Articles Posted in Malpractice Caps

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“We’re not in a crisis. We’re definitely not in a crisis.”

An annual survey by Medical Liability Monitor (MLM) found that medical malpractice premiums rates have fallen 1.1%, the 10th consecutive year of lower rates in obstetrics & gynecology, general surgery, and general internal medicine, three areas of medicine said to be indicative of the industry as a whole.

The survey found that many physicians are paying lower premiums than they did in the early 2000s and noted that one insurance carrier was recently quoting general surgeons in Wisconsin $10,868, but was quoting $15,980 sixteen years ago.

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This week, the Trump administration released their budget, estimating a savings of $31.8 billion over 10 years by capping non-economic damages in medical malpractice lawsuits. This practice, known as tort reform, has been a highly argued issue for decades. With over 30 states having already enacted some type of tort reform, the facts show that the number of medical malpractice lawsuits have declined, but that the average payout has actually increased. What could explain this?

Tort Reform Will Further Harm Economically Disadvantaged

While tort reformers would like to argue that fewer malpractice lawsuits are due to legislation restricting damages, the truth is that the system is set up in these states to discourage attorneys from taking lawsuits and to discourage those with claims from coming forward. The result is attorneys who have become extremely selective of the cases they will take on, choosing to only take those that seem to be a ‘sure thing.’ Before assuming the worst, consider the financial nature of the profession. Most medical malpractice and personal injury attorneys are only paid by the client if they recover money. All of the hours of research, being available to consult with the victim and/or their loved ones, finding, hiring, and interviewing expert witnesses, conducting depositions and court appearances are not covered by the client. Law firms are fronting the capital to carry these cases and with non-economic damages limited in many states, they’ve had to turn down cases that while legitimate, might not fare so well in court. Setting up the system so that money is only exchanged if the attorney successfully handles a case is done to serve families of all economic means, particularly those that have been weighed down by astronomical medical bills, loss of income, and other factors that have affected their ability to seek justice through an experienced medical malpractice attorney.

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‘Republicans should drop malpractice reform from their health care reform checklist. It’s a distraction from the main goal of health care freedom and it is probably unconstitutional. It’s also overrated.’

                                                                                                    -Jeffrey A. Singer, M.D.

In an April 4th online article posted on Reason.com, a bi-partisan online news site that focuses on current events and issues, surgeon Dr. Jeffrey Singer discussed his views on medical malpractice reform. Citing his personal feelings along with multiple published studies, Singer concludes that tort reform, the practice viewed by Republicans as the answer to high medical insurance and medical procedure costs, is a blow to the founding principles of federalism. Singer also views the practice as a faulty diagnosis of our country’s health care care crisis. While Singer says that after 30 years in private practice, tort reform is something he hopes to see happen, he wants to see it at the state level and is not so sure that it’s the answer to any of the issues plaguing our health care system today.

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Late last month, Dallas surgeon Christopher Duntsch received life in prison for surgical errors that directly caused the death of 2 patients and serious injuries to many others. The neurosurgeon, often described as overly confident, has left behind a bloody trail of victims in his wake. In a November 2016 article in Dallas Magazine author Matt Goodman describes just some of the carnage caused by Duntsch: ‘There was Kellie Martin, who died from massive blood loss after a surgery at Baylor Plano. There was Floella Brown, whose sliced vertebral artery triggered the stroke that killed her at Dallas Medical Center. There was Duntsch’s childhood friend, Jerry Summers, who woke up from a procedure unable to move his arms and legs. There was a dissection of one patient’s esophagus, and screws that an indictment labeled “far too long” that caused significant blood loss in another patient. One surgeon described these as “never events.” They shouldn’t ever happen in someone’s entire career. And yet they occurred in Duntsch’s operating rooms over a period of just two years.’

With all the horror the article describes, one can only wonder why none of these patients had tried to sue Duntsch and why the hospital hadn’t caught on to his pattern of death and destruction and terminated his employment.

Malpractice Caps in Texas Caused Horrific ‘Domino Effect’

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As we wait for tomorrow’s vote on the confirmation of Tom Price for Secretary of Health & Human Services, one cannot help but notice many erroneous ‘facts’ and figures being touted in the media by medical malpractice naysayers. One such untruth is that healthcare costs have significantly increased in recent years due to an influx in medical malpractice lawsuits. Despite evidence to the contrary, this myth persists and there seems to be no end in sight.

You Can’t Argue the Facts

Nationwide, state-filed medical malpractice lawsuits fell 23% between 2001 and 2010. In Illinois alone, medical malpractice suits have fallen 39% since 2003. Across the United States, civil lawsuits, under which medical malpractice is classified, are mostly comprised of contract disputes. In fact, 64% of all civil lawsuits are related to contracts, while malpractice cases account for only .2% of all civil lawsuits. This information was obtained through the Illinois Courts’ own website.

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National Practitioner Data Bank (NPDB), an entity created by Congress and run by the U.S. Department of Health & Human Services, has compiled a list of state rankings comparing the number of payouts for physician errors based on the state population. At number 20, Illinois falls right in the middle with 294 payouts, or 1 payment for every 43,741 people residing in our state.  At the top of the list is New York, with 8,875 payments for physician errors, or 1 for every 37,466 residents. The state with the fewest payments for physician error based on the number of residents was Wisconsin, with 1 payment for every 199,012 people.

Data Shows Others Relying on Faulty Evidence
The most striking fact to come from the data collected by NPDB is that the number of payments for physician errors has decreased as a whole every single year from 2001 to 2015 (2016 data is not yet available). This evidence stands in stark contrast to the claim made by top Republican lawmakers that tort reform (putting caps on damages awarded to those injured by physician error and other acts of negligence) is necessary to reducing healthcare costs for Americans. Tort reform advocates frequently argue that the number and dollar amount of medical malpractice payouts are increasing, forcing insurers to charge physicians and healthcare organizations more for their malpractice premiums. Tort reformers conclude that to cover these larger premiums, healthcare organizations must pass the cost onto the patient through higher costs for treatment. Thankfully, we now have even more hard evidence to support the belief that limiting the right to compensation by injured persons should not be based on the false idea that it will create rising healthcare costs.

 

 

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In November, Americans for Insurance Reform (AIR), a coalition of nearly 100 consumer interest groups, released the results of two studies they conducted based on new insurance data. The studies reveal that contrary to Speaker Paul Ryan’s claims, states that allow caps on damages and other tort reform measures actually have higher doctor’s rates. These same studies also show that premiums and claims for doctors are at their lowest levels in 40 years.

Tort reform supporters frequently claim that medical malpractice insurance rate hikes are directly linked to increases in malpractice payouts. AIR found that rising rates were tied to the economy and the financial losses of the insurance industry, relating to their investments in the stock and bond markets. In years where the stock market was strong, insurance companies lowered premiums in an effort to attract customers and quickly invest the profit made from their premiums.

Based on these findings, AIR concludes that insurance companies are allowing tort reform supporters to believe that taking away the right to fair compensation for those injured by negligence will reduce insurance rates. According to AIR, ‘Lawmakers should focus instead on controlling the power and the abuses of the insurance industry.’

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The Center for Justice and Democracy recently released an incredibly insightful new report that seeks to provide clear summaries of all of the hot-button issues related to medical malpractice. That includes analysis of the actual status of med mal suits, the effect of tort reform laws, the state of malpractice insurance, and the actual state of patient safety. We will likely discuss the findings of each in turn over the next week or two.

Illinois Medical Malpractice Lawsuits–Not “Frivolous”

Perhaps the most important baseline issue to discuss are the actual merits of the civil lawsuits that are currently filed alleging medical negligence. Due to years of misinformation campaigns, there is an assumption among some that most medical malpractice lawsuits are without merit–frivolous. This is a helpful talking point for insurance companies and big medical interests, but it simply does not mesh with reality.

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We have frequently mentioned the arbitrary nature and illogical outcomes produced by medical malpractice damage caps. NBC 2 News reported on a medical malpractice lawsuit that highlights those damaging effects created when the victims of medical errors have rights ignored.

A family filed a medical malpractice lawsuit after a medical error caused severe injury to their young daughter. Three years ago a hospital negligently prescribed a dose of nutrients 100 times stronger than necessary. The little infant’s frail body could not handle the massive intake. The young girl suffered cardiac arrest-she is now blind and suffers from cerebral palsy.

After hearing all of the evidence about the error, the losses suffered by the family, and the future expenses that will be required, a jury found the hospital guilty of malpractice. The community members awarded the family $19.2 million dollars. However, because of liability malpractice caps, that award to pay for the young girls care may be cut by a staggering 90%. The joint decision of neutral community members on the appropriate remedy for the situation is virtually ignored at the expense of those caring for the young girl.

If recently proposed federal legislation known as H.R. 5 is approved, than all Illinois medical malpractice victims will suffer the same erosion of rights. It represents a misguided, unnecessary, illogical shift in power away from victims and toward negligent big interests. All those interested in justice must stand in opposition.
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Often it is difficult to put malpractice caps into perspective in the abstract-personal stories of grievous loss caused by medical errors are apt.

The Los Angeles Times shares the story of a 17-year old girl who had corrective heart surgery shortly before going to college. The procedure would only take a few hours and the girl had gone through the same operation several times in the past. The teen was supposed to be back home for dinner that night.

However, a few hours later the girl’s mother was told that an “incident” had occurred during the operation, depriving the victim of oxygen. The girl was placed on a breathing tube, but she would never recover. A week later her parents were forced to make the excruciating decision of removing her from the ventilator and taking out an internal breathing tube. The girl died shortly after.

The family pressed the hospital for more answers to better understand what happened to their daughter. However, the hospital provided little more than general, inconclusive explanations. The family was forced to sift through confusing medical records on their own in an attempt to put the pieces together. The grieving mother explained that the process made her realize the difficulty faced by families of malpractice victims.

She admitted, “I could imagine this happening over and over again because families don’t have the resources to find out how their loved one passed away. We had to claw our way through the system.”

The family decided to sue the hospital so that they could actually learn more about what happened. They initially had trouble finding legal representation because of the state cap on malpractice damages. However, one law firm took the case and filed suit. Eventually, it was discovered that the postdoctoral fellow had removed the young girl’s catheters without doctor supervision with the assistance of another fellow who hadn’t even been cleared to see patients.

Because of the cap on damages, the attorneys were forced to urge the Cull’s to settle the case for $250,000-the maximum allowed under the law. The trial process was cut short. The family plans to use the funds to start a scholarship fund in their daughter’s name. However, the first-hand experience has led them to understand how the threat of a larger settlement might have forced the hospital to have been more forthright about what happened.
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