Medical Malpractice Payouts By Claim Type

According to 2015 Medical Malpractice Payout Analysis by Diederich Healthcare, for the second consecutive year, medical malpractice payouts increased over 4% from the previous year.  After seeing a steady decline in medical malpractice payout amounts from 2003 through 2012, malpractice payouts started to rise in 2013 and continued to rise at a steady pace in 2014 – marking a trend of increased medical malpractice payouts in the United States.

Part of the analysis provided by Diederich Healthcare is a look at payment amounts by malpractice allegation:

Diagnosis - 33%
Surgery - 24%
Treatment - 19%
Obstetrics - 11%
Medication - 5%
Monitoring - 3%
Other - 5%

The National Practitioner Data Bank (NPDB) data in 2014 saw an increase of 4.4% in total payout amounts, bringing the total closer to the $4 Billion mark.  In fact, if the trend continues, 2015 could be the year that the United States crosses the $4 Billion threshold.

Several states saw a decrease in medical malpractice payout amounts, such as California and much of the western United States.  However, most states saw an increase – particularly states in the south and the northeast.

New York is again the highest state in terms of per capita payouts at $36.15 paid out for every individual residing in the state.  The northeast as a whole had a per capita payout rate of $28.20, which is more than 3 times greater than the next highest region (the Midwest).

The full payout analysis is 10 pages in length and can be viewed and downloaded at: http://www.diederichhealthcare.com/the-standard/2015-medical-malpractice-payout-analysis/.

The data from the National Practitioner Data Bank (NPDB) was released on February 25, 2015 and has over 1 million rows of information collected from Sept 1, 1990 to December 31, 2014. As the governing entity that keeps records of all negative actions that have been brought against any medical worker, the National Practitioner Data Bank’s goal is to improve healthcare and service for both the provider and patient, as well as reduce fraud and abuse of the medical system. More information about the NPDB can be found at http://www.npdb-hipdb.hrsa.gov.

Medical Malpractice Payouts By State

An analysis of medical malpractice payouts from 2011 - 2013 published by The Washington Post shows that more than $3.7 billion were awarded last year.

The top ten states per capita in awards paid out were:

1. New York - $689,800,300
2. Pennsylvania - $356,855,500
3. New Jersey - $249,865,850
4. Massachusetts - $140,476,500
5. Connecticut - $53,832,750
6. Washington, DC - $7,368,750
7. Maryland - $102,158,550
8. Rhode Island - $36,407,000
9. New Hampshire - $25,491,250
10. Illinois - $173,048,750

 Source: Government data compiled by Jeremy Gower of Diederich Healthcare, a medical malpractice insurer. 

Top Medical Errors Report Released by Senator Barbara Boxer

U.S. Senator Barbara Boxer (D-CA) released an updated report detailing the most common and harmful errors at our nation’s hospitals and what hospitals in California are doing to prevent them.

According to the report, each year, between 210,000 and 440,000 Americans die as a result of preventable errors in hospitals, such as hospital-acquired infections, adverse drug reactions, patient falls and bedsores — numbers equivalent to a jumbo jet crashing every day with no survivors.

Research has also found that the direct costs of medical errors total $19.5 billion annually and that the economic costs of medical errors, including lost productivity, could be as much as $1 trillion a year.

The report lists the 9 most common medical errors as follows.

• Adverse Drug Events
• Catheter-Associated Urinary Tract Infections
• Central Line-Associated Blood Stream Infections
• Injuries from Falls and Immobility
• Obstetrical Adverse Events
• Pressure Ulcers (Bedsores)
• Surgical Site Infections
• Venous Thromboembolism (Blood Clots)
• Ventilator-Associated Pneumonia 

For more information, see Sen. Boxer's website.

There Is No Medical Malpractice in Wisconsin

A former top medical malpractice attorney from Milwaukee, is quoted saying that "There is no medical malpractice in Wisconsin," in a watch dog report in the Journal Sentinel: Medical malpractice lawsuits plummet in Wisconsin.

The report blames state med mal caps and a $1 billion malpractice insurance fund from discouraging claims even in the face of apparent wrongdoing. According the article:

"The number of medical malpractice lawsuits filed in Wisconsin fell to 140 last year, a drop of more than 50% since 1999, court records show. Malpractice lawyers blame the decline on state laws that they say are skewed in favor of doctors and hospitals; medical groups contend that malpractice suits have declined because health care professionals have gotten better at their jobs."

 Further...

"At the same time, a state-run malpractice insurance fund — created because of fears that medical malpractice insurance premiums would skyrocket without it — has grown to more than $1.15 billion, a total larger than all the money it has paid out during its entire 39-year history."

 Read more in this 2-part series.

Part 1: Medical malpractice meltdown | Medical lobby is a powerhouse in Wisconsin Capitol

Part 2: No malpractice lawyers will take case in death of Wisconsin baby | Malpractice insurance business is booming in Wisconsin and nation

Connecticut Looks At Med Mal Review Law

The CT Mirror reported yesterday that attorneys are pushing for changes in that state's medical malpractice lawsuit procedures, specifically in how cases come to court.

"Since 2005, a patient wanting to claim damages from a doctor for alleged negligence must have his or her case reviewed by a similar health care provider, who will certify whether the claim has merit. If the patient can't get what's known as a good faith certificate, the courts will dismiss the case before it gets to trial."

 The report quotes the president of the Connecticut Trial Lawyers Association Mike Walsh:

"The term 'similar health care provider' was interpreted in such a rigid fashion that unless you had a doctor who was totally identical in terms of certifications and expertise and all the rest as the defendant, the courts would essentially dismiss the case..."

Please read the article at: The CT Mirror.

Missouri: House Passes Bill To Reinstate Med Mal Damage Caps

As reported by St. Louis Public Radio, The Missouri House has passed Legislation to reinstate medical malpractice damage caps that was "tossed out last year by the Missouri Supreme Court." (The court found that the cap law violated a right to a jury trial.) You can link to the news item here on St. Louis Public Radio.

The Springfield News-Leader also carried this report, stating:

"The bill places a limit of $350,000 in awards for non-economic damages, such as pain and suffering, stemming from medical malpractice lawsuits. The cap was initially put into place in 2005 but was struck down last year by the Missouri Supreme Court as unconstitutional under the state’s constitution."

In a press release from Mellino Robenalt law firm, Attorney Tom Robenalt commented on the Missouri bill.

“It goes without saying that medical malpractice is a hot button for not just victims, but for lawmakers, the media and insurance companies. Everyone wants to do something about the costs of medical malpractice, but few seem to get the point that it’s the victim they need to focus on, not the bottom line financial concerns for the insurance companies.” 

For more on Robenalt's view, see: Does A High Standard of Proof Help or Hinder Victims?

Changes in State Medical Malpractice Laws

We want to hear about changes to laws governning medical malpractice in your state. Please send news articles, press releases and links to maryrkennedy -at- gmail.com. Or, add information directly through our commenting system.

Here's a recent round-up:

Oregon - Governor Kitzhaber will sign a bill passed by the House where, through the Oregon Patient Safety Commission, patients and providers can enter into mediation to resolve medical malpractice suits. According to a report in the Statesman Journal,

 "A provider can offer a settlement as part of the process. The discussions are confidential, and cannot be entered into evidence in most instances if there is a subsequent lawsuit.The deal was reached by the Oregon Medical Association and the Oregon Trial Lawyers Association as a result of a work group convened by Kitzhaber, who’s a physician."

Arizona - The state's supreme court recently upheld a state law that requires med mal plaintiffs to have a medical witness testify who is in the same specialty area as the provider being sued. While the ruling will make filing a medical malpractice lawsuit more difficult, the court writes it is "not unconstitutional because the requirement doesn’t flatly prevent plaintiffs from having their day in court," according to a report in the Insurance Journal.

Florida - A bill currently before the Florida Legislature would make it more difficult for parties filing medical malpractice lawsuits by requiring "a higher burden of proof  to prevail in medical lawsuits and would block suits against hospitals for errors committed within their walls if they were committed by people who are not employees — such as most doctors," according to a news report in Health News Florida.

Medical Malpractice Payouts 2012 Data | Infographic

What do you think about this type of infographic? Is it a useful communications tool? Does it get across the point that is trying to be made? It is published by the Cunningham Group, and designed by SteamDriven. "Using data culled from multiple sources we compiled an over view of the payouts for medical malpractice awards based on 2011 and 2012 data." Could the publisher please provide the sources for the data?

One interesting data point: 6 states account for 51.4% of all payouts: New York, Pennsylvania, Illinois, New Jersey, Florida, and California. But aren't those also the most populous states?
Please comment on how this data compares to what you've seen elsewhere. Link to larger version.

Select Tort Reform Summary State by State Since 1986

An article published on Need to Know on PBS on changes to the medical malpractice system, included a table that summarized selected tort reforms enacted since 1986 and which states have enacted them. The reforms that it included are:

• Modify Joint-and-Several Liability
• Modify the Collateral-Source Rule
• Limit Noneconomic Damages
• Limit Punitive Damages

Click here to read the article and view the table: Prescriptive policies for medical malpractice.

Massachusetts Medical Mistakes: Sorry Seems to Be The Hardest Word

The Boston Globe Magazine yesterday ran an article that follows up on our previous post on the attempt in Massachusetts to control costs with its medical mistake DA&O law (disclosure, apology and offer). The article by Dr. Darshak Sanghavi is headlined, Why is it so hard for doctors to apologize? Fixing a system built on blame and revenge will require bold ways of analyzing mistakes and a radical embrace of openness. 

Sanghavi wrote:

"Last August, Massachusetts enacted reforms that usually make doctors’ apologies inadmissible in court, require claimants to file “letters of intent” before suing, and impose a six-month waiting period to allow doctors and patients to work out the matter. The law might pave the way for earlier, more amicable settlements.

But the bitter fact is that there is no appetite in the medical community to come clean preemptively about every medical error. The list of them is just too long. No major reforms, including those just passed here, are truly proactive, since they all still require patients or families to call a lawyer before anything happens."

 See previous post: Massachusetts Passes Health Care Cost Control Bill.

Massachusetts Passes Health Care Cost Control Bill

A newly enacted law in Massachusetts will adopt the "disclosure, apology and offer (DA&O)" approach to help resolve malpractice cases. The Healthcare Cost Control Bill recently passed by the Massachusetts legislature and signed by Gov. Deval Patrick on August 6 contains specific language that facilitates a DA&O approach to medical malpractice claims.

Under the DA&O model healthcare professionals and institutions and their insurers:

• Disclose to patients and families when unanticipated adverse outcomes occur
• Investigate and interpret what happened
• Establish systems to improve patient safety and prevent the recurrence of such incidents
• Apologize, where appropriate, 
• Offer fair financial compensation without the patient  having to resort to legal action.

Changes include provisions for a six-month, pre-litigation resolution period that affords the time to go through a DA&O process with sharing of all pertinent medical records by the patient, full disclosure by providers, and for statements of apology by providers to be inadmissible in court.

Under the DA&O model, healthcare professionals and institutions and their insurers disclose to patients and families when unanticipated adverse outcomes occur; investigate and explain what happened; establish systems to improve patient safety and prevent the recurrence of such incidents; and, where appropriate, apologize and offer fair financial compensation without the patient having to resort to legal action. Patients will always have the right to consult an attorney to advise them of their rights and to evaluate the fairness of any offer or to bring legal action if they so choose.

New Hampshire Considers Early Offer Settlement Bill

Former NH Superior Court and Supreme Court judge Chuck Douglas has weighed in on the controversial SB 406 a bill to provide "early offer" settlements as a way to expedite medical malpractice settlements. According to Douglas in an opinion piece in SeacoastOnline.com, the legislation,

"runs counter to the way we value life in this state. Under the proposal, a hospital or other provider can kill a patient and the compensation is only $117,500.... Furthermore, the bill is premised on the fact that elderly folks on Social Security who have no earned income, or stay-at-home moms who have no income, are not worth paying for pain and suffering. The bill covers payments only for lost wages. If you have no lost wages, your loss of enjoyment of life is worth zero."

Douglas further writes...

"The bill was drafted by a Virginia professor and has a payout formula like workers' compensation schedules. An example of what would probably be considered a low-end payment under the formula for a "permanent injury involving minor harm" ($29,750) is an article that appeared in the Union Leader on March 30 describing how a nurse cut off a child's finger after the 8-month-old arrived at a hospital with a chest infection. They could not reattach the tiny finger that the nurse mistakenly cut off. That permanent life-long mutilation would only be worth $29,750 according to SB 406 — less than $500 per year over the life (expectancy) of the child. That does not begin to compensate the child, in my opinion."

You can read his full opinion here: Hard to make choices blindfolded.

Mass. Hospitals Look To Promote Culture of Openess and Apologies Regarding Medical Errors

A coalition of seven Massachusetts hospitals are undertaking an intiative to transform a culture of "secrecy and denial" regarding medical errors according to a report in The Boston Globe. The hospitals in the coalition include Beth Israel Deaconess Medical Center in Boston, Beth Israel Deaconess Hospital-Needham, Beth Israel Deaconess Hospital-Milton, Baystate Medical Center in Springfield, Baystate Franklin Medical Center in Greenfield, Baystate Mary Lane Hospital in Ware, and Massachusetts General Hospital. As outlined in the Globe article:

"The plan calls on doctors and nurses to fully disclose mistakes to patients and apologize. Three large insurers and a medical group have donated about $1 million to underwrite the initial work at the seven test hospitals, and the coalition hopes to implement the improvements statewide over the next several years."

Under the plan, patients who accept a financial settlement forfeit their right to sue. To read the full Boston Globe article, Mass. hospitals promise openness, apologies.

Wrongful Birth Medical Malpractice Award is $2.9 Million in Oregon

Usually when reporting medical malpractice verdicts and settlements it is the phrase 'wrongful death' that comes up, not 'wrongful birth'. But a rare 'wrongful birth' trial reached a conclusion for the parents of child who was born with Downs Syndrome claiming doctors for medical negligence in pre-natal care, in the amount of $2.9 million for the lifetime care of the child. See article on OregonLive.com.

This of course stirs debate with anti-abortion forces. The Daily Beast details the conflict rising over The Legal Claims of Wrongful Birth vs. the Right to Lie Over Abortion...

When anti-abortion activists defend mandatory ultrasound rules, they often speak about a pregnant woman’s right to know. “Women have a right to know all the available medical and legal information surrounding the abortion decision before giving legally effective informed consent,” said Virginia Gov. Bob McDonnell when he signed such a rule into law last week.

In some states, though, anti-abortion activists are pushing legislation to protect doctors who don’t give women all available information about their pregnancies. Arizona and Kansas are considering bills that would ban lawsuits in cases where doctors fail to warn their patients about birth defects.

Read more on The Daily Beast.

 

State Lawmakers Blast House GOP's Medical Malpractice Reform Plan

In today's The Hill's Healthwatch the article — State lawmakers blast House GOP's medical malpractice reform bill - mentions a letter from the National Conference of State Legislatures (NCSL), expressing strong, bipartisan opposition to attaching federal medical malpractice legislation to the Medicare accountability bill as a "State's rights issue."

"Medical malpractice, product liability and other areas of tort reform are areas of law that are regulated by the states," says the letter from the NCLS. "Since the country's inception, states have addressed the myriad of substantive and regulatory issues regarding licensure, insurance, court procedures, victim compensation, civil liability, medical records and related matters."

Read more on thehill.com.

Sanjay Gupta Writes Novel on Inside World of Medicial Errors

Every time surgeons operate, they're betting their skills are better than the brain tumor, the faulty heart valve, the fractured femur. Sometimes, they're wrong. At Chelsea General, surgeons answer for bad outcomes at the Morbidity and Mortality conference, known as M & M. This extraordinary peek behind the curtain into what is considered the most secretive meeting in all of medicine is the back drop for the entire book.

Monday Mornings: A Novel, by Dr. Sanjay Gupta, follows the lives of five surgeons at Chelsea General as they push the limits of their abilities and confront their personal and professional failings, often in front of their peers at M & M. It is on Monday mornings that reflection and introspection occurs, usually in private. It is Monday Mornings that provides a unique look at the real method in which surgeons learn — through their mistakes. It is Monday Mornings when, if you're lucky, you have a chance at redemption.

Patient Safety: How To Reduce Your Chance of a Medical Error

Here’s what Consumer Reports and Dr. Peter Pronovost, senior vice president for patient safety and quality at Johns Hopkins Medicine, say patients can do to keep themselves safe when they go to a hospital.

• Do your homework. Go to the Web sites Hospital Compare and the Joint Commission and look up hospitals in your Zip code. Based on that information, ask your doctor which ones they trust.
• Ask a malpractice lawyer which hospitals are safe.
• Find out if the procedure you’re having is one that both your physician and the hospital do often. “You don’t want a doctor or hospital that dabbles in your procedure,” Pronovost says.
• Ask if the physician and hospital use a checklist.
• When you go to the hospital, have a list of all your medications and medical problems and give it to the doctors and nurses caring for you.
• Ask if physicians and nurses have washed their hands before they touch you. You may feel uncomfortable asking this, but it’s for your own safety.
• If you have an invasive device in your body, such as a catheter, either you or a family member or a friend should ask every day if you need to have it in your body and when it can be taken out.
• Bring a friend or family member with you to be your advocate, ask questions, and record the answers.

This article was reprinted from kaiserhealthnews.org with permission from the Henry J. Kaiser Family Foundation. Kaiser Health News, an editorially independent news service, is a program of the Kaiser Family Foundation, a nonpartisan health care policy research organization unaffiliated with Kaiser Permanente.

In Pennsylvania, $23 Million Jury Award for Woman Who Lost Both Legs Due to Infection

Headlines out of Allentown, PA's The Morning Call, indicate a medical malpratice lawsuit by a woman who lost both legs due to infection while under care the care of a home care nurse, has been awarded $23 million by a jury. According to the report:

"The medical malpractice verdict, among the highest ever in the county, came after attorneys [the plantiff] argued that her home-care nurse failed to report a bacteria-infected catheter, leading to an infection that nearly killed her in 2008."

To read the article, go to:  Jury awards Lehighton woman $23 million

Lubin & Meyer: Boston Jury Verdict Is $11.48 Million with Interest

Breaking news via Law Links Health Links: Lubin & Meyer announced on its Twitter page tonight that they had won a jury verdict in a case involving the death of an 8-day old baby. After much searching and hand-ringing we found the first report providing more details on the case in the Boston Globe. According to a report in the White Coats Blog, the award was $7 million — $3.5 million for each parent and $50,000 for the newborn's pain and suffering. The $11.48 million is the total with interest. Again, according to the Globe report, the jury found a physician and nurse practitioner negligent in care. They baby developed notnecrotizing enterocolitis. Attorneys for the plaintiff were William J. Thompson and Elizabeth Cranford.

Medical Malpractice Lawsuits Common, Payments Are Not

Kaiser Health News reports on the findings of a study published this month by the New England Journal of Medicine suggesting that "only one in five malpractice lawsuits results in a payout. The authors conclude that the truth behind these numbers is complicated."

The study is Malpractice Risk According to Physician Specialty, Anupam B. Jena, M.D., Ph.D., Seth Seabury, Ph.D., Darius Lakdawalla, Ph.D., and Amitabh Chandra, Ph.D. N Engl J Med 2011; 365:629-636

A related Associated Press article on the study in the Philadelphia Inquirer carries these interesting statistics from the study...

• "Only 1 in 5 malpractice claims against doctors leads to a settlement or other payout"
• "Each year about 1 in 14 doctors is the target of a claim"
• "most physicians and virtually every surgeon will face at least one [malpractice claim] in their career"

The chart below summarizes lawsuits and payouts by specialty as found in the study.

To read the full study and methodology, including more charts like the one above, click on: Malpractice Risk According to Physician Specialty to go to www.nejm.org.