California Advocates Push to Raise Golden State Medical Malpractice Cap -- Would Be First Increase Since 1975

Under California law, damages in medical malpractice cases are capped at just $250,000.

If that figure sounds anachronistic… well, that's because it is: literally!

The $250,000 cap has been in place for nearly four decades – it became law way back in 1975, when then-Governor Jerry Brown signed the Medical Injury Compensation Reform Act (MICRA). Forty years later, that same cap remains in place. (Curiously, Governor Brown is, once again, Governor of the Golden State).

But that old cap may not last much longer.

Passionate California consumer advocates and attorneys have demanded reform to make the system more fair and modern. Thousands of signatories hope to qualify the "Troy and Alana Pack Patient Safety Act" to go on California’s November ballot later this year. The Act takes its name from a tragic accident: in 2003, two children (Troy and Alana Park) died in a horrific car crash, after their mother felt asleep because her doctors overprescribed her pain killers.

Bob Pack, the father of the two children, wrote the bill. He said the Act would accomplish several things:

•    It would force doctors to undergo random drug testing;
•    It would curb drug abuse related to “doctor shopping” by leveraging the state’s current prescription drug data base;
•    It would increase the cap for pain and suffering in medmal cases, which is still stuck at the 1975 level of $250,000.

Pack told reporters that: “inside these boxes [the ballots for the vote] are the voices of many victims and many Californians who want to see this change." Unsurprisingly, hospitals, doctors, and community clinics have resisted moving the cap. They fear that doing so might spark a wave of lawsuits and increase patient costs. The California Medical Association’s President, Dr. Richard Thorp, did not mince words: “this initiative is bad for patients, bad for taxpayers, and bad for California’s entire system of healthcare delivery.”

Sacramento Democrat, Darrell Steinberg, hopes to ward off a ballot initiative by seeking a legislative solution to get the MICRA cap bumped up to $500,000. This rate, as he noted, would "still be far below the rate of inflation, since MICRA became law 39 years ago."

Steinberg hopes to avoid a political bloodbath: “initiative battles [are] costly and uncertain and will damage the reputation of two fine professions… The issue cries out for a legislative solution, and what I'm offering is a conservative increase that's fair to injured patients as well as the medical and legal communities.”

Steinberg maintains that his compromise number ($500,000) is reasonable and that it would fairly compensate injured patients without significantly increasing medical costs.

But a group called Consumer Watchdog is not so sure. That group's director, Jamie Court, said “legislators have had years to make this change… if there is no popular legislation for patient safety, then the people will make the change.”

The situation in California illustrates the complexity of the medmal cap debate and its divisive tenor. Fortunately, if you or someone you love got hurt due to a doctor or hospital’s negligence or carelessness, you don’t have to fight your legal battle on your own. Call a D.C. medical malpractice attorney here at Regan Zambri & Long today at (202) 463-3030 for a free consultation.
 

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Over 200 Patients Die Daily From Hospital-Associated Infections, Report Shows

Posted by: Salvatore J. Zambri, founding member and partner

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Results from the recently-published Centers for Disease Control and Prevention (CDC) 2011 hospital survey indicate that, despite progress in recent years, the deadly health-care problem of infection continues. According to survey results reported in The New England Journal of Medicine, an estimated 648,000 patients suffered from 721,000 healthcare-associated infections and 75,000 died from them. In his press release, CDC Director Tom Frieden said, "Today and every day, more than 200 Americans with healthcare-associated infections will die during their hospital stay."  The most common infections include:

  • pneumonia  -22%
  • surgical site infections - 22%
  • gastrointestinal infections - 17%
  • urinary tract infections - 13%
  • blood stream infections - 10%

Many antibiotic-resistant bacteria are prevalent in hospitals, including Clostridium difficile (C. diff) and methicillin-resistant staphyloccus aureus (MRSA). As a result, new approaches to controlling bacteria in hospitals have become necessary. Overuse of antibiotics is now discouraged with the hope that some will become more effective again. The proposed federal budget for 2015 includes additional funding for battling antibiotic resistance.

In his statement about the survey results, Mr. Frieden said, "We go to the hospital hoping to become better, and mostly we do, but not always." I hope that hospitals take more aggressive measures to protect their patients from hospital-borne infections. Lives depend on it.

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Medical Malpractice Caps Limits Overturned in Florida

Posted by: Salvatore J. Zambri, founding member and partner

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For years, supporters of so-called tort reform claimed that the costs of medical care would decrease drastically if recoveries in medical malpractice lawsuits were limited. These anti-civil-justice advocates suggest that capping damages in cases would cause doctors to order less tests, reduce their medical malpractice premiums, and make frivolous lawsuits disappear. A number of states bought that theory and enacted laws designed to control medical malpractice lawsuits. Recent rulings and statistics show that "tort-reform" harms Americans. 

As recently reported in the Miami Herald, according to the National Conference of State Legislatures, thirty-five states cap the amount of money that can be awarded in medical malpractice lawsuits. Supporters of medical malpractice caps limits proclaimed that the excessive number of frivolous lawsuits were creating a "malpractice crisis" that drove insurance rates sky-high and forced doctors to leave the state. As a result, caps were enacted.

Florida's Supreme Court recently ruled that those laws were unconstitutional and violated the equal protection guarantee under the state's constitution. Prior to this ruling, Florida limited the amount of recovery for most patient deaths due to medical negligence to $1 million and non-economic damages to $500,000. The ruling did not address the caps limits where the patient didn't die. The court questioned whether the alleged crisis that led to the caps limit ever existed. The court concluded that not only was there no crisis, but that the creation of lawsuit caps enriched insurance companies at the expense of doctors and patients. According to the ruling, during the time that the law was in effect, insurance companies continued to charge excessive premiums to doctors. Any savings that may have resulted from the caps was never passed on to doctors or consumers.

"The most recent records and reports of the Florida Office of Insurance Regulation, and the annual reports of medical malpractice insurers, confirm that not only has the number of insurers providing medical malpractice coverage increased...the profits would probably shock most concerned.

Indeed, between the years of 2003 and 2010, four insurance companies that offered medical malpractice insurance reported an increase in their net income of more than 4300 percent."

The court wrote, "The cap on non-economic damages serves no purpose other than to arbitrarily punish the most grievously injured or their surviving family members." According to the executive director of the Florida Justice Association, "Caps on damages are fundamentally unfair to the victims of medical negligence."

Florida is not the only state where caps on medical malpractice damages hurt Americans. In 2003, Texas passed a malpractice law that capped damages at $250,000.  By 2009, reports indicated that Texas had the highest healthcare costs in the country and Medicare payments rose faster than anywhere else in the country.

As more states realize that artificial caps on medical malpractice claims are unfair to patients and their families who suffer from catastrophic injuries and damages from medical negligence, caps will be eliminated and the evaluation of damages will be returned to juries, as the Constitution of the United States requires.

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3 Counterintuitive Truths about Medical Malpractice Lawsuits


Whether you suffered an injury during a recent hospital stay, or your spouse endured an unnecessary surgery or a prescription drug overdose, you're angry. But you're also cautious. You're somewhat dubious about medical malpractice lawsuits -- you may have concerns about both their ethicality and their utility. To that end, let's explore 3 counterintuitive truths about med mal cases, so that you can make a more informed decision about your next steps.

Truth #1: The vast majority of medical malpractice suits have merit.


Many people sadly buy into the stereotype that medmal cases are often “frivolous” claims brought by greedy or poor claimants -- and that they punish innocent doctors.

Statistics just don’t back up this stereotype.

For instance, the Harvard School of Public Health recently conducted an exhaustive analysis of 1,400 medical negligence claims and found that 97% of them had merit. In fact 80% of the cases studied involved major injury or death. The Harvard researchers said “portraits of a malpractice system that is stricken with frivolous litigation are overblown.”

Likewise, the suits do a good job of zeroing in on the truly dangerous doctors. An analysis conducted from 1991 to 2005 found that fewer than 6% of doctors caused nearly 58% of all malpractice claims payments. Another study of 51 hospitals throughout New York found that the poor patients who lacked insurance were far less likely to sue than other patients.

Truth #2: The actual number of malpractice events likely dwarfs the number of medical malpractice lawsuits.

The Institution of Medicine estimates that 98,000 people, annually, die due to preventable medical errors. Hundreds or thousands of other patients suffer serious, nonfatal, preventable injuries. The number of medical malpractice cases filed is miniscule by comparison, constituting just 3% of all civil tort cases brought annually. In other words, most victims of malpractice do nothing, legally speaking.

Truth #3: Getting fair settlements in medmal cases is quite hard, and “outrageous” jury verdicts are few and far between.


The tort reform lobby convinced many Americans that so-called “runaway juries” enjoy awarding outrageously high settlement amounts. But here's the reality. Per the National Association Insurance Commissioners, payouts for medical negligence claims dropped by 50% between 2003 and 2008. Furthermore, fewer than 0.5% of cases led to verdicts or settlements that exceeded $1 million. The median award for a permanent injury – and remember, this is the total compensation package for someone permanently disabled for life due to someone else's negligence or carelessness – was just $315,000 in 2005.

These counterintuitive truths just scratch the surface. The reality is many myths make life needlessly challenging for injury victims and their families. Fortunately, the team at Regan Zambri & Long can provide thorough, strategic assistance. Call us now at (202) 463-3030 for a free evaluation of your D.C. medical malpractice case.




 

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Study States Hospital-Errors Causing 440,000 Deaths Each Year

Posted by: Salvatore J. Zambri, founding member and partner

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Until recently, data from 1984 has been used to estimate the number of deaths caused by hospital error - 98,000.  A recent report from the Journal of Patient Safety indicates that number was a very low estimate. Updated data reveals that around 440,000 deaths are caused by preventable hospital error. In addition, 10 to 20 times more patients experience serious harm from hospital mistakes.  

Unfortunately for consumers, information for patients is limited. Consumer Reports rates hospitals on safety and quality of care. The Leapfrog Group (representing employer purchasers of health care) rates hospitals on safety measures.  Medicare claims include re-admission within 30 days after discharge statistics. U.S. News' Best Hospital Rankings helps patients who have difficult health problems select hospitals. Other groups create their rankings based on being allowed to use the hospital logo. According to the National Quality Forum, not enough measurable and consistent information exists in a way that consumers can find it.

"The Journal of Patient Safety study found 210,000 'detectable' deaths per year — the number they eventually fixed on of 440,000 reflected the estimate that half or two-thirds of all such deaths are never counted. 'That’s a big range,' said Leah Binder (chief executive of The Leapfrog Group). 'It sounds so high, but what more frightening is that we still don’t know. Nobody’s counting the bodies.' ”

Patients have a right to know about the safety standards and quality of care for hospitals. The needed information is frequently unavailable, inconsistent, or not transparent enough to understand.

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FDA Allows Drug Company Representatives to Attend Painkiller Drug Panel

Posted by: Salvatore J. Zambri, founding member and partner

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Have drug companies become too close to the organization that is supposed to regulate them?

According to a recent article in the Washington Post, this question may have legitimacy as the recent discovery that drug companies paid as much as $25,000 to attend the panel-meetings to become part of "an essential collaborative effort" between the Food and Drug Administration and major pharmaceutical companies. The stated goal of the panel meetings was to publish "consensus" statements on scientific matters related to testing drugs. Members of the panels included FDA and NIH officials, academics, and pharmaceutical company representatives (the only ones who paid fees to attend).

Robert Dworkin of the University of Rochester and Dennis Turk of the University of Washington organized the group IMMPACT, and they were paid as much as $50,000 per meeting. A goal of the group was to "design clinical trials that would eliminate the benefits of new drugs that might be missed in standard test, avoiding 'false negatives.' "  According to Mr. Dworkin, “Everybody has been very happy with [the meetings] and they are getting a huge amount for very little money (impact on FDA thinking, exposure to FDA thinking, exposure to academic opinion leaders and their expertise, journal article authorship, etc.) and they know it.”

A critic of the meetings from the NIH suggested more openness for the IMMPACT meetings to "avoid the stigma that this initiative is a 'pay to play' process."

Whether there was undue influence by the drug companies on the FDA decisions may not ever become known. However, the secrecy of the meetings indicates a definite need for transparency among government agencies and the businesses they are intended to regulate.

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Children and Concussions

Posted by: Salvatore J. Zambri, founding member and partner

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A growing awareness of the dangers of concussions among children has recently become a bigger concern for parents with children involved in sports. Evidence suggests that not only does a concussion affect a child's sports performance, it also has an impact on the daily life of that child.

The Committee of Sports-Related Concussions, a project by The Institute of Medicine and the National Research Council, part of the non-profit, private National Academy of Sciences, jointly issued a report urging "more research on younger athletes and establishment of a national system to monitor how often they are getting concussed." The report indicates that even with limited data available regarding children's sports injuries, sports-related concussions are a significant public-health issue. In addition, the culture of resistance among athletes prevents many children from even reporting an injury. Although helmets are used for football, protecting against skull fractures, there is limited evidence that current helmet designs reduce concussion risks.

The concussion report was sponsored by the Centers for Disease Control and Prevention, the U.S. Department of Defense, U.S. Department of Education, Health and Human Services Administration, the National Athletic Trainers Association Research and Education Foundation, the National Institutes of Health, and the CDC Foundation (via a grant from the National Football League).

Recommendations by the committee include:

  • "The CDC should set a national surveillance system to determine the rate sports-related concussions among youth, and include data on protective equipment, causes and extent of the injuries.
  • The National Institutes of Health and the Department of Defense should support research to improve concussion diagnosis and create age-specific guidelines for managing concussions.
  • National Institutes of Health and the Department of Defense should conduct studies on effects of concussion and repetitive head impacts over a life span. To aid this research, the National Institutes of Health should maintain a national brain tissue bank.
  • The NCAA and the National Federation of State High School Associations 'should undertake a rigorous scientific evaluation of the effectiveness of age-appropriate techniques, rules and playing and practice standards in reducing sports-related concussions.'
  • The National Institutes of Health and the Department of Defense should fund research on age- and sex-related variants in risk for concussions.
  • The NCAA and the National Federation of State High School Associations, in conjunction with other groups, should develop 'large-scale efforts to increase knowledge about concussions and change the culture (social norms, attitudes, and behaviors) surrounding concussions among elementary through college-aged youth and their parent, coaches, sports officials, educators, trainers, and health care professionals.' "

A recent issue of Pediatrics, the Official Journal of the American Academy of Pediatrics, outlines some guidelines for physicians in assisting students who have experienced concussions return to the classroom successfully:

  • "In the short term, students who have a concussion may need to have their academic workload adjusted so that the brain is not overtaxed and symptoms do not worsen. Cognitive rest could include a break from electronic devices as well.
  • Since most concussion symptoms improve within 3 weeks, academic adjustments can often be made without a formal written plan. If symptoms persist beyond that time, students could benefit from a more detailed medical assessment and a formal education strategy (such as an Americans with Disabilities Act "Section 504" plan).
  • Ideally, students would be assisted in their return to the classroom by a multidisciplinary team that includes people from the medical community, school, and family.
  • Students should be performing at their baseline academic level before they return to extracurricular activities, including sports."

Neither the report issued by the Committee of Sports-Related Concussions nor the guidelines offered by the American Academy of Pediatricians will answer all parent questions regarding choosing a sport or equipment for their child. Parents, make the best decision possible based on the knowledge available at the time and follow medical advice in determining if or when your child should return to sports activities following a concussion.

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Senate Drafts Bill to Regulate Compounding Pharmacies

Posted by Salvatore J. Zambri, founding member and partner

 

Following the recent debates over how to regulate the compounding pharmacy business, the Health, Education, Labor and Pensions Committee of the U.S. Senate has drafted a bill aimed to "make clear oversight responsibilities for pharmaceutical compounding and ensure safety for consumers." According to the news as posted on the Committee's Senate.gov website:

 "Draft legislation preserves the states’ primary role in traditional pharmacy regulation and clarifies FDA authority over those making sterile products without prescriptions and shipping across state borders."

As I have noted in earlier posts, the most challenging problem with compounding pharmacies has been determining who is in charge of regulating them. FDA Commissioner Margaret Hamburg indicated that the conflicting patchwork of state and federal laws regarding pharmacies has resulted in a lack of aggressive policing by the FDA.  The new bipartisan Senate bill requires compounding manufacturers to register with the FDA, report the drugs they make, and meet standards similar to those of drug manufacturers.

The International Academy of Compounding Pharmacists has criticized the bill for creating "more confusion and blurring the jurisdiction authority of regulators."  Its position continues to be that states should license and oversee compounding pharmacies and that the FDA should oversee and regulate pharmaceutical manufacturers.

Public Citizen, a consumer advocate and nonprofit organization has also weighed in on the proposed Senate bill to regulate compounding pharmacies. In its press room release on May 1, 2013, "Public Citizen to Congress: Proposed Compounding Pharmacy Legislation Would Be a Major Step Backward for U.S. Drug Safety", Public Citizen criticizes the bill for actually weakening  existing FDA control and creating more ambiguity defining compounding pharmacies. An alternative suggested by Public Citizen proposes legislation that would:

"- Draw a single, clear line between traditional compounding and drug manufacturing, with no newly created category of second-tier, substandard drug manufacturers, called “compounding manufactures”;

- Provide adequate funding to the FDA to aggressively enforce existing laws against “compounding pharmacies” that cross the line into manufacturing;

- Strengthen the FDA’s authority to police the line between traditional compounding and drug manufacturing by requiring registration and granting the FDA authority to inspect for traditional compounding pharmacies, regardless of whether they engage in drug manufacturing activities; and

- Require clear, standardized warning labels to communicate to providers and patients who purchase traditional compounded products that the safety, efficacy and the accuracy of the product’s labeling have not been assessed by the FDA."

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Analysis of 25 Years of Paid Malpractice Claims

Posted by Salvatore J. Zambri, founding member and partner

 

A recent article published by BMJ Quality and Safety studied the diagnosis-related claims from the National Practitioner Data Bank maintained by the federal government for a 25 year period from 1986-2010. This study reviewed and cataloged the error type, outcome severity and payments of malpractice claims, comparing diagnostic error to other malpractice claims.  Of the 350,706 paid claims studied during this 25 year period, diagnostic errors accounted for 28.6% of the errors as well as the highest proportion of total payments (35.2%). "Diagnostic errors more often resulted in death than other allegation groups (40.9%) and were the leading cause of of claims-associated death and disability."

 Researchers contributing to this study concluded, "Among malpractice claims, diagnostic errors appear to be the most common, most costly and most dangerous of medical mistakes. We found roughly equal numbers of lethal and non-lethal errors in our analysis, suggesting that the public health burden of diagnostic errors could be twice that previously estimated. Healthcare stakeholders should consider diagnostic safety a critical health policy issue."

According to Johns Hopkins University School of Medicine neurologist David E. Neuman-Toker, one of the lead researchers in this study, "Diagnostic errors are the most common, the most costly and the most deadly of all medical errors.”  He also indicated that, “there are no public reporting requirements for measuring diagnostic accuracy or error,” because diagnostic errors are not always evident immediately, as contrasted to medication and surgical errors.

Hopefully, the medical community will use the information from the study to make changes that will lead to greater patient safety.

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Compounding Pharmacy Report Reveals Limited Regulation

Posted by Salvatore J. Zambri, founding member and partner

 

The push to regulate compounding pharmacies is beginning to gain more attention on the national front. According to a congressional report released on April 15, 2013, the state-by-state examination last fall into the safety issues surrounding the common practices among compounding pharmacies demonstrates that states do not adequately track, regulate or inspect these pharmacies, exposing patients to unsafe drugs, disease and death.

 

The Markey Report, "State of Disarray," findings and conclusions:

  • "State boards of pharmacy generally do not know which pharmacies engage in compounding, do not know whether pharmacies ship compounded drugs across state
    lines, and do not know which pharmacies manufacture large quantities of compounded
    drugs.
  • Only thirteen state boards of pharmacy know which pharmacies are providing sterile compounding services and only five of these states have inspectors that are trained to identify problems with sterile compounding.
  • States typically do not maintain pharmacy inspection records that enable them to identify systemic and repeated compounding pharmacy safety problems that originate either in-state or out-of-state.
  • States are unable to effectively police compounding pharmacy activities in other states. Moreover, when issues arise with out-of-state pharmacies, states do not consistently inform the origination state or the FDA.
  • Despite general increases in state board of pharmacy budgets, the number of pharmacy inspectors has remained consistently low. Furthermore, states usually do not distinguish between inspections of traditional and compounding pharmacies."

Congressman Markey is among those who support legislation to give the Food and Drug Administration more authority over compounding pharmacies.  A scheduled hearing of a House Energy and Commerce subcommittee will be held on Tuesday, April 16, 2013 to focus on this issue.

I will continue to update our readers on this critical consumer issue as more attention is given to the safety problems of compounding pharmacies. 

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Continue Reading Posted In Medications , Men's Health Issues , Patient Safety , Product Liability , U.S. Food and Drug Administration Warnings , Women's Health Issues
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