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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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 Even defending claims that were dropped, withdrawn or dismissed cost $15,000 per claim.

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Malpractice verdicts drop in Pennsylvania, officials disagree on cause

Post-Gazette, June 18, 2016

Medical malpractice jury verdicts hit a 15-year low statewide last year, a sign the medical community sees as welcome relief from escalating insurance premiums but lawyers view as evidence that injured patients are being unfairly denied an opportunity for redress.

In 2004, Pennsylvania juries issued verdicts in 449 medical malpractice cases, with 78.4 percent of those verdicts in favor of the defendant; in 2015, the numbers were 101 verdicts, with 78.2 percent favoring the hospital or medical professional. Similarly, Allegheny County saw its verdict numbers go from 49 in 2004, with 73.4 percent favoring the defense, while all 10 verdicts in 2015 favored the defendant.

What’s going on? Legal and medical officials could hardly see the matter more differently.

“I think the medical community, and insurers as well, have done a tremendous job of creating a jury bias toward these types of cases,” said Lawrence M. Kelly, president of the Western Pennsylvania Trial Lawyers Association and partner at the Luxenberg Garbett Kelly & George law firm in New Castle, Lawrence County.

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Court overturns lawyer’s sanction over banned testimony

Associated Press, June 15, 2016

An appeals court has overturned a nearly $1 million sanction levied against a Philadelphia-area lawyer whose witness elicited banned testimony that caused a mistrial in a medical malpractice case.

The Philadelphia Inquirer reports  the court found that instructions given by Common Pleas Judge Paul Panepinto were vague.

Panepinto says lawyer Nancy Raynor failed to instruct the witness that he could not say the patient in a medical malpractice case had smoked. Raynor had insisted the witness referenced the patient’s smoking despite her warnings.

Trial technician Joseph Chapman testified at March hearing that he heard Raynor tell the witness not to mention the patient’s smoking, supporting Raynor’s claim.

Obamacare and medical malpractice

Huffington Post, June 6, 2016

Despite the passage of the ACA, physicians and other health care providers continue to practice “defensive medicine” in hopes of better defending or even preventing future malpractice claims. By ordering more tests and doing more procedures in hopes of covering all the bases and not missing any significant diagnoses, the goal is to avoid any future litigation; the extra procedures and tests may not be in the patient’s best interests and some may even be harmful, but it was thought they would allow for an easier defense if faced with a claim.

There are several mandates under Obamacare which require significant expenditures on the part of health care providers. These expenditures have led to increased overhead costs which many, if not most, private practitioners are not able to meet. As a result, many providers are joining health care groups or hospitals whereby they become employees. The groups take care of the overhead costs and the providers are paid a salary.

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Rehab hospital giving non-prescribed opiates found negligent

Alabama Journal, May 21, 2016

A jury in northeast Alabama has returned a $20 million verdict against a local rehab hospital.

The Gadsden Times reports that an Etowah County jury on May 18 found that a woman received an overdose of non-prescribed opiates while she was a patient at HealthSouth Rehabilitation Hospital. A complaint against the hospital says Doris Green’s neurological and cognitive abilities remained impaired from the time of the overdose July 5, 2011.

Green died Oct. 22, 2011 as a proximate result of an allergic and/or adverse reaction to the opiates.

Should you worry if your doctor is sued for malpractice?

Consumer Reports, May 2, 2016

Maybe you recently heard that your doctor was sued for medical malpractice. Or maybe you were searching his or her name online and came across that information. Should you be concerned?

Sometimes yes, sometimes no, say patient-safety and medical malpractice experts we consulted. Here’s how to know when to worry, where to go for the information, and what you should do if you think you’ve been harmed by a physician.

Medical malpractice lawsuits are an inexact indication of substandard care, for several reasons. For one, cases often settle before trial without an admission of guilt, says Michelle Mello, J.D., Ph.D., professor of law and of health research and policy at Stanford University, who recently wrote about lawsuits and physicians in the New England Journal of Medicine. In other cases, a lawsuit might have focused on the physician when it was really the fault of his or her hospital. Or, Mello says, “it could be that it was simply less expensive for the insurer to settle the case than to fight it.”

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Doctor behavior impacts frequency, likelihood of malpractice suit

Beckers ASC, May 5, 2016

New England Journal of Medicine study found certain physician behaviors are tied to a higher claims rate for medical malpractice, according to MD News.

Researchers analyzed claims paid against physician between 2005 and 2014.

Communication, satisfaction with physicians, apologies, big factors in malpractice cases…

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Settlement for surgeon who experimented on toddler

Skyline, March 22, 2016

A malpractice suit in Chicago has led to a $30 million settlement. much to one family’s relief. According to the Chicago Tribune, a Chicago family was awarded $30 million after a surgeon allegedly performed experimental surgeries on an infant patient.

In 2011, Dr. Mark Holterman performed 25 total surgeries on a child, which resulted in cerebral palsy and irreversible brain injury. The child was born in 2009 with non-life-threatening conditions, one being a leak in his esophagus, and over the course of 17 months, Holterman operated on the child 25 times. The attorney for the family, Stephan Blandin, stated that Holterman’s operations were “not only medically careless and personally irresponsible, but also demonstrated a dramatic lack of oversight from the hospital.”

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Terrible malpractice laws in Illinois

Chicago Now, March 17, 2016

You’ll hear a lot of ranting from insurance companies and “pro-business” groups that something needs to be done about Illinois medical malpractice laws.  I haven’t heard it much lately, but you can bet as election season draws closer there will be phony grandstanding that doctors are going to leave the state.

I don’t want good doctors to be sued and I don’t want the already difficult standards that are in place to win an Illinois medical malpractice lawsuit to go away.  In Cook County only 20% of the cases that go to trial are won by patients.  That’s probably unfair to the patients, but so be it.  In some counties in Illinois there literally has never been a medical malpractice verdict against a doctor in favor of an injured patient.

The problem isn’t for people who are seriously injured due to negligence.  The real problem is when doctors make incredible errors which miraculously result in no harm and then return to their practice free to make the same errors.

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