Accident and Injury Lawyer Blog

Peter Orszag, Director of the Office of Management & Budget, in a Q&A with Business Week:

Q: One of the things Republicans always say is, why doesn't the White House want to make a deal about tort law? The President says he's open to every idea, so why is it a big thing to say "I'm open to medical malpractice reform"?

A: I guess I'd push back and say, if that's the deciding issue, then let's see a comprehensive plan that says, with this additional piece, we now sign on.

Thankfully, he falls short of saying what "reform" means. Is he talking about caps (ridiculous), requiring certificates of merit in every state (arguably not unreasonable), or using Comparative Effectiveness Research guidelines to create presumptions (a bad idea but I get the argument).

• The Theory That President Obama Will Flip on Medical Malpractice Tort Reform (and why I don't believe it)
• Post Obama's Malpractice Tort Reform Speech in June (President Obama on malpractice reform - his big speech addressing malpractice before health care legislation failed)


• President Obama's Views as an Illinois Senator (insight into where President Obama may be on malpractice caps)


• A Federal Malpractice Cap (yet another reason why it is a bad idea)

The Washington Law Blog has a good post on the big winner when there are issue being raised about raising, instituting, or abolishing malpractice caps: campaign coffers.

President Obama continues to put out feelers that he might consider making real concessions to Republicans on medical malpractice reform/caps in exchange for a health care bill.

What does this all mean in general and to Maryland malpractice lawyers and their clients? First, I think President Obama is trying to offer Republicans just enough to flip one or two GOP senators which means, if anything, he will propose a bill that he thinks will be opposed by medical malpractice lawyers but not enough to set them off into the stratosphere. In Maryland, we already have a significant cap on noneconomic damages in malpractice cases. So I suspect this thinking is he will support either reform measures that fall short of caps, perhaps requiring certificate of merits in every state before the filing of a lawsuit, or a national malpractice cap that is higher than many states, including Maryland, already have on noneconomic damages. My guess if he agrees to a cap: $950,000 on noneconomic damages.

If this turns out to be the case and this is what comes out of a health care reform bill, there will be no immediate practical effect on Maryland medical malpractice cases because we already have a cap and we already require a certificate of merit. But it would still be an awful blow for victims everywhere, including Maryland, because once you open the floodgates and allow the federal government to enter into what is clearly an issue that historically has been reserved to the states (and the judiciary for that matter), it is going to be open season on civil lawsuits. This is why Republicans will accept a relatively weak malpractice reform bill - to get their foot in the door. So in Maryland, malpractice reform might simultaneously have no immediate impact and still be a disaster for malpractice victims all at the same time.

The Maryland Injury Lawyer Blog writes about a defense verdict in a medical malpractice lawsuit in Baltimore.

Day on Torts breaks down just how little emergency room doctors spend on malpractice insurance.

Pioneer Local (Chicago) has an editorial from Dan Kotin on the new Illinois Supreme Court decision that caps on damages in medical malpractice lawsuits violates the Illinois Constitution's separation of powers. He makes an interesting point that sounds from one angle like a classic Tea Party ideology:

That means a jury of 12 citizens should decide what is proper compensation for another citizen, not politicians sitting in Springfield.

Take the power away from the politicians and give it to the people. This is classic fare from the right wing. It seems to me this is the best way to explain the problem with malpractice caps to people who are on the fence.

Instead of jury trial in criminal cases, let's have a panel of five real experts evaluate criminal cases. Let's say a retired judge, two police officers and, ummm, two victims. That would be fair. I think that is what the framers of the Constitution had in mind.

Similar logic is suggested here to deal with medical malpractice cases.

Actually, if you reverse the paradigm, maybe the better analogy is putting two criminals on the panel. If doctors need to be involved in the process of judging doctors, don't we need criminals to evaluate criminals. Do non-criminals - people who have never committed so much as a felony.- deserve to judge criminals. But why stop with doctors and criminals? Should the "only we judge us" rule to lawyers, plumbers, farmers and Indian chiefs. I'm guessing only doctors have earned this special privilege, this end run around the law the rest of us have been following for the last 400 years.

Illinois Supreme Court struck down their $500,000.00 cap on non-economic damages. I'll be writing more about Lebron v. Gottlieb Memorial Hospital tomorrow. But this is a big win for Plaintiffs.

• Full Analysis of Lebron Opinion
(which includes the court's full opinion)
• Opposing View from Walter Olson on Point of Law

Medical malpractice can happen in almost any medical context because there is often a lot at stake in treating a patient. There are grave consequences to many physician errors. Doctors can prescribe the wrong medication for a relatively insignificant illness and cause life altering or fatal consequences. In fairness, there are few professions where the consequences of errors are so meaningful. Most jobs are far more forgiving of mistakes. But many mistakes on the human body cannot be easily undone.

Breast Cancer: Failure to diagnose breast cancer is a common malpractice claim. Often, a missed breast cancer diagnosis claim is against a radiologist who misreads a mammogram. While it is true that good doctors can make mistakes, the reality is there are a minority of radiologists who are not very good at reading a mammogram and fail to see the severity of the breast lump is ignored as benign or underestimated.

Lung Cancer: Failure to diagnose lung cancer is also a common claim malpractice lawyers see. Like every cancer but maybe particularly in lung cancer cases, it is important to diagnose lung cancer early and misdiagnosis leads to delayed detection which makes treatment down road that much more difficult. It seems the most common problem doctors have in diagnosing lung cancer is not ordering the appropriate follow-up tests, particularly for nonsmokers who you would not expect to be at risk.

Colon/Rectal Cancer: Early diagnosis of colon and rectal cancer are key not only to survival rates but also to how invasive the treatment will be. The difference in surgical options with colon cancer, for example, may mean the difference between invasive laparoscopic surgery and an open abdominal procedure. Often, these cancers are misdiagnosed as IBS (irritable bowel syndrome) or some other aliment.

Infection: Many hospital infections are not caused by hospital malpractice. Even when hospital malpractice is the cause, it is hard to prove. Many infection malpractice lawsuits come a hospital's failure to properly diagnose and/or treat the patient after the symptoms of infection were evident.

Aortic dissection: The classic sign of an aortic dissections are a tearing sensation in his or her chest. But it is not the only symptom and aortic dissections are often dismissed as heartburn.

Heart Attacks: There are a million heart attacks in the country every year, many of which are misdiagnosed by medical providers because the symptoms are not classic. Like non-smokers in lung cancer cases, patients that are otherwise not at high risk are often overlooked in spite of the fact that there symptoms are consistent with a heart attack. What often leads to an incorrect diagnosis is that doctors ignore the symptoms because they are focused on the patient's patient's age, sex, weight and medical history. Doctors sometimes rush out of the ER or exam room patients who are short of breath, telling them then need to workout when the patient is actually suffering from heart disease that needs immediate treatment.

Appendicitis: These cases fall into a common pattern. The symptoms are ignored, usually by primary care doctors or doctors in the emergency room which causes the appendix to rupture, spilling bacteria-ridden intestinal contents into the stomach, causing peritonitis or septicemia. Appendicitis is often misdiagnosed because there are other possible causes of stomach pain.

Nashville Public Radio (via TortsProf) reports that number of medical malpractice lawsuits in Tennessee has dropped 60% after implementation of new certificate of merit requirements in Tennessee, requiring certification of a contention that is difficult to dispute.

The article quotes a Tennessee state senator named Mark Norris who loves the new law. What does Mr. Norris do? He's a (defense) medical malpractice lawyer. He claims that medical malpractice rates raise for doctors every time a malpractice lawsuit is filed.

Is this true? Why would this be true? Let's say a lawyer files a malpractice case to preserve limitations and never serves the complaint. His malpractice insurer is going to raise his rates as a result? Why, in this case, would we blame malpractice lawyers for the rates going up? Wouldn't the doctor's beef be with his own insane medical malpractice carrier? If they think so many suits are frivolous, why would the mere filing of a claim be a mark on the doctor's record?

Norris also says a drop in premiums for doctors could mean lower billing rates for patients down the line. Hold your breath.

What astounds me is that neither Norris or the author pointed out that lawyers rushed to file before the new law took effect which complete inflates the data. I don't know how the author researched this story and talked to Norris and this fact still never came out. (I learned this from a comment to the TortProf post.)

All of that said, I really don't disagree with the most fundamental premise of the new Tennessee law requiring a doctor to certify before a lawsuit if filed that there is malpractice and resulting injury in the case.

The North Carolina Medical Board has launched a website to help patients determine whether doctors who have been found liable for medical malpractice for more than $25,000 or have been convicted of a felony.

I wrote about about this issue last year.

You can find the website here.

And, yes, absolutely, the same should be done for personal injury lawyers in North Carolina and elsewhere around the country.

The same doctor gets sued for the same injury in Huntington, West Virginia. Two Plaintiff allege medical malpractice against the same obstetrician and gynecologist for separate acts of negligence within the same month in 2007.

Frequent flyer doctors make up an obscene percentage of the medical malpractice payouts in this country.

An Illinois jury awarded $22.3 million to the parents of a boy whose leg was amputated soon after birth at a Chicago area hospital. According to the medical malpractice lawsuit against the hosptial, the injury was caused by the hospital's doctors failing to meet the standard of care in treating a congenital heart problem that required a shunt procedure. In addition to the loss of his leg, the boy suffers from cognitive deficiencies and developmental delays.

The Cerebral Palsy Birth Injury Lawyer Blog has a post today about how cerebral palsy is being treated with stem cell research. How incredible it would be if there was a cure down the road? Some much has changed in so many areas of medicine over the last 10 years. Maybe putting a major dent or even eradicating the effects of cerebral palsy will one day be possible....

Every week, it seems a new state reports declining medical malpractice premiums. Today is Ohio's day.

The FDA is now looking to make inroads to reduce the number of deaths and serious injuries caused by drug dosage errors, according to the Los Angeles Times. The FDA plan - called the Safe Use Initiative - looks to identify drugs and medical situations that commonly result in misuse of medication.

Is this a good idea? Well, 1.5 million people every year are victims of medication errors, according to a 2006 report by the Institute of Medicine.

Rhode Island health officials have ordered the Rhode Island Hospital, the state's largest hospital, to pay $150,000 and install video monitoring equipment in every operating room after the fifth - three of which were brain surgeries - wrong-site surgery incident since 2007. These are just the ones that we know about.

The Rhode Island Hospital has been fined in the past for wrong-site surgeries. But fines, and I'm sure lawsuits, do not seem to be making much of a change in behavior.

Boston Medical Center has reached a settlement of $900,000 with the family of an 86-year-old woman who died after falling in an operating room following hip surgery. The family's lawyer alleged in a lawsuit that the hospital staff did not take the appropriate precautions when the woman was put in her hospital bed. One driving force for settlement: a Massachusetts state inspection found that deficiencies in procedure contributed to the death.

A Saratoga County, Washington jury awarded $43.5 million last week to a woman who sued the former Bellevue Maternity Hospital in Niskayuna for severe brain damage she suffered during her birth in 1984.

While the Plaintiff is blessed with above-average intelligence with a degree from Arizona State University, she uses a wheelchair and lacks motor skills due to the brain damage from cerebral palsy.

How does a cerebral palsy case with such tremendous upside go to trial? Defendant's cerebral palsy lawyer reportedly turned down a high/low of $2 million/$300,000. Usually, cerebral palsy cases go to trial because one side miscalculates, which appears to be the case by the hospital in this case.

You can read more about this case here.

Maryland and Georgia both have rulings on tap from their high courts on caps on economic damages. Georgia got the ball rolling yesterday when the Georgia Supreme Court heard arguments yesterday on whether its cap on damages for medical malpractice claims is constitutional. A Georgia medical malpractice lawyer argued for the Plaintiff that the tort reform law in 2005 is unconstitutional because it grants unfair preferences and exemptions to hospital emergency departments.

Plaintiffs have a real shot in this case. The Georgia high court has previously stuck down laws that gave special exemptions to asbestos manufacturers facing property claims. Stay tuned....