Articles Posted in Medical Malpractice

Both doctors’ groups and medical malpractice lawyers are preening about a new study that shows that the cost of medical malpractice in the United States is 2.4% of annual health care spending.

Medical malpractice lawyers say the study shows that medical malpractice tort reform would have little impact on our health care costs. Doctors’ groups point to the fact that 2.4% equals $55.6 billion a year, a daunting number even in the post-TARP era when $500 billion is a mere half of a stimulus package.

But here is how the numbers break out:

• Indemnity payments: $5.72 billion, of which $3.15 billion represents payment for economic damages; $2.4 billion for noneconomic damages; and $170 million for punitive damages. This includes the attorneys’ fees of medical malpractice lawyers who represented the plaintiffs.
• Administrative expenses: $4.13 billion, which includes $1.09 billion in fees to defense attorneys; and $3.04 billion in overhead expenses. (Estimated fees to plaintiffs’ attorneys were $2 billion, but that amount is included in indemnity payments.)
• Defensive medicine costs: $45.59 billion, of which $38.79 billion was estimated as the cost of hospital services and $6.80 billion as physician services.

There is something incredible in these numbers that no one is talking about. The researchers said their estimate includes $45.59 billion in defensive medicine care where doctors prescribe treatment and tests that may harm or expose the patient to risks because they want to avoid medical malpractice lawsuits. So health care providers spend $45 billion in additional costs (from which they often profit) to protect themselves from $6 billion in risk? If I hired a team of lawyers to oversee everything, our law firm does to make sure we are not committing legal malpractice and then complained about the cost…this analogy is not working. Let me try another: imagine hand grenade manufacturers swatting flies with hand grenades and then complaining about the rising cost of hand grenades. (That does not entirely work either, but at least it is closer. Because somehow you have to add that flies landing is actually harm that is fully insured. But you get the point without my metaphors.) Don’t these doctors’ groups feel a little odd parading this around? And why is no one pointing this out? This is right up there with Stonehenge on my list of great mysteries. Continue reading

Medical malpractice lawyers are just looking for a deep pocket to sue. Every time something bad happens to anyone, they sue. It is always only about money.

Largely, these generalizations are just plain false. Usually, in a malpractice case, the doctor has insurance, so the pockets are deep enough. Here in Maryland, where we have caps on non-economic damages in medical malpractice cases, the pockets are almost always deep enough. Study after study has shown that only a tiny percentage of malpractice that results in a wrongful death leads to a lawsuit or settlement. (I think I saw a study that said 4% but don’t hold me to that. Both sides of the tort reform issue argue that true victims don’t receive adequate compensation.) And while medical malpractice lawsuits are about money, it would amaze cynics at how often the desire to appropriately assign liability is more important to the client than how much money they recover from the lawsuit.

Yet, a significant percentage of people in the country would agree with the first paragraph of this post instead of the second. I really believe that a big reason for this is the inferences people draw from what happens when something happens to someone famous.

Why is it that every time something happens to a celebrity there is a lawyer ready and willing to sue no matter how ridiculous the circumstances are? I know exactly why. Lawyers enjoy the status and notoriety they get when they represent a celebrity.

How do I know this? I’ve fallen prey to it myself. Ten years ago, when I was just starting a plaintiffs’ personal injury practice after being a defense lawyer, I filed a medical malpractice lawsuit against the New England Patriots. The claim against the Patriots settled, and I believe it was a meritorious claim. Did I enjoy it when ESPN and CNN picked up the story? I can tell you I’m far past that point in my life now, but then? Yeah, I did. After that, I handled other high-profile media cases that brought attention to myself that; I have to admit, I would never have gotten involved in if I was not (1) flattered to have been asked and (2) the plaintiff was not famous or the case was not high profile.

Like I said, I’m far past that now. I just want to be the best lawyer I can be and get the best results possible for our clients and I don’t want attention for the mere filing of a lawsuit which is the ultimate Paris Hilton/Kim Kardashian “get notoriety for doing absolutely nothing” without the consolation prize of at least being very attractive while doing it. Continue reading

Miller & Zois lawyers Laura Zois and Rod Gaston obtained this afternoon a $1.1 million verdict for our client in a medical malpractice (lap chole) case in Baltimore City.

In a 6-1 opinion, the Maryland Court of Appeals decided Blondell v. Littlepage, affirming the Court of Special Appeals decision which rejected a tort and breach of contract lawsuit brought by a lawyer against a malpractice lawyer regarding a case he referred to her.

The lawyer referred a cancer misdiagnosis case involving an allegedly misread mammogram to a malpractice lawyer. Both lawyers agreed to a fee split. The original lawyer had already filed the malpractice lawsuit on behalf of the Plaintiff, before referring the case out. I’m not sure what the referring lawyer was thinking when he filed suit. Perhaps he was hoping the case would settle or maybe he later decided it would better serve the client if they were with a lawyer who focuses on malpractice cases. The court does not show the reason for the referral.

Anyway, the case settled for a lot less than the pretrial judge recommended, which upset the referring lawyer, as did the suggestion allegedly made by the malpractice lawyer to the client, that the referring lawyer’s failure to timely file the case with the court decreased the settlement value of the case. The malpractice lawyer gave the client names of legal malpractice lawyers to bring a claim against the referring lawyer. Continue reading

The New York Times has a story about encouraging doctors to admit their own mistakes. The UCLA surgeon who wrote the article does not contend that admitting medical mistakes should take the place of civil accountability. In fact, she suggests – as some recent literature has showed – that being forthcoming about medical errors may decrease the number of medical malpractice lawsuits.

I’ll admit that while I was reading this story I was circling around ready to pounce when the author suggested that we needed to eliminate malpractice lawsuits to get doctors to freely admit mistakes. So let’s just pretend, channeling my inner Glenn Beck, the author made that contention so I can refute it. In my defense, I’m not exactly creating a straw man, something I loathe to do. We have made this argument countless times, that it is safer for patients for health care providers to treat patients in a lovely environment where there is no risk of responsibility for medical errors.

First, let’s admit that we are all loathed to admit mistakes. I don’t think to take away the risk of a malpractice lawsuit – for which the doctor has insurance in most cases – is going to substantially change the frequency of admission of medical errors.

Where is the justice in being exculpated for causing a life-altering injury because you admit you did something wrong? If a driver crosses the center line and kills someone, can we just move on if the driver admits a mistake? (Bonus argument: accidents are a “known risk” of driving a car, right?) How about if personal injury lawyers who blow a statute of limitations can avoid responsibility by making the grandiose admission that it is all their fault? Wouldn’t that help lawyers understand their mistakes? What? Lawyers should buy a calendar? Well, yeah, that would be an excellent idea too.

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Let’s say Barack Obama takes a strong position on medical malpractice caps and puts his weight behind a bill to eliminate malpractice and other damage caps in all 50 states.

This would be a huge windfall for our practice. But I would oppose this legislation. Why? Because such a law would be a ridiculous intrusion into the affairs of the States by the federal government. The federal government has no business telling the states they cannot have caps on damages. (I think caps violate state constitutions because they are a legislative intrusion on the separation of powers every state has in its constitution. But that is a different blog post.)

How can tort reform advocates – who are almost to a person far more ‘States rights, get government out of our lives” than I will ever be – support this unprecedented intrusion of caps on damages in medical malpractice cases via a health reform bill? It is because most tort reformers have a world view: lawsuits are bad, caps are good. They will push for this goal by all means necessary, including shedding inconvenient authentic core values.

A federal court jury in Baltimore found that an Elkton obstetrician was not liable in a medical malpractice lawsuit. The core of the case is bound to raise moral concerns with at least some jurors. Plaintiff claimed she would have ended her pregnancy if they had advised her that her child had Down syndrome, claiming the child’s expected future medical care was projected to be as much as $16.4 million.

The plaintiff claimed that her triple screen blood test found that she had a 2.6% chance her daughter would be born with Down syndrome. The case was a classic case of he said/she said. The doctor claimed the patient was told three times of her test results and that she rejected the doctor’s suggestion that she get the more invasive amniocentesis test. So really, what this case came down to was a battle of credibility between the doctors and patients.

Most likely, the jury believed the doctor’s notes were accurate and made contemporaneously with his discussions with the patient regarding the results. Only the doctor, the Plaintiff, and God know exactly what information they conveyed. But I also wonder the extent to which this federal jury had a problem with the “I would have had an abortion” claim from Plaintiff. Statistically, someone on that jury strongly believed that abortions are immoral.

But even more to the point, does anyone have a problem with aborting a child because of a 2.6% risk of Down Syndrome?  That was nearly the exact risk that we have with our last child.  I was worried about it.   Then again, have you ever seen a child with Down Syndrome who seemed miserable?    I’ve seen a lot of children without this disease who seem miserable.  But most children who have it seem like happy campers.  I’m not minimizing the pain of having a child who is not normal and the challenges you are forced to face.   Again, I was worried about Down Syndrome with all of my children and I’m sure that “happy camper” talk would have faded and I would have been extremely upset.  But, big picture,  these kids often do really well and are a lot happier than “normal kids” most times.  I have no idea why I’m giving this speech today.

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