// BLOG
Study Shows Doctors Often Distort the Truth With Patients Regarding Medical Errors
February 10, 2012
A study discussed in Friday’s Tennessean shows that many physicians withhold the truth from patients to avoid being held accountable through a lawsuit:
“More than half admitted describing someone’s prognosis in a way they knew was too rosy. Nearly 20 percent said they hadn’t fully disclosed a medical mistake for fear of being sued. And 1 in 10 of those surveyed said they’d told a patient something that wasn’t true in the past year.”
As a trial lawyer, I’m not surprised this many doctors are cutting corners with the truth and/or outright lying to their patients about deadly mistakes. I would wager that, among the 5% of doctors who commit the most malpractice, the percentage is much higher.
Frozen Pancakes Recall: Too Close for Comfort
January 29, 2012
I’ve never been a fan of the shopping cards some stores make you sign up for to get their discounts. But the nearest grocery store to my house is Kroger and I begrudgingly signed up and let them track my purchases. I admit the coupons targeted to one’s shopping patterns are nice but the whole concept was a little too “Big Brother is Watching” for my comfort level. Until tonight. I got a phone message on Sunday night stating that certain varieties of frozen pancakes have been recalled and to not consume them. As some of you may know, I’m a single dad with a daughter who LOVES pancakes. I can’t cook anything without either making way too much or dirtying every dish in the kitchen, so the frozen pancakes are an easy option that I let my kiddo have once every week or so. The shopping history traced by my registration with Kroger enabled them to alert me of this recall almost as soon as it was announced. It was a bit scary since I just opened a box of those very pancakes this morning, but thankfully the recall was based upon cross contamination with soy that could cause problems for those with soy allergies, which we don’t have at our house.
If you have purchased any variety of Aunt Jemima Frozen Pancakes, click here for more information. I’m reconsidering my distaste for discount programs that track purchase histories and giving two thumbs up to Kroger for the quick safety alert that could save lives.
Medical Malpractice Facts
January 25, 2012
For years, I have proudly supported of the consumer protection group Public Citizen and have served on the board of directors for Tennessee Citizen Action, which is affiliation with the national group. Because our legislature is again in session and no doubt seeks to expand upon the erosion of consumer rights to seek redress in court for medical negligence, I am posting some facts below, courtesy of Public Citizen and reposted with permission. You may click here to learn straight truth about medical negligence in America.
Quick Facts on Medical Malpractice Issues
Costs of Medical Negligence to Patients
• Between 44,000 to 98,000 Americans die in hospitals each year due to preventable medical errors. (Institute of Medicine, To Err Is Human: Building a Safer Health System, 2000.)
• The annual costs to society for medical errors in hospitals at $17 billion to $29 billion. (Institute of Medicine, To Err Is Human: Building a Safer Health System, 2000.)
• The total amount spent on medical malpractice insurance in 2000 was $6.4 billion – at least three to five times less than the Institute of Medicine’s estimate of the costs of malpractice to society. (National Association of Insurance Commissioners, Statistical Compilation of Annual Statement Information for Property/Casualty Insurance Companies in 2000, (2001).)
Frequency of Medical Malpractice Claims
• Only one in eight preventable medical errors committed in hospitals results in a malpractice claim. (Harvard Medical Practice Study Group, Patients, Doctors and Lawyers: Medical Injury, Malpractice Litigation, and Patient Compensation in New York, 1990.)
• From 1996 through 1999, Florida hospitals reported 19,885 incidents but only 3,177 medical malpractice claims. In other words, for every 6 medical errors only 1 claim is filed. (The Agency for Health Care Administration; Division of Health Quality Assurance. Reported malpractice claims by district compared to reported adverse incidents 1996, 1997, 1998, 1999.)
• The number of new medical malpractice claims declined by about four percent between 1995 and 2000. There were 90,212 claims filed in 1995 and 86,480 claims filed in 2000. (National Association of Insurance Commissioners, Statistical Compilation of Annual Statement Information for Property/Casualty Insurance Companies in 2000, 2001.)
• Punitive Damages are awarded in less than 1 percent of medical malpractice cases. (Bureau of Justice Statistics, 1996.)
Physicians’ Costs of Medical Malpractice Insurance
• Malpractice insurance costs amount to only 3.2 percent of the average physician’s revenues. (Official Transcript, Medicare Payment Advisory Commission, Public Meeting, December 12, 2002.)
• While medical costs have increased by 113 percent since 1987, the total amount spent on medical malpractice insurance has increased by just 52 percent over that time, less than half of medical services inflation. (Bureau of Labor Statistics – Medical Services CPI; Best’s Aggregates and Averages.)
• The median medical malpractice payout by a physician to a patient rose 35 percent from 1997 to 2000, from $100,000 to $135,000. (National Practitioner Data Bank Annual Reports, 1997 through 2001.) But during the same time, the average premium for single health insurance coverage has increased by 39 percent. (Kaiser Family Foundation and Health Research and Educational Trust, Employer Health Benefits Surveys, 1998-2002; National Practitioner Data Bank Annual Reports, 1997 through 2001.)
Medical Malpractice Award Trends
• The size of damage awards has been steady since 1991. The mean payout was $135,941 in 2001, up 8.7 percent from $125,000 in 2000. Over ten years, malpractice payouts have grown an average of 6.2 percent per year. That’s almost exactly the rate of medical inflation: an average of 6.7 percent between 1990 and 2001. (National Practitioner Data Bank and the Journal of Health Affairs, as quoted by Lorraine Woellert, Commentary: A Second Opinion on the Malpractice Plague, Business Week, March 3, 2003.)
• Malpractice payouts by physicians and their insurers were a mere $4.5 billion in 2001 – less than 1 percent of the country’s overall health care costs of $1.4 trillion. (National Practitioner Data Bank, as quoted in Business Week, March 3, 2003.)
• In 2001, only 895 out of 16,676 payouts, or about 5 percent, topped $1 million. (National Practitioner Data Bank, as quoted in Business Week, March 3, 2003.)
Insurance Industry Economics Have Caused the Premium Price Spike
• “For several years, insurers kept prices artificially low while competing for market share and new revenue to invest in a booming stock market. As the bull market surged, investments by these historically conservative insurers rose to 10.6% in 1999, up from a more typical 3% in 1992. With the market now in a slump, the insurers can no longer use investment gains to subsidize low rates.” (American Medical Association Report 35 of the Board of Trustees (A-02), available at:
http://www.ama-assn.org/ama1/upload/mm/annual02/bot35a02.rtf.)
• Premiums charged do not track losses paid, but instead rise and fall in concert with the state of the economy. When the economy is booming and investment returns are high, companies maintain premiums at modest levels; however, when the economy falters and interest rates fall, companies increase premiums in response. (J. Robert Hunter, Americans for Insurance Reform, “Medical Malpractice Insurance: Stable Losses/Unstable Rates,” October 10, 2002. See also: http://www.insurance-reform.org/StableLosses.pdf.)
Small Number of Dangerous Doctors Commit Most Malpractice
• Only 5 percent of doctors (1 out of 20) are responsible for 54 percent of malpractice payouts. (National Practitioner Data Bank, Sept. 1, 1990 – Sept. 30, 2002.)
• Only 8 percent of doctors (1 out of 12) with 2 or more malpractice payouts have been disciplined by their state medical board. (National Practitioner Data Bank, Sept. 1, 1990 – Sept. 30, 2002.)
• Only 17 percent of doctors (1 out of 6) who have made 5 or more malpractice payouts have been disciplined by their state medical board. (National Practitioner Data Bank, Sept. 1, 1990 – Sept. 30, 2002.)
Birds of a Feather: Why Tennessee Doctors Stick Together in Malpractice Cases
January 22, 2012
In medical malpractice litigation we often see a phenomenon where doctors stick together and seem to defy logic in the way they swear under oath that sometimes deadly mistakes aren’t malpractice. Surely some of these testifying physicians are acting out of sincerity and part of this “blindness” to a colleague’s medical errors may be attributed to the “old boys club”, but a skeptic might conclude there are other motivations at play. In Tennessee, the overwhelming majority of doctors purchase malpractice insurance through an entity called State Volunteer Mutual Insurance Cooperative (SVMIC). SVMIC is a cooperative that is owned by its members, who are generally doctors practicing in Tennessee.* In 1975, a group of doctors formed SVMIC and the venture has proven to be wildly successful. In less than 40 years of existence, SVMIC has achieved a surplus, or net worth of over $364 million (as of 2010). Part of these enormous profits ($71.9 million in 2009) are funneled back to members in the form of dividends and premium reductions. On those rare occasions when a malpractice case goes to trial (just 5.2% of all negligence cases filed in Tennessee make it to trial) there is a clear financial incentive for doctors to testify on each other’s behalf. As trial lawyers, the rules of evidence enforced by the courts forbid us from mentioning anything about insurance during a trial, so most jurors have no idea that rendering a judgment in favor of a malpractice victim simply means that an insurance fund worth hundreds of millions of dollars will, if the appeals courts don’t overturn the verdict, have to write a check that will not in any way, form or fashion affect anyone’s access to medical care or cause their local physician to go out of business.
*SVMIC has expanded, over the last few years, into the neighboring states of Alabama, Arkansas, Georgia, Mississippi, Kentucky and Virginia but does not yet dominate those markets as it does the Tennessee insurance market for doctors.
For more about SVMIC, check out my colleague John Day’s blog here.
This blog is cross posted at my Tennessee Injury Board blog here.
Big Trucks Being Driven in Fog or other Hazardous Conditions are Operated Illegally
December 20, 2011
Cross posted at my Injury Board Blog
Recently in Nashville heavy fog and icy road conditions set the stage for a 50 car pile up during the morning work commute. With the onset of winter, it seemed prudent to revisit the topic of a blog last February: interstate trucking regulations prevent the operation of a commercial vehicle whenever hazardous conditions create a scenario causing a hazard to passengers (and other motorists). The applicable trucking regulation is 49 CFR §392.14, which states the following:
Hazardous conditions; Extreme Caution
Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by snow, ice, sleet, fog, mist, rain, dust, or smoke, adversely affect visibility or traction. Speed shall be reduced when such conditions exist. If conditions become sufficiently dangerous, the operation of the commercial motor vehicle shall be discontinued and shall not be resumed until the commercial motor vehicle can be safely operated. Whenever compliance with the foregoing provisions of this rule increases hazard to passengers, the commercial motor vehicle may be operated to the nearest point at which the safety of passengers is assured.
Several years ago I was involved in litigation surrounding a truck crash that was blamed on heavy fog when a passenger vehicle collided with a white truck attempting to execute a turn across traffic. Due to the fog, the truck was essentially invisible to approaching motorists. The highway patrol and police simply blamed the wreck on the fog, but an analysis of the trucking regulations in light of the foggy conditions revealed that legally, the truck should not have been on the road in those conditions. If you see a big truck on the highway in icy or foggy conditions that create a hazard, don’t hesitate to alert authorities. Making that call could save someone’s life. If you or a loved one have been injured by the negligent operation of a big truck, contact a qualified attorney to help you and your loved ones hold the trucking company accountable.
The Acts Before: What the jury doesn’t know
December 18, 2011
I’ve never served on a jury although I wish I could. To those called to serve as jurors in a trial it must seem like they’ve been dropped via parachute into a strange land with arcane language, judge worship and the only certainties being delay and boredom. If all the world is a stage then a civil trial is a five act play where jurors double as actors entering just before the epilogue and playwrights tasked with authoring the ending without really knowing what transpired in the several acts before. Rules of evidence and decorum prevent lawyers (and judges) from telling jurors certain things they wish jurors could know about the case and the people involved. Lawyers and litigants aren’t even allowed to engage a juror in conversation for fear of tainting the outcome, so we try to avoid contact in courthouse hallways, parking lots or restrooms and silently pray that jurors don’t take our avoidance as a slight that affects their perception of our client’s case. Many other facts big and small would be shared with jurors if lawyers were allowed to tell the entire story. We want jurors to have all their curiosities satisfied so they can focus on the ultimate issue, which is how to best fix the wrong that has been done in the case before them. For example, in an injury case the defense lawyer tells you he represents the defendant when in fact he has been hired by the defendant’s insurance company. Often, we aren’t even allowed to share whether the law firm representing the defendant has hundreds of lawyers or just one. Defense lawyers bend over backwards to seem oppressed and put upon when nothing could be further from the truth. In simple car crash cases for example, the defense lawyer often admits that his client caused the wreck as the trial starts in order to seem reasonable to the jury even though the insurance company paying his fees has refused to accept responsibility and has denied, delayed and litigated the claim for years in hopes of avoiding judgment day. We aren’t allowed to tell jurors whether or not a client’s medical bills have been paid by private health insurance or Medicare or that, if those bills have been paid by some entity, that entity has to be reimbursed out of the verdict. If Medicare or (in our state) TennCare have paid the bills and no sufficient verdict is obtained, the taxpayer ends up footing the bill for the defendant’s negligence instead of the responsible party being required to reimburse the government. In a medical malpractice case, we aren’t allowed to tell jurors that we often have to go out of state to find a testifying expert because the vast majority of doctors in Tennessee have banded together to form a cooperative that (1) provides insurance for all its members and (2) pays dividends to its members when it doesn’t have to pay malpractice verdicts to victims of medical negligence. Because of this financial incentive, local doctors stick together and blackball those few doctors that follow their conscious and speak out against medical negligence. The same is true in other states. Also, because the defense is funded by an insurance company with hundreds of millions of dollars at its disposal, they typically bring twice as many “experts” to trial as do the plaintiffs, whose experts are typically being paid out of limited funds advanced from the lawyer’s own pocket in hopes of being reimbursed if victory is attained. Jurors typically are unaware that most lawyers employed by insurance companies to represent defendants are paid by the hour and have a vested financial interest in clogging the system and dragging things out for years while most personal injury lawyers work for a contingency fee, which means they must invest, by the time a case gets to trial, hundreds of hours of time and many thousands of dollars in case expenses over a course of several years before getting the first penny of compensation, which will only come as a percentage of any verdict returned by the jury. Even the court reporter, who is not actually employed by the court in civil cases, is paid out of the lawyer’s pocket one one side and by the insurance company on the other when the bill is split between the parties. Court reporter fees alone typically run into the thousands of dollars by the time a case gets to trial and when a doctor or other expert testifies, he gets paid in advance for his time, also out of the lawyer’s pocket on one side and from the insurance company on the other.
We aren’t allowed to tell a jury that the impact of their decision in the case before them resonates far past the courtroom walls and sends a message to insurance companies and defendants about how they should conduct future business. A substantial verdict means they will be more likely to reasonably settle future claims and more likely to take precautions and try to prevent repeat behaviors. Failure to provide a reasonable verdict in a case of negligence results in at best an extension of the status quo and, at worst, a callous disregard for notions of accountability leading to even greater wrongs and more damages to future victims.
It really doesn’t seem fair that, in the multi-act drama that is civil litigation, jurors are given such extreme and ultimate responsibility and so few facts to consider about the actions occurring before the jury enters the stage, but that is our system and in spite of its flaws, remains the best ever put in practice for resolving disputes and attempting to right wrongs.
Joe Paterno’s Firing Is Just The First Step
November 9, 2011
What I consider to be the most important case of my career so far involved the sexual molestation of children by a trusted counselor. I represented several victims who had been abused by a predator who somehow wasn’t properly screened by an employer running a camp with a state contract to provide youth services. It could have all been prevented with either a cheap background check or a phone call to verify his references, which were fabricated. At State College in Pennsylvania, the final act of an equally preventable tragedy has played out on a public stage after indictments for child molestation and perjury have implicated a trusted assistant coach and destroyed the public perception of a football legend. Jerry Sandusky used his position as assistant coach to the legendary Joe Paterno to gain access to a growing list of victims who were coerced, molested and forcibly raped while parents and guardians trusted Sandusky, and Paterno by extension, with their children. It seems clear that Paterno and other Penn State athletic department personnel knew or should have known what was happening but did nothing to protect the children Sandusky was raping. There is no possible excuse for looking the other way.
The public debate has centered on whether Paterno should resign or be fired. Paterno and the other enablers at Penn State apparently did not technically break the law with their enabling of Sandusky, but they shattered the moral covenant between parents and the coaches to whom they entrust their children. There should be litigation and there should be consequences. Raping someone causing more than temporary physical pain. It causes long term psychological pain and therapy is expensive. At a minimum Penn State should be required to pay for all past and future therapy, but that does nothing except help them cope. Our civil justice system cannot turn back the clock and truly undo the wrongs, but it can financially punish wrongdoers and help provide both security going forward and a financial disincentive for other enablers tempted to look the other way when prevented with a moral decision.
Yes, Paterno should be fired. But that does nothing to help those boys his assistant coach molested and raped. There must be more. Much, much more.
Does Every Dog Still Get One Bite? Not In Tennessee
September 7, 2011
There is an old saying that “every dog gets one bite.” That saying came from the common law that held a pet owner was responsible for a dog’s actions once it was known that the dog had a dangerous propensity, which was typically manifested in the first bite. Because of the huge casualty losses associated with dog bites (over $412 million in annual claims, discussed earlier here), the law has evolved in most states and pet owners have a greater responsiblity to prevent injury to others from animal attacks.
In Tennessee, the law changed in 2007 to hold dog owners responsible for injuries caused by their dogs regardless of whether the animal had a history of biting. The statute can be found at T.C.A. Sec. 44-8-413 and states in pertinent part:
“(a)(1) The owner of a dog has a duty to keep that dog under reasonable control at all times, and to keep that dog from running at large. A person who breaches that duty is subject to civil liability for any damages suffered by a person who is injured by the dog while in a public place or lawfully in or on the private property of another.
(2) Such a person may be held liable regardless of whether the dog has shown any dangerous propensities or whether the dog’s owner knew or should have known of the dog’s dangerous propensities.”
If the victim is enticing the dog or is trespassing the dog owner may not be responsible for damages caused by a bite, but the burden has clearly shifted and the public policy is to encourage responsible pet ownership by requiring owners to restrain and care for their animals in a way that protects the public.
Indiana Stage Collapse: Who’s At Fault?
August 13, 2011
Tragedy has struck the Indiana State Fair. Failure to adequately secure a concert stage rigging caused its collapse in the face of strong winds just before the country music duo Sugarland was to perform. (Photos here). According to press reports, at least three people died and dozens more were injured when the temporary structure came crashing down upon fans waiting to see the award winning group consisting of singer-songwriters Jennifer Nettles and Kristian Bush. Soon, the attention will turn to blame and legal liability. Ultimately the concert promoter, who typically provides the staging, will bear at least partial responsibility. Since the concert was outdoors, one can presume that winds, even high ones, were foreseeable and an appropriate outdoor stage rigging should have been in place prior to fans being allowed into the area. Some artists insist their own stage and lighting structure be used and if that is the case in this instance, Sugarland and/or their tour management company may be subject to liability.
This is an interesting (and common) legal situation that arises whenever negligence causes injury at a concert. Rest assured there will be much finger pointing between the Indiana State Fair, its concert promoters and individuals charged with securing and inspecting the premises to insure patron safety. Don’t hesitate to contact a qualified lawyer if you have questions regarding concert injuries.
I signed a waiver and then got hurt. Do I have a case?
July 31, 2011
Last week I attended a public event where there was a bounce house offered for any children attending so long as the accompanying adult signed a waiver of liability. There was no observation or monitoring of the bounce house and there were far too many children of all different sizes being allowed in simultaneously. My quick assessment led me to believe the proprietors were committing gross negligence, which cannot be waived. Further, parents can rarely waive the claims of a child and children cannot legally contract to waive negligence. Most assuredly, an adult cannot waive liability regarding someone else’s children. This was a classic case of a waiver that was likely not worth the paper upon which it was written because it It is a common misconception that once a waiver is signed no claim for injuries can follow regardless of anyone’s negligent acts. The law of waivers is controlled by state law and varies from one jurisdiction to the next but in Tennessee, a waiver is generally enforceable if (and only if) it reasonably describes the what is being waived and is signed by an adult who is signing on his or her own behalf. Waivers are generally not enforceable regarding children and are not likely to be enforced if the risk is not clearly defined. Also, gross negligence cannot be waived under most circumstances. The bottom line is this: do not assume that waiver you signed is enforceable. If there has been an injury due to negligence, consult an experienced lawyer who can evaluate whether you or your loved one has a viable claim.