Washington, DC Personal Injury Lawyer - Medical Malpractice

Loser Pays Tort Reform Would Bar All Medical Negligence Cases

Christopher Nace — Wed, 04 Nov 2009 10:24:23 GMT

A story in the Atlanta-Journal Constitution discusses a plan by Senator Lindsey Graham of South Carolina and Senator Saxby Chambliss of Georgia to enforce a "loser pays" system in medical negligence cases as part of health care reform. Such a plan would close the courthouse doors to many individuals harmed by medical negligence cases each year, including the 98,000 who die from medical errors every year.

But the losing party would be required to pay its opponents' legal fees, which could be in the hundreds of thousands of dollars.

The idea of loser pays means that if you take a case to court and lose, you are responsible for the other sides costs. Costs include minor costs such as filing fees and copying costs, but also would cover costs such as expert fees and possibly attorney fees. These costs in a medical negligence case--if you included the attorney fees--could reach into the several hundreds of thousands of dollars. Ask yourself this: if you were injured as a result of crystal clear medical negligence would you risk being on the hook for $250,000 if a jury found against you at trial? Cases would never get filed. Senators Graham and Chambliss either know this and have no desire but to close the court house doors to injured individuals or have been irresponsible in studying the issue.

Others who have weighed in on the idea see it as a preposterous approach to a minor cost on our health care system:

According to the left-leaning advocacy group Public Citizen, malpractice litigation costs represent less than 1 percent of the total cost of health care in America.

"This is worse than bad, it's really ridiculous," David Arkush, director of Public Citizen's Congress Watch division, said of Chambliss and Graham's proposal.

Arkush said that medical malpractice litigation costs have actually declined in recent years and are at an all-time low, despite the fact that overall health care costs continue to rise.

Attorney Robert Peck said the senators' proposal isn't just unnecessary, it's dangerous for patients.

"It's not going to solve any problems," said Peck, president of a Washington, D.C., law firm called the Center for Constitutional Litigation. "But it will significantly destroy the access to the courts for patients injured by the negligence of their health care providers."

The fact is that a medical negligence case will cost a plaintiff at least $75,000 in his or her own costs to file and prosecuted. These cases are very complicated and challenging as well as expensive. The idea that there are a number of frivolous lawsuits being filed is simply wrong.

The economics of a medical negligence case are such that frivolous cases simply don't get filed. A loser pays system would do nothing more than close the courthouse door to individuals who were harmed by the negligence of others. Shouldn't those that are injured through the errors of others at least have a chance to let a jury decide their case without the risk of a punitive, $250,000 penalty for losing that case?

Originally posted at InjuryBoard by Christopher Nace

A Doctor's Perspective on Tort Reform

Christopher Nace — Wed, 28 Oct 2009 10:46:32 GMT

Rahul K. Parikh, M.D. is a brave man. In an article he has penned for the online magazine Salon, Dr. Parikh takes on his colleagues, peers and the American Medical Association and challenges the idea that medical malpractice lawsuit reform, or tort reform, must be part of a national health care plan to bring down the cost of health care.

In addressing the myths of tort reform propounded by doctors and insurance companies, Dr. Parikh states that:

Their refrain is familiar to anybody following the healthcare reform debate. The only problem is that it's not true. There's nothing "sure or quick" about changing medical liability laws that will improve healthcare or its costs. Defensive medicine adds very little to healthcare's price tag, and rising malpractice premiums have had very little impact on access to care.

Throughout the article, Dr. Parikh challenges the notion that there has been a so-called "explosion" of medical liability lawsuits, that defensive medicine is driving the cost of health care up, and that lawsuits are driving doctors out of business.

In citing a Harvard study, Dr. Parikh explains that

In 2006, researchers from Harvard published a study in the New England Journal of Medicine that was designed to avoid the limits, and the biases, of prior research. What they found kills the notion of frivolous lawsuits. It suggests that most people who sue are suing for good reason.

As for defensive medicine,

Yet more recent analyses show that the effect of defensive medicine on overall costs is, at best, marginal. The most visible of them came from the nonpartisan Congressional Budget Office. In a 2004 report, it reviewed studies suggesting tort reform did reduce healthcare costs, including the Kessler and McClellan study. However, when the CBO applied the methods used in that study to a broader set of ailments, it found no evidence that restrictions on tort liability reduced medical spending. It also found no difference in per capita healthcare spending between states with and without limits on malpractice awards. More recently, the Kessler-McClellan study received another blow when two new authors reassessed their original work. Unlike the original study, this one looked at the effects of tort reforms over a longer time period. Just like the CBO review, it concluded that "Direct reforms (caps on damages, abolition of punitive damages, eliminating mandatory prejudgment interest, and collateral source offset) did not significantly reduce payments for Medicare-covered services."

Dr. Parikh seems to hit the nail on the head in his final paragraph:

Tort reformers neglect the fact that malpractice reform won't save one extra life. To make that difference, insurers, doctors and their lobbyists like the AMA need to find ways to improve patient safety. So for those who push tort reform as a panacea for a sick healthcare system, working to prevent injuries is a much more noble pursuit than writing up baseless arguments for the back pages of a newspaper.

I'm a lawyer. If you want to discount my blogs about tort reform, I can understand that. But take a moment and read Dr. Parikh's article. Perhaps you will find the honest views of a doctor more persuasive. Regardless of profession, we should all agree that patient safety should be the number one driving factor in any health care reform efforts. Dr. Parikh explains that tort reform is not a way to bring about better patient safety.

Originally posted at InjuryBoard by Christopher Nace

PA Supreme Court Candidate Promotes Free Market, When It's Convenient

Jonathan Nace — Wed, 06 May 2009 09:25:39 GMT

Joan Orie Melvin has what she calls a "record with regard to my judicial philosophy." She proudly defines herself by saying:

I am a strict constructionist. I believe in judicial restraint. The job of a judge is interpreting the law — not creating it. And never legislating from the bench. That’s why we have three separate, co-equal branches of government. Judges are not supposed to be legislators... I am a social and fiscal conservative.

However, more of her comments show that this "fiscal conservative" believes in the free market only when it is convenient to her political expediency. Because while she claims a hands-off approach to the law and to the marketplace, on certain issues she manages to eschew that philosophy.

“In the 1990s, attempts at tort reform were made by the legislature, especially in the medical malpractice area, with the [excessive] verdicts in Philadelphia,” Judge Orie Melvin said. “The Supreme Court, which was Democratic at the time, declared such laws unconstitutional.”

In the early 2000's, rules specific only to citizens injured by medical malpractice were pushed through the legislature, and according to Judge Melvin:

“After those rules were enacted, a study one year later showed that malpractice cases in Philadelphia decreased by 50 percent and by 35 percent in Allegheny County. The Pennsylvania Supreme Court had an impact on the economic climate in the state.”

It appears that Judge Melvin believes the role of the Pennsylvania Supreme Court is to let the market take its own course, except in medical malpractice cases. But her politics demonstrate the absurdity of medical malpractice tort reform.

Essentially, Judge Melvin is promoting a medical market where doctors are not held accountable by the free market. While it seems clear that this "fiscal conservative" believes the government should stay out of the market, she is actually exposed as nothing more than a promoter of insurance companies' big business wishes. She promotes a market place where insurance companies and doctors who make major medical mistakes will not be held accountable for these actions. This - according to free market ideology - will create a market saturated with bad doctors and bad medical care, all because the government wishes to infect the market with its protectionist policies.

While Judge Melvin may not believe in holding health care providers who negligently injury parties accountable, Pennsylvania's citizens will have the duty to hold this judicial politician accountable for her positions. And it won't be easy because the medical and insurance lobbying and political actions committees are sure to spread their enormous capital to a candidate who wants to allow them to escape responsibility regardless of their failures.

Originally posted at InjuryBoard by Jonathan Nace

Medical Malpractice Happens Every Day in Washington, DC

Christopher Nace — Fri, 16 Jan 2009 17:12:44 GMT

A recent story indicated that reported medical errors in Washington, DC hospitals occur about 1.5 times a day:

An Examiner story Tuesday said there were 529 reported incidents in D.C. in the 12 months ending in June 2008. The human toll: at least 14 people dead and scores of others maimed or injured. The incidents were collected in the first-ever adverse-event report, required under D.C. law to track medical malpractice.

The report referenced is indicative of medical malpractice legislation that protects patients, rather than tort deform laws passed in other states to pad insurance company bottom lines. Instead of protecting the insurance companies, DC's legislation requires that hospitals track and report medical errors.

Among the errors detailed were a cancer patient who had the wrong breast operated on because of a clerical error, a patient who died when his ventilator failed, and numerous instances when sponges, catheters and even needles were sewn up inside of patients.

Clearly, medical errors occur in the District. Individuals harmed by medical malpractice ought to have the right to seek compensation for these injuries. Thankfully, the DC City Council has elected to fight the cause of medical malpractice, rather than closing the court house doors to meritorious cases like several other states.

Originally posted at InjuryBoard by Christopher Nace

D.C. Department of Health Exposes Medical Errors

Jonathan Nace — Tue, 13 Jan 2009 09:15:06 GMT

The District of Columbia Department of Health has published a report finding that 529 "adverse events" occurred in a 12 month period. The report may have been reluctant to title these problems as "malpractice," "negligence," or "mistakes," but semantics is not relevant.

The report found that several possible causes were leading to medical errors, including faulty paperwork and bad equipment. However, it also noted that at least seven people died due to being given either the wrong dose of medicine or the wrong medicine all together.

Despite the prevalence of malpractice in the District of Columbia, it has become more and more difficult for injured parties to be compensated for medical mistakes. This is due to several factors, including tort reform laws and doubting juries.

Hopefully, with the light the Department of Health has shined on this problem, the public at large will realize just how significant and prevalent medical malpractice is in the District of Columbia.

Originally posted at InjuryBoard by Jonathan Nace

Tort "Reform" Affects the Quality of Health Care

Christopher Nace — Sat, 20 Dec 2008 12:02:07 GMT

As the Illinois Supreme Court considers whether to strike down that state's cap on medical malpractice damages, some have suggested that insurance premiums for doctors are tied directly to the existence of the cap.

The historic law provided meaningful lawsuit, insurance and medical reforms. Democrats, Republicans and independents alike joined together and pleaded with lawmakers to address the growing health care crisis in Illinois and the result was a comprehensive law that by all accounts is working. For the second year in a row, ISMIE Mutual Insurance Co., the state's largest physician insurer, announced the company's basic premium rates would not be going up. A recent OB/GYN Crisis Coalition survey shows that the number of OB/GYNs who "strongly agree" that Illinois' liability climate is the biggest issue facing health care has gone from a whopping 87 percent in 2004 to about 58 percent in 2008.

But does the fact that there is a cap on damages mean that the quality of health care has improved? Does it mean that there have been less medical errors in Illinois? The only purpose of the statute is to protect insurance company profits.

Rather than give a free pass to doctors who make errors and to the companies that insure them, shouldn't Illinois focus on assuring that its citizens receive the safest health care in the nation?

If a doctor is found to have been negligent on multiple occasions shouldn't his or her premiums go up? Shouldn't it be harder for that doctor to continue practicing?

No one wants responsible and competent doctors to leave their state and no one wants insurance companies to dictate the type of health care available in a state. But caping the damages that an injured party may receive solely to protect insurance company profits is wrong.

The goal of medical liability reform should be to assure quality health care, not insurance company profits.

Originally posted at InjuryBoard by Christopher Nace

New Hampshire Tort Reform Having No Effect on Medical Costs

Jonathan Nace — Fri, 12 Dec 2008 11:36:25 GMT

Three years ago New Hampshire instituted a law which required medical malpractice plaintiffs to submit their claims to a non-binding panel to curb medical malpractice costs. So far, nothing suggests its helpful.

New Hampshire set up a system whereby:

The panels, which are chaired by a retired judge and include a doctor and lawyer -- screen every medical malpractice case that's filed in court. After the panel hears the facts, the three members vote in favor of the plaintiff or the doctor. The decision is not binding, but it can be critical because a unanimous ruling either way is given to a jury if the case goes to trial.

Now the head of the superior court system wants to look into the practice because nothing suggests that costs are being lowered. "To the extent that one of the ideas (behind this law) was that we'll get a quick and dirty resolution, that's just not happening," said Chief Justice Robert Lynn.

In effect, the law requires medical malpractice claims to be tried twice. This forces plaintiffs' attorneys to depose everyone before the panel hearing because the outcome can be so critical. While defense lawyers, who charge their insurance backed clients by the hour, claim that costs are less because a panel hearing only "lasts a day," they fail to mention that its not only an extra day of "trial," but an extra few weeks of preparation that would not be necessary without the law.

Maryland has a very similar system in place, in which medical malpractice plaintiffs must file with a state agency before filing a claim, and then show they have an expert willing to testify. At one time, plaintiffs were required to submit their claim to an arbitration panel consisting of a doctor, a lawyer, and a lay person. Now, Maryland has made the arbitration proceedings unilaterally waivable by any party after an expert attests to negligence.

However, even this accomodation has led to significant unnecessary litigation based on highly technical readings of the Maryland law. Cases have - with some regularity - ended up on appeal before they are heard by a jury. And no one is suggesting that the appeal process is less expensive than the trial process.

The bottom line is that these tort reform laws simply do not limit costs. What they do is impose more costs on the plaintiffs who have been injured, and usually even put more costs on the defendants whose counsel must prepare for more than a trial - like in New Hampshire and Maryland. And while study after study shows that malpractice insurance costs are not effected by this type of tort reform, it continues to be a sufficient scapegoat for raising premiums on doctors and hospitals.

Originally posted at InjuryBoard by Jonathan Nace

Fighting Back on Tort Reform Misrepresentations

Jonathan Nace — Mon, 08 Dec 2008 11:40:35 GMT

Trial lawyers are beginning to fight back against the tort reform misrepresentations that have been made in the past and continue to be pushed by big business and insurance companies.

Recently, the Wall Street Journal published a controversial piece on the Illinois Tort Reform laws which capped the amount of damages which can be assessed against doctors and hospitals. The WSJ claimed:

Much good has resulted since Illinois lawmakers joined 35 other states and placed limits on medical damage awards three years ago. Doctors no longer flee the state in droves, and health care is more accessible. But if the trial lawyers prevail in a case heard by the Illinois Supreme Court recently, those trends could be reversed.

In a letter to the editor, Illinois Trial Lawyers Association President Philip Corboy, Jr., demonstrates the flaws and one-sided view the article takes. Mr. Corboy actually presents the story of the young girl, which the WSJ conveniently left out:

She is a three-year-old little girl named Abigaile LeBron, whose life has been forever changed by the severe brain damage she suffered as a result of medical negligence. It is likely that Abigaile will have to be fed through a tube for the rest of her life. She will never develop cognitively or physically as her peers do. And she will likely never live independently. It is inarguably a very painful tragedy for Abigaile and all who know and love her.

The insurance industry and its brethren in the tort reform world have argued that Abigaile's compensation for lifelong disability, pain and suffering should be arbitrarily limited, despite what a jury of average citizens may decide. The question before the Illinois Supreme Court is whether the Illinois Constitution allows Abigaile's rights to be limited in this fashion to the benefit of insurance company profits. Twice before, our state's highest court has decided in favor of patients and against the insurance companies that would limit these rights to protect their own profits. No new arguments have been offered by the insurance industry.

These are the real issues when it comes to tort reform. The legal system is a place where all people are supposed to be on equal footing, all are equal in the eyes of the law, and tort reform is usually nothing but an attempt to tilt the playing field in favor of insurance companies and corporations.

But perhaps more importantly and most convincingly, Mr. Corboy points out the most glaring flaw of the WSJ article when he indicates

You argue that a reduction in malpractice premiums and the return of doctors to the state have resulted from the law containing caps. Nothing could be further from the truth. Not one case has been litigated under the new cap in Illinois. The simple fact is that those positive developments have resulted from strong, long-suppressed insurance reforms in the legislation. That law has now forced malpractice insurance companies to provide greater transparency on rate-setting and payouts that has in turn spurred competition, motivated more companies to enter the marketplace, and lowered premiums for doctors. Important to the discussion for your readers is the additional fact that Illinois' largest malpractice insurer has reported that payouts have remained flat for the past 13 years. By the way, it's the same insurance carrier that admitted during the run-up to this legislation in 2005 that capping awards would not guarantee lower premiums for its doctors.

Thanks to Mr. Corboy and others fighting to protect all people's equal rights to the laws, the truth about tort reform is beginning to take shape.

Originally posted at InjuryBoard by Jonathan Nace

The Victims of Malpractice Caps

Christopher Nace — Wed, 03 Dec 2008 20:46:52 GMT

The Wall Street Journal recently published an editorial advocating on behalf of caps on pain and suffering damages in medical malpractice actions.

Much good has resulted since Illinois lawmakers joined 35 other states and placed limits on medical damage awards three years ago. Doctors no longer flee the state in droves, and health care is more accessible. But if the trial lawyers prevail in a case heard by the Illinois Supreme Court recently, those trends could be reversed.

Of course the editorial doesn't once mention victims of medical malpractice and the effect that caps have on meritorious claims.

The story of James and Debbie MacDonald shows the effect caps can have on individuals. West Virginia imposes a straight cap of $250,000 for pain and suffering no matter how many plaintiffs or how many defendants are involved in a case. (The cap is raised to $500,000 when the injury results in certain damages such as permanent disfigurement.) In MacDonald v. City Hospital, Inc. et al. a meritorious claim could not be settled because the defendants were confident that no matter how negligent their actions, the cap protected them from a big verdict. To them, it was worth the risk of going to trial as opposed to resolving the matter amicably and taking responsibility for their negligence.

The victim of the West Virginia cap was a retired school teacher of 34 years and his wife. James MacDonald suffered a permanent debilitating injury due to the negligent administration of a three drug combination. After giving over thirty years of his life to his community as a elementary school teacher, Mr. MacDonald had his retirement years stripped away, as he is in a condition now where it is difficult for him to get around.

James MacDonald had entered City Hospital with pneumonia in October of 2004. At the time of his admission Mr. MacDonald was taking Cyclosporine (for a kidney transplant he had received roughly twenty years earlier) and Lipitor. (It is common for transplant patients to be placed on a statin such as Lipitor to control cholesterol.) Diflucan (an antifungal) was administered to treat the pneumonia about five days into his admission.

Mr. MacDonald alleged that this three drug combination of Cyclosporine, Lipitor and Diflucan had a known risk of causing rhabdomyolysis, a disease process leading to muscle tissue breakdown. Despite having had certain kidney labs done during Mr. MacDonald’s first three days at the hospital, when the defendant doctor took over his care he stopped ordering these labs. By the time the doctor requested these labs be conducted, Mr. MacDonald’s CPK (a test associated with kidney function) had gone from a 55 (normal is 0 – 250) to 19,000 and would eventually reach 55,000. He suffered permanent muscle damage. Mr. MacDonald spent several months in physical therapy and rehabilitation. Despite his efforts, Mr. MacDonald continues to have serious problems walking and getting around in general.

Mr. MacDonald alleged three violations of the standard of care: (1) the pharmacy should have alerted the attending physician to the potential interaction between Cyclosporine, Lipitor and Diflucan; (2) the attending should have discontinued the Lipitor; and (3) if the Lipitor was not discontinued, the standard of care required the attending physician to monitor Mr. MacDonald’s kidney function. None of these were done.

After seven days of trial, on November 25, 2008 a West Virginia jury found that the defendants were negligent and awarded the MacDonalds $1.6 million: $92,000 in past medical bills; $37,000 in lost wages; $250,000 for past pain and suffering; $750,000 for future pain and suffering; and $500,000 to Mrs. MacDonald for loss of consortium.

The question now is whether the judge will impose the $250,000 or $500,000 cap. But this is the other side of caps. In this instance, a cap prevented settlement and sent a case with clear liability to trial. The defendants chose to use the cap as a sword, not a shield. The West Virginia cap encouraged a frivolous defense. And a retired school teacher and his wife will likely suffer as a result.

Originally posted at InjuryBoard by Christopher Nace

Doctors Not Sleeping Enough Could Lead to Mistakes

Jonathan Nace — Wed, 03 Dec 2008 06:17:56 GMT

The Institute of Medicine has recommended more caps for the amount of time that doctors, particularly resident doctors, can spend on duty consecutively. While caps are not a new idea, this time the panel suggested that anyone working the maximum 30 hour work shift be given a five hour rest following the first 16 hours.

"Our committee's charge was not to focus necessarily on longer scheduling or shorter scheduling, but smarter scheduling to try to really identify the areas where we could have an impact in preventing excessive fatigue, both acute and chronic, that might contribute to medical errors," said Dr. Daniel Munoz of Johns Hopkins University School of Medicine in Baltimore.

Medical mistakes often occur due to explainable events. Sleep deprivation "fogs the brain," which is one reason caps in 2003 limited resident work weeks to 80 hours per week.

While cutting hours can help, what truly is needed is a comprehensive reform of hospital work-load that puts the safety of the patient before either simple finance or even the education of a resident.

"Cutting hours alone won't do it," added Dr. Ann Rogers of the University of Pennsylvania School of Nursing in Philadelphia, who also served on the committee.

"We need to pay attention to work load. We need to pay attention to supervision. The whole package will make a difference. Without it, you could end up with a more severely stressed resident trying to do more work with less hours."

Originally posted at InjuryBoard by Jonathan Nace