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  The author(s) then note that "65% of malpractice claims are dropped, dismissed, or withdrawn; 24% of cases are settled; and only 7% result in a verdict.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?"