The Washington Post reported today that lobbyists for doctors and their insurers met regularly in D.C. to draft an overhaul of the nation’s medical malpractice laws.   As I’ve discussed, the resulting legislation proposed strict limits on damages for the people most victimized by preventable medical errors.   The goal?  To peddle a false narrative to increase profits.  Even more disturbing is that lobbyists were able to rapidly shepherd their bill to House passage with virtually no input from the public or members of Congress.

The revolving door of excuses for this legislation lack any foundation in fact.  Proponents of these laws, who benefit financially from the lobbying efforts, currently argue “frivolous lawsuits are driving up the cost of health care.”  Truly “frivolous” lawsuits are rarely successful and rarely ever filed by attorneys.  A cap on damages will have little to no effect on “frivolous” cases.  The effect of such foolish legislation will only impact meritorious cases–cases where the health care providers were negligent.   Surgeons have maimed patients, set them on fire in the OR, burned them with lasers, left instruments and other objects inside of patients, amputated the wrong extremity, and prescribed medications that killed or severely injured patients.  Money is the only compensation our justice system can offer these victims.

Asking insurance companies if malpractice awards are too high or increasing costs is like asking a dog if it is hungry.  The answer is always “yes.”

There were no facts to support prior claims that malpractice cases caused physician shortages.  So that excuse has faded away.  Now it is about costs because people’s health insurance premiums are increasing.  Perfect scapegoat for a new false narrative.

If there is a shortage of physicians, why not look for the real cause?

First, how about student debt?  Few very intelligent people, who will make competent physicians, want to lug around $250,000 worth of inescapable debt.   Medical schools are extremely expensive.  After four years of medical school, a year of internship, 2-7 years of residency, and (possibly) 2-5 more years of a fellowship, I imagine the debt can balloon to almost $500,000.  How about lowering the cost of medical school or providing debt relief?

Second, wages tend to be lower in rural areas.  With hundreds of thousands of dollars in debt, what medical student can afford to practice in a rural area?  Also, do you think rural doctors welcome new health care providers to their community, doctors who will poach their revenue stream?

Third, there are numerous problems with privatized Medicaid.  Many insurers are slow to pay doctors and hospitals, and they block tests and medical care for patients.  Hospitals and doctors offices cannot stay open if they are not being paid timely.  Hospitals and doctors offices cannot safely treat patients if treatment is being denied.

Fourth, I think the facts speak for themselves.  States that enacted medical malpractice caps and legal obstacles to fair compensation have not seen drops in malpractice insurance premiums and health insurance premiums continue to rise.

In the end, it is all about money and profits.  Not patient safety.  Not patient control of their health care.

Health care costs increase for several reasons: inflation, research and development, increased salaries for doctors and nurses, the need for insurance companies to appease investors, charitable care, and location-based factors.  Now we can add questionable executive management decisions.

In NY, Bronx-Lebanon Hospital found questionable ways to boost revenue to pay executives fat salaries, bonuses, and perks.  This taxpayer-supported institution — whose construction project is in investigators’ crosshairs over alleged links to mob kickbacks — pushed moneymaking surgeries such as hip and knee replacements.

Marketing a hospital to draw patients requiring high-return surgeries is allowable.  However, Bronx-Lebanon Hospital specifically hired a doctor with a record of alleged poor outcomes to help boost revenue.  The hospital lavishes its chief of orthopedics, Dr. Ira Kirschenbaum, with hundreds-of-thousands-of-dollars in bonuses despite four deaths and numerous preventable injuries that occurred after he arrived in 2008.

Dr. Kirschenbaum received a $314,210 bonus in 2014 and a $180,940 bonus in 2015, according to Bronx-Lebanon’s tax filings.  The bonuses were in addition to his $851,000 salary.

Several hospital employees notified the state medical disciplinary panel to complain about patients recently injured under Dr. Kirschenbaum’s care.  The NY Post reported that Dr. Kirschenbaum denied allegations of negligence and said the OPMC cleared him in earlier cases.

High volume practices and surgeons who practice for many decades will have adverse outcomes that are not the result of negligence.  Concern about Dr. Kirschenbaum arises from the way he was hired.  Hospital CEO Miguel Fuentes hired Dr. Kirschenbaum as a division chief without consulting Dr. John Cosgrove, who was then chief of surgery and would have overseen Kirschenbaum.  Dr. Cosgrove did not have a chance to vet Dr. Kirschenbaum.

In other words, the hospital’s CEO made a business decision to hire Dr. Kirschenbaum without investigating his safety.  Preventable medical errors always increase health care costs.  The increases come from trying to fix the problems caused by the doctor’s negligence.  Hospitals and doctors have ways to code the additional care to make it appear as a normal complication of the patient’s condition.  These costs are then passed on to taxpayers through Medicare and Medicaid, and other people with health insurance through increased premiums.  The costs increase further when hospitals create an incentive system to entice doctors to schedule additional, and possibly unnecessary, clinic visits, or perform surgeries with questionable indications.  These are the real causes of increased health care costs, not malpractice lawsuits.

Hospital executives often enjoy hefty salaries and bonuses, as do doctors.  Just look at the nations highest salaries (9 out of the top 10 are in health care) or jobs of the nation’s top 1% (health care providers make up the second largest portion).  There is nothing wrong with making a lot of money, but we should think twice before we believe hospitals and doctors are struggling because of malpractice lawsuits.

The questionable practices discussed above have the potential to cause catastrophic problems.  If you think you or a loved one was injured from similar questionable practices, then contact us.

The use of pain medication in the U.S. is alarming–doctors write 71 opioid prescriptions per 100 people.  In 2015, drug overdoses accounted for 52,404 deaths in the United States, 63.1% of which involved opioids.   The medical malpractice risk arises because these powerful pain medications are highly addictive, even after short-term use.  An estimated 2.0 million people in the U.S. are addicted to prescription opioids.

A recent report from the Centers for Disease Control and Prevention (CDC) found that doctors in the U.S. are prescribing opioids less often.  However, the CDC reports the number of opioid prescriptions is still a lot higher than it should be–more than triple where it was 1999.   Also worrisome is that the length of prescriptions has increased from an average of 13 days to 18 days.

The dangers of opioid use and addiction are well-known to doctors.  Doctors frequently receive warnings about prescribing opioids.  Presumably, this contributed to the reduction in prescriptions.  Despite reductions in prescriptions, opioid-involved overdose-death rates continue to increase.  One reason, apparently, is inconsistent practice patterns and a lack of consensus about appropriate opioid use.  However, Doctor’s have help.

CDC’s Guideline provides evidence-based recommendations about opioid prescribing.  The recommendations are for primary care clinicians treating adult patients with chronic pain.  The Guideline recommends the use of non-opioid therapies, such as acetaminophen, nonsteroidal anti-inflammatory medications, exercise therapy, and cognitive behavioral therapy for chronic pain.

Awareness of the problem is the first step in protecting patients.  Patients need their doctors to create safe, personalized plans for their pain management.  Doctors need to be more careful in prescribing opioids and use safer drugs, physical therapy, and other modalities to alleviate pain.  Using the CDC Guidelines could help doctors avoid medical malpractice when treating their patients’ pain.

Contact us if you would like to have experienced medical malpractice attorneys analyze the facts of your case to determine if medical negligence occurred.

The American Bar Association, with more than 400,000 members, penned a letter to the House Judiciary Committee expressing opposition to HR 1215–the so-called “Protecting Access to Care Act of 2017.”  They are working to protect victims’ rights to hold wrongdoers accountable.

The arguments behind tort reform are lies.  Tort reform was dreamed up by insurance companies as a way to avoid accountability to their own customers.   A recent study shows paid medical malpractice claims are decreasing, not increasing.  Medical malpractice lawsuits contribute at most 2-3% to the cost of healthcare.

HR 1215 has nothing to do with helping people and everything to do with helping negligent doctors and insurance companies avoid accountability by:
•Limiting all non-economic damages to $250,000, regardless of the severity of the injury;
•Making all claims federal claims, thus preempting states’ rights; and
•Limiting the amount the victim’s attorney can be paid, with no limitation on the amount the doctor or his/her insurer can pay their lawyer.

The $250,000 cap will apply to all health care liability lawsuits, including nursing homes.  The bill applies these limits regardless of the number of parties, the causes of action or the theory of liability, so the cap applies to intentional torts or other sorts of reckless misconduct.

Please take a stand and protect your rights.  Either visit Take Justice Back or contact your representative directly and tell them that victims of medical malpractice should not be further victimized.  Tell them to vote NO on HR 1215.

Medical malpractice is an epidemic.  Preventable medical errors kill more than 400,000 people per year.  Despite this, federal lawmakers are quietly trying to push through legislation that will create a $250,000 federal cap on the amount a jury can award in a medical malpractice case.  Virtually every state already has some form of medical malpractice reform, with more than 30 states having caps on damages.

Through this legislation, the federal government wants to take away the freedom of choice our Founders ensured would belong to the states and its citizens.  The citizens have the freedom of choice as to systems of government and the law under which they prefer to live, but the federal government wants to take this freedom away.  Essentially, laws like this will protect unsafe health care providers and limit your ability to hold them accountable for their preventable medical errors.  The proposed legislation would violate the Arizona Constitution.

Many conservative organizations and their leaders oppose this legislation and have written to Congress urging it to reject “the ‘federalization’ of state tort law that is contrary to constitutional principles and represents an undue restriction on freedom.”  You should too.  Reach out to your Congressional representatives and senators and let them know you oppose any federal restriction on freedom.

Medical malpractice is an epidemic in the U.S.  Preventable medical errors kill more than 400,000 people per year.  That means, every day, 1,100 people have their lives cut short by medical malpractice.  Estimates suggest, at least another 1,000 people are injured every day from their health care provider’s negligence.  The biggest problem for many victims of medical malpractice is that they cannot find a lawyer to take their case because the ultimate recovery will barely cover litigation costs.  Thus, the negligent health care provider is never held accountable for their malpractice.

In Arizona, people have the right to sue their health care providers for medical malpractice.  Regardless of the false narratives about how these cases impact the delivery of health care, you have a constitutional right to hold health care providers accountable for their negligence.

Historically, medical malpractice laws were  designed to accomplish certain specific social objectives, including addressing poor quality care, fairly compensating patients for injuries resulting from negligence, and imposing justice in a manner that would make future occurrences less likely.

The requirements of a medical malpractice claim.

As the injured person, you have a burden.  You must prove three things.  In basic terms, you must prove: (1) the health care provider either did something they should not have (negligent act) or did not do something they should have (negligent omission), (2) that the negligent conduct caused an injury, and (3) your damages.

A bad or suboptimal outcome does not mean the health care provider committed malpractice.  The health care provider must have been negligent.  This could be a doctor, chiropractor, nurse, or some other health care provider (but we will refer to doctors).  You must prove the doctor failed to act as a reasonably prudent practitioner under the circumstances.  In other words, did the doctor deviate from the standard of care?  This must be proven by presenting a medical expert within the same specialty as the defendant doctor.

The second element is proving that the doctor’s negligence caused or contributed to injury or death.   The key is that the specific negligent act is causally linked to the injury or death.  This again must be proven through expert testimony.

Finally, you must prove the injury led to specific damages.  Even if it is clear that the doctor was negligent, you cannot sue for malpractice if you did not suffer any harm.  Collectable damages may include:

  • physical pain,
  • disability,
  • mental anguish and suffering,
  • past and future medical bills, and
  • lost wages and earning capacity.

In most cases, you must prove these three elements by a preponderance of the evidence.  Arizona’s lawmakers raised the burden of proof in cases involving emergency room care and emergency medical services to clear and convincing evidence.   Frankly, with the conservative nature of Arizona jurors and general deference given to health care providers, you might want to view every case as requiring clear and convincing evidence.

Types of medical malpractice claims.

There are many ways that health care providers can negligently cause injuries. For instance:

  • surgical errors, including unnecessary or incorrect surgery,
  • surgical errors, including leaving things inside the patient’s body after surgery,
  • medication errors,
  • premature discharge,
  • failure to order appropriate tests or to act on results,
  • failure to follow up,
  • poor infection control, including potentially fatal infections acquired in the hospital, and
  • general negligence.

Impediments to a medical malpractice claim. 

In addition to raising the burden of proof, Arizona’s lawmakers have worked hard to interfere with your constitutional rights and impede your ability to hold health care providers accountable.  These obstacles will be addressed in future blog posts, but just know that Arizona’s lawmakers enacted several obstructionist laws that aim to limit your right to sue, limit your right to obtain full and fair compensation, and limit your right to the truth about what happened to you.

These cases rarely, if ever, resolve without hiring a lawyer.  Doctors who commit medical malpractice, and their liability insurers, will not knock on your door to settle a claim before you hire a lawyer.  Even after hiring a lawyer, negligent doctors are reluctant to admit their mistakes.  Most negligent doctors have egos and cannot accept that they made a preventable error.  They often will not allow their liability insurance carriers to settle their case without litigation.  Also, defense lawyers don’t get paid by settling cases quickly.  They bill by the hour.  I have a case with clear negligence that is now in its third year of litigation because of the scorched-earth defense.

Also, medical malpractice cases are very expensive.  Expert fees are the largest cost of medical malpractice cases, usually driving the total costs of these cases over $125,000 and, in some cases, as high as $250,000.  Doctors, especially local doctors, are not lining up to gratuitously provide their expert services to victims of medical negligence.  Just the opposite.  Most experts charge from $500/hr to $1,000/hr for their time, and local doctors will not testify against their colleagues.

The hits keep coming.

Many states have special rules and procedures for medical malpractice claims.  One of the most important rules is the time limit for filing a lawsuit.  In Arizona, a medical malpractice lawsuit must be filed within two years of the negligence, or within two years of when the person knew or should have known negligence occurred.  This is called the “statute of limitations.”  If you do not file the lawsuit within the allowed time, the Court will dismiss the case regardless of the facts.

However, in some instances, the statute of limitations is significantly shorter.  If the lawsuit involves a public entity (e.g., the State of Arizona, City, County, or school) or a public employee of one (e.g., a medical student, resident, or teacher), then a Notice of Claim must be served on the appropriate entity(-ies) within 180 days after the negligence.  After serving the Notice of Claim and allowing sixty days for a response, a lawsuit must be filed within one year of the alleged negligence.  These are strict deadlines with very few exceptions.  Failure to file a lawsuit within the allowed timeframe can result in permanently losing the ability to pursue the lawsuit. Similarly, if a Notice of Claim is required and not timely served, the claim will be lost.

Get help for a medical malpractice claim

Medical malpractice cases are complex with several nuances.  It is essential to get advice and representation from a lawyer who focuses on medical malpractice cases.  Contact us if you think someone you love was seriously and permanently injured by a careless health care provider.

Medical Malpractice is a prolific problem in Arizona, and the United States.  Doctors, nurses, and other health care providers are expected to follow certain rules to protect their patient from injury.  Many times they are careless, and sometimes even reckless.

Like the person who accelerates to get through a yellow light but hits a car turning left in front of them, most health care providers do not intend to cause an injury.  Sometimes they cut corners or take calculated risks because doing so never caused a serious injury before.  Sometimes they figure this patient is just like past patients.  And other times they are distracted.  In those situations, critical judgment necessary to protect their patient is temporarily suppressed or missing altogether.

Therefore, you should do what you can to protect yourself or your loved one.  Ask questions.  Lots of them.  Demand answers.  Lots of them.  Do not be afraid to get a second opinion or another perspective.  The health care providers are being paid a lot of money to provide safe and effective care.  Patients pay significant sums for their safety.  They should not have to pay with their lives as well.

Contact me if you think someone you love was seriously and permanently injured by a careless health care provider.

MLive, an online Michigan news site, reported a recent jury verdict in a birth trauma case.  The Michigan jury awarded $13 million to the parents of baby girl who was left with limited use of her right arm following birth trauma.  Her birth injury has implications that go beyond her childhood.

The injury is commonly called a brachial plexus injury, referring to a stretching or tearing of the network of nerves running from the spine in the lower neck to the armpit and arm.  These nerves innervate the upper arm, forearm, and hand.  Permanent damage to these nerves can result in partial or complete loss of function.  It is usually caused by excessive traction during the birthing process.

In the Michigan case, the baby’s nerves were completely severed when resident doctors pulled down excessively on her head while her shoulder was caught on the mother’s pelvic bone.  The pulling down of the baby’s head stretches the nerves.  Continued traction without release of the shoulder will tear the nerves.  The family alleged that the doctors should have done a cesarean section or delivered using a method that would have caused less strain on the baby.  The hospital employed a typical defense to these cases…it was not us but the natural birthing process that caused the injury.  The jury did not buy into this defense, likely because the injury could have been prevented with reasonably prudent care.

The worse thing about this verdict is that it will be reduced (to about $4 million).  Michigan places a cap on non-economic damages at $433,400.  In other words, Michigan lawmakers believe that the inability to effectively use an arm–thereby limiting athletic pursuits, restricting recreational options throughout the baby’s lifetime, and likely creating social anxiety and embarrassment–is worth less than half-a-million dollars.

The child  has undergone multiple surgeries and continues to wear a brace on her right arm, which is malformed.  This is a permanent injury that will never go away.  She will require a lifetime of assistance in completing basic daily tasks, such as brushing her hair or getting dressed.  This injury will limit virtually every aspect of her life.  And if she lives a normal life expectancy, Michigan says the injury is only worth around $5,300 a year, or $14.50 a day.

Really?  Would give up your arm for $14.50 a day?

I doubt any Michigan lawmakers would.

* This blog should be used for informational purposes only.  It does not create an attorney-client relationship with any reader and should not be construed as legal advice.

Facts

A U.S. district judge granted a preliminary injunction today to stop federal funding of embryonic stem cell research because it destroys embryos, which violates the Dickey-Wicker Amendment (“DWA”) included in federal spending bills beginning in 1995.  Under Judge Lamberth’s interpretation of the DWA, federal funds may not be used for any research that results in the destruction of a human embryo.  Oddly enough, in March 2009, President Obama signed an executive order permitting federal funding for embryonic stem cell research.   Not surprisingly, the lawsuit in this matter was filed by several groups, several of which have religious affiliations.

The main objection to embryonic stem cell research is that is ends human life.  Embryos that are used for research are typically four or five days old.  These embryos are typically derived from in vitro fertilization and donated to research because the parents have no intent to use the embryo for childbearing.  If the embryos will not be used to bring children into the world, shouldn’t they be used for something?

Scientists believe embryonic stem cells can help treat many diseases and disabilities, because the cells can be coaxed into developing into any of the 220 types of cells found in the human body (e.g., blood cells, heart cells, brain cells, nerve cells).  The potential medical treatments that can be developed are limitless.

Ron Stoddart, executive director of Nightlight Christian Adoptions, said “Frequently people will say why are you opposed to stem cell research and of course are answer is, we’re not, we’re opposed to the destruction of the embryos to get embryo stem cells.”  The Coalition for the Advancement of Medical Research said it was disappointed by the injunction granted “in response to the latest maneuver by an ideologically driven fringe group,” and suggested that the extensive, deliberative process that shaped federal guidelines should foster government support of embryonic stem cell research.

Discussion

So, from a purely legal perspective, who is right?

Part of the irony is that the Republican Party, which opposes this purported destruction of life, is firmly supportive of the death penalty in several types of criminal matters.  Additional irony is found in the fact that our government blindly supports the separation of church and state to the extreme, when convenient, but bases arguments on this issue from religious foundations.

The real difficulty that our society has is defining life.  I doubt our courts would consider a 4-5 day old embryo as a human for purposes of criminal statutes.    If so, hypothetical situations taken to the extreme could have women facing criminal charges for drinking or taking medication that leads to the death of the embryo at a time when the women probably did not know they were pregnant.  What about in the civil context?  If you cause someone to lose a pregnancy that was 4-5 days into development, could you be liable for monetary damages?  The permutations on this are mindboggling and ridiculous.

So when does life begin?   There have been several answers to this question throughout history, which change as social contexts change, religious morals fluctuate, or scientific discoveries permit new extrapolations.  When it comes to abortions, our country has decided that it is okay to destroy a fetus through the first 3 months of a pregnancy.  So, it is okay to kill a life form (fetus) that had the practical hope of developing into a human being, but it is not okay to kill a life form (embryo) that has no practical hope of developing into a human being?

How do we know when life begins?  I could drone on about this topic, but the DevBio publication does a great job at discussing the historical generation of the answers to this question.  Science suggests that it is not a life form until it can survive on its own, which still does not provide a definitive timeframe but implies the development of lungs (24 weeks) and other vital structures.  Religions usually insist life begins at conception.  If you strive for certainty in the law, which is an oxymoron, then you might side with religious teachings – which creates another irony in this debate.  If you rely on science to guide your position, then which scientist’s opinion do you follow?

I want to hear some intellectual discussion from my readers.  I have not explored all aspects so that you can enlighten me and the others.  Further, I hate the hypocrisy ingrained in our government.  Is there a simple way to transition into a system that makes sense?