A $229-million Baltimore malpractice case? It’s worth digging into this news

bayviewjhhospital-300x94Headlines can command attention while not always fully informing, as might be the case with these eye-catching story titles, one fresh, the others a few years back:

If you’re a doctor, hospital, or insurer, these headlines and news articles might provoke a chill, and the thought — there go those doggone medical malpractice lawyers again, extracting unfair sums for patients in there-but-for-the-grace cases. But the details tell a different story.

The Baltimore Sun, in detailing the recent $229-million jury verdict, does readers a service by also busting key malpractice myths, reporting that the plaintiff’s “lawyers believe it’s the largest medical malpractice verdict in the United States. Such an award from a jury is rare and is certain to be reduced, perhaps substantially, according to legal experts. And as enormous as the outcome may be for the family, the ultimate award likely won’t improve the next family’s prospects in the legal system …”

The article, correctly, details that the sum ordered by the court to be paid by the hospital first will be cut under a Maryland law that caps the “non-economic” portion of the damages in malpractice cases at under $1 million. (The exact non-economic cap depends on the year the patient was injured. For injuries happening in 2018, the cap is $800,000. Maryland does not cap damages that can be measured, like lost income and costs of medical care.)

But judges and appeals, as is often the case, likely will slash the sum even more.

So, while these headlines trumpet eye-catching sums, they aren’t what injured patients, or their loved ones will take to the bank. The Baltimore Sun’s Meredith Cohn reports further that the sizable verdicts are a sign of a significant problem: issues with maternal and baby delivery care.

But things take an interesting turn, with which maybe even the fine journalists at the Baltimore newspaper haven’t fully addressed. What’s clear in the news articles is that expectant moms, some with complex cases, sought treatment at local and well-known hospitals, and after hearings before judges and juries, the care was found to be deficient — tragically so, with the babies suffering profound and lasting damage. The three children all will need expensive care, likely for their lifetimes.

So, as in all malpractice cases of this kind, it is worth balancing that information about the size of a verdict — how much and how long it will be needed to pay for care that remedies a harm that has been found to be avoidable. That long-term, intense, 24/7 attention is expensive, and the judgments reflect that.

Caps by law on malpractice verdicts are a different story. As a building body of research shows, such caps may hold down the sums decided on by judges and juries. They may not be fair to harmed patients, and they don’t reduce wasteful, unneeded medical services — tests and treatments of so-called “defensive medicine,” where doctors over test, over diagnose, and over treat patients, purportedly to better protect themselves from malpractice claims. (I’ve written a recent newsletter on this topic and more malpractice myths that are worth debunking.)

Though the story on the $229 million judgment makes clear its size makes it rare, the citation of the two other cases can make a different point, as well — contrary to what doctors, hospitals, and insurers assert, malpractice cases are difficult, with high legal hurdles, and are pursued by a spare few patients, perhaps 2% or 3% of them all. Further, it is 2% or 3% of doctors who account for 40% of malpractice cases, with this bad slice also often the subject of multiple malpractice lawsuits — as many as five per.

But, instead of attacking the problem of medical malpractice, politicians and lawmakers — prodded by doctors, hospitals, and insurers — have imposed damage caps. And in grappling with maternal care challenges, yet another alternative arises: the possibility of yet more “tort reform,” creating a special fund, supported by hospitals, to avert malpractice cases and instead pay for infants with neurological injuries suffered in medical care.

Proponents assert this is a more equitable way to skip lawyers, judges, juries, and courts to get money more directly to damaged babies and their families for care.

Look harder, though, at the leading voice quoted for this plan: the Maryland Maternity Access Coalition. It gets a lot of ink and has floated proposals and lobbied state lawmakers, purportedly on behalf on injured babies, their moms, and other loved ones. They seem like Samaritans in action. But dig into state records (as others have, including partisan opponents) and a different picture emerges of the group. It has two big donors (at $50,000 each): The University of Maryland Medical System and Johns Hopkins Health System. Critics have called similar operations “astro turfing,” for political lobbying with artificially created and supported groups to advocate for special interests who try to stay behind the scenes.

What should this tell patients and the public about myths about malpractice and how counter-factual they actually are?

In my practice, I see the harms that patients suffer while seeking medical services,  especially damages that may be inflicted on them by doctors, nurses, hospitals, and nursing homes. There are compassionate, careful, and excellent doctors, especially, and it would seem as if their best route to deal with malpractice cases is to reduce medical malpractice — not to attack constitutional remedies patients have in the civil justice system. State licensing boards, hospitals, and insurers should join good doctors in getting bad practitioners out of medicine, so they don’t keep harming patients, right?

As for  care for mothers in and after pregnancy, it is an American disgrace, with hundreds of mothers dying needlessly each year of preventable pregnancy related complications. As NPR reported:

“[As] high rates of maternal mortality in the U.S. have alarmed researchers, one statistic has been especially concerning. According to the Centers for Disease Control and Prevention, black mothers in the U.S. die at three to four times the rate of white mothers, one of the widest of all racial disparities in women’s health. Put another way, a black woman is 22 percent more likely to die from heart disease than a white woman, 71 percent more likely to perish from cervical cancer, but 243 percent more likely to die from pregnancy- or childbirth-related causes. In a national study of five medical complications that are common causes of maternal death and injury, black women were two to three times more likely to die than white women who had the same condition … The disproportionate toll on African Americans is the main reason the U.S. maternal mortality rate is so much higher than that of other affluent countries. Black expectant and new mothers in the U.S. die at about the same rate as women in countries such as Mexico and Uzbekistan, the World Health Organization estimates.”

California has put other states to shame by slashing maternal care concerns with a sustained campaign to safeguard mothers and babies. Maryland, Washington, D.C., and Virginia should look to the Golden State for approaches that produce healthier outcomes and that stamp out racial disparities. Politicians may wish to divert their attention to getting taken in by malpractice myths and diversions that keep them from better protecting mothers and kids.

Patrick Malone & Associates, P.C. listed in Best Lawyers Rated by Super Lawyers Patrick A. Malone
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