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Tuesday, April 15, 2014

How are things today with malpractice...

Another interesting article.  For starters, the author(s) note that "claims and rates [of medical malpractice suits] are declining[.]"  To me, that completely contradicts the prior article from Medscape that I previously wrote about.  They then go on to back this up with data, showing that a drop in claims "continues a 6 year trend."  The author(s) then note that "65% of malpractice claims are dropped, dismissed, or withdrawn; 24% of cases are settled; and only 7% result in a verdict.  Of the cases that reach a verdict, the defendant (doctor, hospital, nurse, PA) is favored 88% of the time."

Well, now I am just plain old confused.  Their prior article claims that there is an explosion of litigation in medical malpractice and we need more caps on damages and more tort reform to prevent this.  Now, this article says, well, there is not much litigation, the trend is less, and heck, when we do get sued, we usually win.  See, confused.

The article examines why there is less litigation, and nails it on the head.  "It's expensive for plaintiff attorneys; they have to invest a lot and may not be able to make a profit."  Yes, the institution of caps, the expense to get medical records and bills for our clients and the expense of the suit in general has essentially forced plaintiffs lawyers out of these types of cases completely, or made it so that only the gravely injured have any sort of shot at being compensated for the malpractice.  In fact, the author specifically notes this: "Supporters of tort reform have been very successful over the past couple of years.. and now it's very difficult to being a claim to trial."  Yes! Exactly.  You tort reformers have managed to make it nearly impossible for injured people to receive compensation.  Good work!

The author is quick to point out that "we still win 82% of all claims, so most of the claims the plaintiff's bar is filing are fruitless."  Ok, first, I have no idea how that person came up with that number, because that does not make any sense given the numbers above that are in the article prior to this comment.  Second, is settling a case, in which the defendant pays money, winning?  Third, how are these claims "fruitless?"  Just because you win an arbitrary percentage of cases, the claims are automatically fruitless?  I think this ignores the fact that lawyers file claims that are not fruitless or frivolous, but that cases go to trial, and at trial the decision of whether the doctor was negligent or not goes to the jury; a jury comprised of mainly lay people who bring their own biases and prejudices into the case, even though they are instructed not to.  So, it could be that they do not find the doctor negligent (because they don't want to; believe me, I have seen this happen) despite the overwhelming evidence that the doctor committed malpractice.

At any rate, there are other reasons claims are going down.  The article notes that there is more emphasis on risk management and having doctors attend seminars.  Yes, it is a very good idea to focus on how to prevent malpractice.  Finally, someone showing that people actually care about the patients.  Hospitals are working on the evolution of electronic records because in their current form it is easy to miss something given the volume of information provided in an electronic record.

The author discusses what else is working in the USA to "curb rising" malpractice claims.  None really did anything because the main thing that helps curb suits is the arbitrary cap on damages.  The author notes the next best thing is caps on what a lawyer can charge on a contingent basis for a medical malpractice claim.  These would be helpful because "these combat the plaintiff's bar's parasitic form of venture capitalism."  Wow!  Yes, being paid to help an individual who was injured by malpractice is parasitic.  Clearly, the right thing to do is deny to the injured person that malpractice occurred, deny compensation, and make it extremely difficult for that person to hire a lawyer and pursue a medical malpractice case.  Geez, us plaintiff's lawyers truly are the bad guys.

I wonder when the author will write an article about the ever increasing costs of health care and the negative impact that is having on people's wallet and the car people receive.

For next time, "Patients Who Won't Sue Their Doctors -- Even When They Could."

Friday, January 17, 2014

"Lottery Mentality"

It has been a while since I have had time to write a post.  However, I received interesting literature lately and this will be the first of, I think, a four part series of posts.

Today I will examine a Medscape article entitled, "Plaintiff's Attorneys Get Choosier; Lottery Mentality."  Essentially the article expresses the need for tort reform in order to limit awards and take a huge burden of the court system.

The article begins by noting that most states limit awards, such as "California's $250,000.00 lid on non-economic damages -- still the GOLD STANDARD for tort reform advocates."  The common denominator between states with limits is "an attempt by lawmakers to hold down the severity, or actual cost, of resolving malpractice claims."

Ah yes, the gold standard.  Nothing says justice for the injured more than limiting what an individual can get for his or her injuries.  And of course, the smaller the amount the better, hence the gold standard.  Nothing says "we are sorry and we do care about your injuries" than the smallest cap lawmakers can pass.  The gold standard.

Of course lawmakers, doctors and hospitals are concerned with the severity- the actual cost- of resolving malpractice claims.  Who cares about the severity of the injured individual.  That is of no concern to these lawmakers, the doctors or hospitals, or most importantly, the insurance companies.  The severity of how much they may have to pay for their malpractice is of the greatest, and only, concern.

The article goes on to discuss 2 key developments for the rise of monetary awards to injured people since 2006.  First is plaintiffs' attorneys pushing courts to award severely injured patients "outsized life-care plans" which of course provide these severely injured patients money to pay for their care they need for the malpractice.

Heaven forbid we plaintiffs' attorneys request money, a damage we can ask for, to help these injured individuals pay for the enormous cost of medical care the individual will need for the rest of their life.  Please, lawmakers, pass a law that no one can become a plaintiffs attorney as a profession.

Trust me, depending on the age of the injured individual, life care plans are expensive because a lot of care is required, and SHOCKER, health care costs in USA are ridiculously expensive, even though it does not need to be.

Second, the article states, is that "plaintiffs' attorneys now concentrate on high-severity cases driven by catastrophic injuries and the potential for large awards."  Yes, this is true.  However, that is only because lawmakers have imposed caps on noneconomic damages, and sometimes total damages, in order to prevent plaintiffs' attorneys from pursuing cases that are legitimate cases because the damages are not enough.  Meaning, it would cost a firm more to pursue a claim in expenses than the case is actually worth.  That way, doctors can feel free to screw up and commit malpractice, but as long as they don't injure an individual too bad, they will get away with it because it will cost a firm more money to pursue the claim than the actual claim is worth.  Way to go lawmakers!

The article also notes that 43% of claim above $5 million dollars are obstetric in nature.  The article is very concerned about this and exclaims there is a need to stop such outrageous awards.

Want to know why those claims/ damages are so high?  Because a child is injured at birth and needs to be cared for for the rest of the child's life.  Considering mortality tables now have people living into their 70's, 70 years is a lot of time for a child, most of whom are severely injured at birth, to have to pay for health care costs the child is only incurring because of a doctor's malpractice.  Think about all the costs a child with a brachial plexus (shoulder/arm injury caused by a physician during a vaginal delivery) or cerebral palsy (due to lack of oxygen that could have been avoided if C-section done when it should have been or improper diagnosis of a fetal hear strip which shows baby not getting enough oxygen in utero) will have to expend during a lifetime?  It is staggering.  However, of course, the article exclaims these "outrageous" awards need to be diminished, and lawmakers should actively pursue tort reform on these issues.

Lastly, the article, predictably, expresses the need for more tort reform.  One way is to introduce caps or more stringent caps on damages, noneconomic or total caps.  If there are not caps, according to Rep. Eric Burlison of Missouri, injured patients will see it as a lottery and lawsuits will explode!  This ignores the facts that (1) lawyers will not file frivolous lawsuits for a number of reasons, and (2) getting injured through malpractice does not equal the lottery.  No individual goes into surgery, or for that matter is born in which the child has absolutely no choice about, thinking "I hope I get severely injured so I can get money.  I don't want to walk again.  I don't need that left arm anymore.  I don't mind being paralyzed, unable to see or unable to ever have sex with my wife or partner again.  I don't care about having a quality of life.  Please injure me doctor so I can get some money!"  This though/ reasoning by lawmakers promoting tort reform is absolutely ridiculous and insulting to injured individuals.

Tort reform is also necessary, apparently, because medical malpractice cases take too much of a judges time while on the bench.  Really?  Judges spend too much time doing their job?  For shame.  Also, the reason medical malpractice cases take a lot of time is the need for experts and their testimony.  A case cannot be proved without expert testimony in a medical malpractice claim.  A lot goes into expert testimony, not to mention having the expert find time to be deposed or be at trial considering that experts also have their own medical practice to attend to.

The article concludes by saying that tort reform is needed in medical malpractice claims because it is a "burden" on the judicial system.  This is absolutely insulting to those that are injured through malpractice.  How is an individual seeking justice, the whole point of our judicial system, a burden on the courts? The only burden is on those poor insurance companies who may have to do what the exist to do- pay a claim.  God forbid an insurance company have to pay a claim, instead of just taking money from those who pay for insurance, which by they way, includes doctors and hospitals.

Tune in for more on these and other issues.  Up next time… Medscape's "Malpractice in America: Is Anything Getting Better?"

Thursday, August 1, 2013

Lawsuits. More specifically, medical malpractice...

Lawsuits are a necessity.  Someone reading this would probably say "I bet you think that because you are an attorney."  But, that is not at all the case.  Lawsuits are another form of checks and balances.  It keeps individuals and corporations alike in line.  It also keeps lawyers in line.  And, most importantly, it keeps people safe.

Contrary to what corporate funded commercials would have you believe, the filing of frivolous suits is a complete rarity.  A filing of a frivolous suit can subject the lawyer who signed the Complaint to severe penalties.  Simply put, it is not worth the risk- both financial and to the lawyer's reputation.

But more to the point, there should never be a risk because why would a lawyer who swore to uphold ethical considerations ever file a frivolous suit?  (I know, I know, people choose to do wrong things).

Me personally, the risk of being sanctioned for filing a frivolous suit is 0% because I simply do not accept those cases from the beginning.  I tell those callers to take a hike and do not bother calling any other attorney to help you.  I value my reputation in the community and among other lawyers.

(Funny side note- I did have a potential call and say he found a bone in his soda.  He wanted to sue.  I asked if he had any injuries and how he knew a bone had been in his soda.  He told me he could see it through the bottle and it was still in there.  I said, no injuries, no case, see you later.  He called back a day later saying he swallowed a bone while drinking a soda and he was injured.  Wonder what ever happened to that guy).

Which brings me to medical malpractice lawsuits.  These suits get labeled frivolous the most and are often used as an example of why every state needs "tort reform."  (I think I wrote about tort reform in early postings, but I do not need to re-hash things now.  The very idea of tort reform makes me sick and gives me enough material to write about that subject whenever I feel like it).

Why is this so?  Well, doctors and medical care is a huge business in America.  Doctors, pharma companies that sell medicines through doctors and medical centers have a lot at stake, and a lot of money to lobby with for protections from lawsuits.

They are also able to create a lot of "junk science" reports, studies, etc., when they need to create some sort of defense to injured peoples' claims.  (For example, it is clear that brachial plexus injuries (which can leave the arm anywhere from somewhat functional to paralysis) are caused by a physicians force during labor.  So, a study was complied, "Lerner Study," to "show" that a mother's own contraction can be enough force during labor, absent force from a doctor, to cause a brachial plexus injury.  Now, defense doctors use this "study" to defend when a doctor has used to much forced and injured an infant.  Funny enough, while the doctor which the study is based on said baby was delivered without physician force and a brachial plexus injury occurred anyway, doctor's own notes indicate she used force during delivery.  The medical malpractice lawsuit against her settled just before trial).

But this all gets me to something interesting I came across on Medscape.  They conducted a study/poll of 3,480 U.S. physicians across 25 areas of practice on what the experience of being sued for medical malpractice is like.  40% of those surveyed, or 1,392 doctors, had been sued.

Most striking to me was the outcome to the question "Was the lawsuit result fair?"  62% of those doctors sued (835.2 doctors) believed that the lawsuit result was FAIR.  (I presume in my analysis that only doctors who have been sued answered all the survey questions.  The study was not explicitly clear on this, but it would only make sense).  Only 38% thought the result was unfair.

One doctor was quoted as saying that it was "my responsibility.  Parents had to sue to get financial relief for the burden of caring for their infant.  I understood that."

Now, the poll did relate that only 47% of malpractice cases ended with the plaintiff being awarded money compensation, whether through jury or settlement and that 35% of cases settled before trial, with only 2% of cases resulting in a jury awarding money to a plaintiff, but poll does not state what portion of the 62% that said result was fair was an award or settlement for the plaintiff.  However, I would presume that since 37% of the cases resulted in compensation for the plaintiff, that more than half of those doctors who thought it was a fair result had an award or settlement against them.

But for me, the biggest point is that even if a doctor settled or had a jury decide the doctor was negligent, some doctors still accepted that as a fair result.  One doctor went so far as to be quoted that he understood why he was being sued and accepted that.  He may not have agreed with the suit, but he understood why it was occurring and why it was necessary for the plaintiff to bring a lawsuit.

I am happy to see these numbers.  A decision to sue a doctor is never taken lightly and never done without a thorough review of the records.  In my practice, I decline medical malpractice cases way more than accept them, almost exclusively based on the fact that no doctor or nurse did anything wrong.  If we accept such a case, it is with a 100% belief, and knowledge, that medical malpractice occurred.

Also interesting were the results of the "Long-term Emotional and Financial Effects of the lawsuit."  63% had none.  The next biggest category is that 29% of doctors no longer trust their patients and treat them differently.  Only 6% left the practice setting.  However, if "Emotional" was not part of this poll, I firmly believe 94% (thus excluding the 6% that left the practice setting) would have answered "none" to long-term financial effects.

Why is that?  One, doctors have insurance, and insurance providers foot the bill and pay any award or settlement. (Same as if you had car insurance and caused an accident and injured someone).  No money out of the doctor's pocket.  Second, patients rarely look or rarely know that a doctor they are seeing has been or is being sued.  It is rarely reported in the news, as it is not that interesting.  Also, unless there is a jury trial (very rare) and the plaintiff wins (even more rare), the record simply shows that the matter was dismissed, regardless of whether the plaintiff was paid something or not.  So, a lawsuit has no effect on the doctor's business.

What I take from all of this is that even doctors recognize that most medical malpractice lawsuits are not frivolous and are a necessity for injured people to obtain compensation they need to care for themselves for the injuries they sustained.

Just like counting to make sure all instruments are accounted for before sewing someone back up after surgery, lawsuits act as a system of checks and balances to help keep patients safer.

Wednesday, June 19, 2013

Things to Know After an Accident...

This list is not all inclusive, but if you have been involved in accident while riding your bike (whether bike v. bike, car v. bike or defect in road/path), you should make sure to do the following, if you are able to do so...

- if physically injured at the scene, call 911 and seek immediate medical attention

- get the name, phone number, address and insurance information for the other vehicle operator

- locate any potential witnesses and get their contact information

- if you can, take pictures of the scene, the other vehicle, your vehicle (bike/car) and possibly your injuries at the time

- look around and see if any outdoor security cameras may have recorded the accident, a make a note of this information.  May need to contact these places to preserve the tape.  Usually tapes are kept for a short period of time before they are recorded over

- if there was a roadway defect, make note of the defect and take pictures of the defect

An accident can take many forms: bike v. bike, car v. bike, dooring (car door v. bike) or defects in the roadway and/or signage. Be sure to gather information as this may assist you in proving the fault of the other party involved in any accident.  Seek legal counsel soon after the accident to ensure your rights are preserved.

Wednesday, May 1, 2013

Senate Bill 22 Update...

Well, I got some information the other day, and it looks like Senate Bill 22 regarding the Collateral Source Rule will not be going any further.  This is absolutely great news for citizens of Wisconsin.

Thanks to those who voiced opposition to the bill.  Ironically however, it is probably not your voice that mattered too much.  The reason the bill appears dead is because the insurance companies spoke up in opposition to the bill citing an increase in insurance rates if the bill became law.

Only when the insurance companies spoke did legislators listen.  This highlights who the current government hears and listens to- businesses and corporations, not individual citizens.  While it is great that Bill 22 will not become law, it should be concerning that it took opposition from a corporation before legislators listened.

However, our elected officials are at it again.  There is a proposal seeking sponsorship to become a bill that completely guts Wisconsin's Lemon Law.  Such a bill would be a Consumer Burden Bill, because it puts all requirements on the Consumer to fulfill before obtaining a refund or comparable vehicle.  Even then, you may not get either.

Watch for a new post to follow on this issue with more detail and the proposed legislation.

The Biggest Variable...

Here is video of a motorcyclist hitting a cyclist.  Luckily, no one was seriously hurt.  That aside, from the video it looks as if the motorcyclist intentionally struck the cyclists because (1) motor man appears to have a clear view of the cyclists in front of him when the motor man comes around the corner and, (2) while the motor man may be sticking out his foot to stay upright, it looks more like the motor man kicks at the cyclist just before impact.

Just goes to show that you when operating a vehicle on the road (bike, car, motorcycle), no matter how safe you are operating, you still cannot control the biggest factor that leads to accidents- OTHER operators.

Stay safe out there!

Monday, February 18, 2013

My Email to Senator Vukmir...

I encourage readers of this blog to send the same to their representatives and also to those in the Senate Judiciary and Labor Committee: Sen. Grothman, Sen. Vukmir, Sen. Farrow, Sen. Risser, Sen. Harris.

Senator Vukmir,
I am writing to ask that you vote against Senate Bill 22 and any change to the collateral source rule.  This has been the law for a century in Wisconsin, and was recently unanimously upheld by the Wisconsin Supreme Court.  A change to this rule punishes those who purchase health insurance and benefits drunk drivers, inattentive drivers and other individuals who injure citizens of this state through negligent conduct.  Any change to the law in this area would effectively punish a citizen for buying health insurance.  Insurance attorneys will be able to submit to the jury what an insurance company paid based upon a discounted rate the insurance company has with a medical provider -- a rate which the citizen who purchased insurance has no say in whatsoever.  Discounted rates, instead of the full value of the medical bills, do not fully compensate an injured individual for their injuries.  In fact, under this bill, an injured person who has health insurance and/or disability insurance would receive less money for the same injury than someone who is negligent and never decided to obtain insurance.  It makes no sense.  Further, because of subrogation laws, it is entirely possible that any settlement or verdict an injured citizen receives would be recouped by the individuals insurance provider, thus leaving the insured without any compensation for their injuries, much less any reasonable compensation.  Again, it makes no sense.  Injured individuals need money to help with future medical care and to compensate him/her/children for injuries that were sustained entirely through someone else's fault.  I encourage you to do what you were elected to do-- help and protect the citizens of this state.  A vote against any change to the collateral source rule would accomplish this goal.  A vote for it would completely contradict your role as a Senator.
Please vote against any change to the collateral source rule.
Thank you for your time.