Articles Posted in Medical Malpractice

A bill introduced in the New York State Legislature aimed to help people who were grievously injured by medical malpractice. It had wide, bipartisan support, and passed one of the state’s two houses. But it’s unlikely ever to become law.

As attorneys Thomas Moore and Steve Cohen wrote on the op-ed page of the New York Times, that’s because its powerful enemies flexed their misguided muscle.

The legislation is known as Lavern’s Law, named for a Brooklyn woman. She had an X-ray at a hospital that showed a suspicious mass. But no one at the facility alerted her to that result, and three years later, she died of an otherwise curable form of lung cancer. The legislation was drafted because her daughter was barred from suing for negligence because New York victims of such horrible care must take legal action within two-and-a half years of when the medical error was made. It doesn’t matter when it was discovered. Most states, unlike New York, use the discovery date as the fair starting gun on the legal clock for the time to bring a lawsuit.

But decency and fairness clearly are not priorities for some powerful interests in New York, and the people who cave to them. Hospitals and the health-care lobby opposed Lavern’s Law, Moore and Cohen suggested, because they feared more medical malpractice lawsuits. That might well be the result, the writers said, ” … but the actual number would probably be minuscule: Of the hundreds of possible cases we evaluate every year, only a handful are outside the statute of limitations. …”

As is widely reported, here and elsewhere, hospitals make lots of mistakes for which they should be accountable. “To Err is Human,” the seminal 1999 report by the Institute of Medicine, showed that at least 44,000 patients were killed and thousands more injured every year because of errors committed in hospitals. A couple of years ago, the journal HealthAffairs pegged the number of avoidable deaths at probably 10 times higher.

“Hundreds of thousands more patients are seriously injured through negligence,” according to Moore and Cohen. “Doctors and hospitals are doing a poor job of policing themselves, yet they have been successful at keeping anyone else from doing it.”

The writers remind readers, as have we, that very few such mistakes result in medical malpractice lawsuits. In 2013, even the Journal of the American Medical Association (JAMA) concluded that only 1 in 100 medical errors resulted in a claim.

“Only a tiny percentage of malpractice cases result in doctors’ hospital privileges being curtailed,” Moore and Cohen reported. “Between 2011 and 2013, there were approximately 7,400 complaints against doctors filed each year with the New York State Office of Professional Medical Conduct. Most consumer complaints are not about suspected malpractice – after all, it takes a fair amount of expertise to identify medical errors caused by negligence. Rather, most allege impairment, improper prescribing, sexual misconduct and fraud.”

Of all those complaints, only an average 287 per year, or 4 in 100, resulted in the responsible party’s license being restricted, suspended or lost.

Anybody familiar with personal injury law knows that even when victims of medical malpractice lawsuit are successful in court, their judgments often are modest. That’s often due to the wave of judgment caps imposed by state legislatures on how much people are allowed to recover in these cases, a situation we wrote about last month that also brings additional medical harm. Such unfair, restrictive relief isn’t even the issue addressed by Lavern’s Law – it was a much more basic effort to allow people sufficient time to realize that they were harmed, and the extent of that harm. Moore and Cohen called it shameful that it wasn’t allowed to come up for a final vote, and that an even greater shame “is that hospitals don’t put more emphasis on patient safety. As the Lavern’s Law travesty makes clear, we need better solutions. Don’t limit what injured people may collect, and don’t make it more difficult for victims to get their cases heard. …”

The writers offered ways to prevent negligence from happening in the first place, and it begins with medical providers being better watchdogs of their peers. A recent report by Public Citizen showed that only about 6 in 100 doctors probably were responsible for nearly 60 in 100 malpractice payments between 1991 and 2005. Why shouldn’t this small minority of wreckless professionals be identified by the people in the best position to recognize them?

Moore and Cohen also called for state licensing agencies to improve their ability to keep the worst offenders out of hospitals. “The threshold for state medical licensing agencies to initiate reviews should be reduced,” they said. “[I]n New York it takes six malpractice judgments or settlements. It should be three at most.”

We think even that is generous.

The commentary also said that hospital leaders should be held accountable for the negligence their facilities commit. “The 10 highest-paid administrators and doctors at each hospital should have a significant portion of their compensation tied to patient safety,” advised Moore and Cohen, claiming that if as much as 30% of their compensation depended on reducing malpractice claims against their facility, hospitals would be routinely safer places.

“But as long as hospitals and doctors block legislation and fight regulation,” the safety advocates concluded, “patients will remain in peril.”

We write often about the misguided, unfair movement to cap the amount of money plaintiffs in medical malpractice cases are allowed to receive. We’ve often detailed how these efforts, backed by the medical and insurance industries and conservative lawmakers who claim that they impair the efficient delivery of quality care, in fact do not result in the benefits their supporters pretend they will.

Now, a couple of studies from last year explained in The National Law Review show how such damage caps potentially can cause additional harm to patients, not to mention the health-care industry.

The authors reviewed five U.S. states that have malpractice caps imposed under the description of “tort reform,” as well as their records on what is known as Patient Safety Indicators (PSIs). Using various data, “Do Doctors Practice Defensive Medicine, Revisited” (a Northwestern University Law & Economics Research Paper from October 2014), showed a rise in the rate of PSIs after caps were implemented, and subsequently found “consistently gradual relaxation of care or failure to reinforce care standards over time.”

They also determined that this decline was widespread, that it applied to care that’s more likely to lead to a malpractice suit (for example, “never events” such as leaving an unintended piece of medical equipment inside a surgical patient’s body, operating on the wrong side, etc.), as well as care that’s less likely to cause legal action, such as a central line bloodstream infection.

In addition, the authors found evidence “that reduced risk of med[ical] mal[practice] litigation, due to state adoption of damage caps, leads to higher rates of preventable adverse patient safety events in hospitals.”

So … implementing these damage caps leads health-care facilities to relax their care standards, which leads to an increase of otherwise preventable incidents, which leads to … more malpractice suits.

Good idea, huh?

A study earlier last year, “The Deterrent Effect of Tort Law: Evidence from Medical Malpractice Reform” (Northwestern University Law & Economics Research Paper No. 13-09, July 2014), suggested that physicians might practice riskier medicine in states that have caps. “For example,” according to The Review, “the physician might perform ‘high-risk services or procedures’ that would be otherwise avoided in noncapped states, or in states with common laws where an uncapped tort system would provide further deterrence from such riskier procedures.”

Here we go again: As the authors wrote, “damage caps have long been seen by health policy researchers and policymakers as a way to control health-care costs: We find, in contrast, no evidence that adoption of damage caps or other changes in med[ical] mal[practice] risk will reduce health-care spending.”

Patients who suspect malpractice after they’ve had an unforeseen injury from a surgical procedure quickly learn that the operating room works on a basic “honor system” for reporting errors. If something goes wrong, the surgeon is required to describe the event in his or her dictated report of the operation. Of course, that lets the surgeon control what gets put on paper.

Now there is a budding movement to have cameras in operating rooms record what happens and save the recordings for possible use later — both to educate professionals and as potential legal evidence.

The Washington Post has an article describing a bill introduced in the Wisconsin legislature to require such recordings. The man behind the move is the brother of a patient who died from too much propofol, the same anesthetic drug that killed Michael Jackson.

Reporter Tom Jackman’s article quotes a Toronto surgeon who has invented a device that synchronizes the vital signs recordings of a patient’s pulse etc. with video and audio recordings of what is going on in the OR. Teodor P. Grantcharov, a professor of surgery at the University of Toronto, told the Post:

If we don’t know what we’re doing wrong, we’ll never improve. This is what many other ­high-performance industries have been using for decades.

Lawyers for the medical industry complain that such recordings would “invade the privacy” of surgeons, nurses and others in the OR. But if it could educate surgeons on how to avoid errors and save lives, that seems like a minor quibble that could be worked around. Other practical issues also need to be addressed. But many surgical procedures are already video-recorded, because they are done with tiny cameras inside the body in so-called “minimally invasive” techniques.

So why not just save the recording?

In a particularly offensive and harmful misuse of professional authority, a doctor in Detroit was sentenced earlier this month to 45 years in prison for defrauding insurance companies of millions of dollars and poisoning hundreds of patients with chemotherapy treatments when they didn’t even have cancer.

Those weren’t the only crimes committed by Dr. Farid Fata, whose sordid tale was recounted by the Detroit Free Press last week. Rather than helping terminal patients die peacefully, he ordered unnecessary treatments that prolonged their suffering. And rather than treating true cancer patients properly, he withheld appropriate treatments if he made more money doing that than by addressing their need.

He was arrested two years ago and last year he pleaded guilty to fraud, money laundering and conspiracy to pay and receive kickbacks. His federal prison sentence reflects the violation of more than 550 patients’ trust and a more than $17 million haul from fraudulent billings. Federal prosecutors said it was the most egregious case of medical fraud they had ever seen.

“This is a huge, horrific series of criminal acts that were committed by the defendant,” the Free Press reported U.S. District Judge Paul Borman saying before sentencing Fata. The judge said the prominent oncologist “practiced greed and shut down whatever compassion he had.”

According to U.S. Attorney Barbara McQuade, “Chemotherapy, as you know, is poison. Dr. Fata gave poison to people who didn’t even have cancer … to make money.”

One of his victims was Kenneth Paul Loewen, who died last year at 62. He had esophageal cancer for which Fata started chemotherapy before he even healed from surgery. He also was prescribed Neulasta, a strong drug that proved to be unnecessary and made him sicker. Loewen was scheduled for eight radiation treatments one day after Fata was arrested; when he consulted different doctors, they told him he didn’t need radiation.

Testimony in the case included accounts of more than 20 victims who told heartbreaking stories. One healthy person underwent chemotherapy and lost nearly all of his teeth. One patient was diagnosed with lung cancer when he actually had kidney cancer. In some cases, Fata gave patients with no documented iron deficiencies overwhelming amounts of iron; sometimes, he gave patients lower-than-needed doses of chemotherapy drugs.

In court, Fata admitted his crimes. “In some cases,” the Free Press reported, “he gave nearly four times the recommended dosage amount of aggressive cancer drugs; in at least one, a patient was given toxic chemotherapy for five years when the standard treatment was six months, according to former patients and experts who testified in court this week.

‘I misused my talents … because of power and greed. My quest for power is self-destructive,’ Fata told the court before sentencing. He said he is ‘horribly ashamed of my conduct’ and prays for repentance.”

Fata’s criminal behavior was investigated thanks to an office manager-turned-whistleblower. Among the agencies involved in his prosecution were the FBI, IRS and U.S. Department of Health and Human Services.

Although Fata is in jail and his medical license has been revoked, it may be difficult to find mercy for such a loathsome creature. But the survivors of some of his victims managed to do so. Sydney Zaremba’s mother died fewer than four months after Fata started chemotherapy for an early stage tumor in her neck that he overtreated with drugs. Still, Zaremba believed Fata was sincere.

“I actually cried,” she told the paper. “I had felt pity the first time I saw him come in in shackles.”

Never let the facts get in the way of a good story. That seems to be the rallying cry in too many medical-legal quarters. So once again, we offer a short quiz to separate the truth from what some people only wish was true about medical malpractice, courtesy of the civil justice website PopTort.

1. Medical malpractice case filings represent what percent of new civil cases filed in U.S. courts?

a. 25%
b. 12%
c. 5%
d. Less than 1%

(d) is the correct answer. According to the most recent data from the National Center for State Courts (NCSC), in 2012 medical malpractice case filings represented well under 1% of all incoming civil cases and less than 7% of incoming tort cases (negligence and intentional wrong cases that result in harm) in the courts of eight states reporting.

2. True or False: State-enacted “caps” on noneconomic damages (that is, limits on the amount of judgments) reduce the costs of so-called “defensive medicine” such as diagnostic imaging (MRIs, CT scans, etc.)


After analyzing data from the Centers for Medicare and Medicaid Services, researchers found that imaging costs did not drop in states with medical malpractice noneconomic damages (NED) caps. In fact, “imaging costs in some of the states that cap NED payouts were among the highest in the nation.”

For example, “California, a state with NED tort reform,” PopTort reported, “was ranked among the most costly for imaging”; charges there for a level I diagnostic and screening ultrasound was 36% higher than for all states, and over the past decade its imaging charges have increased by 400%, despite the NED tort reform.

3. How many surgeries are done each year on the wrong body part?

a. 50 b. 100 c. 250 d. 500
(d). Few things are more egregious or preventable than operating on the wrong body part. Yet according to a comprehensive data review published in JAMA Surgery, every year an estimated 500 surgeries are performed on the wrong body part and 5,000 surgical items unintentionally are left in patients’ bodies. In addition, 46% to 65% of adverse events in hospitals are related to surgery.

4. The Leapfrog Group, which scores hospital safety, says “patient safety should be Job No. 1 in every hospital.” What percent of hospitals does Leapfrog award an C, D or F “patient safety” grade?

a. 5%
b. 18%
c. 25%
d. 40%

(d. “[P]erformance on safety outcomes – including preventing errors, accidents and infections – has not significantly improved,” according to Leapfrog; 40% of the 2,523 hospitals analyzed received a C, D or F grade.

5. True or False: Most hospital executive boards consider patient safety a top concern.


According to the New York Times, “In general, hospital boards do not view themselves as institutional champions of quality…. Only half of boards view clinical quality as one of their top two concerns. In contrast, financial performance was a top priority for about three-quarters of hospital boards.”

A northern Virginia man successfully sued a doctor for defamation and medical malpractice, earlier this month receiving a judgment of $500,000 for the serious – and, frankly, weird – ethical and medical harm he suffered during a colonoscopy.

The case is weird because “defamation” is something plaintiffs who are medically harmed don’t often claim, and also because the proof of both the defamation and the malpractice was recorded by the man’s phone. During the procedure, he was under general anesthetic and dressed only in the standard hospital gown.

As the Washington Post explained,

“Because he was going to be fully anesthetized, the man decided to turn on his cellphone’s audio recorder before the procedure so it would capture the doctor’s post-operation instructions, the suit states. But the man’s phone, in his pants, was placed beneath him under the operating table and inadvertently recorded the audio of the entire procedure, court records show. The doctors’ attorneys argued that the recording was illegal, but the man’s attorneys noted that Virginia is a ‘one-party consent’ state, meaning that only one person involved in a conversation need agree to the recording.”

It was clear that the gastroenterologist, Soloman Shah, who was dismissed from the suit, and the anesthesiologist, Tiffany M. Ingham, mocked and insulted the man while he was incapacitated. Ingham made fun of his stated aversion to needles and made several other disparaging remarks about his character, stating her personal dislike of his manner. She defamed him, the jury decided, by warning a medical assistant not to touch a rash on his genitals because she might get “some syphilis on your arm or something,” and added, “It’s probably tuberculosis in the penis, so you’ll be all right.”

She was guilty of malpractice, the jury determined, by falsifying his chart with the notation that he had hemorrhoids. He did not, but Ingham was recorded as saying, “I’m going to mark ‘hemorrhoids’ even though we don’t see them and probably won’t…”

She and Shah also suggested “misleading and avoiding” the plaintiff after his procedure. Ingham was recorded as saying Shah should pretend to receive an urgent “fake page” and said, “I’ve done the fake page before,” according to the complaint. “Round and round we go. Wheel of annoying patients we go. Where it’ll land, nobody knows.”

Rarely is such disrespect for the people you’re supposed to help so clearly expressed and captured. No surprise that the jury, composed of human beings with the requisite compassion the medical “professionals” lacked, found in favor of the patient.

One of the jurors told The Post that the plaintiff had asked for $1.75 million and that the $500,000 judgment was a compromise between one juror who thought the man deserved nothing and at least one who thought he deserved more.

“We finally came to a conclusion,” the juror said, “that we have to give him something, just to make sure that this doesn’t happen again.”

Ingham seems to have disappeared from the northern Virginia area since the case came to light. Listening to her trash talk on the inadvertently recorded audio is a strange experience. One or two little black humor jokes is one thing. But as the audio rolls on and on, you realize this is one doctor who is alienated from the whole concept of the awe necessary when an anesthesia doctor beholds that a helpless patient’s life is entirely in his or her hands.

You wonder how many doctors are so unhappy with their profession as to take it out on their unconscious patients. Hopefully the number is few, and maybe it’s time for Ingham to think about a different career, when the people she’s talking to may get a chance to talk back.

The verdict is in. Again. Yet another study proves that medical malpractice claims diminish not by limiting consumers’ rights to file them, but by delivering better medical care.

PopTort, an initiative of the Center for Justice & Democracy at New York Law School, commented earlier this month on a new study published in the American Journal of Medical Quality that showed how one state reduced malpractice claims by improving the quality of its hospital care.

“Turns out you can reduce claims and lawsuits not only by stripping patients of their legal rights after they’ve already been hurt (as in Texas),” PopTort observed. “You can accomplish the same thing by stopping the injuries and deaths in the first place, which they found examining a hospital system in Louisiana.”

The recent research study depicted how the drop in malpractice claims in that state corresponded with an increase in hospitals’ quality scores based on 22 factors Medicare uses to measure hospital performance.

The study’s co-author, Dr. Khaled J. Saleh, who is chief of Division of Orthopedic Surgery at Southern Illinois University School of Medicine, said the findings suggest that hospitals can reduce liability claims with or without tort reform.

That term describes efforts to limit plaintiff judgments on medical malpractice and other restrictions that effectively stack the deck against people who have been harmed through medical misadventure.

“Clearly,” Saleh told HealthLeaders, “the evidence shows that if you do high-quality care, it is well received by patients and decreases your medicolegal costs.”

Then there’s Texas. Its “success” at tort reform, PopTort reminded, has made its laws “so Draconian that legitimate claims can no longer be brought.” The extent of its decline in civil justice is explored in a new book, “Tort Reform: Plaintiffs’ Lawyers, and Access to Justice,” by Stephen Daniels of the American Bar Foundation and Joanne Martin at the American Bar Endowment.

By reducing lawyers’ ability to use contingency fees as compensation, as tort reform has done in Texas, attorneys lose their economic incentive to pursue even the most righteous claims. Pointing to more than 20 years of research, extensive surveys and interviews, Daniels and Martin illustrated the sorry effect of the tort reform movement in Texas on the ability of plaintiffs to obtain judgments.

PopTort referred to a Rand study of a few years ago that reinforced the idea that the best way to reduce medical malpractice claims is to clean up your medical act, not deprive harmed patients of their rights. That study focused on California, where there was a highly significant correlation between the frequency of adverse medical events and malpractice claims. According to the study, “On average, a county that shows a decrease of 10 adverse events in a given year would also see a decrease of 3.7 malpractice claims.”

Its conclusion? “[N]ew safety interventions potentially can have positive effects on the volume of malpractice litigation – a desirable result to seek out, even beyond the immediate impact of medical injuries avoided.”

Then there was the paper three physicians published in 2011 about a comprehensive obstetric patient safety program at Presbyterian Hospital-Weill Cornell Medical Center in New York. “[I]mplementing a comprehensive obstetric patient safety program,” they wrote, “not only decreases severe adverse outcomes but can also have an immediate impact on compensation payments.”


  • 2009 compensation payments were almost 100% less than the average 2003-2006 payments ($27,591,610 to $250,000)
  • average yearly compensation payment from 2007 to 2009 was $2,550,136 versus an average of $27,591,610 in 2003 to 2006 (yearly saving of $25,041,475)

“How is it,” PopTort wondered, “that some respected opinion leaders don’t seem to care about addressing the problem of deaths, injuries, claims and lawsuits with proven patient safety solutions, but instead would rather focus on reducing accountability and the legal rights of sick and injured patients after they’ve been hurt? And by the way, then forcing taxpayers to pick up the tab for their care and letting the med mal insurance industry make out like bandits.

“It’s obvious, but it bears repeating: The best way to reduce malpractice litigation is not to take away the rights of injured patients, but to reduce the amount of malpractice.”

Last month much attention was paid to the passage of a bill by the House of Representatives to reconfigure how doctors are paid by Medicare. But one of its provisions escaped most people’s attention, and it has a huge potential effect on patient safety. It grants added protection for doctors against medical malpractice lawsuits.

As reported last week by the New York Times, “The bill, which requires the government to measure the quality of care that doctors provide and rate their performance on a scale of zero to 100, protects doctors by stipulating that the quality-of-care standards used in federal health programs – Medicare, Medicaid and the Affordable Care Act – cannot be used in malpractice cases.”

Everyone’s familiar with the comparison of law-making to sausage-making, and that description is apt here, too, as the language in the bill essentially replicates the language doctors and insurance companies wanted to see; that is, special-interest lobbies influenced public policy more than civil justice.

The medical industry claimed that because federal standards and guidelines do not fairly reflect standards of care, they shouldn’t be used as evidence of negligence when something goes wrong in the care of a patient.

But there has to be some kind of standard by which performance is measured, especially when taxpayers are footing the medical bill. Why should doctors and hospitals not receive the same kind of work scrutiny everyone else is subject to?

Insurance companies and federal programs such as Medicare increasingly require providers to report data that are used to review the quality of care. Reimbursement is based on performance as compared with similar providers.

As The Times explained, “Medicare, for example, asks doctors: What percentage of tobacco users receive counseling on how to stop smoking? What percentage of patients develop infections after surgery? What percentage of diabetes patients have blood sugar levels in the normal range?”

And that sort of oversight is only expected to increase as more people are covered by government insurance plans and as medical costs increase.

Providers worry about the increasing reliance on cold numbers, and there are limits to how well numbers represent someone’s skill and the ability to treat patients as individuals, not sets of symptoms.

Brian K. Atchinson is president of the Physician Insurers Association of America, a trade group for insurers. He told The Times that the bill would “eliminate the uncertainty” about how to use federal guidelines and standards in determining legal liability of providers. Rather than an extra layer of protection, he said the bill would, “simply preserve the status quo with respect to medical professional liability.”

But to other industry observers that seems more like a reason to excuse medical providers from paying the attention all patients have the right to expect. “Why wouldn’t you want to take these guidelines into consideration?” asked Tom Baker, an expert on insurance law at the University of Pennsylvania. “They indicate what a reasonable doctor does and should do, just like guidelines adopted by a medical specialty society.”

Other consumer advocates also see the bill’s provision as more ominous than reasonable.

The National Consumer Voice for Quality Long-Term Care told the newspaper that the protection provision would make it more difficult for nursing home residents who are injured to defend their rights, that it would interfere with their ability to prove negligence by showing that a facility had violated federal health and safety standards.

Provider lobbyists want such testimony to come from “experts,” not guidelines. They want doctors to be able to say that other doctors must be able to make decisions they believe are best for a given patient instead of being forced to make a decision based on what the government believes is best for all people with that condition.

That misses the point. No one argues that doctors must have flexibility in treating people; what they’re not allowed to have is a negligent practice. If they make a mistake, the reasons for it should be open to scrutiny by whatever measure can explain it.

The primary goal of the House Medicare bill, which the Senate did not consider before Congress left on Easter break, is to revise the way doctors are paid; it isn’t to address what happens if they’re negligent.

The bill would head off a scheduled 21% cut in what Medicare pays doctors; the Senate is supposed to consider the bill when legislators return April 13.

One of the bill’s sponsors, according to The Times, said the new payment formula would help doctors “get out from under the constant threat of payment cuts” while endorsing a new payment system based on “quality measures.”

“While taking these important steps toward ensuring quality care,” he said, “the bill specifically states that these quality measures are not creating a federal right of action or a legal standard of care.”

President Obama and many representatives, Democrats and Republicans, have endorsed the bill, but how many of them read, or understand, what it means not just for paying doctors, but protecting patients?

If you’re looking for a model of how to deprive people of their rights after they’ve suffered from medical malpractice, go to Wisconsin. As reported last week in the Milwaukee Journal Sentinel, companies that provide medical malpractice insurance in that state are reaping huge profits while the number of medical malpractice claims have fallen to record lows because lawyers can’t afford to take cases that are so burdened by legal handcuffs.

Only 84 medical malpractice suits were filed in Wisconsin in 2014, down from 140 in 2013. In 1999, 294 claims were filed. But last year, the state-managed insurance fund for doctors grew to a bountiful $1.2 billion.

According to one longtime medical malpractice attorney in the state, “Ninety-nine percent of lawyers … just don’t want to take medical malpractice cases. The cases are very expensive, very time consuming and so many are lost that ought to be won.”

Why are things so obviously upside down in Wisconsin?

Because state law prohibits harmed patients from filing a lawsuit in court until after they have filed with a state Medical Mediation Panel. About 1 in 3 mediation complaints in 2013 and 2014 were filed without lawyers.

Because state laws limit who may file medical malpractice lawsuits and how much they may receive in damages. Judgments for noneconomic damages, such as pain and suffering, are capped at $750,000 in Wisconsin.

Because state law limits who may file a medical malpractice wrongful death suit. “Only spouses and minor children can sue for loss of companionship in those cases,” reported the Journal Sentinel, “and parents who lose an 18-year-old child to medical error are locked out of the court system, as is a child of the same age who loses a parent.”

The mediation panels received 118 complaints in 2014, the fewest in the agency’s history (there were 161 in 2013).

So the number of suits filed decline as the insurance fund grew. The company that underwrites more malpractice insurance in Wisconsin than any other posted national net income of $81.4 million in 2014, an increase of more than $9 million from 2013.

And doctors are getting a better deal, too; their premiums for coverage by the state Injured Patients and Families Compensation Fund are scheduled to decline an average of 34% in a few months, the second consecutive year that rates have fallen. Wisconsin’s fund is the largest of its kind in the U.S., nearly doubling its assets since 2009, when it had $645 million.

But it has paid out only $13 million on three – three! – claims during the 12-month period ending June 30, 2014. It paid harmed patients only $6.3 million in the second half of 2014.

Is anyone surprised that Ted Nickel, the state insurance commissioner who chairs the board that oversees the fund, declined to be interviewed by the Journal Sentinel?

Michael Matray, editor of a malpractice insurance trade journal, told the newspaper that medical malpractice lawsuits are down throughout the U.S. because so many states have laws that cap potential judgments, because it’s so expensive to bring a lawsuit and because juries tend to side with physicians, who win more than 9 in 10 cases that go to trial.

“Plaintiff attorneys are only taking the slam dunks,” he said.

As we’ve explained in previous blogs, plaintiff lawyers generally are paid only when the verdict goes their clients’ way – that is, they receive a portion of the judgment, so they must cover the cost of all the expenses upfront. The Journal Sentinel said that such expenses can exceed $100,000, for such things as hiring experts to review the thousands of pages of medical records.

“Who is going to spend $130,000 and 500 hours of their life for a case that has little chance of winning?” said one plaintiff’s attorney.

The saddest thing is that the chances of winning have so little to do with the merits of the case, especially when the state stacks the deck against you.

If there’s anything remotely hopeful here, it’s that one Wisconsin state senator has said she probably would sponsor a bill this year to allow parents of children younger than 27 who die from medical malpractice to file a wrongful-death suit.

It’s better than nothing, but not much.

Read the Journal Sentinel’s investigation last year into the impediments of bringing legitimate claims of medical malpractice to account.

Good news last week about protecting consumer rights. As spelled out by, the civil justice website, a large study supported by the federal government concluded that forcing individual credit card, bank and other financial/product services customers to agree to arbitration and forgo their class-action rights in the event of a dispute prevents righteous lawsuits from being filed.

The Consumer Financial Protection Board’s study was 700+ pages of evidence that these forced “agreements” amount to a system rigged to benefit corporations. At the expense, of course, of real people. (See our blog, “Arbitration Agreements: Bad for Consumers, Good for Nursing Homes.”)

As PopTort explains, because “most cases are too expensive and difficult to bring individually, these clauses plus class action waivers result in the disappearance of claims and immunity for the wrongdoer.”

Study highlights include:

  • Forcing people to sign repugnant contracts is widespread. For example, almost 9 in 10 mobile wireless providers who authorize third parties to charge consumers for services have arbitration clauses. Such providers cover nearly 100% of the market.
  • Most people who are forced into arbitration or prevented from filing as a class give up their claims. Of tens of millions of consumer financial contracts, only about 600 arbitration cases and 1,200 individual federal lawsuits happen every year versus, on average, about 32 million consumers eligible for relief through class-action settlements in federal court.
  • Contrary to widespread misinformation that class actions benefit only attorneys, the CFPB found that “settlements totaled $2.7 billion in cash, in-kind relief, expenses and fees,” and that only about “18% of that [went] to attorneys’ fees and expenses.”
  • The CFPB also noted that those figures don’t reflect the potential value to consumers of companies changing their behavior. In the cases for which data was available, at least $1.1 billion was paid or scheduled to be paid to at least 34 million consumers.

As PopTort summarized, the misguided and unfair movement for “tort reform” has raged for decades. And its claims that such “reform” is necessary to prevent frivolous lawsuits, and enriching lawyers at the expense of just folks, have been proved wrong.

“Look at the area of medical negligence,” PopTort advised, “where preventable errors are at epidemic levels – the third leading cause of death in America. Ninety-nine percent of the time, there is no claim or legal accountability. If jury verdicts are severely limited by law, lawyers paid on contingency cannot afford to take many of the most serious and costly cases. And as any trial lawyer who has to turn away 100 cases for every 1 they take knows, most people have no idea that lawmakers have stripped away their rights – or even that they may have voted to give up their own rights, convinced by fabrications and fear-mongering by industries seeking immunity.”

The CFPB study is a big first step in the right direction of banning forced arbitration clauses and class-action waivers. Another positive development occurred last week, when a judge in Tennessee ruled that that state’s cap on economic damages in personal injury cases is unconstitutional.

As reported in the Insurance Journal, in 2011, the Tennessee Legislature limited the amount of money for a personal injury judgment. Noneconomic damages include pain and suffering, disfigurement or scarring and loss of enjoyment of life. In most cases, the cap for noneconomic damages is $750,000.

If you’d like to contribute to the effort to protect your rights as a consumer sign the petition, and as a potentially harmed patient, hope that tort reform laws get the same kind of attention as financial services contracts.

Patrick Malone & Associates, P.C. listed in Best Lawyers Rated by Super Lawyers Patrick A. Malone
Washingtonian Top Lawyer 2011
Avvo Rating 10.0 Superb Top Attorney Best Lawyers Firm

Contact Information