, and on the cutting edge, and you will have to decide if you want to be a test case. On the other hand, your doctor using treatments that other doctors do not use could be a signal that your doctor is behind the times and not using the best treatments currently available.

**If you need a procedure, does your doctor have much experience performing it? More experience generally equals better outcomes for patients.

This tool cannot prevent all malpractice. But having more data so you can be an informed consumer can only help.

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February 6, 2014

Medical Malpractice Reform and the National Deficit

by Levin & Perconti

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
The Report suggests that states should limit noneconomic damages, which tend to also be known as damages for pain and suffering, at $250,000, and to limit punitive damages, or those assessed as punishment, at the greater of either $500,000 or twice the value of economic damages like medical costs or lost income. The Report also recommends that statutes of limitations should be one year from the date that the injury caused by the malpractice is discovered for adults, and to fix the statute of limitations for children to three years from the date the injury is discovered.

The Report furthermore advises that states should eliminate joint and several liability rules, which mandate that all defendants named in a tort suit are each individually responsible for the entire amount of a damages award. Instead, as the CBO states, each defendant in a medical malpractice lawsuit that are found liable should only be on the hook for a percentage of the damages award equal to their respective share of liability as assigned by the jury (or in bench trials, the judge). Lastly, the CBO recommends that states reform their rules to allow evidence of collateral income, from insurance policies for example, to be admissible as evidence in a medical malpractice trial. Some states do have some of these laws or similar ones, but the Report encourages all states to adopt these policies.

The Report reasons that by capping malpractice awards, medical malpractice insurance policies will be paying out less in coverage, and would then charge less in premiums to policy holders. This would reduce medical costs since the reduction in premiums would cause a reduction in what doctors and hospitals charge patients. The Report estimates that there would be a consequential decrease in mandatory spending by government programs like Medicare, Medicaid, and government subsidies to policies acquired through the new Obamacare exchanges. This reduction would amount to approximately $57 billion in savings on the national deficit over the next decade (2014-2023).

Critics point out that the CBO’s projections are incorrect, and such experiments in states like California and Texas have failed to yield lower premiums or better care. Downsides to these proposals include great difficulty for plaintiffs seeking full damages awards that they deserve, since the awards would be capped, and defendants would no longer be jointly and severally liable, meaning there could be less of a chance that they receive their full award in scenarios where there are multiple defendants that all must pay up. Additionally, with malpractice awards capped, medical providers may have less incentive to take reasonable care in practice since they would not be exposed to unlimited tort awards. The plan has little chance of becoming law, however, as some Senators have seen caps as the wrong way to implement tort reform.

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December 5, 2013

Medical Malpractice Statute of Limitations Issues In Illinois

by Levin & Perconti

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.

The continuing duty to warn (CDW) (hyperlink) rule provides a potential reprieve to plaintiffs whose potential claims have passed the applicable SOL. In short, the CDW rule requires physicians and other statutorily defined individuals with a duty to report any potentially malfeasant acts to the individual to which these acts were performed. Jurisdictions vary in their treatment of the CDW rule. Favorable jurisdictions view the rule as a fair and equitable requirement that the medical establishment own up to its malfeasance and properly inform patients.

In 1997 the Illinois Court of Appeals in the landmark case, Proctor v. Davis, set a nuanced precedent regarding the role of CDW in Illinois med-mal jurisprudence. The case concerned a lawsuit against an ophthalmologist and the manufacturer of a drug used by the doctor. The doctor’s use of the company’s drug resulted in the removal of plaintiff’s left eye. The doc tor was held not liable and thus had not duty to warn of the danger posed by the drug; however, and importantly, the drug manufacturer was held liable for extensive punitive and compensatory damages for its failure to warn of the potential damages resulting from its product.

November 13, 2013

New Insurance Study on Hospital Malpractice Liability

by Levin & Perconti

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.

In fact, far from showing the small “growth” the report conceded that there is no growth at all in malpractice claims and payouts. The story notes that “the cost savings are achieved by promoting patient safety, uniformity of risk management and jointly defending claims, when they happen.”

All told, according to the report, less than.6% of all hospital revenue is paid out in a medical malpractice claim. That amounts to sixty cents for every one hundred dollars earned by a hospital. This reality--coming from an insurance group, no less--is a stark reminder that these payments followed errors have next to nothing to do with rising healthcare costs overall. Even if every single malpractice payout was eliminated, hospital profits would not even register the blip.

Keep in mind, that if that scenario did take place, the costs would not disappear, they would just be shifted to the taxpayer. Instead of medical facilities responsible for the errors paying for the consequences of the error, those costs would be borne by private parties and public support programs like Medicare and Medicaid. Often lost in these debates is the fact that malpractice awards are not mere jackpot lottery winnings for patients--they compensate for losses. Eliminating the payout does just mean the costs has to come from somewhere else.

Re-Focus the Debate
It is becoming increasingly clear that we need to shift the national dialogue away from completely misleading claims about the role of medical malpractice claims in rising healthcare costs. Instead, we need to talk about the role of those who profit from the rising costs. As in all large-scale public issues, some interests are winning as a result of increased costs and some are losing. Any true resolution to get the costs in check must look closely at the conduct of those who benefit from the rising costs.

For help with any sort of medical malpractice issue in Chicago or throughout Illinois, please feel free to contact our attorneys today.

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November 11, 2013

Limiting Discovery Rules Would Hurt Civil Lawsuit Plaintiffs

by Levin & Perconti

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.

Proposed Rule Changes
As an American Association for Justice (AAJ) story explained last week, there are changes being proposed to the federal rules of civil procedure which would limit discovery and ultimately make it harder to plaintiffs in many cases, including those hinging on medical malpractice or fraud, to obtain access to all the information they need to prove liability.

Last week the Judicial Conference of the United States held hearings about the proposed procedural changes at the federal level. The President of the AAJ testified at the hearing against the change, hopefully convincing decision makers of the harm that the alterations would bring.

Specifically, the proposals call for decreasing the number of depositions allowed and making it harder for plaintiffs to obtain access to documents to prove their cases. Together, these change amount to nothing more than a way for companies to better hide evidence about neglect or intentional misconduct.

The AAJ story notes one area which may be particularly hurt by these discovery changes: recouping money to taxpayers following fraud. As we often discuss, some medical companies engage in illegal practices to boost billings to increase their bottom line. This fraudulent conduct usually only comes to light when a whistleblower comes forward and mountains of information are examined which prove the fraudulent billing. But the new rules would make it far harder (if not impossible) for those documents to be obtained, preventing taxpayers from recovering money from companies that received it illegally.

In explaining the potential impact on liability if these rules are changed, the President of the AAJ noted that, “This will force cases to be decided before all of the facts are found and brought to light. If Americans can’t seek justice in the courtroom, what safety information could corporations hide from the public? If no one is accountable, no one is safe.”

Never forget that the entire purpose of the civil justice system is to get at the truth and provide redress to help those harmed by negligent conduct. The procedural rules which guide the system should reflect that commitment to reaching the ultimate truth--never throwing more roadblocks in the way only to help big companies avoid accountability.

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November 4, 2013

Doctors Discussing Medical Errors

by Levin & Perconti

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.

Honest Communication
The article begins by sharing the human element with regard to this question, noting that “although a consensus has been reached regarding the ethical duty to communicate openly with patients who have been harmed by medical error,s physicians struggle to fulfill this responsibility.” In other words, sharing information with patients about past mistakes is obviously the correct thing to do, but, in the real world, many doctors are loathe to report on errors by colleagues.

The complex systems of caregiving today mean that many professionals will encounter this problem at some point. And a lack of very clear guidelines on how to handle the matter often means that patients are simply not told of the situation--only learning about it much later.

The article describes recommendations made by a group of professionals at a recent conference, from patient safety experts to medical malpractice insurers, discussing this very issue. They noted that perhaps the a primary difficulty is that the doctor who suspects the problem may lack access to the full range of information to understand the scope of the error. They may have suspicions of an error but remain unclear if those suspicions are strong enough to warrant more investigation or analysis.

In the end, the conference group explained that, at all times “patients and families come first.” Awkwardness or fear on the part of a physician cannot ever get in the way of communication that is in the best interest of the one seeking medical care. The story succinctly summarizes, “Simply put, when disclosure is ethically required, the fact that it is difficult must not stand in the way. Patients and families should not bear the burden of digging for information about problems in their care.”

Interestingly, the article even goes so far as to concede that patients who suffer unnecessarily as a result of a medical error are likely to need financial compensation to help in their recovery. Regardless of individual medical professional’s opinions on the medical malpractice system, that should never stand in the way of being honest with patients to ensure their rights are not adversely affected.

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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.

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September 27, 2013

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

by Levin & Perconti

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.

New Med Mal Death Report
Pro Publica released an article that took issue with the common med mal death estimates. The story pointed to new research published in the Journal of Patient Safety which found that the total premature death caused by inadequate medical care may be as high as 440,000 patients annually.

To reach this result, the academics conducted a literature review of the 4 most comprehensive prior studies examining the scope of this problem. As the researchers point out, accurately identifying when a death was caused by a medical error is notoriously difficult. Different facilities have different manners of reporting various incidents, and there is an inherent temptation to slightly skew reporting in order to avoid any appearance of error. However, in general, most projects examine medical records for sign of errors, like medication stop orders or abnormal laboratory results.

Taking all that into account, the researchers in this case explained that the actual number of patients who die prematurely because of preventable errors is likely over 400,000 annual.

The primary author argued that, “ The epidemic of patient harm in hospitals must be taken more seriously if it is to be curtailed. Fully engaging patients and their advocates during hospital care, systematically seeking the patients’ voice in identifying harms, transparent accountability for harm, and intentional correction of root causes of harm will be necessary to accomplish this goal.”

An Epidemic
As the ProPublica story points out, with that data, medical malpractice would be the third leading cause of death in the United States--behind only heart disease and cancer.

Considering the explosive nature of these findings, some medical industry groups have already downplayed the results, reporting more confidence in the older number, like the 98,000 annual deaths estimated by the Institute of Medicine (IOM). Yet, even the primary author of that well known report from the IOM, “To Err is Human,’ reviewed the most recent study and voiced support for the 440,000 patient finding. Virtually all other patient safety experts who reviewed this recent effort similarly echoed support for ite methodology and results.

Are you concerned that a loved one may have been affected by medical malpractice? If so, contact our attorneys to see how we can help.

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August 12, 2013

Doctor Charged with Misdiagnosing Cancer Patients to Collect Millions from Medicare

by Levin & Perconti

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
Yet, there are always exceptions that seem to prove the rule. When it comes to money distorting medical care, one of those glaring exceptions was highlighted in a recent Bayou Buzz story. The article, posted on Saturday, reported on a doctor who is facing criminal charges in a shocking $35 million Medicare scam--with patient care disregarded.

The doctor in question lived and practiced in Detroit. Last week he was arrested by federal officials on charges of misdiagnosing patients with cancer and providing unnecessary treatment, all in an effort to collect vast sums of money from public coffers via the Medicare program. The scheme lasted for over two years. The accused-doctor owned a company called Michigan Hematology Oncology. The business was sizeable, with offices in six different cities.

According to published reports, much of the information which led to the arrest was taken from looking at patient records and talking with employees who worked for the company. Those employees explained that patients were shuffled through the clinics frequently and in large numbers. Countless patients were allegedly told incorrectly that they had cancer, and signed up for chemotherapy sessions which, unsurprisingly, were conducted at the oncology center. It was a financial boon to the doctor. Those therapy session were then billed to Medicare.

Of course, beyond the financial issue, the needless suffering a medical patients is astounding. It is impossible to characterize the pain and suffering that comes with a cancer diagnosis. That is not even counting the damage caused by chemotherapy. It is situation that should not be wished upon anyone, let alone forced onto patients unnecessarily in order to enrich a doctor.

Patient well-being seems to be an afterthought for the doctor. Other reports suggest that, beyond the Medicare fraud, the oncology center hired doctors who may have been unlicensed and not qualified to even practice medicine. Employees suggests that he himself spent less than five minutes with each individual patient.

In one case, according to reports from former employees, a patient fell while at the clinic. However, before he was taken to the hospital, employees continued with his chemotherapy session so that it could be billed to Medicare. Eventually the man died as a result of complications he sustained in the fall.

If even some of the allegations in this case are true it is an incredibly sad reminder of how one doctor with ill-motives has decimate the lives of so many patients who entrusted their very lives to him. Calling it mere "medical malpractice" does not even begin to capture the misconduct.

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New Report: No Connection Between Medical Malpractice and Medical Costs

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August 9, 2013

New Report: No Connection Between Med Mal & Medical Costs

by Levin & Perconti

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.

Study after study repeatedly shows that there is no correlation between medical malpractice lawsuits and the rise of medical costs. Those making arguments to the contrary are simply using the public's unfamiliarity with the truth in order to support their warped, self-interested political goals.

Public Citizen Report
Recently, the national non-profit group Public Citizen released a new report clearly outlining the falsity of the argument that litigation is to blame for the steep rise in medical costs in recent decades. A copy of the full report can be viewed online at no cost.

For the past ten years, or more, many elected officials have claimed that the only way to curb medical prices in the U.S. was to limit the rights of those affected by medical errors. As the report points out, as recently as 2010 the current Speaker of the House claimed the "biggest cost driver" in healthcare was "medical malpractice and the defensive medicine that doctors practice."

While the Speaker's pronouncements did not lead to federal tort reform litigation, similar arguments have vastly shaped the law in dozens of states. Right now at least 30 states have "damage caps" in place which arbitrarily limit the recovery of medical malpractice plaintiffs, regardless of their injuries. Fortunately, Illinois's own damage cap law was struck down as unconstitutional several years ago.

Yet, as a result of the constant attack on the civil justice system, the actual payments to medical error victims has decreased. Total medical malpractice payouts nationwide have decreased steadily for the past decade. They are now at their lowest total on record.

So what has all of these decreased support for medical malpractice victims achieved for the public good? Have health care costs decreased as proponents of these laws always claimed?


All told, medical malpractice payouts decreased by nearly 30% in the last ten years. In that same time span the overall money spent on healthcare in the U.S. has increased by nearly 60%! Far from leading to some vast improvement national healthcare payments, the attack on the civil justice system has done nothing for the public good.

This basic argument and the data backing it up is simply irrefutable. The next time you hear a public official or other pontificating about the need to cut back on litigation to save on medical costs, kindly remind them that the argument has absolutely zero grounding in fact.

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August 5, 2013

Proposed Medicare/Medicaid Rule May Target Those Who Receive Negligence Award

by Levin & Perconti

Many community members are familiar with the basics of a negligence lawsuit, including those connected to medical malpractice. In most cases, after suffering an injury, the party initiates the suit by filing a “complaint” that lays out their legal arguments. That begins the long process of each side collecting evidence to be used in a possible trial. This includes conducting depositions, going through paperwork, and more. At some point the parties may engage in settlement negotiations. A settlement might be reached which may end the formal matter. If no agreement is reached, then the case may go to trial with a final decision from a judge or jury.

But does that end it? Not quite.

That is because one little understood part of the process is the work required to actually collect the award or settlement amount. For one thing, other parties may claim to have a stake in that amount. In medical malpractice cases, among others, that includes Medicare and Medicaid, if those programs provided care for the injured party.

Unfortunately, over the years there has been considerable confusion and disagreement about how much of a settlement or award must be handed over to public coffers for claimed outlays made by the programs. In fact, last year the U.S. Supreme Court invalidated one state’s scheme to automatically take a large chunk of all awards instead of tying those awards to actual Medicare or Medicaid payments.

The next issue of contention appears to be payment to these government programs for “future” medical expenses. Last year the Centers for Medicaid and Medicare (CMS) issued a new proposed rule explaining when an injured party would be required to pay for future medical care connected to the accident from their award or settlement. Unfortunately, the proposed rule is a significant detriment to those hurt in these incidents.

For that reason the American Association of Justice (AAJ) argued vociferously against the proposal. Our team of injury attorneys at Levin & Perconti similarly stand opposed to the CMS rule.

The AAJ noted in a letter to CMS (view here) how the rule is “far too attenuated” for CMS to grab at liability awards for unclear future expenses. By forcing more of an award to be steered from the actual injured party, it will become harder for many suits to be pursued at all having a “chilling’ effect on the necessary accountability function of these lawsuits.

One underlying issue is CMS’s equating injury liability cases to the worker’s compensation system (where CMS is able to collect for future expenses). In liability cases, the settlement process hinges closely on understanding future need and available funds for the injured party. If CMS creates a system with future medical payments funnelled away from the party, vast uncertainty may be thrown into the settlement process. In short, it may make it much harder for parties to reach agreement and end the matter amicably.

The AAJ letters further reminds that “Medicare must only pursue a proportionate share of any future medical treatment. Any regulation that does not meet these objective will fundamentally disrupt civil litigation across all fifty states as well as undermine the interests of Medicare beneficiaries and the Trust Fund.”

Our attorneys will be following along closely as this CMS rulemaking process plays out. We will continue to voice clear opposition to any changes that unfairly target those seeking accountability following negligence including those affected by medical malpractice.

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July 15, 2013

Understanding “Trauma Care” and Medical Malpractice

by Levin & Perconti

The American Medical Experts recently published a story that discusses the standards of “trauma care.” Most might not be familiar with this term. In essence it refers to medical treatment provided in unique situations, most notably military surgeons in combat.

The actual principles of medical care are the same for all medical patients--the body does not differ between soldiers and civilians. However, the general “best practices” or “rules of the road”for surgeons differ, depending on the situation. It does not take much imagination to consider that aiding an injured soldier in the heat of combat on the battlefield is far different than performing a scheduled surgery in an modern hospital. Obviously any claims of “malpractice” would be different in each situation. The trauma care doctor has a wide range of pressures, timing issues, and logistical challenges that the traditional doctor does not.

But as the AME article discusses, the past century of trauma care has actually influenced the care provided in regular hospitals. This is most notably in the ways that trauma care protocols have developed over the past 100 years. The United States Army Surgical Research Institute uses official “trauma guidelines.” They were apparently developed (and are refined) in conjunction with the American College of Surgeons Committee on Trauma. The refinement is made both with medical advances as well as following surveys which indicate what works and what doesn’t. Obviously the goal is always to act in the most efficient way to improve the outcome for the patient.

While trauma care on the battlefields in Iraq and Afghanistan are clearly different than traditional hospital care, there are some similarities. Most notably, when a patient is rushed into an emergency room, the need to act quickly and minimize the harm. In that regard, much can be learned from trauma care--in the so-called “golden” hour (the critical period immediately after an injury). Using the lessons from trauma care may work to minimize adverse outcomes that are common in these cases--damage to limb functioning, blood infections, sepsis, and more.

In fact, the article makes clear that failure to abide by the standard guidelines in these situations is medical malpractice. It is important to reiterate what that means. The guidelines discussed here are simply very basic steps that should always be taken: ensuring the patient’s airways are unobstructed, ensuring breathing, and providing circulation. The article notes that too many doctors miss those “ABCs” in trauma situations, because they immediately focus on the direct injury itself (i.e. a gunshot wound).

But “forgetting” in that setting is unacceptable. The reason that they are considered standards is because systematic studies and research have shown unequivocally that following those steps leads to the best patient outcomes. It is not a matter of mere different approaches to an unscientific process--it represents following the science itself.

It is important for all patients and their families in a trauma care situation--even if not an actual battlefield to understand these general principles. All medical patients deserve a certain standard of care, it doesn’t matter what the injury is or where it occurs.

See Other Blog Posts:

Lets Focus on Insurers, Not Injured Patients

New Study on Infection Rates

June 26, 2013

Supreme Court Decides Pharmaceutical Case - Bad for Consumers

by Levin & Perconti

This week marks the typical end of the yearly session for the United States Supreme Court. Per tradition, it is during this week that the Court officially releases their rulings in the most controversial cases that were heard over the last eight to ten months. Yesterday, the court did just that in a case related to liability for defects in generic drugs in Mutual Pharmaceutical Co. v. Bartlett. This is a case that we have discussed before as having important implications for many different Chicago residents and medical patients.

Unfortunately, though not wholly unexpected, the court’s opinion runs counter to the best interests of those harmed by dangerous drugs. The full online text version of the opinion can be found online here.

The Case
This legal matter affects the public regulation of the drug industry, in particular the tort liability of generic drug manufacturers following design defect claims.

Both state and federal governments are involved in regulating the drug industry, fighting to ensure that only safe products make it to the market. Under federal law, the U.S. Food and Drug Administration (FDA) has a process regard design and labeling standards that must be met to ensure consumers are aware of the risks posed by each product. Under federal law generic drug manufacturers are similarly required to have consistent labeling with the brand name products that they are mimicking. The law also requires that the generic drug itself be chemically the same as the brand name drugs they are copying.

The issue in this most recent case, are whether federal rules regarding avoidance of liability after meeting FDA standards “preempts’ state laws which allow liability for such defects by generic harm. In other words, the case decided whether a patient harmed by a generic drug with a design defect could sue and win damages under state law even though they did not have a cause of action under federal law.

The Opinion
In yesterday’s opinion the court sided with the pharmaceutical company and determined that the patient harmed by the dangerous drug could not sue under state law (she had been awarded $21 million in damages by the state court).

Justice Alito wrote the opinion for the divided court. The 5-4 majority agreed that because federal law required the generic drug manufacturer not to change the product and because injuries of this nature lead to “strict liability” then allowing the generic drug manufacturer to be held accountable made it impossible for it comply with both state and federal law. The Court rejected the notion put forward by lower courts that the manufacturer could either stop selling in the state or pay for damages as part of the cost of doing business there.

Four justices disagreed with the assessment and took issue with the fact that this ruling ignores the roles of the state to regulate itself. One of the dissents from Justice Sotomayor explained that the ruling “has left a seriously injured customer without any remedy despite Congress’ explicit efforts to preserve state common-law liability.”

Regardless of the changes in the legal landscape as a result of this case, please be sure to speak with an attorney for tailored guidance following any injury related to medical errors or dangerous drugs.

See Other Blog Posts:

Important New U.S. Supreme Court Case on Liability for Generic Drug Errors

The Consequences of U.S. Supreme Court Hearings on Generic Drugs

June 17, 2013

New Research: Malpractice Lawsuits Critical for Patient Safety

by Levin & Perconti

Accountability breeds improvement. That basic mantra has long-been shown true in many different kinds of settings. Focusing on quality and care in any job depends on the consequences of providing inadequate services. It does not take much deep thinking to realize that quality may be sacrificed if mistakes do not have repercussions.

Of course, the quality of medical care is one of the textbook examples of this idea. When doctors, nurses, and others have little to lose for providing substandard care, then the incentives to improve patient safety is minimal. Conversely, when patients have fair access to the judicial system to file medical malpractice lawsuit when harmed by negligence, then all those involved in the caregiving industry have obvious incentives to take steps to minimize errors.

That principle was verified yet again in recent research soon to be published in the NYU Law Review.

Med Mal Lawsuits - More than Money
As discussed in a recent HRMR Newsletter, the study was conducted by legal academics, and is to be published in an article entitled, ‘A Dose of Reality for Medical Malpractice Reform.”

The author explains that the research sought to examine the idea pushed by some pursuing tort reform legislation. The claim: med mal lawsuits were detrimental to patient safety efforts because the lawsuit encouraged less openness and honesty about medical errors.

To address the question, the researcher conducted more than two dozen interview with those involved in the process, like risk managers, and patient safety officers at hospitals. In addition, over 400 of the same individuals participated in an email survey, with ten more follow up interviews with survey respondents.

What were the findings?

The article summary notes that trends are clearly headed in the direction of more openness and honesty regarding patient safety information. Contrary to the fears of tort reformers, the researcher found that medical professionals are less and less likely to avoid honest discussions because of malpractice fears.

Interestingly, the author found that the trend may be connected to state laws. But those laws had nothing to do with limiting patient’s access to the judicial system (tort reform laws). Instead, new laws requiring hospitals to expand mandatory reporting of errors have contributed to the shift.

In fact, med mal lawsuits themselves are becoming critical data points for understanding medical errors. The professor explained, “Not only did the hospitals in my study report integrating information from lawsuits into their patient safety efforts, they also reported that lawsuits revealed new and useful information about incidents of medical error,”

The bottom line: Medical malpractice lawsuits play a critical role in improving patient safety. Far from being an unfair burden, this litigation is vital to tracking errors and ensuring changes are made to improve the system. After all, if medical facilities wish to minimize their liability there is one straightforward way to do so: minimize their harmful errors.

For help understanding your legal options in Illinois following a medical error or preventable adverse outcome, please contact the attorneys at our firm today.

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The Role of Experts in Medical Malpractice Cases

June 12, 2013

The Role of Expert Witnesses in Medical Malpractice Cases

by Levin & Perconti

Expert witnesses are absolutely critical in medical malpractice cases. That is because many of these matters revolve around complex distinctions in medical terminology and protocols. The expert witness is able to connect the dots, providing professional explanation of how a certain course of conduct deviate from acceptable standards. Without that connection is usually hard (often impossible) for juries to truly evaluate the information before it to make logical decisions about potential liability. That is why for a case to advance, in many settings, expert testimony is not just helpful--it is required.

Experts are used not only in cases that go to trial. Even before a trial, during the discovery phase, both sides will usually submit expert witnesses to be deposed. Essentially this involves each side interviewing each expert witness, asking questions and receiving answers that would be used in a trial if it happens to go that far. All of this means that one of the most important skills that a medical malpractice lawyer must possess is the ability to understand how to deal with these witnesses--both those on their side and opposing experts. Identifying key discrepancies, exploring questionable answers, ensuring full explanations, and other strengths often make or break a particular medical malpractice case.

Expert Witness Examples
Recently “The Expert Institute” shared a few basic case studies that indicate how an expert might answer a question in various medical malpractice cases. These brief Q and A posts are helpful for those interested in learning more about how an expert may deal with a critical issue in a case and explain it.

One example involved a case alleging failure to remove a malignant tumor in a patient who had breast cancer. The woman underwent surgery to have some different cancerous tumors removed. However, in a follow up with a different oncologist, questions were raised about the conduct of her first medical team. Specifically, the second team noticed that various tissues should have been removed but were not. A second surgery was performed but her overall prognosis was poor, mostly due to the delay in the second operation. A medical malpractice lawsuit was filed.

The expert witness in the case was asked if the decision by the first doctor (defendant) directly caused the recurrence of cancer. This is a common contested issue in failure to perform or diagnose legal actions, as even if mistakes were made, those mistakes must be shown to have specifically caused increased patient harm.

The expert witness explained that the action did in fact cause harm. The expert pointed to specific randomized trials showing how various other possible causes generally were not shown to cause cancer recurrence. However, those in the patient’s position, without quick action, generally do have worse outcomes. In other words, the doctor explained how all of the alternative options that the defense-team would likely try to argue were simply not supported by the data.

It is worthwhile to check out the other case studies on the site if you are interested in learning more about some of the more nuanced issues faced by expert in these cases. Even with the experts, the technical matters are sometimes not easy to grasp, and it takes focused work on the attorney’s part to break down the evidence in an explainable way.

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Helping Your Doctor Avoid Malpractice

ITLA President Responds to Letter Regarding Illinois Legislation

May 16, 2013

Settlement in Stent Malpractice Case

by Levin & Perconti

The Clinical Advisor reported recently on the end of a high-profile medical malpractice case that made headlines across the country. The situation involved a cardiologist who was accused of performing a mountain of unnecessary surgical procedure to implant stents into patient hearts. The patients agreed to the surgeries while assuming that they were necessary per the doctor’s recommendations. However, it was eventually learned that many of those stents may not have been medically necessary--the doctor was only urging them because of his financial interest in performing the operation.

Mid-Trial Settlement
The doctor, and owner of a medical clinic in Maryland, was accused of performing the hundreds of unnecessary stent procedures over a two year period--between 2007 and 2009. Eventually the doctor’s medical license was revoked for his conduct. However, it has taken the remaining years for the civil lawsuits filed in connection with the matter to make their way through the system.

Six weeks ago, the matter began at trial. Most trials do not necessarily go that long, but considering the number of patients affected, the length of the problem, and the complexity of proving this sort of malpractice, a large amount of information needed to be presented to the jury.

Interestingly, just this week, even after the lengthy trial was already well underway, the matter was abruptly ended with a settlement. As is frequently the case, the terms of the settlement are confidential, and it is not known how much the matter was settled for. What is known is that it resolves the claims for at least 250 patients who had individually filed suit against the doctor and a hospital where he worked. That is not the end to the matter, however, as there remain at least 45 other lawsuits still pending which are connected to these same claims.

Unnecessary Surgery Malpractice
This particular case has garnered significant attention both because of the number of affected patients as well as because of the unique nature of the alleged malpractice. Of course, errors like failing to provide a timely diagnosis or committing a medication mistake are what most normally think of when the words “medical malpractice” is mentioned. Far fewer appreciate that something like ordering a surgery that isn’t needed can also constitute malpractice.

One need only return to the fundamental principles of negligence to understand how it works. A party can be held liable in a civil court when they owe a duty of care (this always is true in a doctor-patient relationship), and breach that duty while causing injury. The breach occurs when the doctor does not act in a reasonable way when compared with other prudent doctors in the area. Ordering a surgery that isn’t needed is therefore a breach. One complexity in these cases is meeting the final elements of “causing injury.” If the stent does not lead to obvious damage, is there harm? The answer is usually yes, because any surgery comes with risks and potential problems down the road. Even opening oneself up to future injury unnecessarily is an “injury” that can be compensated via civil lawsuit.

For assistance with any medical malpractice matters in Chicago or throughout Illinois, please contact the IL malpractice attorneys at our firm for help.

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Doctor Faces Several Med Mal Lawsuits

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May 13, 2013

More Federal Medical Billing Transparency on the Way?

by Levin & Perconti

Few people truly understand the complexity of medical billing. For the vast majority of community members, receiving a medical bill is similar to getting a book in a different language. You understand the basic structure, but it is impossible to make heads or tails of the details. Understanding what the charges are, how they were arrived at, and how they compare to others is next to impossible. Even those intimately involved in the medical system often are not fully aware of how it all works.

One of the big challenges is the fact that the same procedure or service may have two totally different costs, depending on the patient and the manner in which they will pay.

All of it creates an immense tangle that keeps all medical billing mired in a fog. And it is one of the key reasons why we are finding it so hard to get a grip on the problem of rising medical costs.

Recently, a TIME magazine expose on the problem made national headlines. The full story can be read here (subscription required). It outlines how medical billing charges are incredibly varied and how the basis for different charges is virtually non-existent. In other words, it is next to impossible to identify why certain things are charged in certain ways except to argue that the hospitals are simply trying to get as much money as possible from whoever happens to be paying for the medical care--private insurers, Medicare, Medicaid, or private individuals without insurance.

Change on the Way
Partially in response to the expose, the U.S. Secretary for Health and Human Services finally released a wealth of new information that provides a degree of public accountability to some of these procedures. As reported in a Swampland blog post, last week the department released a “massive new data file” that may be “a big step closer [for patients] to being able to compare what hospitals charge them for goods and services with what they actually cost.”

The basic data released lists a “chargemaster” price for common procedures and then the actual price that Medicare pays for the procedure--just a portion of the much larger “charmaster” price. Private insurers also make payments lower than the chargemaster rate---though that fraction may vary. In addition, private parties who get caught in a medical emergency without insurance may have to pay the whole amount.

The next step, many claim is to better understand exactly what insurance companies pay for these services. Right now, that data is not collected, making it next to impossible to truly understand the scope of the medical cost problem. That is because the payments made by private insurers are the ones that probably affect the most patients, and (should) impact insurance premiums and the like.

In any event, the publication of this Medicare data should be viewed as a positive development. The medical malpractice attorneys at our firm are used to debating the nonsensical notion that tort reform laws will impact these prices. It is encouraging for the focus to shift on actual issues with a direct bearing on medical costs so that real solutions may be developed down the road.

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February 13, 2013

Setting the Record Straight on Illinois Med Mal Fee Law

by Levin & Perconti

Last month we shared information on a new law that passed through both chambers of the Illinois General Assembly and was signed by the Governor. The law includes a few components, but one of them simplifies the contingency fee rules as they apply to Illinois medical malpractice lawyers. Before the new law took effect there was a tiered system upon which fees could be received in these cases, with a larger percentage for lower dollar amounts and a shrinking percentage for higher awards. Now, however, contingency fee rules in these matters are straightforward and treated like all cases. Attorneys can ask for one third of a settlement amount or award

Smearing the Situation
Expectedly, after the passage of the law, chronic defendants in medical malpractice cases and their allies used it as an excuse to again criticize the legal system itself as it applies to these cases. Others misunderstood the legislation as some underhanded scheme to sneak through a law that only benefitted attorneys and allowed them to collect more money. These characterizations are false.

Recently, the presidents of the Illinois Trial Lawyers Association sent a Letter to the Editor which was published in a weekend edition of the Chicago Tribune. He explained how, far from the misguided characterization from the medical lobby, this latest bill was a bipartisan matter had been discussed for years and may actually result in easing the burden on the legal system while helping patients. Far from the claims that this bill simply funnels more money to attorneys, the reality is it simplifies the fee system and prevents arguing over the rate after a settlement or judgment.

Specifically, the letter points out one aspect of the law that has been glossed over--it eliminates an attorney’s right to go back to court to petition for higher fees. Before this measure, many legal cases dragged on even after an agreement, because the lawyer went back to the court to ask for a larger percentage of the award based on specific factors in the case. This new law eliminates that option--creating a set maximum equal to that in all other cases. By making it logical, straightforward, and without room for petitioning, the fee process will be far easier to handle after passage of this law.

Even medical providers and defendants in these cases stand to save money. In the past, the attorneys for the defendants would need to attend and prepare for hearings related to petitions for higher fees. Now that those petitions are not allowed, defendants will be spared the expense of paying their own attorneys to participate in the process.

Considering the dual benefit to this law, it should not be surprising that there was bipartisan support to pass it. In today’s polarized environment, very few bills ever receive support from members of both parties--this bill did. The Republican leader of the state Senate, for example, even joined with many Democratic members in that body to support this measure.

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Legal Rights of Employees Who Report Fraud in Hospitals

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January 24, 2013

Exposing Unfair Insurance Company Practices

by Levin & Perconti

Insurance companies are often at the center of injury lawsuits. Medical malpractice cases are no exception. While hospitals, doctors, nurses, and other staff members may be the individuals who actually committed the errors, any subsequent payment to those harmed will likely be made by an insurance company. That is why these companies often dominate the defense of most injury cases, including those related to medical malpractice nursing home neglect, auto accidents, and more.

As most intuitively know, insurance companies are not in the business of being generous when they need to make a payment. In fact, many have experienced first-hand the low ball techniques used by these companies to make as little a payment as possible, regardless of the long-term harm and damage suffered. One of the very reasons that you need to have an experienced Chicago medical malpractice attorney on your side in the event of a medical error is so that professionals are acting on your behalf when dealing with the tactics of large insurance companies. Going it alone is usually a recipe for getting nowhere near what you are owed.

Insurance Computer Software Problem
The Chicago Tribune recently published an interesting story that is a vivid example of how insurance interests discount the actual needs of community members. The story talks about one case regarding Allstate. The large insurer uses a program call “Collosus” to determine how much an injury victim is owed. This works by plugging in random variable about the incident and then having a settlement amount pop out.

There might be some merit to this so long as the software was designed with fairness in mind. But, as you might guess, it often isn’t.

One former claims project manager who once worked on designing this very software is now an advocate for consumers. He noted how the software can be manipulated to reach low ball offers which are immensely unfair to those unsuspecting claimants who accept it.

When the software is initially purchased by the company, adjusters must first “tune” it by making hypothetical claims and editing the baseline using data about certain factors, injuries, etc. Collosus, for example, has 600 “codes” that each can be edited, removed, or otherwise tweaked to better meet the company’s exact needs. But this “tuning” process allows companies to make a few small changes and significantly lower the offer that comes out following an injury.

Insufficient Lawsuit
In 2010 federal investigators finished an examination of Allstate and its use of the software to make claim offers. A $10 million settlement was reached with several states after many consumers complained about the low ball offers and unfair treatment of the company. However, the claims adjuster who was once Allstate’s chief manager of Collosus noted that the settlement was far too low.

Instead, he believed that for a large company like Allstate, it was nothing more than a slap on the wrist. With billions of dollars literally at stake, you can be sure that these insurance companies have huge incentives to offer lower than fair payment amounts in an attempt to boost their bottom line. For that reason, it is critical for all those harmed by the negligence of another to have experienced legal professionals of their side to fight back and demand fairness every step of the way.

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January 23, 2013

New Service To Check on Doctor’s Malpractice History

by Levin & Perconti

Medical malpractice lawsuits serve a preventative function on future errors in two ways. First, the risk of facing a lawsuit (or the expense of paying compensation after an error) works to spur change that prioritizes patient safety. Individual doctors and hospital administrators often enact new rules, training, and staffing in order to ensure quality standards are met one hundred percent of the time. The expense of these changes are justified if costs must be paid for errors. Alternatively, these lawsuits may serve to warn patients about which professionals or facilities offer a higher risk of harm. The idea is that, in the marketplace of options, medical patients will chose the safer facilities. Those facilities will ultimately be more successful. The lower quality facilities will either change or be driven out of business.

The second option--driven by consumer decisions--only works, however, when those consumer have easy access to understandable and reliable information about doctor quality. It is in that vein that more and more groups are trying to share information about doctors and hospitals. We have frequently written posts on some of those new rankings, including hospital data compiled by Consumer Reports and a group known as Leapfrog.

Checking on Your Doctor
According to a new story from Seattle PI there is yet another entrant into this category--a new service that allows consumers to learn about possible problems with individual doctors. Known as “Docnosis,” the new service is being touted by its makers as a way to check up on medical professionals before undergoing procedures which can lead to serious harm when not done correctly. Obviously this sort of search isn’t much help in emergency situations--you must simply get to the closest medical facility as quickly as possible. However, it may prove quite useful for planned events, like a surgery or childbirth.

The creators of the site point out that medical licensing rules vary from state to state. In addition, there are many cases of doctors moving to different states to practice after running into trouble for malpractice-events in a different location. All of this means that some professionals have dozens of malpractice cases against them while still practicing. This information may be important for consumers to consider when deciding what professional to handle their medical care. After all, nothing is more important than your health. If you do a bit of research before visiting an auto mechanic, beauty salon, or restaurant, the same diligence (and then some) should be applied to health care providers.

The new service can be found at this link. The press release announcing the new database discusses the mission by noting that it was “founded to empower patients to make fully-informed decisions before they undergo a procedure with an obstetrician, cardiologist, plastic surgeon, or any health-care provider.”

Essentially, those using the service can search for a potential doctor and learn about their past malpractice history. At the same time, “recommendations” will be provided by the program which identifies other doctors in the same practice area and geographic area who have not had malpractice claims against them. The service claims to not to solicit any advertisements from hospitals or healthcare providers. That is important, because consumers would obviously not want this system to be skewed by the company’s profit-motive. The company’s CFO noted, “We really wanted to keep industry money out of this equation so we could offer facts instead of anonymous opinions.”

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