DC Metro Area Medical Malpractice Law Blog

A recent two-year survey of Texas judges shows that runaway juries and frivolous lawsuits are mostly fictional events and that tort reform legislation isn't necessary.  To evaluate the nation's need for tort reform,  Baylor Law School researchers surveyed a broad sample of trial judges, whose unique position allows them to view the same evidence as jurors, yet remain non-partisan regarding trial outcomes.  Impartial observation of numerous trials over time also guards against the possibility that a judge would adopt broad generalizations based on individual, isolated verdicts.

The profitability of selling medical malpractice insurance has skyrocketed in recent years.  Consequently, most malpractice insurance companies have routinely "over-reserved" (set aside more profit) than is necessary.  These are among the findings of former Missouri Insurance Commissioner Jay Angoff, who recently analyzed the 2006 financial statements of the 15 largest medical malpractice insurance companies in the U.S., and issued a report entitled, "No Basis for High Insurance Rates:  An Analysis of the 15 Largest Medical Malpractice Insurers' 2006 Financial Statements."

Other blogs and the media have given significant coverage, lately, to a study by Washington University researchers highlighting the emotional turmoil American doctors suffer when they injure a patient through negligence or malpractice.  The research is almost as interesting as the misplaced sympathies it seems to engender in media circles.  The Joint Commission published the report this month in their Journal on Quality and Patient Safety, implying that many safety shortcomings in our health system are systematic, and perhaps not the sole responsibility of the system’s most visible custodians and benefactors.  Policy pundits have echoed those sentiments.  While few would accuse physicians of being disaffected or unconcerned by the injuries they inadvertently inflict on patients, fewer still would argue that they aren’t in a position to effect change, or that their responsibility for the health of patients is applicable only for the duration of seven-minute clinical encounter.

In an Op-Ed in the Montgomery Advertiser newspaper, Alabama Association for Justice President Bob Prince recently explained how the outcome of a $54 million suit against a metro dry cleaning business illustrates the strengths of the nation's legal system -- much to the chagrin of anti-consumer CEOs who peddle "tort reform."  The piece is reprinted below in its entirety.

An important American Association for Justice poll reveals that voters are significantly worried about corporate malfeasance -- especially regarding the pharmaceutical industry -- and aren't likely to rally behind political candidates who advocate tort reform.  Less than a quarter of those polled believed that juries award too much money to victims of personal injury.

Recently, a "lost pants" case became high profile because the plaintiff was an administrative law judge and the complaint was perceived as being outrageous.  As Richard Alderman, Associate Dean for Academic Affairs and Director of the Center for Consumer Law at the University of Houston Law Center, wrote in the Houston Chronicle, the justice system works to protect consumers who suffer injuries due to someone else's fault.  We have reproduced Mr. Alderman's article in its entirety below. 

For information about your legal rights, please click here or call
the law firm of Regan Zambri & Long, PLLC at 202-463-3030.    

For years now, proponents of medical malpractice "reform" have alleged that physicians, particularly ob-gyns, have been fleeing jurisdictions leaving more and more counties throughout the country without access to doctors.  In fact, in his 2006 State of the Union address, President Bush told the nation that there are "nearly 1,500 American counties without a single ob-gyn."  This statement, however, is simply wrong.

For decades, "tort reform" groups have been desperately trying to strip American citizens of their ability and right to access the courts and obtain fair justice.  In pushing their agenda, they have relied on data-starved rhetoric and biased opinions in order to influence the public to serve their special interests.  Thankfully, unbiased consumer advocacy groups have challenged the rhetoric and, through comprehensive studies, have elicited the truth regarding the civil justice system.

Once such advocacy group is the Center for Justice & Democracy. Recently, this organization has conducted a comprehensive study of the civil justice system.  Its findings can be found on its website at http://www.centerjd.org.  Among other things, the study addresses jury verdicts, the costs of the tort system, awards of punitive damages throughout the nation, lawyers' fees, the impact of the justice system on medical malpractice premiums, and other very important issues.  It is clear from the study, that the "tort reformers" have been greatly misleading the American public.

On December 11, the Association of Trial Lawyers of America changed its name to the American Association for Justice (AAJ).   Changing the name to the American Association for Justice is an important step in our campaign to protect and strengthen the civil justice system. 

As trial attorneys we have been attacked for years by the insurance companies and their big business allies who want to  eliminate the civil justice system and close the courthouse to injured individuals.  However,  the civil justice system was the big winner in the elections last week, as Americans voted for change.  Candidates who support the civil justice system have won, while the vast majority of campaigns attacking the civil justice system and trial lawyers failed.

A poll conducted by Opinion Research Corp., on behalf of CNN, found that 67 percent of 1,013 people surveyed said elected officials should not have more control over federal judges. Only 41 percent of respondents believed judges are "about right" in their court decisions. Thirty-four percent agreed that judges were too liberal while twenty percent said they were too conservative.  CNN, CNN  10/28/2006

Despite what insurance companies want you to believe, there is no medical malpractice insurance crisis in this country. In fact, studies have proven that medical malpractice lawsuits have decreased throughout the country. So why are the doctors’ insurance premiums so high? Greed.

The Connecticut Trial Lawyers Association has asked the state insurance commissioner to examine the premiums charged by the Connecticut Medical Insurance Company.  It appears that the insurance firm is charging too much given its profits and reserves.  The insurance firm made $12.5 million in profit last year, up from $7.6 million in 2004.  Given these profits, and the size of its surplus, the Connecticut Trial Lawyers Association feels that the insurer should reduce premiums as much as 10 percent.  The insurance commissioner is considering the request for a review, but no action has been taken yet. 

In 1999, the Institute of Medicine (IOM) first issued its groundbreaking report where it estimated that 98,000 deaths in the United States occur each year as a result of medical errors. The report also concluded that ninety percent of those errors were attributable to systems issues such as procedural issues and failures in communication. Unfortunately, despite the rhetoric that followed, the errors continue.  Our political leaders need to focus on fixing the systemic issues through mandatory use of technology and other proven methods and stop blaming individual practioner and their patients who are all victims of the unsafe systems currently in place.

In a recent article in the New England Journal of Medicine, authored by Hillary Clinton and Barack Obama, they provide suggestions as to how our country can achieve the two key objectives, which are eliminating errors that cause patient's harm and fixing the medical insurance climate for practicing doctors.  Clinton and Obama outline four key points: 1) reducing the rates of preventable patient injuries; 2) promoting open communication between physicians and patients; 3) ensuring patients access to fair compensation for legitimate medical injuries; and 4) reducing liability insurance premiums for health care providers.

We need to refocus on the key issues, which are patient safety.  If we can make the system safer for the patients and the doctors who practice in the system, while maintaining a fair system of compensation for legitimate injuries then the cost of insurance for the doctors will also be reasonable and everyone wins.

Senators Hillary Clinton and Barack Obama recently introduced the "Medical Error Disclosure and Compensation Act." This bill would provide funding to doctors, hospitals, and health systems that put in place mechanisms to promptly disclose medical mistakes or other mishaps to patients, offer compensation if the health provider is at fault, and ensure that those mistakes are reported to experts who can analyze them and recommend system changes to avoid similar problems in the future.

According to Seantor Barak Obama, a co-sponsor of the legislation, early disclosure systems, such as a program called "Sorry Works" really can work.  Mr. Obama claims that,   "(P)atients sue less, get compensated more, malpractice premiums go down, and doctors learn from mistakes." 

According to Richard Boothman, Chief Risk Officer at the University of Michigan Hospital System since the hospital sytem instituted a program to discuss complaints and errors promptly after they occur, the system has seen "a sharp reduction in claims, insurance costs, and the time it takes to address complaints."

The American Medical Association recently proposed that all individuals making more than $50,000 per year be required to purchase health insurance. The proposal includes tax penalties for individuals who don't purchase health insurance as well as tax credits and subsidies to assist lower-income individuals in purchasing policies. "The AMA just took a huge step toward supporting universal health care for all Americans," said Dr. Jack Lewin, executive vice president of the California Medical Association, which sponsored the proposal. "Historically, the AMA has supported voluntary approaches, but never a mandate." Although Congress or state legislatures would need to enact laws to mandate health insurance coverage, the AMA's lobbying efforts have been effective in gaining government support for its policy statements in the past.

Estimates from 2004 indicate that about 45 million people in the United States are without health insurance. According to the AMA's suggestion, reforms in the insurance markets should also be made to keep plans affordable.

Health policy experts are also in favor of the individual mandate for health insurance. "It's really amazing how quickly the individual mandate went from an occasional discussion among policy wonks to something advocated by major players, such as the AMA," said Paul Ginsburg, president of the Center for Studying Health System Change, a nonpartisan research group in Washington. "Broader acceptance of this idea may be the key to government's moving more aggressively to expand health insurance coverage."

A recent study by a group of Boston health-policy researchers of almost 1,500 randomly selected malpractice suits in the U.S. concluded that "the problem with medical malpractice litigation is not that too many undeserving people get paid, but rather that not enough deserving people get paid." Full details of the study are reported at Legal Debate: Assumptions on medical malpractice called into question: Science News Online, May 13, 2006 and The New England Journal of Medicine, May 11, 2006.

The Center for Constitutional Litigation, PC (CCL) received two trial-level victories during the first week of February 2006. CCL is engaged in challenging laws that impede access to justice throughout the country. Additional details are available at ATLA's Court News.

First, in Alaska, a trial court denied the Attorney General’s motion for reconsideration in Patrick v. State of Alaska, and upheld its earlier decision that the state’s $400,000 cap on non-economic damages is unconstitutional. Four years ago, the Alaska Supreme Court, by an equally divided vote, rejected a facial challenge to that statute. This case was an “as applied” challenge involving a Native Alaskan, who had been “tasered” by a state trooper and awarded $1 million in non-economic damages. The trial court invalidated the cap on equal protection grounds last spring, but the Attorney General moved for reconsideration on the basis of new evidence, consisting of some 1300 pages of legislative history and studies purporting to justify the cap. CCL’s Ned Miltenberg argued in a brief for the plaintiff that the “new evidence” could not be taken into account on a motion to reconsider, and was repetitive and unpersuasive. He supplemented the record with contrary evidence showing that Alaska had not experienced a litigation, insurance, business, or physician exodus crisis.

The second decision came in a CCL challenge to the application of the new federal vicarious liability law enacted last summer, which generally immunized car rental companies from vicarious liability. CCL attorney Andre Mura successfully argued to a state Circuit Court (trial level) in Brevard County, Florida, that the new law does not apply in Florida because the federal statute contains an exception that preserves liability for failure to meet state financial responsibility laws and that Florida has such a qualifying law. The judge ruled in favor of CCL’s argument from the bench and will be issuing an order shortly. The case, Poole v. Enterprise Leasing Company of Orlando, appears to be the first case to test the application of the new federal vicarious liability law. If interpreted broadly, the federal law could preempt the laws of fifteen states and the District of Columbia, which impose some measure of liability on lessors in order to ensure that compensation is available to innocent victims of motor vehicle accidents. CCL expects that constitutional challenges to the federal statute will be mounted in those other states as well.

Corporate America and the Insurance Industry are after More than Just Your Money. They want to take away your rights, knowing they can make even higher profits by keeping honest, hardworking Americans out of the courtroom. Please go to this website to find out how you can fight back and make a difference.

A recent comprehensive study by a leading insurance industry analyst reveals that medical malpractice insurance premiums are not influenced by patient lawsuits. The June 2005 report by Jay Angoff concludes, among other things, that "over the last five years the amount the major medical malpractice insurers have collected in premiums has more than doubled, while their claims payouts have remained essentially flat."

As Angoff's report details, the 15 major medical malpractice insurers increased their premiums by 120% even though their net payouts on claims increased by less than 6%. This amounts to a stunning increase in premiums at a rate 21 times the increase in payouts.

As with all other credible independent studies, this report confirms our belief that insurance companies are falsely raising the spectre of lawsuit abuse to exploit consumers and reap unconscionable profits.

To read the complete study, please click here.

A recent comprehensive report published by a leading independent consumer advocacy group reveals that most states are not living up to their obligations to protect patients from doctors who fail to practice medicine in conformance with accepted industry standards. Public Citizen, a national non-profit public interest organization, collected data from the Federation of State Medical Boards on the number of disciplinary actions taken against doctors in 2002-2004. In an April 2005 report, Public Citizen concluded that the following states have the least effective disciplinary procedures: Hawaii, Delaware, Wisconsin, Minnesota, Maryland, Nevada, Rhode Island, Arkansas, South Carolina, Washington, Tennessee, Mississippi, Michigan, Connecticut, and Florida.

Victims of medical malpractice are taking their opinions of their local doctors to the Internet, and a wider audience, and that has some medical providers on edge. In an effort to prevent patients from voicing their complaints and educating the public concerning poor medical care, many doctors are filing lawsuits in an attempt to limit patients' free speech rights.

A report issued by the U.S. Department of Justice's Bureau of Justice Statistics shows that the number of tort cases resolved in U.S. district courts fell 79 percent between 1985 and 2003. Other key findings include:

-- In 1985, 3,600 tort trials were decided by a judge or jury in U.S. district courts;

-- By 2003, that number had dropped to less than 800;

In an emergency session of the legislature, the Maryland Patients' Access to Quality Health Care Act of 2004 was passed over Governor Ehrlich's veto.

The bill freezes the amount of compensation a jury can award for pain and suffering damages at $650,000 until December 25, 2008 (after which it will increase $15,000 per year) and reduces the cap on damages in death cases from $1.6 million to $812,500. This cap applies only to medical malpractice cases.

The bill also requires doctors who testify in malpractice suits to be familiar with the specialty of the doctor they testify against, encourages settlement of malpractice cases by mediation, and creates a people's counsel to represent citizens before the Maryland Insurance Administration.

To read the unofficial language of the bill, please click here.

One dirty little secret about the so-called "Medical Malpractice Bill" (H.R. 5) pending in the U.S. House of Representatives is that hidden in the bill are unfair product liability protections for the drug industry: sweeping immunities that will make it impossible for people injured or killed by unsafe drugs—like Vioxx—to hold drug manufacturers accountable.

For instance, H.R. 5 protects drug makers by capping damages for any injury, even death, at $250,000. Thus, no matter how serious the injury it causes, and no matter how negligent its misconduct, a drug company like Merck will never have to pay more than $250,000 in compensation for noneconomic loss to patients and families who are injured or killed by defective drugs. The bottom line is that, under H.R. 5, drug companies will keep their profits while injured people are denied justice.

A recently released study of medical malpractice insurance premiums charged by insurance companies supports what we have been saying for several years: payments to innocent malpractice survivors are not responsible for increased malpractice insurance premiums. The study, released in July 2005, suggests that doctors are victims of price-gouging by insurance companies who continue to raise malpractice insurance premiums even as claims decline.

According to the Attorney General of one state: “The data in the Annual Statements filed under oath with state insurance departments, which this Report discloses, call into question much of what the medical malpractice insurance industry has been saying publicly during the past several years.” Click here for the full article text.

“The numbers underscore the need for much tougher, more aggressive oversight to prevent and punish profiteering,” Connecticut Attorney General Richard Blumenthal said. “Federal and state regulators should thoroughly scrutinize recent rate increases and take appropriate corrective action."