South Carolina Personal Injury Law Blog

Illinois Judge Strikes Medical Malpractice Caps

From ChicagoBusiness.com:

A Cook County judge on Tuesday struck down a two-year-old Illinois law that caps some jury awards to victims of medical malpractice.

Circuit Court Judge Diane J. Larsen ruled that limiting payments for “non-economic damages” such as pain and suffering is unconstitutional. The law caps those awards in malpractice suits at $500,000 per case for doctors and $1 million per case for hospitals. There is no cap on economic damages, such as loss of pay.
In her 10-page opinion, Judge Larsen ruled that the law violates the Illinois Constitution’s “separation of powers” clause — essentially finding that lawmakers interfered with the right of juries to determine fair damages.

The ruling means the case likely will go directly to the Illinois Supreme Court as early as next summer. The court has twice before struck down laws that limit payments to malpractice victims: once in the 1970s and again in 1997.

The decision deals a blow to doctors and the hospital industry, which waged a bitter lobbying campaign in 2005 to get the law passed. Facing resistance from the state’s trial bar, they argued that frivolous malpractice lawsuits and runaway jury awards were causing sky-high insurance rates and driving some doctors out of the state.

In a statement Tuesday, the Illinois Hospital Assn. expressed disappointment in the ruling but said it looked forward to a Supreme Court decision. “The law is critically needed to preserve and enhance access to health care for Illinoisans and remains the most appropriate, meaningful and comprehensive solution to address the medical liability crisis,” the statement reads.

Illinois’ trial bar sued last year to have the caps struck down as part of a malpractice lawsuit against Gottlieb Memorial Hospital in Melrose Park in which a baby allegedly suffered brain damage during a botched delivery. That case has not gone to trial.

Source:  "Judge Strikes Down Illinois Med Mal Caps" by Mike Colias , published at ChicagoBusiness.com.

Medical Errors are Fifth-Leading Cause of Death

Millennium Research Group, an authority on medical technology market intelligence, has conducted a detailed and thorough analysis of the acute care clinical information systems market, and it found that a major driver in the United States is the demand for improvement in patient safety.  Medical errors are the fifth-leading cause of deaths in the United States, with up to 98,000 deaths annually. According to the new report entitled U.S. Markets for Acute Care Clinical Information Systems, hospitals are adopting clinical information systems to help them provide adequate, timely care and reduce the frequency of preventable errors.

Source:  "Medical Error is the Fifth-Leading Cause of Death in the U.S." published by CBS-3 in Springfield, MA.

Jurors to Decide if Hospital Checked Doctor’s Credentials

A trial being held in West Virginia will decide whether Putnam General Hospital properly investigated the credentials of Dr. John King, who has been named in more than 120 medical malpractice lawsuits.  Patients contend that the doctor often performed substandard and unnecessary surgeries.  Attorneys for the hospital have said the hospital did all it could to check the doctor’s background. 

Source:  "King Credentialing Trial Begins in Putnam County" by Chris Dickerson, published in The West Virginia Record.

Settlement Reached in Dental Death

An Illinois dentist and the dental clinic where he practiced have agreed to pay $1.135 million to settle a lawsuit filed by the family of a 73-year-old man who died while having a tooth pulled.  The man's family claimed that the dentist failed to render appropriate care when the man stopped breathing after being administered an intravenous sedative.  Terms of the settlement did not force the dentist or clinic to admit wrongdoing.

Source:  "Dentist, Family Settle Lawsuit" by Michael Higgins, published in the Chicago Tribune.

Children Affected by Chemotherapy Errors in Majority of Cases

A new study has found that the vast majority of potentially harmful errors in pediatric chemotherapy are not spotted until they have, in some way, affected the child. According to the research conducted by a member of the Johns Hopkins School of Medicine, healthcare workers failed to identify errors in dosage or administration of drugs 85 percent of the time. Errors in the prescription of medication accounted for only 10 percent of cases. 

Source:  "Most Errors in Pediatric Chemo Make It to Patients" by Jeffrey Perkel, published in The Washington Post.

Doctor Requires Patients to Promise Not to Sue

Before gynecologist Ruth J. Schulze will see her patients, she requires them to sign a contract promising never to sue her for malpractice. The veteran physician in Ridgewood, N.J., requires the contract as a condition of treatment. Dr. Schulze sees it as the only way to control the rising malpractice premiums that she believes have put some of her brethren out of business.

As you might expect, patient advocates and legal experts are troubled by the idea of asking patients to sacrifice their legal rights — and they worry the practice could spread. By signing the contract, patients forfeit their right to a jury trial and agree to limits on pain and suffering awards and punitive damages. The contract blames patient lawsuits for ‘ever-escalating’ malpractice insurance rates.

Source:  "Contract Care: Patients Promise Not to Sue for Malpractice, Before the Exam" by Mary Jo Layton,  published in The Herald.

Doctors Face 50 Years in Prison for Surgery Scam

Three California doctors were arrested for recruiting patients to undergo needless surgeries in order to defraud insurance companies. Prosecutors claim the doctors performed over 1,000 procedures on 940 patients in exchange for cash or cosmetic surgery while billing insurance companies an estimated $30 million. The doctors face 47 felony counts for conspiracy, insurance fraud and other charges and could face 50 year in prison if convicted. 

Source:  "3 Doctors Held in Health Insurance Scam" by Christine Hanley, published in the LA Times.

Smallpox Vaccine Caused Illness in Soldier’s Son

According to a government report and attending physicians, a two-year-old boy almost died after contracting a viral infection as a result of exposure to the smallpox vaccine his father received before being deployed to Iraq. The infection, eczema vaccinatum, caused the boy to suffer kidney failure and lose most of his skin.

According to experts, because the father had eczema during childhood and the son too suffered from the skin condition, the vaccination should have never been given due to the risk for side effects and infection. Military regulations require those receiving vaccinations to be asked about history of such conditions in themselves and their families. 

Source:  "Soldier’s Smallpox Inoculation Sickens Son" by John Schwartz, published in The New York Times.

Research Verifies Bias Against Plaintiffs in Medical Malpractice Cases

There is no empirical evidence to support the much-publicized notion that the tort system amounts to a lottery for injured plaintiffs, as President Bush and others have long maintained.  If anything, the system appears to be biased against victims of medical malpractice.

Research has confirmed that juries in medical malpractice cases tend to sympathize with the doctors being sued rather than the patients who are suing them, says Philip G. Peters Jr., a law professor at the University of Missouri at Columbia, after analyzing three decades of research on the subject.  His research is published in the May edition of the Michigan Law Review.

Prof. Peters found that doctors win about half of the cases that independent experts who review them believe should result in a plaintiff's victory.  Only about 27 percent of medical malpractice cases are ever heard before a jury, the lowest percentage in any category of tort litigation.

The reasons believed to account for this bias in favor of physician defendants include:

• the doctors' superior economic resources and social standing;
• jurors' willingness to give a doctor the benefit of the doubt in cases in which the evidence is confusing or complicated; and
• cultural prohibitions against seeming to profit from injury.

This research confirms that there is no "epidemic" of frivolous malpractice cases and "runaway" jury verdicts that many elected officials claim are forcing doctors out of practice and leaving patients without needed medical care.  Political rhetoric and fear mongering do not make something true, no matter how much the politicians may want them to.

Source:  "That Malpractice 'Epidemic'?" by Sandra G. Boodman, published in the Washington Post.

What Our Soldiers Really Need Is Lawyers

You have probably heard about the scandal involving the conditions at the Walter Reed Army Medical Center.  However, what you probably have not heard is even more shocking.  Did you know that for decades, our military servicemembers have been barred from suing for medical malpractice and other forms of negligence by the government under the Feres Doctrine?

This doctrine prohibits servicemembers from seeking the same relief that other citizens can when harmed due to the negligence of others.  Of course, the threat of a lawsuit (and more specifically a judgment) serves as a critical deterrence of negligence by the government, companies, and others.  In other words, knowing that one could be held accountable, required to pay compensation, and possibly pay punitive damages will cause most rational people to take steps to ensure that they act reasonably and thus minimize their legal exposure.

In the military system, there is little deterrence for military negligence beyond self-regulation, bad publicity, or a political scandal, thanks to the Feres Doctrine.  Further, since most accidents are isolated and military personnel tend to stay within the chain of command, these are relatively low risks for military tort-feasors and since such accidents are not litigated, there is no reliable system to determine the rate of accidents in the military.

The military medical system is a prime example of what happens when patients are stripped of their legal protections.  For example, consider the following real-life scenarios:

• A female sailor had to have a fallopian tube removed, but military surgeons left five sponges and a plastic marking device in her abdomen, where the remained undetected for months.  Finally, her resulting complications forced a second surgery to remove her other fallopian tube, which left her infertile.  Her "compensation" for this medical malpractice: $66 per month in disability pay.

• A Lieutenant Commander spent 11 months with red lesions from his legs to his torso that a doctor classified as eczema. It was correctly diagnosed as cancer shortly before he died.

• An Airman was turned away twice by a military hospital that told him his intense stomach pains was nothing more than stomach flu.  He died of a bowel obstruction.

• A Naval Petty Officer went to a military hospital with pneumonia, which is treatable with antibiotics.  However, the doctor left it untreated, and the patient suffered brain damage.

• An Air Force Staff Sergeant had appendicitis but was repeatedly misdiagnosed and sent home with some antibiotics.  After finally collapsing at home, he was rushed into surgery, but he came out brain-dead. It's alleged that a series of malpractice led to his death, including the use of a pediatric rather than an adult device to open an airway when he had trouble breathing.

Both liberals such as Justice John Paul Stevens and conservatives such as Justice Antonin Scalia have denounced the Supreme Court's continued use of the Feres Doctrine, as have dozens of lower court judges.  This doctrine has done more harm to military personnel and families than any court-made doctrine in the history of this country.  If members of Congress truly want the best for our troops, they should start by giving them the same legal protections as the the non-military citizens that they are protecting.

Source:  "What Our Soldiers Really Need: Lawyers" by Prof. Jonathan Turley, published in USA Today.