Malpractice News Heats Up in States; Mega Payouts Persist

Wayne J. Guglielmo, MA - Medscape

Posted: 08/09/2012

Medical Malpractice News Heats Up in Several States

July ended with the Missouri Supreme Court striking down the state's $350,000 cap on noneconomic damages in medical malpractice cases because it "infringed on a person's right to a jury trial, which includes the right to have a jury set damages."^[1] But Missouri wasn't the only state making medical liability news recently, as the following sampling makes clear.

Maryland. Up until now, Maryland was among several jurisdictions that bar a plaintiff who contributes to his or her own injury from recovering damages in a medical or other liability suit. A legal challenge now before the Maryland high court, however, could put an end to the state's "contributory liability clause," as it's known, thereby exposing doctors, among others, to more lawsuits, according to a posting on amednews.com. ^[2]

The case involves assistant soccer coach James Coleman, of Fulton, Maryland. After swinging from a goalpost, Coleman "experienced multiple facial fractures when the goalpost fell on him." He sued the Soccer Association of Columbia, claiming that it failed to warn him of the dangers involved in his activity and failed to inspect the goalpost to ensure that it was securely anchored to the ground.

In 2011, jurors found the soccer association negligent, although it also found that the plaintiff's actions had contributed to the accident. Under the state's contributory negligence clause, therefore, he was barred from receiving any reward.

But Coleman appealed, with his attorney arguing that the contributory negligence doctrine is outdated and should be replaced by a doctrine of "comparative negligence." This doctrine would enable a jury to determine each party's level of responsibility and allocate liability accordingly. In a medical liability suit, for example, a patient deemed to be 25% responsible for his injury -- whether through his failure to comply with a prescribed medication regimen or some other form of noncompliance -- would have his award reduced proportionately.

Besides Maryland, 3 states (Alabama, North Carolina, Virginia) and the District of Columbia make use of the contributory negligence clause. Most other states have adopted the comparative negligence clause, according to experts.

Medical societies in states that cling to the older doctrine are scared of a trickle-down effect if the Maryland high court should rule in favor of the plaintiff. But plaintiffs' attorneys, including Coleman's own, think that contributory negligence is too all-or-nothing and results in unfair verdicts. "Comparative negligence is an inherently fair system of justice," Coleman's attorney says.

Pennsylvania. In the Keystone State, the number of malpractice cases has remained fairly level during the past decade, but at least 1 Pennsylvania country, Lancaster, has already seen a surprising uptick in filings this year, according to a report on lancasteronline.com.^[3]

In the first 6 months of 2012, 18 malpractice cases have already been filed; at this pace, the year-end total could exceed 39, the number of cases filed in Lancaster County in 2002, the single-year record.

In contrast, after peaking in 2002, the number of cases filed statewide has remained more or less constant, a trend many observers attribute to rule changes made that year by the Pennsylvania Supreme Court, including one designed to limit "venue shopping." In 2002, plaintiffs in Pennsylvania brought roughly 2900 med-mal lawsuits. The following year, after the high court enacted its rule changes, that number fell to somewhat over 1700 and has declined more or less steadily ever since. Last year, only about 1530 suits were filed.

Why the countertrend in Lancaster? No one knows for sure, but both defense and plaintiffs' attorneys agree that it has something to do with the wider availability of services. "If you have more care provided here, you have the potential for more clusters" of malpractice suits, explained James Saxton, a Pennsylvania defense attorney. Saxton also believes that another factor has contributed to the uptick in filings, and not just in Lancaster County: "All over the country we're seeing the frequency bump up a bit, and I think the economy plays into the liability picture," he says, perhaps because during hard times juries become more sympathetic to injured plaintiffs.

More Malpractice News From Several States

Michigan. Last month, some 300 of the state's residents turned up in Lansing in response to a series of medical malpractice bills on the docket of the Senate Insurance Committee. "Much of the debate focused on Senate Bill 116," according to a blog posting on mlive.com.^[4] If passed, this bill would protect a physician from liability if he or she acted within the appropriate standard of care and with the patient's best interests in mind.

Critics charge that, as currently worded, the proposal amounts to an immunity bill that could end up protecting "bad actors." The Michigan State Medical Society dismisses this interpretation, arguing that it isn't an immunity bill and that, in applying it, the Michigan courts would not construe it that way.

Supporters also argue that reasonable reforms will make the state more attractive to physicians, especially ob/gyns. According to one ob/gyn quoted in the posting, in northern lower Michigan alone, 17 contiguous counties have a severe obstetrician shortage.

Oregon. At the recommendation of Gov John Kitzhaber, a group that includes a variety of stakeholders is meeting this month to work out the details of a system for (1) improving patient safety by helping doctors learn from their errors, (2) more effectively compensating injured individuals, and (3) reducing the costs of Oregon's current medical liability system.

According to OregonLive.com, "The system would require the injured party and the doctor or healthcare provider to discuss [the] circumstances of the incident and include an apology from the provider if appropriate. The provider must make an offer of compensation within 90 days, or decide no offer is warranted. If the injured party is not satisfied, the matter goes to mediation. Only if that fails can a lawsuit be filed."^[5]

The group held the first of its 3 working meetings on August. 2.

Mega Malpractice Payouts Persist While Overall Med-Mal Awards Are Down

Drawing on data from the National Practitioner Data Bank, a federal clearinghouse for malpractice payments, consumer group Public Citizen last month released a widely reported study that found that "the number and total value of malpractice payments made on behalf of doctors declined in 2011 for the eighth consecutive year."^[6]

But if the number and total value of med-mal awards continues to shrink, there also appears to be a paradoxical countertrend: an uptick in the number of sky-high jury awards, according to a report on amednews.com.^[7]

"Between 2010 and 2012, at least six states -- California, Connecticut, Florida, Maine, Michigan, and Wyoming -- had what is believed to be their biggest-ever medical liability jury award," states a review by an international insurer that specializes in professional liability policies.

Although they draw media attention, not all mega awards stand. "For as many years as we can recall, there have been high awards [and] events that make headlines, but in reality these awards tend to come down through negotiated settlement," says Mark Horgan, a senior VP for claims at a Massachusetts-based liability insurer. "A lot of people see what the jury awarded and figure that's what's being paid. [But] what a jury decides and what is paid is actually very different."

This tendency for negotiators and judges to reduce awards helps to explain the Public Citizen findings, which show overall awards going down. But if not all big awards stand, the media attention they initially draw can increase the practice of defensive medicine by doctors, experts say. Such awards can also inspire copycat claims, even in the absence of similarly persuasive evidence.

Several New York Hospitals Go Bare in the Face of Tough Economic Times

All hospitals make mistakes, which is why as a general rule few take the drastic step of suspending their medical malpractice coverage or self-insuring by setting aside reserves. But under financial duress, that's exactly what several hospitals in New York City's poorer neighborhoods are doing, according to a July 15 report on nytimes.com.^[8]

New York is among a number of states that permit hospitals to function without malpractice insurance. "Generally the uninsured hospitals are in areas where juries award big judgments, insurance executives say."^[8]

According to a 2009 state Health Department survey, the city had 3 completely self-insured hospitals, all of which are in Brooklyn: Interfaith Medical Center, Kingsborough Jewish Medical Center, and Wyckoff Medical Center. "Twelve other hospitals across the city were partially self-insured, including St. Vincent's Hospital in Manhattan, which went bankrupt and closed in 2010; Lenox Hill in Manhattan; Jamaica Hospital Medical Center in Queens; and New York Hospital in Queens."^[8]

Some hospitals provide their doctors with separate insurance coverage, which is either subsidized or reimbursed by the hospital.

But a review by the New York Times found that several self-insured hospitals "have insufficient reserves to cover their malpractice liabilities."^[8] And at least 2 self-insured hospitals had no money set aside to cover their liabilities.

For some hospitals, the risk is worth it because they believe lawyers follow the money.

For personal injury attorneys, suing such hospitals also presents a dilemma because their clients are often told by the hospitals to take what's offered or risk ending up with nothing or pushing the hospital into bankruptcy. "You don't know if that's true or not, and it's very difficult to advise your client," one personal injury attorney told the Times.^[8]

References

1. Lowes R. Missouri Supreme Court strikes down malpractice cap. Medscape Medical News. August 1, 2012. http://www.medscape.com/viewarticle/768520 Accessed August 2, 2012.
2. Gallegos A. Ruling on contributory defense could expose physicians to more lawsuits. amednews.com. July 23, 2012. http://www.ama-assn.org/amednews/2012/07/23/prca0723.htm Accessed August 2, 2012.
3. Smart G. Medical malpractice suits up here. LancasterOnline. July 22, 2012. http://lancasteronline.com/article/local/692551_Medical-malpractice-lawsuits-up-here.html Accessed August 2, 2012.
4. Anders M. Medical malpractice reform: giving bad doctors immunity or improving access to care. mlive. http://www.mlive.com/politics/index.ssf/2012/07/hundreds_turn_out_for_senate_h.html Accessed August 2, 2012.
5. Budnick N. John Kitzhaber recommends reforms for Oregon medical malpractice laws. OregonLive. http://www.oregonlive.com/health/index.ssf/2012/07/john_kitzhaber_rolls_out_his_r.html Accessed August 2, 2012.
6. Lowes R. Malpractice payments continue downward slide. Medscape Medical News. July 12, 2012. http://www.medscape.com/viewarticle/767273 Accessed August 2, 2012.
7. Gallegos A. The risk of sky-high jury awards. amednews.com. July 16, 2012. http://www.ama-assn.org/amednews/2012/07/16/prsa0716.htm Accessed August 2, 2012.
8. Hartocollis A. Troubled New York hospitals forgo coverage for malpractice. nytimes.com. July 15, 2012. http://www.nytimes.com/2012/07/16/nyregion/some-hospitals-in-new-york-lack-a-malpractice-safety-net.html?pagewanted=all Accessed August 2, 2012.