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Earlier this fall, President Donald Trump declared the opioid epidemic to be a national public health emergency, making combatting it a priority for the federal government and states that have been hardest hit. In response to President Trump’s announcement, the Food & Drug Administration has begun eyeing strategies that would cut back on access to the drugs, how they are dispensed, and how to treat those who have become addicted. Opioids, a narcotic, are a class of pain-relieving drugs that affect the central nervous system and are derived from opium. Commonly known opioids include heroin, fentanyl, morphine, codeine, oxycodone, and hydrocodone. Vicodin, Oxycontin, and Norco are some brand name opioids that are frequently used to treat everything from dental pain to post-surgical pain, as well as a variety of other pain-inducing conditions in between.

2015 data from the CDC shows that 52,000 people died from an opioid overdose that year and that more than half of those deaths were caused by a legally prescribed or illegally obtained prescription medication.

New Rules Likely to Upset Drug Companies and Consumers

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We are proud to announce that Levin & Perconti’s Illinois Medical Malpractice Blog has won The Expert Institute’s Annual 2017 Best Legal Blog Contest for MedMal/Personal Injury, receiving over 1700 votes and besting blogs from across the country, including those based in New York, Texas, and California.

The blog, focused on communicating news and important information on issues relating to the health and safety of patients and the public, also extensively covers legislation that would affect the right to sue for preventable medical mistakes, the third leading cause of death in this country. With utmost respect for the medical community and the practice of medicine, the blog also aims to highlight the difference between sound medical care and negligent providers who fail to follow the standard of care.

About Levin & Perconti 

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This past Tuesday night in Chicago, blogger and author Glennon Doyle (formerly Glennon Doyle Melton) joined forces with a panel of other equally insightful and inspiring women to talk about finding your own self worth and harnessing that power to live your best life. We were lucky enough to be in the audience and hear the many roles these women have taken on in their lives: daughters, sisters, wives, mothers, career women, and caregivers. In her New York Times bestselling book Love Warrior, Glennon Doyle wrote “My courage will come from knowing I can handle whatever I encounter there — because I was designed by my creator to not only survive pain and love but also to become whole inside it. I was born to do this. I am a Warrior.”

Women ARE warriors. For many women, our role as a nurturer and caregiver spans the full cycle of life, from the births of our children all the way to caring for our aging parents. Caring for another person is unlike any other job in the world. The weight of responsibility, the emotional highs and lows, the physical stress and exhaustion, and the strain on other relationships that being a caregiver imposes on a woman is demanding and isolating. Adding in maintaining a marriage or partnership, looking after our own health, and holding down a job while attempting to care for another human life, whether infant or elder, is more than just a feat. It’s superhuman.


Women as Caregivers for Aging Parents

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In collaboration with the New York Times, ProPublica authored a multi-part series on the falling cost of generic drugs and insurance. One article sought to answer what politicians and many consumers have been asking lately: If generics are cheaper, why are some insurance plans requiring consumers to use the more expensive brand name versions? ProPublica spoke to a California pediatrician who said he began receiving memos from pharmacies telling him that he had to prescribe name brand versions of attention deficit drugs such as Adderall XR.

ProPublica has revealed that deals with insurance companies and pharmacy benefit managers (companies such as CVS Caremark who manage drugs plans for insurance companies) are receiving kickbacks and deals, while leaving consumers footing the bill for higher out of pocket costs.

Adderall XR and Insurance Companies: Back Room Negotiations

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“Health care fraud is a reprehensible crime,” said Health and Human Services Inspector General Daniel Levinson. “It not only represents a theft from taxpayers who fund these vital programs, but impacts the millions of Americans who rely on Medicare and Medicaid.”

In a landmark takedown by the Department of Justice, the Department of Health and Human Services, and federal, state and local law enforcement agencies, U.S. Attorney General Jeff Sessions has filed charges against 412 individuals in connection with Medicare fraud, 120 of which were in connection with the opioid epidemic that is currently plaguing our country. A Washington Post article today says that of the 120 charged in connection with opioid-related Medicare fraud, 115 of those were medical professionals, 56 of which were physicians.  The charges indicate that many of the physicians wrote false scripts and participated in other schemes that aimed to sell drugs to known addicts. The amount fraudulently billed to Medicare is said to total $1.3 billion.

In a statement today, Sessions says that one American dies every 11 minutes from a drug overdose and that we are currently seeing more drug-related deaths than we ever have in U.S. history.

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Today on NPR.org, journalist Michelle Andrews detailed the components of H.R. 1215 (The Protecting Access to Care Act) and used research to debunk all of the myths that H.R. 1215 supporters have been perpetuating. The changes that H.R. 1215 would implement are massive and with little benefit to Americans. Instead, the law heavily favors insurance companies and providers, leaving victims of medical error, pharmaceutical and device defects, and nursing home abuse and neglect victims with little recourse when things go wrong. And we know they do. According to researchers at Johns Hopkins, medical errors are the 3rd leading cause of death in the U.S.

What is H.R. 1215?

The Protecting Access to Care Act, H.R. 1215, is separate from the Better Care Act of 2017 (initially called the American Health Care Act of 2017 by the House, renamed to BCA by the Senate). The Better Care Act of 2017 was set to be voted on this week by the Senate, but was recently delayed until after July 4th. The Better Care Act is the Republican answer to the repealing and replacing Obamacare. In contrast, H.R. 1215 is related to medical malpractice and lawsuits.

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The Center for Justice and Democracy at New York Law School shared a strongly worded letter to House Speaker Paul Ryan and House Minority Leader Nancy Pelosi speaking out against H.R. 1215. The letter, written on behalf of 80 major public interest organizations, highlights the damages that could result from passing H.R. 1215, the so-called Protecting Access to Care Act. Among the most notable passages is this:

“Even if H.R. 1215 applied only to doctors and hospitals, recent studies clearly establish that its provisions would lead to more deaths and injuries, and increased health care costs due to a “broad relaxation of care.” Add to this nursing home and pharmaceutical industry liability limitations, significantly weakening incentives for these industries to act safely, and untold numbers of additional death, injuries and costs are inevitable, and unacceptable.

The latest statistics show that medical errors, most of which are preventable, are the third leading cause of death in America. This intolerable situation is perhaps all the more shocking because we already know about how to fix much of this problem. Congress should focus on improving patient safety and reducing deaths and injuries, not insulating negligent providers from accountability, harming patients and saddling taxpayers with the cost, as H.R. 1215 would do.”

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After a couple of false starts, H.R. 1215, the Protecting Access to Care Act is going to the House floor this week.  This massive medical malpractice bill also applies to nursing home and drug and device cases.  The bill caps non-economic damages at $250,000, eliminates joint liability for economic and non-economic loss, caps attorney fees, has a restrictive statute of limitations and says that a doctor and a pharmaceutical company cannot be named in the same lawsuit.

This means, among many other things, that finding an attorney to handle a medical malpractice case will be more challenging and that financial compensation for injuries that are hard to quantify (such as pain and suffering) cannot surpass $250,000. 

The bill will not get better during floor debate.  The only amendments that will be allowed are amendments that make the bill worse for patients.  The debate on this bill will begin on Tuesday with vote on final passage scheduled for Wednesday. 

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After our attorneys contacted Illinois Senator Dick Durbin to urge him to oppose H.R. 1215, the Protecting Access to Care Act, we were happy to receive an email acknowledging our concerns. In addition to thanking us for taking the time to reach out to him, Senator Durbin shared several items that we know to be true regarding medical malpractice. Namely, that medical malpractice costs account for less than 3% of all healthcare expenditures, that 6% of physicians are responsible for 60% of all medical malpractice lawsuits, and that medical error is the 3rd leading cause of death in this country.

Senator Durbin reinforces what we already know about healthcare and our legal system: medical malpractice lawsuits are not responsible for the high cost of healthcare and limiting the ability of victims to seek justice for injury from medical errors is a violation of our rights.

We would like to thank Senator Durbin for recognizing and sharing in our fight against H.R. 1215.

Our attorneys would like to share the contents of his letter with you:

 Thank you for contacting me about the Protecting Access to Care Act (H.R. 1215).  I appreciate hearing from you.

Introduced by Representative Steve King of Iowa, the Protecting Access to Care Act would reduce the statute of limitations for health care lawsuits to three years after the date of injury. Non-economic damages awarded would be limited to $250,000 or less, no matter the number of parties in the lawsuit.  Health care providers who prescribe FDA approved products would be protected from any lawsuits involving those products.  No companion bill has been introduced in the Senate.

Proponents of reforming our medical liability system contend that we should establish limits on medical negligence settlements to prevent meritless lawsuits and reduce health care costs.  However, the Congressional Budget Office estimated that malpractice costs amounted to less than three percent of overall health care spending.  Additionally, nearly 70 percent of all medical negligence lawsuits result in no settlement.  An estimated six percent of doctors are responsible for 60 percent of all medical negligence that result in claims.  The justice system is our only effective means of holding these doctors accountable.

According to the Institute of Medicine, preventable medical errors kill as many as 98,000 Americans every year and injure countless more.  Medical errors are the third leading cause of preventable death in the United States.

The Protecting Access to Care Act has been referred to the House Judiciary and Energy and Commerce Committee.  I will keep your concerns about this legislation in mind should the Senate consider similar legislation.

Thank you again for contacting me.  Please feel free to keep in touch.

 

      Sincerely,
Sen_Signature
Richard J. Durbin
United States Senator
RJD/jw
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With policymakers and tort reform advocates recently making a big push for the American Health Care Act (AHCA), patient and elder rights advocates have come out in full force to discredit many of the non-truths being touted as facts to promote tort reform. Last month, Sabrina Safrin, an attorney and Professor of Law at Rutgers University, published an enlightening article entitled ‘The C-Section Epidemic: What’s Tort Reform Got to Do with It?‘ Ms. Safrin’s report investigated the exceedingly high rate of C-Sections in this country and compared the rate in states with medical malpractice caps vs. those without. Her research led her to conclude that there is no reduction in C-Sections in states that have imposed a cap. Based of the most recently available CDC data on births, Ms. Safrin and her team concluded that there is actually a 1% higher rate of C-Sections in states with a malpractice cap.  The author also suggested several strategies that could assist in bringing down the number of C-Sections, something the American Congress of Obstetricians and Gynecologists (ACOG) has theorized will be directly reduced by enacting tort reform.

Caesarean Section: Facts & Figures

A C-Section is currently the most common procedure in hospital operating rooms across the country. According to the CDC, 1 in 3 babies is delivered by C-Section, a more than 50% increase from just 20 years ago. Such a large jump would lead one to assume that it has been discovered that C-Sections lead to better outcomes for neonatal health. Not so. In fact, data shows that hospitals with higher C-Section rates show no decrease in neonatal death rates, higher APGAR scores (a measure of baby’s health at birth), or reduction in time spent in a NICU. In fact, babies delivered via elective C-Section spend more time in the NICU, typically for respiratory issues due to early delivery. A C-Section also mandates a longer hospital stay for both the mother and baby, as well as a longer recovery, which all lead to higher hospital bills. Ms. Safrin notes that a C-Section costs 33-50% more than a vaginal delivery and that privately insured women are 33% more likely than an uninsured woman to deliver via C-Section, while those on Medicaid are 17% more likely to have one. Also worth noting is that half of all deliveries in this country are paid for by Medicaid.