January 24th, 2007

The Medical Malpractice "Crisis" Hoax — From Public Citizen

Since others had already pointed out the Public Citizen report exposing the hoax of a medical malpractice “crisis” I wasn’t going to bother. But there was Pres. Bush last night at his State of the Union speech once again leading people astray, when he said:

And to protect good doctors from junk lawsuits, by passing medical liability reform.

Good doctors, however, don’t seem to be the problem. Since 1991, according to the report, 5.9 percent of U.S. doctors were responsible for 57.8 percent of the number of medical malpractice payments. That is an extraordinary statistic.

A few other points from the report, and things to think about when someone advocates closing the courthouse door to those injured by negligence:

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.
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.

The Public Citizen study follows a report last year in the New England Journal of Medicine entitled “Claims, Errors, and Compensation Payments in Medical Malpractice Litigation.” This was based on a study by the Harvard School of Public Health and the Harvard Risk Management Foundation.

Is our society litigation crazy? Apparently not. It appears from the Public Citizen report that only 5-10% of those killed by medical errors had any recovery from a malpractice suit. From the report:

“One-third of malpractice cases resulting in a malpractice payment in 2005 (4,504) involved the death of a patient. 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.”

Public Citizen took their data from the National Practitioner Data Bank (NPDB), which contains data on malpractice payments made on behalf of doctors as well as information about disciplinary actions against them by state medical boards or hospitals.

Just reading the table of contents of this report is enough to make anyone think twice about the propaganda spewed by advocates of tort “reform.”

Key Findings
Part I: The Medical Liability System Produces Rational Outcomes

a. Annual Number of Malpractice Payments Is Down
b. Medical Malpractice Payments per Population Continue to Decline
c. Total Value of Malpractice Payments Flat Since 1991
d. Judgments Are Not Irrational
e. Million-Dollar Judgments Are Less Than 1 Percent of the Total Number of
Payments
f. Million-Dollar Judgments Were Less Than 3 Percent of Total Value of Payments
in 2005
g. Severe Injuries Account for a Majority of Payments
h. Medical Liability System Is Rational In Outcomes
i. 82 Percent of Total Value of Payments Compensate Most Severe Injuries
j. The Proportion of Surgical and Obstetrics Payments Flat Since 1991

Part II: Patient Safety and Doctor Discipline
k. Some Common, Preventable Errors Are Increasing
l. Easily Preventable Errors Show a Marked Increase Since 2003
m. Since the Beginning of the NPDB, 5.9 Percent of U.S. Doctors Were Responsible
for 57.8 Percent of the Number of Medical Malpractice Payments
n. Doctors with Repeated Malpractice Payments Experience Few Consequences
o. Many Serious Repeat Offender Doctors Are Not Disciplined

January 23rd, 2007

How New York Caps Personal Injury Damages

A favorite topic of tort “reformers” is to place arbitrary caps on personal injury damage awards for pain and suffering. In doing so, they simply ignore the fact that caps already exist, but without the low ball one-size-fits-all numbers they argue for. In fact, we’ve been capping damages now in New York for almost 200 years without using an arbitrary number.

Here’s how it works: On occasion a jury will give an outrageous number…sometimes way too high, and sometimes way too low. (Newspapers only cover the high ones.) While jury awards are given great deference by the courts, that deference is not absolute, and the judge has the power to modify the award. Not directly, since the court won’t simply substitute its own judgment for the jury, but by tossing out the award and ordering a new trial unless the aggrieved party stipulates to the new amount chosen by the court. This happens at both the trial court level and the appellate level.

The earliest opinion I’ve seen where the court says it will not accept any award from a jury in New York is from 1812:

“It is not enough to say, that in the opinion of the court, the damages are too high and that we would have given much less. It is the judgment of the jury, and not the judgment of the court, which is to assess the damages in actions for personal torts and injuries….The damages, therefore, must be so excessive as to strike mankind, at first blush, as being beyond all measure, unreasonable and outrageous, and such as manifestly show the jury to have been actuated by passion, partiality, prejudice, or corruption. In short, the damages must be flagrantly outrageous and extravagant, or the court cannot undertake to draw the line; for they have no standard by which to ascertain the excess.” – Chief Judge James Kent, Coleman v. Southwick, 9 Johns. 45, 1812)

Chief Judge Kent’s standard of being “flagrantly outrageous and extravagant” to toss out a civil award is now read in two similar ways: The appellate court language is that the damages “deviate materially from what would be reasonable compensation”; and the trial courts say they will order a new trial when the verdict “shocks the conscience of this court.”

This methodology of ordering a new trial if the party did not stipulate to reduced damages came up in a famous 1913 case, involving future Supreme Court Justice Benjamin N. Cardozo and Bat Masterson, a legendary figure of the Old West, when a jury returned a defamation verdict in favor of Masterson for $3,500. The reason? Cardozo’s client had said that that Masterson had “made his reputation by shooting drunken Mexicans and Indians in the back.” (Hat tip to Randy Barnett at The Volokh Conspiracy.) New York’s appellate court tossed the verdict and awarded a new trial unless Masterson stipulated to a reduction of the verdict to $1,000.

And in one of my own trials, I took a $610K verdict in a Brooklyn medical malpractice case resulting from a misplaced injection that injured the sciatic nerve. The court reduced my client to $450K using the same stipulation mechanism. To see how often the New York courts continue to do that, just pop the phrase “deviate materially from what would be reasonable compensation” into the search box at the court’s appellate website here.

In other words, to persevere in an action for pain and suffering, one must first win with a jury’s review, then have that verdict pass muster before the judge that heard the case, and then have the verdict reviewed a third time in front of an appellate panel.

So why put arbitrary caps in place if common sense ones already exist? Because the movement to do so has nothing to do with finding justice, but rather, is run by big business and its front groups such as the U.S. Chamber of Commerce to give negligent conduct various forms of immunities and protections when folks are injured. The idea is to remove the concept of personal responsibility for one’s actions.

The big verdicts make big headlines. The subsequent reductions (or additions when a plaintiff is badly shortchanged) rarely appear. But simply because you don’t see it in the papers doesn’t mean it doesn’t exist.

Addendum, 3/12/07 — For more on the disparity of coverage between verdicts and subsequent reductions, see Media Bias at TortDeform.

January 17th, 2007

Too Many Lawsuits You Say?

Ripped straight from the New York Times, Editorial Advisor, on Jan. 14, 2007 (sub. req.):

They Say We Have Too Many Lawsuits? Tell It to Jack Cline

By ADAM COHEN
Birmingham, Ala.

Jack Cline is in a hospital here fighting for his life, stricken by leukemia that he says he got from exposure to benzene at his factory job. In most states, he would be able to sue the companies that made the benzene. But Alabama’s all-Republican, wildly pro-business Supreme Court threw out his case.

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.
…..
Corporate America — with its large contributions to political and judicial candidates, and its top-dollar lobbyists — has had remarkable success persuading legislatures and courts to erode the bedrock principle of civil law: when people are injured, they are entitled to sue for damages.

……
Mr. Cline’s lawyer, Mr. Palmer, argued that preventing him from ever suing denied him his rights under the Alabama Constitution to seek a legal remedy for his injuries.

Mr. Palmer was encouraged when the Alabama Supreme Court reopened the case. He also saw it as a good sign when it scheduled oral arguments for a special public session on a law school campus, an indication it considered the case particularly significant. The arguments went well. “Questions asked by several justices indicated they were troubled by the legal Catch-22,” The Birmingham News reported.

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 — a body every bit as pro-business as the Alabama Supreme Court.

Mr. Palmer intends to take the case to the United States Supreme Court. In the meantime, Mr. Cline can take some small comfort in the close vote. Four Alabama justices, at least, would not accept a legal system that told people like him that “no matter when” they “file the action, it is either too soon or too late.”

December 22nd, 2006

Oklahoma Tort "Reform" Reversal Decision Now Available

Yesterday I posted regarding the Oklahoma Supreme Court declaring a tort “reform” law unconstitutional with respect to the additional burdens placed on medical malpractice claimants. The court’s decision is now available in its unofficial form. It is an important decision for all states since similar attempts to place hurdles in front of claimants takes place on a daily basis around the nation.

The court decision was based on the need for an affidavit from a doctor when bringing a medical malpractice suit. The statute was a general law (as opposed to a special one under OK law), and therefore all claimants had to be treated equally. But, the court found:

The affidavit of merit requirement immediately divides tort victims alleging negligence into two classes — those who pursue a cause of action in negligence generally and those who name medical professionals as defendants. …The pleading code does not require negligence claimants generally to have an affidavit supporting the facts alleged and the anticipated basis for the right of recovery to be filed along with the petition. Plaintiffs alleging anything other than medical negligence need only file a petition giving fair notice of the plaintiff’s claim and the grounds upon which it rests. These claimants have no affidavit requirement and may commence a cause of action with the filing of a petition, while those alleging medical malpractice must obtain a professional opinion that their cause is meritorious as a prerequisite to pursuing suit or be subject to dismissal.

What’s more, the court found, since some medical malpractice claimants can proceed without an affidavit under the doctrine of res ipsa loquitor (the thing speaks for itself – like a retained sponge after surgery), there were actually now three different classes of claimants.

Since OK law mandates uniformity of procedure, all citizens of the state must have equal access to its legal institutions for teh application of the general ordinary forensic process. And this did not happen with the procedures employed.

A second ground for tossing the law was that it created an unconstitutional monetary barrier to the access to courts guaranteed by the Oklahoma Constitution. The court found that:

[T]he additional certification costs have produced a substantial and disproportionate reduction in the number of claims filed by low-income plaintiffs. The affidavit of merit provisions front-load litigation costs and result in the creation of cottage industries of firms offering affidavits from physicians for a price. They also prevent meritorious medical malpractice actions from being filed…Rather than reducing the problems associated with malpractice litigation, these provisions have resulted in the dismissal of legitimately injured plaintiffs’ claims based solely on procedural, rather than substantive, grounds.

One comical note in the opinion – though not apparently intended that way — was this part:

Another unanticipated result of statutes similar to Oklahoma’s scheme has been the creation of a windfall for insurance companies who benefit from the decreased number of causes they must defend but which are not required to implement post-tort reform rates decreasing the cost of medical malpractice insurance to physicians. These companies happily pay less out in tort-reform states while continuing to collect higher premiums from doctors and encouraging the public to blame the victim or attorney for bringing frivolous lawsuits.

The funny part is the assertion that the dramatic drop-off in claims, and the insurance company profits that went with it, was somehow “unanticipated.” The court’s rip at “tort reformers” coming from an 8-1 majority in a very red state, is stunning.

The court was emphatic about the unfair burden that was placed on those of modest means:

Access to courts must be available to all through simple and direct means and the right must be administered in favor of justice rather than being bound by technicalities. Claimants may not have the fundamental right of court access withheld for nonpayment of some liability or conditioned on coercive collection devices. Here, medical malpractice plaintiffs are singled out and must stand the cost of an expert opinion, which may range from $500 to $5,000,83 before they may proceed to have their rights adjudicated. In at least one instance, an affidavit of merit cost the litigant $12,000. A statute that so conditions one’s right to litigate impermissibly denies equal protection and closes the court house doors to those financially incapable of obtaining a pre-petition medical opinion. Therefore, we determine that 63 O.S. Supp. 2003 §1-1708.1E creates an unconstitutional monetary barrier to the access to courts guaranteed by art. 2, §6 of the Oklahoma Constitution.

An interesting decision, of which other courts around the nation will surely take notice when efforts to close the courthouse door take place under the pretext of “reform” in their own jurisdictions.

Links to this post:

Edwards for Tort Reform?
Yesterday, Presidential Candidate John Edwards spoke at a health care forum organized by Families USA and the Federation of American Hospitals. He offered a comprehensive strategy for combating HIV/AIDS, including (according to this …

posted by Kia Franklin @ September 25, 2007 3:50 PM

edwards for tort reform?
yesterday, presidential candidate john edwards spoke at a health care forum organized by families usa and the federation of american hospitals. he offered a comprehensive strategy for combating hiv/aids, including (according to this …

posted by Kia Franklin @ September 25, 2007 1:10 PM

okla. high court kills certificate-of-merit law
as we’ve had occasion to note a number of times in the past (eg here, here, and here) one of the weaker (though still useful) procedural reforms in medical malpractice litigation is a requirement that a plaintiff’s lawyer obtain a …

posted by Walter Olson @ January 22, 2007 12:16 AM

oklahoma tort “reform” reversal decision now available
cross-posted from new york personal injury law blog. yesterday i posted regarding the oklahoma supreme court declaring a tort “reform” law unconstitutional with respect to the additional burdens placed on medical malpractice claimants. …

posted by Eric Turkewitz @ January 03, 2007 9:58 AM

December 21st, 2006

Tort "Reform" Law thrown out by court

A noxious tort “reform” law — one that made it more difficult to sue medical practitioners — was thrown out by the high court of Oklahoma yesterday. The law placed a substantial barrier in the way of claimants, forcing them to produce a doctor’s affidavit of merit to be filed in court before discovery even begins in a case. The decision is not on the court’s website as of this writing, but should be available in a day or two. From the newspaper article:

The Oklahoma Supreme Court stunned tort reform advocates on Tuesday by overturning a 2003 law credited with cutting malpractice lawsuits in the state by up to 60 percent.

In an 8-1 decision, the court ruled unconstitutional a law requiring that malpractice suits be accompanied with an expert witness affidavit attesting to the case’s merits.

The court said the requirement violated the Oklahoma Constitution’s ban on special laws because it puts medical negligence cases in a separate class from all other negligence claims.

The ruling in a 2005 Okmulgee County case also found the law creates an unconstitutional monetary barrier to the courts because of the expense of securing the affidavits.

…

Besides invalidating the 2003 law, the decision calls into question the ability of the Legislature to cap non-economic damages. Plaintiff attorneys argue the caps make pursuing expensive liability cases difficult to justify and thus limit access to the court system.

Such caps figure prominently in the plans of lawsuit reformers for the upcoming legislative session.

“Almost every state that has passed them has had them found unconstitutional,” said Terry West, a prominent Shawnee attorney and a two-time president of the Oklahoma Trial Lawyers Association.

The New York rule, by the way, is that a “certificate” of merit be submitted when a suit starts, that a reasonable basis exists for bringing the action. This certificate is signed by the attorney, not the doctor, thus preserving confidentiality.

[Addendum: Decision is now available. See my follow-up post at this link]

Links to this post:

tort “reform” law thrown out by court
cross-posted from ny personal injury attorney blog. a noxious tort “reform” law — one that made it more difficult to sue medical practitioners — was thrown out by the high court of oklahoma yesterday. the law placed a substantial …

posted by Eric Turkewitz @ December 22, 2006 9:51 AM