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Monthly Archives: January 2007

The Great Medical Malpractice Hoax

Public Citizen has just issued a must-read report entitled The Great Medical Malpractice Hoax. This report examines the issue of medical liability in two parts. The first part reviews NPDB data and shows that the claims of the business and medical lobbies are exaggerated and unsupported by the facts. The second part examines data related to physician error and discipline. This section notes some disturbing trends and reveals that the real medical crisis is the high incidence of preventable medical error, as well as the lack of accountability for a small set of doctors who commit a substantial number of avoidable errors that seriously injure patients.

The report goes on to say: “Fundamentally, an agenda that blames injured patients and seeks to close access to the courts – contravening a Constitutional right – is about protecting business profits over patient health. It is far past time for real health care reform, and for a health care system that puts patient safety first.”

This report analyzes data in the National Practitioner Data Bank Public Use File, dated 31 December 2005, and issued the following key findings:

  • Medical Malpractice Payments Are Actually Declining. The number and the total value of malpractice payments to patients have been flat since 1991. Both show a significant decline since 2001, when the last so-called “crisis” began.
    • The number of malpractice payments declined 15.4 percent between 1991 and 2005.
    • Adjusted for inflation, the average annual payment for verdicts declined 8 percent between 1991 and 2005.
    • Payments for million-dollar verdicts were less than 3 percent of all payments in 2005.
  • Payments Correspond to Severity of Injury. The medical liability system is not irrational – patients do not win big jury awards for frivolous claims. Instead, evidence shows the current system works reasonably well. Patients with minor injuries receive little compensation, while the bulk of malpractice awards occur in cases involving severely debilitating injuries or death.
    • Over 64 percent of payments in 2005 involved death, or major or significant injuries.
    • Payments for “insignificant injury” were less than one-third of 1 percent of payments in 2005.
  • Patient Safety Is the Real Crisis. The latest NPDB data underscore the fact that the real medical malpractice crisis continues to be inadequate patient safety, rather than the legal system. Instead of being distracted by business lobby myths about the court system, heath care providers should improve patient safety and better protect the health of patients.
  • Improving Patient Safety Will Save Lives. One-third of malpractice cases resulting in a malpractice payment in 2005 (4,504) involved the death of a patient.[8] Yet, as a 1999 landmark study by the Institute of Medicine showed, an estimated 44,000 to 98,000 patient deaths occur each year as a result of preventable medical errors in hospitals.[9] Stemming preventable errors alone would, conservatively, prevent ten times as many deaths as are now accounted for by malpractice cases.

You can read the full report by clicking here.

Tort reform is misguided and tyrannical

The January 8, 2007 issue of BusinessWeek magazine featured a cover story entitled “How Business Trounced the Trial Lawyers.” The article described so-called reform efforts from around the country which have capped jury verdicts and made it increasingly difficult for ordinary citizens to gain access to the courts. While lawyers may have been a target, the real loser in this battle is the American consumer.

These so-called reform efforts have seriously restricted the kinds of asbestos suits that can be filed, set damage limits that have rendered medical malpractice litigation nearly comatose, virtually wiped out all lawsuits against drug makers, nixed class action suits, set ceilings on punitive damages, set caps awards for pain and suffering, and set arbitrary time limits on when product liability suits could be brought. In the process of proposing these changes, the business community has demonized trial lawyers as money-hungry thugs.

The rallying cry has become Shakespeare’s quote from Henry VI: “THE FIRST THING WE DO, LET’S KILL ALL THE LAWYERS.” But those who use this phrase against lawyers are as miserably misguided about their Shakespeare as they are about the judicial system which they disdain so freely.

Even a cursory reading of the context in which the lawyer killing statement is made in King Henry VI, Part II, (Act IV), Scene 2, reveals that Shakespeare was paying great and deserved homage to lawyers as the front line defenders of democracy. The accolade is spoken by Dick the Butcher, a follower of anarchist Jack Cade, whom Shakespeare depicts as “the head of an army of rabble and a demagogue pandering to the ignorant,” who sought to overthrow the government. Shakespeare’s acknowledgment that the first thing any potential tyrant must do to eliminate freedom is to “kill all the lawyers” is, indeed, a classic and well-deserved compliment to the legal profession.

In effect, the business of “trouncing the trial lawyers” actually hinders the rights of juries in America. Trial by jury is democracy in its purest form. When you tamper with the rights of citizens of make decisions in a court of law, you interfere with very basic notions of liberty and justice for all.

The right to a civil trial before a jury is specified in the 7th Amendment: “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.” Indeed, Alexis de Tocqueville observed that the jury system was one of the means whereby a self-governing people might hope to keep a constant control over their own affairs. Jury service teaches people to take a hand in their own affairs, and to regard as their business, all the interests of society.

The so-called tort reform efforts of late take away the self-governing functions of the people. If power is to be transferred from the people to governments and corporations, it is necessary to reduce the powers of lawyers and juries.

A New York Times column penned by Adam Cohen highlights the harsh consequences of alleged reform. It was covered in this blog a few days ago (click here). It told the tale of Jack Cline, a leukemia sufferer who is unable to sue for his affliction, thanks to oddities in Alabama law. Cline, seeking to hold companies responsible for his exposure to benzene, was denied that opportunity by the state’s Supreme Court, which found that there was never a valid time for him to sue.

“If he had sued when he was exposed to the benzene, it would have been too early,” wrote Cohen. “Alabama law requires people exposed to dangerous chemicals to wait until a ‘manifest’ injury develops. But when his leukemia developed years later, it was too late. Alabama’s statute of limitations requires that suits be brought within two years of exposure.” Cohen called the decision “a ruling that would have done Kafka proud.”

Cline, who later persuaded the reputedly business-friendly court to re-hear his case, was turned away again, this time by a 4-3 vote. He is seen as the latest victim of tort reform.

I can cite many more examples like this. For starters, read Defending Trial Lawyers, Sort Of. The article calls for balance, recognizing that trial lawyers play a critical role to play in promoting health and safety and policing corporate America. Next, try reading the Center for Justice & Democracy’s book Lifesavers: Guide to Lawsuits that Protect us All. This is an extensive compilation of cases and lawsuits that have led to major safety improvements.

Calls for tort reform are rarely made with the noblest intentions. Instead, it is business leaders with financial considerations in mind that are calling for change. For example, many of the changes to medical malpractice laws were based on the notion that high insurance premiums were driving away doctors. And we were told that tort reform would slash health insurance costs. Instead, as a Public Citizen report entitled The Great Medical Malpractice Hoax detailed, the costs of medical malpractice were always overblown by “tort reform” lobbyists.  In addition, and as a 2005 Economic Policy Institute paper detailed, medical malpractice law changes promised reduced health care costs, but continue to rise across the country. In fact, Texas was a leader in slashing injured patient rights, yet it remains the state with the highest number of uninsured in the country with family health insurance policy rates rising at a rate nearly three times faster than wages and inflation.

The only thing that has changed in the wake of “tort reform” are escalating corporate profits at the expense of consumer and workers’ pocketbooks — a triumph of using lobbying power to rob from working families to benefit the wealthy.

What we are seeing today, and as highlighted in the BusinessWeek article, is another cycle of historical (and hysterical) lawyer bashing. In seventeenth century England, Oliver Cromwell, in an effort to thwart individual freedoms, decreed that no more than three barristers could congregate outside of court. He recognized that the greatest threat to his own tyrannical dictates was the collective commitment of the London Society of Barristers to the principles of freedom expressed in the Magna Carta.

In eighteenth century France, the Revolution altered the political face of the world by moving the focus of government from the rights of royalty, tyrants, and dictators to the rights of individuals. Three major political principles emerged–liberty, equality, and fraternity. From these evolved the social and political systems we know today as democracy, socialism, and communism. Only one of these, democracy, granted the individual freedoms now under attack.

In twentieth century Europe, Adolf Hitler, the quintessential despot, asserted “I shall not rest until every German sees that it is a shameful thing to be a lawyer.” In the entire history of this planet, individual rights were never more threatened. Hitler’s mantle of destroying lawyers as a predicate to destroying rights of individuals is carried forward today by a carefully calculated campaign of libelous tyranny against lawyers and the rights of American citizens.

The concept of silencing lawyers by those who seek to subjugate freedom of individuals has been attempted for centuries but has been successfully resisted in America by strong willed citizens represented by the legions of lawyers who have successfully preserved and protected the Constitution and Bill of Rights against such attacks. The efforts by today’s tyrants and despots to contain justice and trample individual rights must be stopped.

Without lawsuits, the Ford Pinto would continue to kill, cigarettes would still be “what the doctor ordered,” patients would be at the mercy of doctors and hospitals, and individuals would never get their day in court. The jury trial is the only opportunity for the people to enter a corporate boardroom and tell a Chief Executive Officer to stop hurting us. Indeed, the perpetuation of freedom is inextricably interwoven with our continued protection of individual rights.

Legal catch-22 thwarts legitimate claim

If you’re one who thinks there are too many frivolous suits, then consider this case. Jack Cline, a resident of Alabama, sued for exposure to benzene that allegedly caused him to be stricken by leukemia. According to Alabama law, if he sued when he was first exposed to benzene then it would have been too early, but now that he developed leukemia years later it is too late to sue. This legal Catch-22 is one of many protections big businesses have against legitimate lawsuits.

As the New York Times reported, “In a ruling that would have done Kafka proud, the court held that there was never a valid time for Mr. Cline to sue. If he had sued when he was exposed to the benzene, it would have been too early.” Alabama law requires people exposed to dangerous chemicals to wait until a “manifest” injury develops. But when his leukemia developed years later, it was too late. Alabama’s statute of limitations requires that suits be brought within two years of exposure.

The court ruled this month. It affirmed the dismissal of Mr. Cline’s case by a 5-to-4 vote. If Mr. Cline wanted to challenge the unfairness of the rules, it said, he would have to take it up with the State Legislature.

The case is known as Jack Cline v. Ashland, Inc., et al., No. 1041076, Ala. Sup.; 2007 Ala. LEXIS 5.

Early detective work pays off for client

In a case involving a fall in a supermarket, good early detective work made the difference between an ongoing battle over liability, and the quick assumption of responsibility. One afternoon, one of our clients, a spry 84 year old woman, was shopping at her neighborhood supermarket. She had just finished shopping and went to the courtesy desk where a cab company was called to come and pick her up. After that, she stood by the front window inside the store and waited for the cab. As she was waiting for the cab in the store, her attention was drawn to a display hanging on the wall to the left of the doorway concerning the history of the store. She walked over to read the information contained in the display, and while reading it she was struck and thrown by an automatic swinging door which was to her right as she was reading. The incident was captured by the supermarket’s surveillance camera.

Our office filed suit six days after the accident and moved quickly to secure the videotape of the incident. By moving so quickly, we were able to preserve the tape which is normally destroyed after two weeks. As you can see from the clips from the video, the incident clearly occurred in the manner described by our client. By having this tape, we were able to blunt the typical suggestions that our was confused, not where she said, or had tripped because she was old. The tape also enabled us to bring the matter to a resolution within 10 months of the incident. The defendant supermarket quickly admitted that the location of the sign was dangerous and invited people to stand there. In addition, they admitted that the door was not properly functioning at the time and should not have opened with someone standing ints path.

The result was positive proof that some early detective work and preservation of evidence can be a tremendous aid in the resolution of cases.

Medication errors among the most common medical mistakes

Medication errors are among the most common medical mistakes, injuring or killing at least 1.5 million people a year and incurring at least $3.5 billion a year in extra hospital costs alone, according to a report issued in July by the Institute of Medicine of the National Academy of Sciences. This was the institute’s second report on the subject, and the committee that compiled it stated that insufficient progress had been made since its first report, “To Err Is Human,” was issued in 1999.   The New York Times published a story on the report which can be viewed by clicking here.

Bystander claims for fire witnesses allowed

A U.S. district court in Texas held that a girl who witnessed a fire that killed her sisters could assert a bystander emotional distress claim. She did not see the event that triggered the fire, but the court determined it was sufficient that she witnessed the fire itself.

While 9-year-old Morgan Thornton was at school, a halogen floor lamp in her twin sisters’ room allegedly fell and started a fire. She arrived to discover her home in flames and learned her sisters had been trapped inside and died in the fire.

In her family’s lawsuit against the manufacturer of the lamp, Thornton v. Home Depot, U.S.A., Inc., Thornton put forward a bystander emotional distress claim. Defendant moved for partial summary judgment, contending the claim was barred under Texas law.

The court noted that to recover for bystander emotional distress under Texas law, a plaintiff must show that he or she suffered shock as a result of a direct emotional impact caused by “a sensory and contemporaneous observance of the incident,” as opposed to learning about it secondhand. In cases where bystander claims were denied, the courts did so on the ground that plaintiffs arrived at the scenes of automobile accidents after they occurred, had not seen or heard the crashes, and therefore had not had a sensory and contemporaneous observance of the incident.

The court rejected the manufacturer’s argument that Thornton did not have a sensory and contemporaneous observance of the incident, citing bystander fire cases holding that the bystander must observe only the fire, which is the actual injury-producing event, and not the cause of the fire.

Because Thornton here witnessed the fire consuming her home and was aware that her sisters were inside, the court concluded that she had a sensory and contemporaneous observance of the incident and was entitled to proceed with her claim.

To read a copy of the decision, click here.

Death rates for heart surgeons to be published

Massachusetts will begin to publicize the patient death rates for heart surgeons. A website will feature the mortality rates for 55 surgeons that perform cardiac bypass operations. Based on the state’s most recent statistics, nearly 4,000 patients have undergone bypass surgery in 14 MA hospitals.

Beginning Dec. 18, it will be possible to go to a website and look up the mortality rates for 55 surgeons who perform cardiac bypass operations. The decision will make Massachusetts the fourth state to release such data on heart surgeons.

The heart bypass results will be posted on the Mass-Dac web site, the Harvard Medical School center that collects and analyzes heart patient data for the state.

The Division of Health Care Quality in the Department of Public Health’s website also will post an abbreviated form of the mortality data.