Blog

Archive for the ‘Medical Malpractice Damages Cap’ Category

Medical Malpractice Payouts Statistics For 2011

Monday, April 30th, 2012

An analysis of the medical malpractice payouts data reported for 2011 to the National Practitioner Data Bank was performed by Diederich Healthcare, which is a national medical malpractice insurance company that provides medical malpractice insurance and consulting services to over 13,000 healthcare professionals throughout the United States.

Six states represented 51.4% of all medical malpractice payouts in the United Sates during 2011. New York had the highest total of medical malpractice payouts ($677,866,050) followed, in order, by Pennsylvania ($319,710,250), Illinois  ($242,108,800), New Jersey ($221,170,750), Florida ($218,123,050), and California ($215,519,200). The states with the lowest total of medical malpractice payouts in 2011 were South Dakota ($3,033,750), Vermont ($3,938,250), Wyoming ($4,235,000), North Dakota ($4,852,500), and Alaska ($6,347,500).

The total medical malpractice payouts for 2011 was slightly lower than in 2010 (by 0.24%). Medical malpractice payouts by year have been decreasing since 2003, when the total medical malpractice payouts were the highest in the last 20 years ($4,822,485,800 in 2003).

Hawaii had the highest average medical malpractice payout ($686,509) and Indiana had the lowest average payout ($122,297).

The U.S. state with the largest number of medical malpractice payouts in 2011 was New York (1,744), followed by California (1,352), Florida (1,003), and Pennsylvania (903). The U.S. state with the fewest medical malpractice payouts in 2011 was Wyoming (11), followed by North Dakota (14), Alaska (16), and Vermont (20).

More than 36% of the medical malpractice payouts were for people from ages 40 to 59 ($737,338,400 for ages 0 to 19; $786,317,650 for ages 20 to 39: $1,351,743,100 for ages 40 to 59; $707,442,700 for ages 60 and over (ages were unavailable for people who received a total of $100,972,250 in medical malpractice payouts)).

58% of the medical malpractice payouts were for women and 42% for men.

Source

The raw data from 2011 do not explain the bases behind the numbers. For instance, what effect have tort reform laws in various states had on the number and the amount of the medical malpractice payouts in various states? And how would the number of medical malpractice payouts and the amounts of the medical malpractice payouts have been different without such tort reform measures?

Perhaps most important to medical malpractice victims in the past and for future medical malpractice victims in various states that have varying tort reform measures in place (or will enact tort reform measures in the future) is how many medical malpractice victims have not (and will not) receive fair and adequate compensation for their injuries and losses due solely to medical malpractice recovery limitations?

One conclusion regarding the medical malpractice payouts statistics for 2011 that cannot be made is that there were less medical malpractice incidents in the United States than at any time in the past — the imposition of procedural roadblocks and the severe artificial and arbitrary limitations placed on recoverable damages for medical malpractice claims in an ever-increasing number of U.S. states mask and hide the true monetary and societal costs in lives destroyed and families’ finances ruined as a result of medical negligence committed by careless, inattentive, incompetent, uncaring, or simply negligent health care providers.

When the heavy losses and permanent injuries associated with medical malpractice affect you or your family, the prompt advice from a medical malpractice attorney may help you decide how you should proceed with your possible medical malpractice claim.

Click here to visit our website or you may also contact us by toll free call to 800-295-3959 to be connected with medical malpractice lawyers in your local area who may be able to assist you with your possible medical malpractice case.

Turn to us when you don’t know where to turn.

You can follow us on Facebook, Twitter, Google+, and LinkedIn as well!

Connecticut Nursing Home Fined $510 For Resident’s Choking Death

Wednesday, April 11th, 2012

Just how much is a Connecticut nursing home resident’s life worth? The answer may be $510, according to the fine imposed on a nursing home by the Connecticut Department of Public Health (DPH) that could have imposed a maximum fine in the amount of $3,000.00, for the choking death of a resident. The DPH also required that the offending nursing home submit a corrective-action plan to address the choking death incident.

According to state investigators, the elderly Connecticut nursing home resident suffered from pulmonary disease and mental illness. The nursing home care plan for the resident required the nursing home staff to cut up the resident’s food in small pieces and to closely monitor the resident to make sure that he ate slowly and took small bites. The staff were also required to cue the resident to chew and swallow his food. The goal of the care plan was to insure that the resident received the proper nutrition while at the same time insuring that he safely chewed and swallowed his food.

On the day of the choking incident in February, 2012, the nursing home staff left the resident unattended as he ate a peanut butter and jelly sandwich. When the staff returned to the resident, he was found unresponsive in a seated position. An ambulance was called and the ambulance report stated that the resident’s airway was completely blocked with peanut butter. The resident choked to death and was declared dead at the hospital from cardiac and respiratory arrest.

Source

It appears that the nursing home resident had been identified as someone who had a swallowing disorder and/or was at risk for choking while eating that required that close and proper supervision be provided at all times during meals. It is common for some elderly people, people who have dementia, and people with certain physical conditions to require assistance with meals, such as special food preparation (for example, pureeing of food), restrictions on certain foods (such as meats and other foods that may be difficult to chew and/or swallow), and thickening of fluids to help with swallowing. It is quite obvious that people with swallowing disorders may suffer dire consequences, including choking to death, if  there is a lapse in following the required swallowing protocols.

It appears from the investigative report from the Connecticut DPH that the nursing home had identified and addressed the resident’s swallowing/eating issues in his care plan that required close observation, supervision, and cuing while the patient was eating. It is foreseeable that if the care plan requirements are not followed with regard to eating, then the patient can choke to death on the simplest food item in a very short period of time. Choking is a very painful process that takes enough time that most residents would be aware of their dire situation and would suffer severe pain and mental anguish before death.

The Connecticut man’s death is a clear example of the gravest consequences that may result if the simplest but most critical efforts are not consistently made to protect the safety of nursing home residents.

If you or a loved one suffered injuries or death due to nursing home negligence, nursing home neglect, nursing home abuse, nursing home mistakes, or nursing home errors, you may be entitled to compensation for your losses and injuries. The prompt investigation by a medical malpractice attorney may help determine if medical malpractice has occurred.

Click here to visit our website or call us toll free at 800-295-3959 to be connected with local medical malpractice lawyers who may be able to investigate your possible medical malpractice claim against the nursing home and represent you in a medical malpractice case, if appropriate.

Turn to us when you don’t know where to turn.

You can follow us on Facebook, Twitter, Google+, and LinkedIn as well!

Louisiana Medical Malpractice Cap Upheld (Again)

Friday, April 6th, 2012

In a decision issued on March 13, 2012, the Supreme Court of Louisiana upheld as constitutional the Louisiana medical malpractice damage cap as applied to nurse practitioners (La.R.S. 40:1299.42(B) provides, in pertinent part: “(1) The total amount recoverable for all malpractice claims for injuries to or death of a patient, exclusive of future medical care and related benefits as provided in R.S. 40:1299.43, shall not exceed five hundred thousand dollars plus interest and cost.”)

The Supreme Court of Louisiana reviewed its prior cases in which it determined that the right of malpractice victims to sue for damages is not a fundamental constitutional right. Therefore, Louisiana must only articulate “a rational basis” reasonably related to a governmental interest for medical malpractice legislation that limits monetary recoveries.

However, the “rational basis” standard shifts to a higher standard if the legislation creates a separate or suspect classification, requiring a showing that a legitimate state objective is substantially furthered by the classification. Louisiana’s medical malpractice cap creates two classes: those who are fully compensated by an award equal to or less than $500,000.00 (the amount of the medical malpractice cap) and those whose severity of injuries require an award in excess of $500,000.00 and who, therefore, receive less than full compensation. Therefore, the separate statutory classification discriminates on the basis of physical condition. In order for Louisiana to prove such discrimination is not arbitrary, capricious, or unreasonable, a legitimate state objective substantially furthered by the discrimination must be shown.

The Supreme Court of Louisiana found that the Louisiana legislature acted to combat the rising insurance premiums in an inherently risky industry in order to avoid a healthcare crisis in Louisiana, which the Supreme Court of Louisiana determined substantially furthers a legitimate state interest.

In this most recent case, the Supreme Court of Louisiana had to decide if the medical malpractice cap applied to nurse practitioners. The Supreme Court of Louisiana held: “We find the same crisis referenced in our above discussion exists for nurse practitioners insofar as they, too, are exposed to malpractice liability. The legislature’s proven intent in enacting the cap was to afford limited protection to health care providers who qualified under the MMA in an attempt to prevent and/or treat the crisis in the medical field. We do not adopt the logic that requires the State to put on evidence of a crisis within each speciality and sub-speciality of the field of health care.”

A wrinkle in the present case is that the Louisiana law at the time of the act of medical malpractice that was the subject of the medical malpractice lawsuit defined “health care provider” as including a “registered or licensed practical nurse or certified nurse assistant.” Subsequently, the Louisiana legislature amended the definition to include a “nurse practitioner.” The Supreme Court of Louisiana held, however, that the amendment simply clarified the legislature’s position that nurse practitioners had always been covered as registered nurses and the amendment reflected the intention to simply clarify that nurse practitioners as registered nurses were always covered by the medical malpractice law.

Source

If you or a loved one have been injured as a result of medical malpractice in Louisiana or in another U.S. state, you may wish to promptly consult with a local medical malpractice attorney regarding your potential medical malpractice claim.

Click here to visit our website or telephone us toll free at 800-295-3959 to be connected with medical malpractice lawyers in your state who may be able to investigate whether your have a legitimate medical malpractice claim and represent you in a medical malpractice case, if appropriate.

Turn to us when you don’t know where to turn.

You can follow us on Facebook, Twitter, Google+, and LinkedIn as well!

Missouri Medical Malpractice Cap Being Challenged

Thursday, April 5th, 2012

A 2005 Missouri law that placed caps on non-economic damages in the amount of $350,000 is presently being challenged as unconstitutional in a case before the Supreme Court of Missouri. The case involves a medical malpractice claim arising out of the birth of a baby in Missouri on November 1, 2006. The Supreme Court of Missouri heard the parties’ oral arguments in support of their respective positions on March 27, 2012. It is uncertain when the Supreme Court of Missouri may issue its decision in the case.

According to the allegations in the medical malpractice lawsuit filed in 2009, the medical personnel in the hospital who participated in the labor and delivery of the plaintiff’s baby were negligent in their medical care and their medical negligence resulted in catastrophic and disabling brain injuries to the newborn.

At the time of the jury trial in 2011, the then 5 year old had the mental capacity of a 3 year old and will remain at that mental capacity for the rest of his life. The child suffers from cerebral palsy and will never be able to walk.

The medical malpractice jury awarded damages in the amount of  $4,821,000, of which $1.45 million was for noneconomic damages (mental anguish, pain and suffering, etc.). The trial judge then reduced the noneconomic damages award to $350,000 (the amount of the Missouri cap on noneconomic damages) without the jury ever knowing about the cap (as required by the Missouri law).

The constitutional challenge to the Missouri noneconomic damages cap is based on the arguments that it is a violation of the right to trial by jury inasmuch as the jury’s verdict is reduced to the arbitrary limit of the noneconomic damages cap as provided in the Missouri law and it is also a violation of the equal protection clause inasmuch as the negligent health care providers are given special protection/treatment under the law. The successful medical malpractice plaintiff (the mother of the child on her child’s behalf) also argues that the cap violates the separation of powers by invading the judiciary’s traditional function of assessing on a case-by-case basis whether a jury’s damages award is excessive, inadequate, or against the weight of the evidence.

Source and Source

About 30 states in the United States have enacted caps on medical malpractice damages in one form or another. The caps on noneconomic damages have been challenged in the highest courts of many states, with some states upholding the caps as being constitutional and others finding the caps on damages to be defective as unconstitutional or for other reasons.

If you or a family member were the victim of medical malpractice in Missouri or in another state in the United States, you may have the right to obtain compensation for your injuries and losses. A medical malpractice attorney in your state may help you determine if you have the basis for bringing a medical malpractice claim and to file a medical malpractice claim on your behalf, if appropriate.

Click here to visit our website  or telephone us toll free at 800-295-3959 to be connected with medical malpractice lawyers in your state who may be able to help you with your possible medical malpractice case.

Turn to us when you don’t know where to turn.

You can follow us on Facebook, Twitter, Google+, and LinkedIn as well!

U.S. House Of Representatives Passes Cap On Noneconomic Damages

Tuesday, March 27th, 2012

On March 22, 2012, the U.S. House of Representatives passed H.R. 5 that is entitled “Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2012” by a vote of 223 to 181, with 7 Democrats voting yes, 10 Republicans voting no, and 4 Republicans voting present. The AMA-supported H.R. 5 now moves to the U.S. Senate, where its future in its current form is uncertain.

Medical malpractice victim advocates are concerned about the HEALTH Act’s medical liability provisions, including an onerous cap (limit) on noneconomic damages in the amount of $250,000.

What Are Some Of The Provisions Of H.R. 5 That May Affect Medical Malpractice Victims?

H.R. 5 states that it is intended “To improve patient access to health care services and provide improved medical care by reducing the excessive burden the liability system places on the health care delivery system.”

H.R. 5 places national time limits on when medical malpractice claims can be made: “The time for the commencement of a health care lawsuit shall be 3 years after the date of manifestation of injury or 1 year after the claimant discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.”

H.R. 5 places a national arbitrary limit on allowable noneconomic damages: “In any health care lawsuit, the amount of noneconomic damages, if available, may be as much as $250,000, regardless of the number of parties against whom the action is brought or the number of separate claims or actions brought with respect to the same injury….future noneconomic damages shall not be discounted to present value. The jury shall not be informed about the maximum award for noneconomic damages.”

H.R. 5 would eliminate ”joint and several liability” : “In any health care lawsuit, each party shall be liable for that party’s several share of any damages only and not for the share of any other person.” (With ”joint liability,” each liable party is responsible for the full amount of the liability as long as the party was partially at fault; with “several liability,” each liable party is responsible for only his proportionate share of the total liability (that is, the damages caused by his wrongdoing only); with “joint and several liability,” the claimant may recover all of his damages from any of the liable defendants regardless of each defendant’s share of the responsibility for the damages – the burden is placed on the defendants to establish among themselves their proportionate share of the total liability).

H.R. 5 places limits on the amount of contingency fees that medical malpractice lawyers may receive if the medical malpractice claims result in recoveries: “Forty percent of the first $50,000 recovered by the claimant(s). Thirty-three and one-third percent of the next $50,000 recovered by the claimant(s). Twenty-five percent of the next $500,000 recovered by the claimant(s). Fifteen percent of any amount by which the recovery by the claimant(s) is in excess of $600,000.”

Furthermore, H.R. 5 provides with respect to contingency fees: “…in any health care lawsuit in which the attorney for a party claims a financial stake in the outcome by virtue of a contingent fee, the court shall have the power to restrict the payment of a claimant’s damage recovery to such attorney, and to redirect such damages to the claimant based upon the interests of justice and principles of equity.”

How Would Some Of The Restrictions Of H.R. 5 Affect Potential Medical Malpractice Claimants?

First and foremost, seriously and permanently injured medical malpractice victims would not be able to receive full, fair, and adequate compensation for their losses and damages resulting from medical malpractice because the maximum amount that they could possibly receive for their excruciating and constant pain and suffering, disfigurement, mental anguish, etc. would be in the arbitrary amount of $250,000. In short, H.R. 5 would reward and insulate the medical malpractice defendants who have been found to have provided  medical care that failed to meet the required standard of care and that caused outrageous injuries to their patients, while at the same time denigrating the suffering and catastrophic injuries suffered by the innocent victims of their medical negligence.

A less obvious result of H.R. 5 may be that medical malpractice victims deserving of receiving compensation for their injuries from their medical malpractice wrongdoers may have greater difficulty or may be precluded altogether from finding a medical malpractice attorney who would be willing to take their case because medical malpractice lawyers may be willing to accept only the most substantial medical malpractice cases that present the greatest likelihood of a substantial recovery because their contingency fee (the manner in which most medical malpractice lawyers are compensated — they earn a fee only if there is a recovery) would be substantially reduced by H.R. 5 from what is customarily and presently charged by medical malpractice attorneys.

Furthermore, despite the agreement (contract) signed by the medical malpractice victim and his medical malpractice attorney at the beginning of the representation regarding the agreed-upon amount that the medical malpractice attorney will receive if the case is successful, a judge may nonetheless reduce the long-ago agreed-upon contingency fee after the successful medical malpractice case results in a medical malpractice recovery. Therefore, medical malpractice lawyers may reject valid and just medical malpractice cases if the facts of the case pose a substantial risk of having their agreed-upon contingent fee reduced by a judge after the lawyer has exhaustively and successfully worked to obtain compensation for his medical malpractice client.

Think of it this way: what would be your incentive to work for a prospective employer if your employer had the right to reduce the amount he agreed to pay you after you had already completed the work you agreed to do?

We at MedicalMalpracticeLawyers.com often get calls from medical malpractice victims who are outraged to learn that despite their terrible and life-changing injuries suffered as a result of clear medical malpractice negligence, their respective states have substantially limited the amount that they can recover for their pain and suffering, mental anguish, and other noneconomic damages suffered solely as a result of their medical provider’s carelessness.

We feel their pain in finding out that their elected state representatives who were supposed to protect them and look out for their interests have sold out to the special interest groups of medical professionals and their lobbyists who now enjoy the unnecessary and unjust benefits of limits on noneconomic damages at the dire expense of the rest of us.

When will we rise up and react to our elected representatives (on the state level in the past and at the present, and on the federal level presently) dealing away our rights and threatening our future and the future of our families by providing special rights and privileges to those who promised to provide competent medical care but instead were careless or incompetent leading to needless injuries?

Perhaps one of the reasons for the inaction of our citizens in standing up to protect their long-established rights to be compensated for their injuries and losses due to the negligence of others is that most people think that they (and their family members) will not become medical malpractice victims in their lifetime and therefore the caps on noneconomic damages will never affect them. To those individuals we remind them of the prophetic warning of our American forefather, Benjamin Franklin, when addressing our essential rights: “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”

You can help to protect the rights of innocent victims of medical negligence: make your voice heard by contacting your state and federal elected representatives to tell them to treat everyone fairly and equally by not providing medical providers with special protections and rights that hurt victims of medical malpractice.

If you or a family member have been injured or suffered losses as a result of medical malpractice, click here to visit our website or telephone us toll free at 800-295-3959 to be connected with medical malpractice lawyers in your state who may be able to assist you with your medical malpractice claim.

Turn to us when you don’t know where to turn.

You can follow us on Facebook, Twitter, Google+, and LinkedIn as well!

Are Caps On Noneconomic Damages Fair?

Sunday, March 25th, 2012

Many U.S. states have enacted laws that place a cap (limit) on the amount of noneconomic damages (such as pain and suffering, mental anguish, disfigurement, etc.) that medical malpractice victims may recover from medical malpractice defendants who provided medical care that failed to meet the required minimum standard of care under the particular circumstances.

Even if an independent and unbiased medical malpractice jury heard all of the trial testimony of the parties and their expert and factual witnesses, thoroughly considered and properly analyzed all of the  evidence introduced during trial, and exhaustively discussed and evaluated the entire medical malpractice claims and defenses before rendering its solemn verdict in favor of the medical malpractice victim, if the amount of the verdict for noneconomic damages is above the arbitrary cap of which the jurors were not even aware, the jury’s verdict in excess of the cap would be rendered impotent.

A recent compelling situation involving noneconomic damages unrelated to medical malpractice cases sheds some light on the unfairness and arbitrariness of caps on noneconomic damages.

A 50-year-old man in Louisiana spent almost 30 years (29 years and 11 months) in prison for the alleged crime of aggravated rape before DNA testing that was not available when the man was originally found guilty determined unequivocally that the man was totally innocent of the crime. The man was finally released from prison on October, 21, 2011, after having had most of his life stolen from him by his wrongful conviction and incarceration. His long prison sentence also resulted in the man suffering from eye and foot problems; now that he has been released, he has no medical insurance coverage to address his medical problems.

A Louisiana judge who considered how much the wrongfully convicted man should receive in monetary compensation from Louisiana for his wrongful conviction and incarceration agreed on March 9, 2012 that the man should receive $747,916.67 plus $80,000.00 for educational and medical expenses.

However, a Louisiana law “caps” the amount that the man will receive to $250,000, even though Louisiana itself sets the rate of compensation for each year of wrongful incarceration at $25,000.00 per year. The $250,000 cap on the man’s compensation means that he will receive an average of $11,000.00 per year for each year he languished behind bars.

The day before the 50-year-old man appeared before the Louisiana judge, the same Louisiana judge ruled that three men who were wrongfully convicted in 1993 of killing an alleged crack dealer and spent almost 16 years in prison were each entitled to $250,000.00 in compensatory damages plus $80,000.00 in services.

The judge’s ruling in each of the four cases must still be approved by the Louisiana Legislature. Louisiana ranks second from the bottom of all U.S. states in the amount that it compensates individuals who were wrongfully convicted of crimes.

Source

Once someone has been charged with a crime, has been wrongfully convicted of a crime, and has served part of a criminal sentence in prison for the crime he did not commit, the mental anguish and loss of freedom suffered by the wrongfully convicted can never be made right — the only available method to somehow and someway lessen the permanent wrong done to the wrongfully convicted is to provide him with a satisfactory level of monetary compensation that is just and fair.

Likewise, once an innocent victim of medical malpractice has begun to suffer from life-long pain and suffering and the loss of the enjoyment of his former life, the victim of medical malpractice can never be “made whole” (that is, put back into the position that he was in just prior to the devastating medical malpractice event) — the only available method to somehow and someway lessen the permanent wrong done to the medical malpractice victim is to provide him with a satisfactory level of monetary compensation that is just and fair.

Caps (limits) placed on the amount of noneconomic damages that a medical malpractice victim can recover from a medical malpractice wrongdoer are, by design, arbitrary inasmuch as the amount of the cap applies to everyone and for every injury without regard to the actual effect and extent of the noneconomic injuries suffered by medical malpractice victims.

By way of example, a 22-year-old formerly healthy and active woman who will suffer intractable pain for the rest of her life and will be sentenced to a life-long existence in a wheelchair due solely to the unacceptable and substandard medical care that her health care provider provided to her will be limited to the same cap on noneconomic damages as a terminally-ill patient in her 90s who suffered additional noneconomic damages as a result of medical malpractice. Since a 22-year-old would likely have a much longer life expectancy than a 90-year-old, and therefore the 22-year-old will suffer pain, anxiety, and mental anguish much longer than the 90-year-old as a result of the medical malpractice event that caused her permanent misery, how is it reasonable, fair, and just that both are subject to the same limit on noneconomic damages?

Caps on the amount of noneconomic damages that victims of medical malpractice may recover unfairly, inequitably, and unequally benefit the medical malpractice wrongdoers to the severe detriment of the medical malpractice victims. Never lose sight of the fact that the medical malpractice wrongdoer was in the sole position to provide the necessary and required medical care to the patient, which he represented to his patient he was capable of providing, and had he done so consistent with what his medical peers agree is the standard of care that must be followed under the circumstances, the medical malpractice victim would not have suffered the losses due to the medical malpractice event — the medical malpractice victim is an innocent victim, not having contributed to his own injuries and losses.

What Should You Do If You Become The Victim Of Medical Malpractice?

The prompt and timely advice of a medical malpractice attorney may help you understand your legal rights regarding your ability to recover for the expenses and losses resulting from medical malpractice.

Click here to visit our website  or, if you prefer, call us toll free at 800-295-3959, to be connected with medical malpractice lawyers in your local area who may be able to investigate your possible medical malpractice claim for you and bring a medical malpractice case on your behalf, if appropriate.

Turn to us when you don’t know where to turn.

You can follow us on Facebook, Twitter, Google+, and LinkedIn as well!

We’re Celebrating One Full Year Of Daily Blog Postings!

Sunday, March 4th, 2012

Well, we have reached a significant milestone — one complete year of our daily blog postings (we started daily posting in our Blog on March 5, 2011 and have posted every day since). When we first started to blog, we thought that it might be difficult to find relevant, interesting information to discuss on a daily basis, but our concern was misplaced (fortunately). In fact, we have thoroughly enjoyed, learned from, and looked forward to researching  matters for our postings.

Without our constant research into medical malpractice issues and other medically-related matters, we would not have become aware of the facts behind the constant onslaught of attacks against medical malpractice victims’ rights and the increasing elevation of medical malpractice wrongdoers’ financial interest over their innocent victims’ right to be fully compensated for their permanent injuries, for their life-long and constant pain and suffering, and the unending devastating effect on their families and loved ones.

In the last six months alone, we have posted many blogs that have addressed critical issues regarding medical care and medical malpractice in the United States, including:

We discussed the West Virginia orthopedic surgeon who had 124 medical malpractice claims filed against him resulting from only 7 months of medical practice in a West Virginia hospital, which cost the hospital’s corporate owner approximately $100 million in medical malpractice payments (see our Blog posting for February 20, 2012).

We brought light to the fact that nearly 4.5 hospital acquired infections occur for every 100 hospital admissions in the United States each year, costing the healthcare system between $5.7 billion and $6.8 billion per year (figures for 2007). And that hospital acquired infections are among the leading causes of preventable death in the United States, effecting 1 in 20 hospitalized patients and accounting for 1.7 million infections and 99,000 deaths (figures for 2002). (See our Blog posting for February 28, 2012).

We tried to dispel misperceptions such as the belief that poor patients sue for medical malpractice more often than others (see our Blog posting for March 2, 2012).

We reported on the $285 million settlement of approximately 120 product liability lawsuits brought against a giant international pharmaceutical company for claims that it sold over-sized vials of generic propofol to endoscopy clinics in Nevada while allegedly knowing that the vials were being used for multiple patients that allowed the spread of hepatitis C and other blood-borne infections despite the markings on the vials that they be used for single-use only. (See the Blog posting for February 23, 2012).

We cited official statistics regarding medical malpractice claims in the United States (“One in three Americans have reported that they or a family member had been a victim of medical malpractice. One in five reported that a medical error caused serious health problems or death….a report released by the U.S. government in 2010 found that one in seven Medicare patients are injured during hospital stays and that adverse events contribute to 180,000 deaths each year, costing the U.S. government $4.4 billion per year. One survey found that 70% of patients who suffered from a medical error were not informed about the error. Studies have shown that most medical malpractice claims are meritorious and that 97% involved medical injury and 80% involved serious disability or death.”) See our Blog posting for September 19, 2011.

We provided additional statistics regarding medical malpractice in the United States: “An often-repeated statistic is that medical malpractice (preventable medical errors) in the United States causes approximately 98,000 deaths per year and is the sixth leading cause of death in the United States. Despite these statistics, there are very few medical malpractice claims filed relative to the number of potential claims. Research has found that the vast majority of medical malpractice claims filed are meritorious. Almost one-half of physicians admit that they have not reported their medical errors or incompetence. About six percent of physicians are responsible for almost sixty percent of medical malpractice claims in the United States.”

Further statistics regarding medical malpractice in the U.S. are: ”The costs of medical malpractice claims is less than two percent of all health care costs in the United States. Completely restricting medical malpractice claims would lower health care costs by less than one-half of one percent. The number of medical malpractice claims have remained relatively stable over the last several decades but medical malpractice insurance premiums charged by medical malpractice insurance companies during that time increased quickly, resulting in high premium surpluses enjoyed by the insurance companies. Health care costs have not been reduced in states that have enacted caps on damages in medical malpractice cases but hospitals and medical malpractice companies have enjoyed earnings in the tens of millions of dollars without reducing their charges to patients and physicians in those states. The number of physicians in the United States is increasing and outpacing the rate of population growth in the United States. There are twice as many physicians per 100,000 population in the United States now than in the 1960s. The ratio of physicians to 100,000 population is highest in those states that do not have caps on medical malpractice damages. Two-thirds of physicians who have had ten or more medical malpractice payments have never been subject to disciplinary action (almost one-half of hospitals have never reported a disciplinary action to the National Practitioner Data Bank).” From our Blog posting for September 18, 2011.

We have discussed many drug issues as well, such as:

– a warning regarding a counterfeit version of the cancer medication Avastin (Blog posting on February 21, 2012);

–  the abuse of prescription painkillers  (“The sale of prescription painkillers in the United States has more than tripled since 1999. Over 36,000 people died from drug overdoses in the United States in 2008, which included over 20,000 who died from prescription drug overdoses.” Blog posting on February 26, 2012);

– the safety of generic versions of brand-name drugs (see our Blog posting on February 13, 2012);

– companies that overcharge for drugs (“A recently filed federal lawsuit claims that the largest drugstore chain, Walgreens, and a generic drug manufacturer, Par Pharmaceuticals Cos., overcharged insurance companies, union health and welfare funds, and self-insured employers for generic versions of Prozac, Zantac, and generic versions of other common prescription medications manufactured by Par by providing and billing for higher-priced capsules of the drugs rather than the tablets prescribed by physicians.” Our Blog posting for January 16, 2012);

– critical drug shortages in the United States (“The GAO reported that drug shortages have increased each year from 2006 through 2010, with a record number of drug shortages in 2010 and the pace of drug shortages in 2011 that is expected to surpass 2010. There were a total of 1,190 drug shortages reported from January 1, 2001 through June 20, 2011, and 65% of the shortages involved drugs that were in short supply more than once. The average drug shortage lasts more than 9 months (286 days).” As reported in our December 17, 2011 Blog posting);

–  additional statistics regarding drug shortages in the U.S.: ”The shortage of sterile injectables represented 74% of the drug shortages during 2010: 54% of the shortages in sterile injectables during 2010 were due to contamination, particulates, and impurities; 21% were due to delays or manufacturing capacities; 11% due to discontinuation; 5% due to raw materials issues; 4% due to an increase in demand due to another shortage; 3% due to the loss of a manufacturing site; and, 2% due to component problems or shortages. Only 7 manufacturers make up a large portion of the manufacturers of sterile injectables, which are often less attractive economically to produce.” As reported in our October 1, 12011 Blog posting;

– the manner in which large drug manufacturers are preventing lower cost generic drugs from becoming available to the public (“The U.S. Federal Trade Commission (“FTC”) has reported that name-brand drug manufacturers will cost U.S. taxpayers billions of dollars over a 10 year period by paying generic drug manufacturers to delay their introduction of lower-cost generic alternatives to brand-name drugs. The FTC found that for the period from October 1, 2010 through September 30, 2011 (Fiscal Year 2011), drug companies entered into 28 potential pay-for-delay deals (there were a record 31 such deals in the prior fiscal year). The deals involved 25 different name-brand pharmaceutical products with combined U.S. annual sales greater than $9 billion.” See our Blog posting for October 27, 2011).

We noted research that found that most medical malpractice events go unreported (“A new report regarding a study of Medicare patients who were injured in hospitals found that only one in seven hospital errors were reported.”) See our Blog posting for January 14, 2012).

We reported on the egregious failure to discipline doctors who commit medical malpractice in the United States (“…the Medical Board’s failure to discipline 710 California doctors who were subject to discipline for wrongdoing by California hospitals and other health care organizations between September 1990 and December 31, 2009…102 of the 710 doctors had been determined by peer reviewers to be an immediate threat to the health or safety of patients…35% of the 710 doctors were repeat offenders…Of the 220 doctors in the United States found to be an immediate threat to health or safety of patients, almost half were California doctors.”) Read our Blog for January 3, 2012.

We brought to light the fact that medical malpractice insurance companies enjoy huge profits while at the same time raising the premiums they charge doctors and complaining about “frivolous medical malpractice lawsuits” (“The largest medical malpractice insurance company for medical malpractice claims against physicians and surgeons in the United States is The Doctors Company. The Doctors Company had 71,572 members, $4,060,651,000 in assets, and $1,228,237,000 in member surplus for 2010. The Doctors Company is so profitable that in 2011, it announced a $23 million dividend for its members. Since 1976, it has paid over $207 million in dividends, including over $100 million in the last five years alone. The Doctors Company reports that it pays damages in only 18% of the medical malpractice claims made against its members.”) Read our Blog for November 13, 2011.

We cited a report in our November 14, 2011 Blog that found that “Caps on noneconomic damages do not have any effect on the medical malpractice insurance premiums charged doctors. (In 2009, the average medical malpractice insurance premium was 1.8 times what it had been in 2001, both in states with caps and in states without caps.) Medical malpractice companies in all states in the United States have experienced increased profits. Medical malpractice companies in states that have caps (limits) on the amount that medical malpractice victims can recover experienced increasing profits at an even higher rate (24% higher) than the medical malpractice companies in states without caps (if medical malpractice insurance companies pay out less, they keep more profits). And the rate at which profits are increasing is greater in states with caps than states without caps.”

We reviewed the statistics regarding the effect of medical malpractice claims and the effect of caps (limits) on non-economic damages on doctors in the United States (“How have medical malpractice claims really affected doctors? For one thing, doctors are not packing their medical bags and becoming taxi drivers. A survey of high-risk medical specialists found that 43% stated that they would restrict or eliminate services because of medical malpractice claims but only 3% actually did what they said they would do. In 2009, there were a record 972,376 doctors in the United States, which was nearly 18,000 more than in 2008. In 2009, there were 317 doctors for every 100,000 in population – a record proportion. Has the imposition of caps (limits) on noneconomic damages in medical malpractice cases by some states resulted in more doctors practicing in those states than in states that don’t have the caps? The number of doctors per 100,000 population is 21% higher in those states without caps (349) than those states with caps (288). The average medical malpractice insurance premium is higher in those states with caps than for those states without caps (the average rate of profit for medical malpractice insurance companies in those states with caps is 25% higher than for those in states without caps). Recent increases in medical malpractice premiums were based on diminishing investment values and lower interest rates as opposed to medical malpractice claims payments – there is little if any correlation between medical malpractice payments and medical malpractice premiums.”) Read our September 20, 2011 Blog posting.

We invite you to visit our Blog by clicking here, where you can read today’s daily blog posting, sign up for our daily blog postings to be sent automatically to your email every day, and/or to search by word or phrase our database of blog postings to find the information that you need or that you are seeking.

If you or a loved one have been injured as a result of medical malpractice in any state of the United States, the prompt advice of a medical malpractice attorney is essential to protecting your rights.

Click here to visit our website  or call us toll free at 800-295-3959 to be connected with medical malpractice lawyers in your state who may be willing to investigate your possible medical malpractice claim and represent you in a medical malpractice case, if appropriate.

Turn to us when you don’t know where to turn.

You can follow us on Facebook, Twitter, Google+, and LinkedIn as well!

Rick Santorum’s View Of Medical Malpractice Claims — Good For His Wife But Bad For You

Friday, February 17th, 2012

 

The Republicans running for President of the United States agree that you should not be fully compensated for your injuries and losses suffered as a result of medical malpractice. They want to put a cap (limit) on the amount that a jury can compensate you after the jury has heard all the testimony, reviewed all of the evidence, and has come to a consensus as to the value of your losses due to medical malpractice.

Rick Santorum, like the other Republican candidates for President, desires to change our laws for a select but very powerful and very limited category of people (that is, negligent medical providers) so that they are provided special and unjustified protections and benefits unavailable to all other people. They want to stack the judicial deck in favor of medical providers who provide their patients with substandard medical care so that the unwitting and innocent victims of their medical negligence are at a legal disadvantage and will never receive the justice that our laws were intended to provide. They want to replace equal protection under our laws with laws that provide unequal protection.

But has Rick Santorum’s view of the need for medical malpractice “reforms” always been this severe and sinister? The answer may surprise you.

In 1999, Rick Santorum’s wife, Karen, filed a medical malpractice claim against her chiropractor, seeking $500,000 in compensatory damages (which was twice the amount of Rick Santorum’s 1994 legislative proposal for a medical malpractice cap) for her alleged permanent back injury that she claimed would require a lifetime of medication for a lifetime of pain and restricted mobility, allegedly due to the chiropractor’s medical treatment of her. The medical malpractice claim alleged that Karen Santorum suffered back pain following the 1996 delivery of her premature fourth child (who tragically died the same day). She sought out the treatment by the chiropractor for her lower back pain. The medical malpractice claim alleged that the chiropractor’s manipulation of her spine (a standard chiropractic procedure) caused a disk herniation that required surgical removal of the disk one week later. Her total medical bills were just over $18,000.

Rick Santorum testified during his wife’s medical malpractice trial regarding the emotional and physical damages allegedly suffered by his wife that he said would justify a large monetary award for pain and suffering (the same category of damages that Rick Santorum and other Republican candidates for President of the U.S. now seek to severely limit). Rick Santorum testified at trial that his wife’s pain made her unable to exercise and stay fit and thus she did “not have the confidence” to assist him with his public campaign events. The jury awarded $350,000, which was reduced by the trial judge to $175,000 (the judge called the jury award “excessive” and based on “undue sympathy.” The trial judge stated, ”The subjective testimony of Mrs. Santorum and her husband is belied to some degree by the fact that Mrs. Santorum sought virtually no medical treatment following the operation.”)

Source

It would appear that Rick Santorum does not want his wife to be subject to the same pain and suffering damage cap that he would impose on the rest of the country. If you are not Rick Santorum’s wife, or if it is important to you that the laws that protect the innocent victims of medical malpractice should not be changed in order to heavily favor the wrongdoers at the expense of their victims’ destroyed lives, then you may wish to take that into consideration when it is time to cast your vote for President of the United States in November, 2012.

If you have been injured as a result of medical malpractice, you may wish to seek the advice of a medical malpractice attorney to protect your right to seek compensation for your losses.

Visit our website  or telephone us toll free at 800-295-3959 to be connected with medical malpractice lawyers in your state who may be able to help you with your medical malpractice claim.

Turn to us when you don’t know where to turn.

You can follow us on Facebook, Twitter, Google+, and LinkedIn as well!

Pennsylvania Lawmakers Want To Restrict Nursing Home Malpractice Damages

Sunday, January 22nd, 2012

The Pennsylvania House narrowly passed a bill this week that would restrict the amount of punitive damages that can be awarded as a result of nursing home neglect or abuse. Passed by a vote of 103 to 89, the proposed legislation would restrict the amount of punitive damages to no more than 200% of the amount of compensatory damages that are awarded in medical malpractice claims against long-term care facilities (nursing homes), personal care homes, and assisted living facilities. The proposed restriction on punitive damages would not apply for intentional misconduct or unlawful acts.

Since punitive damages are meant to punish “egregious” conduct and to be an incentive to act as civilized society requires, many Democratic legislators voted against the bill that many Republican legislators touted as a heath care cost-containing effort. The Republican leadership used the often-used catch phrases “frivolous lawsuits” and “deep pocket lawsuits” when describing the preclusive intent of the proposed legislation. The proposed legislation now goes to the Pennsylvania Senate for consideration.

Source

We see major problems with the proposed Pennsylvania legislation. For example, if a 95-year-old nursing home resident dies as a result of egregious conduct by the nursing home staff (such as failing to suction a patient on a ventilator that directly causes the patient to choke to death on his own saliva despite the nursing home’s assurances to the patient’s family that the proper ventilator care could be, and would be, provided), the compensatory damages would be minimal — there would be no medical expenses to be recovered by the resident’s surviving spouse related to the egregious conduct because the resident’s unattended but painful death did not require further medical care, and the compensation for the resident’s loss of remaining life expectancy would likely be minimal because of the resident’s age. Therefore, the restrictive cap on punitive damages in the amount of 200% of compensatory damages would result in the nursing home knowing ahead of time that it would be exposed to very limited punitive damages for its egregious conduct, which would be a very powerful disincentive to the nursing home to provide the proper (and promised) medical care or to avoid egregious conduct by its employees.

Because one of the most powerful and legitimate goals of allowing punitive damages awards is to provide a monetary incentive to avoid future egregious acts that cause substantial injuries to others, severely restricting the amount of punitive damages destroys that goal.

The vast majority of nursing homes in the United States are for-profit businesses owned by individuals or corporations whose primary goal is to maximize the profits for their shareholders. If they can cut corners and spend less money by reducing their staffing, putting off necessary maintenance for their medical equipment, by providing less training and educational opportunities for their staff, or by providing lower quality generic medications or lower quality institutional meals for their residents, the savings go into their pockets. If the powerful incentive of possible exposure to substantial punitive damages if they fail to remain above-board or fail to provide the necessary level of promised care and services is severely limited, as the Pennsylvania lawmakers’ proposed legislation is drafted, then the health and well-being of the most vulnerable, our nursing home residents, are placed at serious risk.

We urge our Pennsylvania brethren to contact their state representatives to implore them to vote against the proposed Pennsylvania legislation that places the profits of wealthy individuals and corporations over the needs and rights of people.

If you or a loved one have been injured as the result of inadequate or negligent medical care in a nursing home or by nursing home abuse or neglect, the services of a medical malpractice attorney may help you receive the justice that you deserve.

Visit our website by clicking here  to be connected with medical malpractice lawyers in your state who may be willing and able to bring a medical malpractice case on your behalf for the wrongs that you have suffered. You may also call us toll free at 800-295-3959.

Turn to us when you don’t know where to turn.

You can follow us on Facebook, Twitter, Google+, and LinkedIn as well!

California’s Medical Malpractice Damages Cap Limits Valid Claims And Benefits Bad Doctors

Thursday, January 19th, 2012

California has one of the lowest medical malpractice damages caps in the United States — $250,000. This cap limits potential medical malpractice claimants from finding medical malpractice lawyers willing to take their cases, no matter how valid the claims and the seriousness of the injuries, because the costs of litigation (including tens of thousands of dollars paid to medical experts to review the medical records, render their opinions, and testify during depositions and at trial) and the vast time commitment make the decision to take the case prohibitive.

In a California case involving a 17-year-old girl who was born with a heart defect that required surgery as an infant and a follow-up routine catheterization procedure before going off to college, the cardiologist informed the girl’s waiting parents immediately after the catheterization that an “incident” occurred during the procedure that deprived their daughter’s brain of oxygen for 40 seconds. The daughter never regained consciousness and died ten days later after being removed from a ventilator.

The parents felt that they were not being told the truth about what happened to their daughter during the catheterization procedure. The hospital was not helpful in determining the truth. The only way the parents could discover the truth about the reasons for their daughter’s death would be to file a medical malpractice case but they had difficulty in finding a medical malpractice attorney to help them because of the $250,000 California cap on damages.

They finally found a medical malpractice lawyer who was willing to file their medical malpractice case pro bono. Nonetheless, their lawyer had difficulty obtaining the full and complete medical records from the hospital where the catheterization was done. Their complaint filed with the California Department of Public Health resulted in an investigation that revealed that one of the participants in the teenager’s care removed her catheters without the proper supervision and another was not authorized to treat patients. In response to the investigative findings, the hospital responded by adding a warning to its informed consent form to advise that patients may be treated by doctors in training.

The parents’ medical malpractice case ultimately resulted in a settlement in the maximum amount allowed under California law – $250,000.

Source

To us, this California medical malpractice claim is an example of two of the many shortcomings with regard to medical malpractice damages caps — that damages caps are woefully inadequate to compensate the most severely injured medical malpractice claimants and that damages caps result in many egregious medical malpractice wrongdoings remaining hidden from the victims and their families because medical malpractice lawyers cannot afford to represent such deserving claimants because of the low limit of the caps.

One result of valid medical malpractice claims not being filed because of low damages caps is that incompetent (or worse) medical providers are not identified by hospitals or supervisors and therefore are permitted to continue to provide substandard medical care that injures (or worse) unsuspecting patients.

Medical malpractice damages caps must be identified for what they are — subsidies for bad medical care that harm patients and disincentives to weeding out incompetent doctors and other incompetent medical providers. Contrary to the mantra of tort reformers, medical malpractice damages caps preclude many valid medical malpractice claims from being filed and would have no effect on medical malpractice lawyers who bring ”frivolous lawsuits” (by the way, can tort reformers provide any statistics regarding how many medical malpractice claims are frivolous (or the number of sightings of the real Big Foot, Santa Claus, or the Easter Bunny, for that matter))?

When the effects of medical malpractice cause you or your family to suffer substantial injuries, significant pain and suffering, or additional medical expenses, you may wish to consult with a local medical malpractice attorney regarding your possible medical malpractice claim and your right to be compensated for your losses.

Visit our website  or call us toll free at 800-295-3959 to be connected with medical malpractice lawyers in your state who may be willing and able to assist you with your medical malpractice claim.

Turn to us when you don’t know where to turn.

You can follow us on Facebook, Twitter, Google+, and LinkedIn as well!