Malpractice Insurance Premiums Have Skyrocketed. Special interest groups argue that malpractice insurance premiums have skyrocketed because personal injury awards for conscious pain and suffering have gotten too high. They claim these large awards are often attributable to “runaway” juries, and are not justified by the facts. Frivolous law suits are also blamed for much of the medical malpractice “crisis” we are told exists in the U.S.
The conclusion this view of the problem produces is that good doctors are giving up their practices because they cannot afford insurance and fear being sued when they haven’t done anything wrong.
As several states consider legislation that would “cap” medical malpractice awards or otherwise limit an injured party’s right to recover, the battle lines are becoming somewhat blurred because the evidence simply does not support the anti-litigation faction.
Study after study as well as state insurance records and other statistical evidence have shown that medical malpractice premiums do no bear a direct relationship to the number or size of jury awards or settlements and that the number of large awards are actually decreasing in many jurisdictions.
When one considers malpractice in the generic sense (doctor, hospital, nursing, and specialties like dental, podiatric, and HMOs), the evidence is quite compelling that the medical profession is causing its own problems for which attorneys are seeking to hold it responsible.
Start with one simple truism. Lawyers never commit medical malpractice, they only sue for it. With that in mind, consider the following facts.
It fashionable to side with the physicians and the powerful (and affluent) medical and insurance lobbies that seek to impose limits, or caps, on awards for conscious pain and suffering in medical malpractice cases.
The easy targets for the doctors and politicians are the trial lawyers who are actually the only ones protecting the rights of injured people from what is unquestionably a “crisis” in medical malpractice.
The crisis, however, is not in the size of the awards being given to injured people as the public is being asked to believe. Rather, the crisis is the virtual tidal wave of medical malpractice that is occurring every day in America.
There are numerous fallacies in the tort law reform arguments and extensive evidence being ignored by those who seek to restrict the rights of people who are severely injured by medical malpractice.
Medical malpractice is a departure from good and accepted medical practice which results in injury. Proving that such a “departure” took place, however, is a formidable task.
Many cases that seem legitimate are thrown out 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.
Once a case actually becomes a medical malpractice lawsuit, it can only succeed if it meets all of the following conditions: (1) the plaintiff must prove that the treatment rendered by the doctor or hospital fell below accepted standards; (2) there is an actual injury; (3) the plaintiff proves the negligence (of omission or commission) caused an injury and that would not have otherwise occurred. (Often, a medical malpractice case will fail because the plaintiff is unable to prove “causation.” Thus, doctors often concede their malpractice and then argue that it did not matter since the patient would have suffered the same “injury” anyway. For example: A doctor may concede that he was negligent in failing to diagnose the plaintiff’s cancer but claim that the patient would have died even if he had.); and (4) the claim must be brought within the time allotted by the applicable statute of limitations for medical malpractice. (This varies dramatically from state to state as well as between private and public medical facilities. In addition, many states have made the time in which to sue for medical malpractice significantly shorter than that allowed for other types of negligence.)
In 1999, 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.
Medical error can be defined as “the failure of a planned action to be completed as intended or the use of a wrong plan to achieve an aim including problems in practice, products, procedures, and systems.” 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.
In addition, statistics on medical errors are usually based on hospital admission data, completely ignoring medical errors which take place in a doctor’s office, nursing homes, or other smaller medical facilities.
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. Medical malpractice produces a much higher percentage of more severe injuries for several reasons.
First: The patient is usually in weakened condition to begin with so even a slight error, which would perhaps go unnoticed when treating a healthy individual, can cause them permanent injury, illness, or even death.
Second: Medical malpractice cases involve people who are often not in a proper state of mind to debate the specifics of the treatment that 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.
While hospitals are capable of being ranked in terms of the quality of care they provide and are subject to inspection, investigation, and may be penalized by various government agencies in most states, physicians who make mistakes usually escape any such scrutiny.
They are rarely disciplined, suspended, or barred from practicing medicine as a result of their malpractice. They 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 that is simply ignored by those who wish to protect the medical profession from its own high degree of negligence 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, one in ten doctors has lost or settled a malpractice lawsuit. In Canada, a recent study revealed that 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. Most experts, however, 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, four out of every 10 Americans and one out of every three doctors said that they or their family members have been victims of a preventable medical error. In addition, almost 30% of doctors claimed that they had witnessed a serious error in the course of their work in the past year.
Research on the issue began at Harvard University in the 1990s after the high-profile case involving the death of Boston Globe reporter Betsy Lehman from a chemotherapy overdose. Massachusetts is known for having one of the best systems in terms of requirements for reporting medical errors.
In July of 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 Patient Safety Indicators (PSI) including accidental puncture or laceration, failure to rescue, and selected infections due to medical care, 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 nothing short of shocking:
• The 18 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 IOM report.
Pressure from the powerful and extremely well-funded medical, pharmaceutical, and insurance lobbies has conservative lawmakers pushing hard for tort reform including placing limits, or caps, on the amount that a plaintiff can receive for conscious pain and suffering, the most important element of damages in most medical malpractice actions.
There has also been a clear trend toward protecting HMOs, medical device manufacturers, and pharmaceutical companies from being sued under any circumstances and regardless of their negligence.
Although some claim that “trial lawyers,” “frivolous” lawsuits, and “runaway” juries are the cause of the increase in medical malpractice premiums and the number of lawsuits, the evidence is that no such connection exists.
Rather, it is the significant increase in the amount and severity of the malpractice itself which is at the root of the so-called “crisis.”
The unjustified limitations being placed on medical malpractice litigation have caused additional problems for people who have legitimate claims. It is becoming even more difficult to obtain an attorney to represent a victim of malpractice since many attorneys are unable to afford the high cost of litigating such cases.
Even if an attorney has adequate resources, the average cost of a malpractice case, which can range anywhere from $25,000 to $50,000 or more, prevents attorneys from even accepting otherwise good cases simply because of their limited value. No other type of personal injury litigation is so unduly undermined by arbitrary restrictions placed on the injured party.
Doctors, who, as a result of being fully insured, are almost never exposed to any personal financial liability as a result of their malpractice, are claiming that the insurance which allows them to escape such liability costs too much.
In some locations, doctors have even gone on strike, claming that they cannot afford to pay the rising premiums which are meant to protect them as individuals from dealing with potentially expensive and career-ending lawsuits for malpractice.
In addition, many of the most serious medical malpractice cases are settled by confidential agreements which allow the doctor (or hospital) and the insurance company to prevent the public from learning about either the settlement or the negligent conduct that led to it.
Again, 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 are forced on injured plaintiffs by the doctors and insurance companies. Obviously, an attorney would like to publicize his victory and the injured party would like to let others know about the doctor or hospital involved.
The insurance industry and medical profession, however, prefer to demand confidentiality because it prevents an accurate account of how many successful medical malpractice claims are being made and it prevents some of the largest settlements from becoming public knowledge.
This practice 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.
Finally, these confidential settlements never become part of the national or state-wide statistics relating to medical errors and settlement amounts.
Doctor’s and hospitals unquestionably 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 the corner newsstand.
The element of damages designed to place a value on an injured party’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.
In almost every case, however, money will never be an acceptable substitute for what the victim has lost or for the enormous suffering the victim has suffered and will continue to suffer. To “cap” this element of damages does every person injured by medical malpractice a grave injustice.
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.
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.
This routine lack of accountability for medical errors is the main reason why they remain so prevalent and continue to be a threat throughout this country and the world.
In 2001, the Joint Commission on Accreditation of Healthcare Organizations announced certain standards for medical practice in hospitals in the United States including working actively to prevent medical errors, designing patient safety systems, and encouraging and acting on internal reports of errors. Unfortunately, creating a standard and actually having doctors follow it are two entirely different matters.
In the last decade, 84% of Health Maintenance Organizations (HMOs) and 60% of hospitals failed to report medical errors to the government, allowing many health care professionals literally to get away with murder.
Such disregard of reporting requirements is as close to having a “license to kill” as you can come without being James Bond. Consider the ongoing case of Charles Cullen, the 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 Mr. 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.
Although the penalty for failing to report errors may include the removal of legal protections from the government, this penalty is rarely imposed.
While information on incompetent doctors is supposed to be listed in the NPDB, oftentimes reportable incidents fail to make it any further than the hospital they occurred at.
The doctors involved are simply given a slap on the wrist and then permitted to return to their duties. A new debate has arisen as to whether the information on the NPDB should be available to the public.
Of course doctors are strongly opposed to such an idea, claiming that once a malpractice claim is filed, their record will be tainted even if that claim is unsuccessful.
DOH Has Been Criticized For Failing To Revoke Medical Licenses In Appropriate Situations
In New York, the Department of Health (DOH) has been criticized for failing to revoke medical licenses in appropriate situations. One cause of this, however, may be the fact that New York City hospitals have been repeatedly cited as being the worst in the state for reporting medical errors, even those resulting in death, to the DOH.
In 2001, the state Commissioner of Health, Dr. Antonia C. Novello, stated: “People are not unemployable just because they have made a mistake, but when you break the trust of the public good, I don’t think you should be able to practice.”
Yet doctors who have made mistake after mistake are still practicing and still making preventable medical errors. In fact, more than 75% of doctors who were disciplined in the past 8 years began working again after they were punished by the state.
What is missing here is a clear and concise plan explaining how hospitals should handle problematic doctors and preventable medical errors. Also missing is a uniform system which provides information on previously disciplined medical professionals so that subsequent employers are aware of their past record. Such a system would have saved many patients from being killed by Charles Cullen in New Jersey and Pennsylvania between 1987 and 2003.
As is often the case, money is also part of the problem. Simply stated, 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 third of moneymakers at their given hospitals.
Doctors who are consistent and plentiful income producers are often praised for their ability to provide a constant patient stream to the hospital while actually avoiding punishment for any questionable practices resulting in preventable medical errors.
In this regard, consider the chilling situation that occurred at Redding Medical Center in California. One particular cardiologist was single-handedly responsible for making his 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 in order to 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 one patient, a 55-year-old reverend, who sought a second opinion after he was 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.
This, however, does not change the fact that this single doctor was a staple at the Redding Medical Center for almost two decades and was being protected by his superiors who were only concerned with the enormous annual revenue he produced and not the quality or legitimacy of his practice.
Awards for conscious pain and suffering represent compensation for what was taken away from the victims in terms of their ability to enjoy their lives and for the ensuing nightmare that is a direct result of a medical error.
Is a maximum award of $250,000 really sufficient? In many cases, that sum is pitifully inadequate.
What if a child is brain damaged at birth and, as a result, has his or her entire life snatched away. No childhood experiences, no joy of growing up, no teenage romances, no college memories, no first job, no wedding day, no family of his or her own, no golden years, and no human dignity. Can $250,000 replace all of that?
Is that sum enough to compensate a 17-year-old girl for everything she will no longer be able to do if a medical mistake paralyzes her below the waist?
In the following cases could anyone truly justify a $250,000 limit for the conscious pain and suffering and the loss of enjoyment of life these people suffered and will continue to suffer for the rest of their lives:
Jesica Santillan was a 17 year-old girl from Mexico who was smuggled into the United States to receive treatment for a life-threatening heart condition. She waited three years for a donor heart and lungs to be found. When the heart and lung transplant, which was supposed to save her life, was finally performed, her condition only worsened.
It was then discovered that the heart and lungs she received did not match her blood type. Jesica required a second transplant operation two weeks later but the damage to her brain and other organs was irreparable. Jesica experienced brain damage and kidney failure, was ultimately declared brain dead, and removed from a respirator.
After this tragedy, Duke University Hospital, which admitted it had made an inexcusable medical mistake in cross-checking blood types, initiated a three-person verification system to ensure that the blood type of the donor and recipient match.
This error, however, wasted two donor hearts and four donor lungs, caused a young girl to lose her one chance at a normal life, inflicted two weeks of unimaginable pain and suffering on the child including the need for a second transplant operation, and it killed her.
A 67-year-old man named Hurshell Ralls went into surgery for bladder cancer and, while under anesthesia, the surgeon removed his penis and testicles because he concluded that the cancer had spread to the penis.
No one had ever discussed the possibility of such radical additional surgery with Mr. Ralls who was shocked to learn what had happened to him at a time when he was unable to make a conscious decision about the removal of his penis and testicles.
Later, after examining a tissue sample, another doctor concluded that Ralls never had cancer of the penis.
In May of 2002, Linda McDougal was diagnosed with breast cancer and underwent a double mastectomy at the United Hospital of St. Paul Minnesota. After the surgery, McDougal was told that she had never had cancer. Apparently, her slides had been mixed up with those of another patient.
A woman taking Prempro, a HRT drug associated with serious adverse effects, began experiencing severe migraine headaches. She went to a hospital emergency room where the doctor on call prescribed a migraine medication called Midrin as well as a blood pressure medication when he noticed her’s was elevated.
A few days later she experienced a minor hypertensive stroke and went back to the hospital but was released without any new diagnoses.
Finally, after two more hypertensive strokes, a CT scan revealed that the woman was bleeding in one area of her brain due to the fact that both Prempro and Midrin had elevated her blood pressure to dangerous levels and no one had caught this prescription error.
A perfectly healthy newborn baby was placed in a defective incubator which was cold and which caused the child to suffer permanent brain damage. Another healthy newborn suffered brain damage when a doctor allowed the baby to slip from his hands and land on its head.
A woman was undergoing gynecological surgery when she awoke in the middle of the operation. She was in terrible pain and had to be restrained until additional anesthesia was administered to her.
As a result she suffered a severe back injury. It was later discovered that her anesthesiologist was a drug addict who had been stealing and then using doses of anesthesia intended for his patients. As a result, those patients were under-anesthetized during surgery.
In 2005, The New York State Health Department announced it was launching an investigation into what happened at Phelps Memorial Hospital Center in Sleepy Hollow, New York, where surgeons removed a man’s perfectly healthy kidney instead of his cancerous one.
The patient was left with only one diseased kidney which also needed to be removed to prevent the spread of the cancer. As a result, the patient will need constant dialysis and a kidney transplant in order to survive.
While one would hope these types of horrific mistakes were rare, the truth is they are not. From 1985 to 1995 alone, the Physicians Insurers Association of America (PIAA) counted 225 claims for wrong-site surgery by its 110,000 doctors in the United States. Also consider the following cases:
In 1995, at Tampa’s University Community Hospital, a surgeon amputated the wrong leg of 51- year-old Willie King. The 59-year-old mother of a prominent Indian film star was brought to Sloan-Kettering Cancer Center in New York to have a malignant brain tumor removed. The neurosurgeon operated on the wrong side of her brain. The woman now suffers from severely impaired vision and no awareness of her left side. (Washington Post, 7/25/95).
A surgeon at Butterworth Hospital in Grand Rapids, Michigan, cut off the wrong breast of a 69-year-old cancer patient during a mastectomy. (USA Today, 3/27/95).
A surgeon in Boston removed the wrong kidney from a patient after failing to check x- rays that would have revealed this tragic error. (Boston Globe, 6/1/96).
Other examples of egregious malpractice are there to be found if only the skeptics would bother to look.
In 2005, following an emergency hearing before the Massachusetts Board of Registration in Medicine, Dr. Michael R. Brown, a Cape Cod physician, lost his medical license on the grounds that he wrote an incredible number of prescriptions for the powerful painkiller, OxyContin.
The doctor also faced criminal drug possession charges for allegedly buying back painkillers he had prescribed to a patient.
Dr. Brown, who became known as “Dr. Feel Good,” wrote so many prescriptions for OxyContin in 2004 that it is estimated he single-handedly accounted for approximately 300,000 of the 923,000 tablets sold in the entire state for the year. Many of the prescriptions deemed to be excessive were to children.
Nancy Achin Audesse, executive director of the Board, said that although Brown had been required in 2001 to take courses in pain management, he continued to over-prescribe OxyContin. This resulted in the emergency action by the Board which believed Dr. Brown posed “an immediate and serious threat to the public safety and welfare.”
California surgeon, Dr. Terry L. Sanderfer, has a lucrative practice specializing in weight-reduction surgery. Unfortunately, he has also been sued more than 20 times for gastric-bypass surgeries gone wrong.
In fact, according to public records and the doctor’s own accounting, 13 of his gastric-bypass patients have died from complications stemming from surgeries he performed.
The Medical Board of California began proceedings to revoke Sanderfer’s medical license for a host of reasons including delayed treatment or failing to act promptly after problems arose, failure to adequately evaluate patients before and after surgery, keeping incomplete or illegible records, and abandoning the care of his patients.
These charges are in connection with the treatment if 11 gastric-bypass patients, including six who died following surgery.
Dr. Sanderfer performs surgeries at Corona Regional Medical Center, Riverside Community Hospital, and Parkview Community Hospital. Over $1.2 million has been paid to settle three medical malpractice claims against Sanderfer.
In 2004 federal criminal charges were brought against an eye doctor from Burlington, Vermont, who was accused of performing unnecessary cataract surgeries on several former patients and billing health insurance programs for them.
Up to 50 of these former patients were expected to testify against Dr. David Chase, who faced 80 counts of health care fraud and making false statements, and is charged with cheating health insurers out of more than $1 million they paid for the unnecessary operations.
The alleged activities took place between 1996 through July 2003. Chase’s medical license was suspended in July 2003.
Following a joint investigation by the Vermont attorney general, the FBI, the Inspector General of the U.S. Department of Health and Human Services, and the U.S. Attorney, Chase was indicted by a federal grand jury in 2004.
The indictment charged that, in his last year of practice, Chase performed cataract surgeries on over 210 patients, 30% of whom had normal vision before the surgery.
He was also accused of overstating the severity of patients’ cataracts, using vision tests to exaggerate how bad patients’ vision was, recommending and performing needless surgeries, as well as making up false medical reports and diagnoses to support the unneeded surgeries.
The U.S. Attorney, David Kirby, said the federal government planned to call over 60 witnesses, including some 30 former patients and many local doctors who treated some of those patients after Chase operated on them.
Chase was also facing a $1.22 million civil lawsuit from state and federal authorities, 136 charges of unprofessional conduct filed by the state Medical Practice Board and numerous lawsuits from his former patients.
In 20005, Dr. Gregory Hogle, a 56-year-old ear, nose, and throat (ENT) specialist, was arrested at his Denver office on a charge of manslaughter over the death of a patient whose breathing-tube he had taken out.
According to an arrest warrant affidavit, the family of Hogle’s patient, Khusni Yusupova, age 46, took her off life support two days after she had suffered complications when Hogle removed the tube.
The doctor freely admitted that he removed the tube without reviewing the patient’s medical records, which were brought to her appointment. According to the affidavit, Hogle told police that he made a “serious mistake.”
“She did need the tube for her airway … because she had an obstructed airway, it means she did need the tube and I made a mistake.”
Assistant District Attorney Diane Balkin believed that criminal charges were warranted because “Dr. Hogle had access to information relating to Ms. Yusupova’s condition, which he refused to review,” the affidavit says.
Court records show that Dr. Elizabeth Aronsen referred the case to Hogle after concluding Yusupova likely needed surgery to repair a blockage. She sent images of the blockage with the medical records.
But according to Hogle, confusion ensued when the patient was accompanied by a woman who had trouble translating from Russian to English.
As a result, based on his examination alone, Hogle decided to remove the breathing tube. Court documents show that the patient later went to a hospital but before doctors could reinsert a tube, she suffered respiratory arrest and irreversible brain damage.
As reported in the Denver Post: “Criminal charges resulting from medical treatment are rare, but not unheard of. In a highly publicized case, a Denver anesthesiologist was charged with manslaughter after prosecutors alleged he fell asleep during a routine surgery in 1993 at St. Joseph Hospital. The patient, an 8-year-old boy, died during the operation.”
After two manslaughter trials, that doctor was convicted of a misdemeanor. On appeal, the conviction was thrown out. The doctor was stripped of his medical license.
The Post article also reported that in 1997, “three nurses were indicted on charges of criminally negligent homicide after a lethal dose of penicillin was given to a day-old baby at St. Anthony Hospital North.”
As reported by The Charleston Gazette only a week ago, an expert review of 21 spinal surgeries performed by Dr. John Anderson King in 2002 and 2003 at Putnam General Hospital found 13 of the operations to have been partly or completely unnecessary.
The analysis of King’s surgical records regarding those 21 operations was conducted by Dr. Edgar Dawson from the University of California at Los Angeles.
In his report to Putnam General, Dr. Dawson wrote: “It was my opinion that 13 of 21 patients, based on my review of the preoperative studies, were subjected to, in part or in total, to unnecessary surgery.”
Dawson concluded that King’s surgery on one patient “was unnecessary” and that an operation on another patient “was not justified because, according to the MRI [test], there was no pathology in that area of the spine.”
Although some of Dawson’s findings were challenged during a peer review session by Dr. Patrick Ryan, a former instructor of Dr. King at Jackson Hospital in Montgomery, Alabama, those differences of opinion were never explored further at a planned second hearing since it was never held and King never testified on his own behalf.
Based on the evidence it had, the hospital suspended King’s operating privileges on June 3, 2003. Shortly after, King left Putnam General and surrendered his osteopathic license in August 2003. The license was formally revoked by the West Virginia Board of Osteopathy on Feb. 27, 2004.
King’s medical licenses in Florida, Georgia, Michigan, New Jersey, Ohio, Pennsylvania and Texas were also revoked or surrendered.
In July or August 2004 King left West Virginia. The West Virginia Board of Osteopathy has been unable to get in touch with him.
Over 100 of King’s former patients, a large number of whom underwent spinal surgery, have filed medical malpractice suits against him and Putnam General.
Dawson’s critiques of King’s surgeries appear in a Michigan Bureau of Health Professions document. It is available on the Ohio medical board web site.
In 2005, as a result of an ongoing federal investigation, a Scottsdale, Arizona, doctor had his medical license suspended by the Arizona Medical Board. He is suspected of writing thousands of illegal prescriptions for human growth hormones and other controlled drugs.
An affidavit submitted by federal authorities in support of an application for a search warrant alleged that between November and April, 2005, Dr. David A. Wilbirt wrote 3,879 prescriptions for controlled drugs. He has been implicated as being part of an online prescription drug ring operating nationwide on the Internet according to the Drug Enforcement Administration (DEA).
Based upon these serious allegations, the Board voted unanimously on August 30 to suspend Wilbirt’s license for “unprofessional conduct.”
On November 18, 2005, the Joplin Globe (Missouri) reported on a mind-boggling case of alleged medical malpractice that was on trial in that city. Rather than paraphrase the article by Jeff Lehr, we will let his words speak for themselves:
”Janell Harris recalled how she had prepared a blanket and pad to catch a young mother’s first-born child in a breech delivery almost nine years ago at McCune-Brooks Hospital in Carthage.
”Having ruptured the mother’s membrane, Dr. John Torontow was having trouble pulling the baby boy from her womb by his legs, the former emergency-room nurse recalled…in a Carthage couple’s malpractice lawsuit against Torontow.
”’He said to me, ‘My God, the cervix has closed down on the head,’ Harris told the court.
”As the doctor pulled and the mother pushed with the assistance of another nurse, the skin on one of the baby’s thighs suddenly peeled off to the knee, Harris testified. Finally, the baby slipped out and fell to the floor along with the placenta, she said. The head of the child was still in the mother.
”Harris said she scooped up the body and stuck it in a drawer to get it out of the sight of the mother and a sister-in-law who was present.
”’I wouldn’t want to see it (if I were them),’ she explained to the court. ’I didn’t want to see it. It just made me sick to my stomach.’
”Harris acknowledged on direct examination that what happened on Jan. 11, 1997, in the Carthage hospital’s emergency room was the ’most devastating’ experience of her nursing career. She told the courtroom that she and the other nurse involved in the delivery had cried together afterward in the nurses’ lounge, and that Torontow had cried as well.
”The plaintiffs maintain that Torontow pulled so violently on the baby’s legs that he decapitated him.
”They maintain that he should not have attempted a breech delivery that he did not have the skills to perform at a hospital that was not equipped to deliver and care for a premature child. They claim he was negligent in failing to slow the mother’s labor and arrange for her transfer to a hospital with obstetricians; in failing to order an ultrasound in a timely manner to diagnose a breech delivery; in failing to document adequately the events of the delivery; and in failing to communicate to the patient and her family the risks of delivery in the emergency room at McCune-Brooks.
”The defense maintains that the child had died in the mother’s womb before she ever reached the hospital, and that Torontow did nothing wrong…”
“Well, I [the husband] just went in and held her hand, and she told me, crying, that they had killed our son,” he testified through the interpreter.
”He said he was not told until later that the baby had been decapitated. He said he never got to see his son.
”’I felt very sad,” he testified. “It’s just like every father. There’s a special thrill in knowing you are going to have a son.’”
The foregoing demonstrates that notwithstanding the often hysterical claims of politicians and lobbyists to the contrary, doctors are not the victims of blood-thirsty trial lawyers, runaway juries, or unfair verdicts and settlements.
They are actually being called to answer for their own acts of malpractice. They are certainly not being sued for every little mistake they make. Most malpractice cases are turned away by attorneys.
This is because there is no malpractice, no injury, or no connection between any malpractice and the alleged injury. Other cases are rejected simply because they are too small. Many are rejected because they are beyond the statute of limitations.
The vast majority of people who are victims of medical errors, however, simply do not sue. Significantly, most of the cases that are not settled and actually go to trial result in verdicts for defendants.
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 is full of protective measures which prevent 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 often include a substantial reduction of the award by the trial judge or by an appellate court, new trials, or outright dismissals by the courts because of a failure of proof.
Runaway juries are also not the 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.
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?
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?
The legislatures of many states have already made other significant concessions to the medical lobby over the years including:
• Passing shorter statutes of limitations specifically for malpractice cases. This reduces the time in which injured parties may bring their cases. No other class of defendants has 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.
All that can be seen from the above is that there is much more to the malpractice dilemma than those crying for reform would have the public believe. While some jury’s do go astray and some lawsuits are a bit farfetched, there are more (and better) safeguards in place to deal with such aberrations than there are to stem the rising tide of actual medical malpractice.
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