Pittsburgh Medical Malpractice Blog

Proponents of reforming the system for litigating medical malpractice case constantly harp about “frivolous lawsuits.” Physicians and the insurance industry would like the public to believe that very few of the medical malpractice cases filed are, in fact, meritorious. This myth lives in Pennsylvania because many victims of medical negligence cannot discuss their cases. Why? Because most meritorious medical malpractices are settled rather than tried and victims who settle their lawsuits and their lawyers must agree not to publicize anything about their cases, including the settlements.

The Pittsburgh medical malpractice law firm for Rosen Louik & Perry, P.C., could cite hundreds of examples of lawsuits that they have settled for their clients where doctors and hospitals were clearly negligent. However, the Medical Care Availability and Reduction of Error Fund (M-Care Fund), a taxpayer subsidized fund that insures all Pennsylvania heath care providers, has a non-negotiable condition that requires all medical negligence victims who receive M-Care proceeds (and their lawyers) to keep the settlements confidential. Moreover, in all cases involving minors and incompetent adult and in most death case, court approval of any proposed settlement is required; the M-Care Fund also requires that counsel in those cases ask the Court to seal any court-documents, which are normally a matter of public record, that would disclose the settlement. Pennsylvania judges would routinely grant requests to hide these settlements from public view. However, in recent years, an ever-growing number of Pennsylvania judges are rejecting secrecy in favor of full disclosure.

The attorneys at Rosen Louik & Perry have been personally involved in a number of cases in Allegheny County, in which Pittsburgh is the county seat, where judges have refused requests to seal otherwise public documents. The same is true in York County and McKean County. Furthermore, the Wilkes-Barre Times Leader has recently reported that Judge Mark Ciavarella of the Luzerne County Court of Common Pleas refused to seal the record of a $3 million settlement in a medical malpractice case. Judge Ciavarella, whose ruling was the same as that of Judge Terrance Nealon of Lacakawana County two years earlier, noted that allegations of medical malpractice are matters of great public concern and that settlements of such cases should be open to the public. The Times Leader also reported that the M-Care Fund paid more that $232 million in claims during 2005.

It should be noted that a number of injured victims who settle their medical malpractice cases for large amounts wish to keep their financial matters private. On the other hand, other injured victims would like the public to know about the negligent medical providers that caused their injuries to debunk the oft-heard claims of frivolous lawsuits and to allow an honest debate on the issue of the medical malpractice litigation system. The chances for an honest debate are increasing because of a growing number of Pennsylvania judges, who evidently agree with Justice Brandeis that “sunshine is . . . the best of disinfectants.”

Source: Wilkes-Barre Times Leader

Innocent people regularly suffer grievous injures because of the negligence of others. Those innocent victims can obtain compensation for their injuries by resort to our civil justice system. The civil justice system is all too often the only way to hold wrongdoers accountable for their actions. For some time, however, wrongdoers have used lobbyists and public relations campaigns in an attempt to limit an innocent victim’s access to the courts by claiming that a “crisis” exists in the civil litigation system in general and with medical malpractice in particular. Compelling evidence shows that the claims of a “crisis” are simply not true.

In an article entitled “The gloves are off” in the July 2006 issue of Trial, Bill Straub, the deputy director of communications at the Association of Trial Lawyers of America, compellingly argues that corporate America’s focus on tort reform has only one goal—the maximization of profits by preventing innocent victims from obtaining compensation from corporate wrongdoers. However, rather than be honest about its aims, big business has instead demonized trial lawyers, the innocent victims’ protectors of last resort, by claiming that trial lawyers are ruining the U.S. economy. Straub asserts that the time has come for trial lawyers to fight back by exposing big business’ true goals.

Proponents of tort reform regularly complain that trial lawyers are “getting rich” by obtaining compensation for innocent victims. Straub points out the hypocrisy of this claim when, in 2005, the head of Exxon was paid $48.9 million, the head of Occidental Petroleum was paid $64.3 million, and the head of United-Health Group, Inc. was paid $37.7 million. (In fact, the pay of a typical CEO of a Standard & Poor’s 500 company was $11.8 million in 2005).

Straub also points to many instances where the desire for increased corporate profits comes at the expense of consumer safety. After all, the evidence is clear that Merck & Co. continued to market Vioxx long after it knew that the drug increased the risk of heart problems and strokes. Moreover, auto manufacturers balked at installing seat belts and air bags. Clothing manufacturers refused to use flame-resistant materials in children’s pajamas. Presented with these examples, Straub poses the question of who remains to protect people. He also answers that question. “The nation’s civil justice system has become the last line of defense—the place where even the most powerful are called to account for their misconduct. It’s the duty of trial lawyers to guide the maimed, the jobless, and families of the deceased through the dense thicket of laws, regulations, and practice rules that lead to fair compensation. And it’s a job that ought to be done unapologetically.”

Source: Trial

The public debate over reforming the medical-malpractice legal system has long focused on extreme positions. Health-care providers and insurers call for a revamping of the entire system by capping damages and creating an administrative system of “health courts.” Victims-rights advocates, including plaintiff’s lawyers, argue that the present system works fine and no reform is necessary. It now appears that a middle ground may be emerging that can reduce litigation costs and permit a faster resolution of malpractice claims. How—by encouraging honesty by health care providers when unforeseen outcomes occur and making early settlement offers and apologizing when injuries are caused by medical negligence.

In a front-page article of the July 17, 2006 in the National Law Journal, Peter Geier reports about the idea of “full disclosure/early offer.” After correctly noting that lawsuits often result because patients and their families cannot obtain answers from their doctors, Geier notes that a number of hospital systems and insurance companies have discovered that lawsuits can be avoided by acknowledging malpractice when it occurs and promptly trying to settle the claim before any suit is filed. Hospitals employing this practice include the U.S. Department of Veterans Affairs, the University of Michigan Health System, Baltimore’s Johns Hopkins Medicine and Minneapolis’ Allina Hospitals & Clinics. Insurers include West Virginia Mutual Insurance of Charleston and COPIC Insurance of Denver.

The University of Michigan Health System initiated the system in 2002 and has seen claims (pre-suit notices and lawsuits) drop from 262 in August of 2001 to 114 in August of 2005 with less than 100 since that time. During that same period, the average claim processing period dropped from 20.3 months to 9.5, litigation costs were cut in half and the total reserves on medical malpractice claims were reduced by more that two-thirds. Similar finding were reported by the other hospitals. By avoiding lawsuits, the health-care providers can emphasize patient safety and better communication between the system and patients, which includes educating some patients as to why their injuries are not the result of negligence.

Plaintiff’s lawyers major concern is that patients are need not be told that they can consult with an attorney to fully protect their interests. However, the VA, which first implemented its system in the late 1980’s, tells veterans that they should seek counsel. Moreover, many of the plaintiff’s lawyers quoted in the article noted that in most instances, their clients were satisfied with the prompt resolution of their claims.

Both Illinois and Vermont has enacted legislation to create pilot programs to test various forms of “full disclosure/early offer;” Texas, Tennessee and New Jersey are also considering such legislation. On the federal level, U.S. senators Barack Obama (D-Ill.) and Hillary Clinton (D-N.Y.), are sponsoring the National Medical Error Disclosure and Compensation Act, a national version of the policy.

Source: National Law Journal

Physician groups and liability insurance companies continue to claim that that Pennsylvania’s medical malpractice legal liability system is driving doctors out of the state. In spite of reforms enacted by both the Legislature and Supreme Court in 2002, these proponents of tort reform argue that more needs to be done to reduce medical malpractice insurance premiums to stop the “exodus” of doctors. However, a recent report commissioned and funded by the Pennsylvania Bar Association (PBA) reveals that many of the claims of tort reformers are simply untrue.

Neil Vidmar, a professor of law at Duke Law School, authored a report for the PBA entitled “Medical Malpractice Litigation in Pennsylvania” that makes a number of finding that run counter to the claims of tort reformers. Professor Vidmar analyzes various statistics of the Pennsylvania Supreme Court, the American Medical Association and the Federation of State Licensing Boards and concludes that the the Pennsylvania Medical Society’s 2005 claim that “one in four Pennsylvanians lost their doctors due to the rising costs of medical insurance”is not true. In absolute terms, Pennsylvania had 27,401 licensed practicing physicians in 1994; in 2004, that number was 33,000. Moreover, Pennsylvania has 8.9% more doctors per capita than the national average, ranking tenth overall among the fifty states in this regard. Professor Vidmar acknowledges that the number of obstetrician-gynecologists in Pennsylvania has dropped between 1998 and 2004; however, he also notes an even larger percentage decline in live births, thus theorizing that the absolute decrease in the number of obstetrician-gynecologists is the based upon the declining birth rate resulting from Pennsylvania’s aging population. As the report states, “Even considering the possibility that some physicians may have decided to abandon certain high-risk procedures, the claim that one in four Pennsylvanians lost their doctors seems unsupportable on its face. It is possible that some doctors have left the state and residents moved to other states but, if so, they were replaced by other doctors.”

Professor Vidmar also challenges the assertion of reformers that caps on pain and suffering damages are necessary. He points to numerous studies showing that such caps have little or nor effect on malpractice insurance premiums. The report also raises the question of fairness. As Professor Vidmar notes, “In most of the public discussion about medical malpractice reform, little or no attention has been given to the plight of patients who are injured through medical negligence.” It is pointed out that California imposed a cap of $250,000 over thirty years ago and that in 2005 dollars, that figure would be $899,281. As Professor Vidmar states, “What the California legislature decided was fair compensation in 1975 has, in real terms, been reduced by 72%. This insight adds to the issue of whether the cap if fair.” Moreover, in addition to the proposed caps being too low, the report reiterated other studies that found that caps tend to discriminate against those women, the elderly, and those individuals who suffered the most severe injuries as a result of negligent health care.

Source: Pennsylvania Bar Association

In February of 2005, legislation in Georgia went into effect that enacted sweeping medical malpractice reform severely limiting victims’ rights. These reforms limited jury awards for pain and suffering to $350,000, required tougher standards for expert witnesses and included incentives for victims to settle their cases prior to trial. At the time the reforms were proposed, promises were made that enactment of the reforms would reduce malpractice insurance premiums for the state’s doctors. A recent study by the Associated Press of state insurance records reveals those promises were empty, as six of the state’s top medical malpractice insurers have increased their premiums, some by as much as 33%.

In a scenario that is all too familiar, doctors, hospitals and other business lobbies supported the legislation, claiming that it would lead to lower insurance premiums because it encouraged speedy-out-of-court settlements and penalized victims who asserted frivolous claims. On the other hand, plaintiffs’ lawyers and patient advocacy groups countered that the proposed reforms would not reduce insurance premiums, particularly because of the lack of real competition among insurers covering medical providers. Events since the reforms became effective show that the claims of lower premiums were nothing more that wishful thinking. In fact, some of the increased premiums allowed were less than originally requested by the insurers.

An article written by Greg Bluestein of the AP noted comments by John Oxendine, Georgia’s insurance commissioner. Mr. Oxendine that he and his department have little flexibility in curbing malpractice insurance premiums because of the lack of competition. Mr. Oxendine also said that he was focusing on methods of enticing more insurers to write malpractice insurance in Georgia.

The rate increases have occasioned various comments. Allie Wall, director of consumer group Georgia Watch, said, “More than a year has gone by, yet Georgia doctors have not saved a penny on insurance, as promised, and the insurance companies are still raking in record profits.” Not all of the critical comments, however, came from opponents of reform. Dr. Kelly Thrasher, who practices internal medicine and has seen his insurance premiums rise from $9,000 to $17,000 since enactment of the reform, pulled no punches when he said, “I feel like I’ve been duped. [The debate] pitted doctors against lawyers because I think there’s a natural rivalry, but a lot of my colleagues were hoodwinked.”

Source: Associated Press

In spite of the United States Senate’s recent rejection of proposed medical malpractice reform, Senators Rick Santorum and Bill Frist were recently in Scranton again urging such reform. The American Trial Lawyers Association, whose stated goals are promoting justice for injured persons, defending the right to jury trials, and strengthening the civil justice system by disclosing information critical to public health and safety, issued a statement accusing the two senators of hypocrisy and deception.

After stating that the senators’ real reason for urging reform was to obtain campaign contributions, primarily from the insurance industry, the press release noted that Santorum was attempting to curb the rights of Pennsylvanians despite the fact that his wife had successfully sued her chiropractor for medical malpractice. ATLA also accused the pair of ignoring mounting evidence that malpractice insurance rates were rising because of price gouging by the insurance industry and not by lawsuits filed injured patients. (The statement noted that an insurance firm controlled by the Frist family was one of the most blatant price gougers.) ATLA noted a study by the Institute of Medicine that between 44,000 and 98,000 citizens die each year from medical negligence.

ATLA accused Santorum and Frist of ignoring various data and studies that showed that the justifications for medical malpractice reform could not withstand critical scrutiny. With regard to the claim that numerous lawsuits were driving up costs, the “reformers” ignored statistics release by the Pennsylvania Supreme Court that the number of medical malpractice cases filed had dropped 35% between 2000 (2632 filings) and 2005 (1698 filings). In fact, those statistics also showed that in Lackawanna County, where the pair had appeared, filings dropped 50% over that same period (71 to 35).

It is often claimed that reform is needed because Americans and Pennsylvanians are being denied access to health care. This claim, however, is refuted by a 2003 study of the Government Accountability Office that found “many of the reported provider actions taken in response to malpractice pressures were not substantiated or did not widely affect access to health care….”

ATLA’a main claim that Santorum and Frist were being dishonest was with regard to their assertion that their proposed reform would reduce malpractice insurance costs. The press release noted a number of different matters. First, a 2005 study by Public Citizen showed that the number a medical malpractice payments of behalf of physicians fell by 13% between 2001 and 2004 and that adjusted for inflation, average malpractice payments had increased less that 2% a year between 1991 and 2004. Second, a 2005 study by the Missouri insurance commissioner found that the 15 largest medical malpractice insurers had increased premiums between 2001 and 2004 by 120% in spite of the fact that payouts had increased by less than 6%. Incredibly, the insurer controlled by the Frist family had increased its premiums by 88% between 2000 and 2004 despite a corresponding 32% drop in claim payments. Finally, ATLA noted a number of statements from insurance industry executives that the proposed reform would not lead to a reduction in insurance premiums.

Sources: ATLA, Public Citizen, Government Accountability Office, Institute of Medicine

Proponents of reforming the medical malpractice litigation system often claim that reform is needed to curb frivolous lawsuits. The proponents of reform argue that frivolous lawsuits are the primary reason for high malpractice insurance rates, which are causing physicians to leave Pennsylvania. However, a study conducted by a number of health professionals and recently published in the prestigious New England Journal of Medicine suggests that such claims are greatly exaggerated.

After carefully reviewing and analyzing 1452 closed medical malpractice files submitted by insurers to determine if a medical injury occurred, and if so, whether it was caused by medical error, this study reached two general conclusions. First, the authors clearly stated that the claims of reformers were “overblown.” Second, they determined that the medical malpractice system was able to differentiate between non-meritorious and meritorious claims.

These conclusions were supported by a number of different study findings. Although it was determined that non-meritorious claims were filed, a vast majority of those claims received no compensation. Conversely, most of the compensation was actually paid to those individuals who were injured as the result of medical errors. (Interestingly, when non-meritorious claims were presented to a jury, compensation was almost never awarded, thus debunking the myth that juries were unable to effectively analyze medical issues.) The results were the same when considering the costs of litigation other than actual compensation paid to plaintiffs; a vast majority of costs were attributable to meritorious claims. Thus, these findings support the study’s conclusion that reforms being proposed would have a little effect on reducing total litigation costs. Further, if litigation costs were not reduced, it is safe to assume that such reforms would also have little effect on reducing malpractice insurance premiums.

In a similar vein, the Pennsylvania Supreme Court recently released statistics concerning medical malpractice cases in Pennsylvania. In early 2003, the supreme court reformed its civil procedural rules and required plaintiffs, before proceeding with malpractice litigation, to obtain an opinion from a health-care provider that the plaintiff’s claim was meritorious. After this change became effective, statewide medical malpractice filings dropped by almost 40%. Those same statistics revealed that the number of large jury verdicts had not increased over prior years.

Despite the supreme court’s reforms, which undoubtedly reduced the number of frivolous lawsuits, malpractice insurance rates for physicians continued to rise. As Chief Justice Ralph J. Cappy noted in an interview concerning the release of the statistics, “There still is a problem with the malpractice insurance rates, and we can’t ignore that. But I’m virtually certain that those rates aren’t being affected by [actions of our] judiciary or an out-of-control legal profession.”

Sources: New England Journal of Medicine, Pennsylvania Law Weekly