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The Medical Malpractice Crisis: A Fairy Tale Worthy of Chicken Little

Aug 1, 2009

As the children's fairy tale goes: One day Chicken Little was walking in the woods when an acorn fell on her head. "Oh my goodness!" said Chicken Little. "The sky is falling! I must go and tell the king."

Along the way, Chicken Little meets a number of friends who are taken in by her tall tale and join in the march to the king. In the end, however, the crisis is revealed for what it is, simply a figment of an overactive imagination.

Today, with the economy in shambles and healthcare being used as a political football, it seems, as a people, we have learned nothing from Chicken Little since the powerful (and well-financed) medical and insurance lobbies, and the politicians they support, have succeeded in scaring many into accepting the existence of a medical malpractice "crisis" that simply does not exist.

As the story goes, bloodthirsty trial lawyers have succeeded in bringing countless frivolous medical malpractice cases against innocent doctors and hospitals which, in turn, have gone before "runaway" juries that have awarded astronomical verdicts that are grossly excessive for the injuries suffered. This, of course, is used as the excuse for all of the following: (1) insanely high healthcare and insurance costs; (2) skyrocketing medical malpractice insurance premiums; (3) doctor's retiring early, giving up high-risk practices like obstetrics and orthopedic surgery, or fleeing certain states in order to practice where laws are more favorable to the medical profession.

If people were simply willing to look at the facts, however, they would not be taken in by the thoroughly unsupported claims of the financially involved special interests and see, for themselves, the sky is not falling. The following is an attempt to set the record straight, since the problem is not that there are too many lawsuits but, rather, that there is too much medical malpractice.

What is medical malpractice?

Medical malpractice is defined as a departure from good and accepted medical practice which results in injury (or death).  Proving such a "departure" to a jury, however, is a formidable task for even the best trial lawyer, however.  

Even cases that appear to be legitimate are routinely dismissed by judges or rejected by juries due to lack of evidence on the issue of malpractice. Before a doctor can even be sued for malpractice, a qualified medical expert must review all facts and records relating to the case and render an opinion that there is a viable claim. Many cases fail to make it past this initial threshold and never even make it to court. Of course, those who want you to believe there is a crisis never tell you this fact.

A medical malpractice lawsuit can only succeed if the injured party is able to prove all of the following:

 

  • The treatment rendered by the doctor or hospital fell below accepted standards.
  • An actual injury.
  • The negligence was, at least, a substantial factor in causing the injury complained of. (Many cases fail because the injured party is unable to prove "causation." Without the "link" between the malpractice and the injury, there is no case. Thus, a doctor may concede he was negligent in failing to diagnose a patient's cancer but claim the patient would have died even if he had.)
  • The claim was brought within the time allotted by your state's statute of limitations for medical malpractice. In many states, as a concession to the medical lobby, the time in which to sue for medical malpractice has been made shorter than for other types of negligence.

 

Medical malpractice is a serious threat to patient safety.

Ten years ago, the Institute of Medicine, a private non-profit institution, published a report entitled "To Err Is Human," which revealed that between 44,000 and 98,000 people, who are hospitalized in America, die each year from medical errors.  The fact is, however, no one really knows for sure how many medical errors result in death as they are often not properly reported or not reported at all.  According to a survey conducted by the National Patient Safety Foundation, 42% of people believed that they had personally experienced a medical error of some kind.

Death, however, is not the only outcome of medical error that patients need to be concerned about.  Many mistakes by medical professionals leave patients with serious, or even catastrophic (80% of claims involve significant injuries or death), injuries with dire consequences for the persons involved and their families. Irreparable, but all-to-common, mistakes include:

 

  • "Wrong-site surgery" - Where the wrong part of the body is operated on or the wrong limb, kidney, or breast is amputated.
  • Healthy newborn babies suffering irreparable brain or other neurological damage due to careless deliveries or a failure to properly manage high-risk pregnancies.
  • Failing to diagnose serious, but treatable, diseases which leads to preventable deaths or devastating injuries.
  • Failing to obtains a patient's "informed consent" by not advising a patient of the risks of a medical procedure or the availability of alternative treatments so that the patient is deprived of the ability to make a knowledgeable and informed choice as to whether to undergo the procedure at all or to opt for a different one.

 

Medical malpractice produces a much higher percentage of more severe injuries for several reasons.  First, the patient is already injured or sick to begin with, so any error in treatment carries with it additional risks. Second, medical malpractice cases involve people who are often not in a proper state of mind to debate the specifics of the treatment they are given. Even in sound state of mind, however, patients are likely to defer judgment to their physician due to the trust most people have in this kind of trained professional.

Physicians are not disciplined to the degree of other professionals such as attorneys and accountants. In fact, doctors who commit malpractice often keep their privileges at the very hospitals in which they committed their malpractice. Many times their malpractice goes unreported even though their superiors are aware of it and even though it has happened on numerous occasions. This is especially so when the doctor involved is the chief of a department or an established specialist. 

Another fact ignored by those who wish to shield the medical profession from accountability is the compelling evidence that medical malpractice has reached epidemic proportions. In Utah, for example, state officials found that in a five-year-period, 90,000 mistakes were made in treating hospital patients. In Pennsylvania, 10% of the doctors have lost or settled a malpractice lawsuit. In Canada, a recent study revealed 24,000 patients die in the hospital every year and tens of thousands are crippled, injured, or poisoned due to preventable medical errors.  In addition, Canadian hospitals have a higher death rate on weekends, which has been attributed to lower levels of staffing.  Many experts see these statistics as little more than the tip of the iceberg.

 

According to a 2002 study conducted by the Harvard University School of Public Health along with the Kaiser Family Foundation, 40% of Americans and 33% of doctors said that they or their family members have been victims of a preventable medical error. In addition, almost 30% of doctors claimed they had witnessed a serious error in the course of their work in the previous year.

 

In July 2004, HealthGrades, a Denver-based health care ranking group, published a study based on a national review of Medicare records. By using a comprehensive list of 18 Patient Safety Indicators (PSI), HealthGrades sought to discover a more realistic figure regarding the number of deaths (and injuries) attributable to medical error.  The results of this study were shocking:

 

  • The PSIs used by HealthGrades contributed to $9.3 billion in excess charges and 32,591 deaths in the United States annually.
  • Approximately 1.14 million patient safety incidents occurred among the 37 million hospitalizations of Medicare recipients from 2000 to 2002.
  • PSIs were more prevalent among medical admissions compared to surgical admissions.
  • Of the 323,993 deaths among patients who experienced one or more PSI from 2000 to 2002, 81% of those deaths were directly attributable to the PSI.

 

            The HealthGrades study projected that between 2000 and 2002 there were 195,000 deaths annually, a far cry from the 98,000 estimate given in the Institute of Medicine report. Clearly, the significant increase in the amount and severity of malpractice is at the root of the so-called "crisis."

 

Unjustified limitations placed on medical malpractice litigation have caused additional problems for people with legitimate claims. It is becoming increasingly difficult to find an attorney since most are unable to afford the high cost of litigating a medical malpractice case and, even if they have adequate resources, many states have substantially reduced the legal fees an attorney may recover only.  No other type of litigation places so many obstacles in the way of an injured person.

 

Medical liability insurance premiums are not unreasonably high

 

As a result of being insured, doctors are never in any real danger of being exposed to any personal financial liability as a result of their malpractice, yet they claim the insurance, which allows them to escape such liability, costs too much.  (It must be remembered that premium increases are based on the fact that money has had to be paid out for valid malpractice settlements and judgments and not because of any misdeeds on the part of a trial lawyer. Imagine if you had several serious automobile accidents and then attempted to convince your insurance company not to raise your premiums by arguing that the lawyers who represented the people you injured were really the ones at fault.)

 

It is also becoming commonplace (at the insistence of the medical industry) for serious medical malpractice cases to be settled by confidential agreements which allow the doctor (or hospital) and the insurance company to prevent the public from ever learning about either the settlement or the negligent conduct that led to it. Such settlements are voluntarily entered into because there was actionable malpractice which resulted in a serious injury or death and not because a trial lawyer did anything improper or took advantage of an innocent doctor or hospital.

 

These "secret" settlements prevent the public from knowing how many legitimate substantial medical malpractice claims are being brought. This makes it much easier for the medical lobby to justify its claim that malpractice premiums are too high. (Imagine if you could keep driving your car into pedestrians, have all of the claims against you paid by way of confidential settlements so that no one knew about them, and then complain to everyone that your insurance premiums are too high.) These confidential settlements never become part of the national or state-wide statistics relating to medical errors and settlement amounts. 

 

Doctors and hospitals enjoy far greater insurance protection than most other industries as individuals and the premiums reflect this heightened protection. In addition, the injuries caused by medical malpractice are usually far more serious than those suffered in typical negligence cases. Thus, the premiums must be proportionately higher. For doctors to argue that their premiums are too high is like the owners of the Empire State Building claiming that they should pay the same fire insurance premium as the owner of your corner newsstand.

 

Caps are not the answer

 

Placing arbitrary caps on the amounts that can be recovered for various injuries or death caused by medical malpractice would go against every concept of fair compensation developed by the courts and legislatures of every state over many decades.

 

The element of damages designed to place a value on an injured person's past and future pain and suffering (physical and emotional), and the "loss of enjoyment of life" he or she has suffered is the only award that attempts to restore a victim's life to some degree of normalcy. Since each person is unique, damage awards for the very same injury (and even death) vary widely from case to case and are the very reason for jury verdicts, which are based on the evidence submitted at trial. Caps are arbitrary and prejudice those who suffer the most serious injuries.  Caps on death cases are even more prejudicial since they severely limit the losses suffered by the survivors by not allowing a jury to project the monetary losses to the dead person's estate based on all of the evidence. 

 

Capping damage awards turns badly injured people (and dead ones as well) into nothing more than variables in an impersonal mathematical equation. This eliminates the most important dimension of personal injury law, namely, having a jury set fair compensation based on all of the evidence.

 

Why should someone paralyzed by the negligence of a doctor receive less compensation than someone paralyzed in an automobile accident? Is a leg amputated by a doctor's mistake any less of a catastrophe than a leg amputated by a defective chain saw? Each case should be fairly decided on the basis of the injury and the impact it has on the plaintiff's life. No case should be "discounted" simply because the person causing the injury is a doctor. Such a distinction is unconscionable. 

 

Studies show that doctors tend to believe capping damages on malpractice awards would solve their troubles. But the best evidence shows that although caps modestly constrain the growth of insurance premiums, they don't reduce the number of claims or address any of the fundamental pathologies of the system.

 

Bad doctors and bad reporting make for bad medicine.

            In January 2003, the National Practitioner Data Bank (NPDB) reported that just 5% of U.S. doctors are responsible for 54% of all malpractice. Yet even after a doctor has been found liable for malpractice, there is no guarantee that he or she will be penalized in any way with respect to practicing medicine.  In fact, only a small percentage of the worst doctors have their licenses suspended and even fewer have their licenses revoked.  The rest are either shifted around (similar to the way in which priests who were known to have abused children were simply transferred to other parishes) or move to another community in the same or another state. In any event, such "problem" doctors have no difficulty in continuing to practice medicine. Doctors have even been known to move to other countries in order to continue practicing medicine when their ability to do so in the United States has been compromised as a result of extremely serious infractions. 

 

It is well known in the medical profession itself that doctors are not always inclined to report their errors, or those of their colleagues, for a number of reasons. These include: (a) the desire to escape punishment; (b) the unwillingness to admit their negligence; (c) the belief that protecting a colleague will somehow ensure the same degree of loyalty from that person when and if the tables are turned; (d) fear of retribution from one or more superiors; (e) a reluctance to bring one's hospital into disrepute; and (f) sheer arrogance.

 

In one study it was found that over a ten-year period, 84% of Health Maintenance Organizations (HMOs) and 60% of hospitals failed to report medical errors to the government, allowing many health care professionals to literally get away with murder. Consider the case of Charles Cullen, a registered nurse who may have killed as many as 40 patients at 10 hospitals in New Jersey and Pennsylvania over the course of 16 years. Although Cullen was investigated on a number of occasions with respect to misusing potentially lethal drugs and was fired or allowed to resign from a number of hospitals, he was permitted to "hopscotch" from hospital to hospital without the slightest difficulty.  

 

Money is also part of the problem since no medical facility wants to get rid of a good earner and, as luck would have it, doctors with disciplinary problems are often among the top moneymakers at their given hospitals.  Doctors who are income producers are praised for their ability to provide a steady patient stream to the hospital. In return, many avoid punishment for any questionable practices resulting in preventable medical errors.

 

In this regard, consider the chilling case involving Redding Medical Center in California. One cardiologist there was responsible for making this small, rural hospital one of the most lucrative business enterprises for its owner, Tenet Healthcare. Unfortunately, the doctor was only able to do this by intentionally making false diagnoses of heart-related problems so he could justify performing hundreds, if not thousands, of unnecessary procedures and surgeries.

 

While other staff members were suspicious of the goings on at the hospital, their concerns were dismissed by their superiors until the scheme was exposed by a patient who sought a second opinion after being told he needed emergency triple bypass surgery. A highly qualified cardiologist was shocked by the diagnosis and told the patient that his heart was in perfect shape.  Federal agents raided the hospital and Tenet was eventually forced to pay $54 million in penalties for the unnecessary heart procedures.

 

The truth about medical malpractice verdicts  and settlements.

Despite the hysterical claims of politicians, insurance companies, and the medical profession, doctors are not being sued for every minor error they make. In fact, most malpractice cases are rejected by attorneys because: (1) there is no malpractice, no injury, or no connection between any malpractice and the alleged injury; (2) they are too small; or (3) they are beyond the statute of limitations. Moreover, as researchers have found, the vast majority of people who are victims of medical errors simply do not sue. The public is never told any of this. 

 

Significantly, most of the cases that are not settled and actually go to trial result in verdicts for defendants. There are also many instances when a settlement is not accepted and a jury returns a damage award for less than the settlement that was offered.  Thus, out of court settlements, which are voluntarily entered into by the insurance companies, doctors, and hospitals, are actually more responsible for an increase in the cost of malpractice insurance than are jury verdicts. 

 

Moreover, when a truly excessive verdict is awarded, it is never actually paid.  The law provides many protective measures which prevent all defendants from excessively large damage awards. So, while the media is quick to report on extremely large verdicts, it almost never follows up on the subsequent events surrounding the case which almost always include a substantial reduction of the award by the trial judge or an appellate court, a new trial, or an outright dismissal by the court because of a failure of proof.

 

In every state, there are well-established standards in place for the review of damage awards by the trial judge as well as by one or more appellate level courts. In some states, the standard is whether the verdict "shocks the conscience" of the court, while in others it is whether the award "deviates materially" from awards for comparable injuries. Regardless of the standard used, however, no state is without significant checks on verdicts that exceed what is fair compensation. In fact, trial and appellate courts frequently increase damage awards in cases where the juries return verdicts that are too low for the injuries suffered.

 

Routinely, trial and appellate courts in every state drastically reduce large verdicts and even dismiss cases that have already proceeded to verdict. Moreover, most questionable cases, or those not supported by adequate expert medical opinion, are dismissed before they even reach trial through what is known as summary judgment.

 

Runaway juries are not a problem. In fact, juries often award a plaintiff less money than what insurers and doctors are offering in settlements. In 2000, the NPDB revealed that the median payment for a victim was only $125,000 and not the $1 million median which was reported by Jury Verdict Research, which is a private source.  Even verdicts which start out higher than the proposed cap of $250,000 are reduced to a median of $235,000 when the case is finally concluded.  More recent surveys have confirmed this very same fact.

 

Thus, while there is no question that juries sometimes return shockingly high verdicts (even in non-malpractice cases), the chances of such a verdict surviving is zero. That's right, zero. The public is never told this either. Runaway juries are the stuff of movie plots. In reality, however, they simply do not have any relevance.

 

Anyone with any sense must also stop and ask themselves the following questions:

 

  • How is it the trial lawyer's fault if a court reviews a verdict and reduces it to an amount it then approves? The lawyer has no control over this and the amount is one set by the court.
  • How is it the trial lawyer's fault if the doctor or hospital and the insurance carrier involved in a case voluntarily offer the plaintiff the very amount of money a case is settled for? Are they paying a plaintiff for malpractice that never really happened? No one could believe that.
  • Does anyone really believe that insurance premiums are based on what trial lawyers obtain for their clients by way of settlements or judgments? Is it not more likely that insurance premiums are based on the damages caused by the policy holders who commit the actual malpractice?  Of course it is.

 

We also ask our readers to consider that several state legislatures have already made many significant concessions to the medical lobby over the years including:

 

  • Passing shorter statutes of limitations specifically for medical malpractice cases. This reduces the time in which injured parties may bring their cases. No other class of defendants has ever been given such favored treatment.
  • Requiring a certification by a medical expert before a plaintiff is even able to commence a law suit for medical malpractice. No other type of litigation requires this.
  • Substantially reducing attorneys' fees in medical malpractice cases only.
  • Requiring plaintiffs to offer expert proof establishing the viability of their case before going to trial in order to avoid a dismissal of their claim.
  • Requiring a plaintiff's case to be dismissed at trial regardless of how much evidence of malpractice there is unless the plaintiff's case is also supported by expert medical proof.

           

It is time for American's to consider who is really behind the push for tort reform. Ask yourself why any politician would favor the position of a few well-funded special interests over the rights of the very people who voted him or her into office. Consider the evidence that shows the medical, pharmaceutical, and insurance lobbies are asking Americans to believe something that is simply not true and making it appear as if there is a crisis when, in fact, no such crisis exists.  

 

Imposing a cap on conscious pain and suffering and otherwise restricting an injured person's right to sue those who have caused his or her injuries would be giving away a fundamental right that is necessary to ensure the protection of everyone in our society. It would also be allowing pharmaceutical companies, medical device manufacturers, insurance companies, and doctors and hospitals to avoid accountability for their negligence and malpractice. This is an extraordinary right no other class of defendants has ever been granted.

Medical liability and accountability have actually improved patient safety by leading to better risk management practices in hospitals and by improving safety standards followed by surgeons, anesthesiologists, and obstetricians. As one expert aptly stated: "When it comes to rising medical costs, liability is a symptom, not the disease. Getting rid of liability might save money for hospitals and some high-risk specialists, but it would cost society more by taking away one of the few hard-wired patient safety incentives."  (New York Times, July 12, 2009, Op-Ed article, "Liability = Responsibility" (Tom Baker, professor at the University of Pennsylvania Law School and the author of "The Medical Malpractice Myth").

So, the next time someone tries to convince you there is a medical malpractice crisis by simply saying so, remember the tale of Chicken Little and ask them to actually defend their position by answering the questions presented above. You will quickly find that the sky is not falling.  

If you believe you or a loved one has suffered an injury as a result of medical malpractice, using a defective medical device, or from taking any pharmaceutical product please contact Parker Waichman LLP at: www.yourlawyer.com for a free case evaluation.

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