Truth About Malpractice Verdicts

[PACtoDOC]

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I am a 1st year DO student, former practicing PA and medicolegal consultant. In the consultant position I basically helped lawyers find docs to testify for them in defense of other docs. I recently was involved in a personal way with a med-malpractice claim and settlement that I want to share.

In 1997 when I was in PA school, my mother in law of age 47 suffered an MI and was in a small town in Pennsylvania where she saught care at the ER. Her family doc admitted her for 3 days, and released her without any further cardiac assessment (other than telemetry while in the hospital) and scheduled her an outpatient cardiology appointment 5 days later. My mother in law was released and died at home of a massive MI 3 hours after discharge.

Just this week we settled for 275K which is a joke in malpractice world. The problem was that the county my MIL lived in is known for very small verdicts because the blue collar people on the juries feel like ten dollars is a lot of money! So the threat of going to trial was not there for the defense. They didn't care. The other problem was that it was very difficult to find a FP from another small town to testify against my MIL's doc. We did get a big whig cardiologist from NYC to give a deposition but in the real world you have to compare apples with apples. This means you have to find a doc who is used to providing the same level of care and have them testify that the standard of care was breeched.

I know you don't have all the details of the case, but the bottom line is that even a PA student like myself knew that a 3 day admission for an MI was too short, and that the standard of care was violated when the doc did not order an echo, or stress test to assess pump function prior to discharge.

My gosh, I have seen patients get millions for cases that seemed total BS, but the truth is, an alive victim usually gets more than a dead one. They have to live with their "ailments" life long.

So think about cases like this before you endorse blanket tort reform. Do you think 275K is enough to reimburse the death of a 47 year old mother? My grandchildren are 3 and 5 and will never meet their grandmother. You can't replace that with money, but money is the only way to get real revenge for blatent violation of the standard of care.

 

[Laloz]

Like you, I am also a 1st year DO student and this subject hits rather close to home.

My wife was involved in a very serious car accident several years ago which has left her permenantly disfigured and disabled (she suffered a significant brain injury and spent months learning how to walk and talk, in addition to plastic surgery). While our litigation is not involving medical malpractice, we are in the process of settling with the "other" insurance company.

How much is her life worth? I've asked myself this question many times over the course of the past several years. My wife means the world to me, and I reflected heavily on what she meant to me when I nearly lost her. You are right that no amount of money will replace the death of a loved one- but what is the difference between $250,000 and $500,000? Or $1M? Would that have ensured that wrongs had been righted and that justice had been served? In my case, no amount of money would have filled the void if she would have died. If she would have died, I would be no more satisfied with $500,000 as opposed to $250,000, even though we both went through a significant amount of pain and suffering. Certainly individual circumstances need to be taken into account (in my case, for instance, my wife's role in providing income, taking care of children, etc).

Money is exactly the reason that we need tort reform. Our future as physicians depends on it, and much more importantly, our ability to provide essential medical services to the people who need it most depends on reform. When a physician's malpractice insurance is $220,000 a year in one part of the country (as opposed to $40,000 somplace else, for example California which has malpractice limits in place), where does that money come from? The California legislation caps Pain and Suffering at $250,000, which I think is reasonable. It allows for future damages (so that a child who is injured can be provided for) and awards attorney fees on a graduated scale (so a large multimillion dollar settlement would go mainly to the plantiff). Is it the perfect solution? Probably not. But it is a step in the right direction.

I agree that according to the facts that you provided, the physician in your MIL's case was negligent. Should the case have been filed? Absolutely. When physicians make a mistake, especially when damage is done, a lawsuit has it's place. And unfortunately regional differences do probably create inequality. But I think it dangerous to assume that more money equals more justice.

Just a thought.

 

[Dr JPH]

Originally posted by Laloz
When physicians make a mistake, especially when damage is done, a lawsuit has it's place. ... But I think it dangerous to assume that more money equals more justice.

I agree.

 

[group_theory]

Lawsuits have their places, when appropriate.

However, life would be easier (as a physician) if the general public knows and believes the two rules in the world of medicine (taken from M*A*S*H)


Rule 1: People die eventually
Rule 2: Doctors can't change rule #1

(hehe - reminds me of a story when a family sues the trauma team of a local ED because the patient died after being shot multiple times in the head - "they could have done more to save his life")

 

[Teufelhunden]

You can't replace that with money, but money is the only way to get real revenge for blatent violation of the standard of care.

Revenge upon whom? Unfortunately, the people that ultimately suffer are those in the community. These insanely large settements...the insurance companies won't "eat" that....they'll jack up the premiums...and when it gets out of control, docs will pack up and leave.

So, in the end, who is really being punished by these punitive awards?

 

[muonwhiz]

I am a DO student and an attorney, so I am very familiar with all of the malpractice issues on both sides. All of the talk of tort reform is limited to putting caps on what juries can award to injured parties or their families. This overlooks the critical area where reform needes to be first and foremost- with the insurance companies. The reason that med mal insurance keeps going up is so that the profit margins for the insurance corporations stay insanely high and the CEOs can make millions. So called "tort reform" as currently being addressed will do nothing to alter this fact. Sure, the individual physician premiums may go down some as long as those corporations can continue with life as is - with the same (or even greater profit margins). I have represented corporations and know exactly how this works. Limiting jury awards to injured parties is NOT sufficient. If you really are serious about change, you have to kill the dragon. Juries are not the dragon. Unregulated insurance profiteering is.

 

[maysqrd]

The above post is right on the money. I found this report interesting in a study regarding malpractice pay-outs and premium increases

www.insurance-reform.org/StableLosses.pdf

Many people like to reference California as a place where MICRA has been instituted and how it "works" to keep premiums down but the truth is that it did NOT help keep premiums down. It was an initiative (I can't remember what year) that voters passed regarding insurance reform that did it. It effected the entire insurance industry in CA from malpratice to auto insurance. It wasn't until this initiative was passed that malpractice premiums stabilized in CA.

I am sure insurance companies are the biggest supporters of tort reform as it draws attention away from insurance reform.

 

[swaamedic]

How about making public knowledge the number of law suits and circumastances involved surrounding individual doctors. If criminals can have their history as a matter of public record and on the net I think there should be a reform movement to make the same information availible about doctors. Thus patients could choose which doctor to go to based on performance, and who has a good track record. This would force doctors to cross their p's and dot the i's. It would also allow for adjusting premiums based on performance. While health insurance companies might be angered from increasing tests ordered etc. malpractice insurance should go down. Let's face it how many of us know how many lawsuits and guilty verdicts have been brought against their doctor, and would they still be going to them if they knew? This by no means is a solution but perhaps coupled with other reforms it would help. Just a thought.
Swaamedic
AZCOM MS1

 

[muonwhiz]

Not all criminals have their identities made public, usually only those who are child molesters or sexual preditors. Therefore, it is a poor analogy to use for public information re malpractice verdicts which are civil in nature. The public information also has to be weighed vs. the physician'r right to privacy. Well over 95% of all civil cases (including malpractice ones) settle out of court and settlement agreements typically have provisions that the party admits no wrongdoing and that the settlement remain sealed. when the settlement agreement is approved by the court (these provisions are commonplace) there is a court order in place against disclosure. Insurance companies are involved in the defense of their insureds (the accused doctors) and are privy to these agreements. They know about these settlements and jack up the rates for the individual doctors (or just cancel their policies)and also regionally if their in house "stats" appear (to them) to "justify" it. This is just one more example of how insurance companies affect the health care system with no oversight. Your anticipation of public reaction to seeing these lawsuit statistics is probably right from a consumer standpoint, they will try to avoid going to doctors who have had suits filed against them, ergo those doctors and practices will be shut down. The problem with that scenario is that many (if not most) of the settlements made vs. doctors (which would then appear on your proposed public records) are made for financial reasons, chiefly the very high cost of litigation and the unpredictibility of juries. These factors often have nothing to do with the actual negligence (or lack thereof) of the doctor involved. I could go on about this for quite some time out of actual experience, but then I would end up teaching a course online. Just some more food for thought.

 

[group_theory]

The problem with making malpractice stats public is that people tend to look at figures, not at the individual cases.

Doctors who perform on high-risk patients will have higher rate of death compare to other doctors who choose not to see high-risk patients.

If patients choose to avoid these doctors, who else will have the experience and expertise to fill in the gap?

This is a very complicated issue - how do you get rid of bad docs while protecting the good ones at the same time? How do you avoid those frivilous lawsuits but let the legitimate ones go though? How do you make juries impartial and follow the law, not "well, that kid will be handicaped for the rest of his life, he deserve some money even if the doctors did nothing wrong"
How do we stop insurance companies from boasting their profit margin at all cost?

For every possible solution, there is a legit argument against it. But this is the first step (discussion)

Wow - sorry for the lecture

 

[patrickhenson]

Originally posted by group_theory
How do you make juries impartial and follow the law, not "well, that kid will be handicaped for the rest of his life, he deserve some money even if the doctors did nothing wrong"

I think you hit the point here, for sure. Juries are not always required, or even compelled to 'follow the law', even in criminal trials. Juries can 'disregard' the law in certain cases where they feel the punishment would be too severe, or even in civil cases where they want to punish large corporations. Unfortunately, the harm ALWAYS falls on to the physician's shoulders through higher premiums and loss of reputation and to the patient through higher costs and poorer coverage.

But what about the companies that settle early so as not to risk a major judgement? The only people who suffer here are the physicians. The insurance co's make money in the end...they see to that.

I digress...there is a great book out there, "M.D.'s - Doctors talk about themselves". In this book, some doctors discuss ways that they circumvent astronomical insurance premiums, from putting everything in their children's name to paying their staff in the form of quarterly bonuses, which cannot be garnished, in the event of a successful lawsuit. Ultimately, these doctors find that they do not get sued, and, as a result, avoid the expense of six-figure premiums. Also, some large practices simply pool their premiums in a large account, ammassing enough money to 'go blind', rather than throw the money away on premiums.

This anecdotal evidence is by no means the trend in medicine, but should it be? SHould we require insurers to maintain fair business practices? THey are the ones who charge/take our premiums, but also the ones who decide when to settle. ALWAYS WHEN IT IS BEST FOR THEM - NEVER WHEN IT IS BEST FOR THE DOCTOR.

Patrick Henson
OSU-COM
For regulation of insurers

 

[Mutterkuchen]

Originally posted by PACtoDOC

Do you think 275K is enough to reimburse the death of a 47 year old mother? My grandchildren are 3 and 5 and will never meet their grandmother. You can't replace that with money, but money is the only way to get real revenge for blatent violation of the standard of care.

I really don't understand the point here. First of all $275k seems like a lot of money, especially if there are no dependents. Secondly, NO amount of money will bring a relative back.

If you could not find a doc to testify that the standard of care was breached, maybe it wasn't? If everyone, including students, know that a 3 day stay is too short, why didn't anyone pipe up?

This kind of reminds me of a dealth penalty case. The victim's family cry for "justice" by killing the criminal. After the execution, they realize that it did not really help them feel better, and they are forced to cope with death as we all do.

I have not lost a parent, but it seems to me that I would want to focus my energy on making peace with my grief, rather than focusing my energy on blaming someone else.

 

[oceandocDO]

My solution(s)...

Lawyers should be held accountable for filing frivolous lawsuits. If docs can be held accountable for bad practice, why cant lawyers be? It's the frivolous lawsuit that drives up the price of defending the claim for the insurance company. A suit that is dismissed before any notion of a trial still costs the insurance company on average $50,000 to defend. The ?lawsuit lottery? perpetuates this and drives up costs. With the current climate, many doctors are even encouraged to take out less insurance, knowing that the lawyer will find out what coverage the doc has and sue for the max, so if they're going for the max always anyway, why pay more in premium? That sounds like a system that is broke.

The reason that med mal insurance keeps going up is so that the profit margins for the insurance corporations stay insanely high and the CEOs can make millions

Spoken like a true lawyer. Making too much money? If the CEOs are too rich, what do you say for a lawyer taking home 1/3 or more of an award, often making lawyers even richer than CEOs off the misfortune of another? The profits for insurance companies arent insanely high either. The profits may be mismanaged in a stale economy and market, but if profits were insanely high, St Paul wouldnt have closed shop. The mismanagement of funds should be addressed, but let's call a spade a spade, if the insurers are greedy, find me a word for the lawyers.

The above linked study is HIGHLY biased. After skimming it, it seems to rely heavily on the awarded payouts, not the number of lawsuits filed, which still cost money to defend, not to mention creative accounting with the inflation figures. I've read studies stating precisely the opposite by more objective bodies. At DO Day on the Hill in September, a report was released by the Budget Office of the feds saying that tort reform would immediately reduce med mal premiums by up to 40% and save the federal government up to $2 Billion a year.

To the original poster, my heart goes out to you and your family. But, in all cases, from the beginning of tort law, damages have always been less for victims of fatal accidents than for survivors. It has nothing to do with tort reform. It?s unfortunate and doesn?t heal your pain, nor should it. Playing the objective devils advocate, she may have still died in the hospital from a massive MI if she had seen a cardiologist right away. Your award would probably have been the same even if tort reform was implemented.

Overall, the lawsuit lottery has to be curtailed. Joint and several liability needs to be addressed. Statues should be placed on what exactly defines an "expert witness". While insurance reform would be a healthy and needed addition, I dont think it will hit the heart of the problem right now. I have a feeling if you rock that boat with legislation, you'll dry up the remaining insurance companies left, leaving doctors in an even more ominous position.

The matter will come down to who has a more persuasive lobby in Washington, the trial lawyers (democrat friendly), the insurance industry, or doctors. Doctors have historically had a very, very soft voice on Capitol Hill (as opposed to the very vocal lawyers and insurers), hence a main reason docs (and now patients) are in the position they are currently in... caught in the middle of a nasty fight which will not evaporate anytime soon.

I?ll be quite now.
🙂

 

[reza.z]

There is no way on earth any lawyer would want to see caps on settlements since this would be a cap on their earnings per case. Even though insurance companies are equally corrupt, we must begin somewhere. Limiting financial compensation will put a limit on greed. When a physician makes any mistake, whether significant or not, he or she needs to be absolutely honest about it. Let us not forget that any malpractice suit is devastating for the physician who has to also live with the fact that he screwed up. In closing, if $250,000 is not enough, then you are not upset about your mother-in-law being a victim. You are upset because you need to continue to work for a living.

 

[PACtoDOC]

Let me break this down for you stupid idiots who are not in my situation and don't have the experience to judge us. My mother in law died 2 hours after being released from a hospital for an MI and 3 day stay. We had the chief of Lennox Hill cardiology in Manhatan give us a superb deposition that showed that my mother in law should have been assessed by a cardiologist before leaving the hospital. The problem was that her family doctor was in a small town, and trying to find another small town doctor to testify against what a small town doctor does is very tough. I have been a medicolegal consultant for years, and I can tell you that if you don't have a doctor of the same caliber to testify against yours, it makes your case difficult to win in court. My wife lost her mother, and you guys should think about what you would do if your family doctor made a serious mistake that cost your mom her life. The problem we had with getting more than 275K was that the cardiologist we had on the case would come across as someone lecturing from his "ivory tower" in New York City in front of small town jurors. And my MOL only made 19K a year working her ass off in a factory in PA. They take into consideration how much ones income is when offering settlements you know.

And lets break down the 275K.
120K to attorney
tax the remaining, another 20K gone.
split that among my wifes brothers and sisters
pay the funeral bills and estate attorneys
wow, that 40K might help her grandchildren to go to college, but it won't buy them a grandmother.

When a doc screws up that bad, you deserve to have them pay up. And don't lecture me by telling me that I didn't want to have to work. I am in medicine because I love it. If I wanted to make real money I would have gotten a degree in business. For not knowing my case or much about it, you jerks have real big mouths and no compassion.

 

[oceandocDO]

I dont think it's compassion that people here are lacking, I really feel for what your family has been through. Some people are just overly objective and the printed word often doesnt reflect feelings accurately.

It's sad that the quality of medical care in some areas is truly lacking. Many small towns suffer through the same predicament, the sole doc in town is king and his opinion is the final word. But, having been involved in the legal business, you should know that victims of fatal accidents receive less compensation than victims who survive. It really has nothing to do with malpractice reform or lack of compassion. Also, the jury is awarding you compensation the best they know how, 275K is a lot to them, and would have been a tremendous amount to your mother. If your mother lived elsewhere it would have been different, probably more. It may not be a lot for you and your family now, especially after legal fees, and for that I feel for you. Hence my point above, I think the largest case of injustice is allowing a lawyer to take more than 1/3 (more than one hundred thousand dollars!!!!!) for pushing some papers and talking in court for a few days. That's the real robbery in my humble opinion.

It's weird that a rural jury didnt award more, as rural juries, from what I've seen, are usually much more compassionate towards plaintiffs. I saw a story on 60 minutes a few weeks ago about a pharmacy in Mississippi that has customers from over 100 miles away because the people know that the court and jury pools of the county that the pharmacy is located in are VERY sympathetic towards plaintiffs (highest jury awards in the country I think), hence patients drive 2 hours to fill their drugs there (sometimes asking for 1 single pill) for the sake of being able to sue the pharmacy. I'm not saying this has anything to do with your MIL, but often blue-collar towns are less educated and believe the compassionate story of the plaintiff more often. The small-town, "trusted" doctor was probably able to thwart that image though I imagine. While I feel for you in not being able to find a doc to testify against the family doc, there were days in which this was a large reason doctors were able to escape lawsuits, almost a pseudo-fraternal like relationship between docs to protect each other. Now it seems most docs have a price to be a puppet. How hard did your lawyer try to find someone?

Anyway, I'm sorry for your loss again. I hope you can take the money that was received and make your lives better, as your mother in law would have wanted.

 

[ckent]

Instead of being upset at the family doc, you really should re-direct your anger towards your malpractice lawyer that took 120K of your settlement. You verdict accomplished it's goal, the family doc will probably never discharge a pt who had a known MI without a cadiology consult first. I don't think that he acted really out of line though, particularly since it was a small town hospital and there probably wasn't a cardiologist available for miles. In retrospect, it's might seem obvious that your mol should have been cathed right away, but that's in retrospect. Even if she had a cath, there is a significant chance that she would have died on the operating table given her heart disease and then you guys would probably be talking about suing the cardiologist. Your family doc might have thought that he could get her to a cardiologist faster if he d/c her and told her to follow up with a cardiologist, or maybe he had her insurance company breathing down his neck telling him to d/c pt's faster. It's generally recommended that docs keep pt's in the hospital for 4-5 days after an MI, but that's to evaluate for arrhythmias and to further evaluate their cad. Once you are a doc, you will see things from a different perspective. Just because you have a cardiologist in NYC telling you what he would have done had your mol been admitted under his care in NYC (they get paid good money by the defense and platiff's attorney, out of your 120K settlement to do that), it doesn't mean that your family doc was grossly negligent. So much of medicine is shades of gray and circumstantial. I agree that small town docs don't always practice standard of care seen in academic centers, but I also know that it's a whole different medical world out there in a lot of our rural communities. Next time you decide to sue someone, you should look for a cheaper attorney.

 

[reza.z]

I am sorry about what happened to your mother-in-law. I really am. But I am not sorry that YOU did not get enough money out of the situation. It is not your MIL's job to pay for your kids college or anyone else. Whether the settlement is $250000 or $1000000000 it accomplishes the same thing. It increases the insurance rate for the doctors who then pass it on to the patients and it teaches them a lesson to be more careful in the future (if they were negligent). If something like this had ever happened to my mom, I would be so devastated that money would not even be in my mind. Only in this culture people are so cursed with greed that money is the first thing that pops up as soon as someone dies. I would rather confront the doctor who did this and tell him/her that he/she killed my mom. I would not worry about my kids college fund. When you screw up in the future and kill someone, I hope you will be willing to fork over whatever the amount they ask you to give. Good luck with the college fund.

 

[alexOSTEO]

I agree with the post that the insurance companies cause a great deal of hardship for us physicians. It's kind of like playing a football game with the refs against you. I mean your getting more and more limited in what you can and can't do. Then you have to take most of the blame if something goes wrong. And the HMO skips off or dissolves once they make enough money. Would be nice to see a physicians union. I think the docs on strike is a good start.

In regards to the MI case. There are times when you'll disagree with what is bing done for a loved one. If you have the knowledge use it. I always get involved in my families medical care. I figure two docs are better than one. And you learn a bit from every case you come in contact with.


GO TITANS

 

[DrQuinn]

Originally posted by PACtoDOC


wow, that 40K might help her grandchildren to go to college, but it won't buy them a grandmother.

Wow. I must be a ***** for paying for my own college and medical school. To think that I wouldn't be $200k+ in debt... all I have to do is wait for my grandmother's liver to fail from her Hep C and sue the Red Cross for that blood transfusion. Of course, it won't bring her back, but atleast my post-graduate education is paid for. Because why should I have to pay for my education?