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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.

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One of our attorneys recently came across an article in the Law Guide to Iowa Medical Malpractice Claims, a publication developed by fellow medical malpractice attorneys from that state. The article addressed the question that most families have after a medical procedure that didn’t go exactly as expected: How do I know if I have a legitimate medical malpractice case?

The article noted that attorneys are not able to argue that a doctor, nurse, medical professional, or product manufacturer made a mistake. Instead, medical malpractice attorneys must hire and rely on expert witnesses in the field in which the client believes a mistake has been made. Hiring experts is expensive, as is the entire process of preparing a case. Therefore, experienced medical malpractice attorneys must be selective in the cases they choose. Most Chicago medical malpractice and personal injury attorneys, like those at Levin and Perconti, only are paid if they are able to successfully recover for the victim and their family.

To determine if you have a case that an Illinois medical malpractice attorney will want to take on, meeting the 3 criteria below means you likely have cause to pursue legal action:

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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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H.R. 1215, a proposed house bill also known as the Protecting Access to Care Act, takes away the rights of all Americans, but is particularly worrying to veterans, whose health system is already failing them. The Veteran’s Health Administration (VA) serves nearly 9 million U.S. veterans and is the largest health care system in the country. The number of veterans receiving care through the VA has continually increased since 2010, which is in line with the increase in veterans returning from tours in Iraq & Afghanistan.

Patient Safety an Issue at VA Facilities
It’s no secret that the VA has been plagued by issues, including delayed care and treatment due to excessive wait times and inadequate staffing that has ultimately led to a rash of medical errors, many of which have been fatal. The Government Accountability Office reported that as the number of patients seen by the VA has increased, so has the number of medical errors. The Center for Justice & Democracy at New York Law School compiled a fact sheet on the impact H.R. 1215 would have on veterans and cites an April 2017 report by U.S. Department of Veterans Affairs’ Office of Inspector General (VA OIG) that found 194 instances in the past 3 years alone where patient safety was at jeopardy. The fact sheet also cites another report that found that from 2001-2011, the government paid out over 1,000 malpractice claims. If a medical error ends in an injury or death while under the care of the VA, the U.S. Government is ultimately at fault. In limiting non-economic damages to $250,000 (as H.R. 1215 seeks to do), the government is protecting itself from large payouts for tragic consequences stemming from their inability to fix a long-ailing health system. The negative impact of H.R. 1215 is wide-reaching. From sick children receiving Medicaid, to elderly adults receiving Medicaid and Medicare, to veterans, we all stand to be harmed by the so called Protecting Access to Care Act. The only ones being shielded by such legislation are those who should be held responsible.

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A study led by a group of physicians at Brigham & Women’s Hospital in Boston reveals that paid medical malpractice claims decreased by 55.7% between 1992-2014. Medical malpractice lawsuits have become the scapegoat for skyrocketing medical and insurance costs but as the study proves, the number of payouts and claims have only fallen. The only catch? The average payment amount went up by 23.3%, as well as the number of $1 million plus payments, meaning that while lawsuits are happening with less frequency, the mistakes they’re seeking to rectify are likely larger than the years prior to the study. What sets this particular study apart is that the authors set out to find what specialities were paying out the most claims with the ultimate goal of using the information to ‘help inform decisions about the approaches needed to simultaneously improve patient safety and reduce liability.”

Pediatricians Seem to Be the Gold Standard 

The great news is that all specialist payouts have decreased, with the largest drop seen among pediatricians. From 1992-2014, the number of claims paid by pediatricians fell 75.8%. The number of claims paid by cardiologists fell 13.5%. Neurosurgeons had the highest number of payouts during that period, while dermatologists had the lowest.

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As we all continue to await voting on H.R. 1215, a house-introduced bill that would limit non-economic damages in medical malpractice, nursing home, product liability, and pharmaceutical cases, we are constantly reminded of the impact medical error can have on one’s life.

This month, a Colorado woman was awarded $15 million after unauthorized use of an epidural steroid known to cause severe neurological problems. The woman suffered a stroke from the medication and is now paralyzed from the waist down. The woman, Mrs. Robbin Smith, told CBS4 Denver that “Our life has changed forever. I died that day, I completely died that day.” Colorado is one of a handful of states that have passed legislation limiting the amount of non-economic (also known as punitive) damages. Despite a $15 million jury verdict, the second largest malpractice verdict in the state’s history, Mrs. Smith will only receive a capped amount as allowed by Colorado law – likely less than 1/3 of the full amount awarded to her.

Doctors Ignored FDA Warning

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Public Policy Polling (PPP) recently released data from phone polls conducted in late March on the topic of H.R. 1215, a House bill that will be voted on in the next several weeks. H.R. 1215 seeks to limit non-economic damages to $250,000 in medical malpractice, nursing home abuse, prescription and OTC drug and medical device lawsuits. PPP asked the same set of questions to between 500-700 registered voters in 7 red (Republican) and purple states (those that have voted both Republican & Democratic in the past several elections). Polling only red & purple states was intentional, as  Republicans have traditionally leaned towards tort reform, the act of limiting medical malpractice and nursing home abuse lawsuits in favor of protecting big corporations. PPP found that in the polled states of Florida, Georgia, Pennsylvania, Texas, Utah, Alabama and Arizona, support for H.R. 1215 was virtually non-existent, with over 60% of polled citizens in every state disagreeing with the bill.

Even more impressive was the percentage of voters in each state that believed nursing homes should be held accountable if acts of negligence caused the injury or death of a loved one. The amount of support for nursing home abuse and negligence lawsuits was 77% at its lowest (Florida), and 86% at its highest (Georgia).

Finally, each state’s opposition to H.R. 1215 grew stronger as the person conducting the phone interview gave more information on the bill to voters.

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In a recently published OpEd on The Hill’s online news site, author Paul Bland points out the inconsistency in GOP principles in pushing H.R. 1215, the bill that aims to limit non-economic damages in medical malpractice and nursing home neglect & abuse cases to $250,000. The passage of such a bill at the federal level would also supersede the policies in many states that have already contemplated this issue and, in certain states, enacted their own legislation.

Republican Policies Centered Around Less Federal Intervention

Traditionally, the GOP has supported bills and policies that limit the federal government’s role and give power to the states in which citizens live. Their argument is that there’s no one more equipped than state lawmakers to decide what legislation should pertain to its residents. If one follows their line of thinking, it is nearly impossible to connect Republican-backed H.R. 1215 to their long standing history of preserving states’ rights. The bill is an absolute contradiction to the foundation of the GOP’s belief system.

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In a co-authored investigative report by ProPublica and The Atlantic, journalist David Epstein outlines the epidemic being played out in hospitals, clinics, and doctor’s offices around the country. Despite evidence to the contrary, physicians frequently are prescribing medicines and treatments that are not necessarily the safest choice for patients. Epstein describes how factors such as not keeping up with current research, relying on popular but unfounded research findings, profits, and bending to demanding patients has led to over invasive treatments and tests, useless medication therapies, and even severe injuries and death.

A Tale of Two Stents

The report begins with the stories of two patients who both were recommended for stent placement. One, a high-stress middle-aged man with chest pains and high blood pressure, used Google to second guess his doctor’s stent recommendation. He avoided the procedure entirely by seeking a second opinion and remains healthy and stent-free. The second man was a 51 year old stage IV lymphoma survivor who, after rounds of chemo and radiation, was suffering from lung scarring. He went to the hospital with chest pains from the scarring and despite his prior cancer history was given a stent, along with medication that would prevent blood clots arising from the implantation site of the stent. Months later, the man’s scarring had progressed to the point where a lung transplant was needed. The anticoagulant medications from the stent had to clear his system before a transplant surgery could take place, or else the man could bleed to death. While waiting for the blood thinners to wear off, the man suffocated to death due to the scar tissue that had invaded his lungs. Using the stent stories of two men with two drastically different outcomes leads to the main point of the report: Widely-known and frequently used procedures are not always the right choice. American College of Cardiology recommendations have been altered to clarify which situations merit stent placement and this has reduced the number of needlessly placed devices. However, in the stents that are implanted, a recent study revealed that half of them are unnecessary. It is important to note here that stents are recommended and have been proven to be beneficial in patients who have suffered a heart attack.