News: Medical Malpractice Insurance and Physician Practices » Tort Reform

When Doctors Admit Mistakes, Fewer Malpractice Suits Result, Study Says

john — Wed, 18 Aug 2010 18:44:56 +0000

Side Note: this article reports on a new study that examined the merit of apologizing for errors in medicine. Its finding were consistent with previous research – admitting fault for a medical mistake, apologizing, and offering a fair settlement can help reduce legal costs and cut down on claims. Good communication with patients is an essential physician risk management tool, and this includes apologizing for a mistake. While apology can have beneficial effects on the malpractice system, it can not fix a broken system by itself. Equally important are legal reforms like changes in limits on pain and suffering and statutes of limitations.

by Jennifer Goodwin
Business Week

TUESDAY, Aug. 17 (HealthDay News) — When doctors make mistakes, admitting the error, saying “I’m sorry” and offering compensation may go a long way toward preventing malpractice lawsuits, new research shows.

In 2001, University of Michigan Health System launched a program encouraging health workers to report medical mistakes. The program included a procedure for telling patients and their families about errors; explaining who made the error, how it occurred and what steps were taken to prevent a similar mistake in the future; making a sincere apology to the patient or their family; and offering fair compensation for harm when at fault.

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Medical Malpractice Reform Advocates Urge Action Now

john — Tue, 10 Aug 2010 15:19:18 +0000

Side Note: this article from New Jersey publication NJ Spotlight discusses recent intensified calls by advocate groups for reform to the state medical malpractice system. Groups representing interests in medicine, law, business, and nursing have ramped up their efforts in support of tort reform legislation as a response to the growing shortage of physicians in New Jersey. Other groups disavow any connection between rising malpractice insurance premiums and physician shortage, but a physician deficit is a serious concern and must be avoided at all costs. The advocates in New Jersey have been successful in spurring the drafting of a bill in the legislature. The bill, which is in its nascent stages, lays out reforms like limiting insurer’s ability to raise premiums on doctors who are being sued, decreasing the statute of limitations in malpractice cases, and protecting volunteer doctors from lawsuits. This last provision is a particularly urgent matter, as many doctors wish to volunteer in free clinics but are currently unable to do so because of the cost of insurance. This denies care to the neediest members of our society, and has been addressed successfully in other states. The Cunningham Group supports these efforts to advance tort reform and hopes to see them succeed.

by Linda Moss
NJ Spotlight

With New Jersey facing a worsening shortage of physicians, key medical and business groups say there’s only one way to stem the losses: Take action now to reform the medical malpractice laws that are costing the state its doctors. And policymakers are getting the message, crafting legislation aimed at addressing the issue.

“In medical malpractice, I think you’ve seen great concern among doctors that our civil justice laws don’t give them adequate protection from abusive lawsuits,” says Marcus Rayner, executive director of the New Jersey Lawsuit Reform Alliance (NJLRA), a statewide group representing businesses, law firms, and medical and nursing associations.

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Most Doctors Will Face Malpractice Suit, AMA Says

john — Fri, 06 Aug 2010 19:58:15 +0000

Side Note: This article reports on newly released data from the AMA. The AMA’s survey collected a variety of information on malpractice cases from a large number of physicians. The results showed that a sizable majority of physicians over 55 have been sued, and that a majority of doctors will probably be sued in their careers. The survey confirmed some trends in malpractice cases, finding that obstetrics and surgery are still the highest-risk specialties and that family medicine and psychiatry present lower exposure to lawsuits. One interesting finding was that men are twice as likely as women to be sued, probably due at least in part to the fact that they are overrepresented in high-risk specialties. This data confirms a dangerous trend toward an ever more litigious society at a time when health care costs are already skyrocketing. This trend will exacerbate the problem of defensive medicine, costing consumers billions of dollars. Meaningful tort reform can help reverse this troubling course, so it is vital that physicians and health care consumers lobby their representatives in Congress to pass measures like caps on non-economic damages, decreased statutes of limitations and more stringent qualifications for expert witnesses.

by Emily Walker
ABC News

WASHINGTON — More than 60 percent of doctors over the age of 55 have been sued at least once, according to a new survey by the American Medical Association (AMA).

Although most of those claims are dropped or dismissed, the new survey from the AMA shows that most physicians will be sued for malpractice at some point in their careers. This works out to an average of 95 medical malpractice lawsuits having been filed for every 100 physicians now in practice, according to the association.

“This litigious climate hurts patients’ access to physician care at a time when the nation is working to reduce unnecessary health care costs,” said AMA immediate past president Dr. J. James Rohack in a prepared statement.

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Battle Over Medical-Malpractice Caps Moves to Nevada

dleander — Thu, 05 Aug 2010 15:55:31 +0000

side note: Once again a state faces a critical choice in keeping high-risk specialties within it’s borders. Nevada faces a crucial test over the law that limits non-economic damages in medical malpractice suits to $350,000. Most physicians, and Cunningham Group, argue that this has allowed physicians from most specialties to remain in the state b/c not only are trial lawyers more apprehensive in taking on med-mal cases (b/c there’s not enough money in it for them), but this has allowed doctors to not have their medical malpractice insurance rates spiral out of control, like they have in Illinois, Ohio, Florida and a host of others. Granted, with companies such as Cunningham Group, a doctor can shop their medical malpractice insurance around to each and every insurance market in the state to get the lowest price possible….but we do this in other states, like the ones named above, and we do get the lowest price…..but sometimes the cost of medical malpractice insurance in those states can never really have “low” connected with them…..for example, an OBGYN in Florida can pay over $200,000 for just their malpractice insurance!! If you are a physician…and want to start saving on your med-mal, fill out our quick and easy med-mal insurance quote form and start saving!

The Wall Street Journal
by Clifford M. Marks

A challenge to Nevada’s cap on medical malpractice damages has doctors in the state on edge.

The measure in question limited non-economic damages in medical malpractice suits to $350,000, which doctors argued was critical to keeping physicians from fleeing the state due to sky-high insurance premiums. But plaintiffs in one case are attacking that cap on multiple grounds, reports the Las Vegas Review-Journal, and the state’s highest court has asked the parties to file briefs in the suit.

First, the plaintiffs, family members of a woman who was allegedly the victim of a misdiagnosis, are arguing that the cap is a limit on each particular claim–not the event as a whole. So in that case, which involves a family estate and seven surviving family members, each party could have a claim against the doctor and the hospital. That’s 16 claims–or $5.6 million in possible non-economic damages. Many doctors argue the cap should be $350,000 regardless of the number of claims.

If the high court sides disagrees with the $5.6 million interpretation, the plaintiffs will ask that the entire cap be ruled an unconstitutional violation of equal protection guarantees in the U.S. and Nevada constitutions.

As many as 30 states have passed similar caps, writes the Review-Journal, and courts across the country have split on whether they’re constitutional.

In April, the Georgia Supreme Court ruled against a limit in its state, writing that such a rule strips juries of their rightful role in determining damages.

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Battle Over Medical Malpractice Caps Moves to Nevada

john — Tue, 03 Aug 2010 15:17:43 +0000

Side Note: this article from the Wall Street Journal blog reports on new challenges to caps on non-economic damages in Nevada malpractice cases. Opponents of tort reform are arguing that the cap is per claim, not per event, a murky point in the law. This development is cause for concern, as Nevada has had problems with physician shortages in the past and reversing the limits on pain and suffering could cause a serious doctor shortage in the state. Tort reform is essential to control medical malpractice insurance premiums and keep doctors in practice.

by Clifford M. Marks
Wall Street Journal Blogs

A challenge to Nevada’s cap on medical malpractice damages has doctors in the state on edge.

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Use of Expert Testimony Questioned in Malpractice

john — Fri, 30 Jul 2010 14:44:44 +0000

Side Note: this article highlights the results of a study that examined expert witnesses in medical malpractice cases. The researchers found that an expert witness in a lawsuit against a radiologist testified that the original doctor should have recognized a fracture in a CT scan, but 31 out of 31 other radiologists who examined the scan failed to recognize the tiny fracture. This result strongly suggests that the expert witness’ testimony was not consistent with the accepted standard of care. This type of situation is common in malpractice trials, since expert witnesses are paid by the plaintiff and feel pressure to deliver the opinion that helps the plaintiff’s case. Reform to the expert witness system is an important aspect of tort reform that is not discussed often enough. At the very least, there should be more stringent qualifications for expert witnesses, and they should be allowed to testify only in their area of expertise. A more sweeping reform might be a system of blind peer review in which the cost of paying the expert is shared by the plaintiff and the defendant.

by Christopher Wanjek
Livescience.com

A new study calls to the stand the legitimacy of expert witnesses, those doctors and other medical specialists hired by lawyers in medical malpractice suits to convince the jury that someone somewhere goofed.

The study, published in the August issue of the American Journal of Roentgenology, implies that you get what you pay for — which is a good thing for malpractice lawyers, who can hire those experts who deliver the “right” answer or who benefit from hindsight in their medical interpretations.

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Hospitals Agree to Court Alternative

john — Fri, 23 Jul 2010 16:40:46 +0000

Side Note: this article from the Wall Street Journal details a new pilot program in New York aimed at stabilizing that state’s volatile malpractice climate. The program is funded by a $3 million grant, a part of Obama’s health care reform package. The central feature of the pilot program is mediation of malpractice cases by a judge, also called judge-directed negotiations. This is a promising idea, as we noted in a previous post, and early results seem to show that the process is significantly cutting malpractice payouts where it is in use. This is an encouraging trend, but broad reforms need to be passed in states around the country, so that premiums remain stable and Americans’ access to healthcare is not compromised.

by Suzanne Sataline
Wall Street Journal

To cut medical-malpractice costs, five New York City hospitals have agreed to a pilot program to divulge medical mistakes early, offer settlements quickly and use special state “health courts,” where judges will help negotiate agreements before cases go to trial.

The program, funded for three years with $3 million from the federal government, aims to cut the $1.4 billion spent annually in New York State on medical-malpractice premiums, hospital and state officials say. It is one of several programs being funded by the federal government to encourage hospitals to acknowledge and reduce medical errors.

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Judge’s innovation may offer malpractice fix

john — Thu, 24 Jun 2010 15:16:55 +0000

Side Note: This article from the Associated Press describes one New York judge’s unique approach to the problems of the U.S. malpractice system. Judge McKeon call his approach “judge-directed negotiations”, and focuses on humanizing malpractice cases and patiently working with all parties to reach a fair resolution. The New York City court system has received a grant of $3m to test this approach on a larger scale. We at the Cunningham group agree that special medical education for judges can only be beneficial, but it remains to be seen whether this type of approach can be a substitute for meaninful legislative reform to the system.

by RICARDO ALONSO-ZALDIVAR
Associated Press

WASHINGTON — Part listening, part cajoling, an innovative approach to resolving medical malpractice cases could become a model for courts around the country thanks to a pioneering judge who invested his own time in learning about medicine.

The Obama administration is spending $3 million to see if the methods developed by longtime New York judge Douglas McKeon can work on a broader scale, opening a way around the political stalemate over how to reform the medical liability system.

A senior appellate judge, McKeon named his approach “judge-directed negotiations.” But he also calls it “humanness.” Curiosity about medical matters led him to become a specialist in resolving wrenching cases that involve life-changing harm to patients.

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Healthcare groups continue fight for greater malpractice reform

john — Tue, 01 Jun 2010 20:19:50 +0000

side note: This article from Dermatology Times reviews the efforts of medical groups to make tort reform an issue in Obama’s health care reform plan, and examines the results of a new Harvard study on tort reform mechanisms. The Cunningham Group is dedicated to providing low medical liability insurance premiums to our clients, so we urge doctors to support further efforts to advance tort reform.

by Bob Gatty
Dermatology Times

Organized medicine, including groups representing dermatologists, has long fought for medical liability reforms that would limit jury-granted noneconomic awards for pain and suffering and include provisions to keep frivolous (but potentially costly) cases out of court. Their pitch: Effective reform would reduce medical malpractice costs, including insurance, and make it possible for many physicians who can’t afford skyrocketing premiums to continue their practices.

The medical groups attempted to inject their argument into the debate over healthcare reform legislation earlier this year, but they were largely unsuccessful. The American Academy of Dermatology Association (AAD) was part of a coalition of medical groups that asked President Obama to include meaningful medical liability reform in the broader healthcare reform package.

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Medical malpractice a likely campaign issue for Illinois Supreme Court justice

john — Thu, 27 May 2010 20:56:41 +0000

Side Note: We here at the Cunningham Group have been carefully tracking the aftermath of the Illinois Supreme Court’s reversal of tort reform legislation in our blog. Thomas Kilbride, one of the judges who voted to overturn tort reform for medical malpractice cases in February, is running for retention in November. This election a chance for doctors and other supporters of tort reform to demonstrate that tort limits are necessary and to move in the direction of lower medical liability premiums for physicians.

by Chris Essig
Quad-City Times

SPRINGFIELD — Thomas Kilbride has made a host of decisions while serving as a justice on the Illinois Supreme Court for the past 10 years, but one likely will be the focus of his retention bid in November.

In February, Kilbride voted with the majority of the state’s high court to remove limits on how much a jury can award victims in medical malpractice suits. The controversial decision has some in the medical community fearing doctors will be pushed out of the state because of rising liability insurance rates.

This could lead them to funnel resources and money into the race in hopes of unseating Kilbride, said James Nowlan, a senior fellow in the Institute of Government and Public Affairs at the University of Illinois.

“The tort law reform groups have Kilbride in their crosshairs right now,” Nowlan said.

Kilbride, a Rock Island Democrat, represents the Third Judicial District in northwestern Illinois, which includes the Quad-Cities. He officially filed for retention as a justice last month.

Others applauded the decision by the court to strike down caps on non-economic damages such as pain and suffering. Trial lawyers, for instance, want to make sure Kilbride stays on the court, Nowlan said.

“He is a critical vote on the medical malpractice issue,” he said.

Kilbride’s seat is all the more important because it holds the balance of power on the state’s high court. Currently, the six other justices are split along party lines.

Kilbride did not wish to comment because a re-hearing on the malpractice case is pending in court, said Joseph Tybor, spokesman for the Supreme Court.

Legislature approves malpractice caps

The court’s decision on medical malpractice came after lawmakers enacted caps in 2005 that limited awards on malpractice suits to $500,000 against doctors and $1 million against hospitals.

“That law was enacted by the legislature after a long, drawn out battle,” said Ed Murnane, president of the Illinois Civil Justice League.

But for the third time in recent history, the court ruled caps unconstitutional. Four Democrats, including Kilbride, voted against caps, while two Republicans voted for them. One Republican abstained from voting.

Despite the court’s split vote, medical malpractice hasn’t always been a partisan issue, at least not in the legislature. Republicans were in control when the legislature enacted caps in 1995, and Democrats were in control in 2005.

“It’s a patient issue,” Murnane said.

Retention in Illinois

Unlike other candidates on the ballot, Kilbride will not face an opponent. Instead, he will be running against his own record. To keep his seat on the high court, Kilbride will need 60 percent of the vote.

Retention occurs every 10 years and allows voters the option of re-electing justices. It is typically a slam dunk, but this year’s court ruling on medical malpractice could be a hurdle for Kilbride, Nowlan said.

While justices up for retention don’t have a formal opponent, many contend simply putting them on the ballot makes them too political. Namely, judges have the backing of political parties and don’t have limits on how much they can spend on their own campaign.

“We elect judges the same way we elect legislators,” Murnane said. “And judges are more powerful. They have more control.”
This brings into question whether or not judges have an alliance to the law or their fundraisers, said Kent Redfield, political scientist at the University of Illinois Springfield.

“It degrades the legitimacy of the judicial office if people think they are partisan actors,” Redfield said.

Kilbride was elected in 2000 with the help of more than a half $500,000 from the state Democratic Party.

Spokesman Steve Brown said the party will be working with Kilbride to develop a campaign.

2004 Supreme Court race

Medical malpractice has been the focal point of previous judicial races, including one of the nastiest and most expensive in history.

In 2004, Republican Lloyd Karmeier and Democrat Gordon Maag vied for a position on the Supreme Court in southern Illinois, which had been historically sympathetic to victims in medical malpractice suits.

Karmeier, who relied on support from medical groups, defeated Maag, who relied on trial lawyers. In all, the two candidates raised a combined $8.5 million, smashing previous fundraising records.

If Kilbride’s race sees that kind of money, it could get heated, Redfield said.

“If you’re going to go after Kilbride’s record, it is going to have to be negative,” he said.

Opposition already mounting

While the election is still months away, some opponents already are going after Kilbride.

After the court issued its ruling in February, political consultant Jon Zahm started a committee called “Vote NO Kilbride” that will be trying to kick the justice out of office in November.

“Defeating Kilbride can turn the Supreme Court from a liberal Supreme Court to a conservative Supreme Court,” said Zahm, founder of Goliath Slayer Communications.

His committee has already started soliciting money, including $5,000 from conservative activist Jack Roeser.

Zahm anticipates the fundraising to continue, with millions of dollars being funneled into the race from interest groups across the state.

“I think there is going to be a ton of activity,” Zahm said.