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Fewer Medical Malpractice Lawsuits Succeed, But Payouts Are Up

CBS News
March 28, 2017

The rate of paid medical malpractice claims in the United States has declined significantly, dropping nearly 56 percent between 1992 and 2014, researchers report.

At the same time, the average payout for successful malpractice claims rose about 23 percent — topping $353,000 in 2009-2014, up from about $287,000 during the 1992-1996 period, the study found.

These two trends could reflect the influence of tort reform on malpractice lawsuits, said lead author Dr. Adam Schaffer, an instructor at Harvard Medical School.

Laws that limit, or cap, damage claims could make it tough to find an attorney to take on your case, resulting in fewer claims filed, Schaffer said.

“Fewer attorneys could be interested in taking claims if there’s going to be a smaller potential payout, given that most attorneys are paid on a contingency basis,” he explained.

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Transforming Medical Malpractice With Technological Discovery

The Legal Intelligencer
April 11, 2017

Medical malpractice cases need to be investigated like a medical examination; one that includes the taking of current complaints, a medical history, a physical examination and a differential diagnosis. Since the medical field is in flux, the attorney must appreciate that medicine is changing through technological innovation, instant communication and electronic health record implementation.

For the start of our legal examination, we must understand the current complaint: medical errors. Medical error is the third leading cause of death in the United States. Deaths from medical errors are almost eight times greater than deaths from firearms. This numeric does not even include catastrophic injuries or life-long debilitations. Errors occur despite significant technological advancements; such as: robotic surgery, drug interaction websites, journal article search engines, electronic health recording systems, uniform DICOM viewers, mobile access and remote surgeries. It seems that these advancements have led to a decrease in communication among medical providers, an increase in active cases assigned to busy practitioners and an over-reliance on technology to solve problems.

Taking a case’s history requires knowing the laws requiring electronic health records and their mandatory recording of events. When the Health Information Technology for Economic and Clinical Health Act (HITECH), within the larger American Recovery and Reinvestment Act of 2009 (ARRA), and the Patient Protection and Affordable Care Act (PPACA) were placed into effect, it led to the implementation of electronic health records (EHR) across the country. Further, medical software began to hold strict legal requirements. And their implementation was expedited. The HITECH Act set 2014 as the date when an electronic health records would be created for each person in the United States. That time has passed and the clear majority of medical practices have been transitioned to the new world of electronic documentation.

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For Malpractice Reform, Focus on Medicine First (Not Law)

The New York Times
April 17, 2017

Congressional Republicans have recently revived efforts to overhaul malpractice laws, including capping certain kinds of suits at $250,000. A perennial argument of supporters of such measures is that many claims are frivolous, clogging the court system and driving up health care costs for everyone. But does the evidence support this?

You don’t have to look too hard to find backing for the notion that some malpractice claims lack merit. A 2006 New England Journal of Medicine study reviewed a random sample of 1,452 claims from five malpractice insurers. Its authors found that 37 percent of these cases involved no errors, and 3 percent involved no verifiable injuries.

It’s also undeniable that defending against malpractice suits gets costly. Other research shows that providers and hospitals spent $81,000 to $107,000 (in 2008 dollars) to defend cases that went to verdict, on average. Even defending claims that were dropped, withdrawn or dismissed cost $15,000 per claim.

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GOP Again Proposes Malpractice Tort Reform, With a Twist

MedScape
February 28, 2017

Over the past 20 years, House Republicans repeatedly have passed malpractice tort reform that caps noneconomic damages at $250,000, only to be stymied by Senate Democrats who view such measures as an intrusion on a plaintiff’s right to his or her day in court.

Today, the Republican-controlled House Judiciary Committee narrowly approved another such medical liability bill, but one with a twist. The reforms would apply to malpractice suits in which the plaintiff received healthcare covered through a federal program, subsidy, or tax benefit. In other words, healthcare provided under Medicare, Medicaid, or private health plans subsidized by the Affordable Care Act.

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Florida Justices Rule Medical Documents Must Be Disclosed

The Ledger
January 31, 2017

In a ruling that could have implications for medical-malpractice cases across the state, the Florida Supreme Court on Tuesday said a Jacksonville hospital system was required to provide records to a patient’s family because of a 2004 constitutional amendment.

The 5-2 ruling overturned a decision by the 1st District Court of Appeal, which said a federal patient-safety law shielded the hospital system from having to turn over some documents in a malpractice lawsuit. The ruling stemmed from a voter-approved ballot initiative, known as Amendment 7, that was designed to expand access to records in malpractice cases.

“The federal act was intended by Congress to improve the overall health care in this system, not to act as a shield to providers, thereby dismantling an important right afforded to Florida citizens through Amendment 7,” said the majority opinion, written by Justice Barbara Pariente and joined by Chief Justice Jorge Labarga, justices R. Fred Lewis and Peggy Quince and Senior Justice James E.C. Perry. “Moreover, health care providers should not be able to unilaterally decide which documents will be discoverable and which will not in medical malpractice cases.”

But Justice Charles Canady, in a dissenting opinion joined by Justice Ricky Polston, wrote that the Supreme Court should not have ruled in the case. That is because the family of patient Marie Charles and Southern Baptist Hospital of Florida, Inc., which does business as the Baptist Health hospitals, reached a settlement on the eve of Supreme Court arguments in October.

“The decision of the majority here, which can have no impact on this settled case, is a purely advisory opinion,” Canady wrote. “Our job is to decide live controversies presented by the parties to a case that is before us. It is not to opine on the issues in a case that has been settled and that the parties have agreed should be dismissed.”

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Stronger Malpractice Laws May Not Prevent Surgical Complications

Reuters
January 17, 2017

More aggressive malpractice climates don’t necessarily protect patients from surgical complications, a new study suggests

Supporters of medical malpractice laws that make it easier for patients to sue doctors say these protections are necessary to improve care. But in the current study, the risk of litigation didn’t translate into better outcomes, said study leader Dr. Karl Bilimoria, director of the Surgical Outcomes and Quality Improvement Center at Northwestern University’s Feinberg School of Medicine in Chicago.

“It doesn’t really work – malpractice environment doesn’t influence doctors to provide better care,” Bilimoria said by email. “Rather, it may lead to defensive medicine practices where more tests and treatments are ordered unnecessarily just to try to minimize malpractice risk.”

Bilimoria and colleagues examined state-specific data on medical malpractice insurance premiums, average award size and the number of claims for every 100 physicians in each state as of 2010.

They also examined 2010 data on the odds of death, complications or repeat operations within 30 days surgery for patients insured by fee-for-service Medicare, the U.S. health program for the elderly and disabled.

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Malpractice cases against evil Detroit doc settled for $8M

Insurance Journal, July 22, 2016

Patients who filed medical malpractice claims against Detroit-area oncologist Farid Fata and three Michigan hospitals will receive settlements totaling $8 million.

The settlements were approved July 20 in Oakland County Circuit Court. They will be distributed by an arbitrator later this year to about 40 people.

Fata is serving a 45-year federal prison sentence for intentionally misdiagnosing or mistreating patients. Many patients were told they had cancer and went through excessive chemotherapy. He was paid millions of dollars by insurance companies.

Fata pleaded guilty in 2014 to fraud, money laundering and conspiracy. His assets were to be liquidated.

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Indiana raises damage caps on malpractice

Indiana Lawyer, July 13, 2016

Historically, Indiana is not well known for being at the vanguard of legal reform. While there are many reasons for this hesitancy to lead change, several statutes have proven to be the exception, including the Indiana Medical Malpractice Act. Indiana was the first state in the nation to enact medical malpractice tort reform in 1975, providing statutory caps for damages and a state-operated excess fund for high-value cases.

Since its inception, the act has remained largely intact, although the damage caps have increased three times since the 1970s. The initial cap of $500,000 was increased to $750,000 in 1990, and again in 1999 to $1.25 million. During the 2016 session of the Indiana General Assembly, the Legislature voted to increase the damage caps effective July 1, 2017. The new caps are graduated from $1.65 million in 2017 to $1.8 million effective July 2019. In addition to this increase in the recovery cap, the act also increases the percentage of maximum compensation for plaintiff attorneys from 15 percent to 32 percent of the amount recovered.

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Malpractice laws in Wisconsin make things even harder for victims

TMJ4, July 9, 2016

Seven hundred deaths a day from medical mistakes. New research shows that’s how many Americans are dying due to medical errors.  The I-Team looked into malpractice deaths in Wisconsin and talked to victims who say state laws make it nearly impossible to right the wrongdoing.

According to new research led by Johns Hopkins, medical errors claim more than 251,000 lives a year, making it the third leading cause of death behind heart disease and cancer.  And if medical malpractice happens in Wisconsin, many people affected are blocked from seeking justice because of laws and court rulings.

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Military courts provide little help to medical malpractice victims

Military Times, July 10, 2016

Rebekah Moani Daniel arrived at Naval Hospital Bremerton in Washington state with her husband, Walter Daniel, on March 8, 2013, to bring the couple’s new baby into the world. And at 3:38 p.m. the following day, she did just that, giving birth to a healthy daughter, Victoria, in what seemed to be a nearly textbook delivery.

A labor and delivery nurse at Bremerton, Daniel was surrounded by trusted co-workers, so when she began bleeding profusely, her cadre jumped to, immediately administering drugs to stanch the flow.

But the postpartum hemorrhaging didn’t ebb. And from there, the response devolved. According to court documents, stronger drugs were administered but failed. A balloon device that could have halted the bleeding was employed too late. Within two hours of giving birth, Daniel had lost about 1-1/2 quarts of blood — three times the average during birth and about one-third the body’s volume.

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