Tennessee Medical Malpractice Law Blog

John Day has posted an article over on Day on Torts reporting on a recent study entitled "The Great Malpractice Hoax."  There are a number of interesting statistics cited in the post.

John Day posted on Day on Torts about an expert witness who sued three doctors and the Florida Medical Association. The lawsuit stems from a disciplinary proceeding alleging that the expert's testimony in a medical malpractice case against the three doctors fell below reasonable professional standards. Read more details over on Day on Torts.

Here is a great article from Slate titled "The Medical Malpractice Myth."

An excerpt:

"The Republican answer to runaway health-care spending is to cap jury awards in medical malpractice suits. For the fifth time in four years, Senate Majority Leader Bill Frist tried and failed to cap awards at $250,000 during his self-proclaimed "Health Care Week" in May. But this time, the Democrats put a better idea on the table.

Sens. Hillary Clinton and Barack Obama also want to save on health care. But rather than capping jury awards, they hope to cut the number of medical malpractice cases by reducing medical errors, as they explain in an article in the New England Journal of Medicine. In other words, to the Republicans, suits and payouts are the ill. To the Democrats, the problem is a slew of medical injuries of which the suits are a symptom. The latest evidence shows the Democrats' diagnosis to be right.

The best attempt to synthesize the academic literature on medical malpractice is Tom Baker's The Medical Malpractice Myth, published last November. Baker, a law professor at the University of Connecticut who studies insurance, argues that the hype about medical malpractice suits is "urban legend mixed with the occasional true story, supported by selective references to academic studies." After all, including legal fees, insurance costs, and payouts, the cost of the suits comes to less than one-half of 1 percent of health-care spending. If anything, there are fewer lawsuits than would be expected, and far more injuries than we usually imagine. "

Read about new legislation designed to increase patient safety at www.dayontorts.com.

The Harvard study on Medical Malpractice Litigation published in the New England Journal of Medicine this week appears to be a generally well drawn analysis. Physicians reviewed over 1,400 past malpractice claims from insurance company records to determine whether, in the reviewing physicians' opinion, an error occurred and/or an injury resulted. Then, they compared their own conclusions to whether the case resulted in a payment or no payment (they did not compare the amount of payment).

In the vast majority of the cases, the reviewing physicians agreed with the result of the case. In most of the cases the physicians disagreed with, the physicians felt that a payment should have been paid to a victim of medical negligence, but the case did not result in a payment.

Read more about the results on the physicians' resource, MedPage Today, which acknowledged that:

Frivolous lawsuits are not a major contributor to rising malpractice insurance costs nor does frivolous litigation clog the court system, according to investigators here.

The Wisconsin Legislature has passed a $750,000 cap on damages for pain and suffering. In July of 2005 Wisconsin's Supreme Court struck down as unconstitutional a $350,000 cap.

Governor Jim Doyle has not indicated whether or not he will sign the legislation. He vetoed an earlier effort to place a lower cap on damages.

As the debate heats up again in Tennessee regarding Medical Malpractice legistlation, see this editorial in the Tennessean.

Read this post at Dayontorts for my thoughts about what the Governor said - and did not say - at his State of the State address.

This week the Wisconsin legislature again passed caps on non-economic damages in medical malpractice cases, despite the fact that its state Supreme Court ruled similar caps unconstitutional earlier this year. See article. The legislature also passed and sent to Governor Doyle a bill setting new, stricter guidelines on when someone who is injured using a product can sue its manufacturers, distributors or retailers. The Senate passed and sent to the Assembly a bill that would make it much tougher to sue paint manufacturers who used lead decades ago, even though, according to this article, opponents of the bill say lead still sickens and kills more than 3,000 children in Wisconsin each year. Let's just hope the heart and mind of Governor Doyle is different from that of the state's legislators.

This is a very interesting article from the Seattle Times discussing some of the conflicting issues raised by their medical malpractice/tort reform fight.

According to this post on Fredricksburg.com, a publication of The Free Lance-Star, the Virginia General Assembly, in an effort to figure what was causing rising medical malpractice insurance premiums within the state, required insurance companies to report on "closed claims." The first such report, on claims from 2002 through 2004, showed that three out of four cases in that time period produced no payout, five out of six juries found for the doctor or hospital, and awards of $1 million or more are rare. Looks like the insurance companies have some explaining to do.

The Tennessee Department of Commerce and Insurance has released its first report about medical malpractice payouts. Read the post at www.dayontorts.com.

In April 2005, the Congressional Research Service published a brief survey on medical malpractice and tort reform proposals. They start out by briefly describing the pros and cons of various proposed reforms (briefly as in only one sentence on a topic as significant as abolishing joint and several liability). The study concludes with a survey of the caps on punitive and "noneconomic" damages in each state. For a reminder of the information that Congress receives before voting on issues like H.R. 5, download the file here.

Here is a link to a recent article that says that the problem with malpractice is malpractice. The article notes that "cutting medical errors by 25 percent would save far more than any tort-law change Congress has considered, all without doing damage to our system of justice or the rights of victims."

The story ends with this: "The moral of this story is crystal clear: 'Physician, heal thyself.' Rather than scapegoat trial lawyers and put their heads in the sand, physicians, hospitals, and insurance companies should commit themselves to ending the epidemic of patient deaths that is the real cause of the malpractice problem and a key contributor to rising health-care costs."

Thanks to Evan Schaeffer for bringing the article to my attention.

The National Practioners Data Bank is an excellent source of information about jury verdicts and settlements against health care providers other than institutions. Why? Because federal law requires that verdicts and settlements over $10,000 must be reported to the Data Bank.

Here is a summary of some data Public Citizen pulled from the Data Bank concerning payments on behalf of doctors:

• Total payments for malpractice judgments have fallen 24.5 percent, from $299.6 million in 2000 to $226.2 million in 2004.
• The median payment resulting from a judgment appears to have risen, from $230,000 in 2000 to $265,000 in 2004.
• The total number of judgments against physicians dropped 31.9 percent between 2000 and 2004, from 670 to 456.
• The number of malpractice judgments against physicians, adjusted for population growth, has fallen 34.6 percent since 2000.

Read more here.

By the way, before reading too much into the growth in judgments over the last 5 years, remember that payments in these cases often include past or future medical costs and, during that five year payment, health care costs rose at least 30%.

Click here to read Representative Nancy Pelosi's remarks on the floor of the House of Representatives regarding HR 5, the medical malpractice bill which passed the House last week.

Those of us who have lived through a couple of the so-called medical malpractice insurance crises knew it was just a matter of time before the market softened. The time has come.

The industry has declared that the insurance crisis is over. Read this fascinating article.

Of course, the facts will not stop the health care industry or its insurers from continuing to press for tort reform. Insurers want to take the risk out of the risk business, and the health care industry wants protection from patients who sit on juries.

Think capping damages and shortening statutes of limitation is the way to hold down rising medical insurance premiums, check out this mythbuster by the Center for Justice and Democracy.

A few days ago we alerted you to a report commissioned by the Center for Justice and Democracy which evaluated the regulatory filings by insurers to state regulators and found that net claims for medical malpractice paid by 15 leading insurance companies have remained flat over the last five years, while net premiums have surged 120 percent. Link here to read the actual report. CBS news reports that insurers were critical of the study's methodology, saying that it only considered the amount paid out to plaintiffs and did not consider other costs — such as money paid to defend claims.

Here is yet another article that studies what is actually going in the medical malpractice insurance industry.

The NYT article says that "a study to be released today by the Center for Justice and Democracy, a consumer advocacy group in New York, may add fuel to that debate [about the controversy over insurance rates]. The study, compiled from regulatory filings by insurers to state regulators, finds that net claims for medical malpractice paid by 15 leading insurance companies have remained flat over the last five years, while net premiums have surged 120 percent. From 2000 to 2004, the increase in premiums collected by the leading 15 medical malpractice insurance companies was 21 times the increase in the claims they paid, according to the study."

Click here for a fascinating article from the Cato Institute on medical malpractice.

A neurosurgeon has written an op-ed piece about his experience with medical negligence litigation and offering his opinion about the role it plays in our society. The article is titled "How Malpractice Suits Keep My Profession Honest."

The writer gives this example of the pressure faced by doctors who testify for patients: "I remember a Detroit neurosurgeon calling me in desperation to ask what to do after he had testified against a surgeon who had operated on the wrong side of a patient's head. The Detroit doctor worried that he was being needlessly scrutinized by the American Association of Neurological Surgeons. It reminded me of a case in which I had been an expert witness here in Washington that led to complaints from the professor who had performed the surgery and unrelenting nit-picking from the association. My advice to the Detroit doctor? Resign from the association. That's what I did."

Isn't it nice to see a member of the profession speak out on the side of his patients?

Most tort reform proposals center on limiting damages for people who are found by a jury to have meritorious claims. Insurance companies that sell malpractice insurance want their exposure capped. (Who wouldn't?) Do doctors and hospitals get lower premiums in return? Well, that depends on if you ask the insurance companies under oath or if you are reading their PR pieces.

There is another debate out there that is more interesting from an intellectual standpoint - the debate about special courts for health care claims. These courts would run by health care professionals. Two folks are going at it on the Internet right now - Philip K. Howard, Founder and Chair of Common Good and the author of The Death of Common Sense: How Law is Suffocating America and Stephanie Mencimer, a contributing editor of The Washington Monthly and author of a upcoming book on tort reform.

Read the debate by clicking here.