Archive for the ‘Medical Malpractice’ Category

Five Myths About Medical Negligence and Healthcare Reform — The Case of the Lying Lobbyist

I promised you a rant from time to time; here’s one of my favorites, a critique of many of the common justifications for depriving victims of medical malpractice of their lawful right to be compensated as part of the pending national health reform legislation.  This White Paper is published by my good friends at the American Association of Justice, a trial lawyers’ organization that I proudly belong to.

“As enemies of health care reform spread lies and mistruths about medical negligence, a new white paper tackles the issue head-on, debunking the most common myths with sound science and research while refuting the hyperbole and empty rhetoric.

Five Myths About Medical Negligence, one in a series of reports from the American Association for Justice on this issue, examines the errors and faults behind the most commonly used talking points of health care reform opponents.

  • Myth #1: There are too many “frivolous” malpractice lawsuits.

Fact: There’s an epidemic of medical negligence, not lawsuits.  Only one in eight people injured by medical negligence ever file suit.  Civil filings have declined eight percent over the last decade, and are less than one percent of the whole civil docket.  A 2006 Harvard study found that 97 percent of claims were meritorious, stating, “portraits of a malpractice system that is stricken with frivolous litigation are overblown.”

  • Myth #2: Malpractice claims drive up health care costs.

Fact: According to the National Association of Insurance Commissioners, the total spent defending claims and compensating victims of medical negligence was just 0.3% of health care costs, and the Congressional Budget Office and Government Accountability Office have made similar findings.

  • Myth #3: Doctors are fleeing.

Fact: Then where are they going?  According to the American Medical Association’s own data, the number of practicing physicians in the United States has been growing steadily for decades. Not only are there more doctors, but the number of doctors is increasing faster than population growth.  Despite the cries of physicians fleeing multiple states, the number of physicians increased in every state, and only four states saw growth slower than population growth; these four states all have medical malpractice caps.

  • Myth #4: Malpractice claims drive up doctors’ premiums.

Fact: Empirical research has found that there is little correlation between malpractice payouts and malpractice premiums paid by doctors. A study of the leading medical malpractice insurance companies’ financial statements by former Missouri Insurance Commissioner Jay Angoff found that these insurers artificially raised doctors’ premiums and misled the public about the nature of medical negligence claims.  A previous AAJ report on malpractice insurers found they had earnings higher than 99% of Fortune 500 companies.

  • Myth #5: Tort reform will lower insurance rates.

Fact:  Tort reforms are passed under the guise that they will lower physicians’ liability premiums. This does not happen. While insurers do pay out less money when damages awards are capped, they do not pass the savings along to doctors by lowering premiums. Even the most ardent tort reformers have been caught stating that tort reform will have no effect on insurance rates.

“All the facts and evidence show that tort law changes will do practically nothing to lower costs or cover the uninsured,” said AAJ President Anthony Tarricone.  “It’s no wonder the tort reformers, insurance lobby, and other corporate front groups have to gin up lies and phony stats, since no legitimate data or research supports their claims.  Our focus should be on reducing the 98,000 deaths by medical error that occurs every year, not limiting patients’ legal rights.”

As part of its ongoing series on the topic, AAJ earlier released Medical Negligence: A Primer for the Nation’s             Health Care Debate, The Truth About “Defensive Medicine,” and The Insurance Hoax: How Doctors and       Patients Pay for the Huge Earnings of Medical Malpractice Insurers.  These can be located at Myths About Medical Negligence can be found directly at: Myths About Medical Negligence.pdf.

Settlement Update: $1 million+ For Victim of Botched Circumcision — The Case of the Suspended Surgeon

Our office has obtained a settlement of over $1 million in present and future payouts  for scarring caused by a negligent surgeon who botched a child’s circumcision and then attempted to conceal his error.

The case involved a relatively inexperienced family practitioner who, during an otherwise routine circumcision of an infant, removed almost all of the skin covering the shaft of the child’s member.  The physician had apparently become confused and disoriented during the procedure and improperly re-adjusted a clamp which would have prevented this drastic mistake.  He stopped bleeding by extensively using a chemical agent to cauterize the bleeding and traumatized skin, and covered the wound with an over-large bandage.  He also reassured the child’s parents, who were concerned about their child’s appearance, that the seeping wound was ‘normal’ and would be ‘fine’ in a later visit.  The ‘overly aggressive’ circumcision was discovered by a supervising physician from the physician’s practice on the day after the circumcision, and the child was rushed to a consultation with a pediatric urologist, who eventually repaired the damage with a skin graft. The doctor later apologized to the child’s parents.

The defendant physician’s counsel insisted that the error in practice was not malpractice, but an ‘unfortunate result’, despite the physician’s subsequent termination from the family practice which hired him based upon the incident, as well as critical comments made by the head of the physician’s practice and the doctor who discovered his malpractice.  The insurer maintained this position virtually up to the time of trial, despite evidence which showed that the physician’s description of the manner in which the clamp was used was hopelessly confused and incorrect at deposition, and his attempt to distance himself from his apology to the child’s parents by claiming that it was not motivated by guilt but by a desire to avoid a malpractice suit.  Further evidence that the physician had appeared to become distracted while making comments to nursing students observing the procedure provided more proof of the physician’s failure to use due care.

The physician’s attorney also (correctly) argued that the scarring caused by the malpractice had been corrected within six months of the procedure and that the child had no observable medical problems and preserved function.  The physician’s insurer claimed that damages were therefore minimal.  We countered this argument with extensive medical research and psychiatric expert opinion concerning the likely psychological effects on child and mother caused by such a  disfigurement.  The case went to mediation one week before trial, and was successfullly settled for a structured payout worth $350,000 present value, with a stream of payments worth in excess of $1 million over the life of the child.

The Case of the Marketplace Myth — Why Product Manufacturers Have to Be Regulated

While I’m debunking myths, here’s a morality tale, as they say on TV, ‘ripped from today’s headlines’ . . .

“Boston Scientific to pay $22M in payment inquiry
The Associated Press
Wednesday, December 23, 2009; 4:53 PM
NEW YORK — U.S. attorneys in Boston said Wednesday heart device maker Boston Scientific will pay $22 million to resolve allegations its Guidant division paid kickbacks to doctors to get them to use its heart devices.
The U.S. Department of Justice said Guidant paid physicians $1,000 to $1,500 each in 2003 and 2004 to participate in four studies, called RaCE, RaCE II, RaCE III, and MERITS. It said the studies were designed to increase sales of pacemakers and defibrillators.
Federal officials said the company targeted doctors who favored products made by other companies, hoping the payments would induce them to use Guidant devices more often. They said Guidant submitted claims for payment on the devices to Medicare.
Boston Scientific did not admit wrongdoing as part of the civil settlement. Under the agreement, its cardiac rhythm management division will have to publicly disclose payments to physicians on a Web site. Boston Scientific also entered into a corporate integrity agreement.
The studies were conducted after the Food and Drug Administration had cleared the products for sale. Post-approval studies are often used to further evaluate medical devices or compare their performance.
Boston Scientific bought Guidant in 2006. The company is based in Natick, Mass.
Its shares rose 2 cents to close at $8.82 Wednesday. “

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Daniel Malis uses this blog to publish answers to frequently asked questions, convey interesting news and make the occasional law-related rant. If you have any questions or want to contact Daniel Malis, please see the Contact page of the MALIS|LAW Website.