Category Archives: Medical Malpractice

 

April 9th, 2007

Medical Malpractice Award Reduced from 200K to 20K


Just because you read about that verdict in the papers doesn’t mean the plaintiff will actually get the money. This is another example of how verdicts get reduced by the courts.

In this case, a New York trial court reduced the award for future pain and suffering from 200K to 20K, because the plaintiff did an insufficient job of justifying the damages. The appellate court affirmed that reduction:

The result of plaintiff’s nasal reconstructive surgery was cosmetically not to her satisfaction. The court found no medical support for future pain or difficulty in breathing. Reduction of damages for future pain and suffering was thus warranted because the amount awarded by the jury deviated materially from what would be reasonable compensation under the circumstances (CPLR 5501[c]).

As I had discussed earlier in How New York Caps Personal Injury Damages, one should never accept the verdict in a newspaper as the amount the person will get. Because there is a good chance they will not see that amount.

The case can be found here: Nardella v. Gerut

 

March 28th, 2007

Medical Malpractice Insurers Price-Gouged Doctors During This Decade

This comes from Americans for Insurance Reform, released today:

NEW YORK — Americans for Insurance Reform (AIR) announced today the release of Stable Losses/Unstable Rates 2007, a new study that examines fresh insurance industry data to determine what caused the most recent medical malpractice insurance crisis for doctors. The study by AIR, a coalition of over 100 consumer and public interest groups representing more than 50 million people, finds that the insurance crisis that hit doctors between 2001 and 2004 was not caused by claims, payouts or legal system excesses as the insurance industry claimed. Rather, according to the industry’s own data:

  • Inflation-adjusted payouts per doctor not only failed to increase between 2001 and 2004, a time when doctors’ premiums skyrocketed, but they have been stable or falling throughout this entire decade.
  • Medical malpractice insurance premiums rose much faster in the early years of this decade than was justified by insurance payouts.
  • At no time were recent increases in premiums connected to actual payouts. Rather, they reflected the well-known cyclical phenomenon called a “hard” market. Property/casualty insurance industry “hard” markets have occurred three times in the past 30 years.
  • During this same period, medical malpractice insurers vastly (and unnecessarily) increased reserves (used for future claims) despite no increase in payouts or any trend suggesting large future payouts. The reserve increases in the years 2001 to 2004 could have accounted for 60 percent of the price increases witnessed by doctors during the period.

There is much more at the links, including a copy of the study.
(hat tip to TortDeform)

 

March 19th, 2007

Misdiagnosis Occurs In 15 To 20 Percent Of All Cases

Misdiagnosis occurs in 15 to 20 percent of all cases, according to a new book out by Dr. Jerome Groopman called “How Doctors Think.”

In an op-ed in today’s Boston Globe (The Mistakes Doctors Make) based on the book, Dr. Groopman writes:

Why do we as physicians miss the correct diagnosis? It turns out that the mistakes are rarely due to technical factors, like the laboratory mixing up the blood specimen of one patient and reporting another’s result. Nor is misdiagnosis usually due to a doctor’s lack of knowledge about what later is found to be the underlying disease.

Rather, most errors in diagnosis arise because of mistakes in thinking.

In the piece, he deconstructs how a tumor was missed for years in a woman who had just given birth.

The book is reviewed at this link to Time. The Time lead is for an overlooked tumor in an 8-year old. According to the review,

[Groopman] learned that about 80% of medical mistakes are the result of predictable mental traps, or cognitive errors, that bedevil all human beings. Only 20% are due to technical mishaps–mixed-up test results or hard-to-decipher handwriting–that typically loom larger in patients’ minds and on television shows.

The result of Groopman’s journey is How Doctors Think (Houghton Mifflin; 307 pages), an engagingly written book that is must reading for every physician who cares for patients and every patient who wishes to get the best care. Groopman says patients can prompt broader, sharper and less prejudiced thinking by asking doctors open-ended questions and learning to identify some of their common thinking mistakes.

While some have a knee-jerk reaction to the attorneys who initiate suit on behalf of patients injured by malpractice, it’s nice to know that some doctors are thinking about the actual problem. Because shooting the messenger, a time-honored way of changing the subject, is a lousy way of fixing a problem.

(Globe op-ed via David Williams at Health Business Blog)

Addendum 3/21/07 — Dr. Groopman on The Colbert Report.

 

March 19th, 2007

Medical Malpractice – Defense Firms Denied Right To Interview Plaintiff’s Treating Docs

For the last few years in New York a dispute has existed with respect to the right of a defense firm to privately interview the treating doctors of a plaintiff after the matter has been certified ready for trial.

Last year, one of New York’s four intermediate appellate courts (the Second Department) said that such interviews were not permitted (Arons v Jutkowitz).

Now, the Fourth Department, in a decision dated this past Friday, has agreed with the Second, albeit in a 3-2 decision, protecting patients from having their treating physicians cold called by defense lawyers or investigators, and protecting plaintiffs from being forced to authorize such interviews in writing.

Thus, the case seems destined for New York’s Court of Appeals. The majority and dissenting opinions in Kish v Graham can be found here.

Addendum: Curious as to ultimate fate of the first of these decisions (Arons), I checked and found that leave to appeal to the Court of Appeals was just granted on March 8. (Since Arons was unanimous, it could not be appealed as of right.) Thus, the issue is going up.

Second Addendum (12/5/07) – The Court of Appeals has reversed. See: NY Court of Appeals Allows Defendants to Privately Question Plaintiffs’ Doctors (11/27/07)

 

March 15th, 2007

Don’t Get Sick On The Weekend

Medical malpractice attorneys will not be surprised. A study released yesterday in the New England Journal of Medicine finds a higher death rate for people who go the hospital for heart attacks on the weekends than during the week. The reason is that fewer invasive cardiac procedures are performed.

The study tracked over 200,000 patients and found about a 1% difference. And the reason for the difference, the authors suggest, may be due to a difference in staffing levels.

These staffing concerns do not surprise me. I’m not sure if it’s been studied, but I would bet the worst time to go a hospital is the July 4th weekend. And I think few doctors would disagree. New residents are created on July 1st, and existing residents move up a year to new responsibilities. Match that with many attending physicians taking off time for a holiday week, and a problem is created.

When hospital staffing levels drop, patients suffer.