Illinois Medical Malpractice Blog

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 Eventually the doctor’s medical license was revoked for his conduct.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

New Allegations of Over-Stenting Against Doctor

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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Criminal Medical Malpractice Hepatitis C Trial Set to Begin

Federal Agency Removing Medical Error Data from Safety Website

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

Most Common Radiology Malpractice Suits

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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Court Case Begins in Hepatitis Outbreak Suit

Unique Treatment to Fight Hospital Infections

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.

“Docnosis”
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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Doctor Says Malpractice Lawsuits Used to Drive Him Out of Practice

Jury Finds for Defendant-Hospital in Med Mal Case

One of the main fights related to minimizing preventable deaths at hospitals relates to infections. Literally hundreds of thousands of medical patients develop infections after they enter the hospital, often with life-ending consequences. It is for this reason that proper cleanliness standards and other efforts are needed to minimize the harm from these hospital-acquired infections.

Bizarre Treatment to Save Lives Post-Infection
Much focus is understandably on preventing the infections in the first place. But there are also professionals who are working to save lives after the infection, by developing new treatments to minimize the harm caused. Recently the Boston Globe reported on one such treatment that seem quite strange for those unfamiliar with these issues.

The treatment has been around for fifty years, but it is only rarely used to treat those with gastrointestinal infections. Essentially, it involves a fecal transplant. By taking the feces of another person and transplanting it into the body of the sufferer, proper bacteria balances might be achieved.

Interestingly, in the past the procedure was viewed somewhat dismissively--as a relic of times gone by. However that mindset is slowly changing. In a unique reversal, many doctors are now trying fecal transplants, and they have actually seen positive results. In fact, the results of a new sophisticated trial were just released which offer the strongest proof yet that this treatment actually works.

The researchers in the test found that patients suffering from one of the most common (and potentially harmful) infections from C. difficile (C. diff) saw marked improvement when they received a fecal transplant. In the test, the donor fecal matter was infused with the patient’s intestine. Researchers found that those receiving the transplant fared obviously better than those given standard antibiotic treatments. The study was actually halted early because the results were so striking. The New England Journal of Medicine story explained how thirteen out of sixteen patients improved after the first transplant. Two others improved after a second transplant. In traditional antibiotic patients, only one-third saw improvement.

Promising Future
The new treatment option could not come at a better time, as the development of C. diff--particularly antibiotic resistant strains--are rising. According to the Centers for Disease Control and Prevention, about 3,000 patients died from C. diff in 1999. Less than ten years later, in 2007, that number had more than quadrupled to 14,000 deaths. Because the bacteria is becoming more resistant, the options for fighting back are limited.

Many patients develop the deadly infection while they are in the hospital for some other reason. The bacteria causes such harm because, in many cases the patient’s body is already weak from their original ailment. But hopefully increasing use and success of the fecal transplant option might provide a powerful new tool to address the problem. Researchers are now evaluating different methods of delivery for the transplant and ideal ways to screen donors.

Our Chicago medical malpractice lawyers will be following these developments closely with the hope that deaths from hospital acquired infections decrease.

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Doctor Says Malpractice Lawsuits Used to Drive Him Out of Practice

Jury Finds for Defendant-Hospital in Med Mal Case

The real debate about the merit of “tort reform” proposals takes place at kitchen tables, in diners, and around water coolers each and every day. While big monied interests spend considerable resources trying to influence public opinion on the matter, at the end of the day, these bills will not pass if most community members recognize them for what they are and voice their opinion to elected officials.

That is why it is important for our Chicago medical malpractice attorneys to help in the effort by sharing honest information about the reality of filing a lawsuit in our state as a result of medical errors. While the rhetoric regarding lawsuits is frequently heated, there is no excuse for the unanswered promulgation of misleading claims that may lead some community members to be confused about tort reform laws.

Fortunately there are many others in Illinois who are also working to defend the rights of those harmed by negligence. For example, a recent letter to the editor published in the St. Louis Post Dispatch from the President of the Illinois Trial Lawyers Association (ITLA) struck back against a previous editorial which trumpeted the widely-discredited claims made in the “Judicial Hellhole” report which makes headlines each year.

As blog readers know, this “report” is nothing more than arbitrary selections from a small group that seeks to distort public perception about the justice system. Perhaps not surprisingly, the largest backers of the efforts are those who have the most to gain by taking away the legal rights of residents: large corporations, including big medical interests.

In his letter to the editor, the ITLA President explained how the report suggests that corporations are somehow treated unfairly by the legal system. Yet, the report, he writes “fails to explain why corporations shouldn’t be held accountable in our courts when they produce unsafe products, pollute air and water, swindle their employees, or otherwise harm or even kill individuals.”

The hidden secret that these “tort reform” groups and their corporate backers never share is that they do not fear “frivolous” lawsuits. Anyone who has worked in the legal system understands that there are no free lunches, and all plaintiffs must meet various requirements for their legal matter to advance through the system. If a claim is without merit it will not survive.

Instead, these big interests are concerned about the meritorious claims filed by those harmed by their conduct. It is those claims which might result in liability and full accountability. That is why these tort reform efforts are focused on limiting the rights all all community members no matter what the details of their claim, making it impossible for these business to be held responsible for their conduct.

The entire point of the civil justice system is to provide a level playing field. That is why those of us who represent injured parties are proud to fight back against the smears, tortured logic, and downright false information that is so often spread by those shouting “lawsuit abuse.” No resident should be worried that arbitrary rules will limit their ability to see full redress and accountability after a tragedy has befallen them.

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ITLA Response to Judicial Hellhole Designation

Next month the Illinois Institute for Continuing Legal Education (IICLE) will present a seminar entitled “Advanced Evidentiary Issues At Trial.” The day-long event will take place on January 25th and be held at the UBS Tower & Conference Center.

One of the founding partners at our firm, Steve Levin, is a presenter at the seminar. Attorney Levin is scheduled to speak about complex evidentiary issues as they relate to various wrongful death cases. That includes a discussion about Illinois’s “Dead Man’s Act.”

The law is somewhat confusing, but it has significant implications on many cases where a party is deceased. Many cases have not made it to trial or were unsuccessful at trial because of adverse complications as a result of the restrictions of the Act. It is critical that all litigators understand understand how the statute may affect future cases.

The Dead Man’s Act in Illinois
Even though it has been abolished in many other jurisdictions, Illinois courts have upheld the application of the Dead Man’s statute. Essentially, the law is a limitation on evidence that can be introduced as it relates to individuals who have died. Specifically, the law bars testimony from “interested” parties about conversations with the decedent or events where the decedent was present. In certain situations this acts as a very significant barrier to obtaining sufficient evidence to prove a claim. Many attorneys are forced to come up with alternative ways to get a story included or to have the Act not apply. And because it applies in summary judgement actions, it can lead to a case being thrown out even before reaching the jury.

For one thing, because the Act only bars the testimony of interested parties, it is often important to find non-interested parties who can testify on the same details. Many cases have been decided which outline who is or is not an interested party. In general though, anyone who stands to gain or lose directly as a result of the matter would be deemed an interested party. It would not apply to those who may have certain personal relationships with another who is an interested party.

Also, it may be possible to get certain evidence admitted by arguing that it does not apply directly to a “conversation” or “event.” The conversation limitation is less ambiguous, but much uncertainty reigns regarding what details of an event are barred and which are not.

Beyond suggesting that the testimony doesn’t fall under the Act’s reach, one other alternative is to argue that the opposing party “opened the door” to the material. The party protected by the Act can shed that protection if they introduce material hinting at details of the prohibited conversation or event. If they do so, as a matter of fairness, the previously barred party may be able to speak of the event or conversation in rebuttal.

There is much more to this statute and other complex evidentiary rules in wrongful death cases. Consider attending next month’s seminar to get much more comprehensive information on the subject directly from Attorney Levin.

A recent post at Lawyers.com shared information on an interesting new phenomenon which may have implications for the safety of community members. The story explained the rise of “medical tourism.” This refers to Americans who travel abroad specifically to receive medical treatment, usually at staggeringly reduced costs. For many reasons, someone may not be able to afford certain care in the U.S. Rates here are very high, and when insurance coverage for the necessary service is poor (or nonexistent), then it is not entirely unreasonable for the American medical patient to consider traveling elsewhere for the work.

In fact, according to the post, different industries have sprung up to promote these trips. Insurance companies have even be supporting the practice, because it lowers their potential liability. And when the care provided in these medical trips is up to reasonable quality standards, then patients benefit from the care they need at a lower cost.

But what happens when things go wrong?

One huge caveat to traveling abroad to receive medical care is the risk of harm. For one thing, many have concerns about the quality of the services provided. Bargains are great for certain purchases, but when one’s health is on the line, it is important to be careful about sacrificing quality. Fortunately, many of the companies involved in facilitating these trips work to provide information on quality to ensure patients are not receiving obviously substandard care.

Yet, no matter what, there is always risk of medical negligence. What options are available to American patients who travel abroad and are hurt by medical malpractice?

Unfortunately, the options are few and far between. For one thing, it is difficult for a U.S. court to have jurisdiction over a case stemming from the actions of a doctor in another country. Alternatively, a suit seeking redress can be filed in the foreign country itself, but the rules about recovery elsewhere are often far different than in the United States. The process may take a long time and be costly.

One alternative is to look and see if the companies which facilitates the trip in the U.S. have any responsibility for the harm. Because they are U.S. companies, jurisdiction is not an issue. However, the actual legal arguments available in these instances is likely limited. After all, the companies did not commit the medical negligence directly. Arguments can be made about their knowledge of risks and minimization of information to the client regarding those risks. But these legal claims are far more difficult to prove, and the success rate is much lower than traditional suits against the medical providers who actually committed the error.

Any way you look at it, the ability to recover following medical errors during a “medical tourism” trip is limited.

Of course, this does not automatically mean that these options should be off the table. But it does counsel toward being very prudent about the decision--its not something to be taken lightly. And if you do travel abroad for medical care, it might be worthwhile to consider medical malpractice insurance. This provides coverage in the event that things go wrong on the trip--an option for having protection from harm even if legal options are not on the table.

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The Most Far Reaching Tort “Reform” Proposal Yet

Whistleblower Lawsuit Alleges Vast Medicare Fraud

As most readers know, Medicare is the federal insurance program for seniors. Considering that seniors disproportionately require medical care (after all, health deteriorates in old age), many hospitals rely significantly on Medicare payments for their financial well-being. It is for this reason that Medicare officials have a serious role to play in ensuring sufficient safety standards to maximize patient safety and minimize medical errors. Medicare rules can designate requirements for participation in the program, if hospitals do not meet those requirements, then the facility may not be able to receive Medicare payments. For most faciltiies that is a death knell.

Patient safety advocates often work with the Centers for Medicare and Medicaid Services (CMS) on just this front--ensuring decent quality of care rules are set and enforced. Also, however, those advocates work on basic issues of access to care provided by CMS. This often leads to tension, and sometimes even legal action, between those advocates and CMS. We discussed a recent high-profile example of this last week.

That case involved access to certain at-home services for those on Medicare with chronic conditions. The central issue in that dispute was applicability of a "improvement" requirement for access to those at-home services. Patient safety advocates argued that the requirement that a patient have the potential to improve (instead of just maintain their current level of health) acted to unfairly and illegally deny them proper benefits. Recently, a settlement in that case was reached which will, according to those familiar with the issue, open access to at-home services for those currently on Medicare with chronic conditions. Literally thousands might now have access to services that they otherwise likely would not be able to afford. This will have significant impacts on their quality of life.

Setting the Record Straight
However, in the aftermath of the settlment there has been some confusion about what the agreement does and does not change about Medicare coverage and long-term care. An article from Forbes is helpful in setting the record straight. The author points out that the agreement doesn't alter anything about the overall payments that Medicare will make for sustained long-term care in a nursing home. As before, Medicare will only cover 100 days of a skilled nursing facility stay, usually for rehabilitative purposes after an injury or illness that required a hosptial stay.

In summarizing the actual changes that will be made as a result of this latest legal action the article suggests that "under the terms of the legal settlement, a doctor no longer has to assert that a patient will improve to be eligible for skilled nursing care and rehab. She will now be eligible for the Medicare benefit even if that care helps her maintain her health status."

Longer-term stays in a nursing home will still require alternative payment arrangements. In reality, that most likely means that the patient will be required to seek out Medicaid support. Unlike Medicare, Mediaid is based on one's financial situation. You only qualify if your income and assets are below set amounts. It is not at all uncommon for seniors to be both on Medicare and Medicaid, particuarly if the senior patient requires prolonged nursing home stays that are not now, nor will ever be covered by Medicare.

It is important for all medical patients on Medicare and their families to be aware of these distinctions. The latest is good news for those who care about fair access to medical and caregiving services, but it does not fundamentally alter the Medicare coverage of certain long-term care needs.

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Comprehensive New Report: Economics & Medical Errors

Medical Malpractice Premiums & Tort Reform

Safety matters in hospitals. Attorneys, patient care advocates, and others often harp on the current gaps in overall patient care quality. That is because there are still so many lives to be saved and injuries to be prevented by adherance to high quality safety protocols all of the time. Much of that advocacy is focused on actual malpractice--violations of professional standards of care that cause harm to unsupecting patients.

However, there are actually other dangers in medical facilities that are not exactly related to malpractice. Instead of violations of professional standards of care, even basic acts of negligene might occur in a hosptial that causes harm. For example, hosptials and staff members must be diligent and aware of the dangers posed by certain pieces of basic equipment, like bed rails. Far from being a safety device themselves, advocates have vociferously argued that these rails actually present serious risks of harm for those using them.

This point was discussed helpfully in the latest newsletter published by Biomedical Safety & Standards. The article noted how many consumer watchdog organizations have been making serious calls for bed rail reforms to entities like the Federal Trade Commission. The basic argument is that these bed rails pose serious safety risks, requiring changes in marketing practices, consumer warnings, and perhaps even recalls. According to the report, the U.S. Food and Drug Administration has noted at least 525 deaths caused by bed rails. That is on top of the 125 documented cases from the Consumer Product Safety Commission. These tallys should not be taken as definitive analyses of all incidents, as many sitautions are often not reported.

Experts note that the main problem with the rails invovles entrapment. The devices are generally only used with medical patients (often seniors) who might have mobility problems or other functioning issue. That means that if the individual rolls over and gets trapped between the bed rail and the bed, they are at a real risk of not being able to free themselves. Sometimes suffocations or asphyxiation results. Far from being innocuous devices that prevent falls from a bed, bed rails should be viewed as possible dangers with close supervision and oversight necessary to prevent them from hurting or even killing vulnerable patients.

Considering the harm that these products cause, should they even be used at all? Many patients rights advocates and consumer watchdogs argue that they should not. However, at the very least, these groups are calling for changes such that the companies who make and sell the bedrails be honest about the dangers that they pose. Right now, as reported in the article, some marketing claims are made like, "makes all bed safer." But the companies are not required to have any proof to back up their claims about these safety advantages. As a result, many might unknowingly assume that these products actually do provide an added layer of safety without coming with significant risks.

At the end of the day, it is important for families of medical patients or nursing home residents where these rails are used to be fully aware of the dangers. Caregivers at these locations, including nursing home staff members and nurses in hosptials must be cognizant of bed rails dangers and act appropriately at all times to keep those using the beds safe from harm. There is no excuse for a product that claims to be a safety feature to actually result in severe injury or even death.

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The Reality of Nursing Home Falls

Consumer Voice on Dangers of Bed Rails

One need only look at the political debates raging all across the country to understand how those seeking to gain political advantage cite studies to support their claims. Of course, proper research is indeed an important way for all of us to understand various issues. But the problem is that there are many biased outfits which release “studies” solely to create the appearance of support for their favored position. This makes it incredibly difficult for community members to parse through the nonsense and get honest information.

Unfortunately, few credible organizations exist to properly weigh the merit of each study or research effort that comes out. For example, over the last few weeks many publications have spread information on a new “Institute for Legal Reform” study on the need for tort reform. The ILR, you may not be surprised to learn, is the advocacy group run by the U.. Chamber of Congress. The latest report is claimed to be a fair analysis of “state lawsuit climates” for business.

Many media outlets went on to tout the study as important and proof of the need to make legal changes. However, experts have repeatedly noted that the study “lacks elementary social scientific objectivity [that is]...substantively inaccurate and methodologically flawed.”

Local community member might have heard about this latest effort, because Illinois was mentioned as one of the “worst” state for “legal fairness.” Of course lawyers working on med mal cases, patient advocates, and others know that this “legal fairness” only refer to immunities for businesses whose negligence harms others. The “fairness” in this effort represents vast unfairness for actual community members

But it doesn’t take much investigations to realize how the report is a bit skewed. Perhaps most glaringly the actual data from the study itself is based on surveys from those connected to corporations with annual revenues over $100 million. In other words, those at the largest companies were asked about whether they liked to be held responsible for their negligence by the legal system, and they said that they prefered states where they had more legal immunities. This is obviously far from shocking and not very helpful.

Flawed & Skewed
Unfortunately, many readers across the country--including those in Chicago--may have read stories about this study without any context to understand where the data might have come from. But, this study, which is released annually, has long been attacked as an intellectually dishonest effort that does nothing more than unfairly cloud the debate with misinformation.

One scathing critique of the survey, for example, previously appeared in the Huffington Post. For example, less than 10% of the data in the survey is not quantifiably verifiable. That means that some of the survey respondents misstated the law, skewed the reality, and otherwise made false statements which cannot be checked.

The story goes on to note the obvious that talking only with one side of the debate and making a “report’ out of it is less than helpful. Making things even worse, survey respondents are provided monetary incentives to participate. In addition, they are told of last years results before completing the survey, priming them for what they are likely supposed to respond. All of this violates basic fairness principles and runs completely counter to basic academic tenants.

See Our Related Blog Posts:

Health Insurance Companies Spend Staggering Sum Fighting Health Reform

Medical Lobby Set to Make More Demands on Congress

After looking at the summary information about claims of tort reformers and the reality of tort reform, it doesn’t take long to realize that the public gets very little out of the deal. Those hurt by medical mistakes lose legal rights and certain incentives to improve patient safety are gone. Little is gained by most in return. So who actually is pushing for these laws? The answer, unsurprisingly, are those few big interests that stand to gain from limiting payouts following medical mistakes. One of the most important supporters of these laws is the insurance industry--specifically those companies who provide medical malpractice insurance

The Medical Malpractice Insurance Interests
The Center for Justice & Democracy med mal briefing book summarizes some important recent work on the state of the industry and the effect of tort reform.

The bottom line is that the medical malpractice insurance industry is thriving. A 2009 report from the American for Insurance Reform (AIR) found that 2007 and 2008 were near record years for the industry and the reported predicted that 2009 would likely be yet another highly profitable year--it was.

Consider this, the overall return on net-worth for insurance companies in the “property/casualty” industry is a healthy 12.5%. Not only are medical malpractice insurers matching that average, they are excelling. The return on net worth for medical malpractice insurers in 2009 was well over 15%. Put another way, in the law few years the companies’ loss ratio was at only 61.1%. That means that the companies paid out in claims only 61% of money that it took in for premiums. The rest was for overhead and profit.

The same pattern of a healthy, robust industry comes from looking at reserves. These reserves are the money that the company sets aside. A report from A.M. Best explains how these reserves are often manipulated by the industry in an effort to get approval for higher rates. For example, there are often claims that rates need to be raised to increase reserves so that future claims can be paid. But the relation between the two does not mesh with reality.

Illinois Medical Malpractice Insurers
So what does all of this have to do with medical care and tort reform?

A common argument for passage of these laws--including in our state--is the idea of a “crisis” of medical malpractice lawsuits. The argument is that many patients file these lawsuits, often frivolously, and the payouts are decimating the insurance industry’s ability to survive. But the truth is far less dramatic. Not only is the medical malpractice industry working just as it always has--it’s thriving.

It takes little imagination to understand why it might be thriving. Tort reform laws passed in various areas have essentially given insurers a free pass from providing compensation as required under the terms of their agreements with clients. Those hurt by medical mistakes are limited in their recovery--no matter how much damage they actually experienced as a result of the incident. This often wreaks a great injustice on the medical patient, but it is a boon to the insurance company.

At the end of the day, local residents should not be persuaded of the need to give up basic rights in order to help a private insurance industry that is already thriving. Those claims about the public benefits simply do not materialize. The only thing that does materialize are increased profits for already profitable industries.

See Our Related Blog Posts:

CJ&D Briefing Book: Who Commits the Malpractice?

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

The Wall Street Journal Health blog recently discussed the results of a new study of mediation in medical malpractice cases. Overall, the results were clear in finding that mediation helped lower the cost of litigation and created a reduction in medical errors. But there was one major hurdle: doctors themselves usually refused to participate in the helpful process.

Mediation is a voluntary process where the parties in a disagreement work with an impartial mediator to help resolve the issues through mutual negotiations.

The Journal of Health Politics published the New York study, which examined 31 malpractice cases involving mediation. Of those, slightly more than 50% were settled through the process. Another 5 were settled shortly afterward and about 1/3 were not settled. Plaintiff’s attorneys were more likely than defense attorneys to agree to the process, but all lawyers who were involved reported satisfaction with the mediation.

Unfortunately, not a single physician participated in any of the 31 mediations. Part of the problem, according to the study’s co-author was that hospital administrators and hospital lawyers discouraged the doctor’s from attending the conference. They worried about what might be said and how that might affect a potential trial.

As a result, the doctor’s missed the chance to connect with their former patient and work together through the issue. In addition, the study’s author explained that those piecing the event together missed the physicians input to better understand what happened and how to prevent it in the future.

Continue reading "Study Finds Doctors Often Refuse To Participate In Malpractice Mediation" »

The series of reports issued about medical negligence by the American Association for Justice continues today with a look at the truth about the effect of medical malpractice lawsuit caps on premiums paid by medical doctors.

A common refrain from those seeking to persuade state legislatures to pass laws advancing arbitrary medical malpractice damage caps is that doing so will lower malpractice premiums. Yet once again the truth of the issue paints a different picture than “reformers” often claim.

A study from the Medical Liability Monitor from last year indicates that premium values remain unchanged by malpractice caps. If anything, those states that do not have caps have slightly lower malpractice premium rates. When looking at internists, general surgeons, and OB/Gyns cumulatively states with caps averaged a premium of $44,799, while non-cap states averaged $43,709 yearly. Each of those types of doctors examined individually reveal the same pattern of premium rates: virtually indistinguishable between cap and non-cap states.

Continue reading "American Association For Justice Report: Caps Do Not Reduce Malpractice Premiums " »

Yesterday we shared a report for the American Association for Justice that detailed several common myths of medical negligence. One of those explained the reality that health care costs were not inflated because of medical malpractice claims. In fact, only .3% (one third of one percent) of the total cost of healthcare in the United States is spent defending claims of negligence.

One corollary often made to that myth is the fact that costs are increased indirectly because of the use of “defensive medicine.” Specifically, some claim that doctors now run more tests than necessary because of the fear of litigation. Yet, a close look at the situation in hospitals across the country paints a much different picture.

The majority of scholarly research into these claims has found that the problem of defensive medicine is nothing more than the latest gambit by those interested in taking rights away from medical victims. In reality, the data indicates that medical providers are not conducting as many additional tests as is often believed. In addition, virtually no savings in medical costs can be gained from eliminating the testing of patients. One of the main motivators for anything labeled “defensive” medicine is actually increased income for the medical professionals and/or more complete care to the patient.

Continue reading "American Association for Justice Report: The Truth About “Defensive Medicine”" »

The American Association of Justice (AAJ) recently published a series of reports around the issue of medical negligence. There has been a wave a recent pushes to “reform” the system of medical negligence. However, much of the information used to advance these reforms are deceiving, ignoring the fact that they do nothing to lower health care costs or improve the actual care provided to patients. To clear the air, the AAJ explains five of the most common myths propagated by these misleading “reformers.”

First, there is a misconception that there are an excessive number of “frivolous” lawsuits. Yet the truth remains that the problem originates in the inadequacy of medical care provided, not in the filing of lawsuits following that negligence. The reality is simple: if medical professionals made fewer errors than there would be fewer victims and fewer lawsuits.

Second, health care costs are not driven high because of malpractice claims. A recent reported indicated that only .3% of total health care costs are related to defense of malpractice claims.

Third, doctors are not fleeing the profession because of medical malpractice lawsuits. It is undeniable that the number of physicians in the United States had been steadily increasing for decades. The increase has occurred in every state in the country. States with medical malpractice caps have no difference than those states that do not.

Fourth, doctor insurance premiums are not affected by malpractice claims. Time and again empirical research has shown that insurance premiums paid by doctors have little to no correlation with malpractice claims. Conversely, studies have shown that many insurance companies artificially inflate rates and mislead the public about the situation.

Finally, all “tort reform” plans will have little effect on insurance rates. Caps on medical awards only mean that insurance companies pay less in awards; doctor premiums do not decrease.

Continue reading "American Association For Justice Report: Five Myths About Medical Negligence" »

The Wall Street Journal is reporting about the release of “Chasing Zero: Winning the War on Healthcare Harm” at the International Forum on Quality and Safety in Health Care. The movie stars actor Dennis Quaid, whose twin children were victims of medical malpractice. In 2007 his newborn twins were accidentally given an overdose of the blood thinner heparin at a hospital in Los Angeles. Thankfully, both children survived and Quinn became a passionate advocate for patient safety. He has appeared on Oprah to raise awareness of the large number of medical mistakes and he discusses different strategies that can prevent them.

Quaid has merged his Quaid Foundation with TMIT, a non-profit research concern run by patient safety expert and physician Charles Denham. This company oversaw the production of the hour-long documentary. After the documentary airs on TV, the company will distribute copies of the movie to all 5,700 hospitals in the U.S. This will hopefully reinforce the importance of adopting safe practices developed by the National Quality Forum. This company develops voluntary safety guidelines for the hospital. The head of the company stated that since there are an estimated 100,000 deaths each year from hospital infections and an estimated 100,000 deaths each year from medical error the message is extremely important.

While talking to Quaid, he stated that his twins are doing well. However, he noted that last week a toddler died from a heparin overdose linked to an infusion pump setting error. This is just one of the many examples of medical error throughout the country. To read more about this groundbreaking movie, please click the link.

A new report is showing that state medical boards are not living up to their obligations to protect patients from those doctors who are practicing substandard medicine. Although the rate in which states took disciplinary action against doctors rose slightly in 2009, this is still 18 percent lower than the highest rate which occurred 5 years ago. The Public Citizen Press Room is reporting that if the rate stayed constant at the peak rate, there would have been an additional 653 serious disciplinary actions taken against U.S. physicians.

The director of Public Citizen’s Health Research Group stated that there is mounting evidence showing that medical boards are under-disciplining physicians who commit medical error. He believes that most states are not living up to their obligations to the general population to protect those patients from doctors who are not practicing safe medicine. It is imperative that serious attention be given to improving how state medical boards hold physicians accountable. To ensure this, legislative action must but pressure on the medical boards. There needs to be legislative oversight of medical boards in order to decrease the amount of medical errors. While Illinois does not land in the states with the worst records of disciplining physicians, it also does not land in the best. They have worked towards improving the amount of disciplinary actions taken. Illinois must make sure that their medical boards are closely watching all medical errors committed by physicians in order to protect patients. To learn more about the medical malpractice study, please click the link.

An Illinois woman has started a website designed to improve hospital safety entitled Campaign Zero. She began the website after Medicare discontinued reimbursing hospitals for preventable hospital hazards. The website focuses on preventing medical errors by zeroing in on what can be prevented with a little bit of knowledge. It also discusses ways in which everyone can help prevent medical error.

One area that can be improved is hospital acquired infections. Campaign Zero estimates that 2.2 million people are affected with hospital-acquired infections every year. More than 135,000 Americans wrongfully die from these hospital-acquired infections, most of which are preventable. The biggest culprit in the spread of this disease is unwashed, or poorly washed, hands. There is a simple way to prevent this medical error: to have employees simply wash their hands with soap and water. The website shows a video highlighting the easy way to wash hands and save lives.

Campaign Zero also highlights ways in which to prevent surgical error. The website’s study estimates that between 1,300 and 2,700 surgical errors occur every year in America. These include events when patients are mistaken for each other. Also, surgical tools and sponges are left behind in patients. In fact, 1 out of every 1,500 abdominal surgeries results in a left tool or sponge. The average cost of these types of surgical errors runs around $40,323. The website suggests showering before surgery and marking the part of your body that is to be operated on in order to prevent these errors. This website is a valuable tool for anyone that has a loved one in the hospital.