Articles Posted in Medical Malpractice

Doctors may have a new opponent in their battle for lower medical malpractice premiums: the state of Maryland. As I wrote last month, Maryland has been paying subsidies to doctors to the tune of $80 million over the past three years as a part of the medical malpractice “reform” bill that the General Assembly passed in 2004. The Baltimore Sun reports today that Maryland Insurance Commissioner Ralph S. Tyler ruled that a $68.6 million malpractice premium surplus, which Medical Mutual owed to the state of Maryland.

Back in 2004, doctors’ fervor for caps in medical malpractice cases reached a new high. To fan the flames, I’m convinced that Medical Mutual (easily the largest medical malpractice insurer in Maryland, covering about 75% of Maryland doctors) engaged in a little creative accounting and timely settlement negotiations that allowed Medical Mutual to pay out more during the time frame being examined by the Maryland legislature. The Maryland legislature was looking to determine how much medical malpractice premiums had risen.

After they got their wish and the Maryland legislature passed a bill to further cap medical malpractice damages, it quickly became apparent that the rise in premiums was artificial, evidenced by this $68.6 million surplus. For most insurance companies, this means they have a $68.6 million profit. But Medical Mutual’s policyholders own it, the doctors Medical Mutual covers. So this profit would have gone back to the doctors had the state of Maryland not intervened.

A post on the Illinois Trial Practice Blog discusses a product for malpractice attorneys called>MedMal Reports. This company generates a report based on the payout reported in the National Practitioner’s Data Bank. Reporting of settlements and verdicts is mandatory, so the data is not skewed the way published verdict reports favor those medical malpractice lawyers who seek publication.

The theory is that payouts in these cases are predictable. The question is what variables should the calculus include. Interestingly, the company believes that there is not enough focus on the defendant in valuing medical malpractice cases, citing the following facts:

(1) The number of defendants affects value. The more defendants, the higher the total recovery in medical malpractice cases;

The Illinois Supreme Court has approved a new plan that requires medical malpractice parties in two Illinois counties to seek mediation before suing in medical malpractice cases.

The hope is that both sides can come to an agreement to resolve the case without the necessity of lengthy (and costly) discovery and trial.

I hope this works, but I think most malpractice attorneys are skeptical. The problem in medical malpractice cases is that it is sometimes difficult to judge the strengths and weaknesses of the case, regarding both damages and liability, until extensive discovery has been done. Plaintiff’s lawyers often fume at the insurance companies’ unwillingness to make offers before they file suit, but this is often the best course for both parties.

The Baltimore Sun reports that the extension of a state program that subsidizes doctors’ malpractice insurance premiums is no longer in need considering a $68.6 million surplus reported by the state’s leading malpractice insurer, Medical Mutual Liability Insurance Society of Maryland.

Earlier this week, the new state Insurance Commissioner, Ralph S. Tyler, ordered Med Mutual not to proceed with plans to pay out the $68.6 million as a dividend until they determine how much should the State of Maryland receive to repay the $80 million paid out to subsidize doctors.

The Baltimore Sun reports that medical malpractice payouts in Maryland peaked in 2003 and have declined every year since 2003. The number of paid medical malpractice claims in Maryland has dropped 32 percent in the past three years, 50% more than the national average.

The debate over medical malpractice tort reform in Maryland has always been sung to the same tune: “Do we need to limit runaway juries by impeding their ability to award damages they deem appropriate?” The question implies that justice is not being served because juries are (1) wrongly siding against doctors on the question of medical negligence, and (2) awarding more in damages that justice requires. Both the doctors and their insurance companies and the medical malpractice lawyers and victim’s advocates argue their respective points through examples.

In this battle to tell the story that tells the story, the doctors will prevail because they illustrate the easiest of scenarios to latch onto mentally – excessive verdicts. It is hard to extrapolate anything from a zero verdict in a serious medical malpractice case because you would have to determine whether there was negligence. This would take way too much time for Joe Public.

(I do not say this condescendingly; there are lots of societal issues where I am the rather lazy Joe Public myself. We are cannot spend our time getting our minds around every issue of the day. Nor should we. We should, however, all be investing the time to figure out what is going on in Iraqi. Joe Public has not spent time on this issue either, and for this, he deserves scorn. I would continue on but I’m already digressing way more than I normally do or should.)

The District of Columbia Court of Appeals recently upheld a $3.5 million malpractice verdict after a 12-day jury trial against a Bethesda, Maryland obstetrician/gynecologist and Sibley Memorial Hospital in Washington, DC. After the verdict against both the doctor and the hospital, Sibley settled with the Plaintiff, but the doctor appealed.

The case stemmed from a dilation and curettage (D&C as it is commonly called) during which the OB/GYN inadvertently perforated the Plaintiff’s uterus, causing over three quarts of toxic bowel content to leak into her peritoneal cavity. The leakage caused her internal organs to be “continually bathed,” as the court called it, in infectious material, which led to multiple permanent complications.

• Get malpractice verdicts and settlements in D.C. (updated January 10, 2019)

The Maryland Daily Record reports on a Carroll County electrician who was recently awarded $2.3 million in a medical malpractice case by a Baltimore City jury. After a weeklong trial, the jury found the defendant doctor negligent for piercing the plaintiff’s spinal cord during a pain relief procedure.

Steroid Injections at Issue

Doctors have used therapeutic steroid injections for years.  The standard of care requires that any injectable substance that a physician puts into a patient is safe, sterile, and prepared to accepted industry standards. The standard of care also requires the doctor to know where the needle is going in the patients, which should be far removed from the spinal cord itself.

The Maryland State Bar Association annual meeting had a discussion group on a topic entitled, “A Cure for the Courts: Are Health Courts the Rx for Maryland?” The idea behind health courts is that specially trained judges would hear medical malpractice cases in Maryland, without juries present, deciding damages based on “schedules” for non-economic damages.

There are scores of problems with health courts. The most obvious is that the pesky little Seventh Amendment which guarantees a right to a jury. The guiding principle behind citizen juries is regular people deciding what constitutes acceptable behavior and what the damages should be for a person’s injuries. Because medical malpractice cases are frequently catastrophic injury cases, this is all the more reason the community values matter so much in achieving a fair outcome. Government chosen “experts” made specialized health court decisions that do not reflect the values of the local community regarding either liability or damages. The framers of our Constitution feared these kinds of concerns, reflected in the Seventh Amendment right to a jury trial.

I understand this panel was sparsely attended. This is not surprising. There is virtually no interest in health courts in Maryland, not even from medical malpractice defense lawyers, who you might have thought would have attended this discussion in droves.