Articles Posted in Malpractice Caps

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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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Today members of the U.S. House Judicial Committee met to discuss issue related to medical liability and malpractice lawsuits. The hearing involved discussion of patients rights as well as repeated, misguided claims about the need to take away certain legal decisions from juries.

Many member of Congress stood tall in their support for the preservation of patient rights. For example, Representative Nadler made clear that all discussion of malpractice had to focus on the fact that 98,000 patients die each year because of preventable medical mistakes. Advocates for victims also explained that the claims regarding rising healthcare costs is not related to the judgments in malpractice cases.

The reality is that researchers consistently find that malpractice lawsuits and the proposed “reforms” would have little if any effect on healthcare costs. The vast majority of expenses in litigation are related to claims of merit.
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Last week Courthouse News Service wrote about a recent state appeals court that reached the same conclusion as the Illinois Supreme Court: medical malpractice damage caps are unconstitutional infringement into the judicial process.

The court made the ruling after an appeal by a family whose young daughter suffered debilitating injuries because of the negligent of a nurse. The young girl developed a rare childhood-cancer that was not diagnosed in time to prevent severe injury-even though the girl made 32 separate visits to a nursing clinic prior to the diagnosis. The nurse practitioner who ran the clinic failed to diagnose the young child with the cancer, known as neuroblastoma. It was eventually revealed that the nurse never received a bachelor’s degree or master’s degree as required to become a nurse practitioner. Her highest degree was a high school diploma.

The family of the victim, who is now legally blind with a misshaped skull, filed a malpractice lawsuit against the negligent nurse. The family won their claim and a jury from their community awarded them $6.2 million for the lifelong care that will be needed because of the medical error. However, the caps in the state arbitrarily shrunk the award to a one-time payment that was 12 times smaller than that which her jury deemed appropriate.

The appeals court ultimately rejected the cap as an unjustified discrimination against certain victims of negligence. The caps apply only to some victims and not others. As one of the Judges wrote, “the state offered no evidence in this case…to refute the fact that the cap discriminates against [the victim] by limiting their general damage recovery…while allowing other less severely injured victims to fully recover.”
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The need for “tort reform” continues to be a common refrain among certain political elites, but the reality is that the claim is nothing more than a misunderstood attempt to take away rights from many innocent victims.

The Center for Justice and Democracy recently prepared a historical primer on the right to jury trial doctrine that so-called “reformers” are hoping to eliminate. The document outlines the fact that the right to a jury trial was repeatedly emphasized as one of the most important rights to early Americans. As far back as 1641, Massachusetts colonists enacted a charter that explicitly provided for civil and criminal jury trials. The importance of the explicit reference to the right cannot be understated-even vital protections like free speech and free press provisions had yet to be mentioned at this point in history.

Later as tensions rose between England and the colonists, the British leadership attempted to restrict the right to jury trials for Americans. The Stamp Act, one of the main impetuses of the Revolutionary Way, riled our Founding Fathers in large part because its enforcement was made by judges alone. John Adams remarked, “[T]he most grievous innovation of all is the alarming extensions of the power of the admiralty…no juries have any concern there.”

Following the war, the new states themselves repeatedly drafted constitutions that included a civil jury trial. For example the Virginia model declared, “In controversies respecting property and in suits between man and man, the parties have a right to trial by jury, which ought to be held sacred.”
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