Chicago Medical Malpractice Lawyer Blog

In a victory for victims of negligent medical care in Illinois, Circuit Court of Cook County Judge Diane Larsen, ruled that caps on damages for medical malpractice are not constitutional in Illinois. The case will now proceed to the Illinois Supreme Court where the justices will address the constitutionality of the caps. On two prior occasions The Illinois Supreme Court has ruled caps to be unconstitutional. A consistent ruling by the Supreme Court will mean that this law limiting the damages of the most severely injured victims will be rejected like those before it.

"Hospitals of all sizes that that cover their primary professional liability risks through alternative risk-financing measures are keeping their claim frequency and severity rates to eight-year lows, according to a new study. The frequency of claims for the 1,000 facilities—part of 80 health care organizations—that participated in the study did not increase for the third consecutive year, reports the '2007 Hospital Professional Liability and Physician Liability Benchmark Analysis.' The report is published by Chicago-based Aon Corp. in conjunction with the American Society for Healthcare Risk Management. In addition, the severity of losses over the past year increased 3%, the lowest increase over the eight years that Aon and ASHRM have produced the report. Claim severity has fallen sharply over the past several years, from 8% in the 2004 study, to 6.4% in 2005, to 6% in 2006, according to the latest report. Based on those figures, Aon is advising hospital risk managers to anticipate a 3% increase in liability costs in 2008 before factoring in organic growth. That advisory rate also is the lowest over the history of the report."

Dave Lenckus, Business Insurance 10/2/07
http://www.businessinsurance.com/cgi-bin/news.pl?newsId=11231

“Darrie Eason is a penetrating example of what's wrong with proposals to cap damages for pain and suffering in medical malpractice cases. The high cost of malpractice insurance is a problem. But adding insult to patients' injuries by arbitrarily limiting jury awards is not the answer. Eason was told she had cancer. One double mastectomy later, doctors told her the devastating diagnosis was a mistake. Her tissue sample had been mislabeled. She never had cancer. Tragically, by then her breasts had been removed. If it's proved that her travail was caused by somebody's negligence, she can collect economic damages - lost wages and the cost of hospitalization, surgery, physical therapy and the like. But that just covers her expenses. So, what else is there? Whatever a judge or jury considers just compensation for her pain and suffering. Under current law, without caps, she could be awarded millions of dollars. Impose the cap sought by President George W. Bush and congressional Republicans, and she could get no more than $250,000.”

Newsday 10/4/07
http://www.newsday.com/news/opinion/
ny-vpmed045401035oct04,0,1623381.story

As a Chicago medical malpractice lawyer I often hear people say that they did not believe in suing until it happened to them. Here is another high profile example of the willingness of some people to give up the right to a jury trial for everyone except themselves:

Leading Conservative Activist Seeks Punitive Damages

Judge Robert Bork, one of the fathers of the modern judicial conservative movement whose nomination to the Supreme Court was rejected by the Senate, is seeking $1,000,000 in compensatory damages, plus punitive damages, after he slipped and fell at the Yale Club of New York City. Judge Bork was scheduled to give a speech at the club, but he fell when mounting the dais, and injured his head and left leg. He alleges that the Yale Club is liable for the $1m plus punitive damages because they "wantonly, willfully, and recklessly" failed to provide staging which he could climb safely.

Judge Bork has been a leading advocate of restricting plaintiffs' ability to recover through tort law. In a 2002 article published in the Harvard Journal of Law & Public Policy--the official journal of the Federalist Society--Bork argued that frivolous claims and excessive punitive damage awards have caused the Constitution to evolve into a document which would allow Congress to enact tort reforms that would have been unconstitutional at the framing:

State tort law today is different in kind from the state tort law known to the generation of the Framers. The present tort system poses dangers to interstate commerce not unlike those faced under the Articles of Confederation. Even if Congress would not, in 1789, have had the power to displace state tort law, the nature of the problem has changed so dramatically as to bring the problem within the scope of the power granted to Congress. Accordingly, proposals, such as placing limits or caps on punitive damages, or eliminating joint or strict liability, which may once have been clearly understood as beyond Congress's power, may now be constitutionally appropriate.

Ted Frank, another leading proponent of tort reform, questions the merits of Judge Bork's claims:

I sympathize with Judge Bork's serious injuries, but it's beyond me what his lawyers are thinking in asking for punitive damages. And if any danger is open and obvious such that there is an assumption of the risk, surely the absence of stairs to reach a lectern on a dais is—especially if the dais is of the "unreasonable" height that the complaint alleges it to be.

Medical malpractice claim payouts in Oregon are lower than those in all but seven other states despite the elimination of a cap on such awards in 1999, a new study shows. The study researchers tried to measure the effects of various malpractice changes and were surprised how little difference the changes made on the amount and frequency of malpractice awards."

Associated Press, OregonLive.com 3/11/07

Too often insurance company PR campaigns have blamed medical malpractice lawyers for the high cost of insurance. Congress needs to repeal the antitrust exemption the industry now enjoys. Consumers of insurance are paying more for their policies because insurers are able to compare notes on pricing unlike any other industry. Watch rates fall when companies can no longer compare notes on how much their competitors are charging.

An effort to end the insurance industry's exemption from antitrust laws got a boost Wednesday at a Senate hearing where two Gulf Coast lawmakers aired frustrations over how insurers handled Hurricane Katrina claims. Sens. Trent Lott, R-Miss., and Mary Landrieu, D-La., testified before the Senate Judiciary Committee in favor of legislation that would repeal a more than 60-year-old law that allows insurance companies to share information."

Ana Radelat, Gannet News Service, USA Today 3/070/07
http://www.usatoday.com/news/washington/2007-03-07-insurance_N.htm

"The main beneficiaries of tort reform would be the insurance companies that provide malpractice insurance, according to the president of the Kentucky Academy of Trial Attorneys. In speaking Tuesday to the Henderson City Lions Club, A.V. Conway presented figures showing that those states that have instituted tort reform -- which essentially boils down to limits on jury awards -- have seen the same type of insurance premium increases as those states that have not."

Frank Boyett, Courier Press 1/31/07
http://www.courierpress.com/news/2007/jan/31/lawyer-rejects-tort-reform-benefits/?gleaner=1/

California has much to offer unless you are a victim of medical malpractice:

"In Tuesday's State of the Union address, President Bush said he wants 'to protect good doctors from junk lawsuits' through changes in the medical malpractice system. Bush has touted a nationwide cap on malpractice awards for pain and suffering. The cap is modeled after a law that's been in place in California for decades. But some say the state law, considered landmark in 1975, is outdated and unfair to injured patients. Insurers and doctors say it's lowered insurance premiums and kept doctors in the state. The Medical Injury Compensation Reform Act limits pain and suffering damages to $250,000. That, say patients such as Steve Charbonneau, is too low, especially in 2007 dollars."

Blythe Bernhard, Orange Country Register 1/25/07

This is no surprise to medical malpractice lawyers but insurance rates are not coming down in a significant way even in states with caps on damages:

Medical malpractice companies benefiting from courtroom caps today must tell state regulators why they are not returning more of that money to doctors and the public. Insurance Commissioner Kevin McCarty has ordered executives of major malpractice insurers to attend public hearings today in Tallahassee on their rates. Consumer Advocate Steve Burgess, in the Department of Financial Services, estimates premiums should be cut 40 percent to 50 percent. Michigan-based ProNational Insurance instead offers to cut rates 8.6 percent."

Paige St. John, Tallahassee.com 1/29/07

This is not news to practicing medical malpractice lawyers but it is to most citizens: malpractice verdicts are down in the last decade not up.

Malpractice payouts decline National study - From 1990 to 2005, the number of malpractice judgments and settlements drops 15.4% Thursday, January 11, 2007 JOE ROJAS-BURKE

For years, physician groups in Oregon and nationally have railed about a malpractice crisis said to be driving up costs and forcing doctors out of business.

But a study published Wednesday suggests that malpractice damage awards have declined substantially in recent years.

The consumer advocacy group Public Citizen mined the federal government's National Practitioner Data Bank to track malpractice payments made on behalf of doctors from 1990 to 2005. Among the findings:

The average payment for a medical malpractice verdict, adjusted for inflation, dropped 8 percent.

The total number of malpractice judgments and settlements declined 15.4 percent.

The number of payments per 100,000 people declined more than 10 percent.

Public Citizen has stood with trial lawyers in opposing efforts by medical groups to limit awards for damages. The Washington, D.C.-based group asserts that lawmakers should focus on reducing medical errors and tightening doctor discipline and oversight.

Chicago and Illinois medical malpractice lawyers have known for a long time that the supposed malpractice crisis was a creation of the insurance industry to limit its risks. as further evidence of that fact a new study reveals that only a small number of doctors are responsible for the vast majority of claims.

Report questions U.S. 'malpractice crisis'

WASHINGTON, Jan. 17 (UPI) -- A small group of mistake-prone doctors is responsible for the belief the United States has a medical-malpractice lawsuit crisis, a watchdog report says.

Barely 5.9 percent of doctors were responsible for 57.8 percent of U.S. malpractice payments from 1991 to 2005, with each of these doctors making at least two payments, says "The Great Medical Malpractice Hoax," released by Ralph Nader's Public Citizen group.

The vast majority of doctors -- 82 percent -- have not had a medical malpractice payment in the period beginning in 1990, the report says.

Business and medical lobbying interests are misleading the public when they claim a malpractice crisis in their lobbying to limit how much money injured patients may seek in the courts, the report says.

American Medical Association board Chairman Cecil Wilson said the Nader group "based its conclusions on an inherently flawed database, the National Practitioner Data Bank," The Insurance Journal reported.

The databank, created by Congress, tracks doctors' malpractice payments and disciplinary actions taken against them by state medical boards or hospitals.

Wilson said the Government Accountability Office has raised concerns about the databank's integrity.

The GAO had no immediate comment.

Medical malpractice lawyers in Chicago and across the country have been fighting special interest groups in Illinois and throughout the United States that want to replace our jury system with a panel of supposed experts to decide medical malpractice cases. Now after 63 years the Japanese are realizing the importance of the system which has made this the greatest democracy the world has ever known. Robert E. Precht of the New York Times writes:

"Japan is about to embark on a democratic experiment with important consequences for the rest of Asia. After a lapse of 60 years, the country is planning to bring back a jury system - but a huge effort will be required to convince ordinary Japanese about its advantages. Americans can help by sharing their jury experiences with the Japanese. Beginning in 2009, Japan will institute a jury system called saiban-in. Juries consisting of three law-trained judges and six citizens chosen by lottery will decide criminal cases by majority vote. Japan had an American-style jury system for 15 years, but it was abolished by Japan's military government in 1943. Since then, verdicts have been decided by three-judge panels, leaving citizens with no voice in a system in which virtually all criminal trials end in a conviction. The return to citizen participation represents a bold commitment to have ordinary Japanese take greater responsibility in running the country. If a jury is sufficiently unhappy with the government's case or the government's conduct, it can simply refuse to convict. This possibility puts powerful pressure on the state to behave properly and ultimately leads to better governance. For this reason, a jury is one of the most important protections of a democracy."

Robert E. Precht, New York Times, 12/1/06
http://www.nytimes.com/2006/12/01/opinion/01precht.html

There is hope for Chicago and Illinois victims of medical malpractice. A new suit has been filed challenging the law recently enacted which put caps on the damages of the most severely injured victims of malpractice.

A lawsuit alleging a botched delivery left an infant with serious health problems could ignite a courtroom debate over whether Illinois' caps on medical malpractice claims are constitutional. The lawsuit--filed Monday against Dr. Roberto Levi-D'Ancona and Gottlieb Memorial Hospital in Melrose Park, where the girl was born last October--claims the state's caps on non-economic damages, such as pain and suffering, unconstitutionally limit what 13-month-old Abigaile LeBron and her family should receive. The family's lawyers are using the case to ask Cook County Circuit Court and eventually the Illinois Supreme Court to throw out the limits, which were signed into law last summer as part of an effort to reduce doctors' malpractice insurance costs. Both sides predict a lengthy legal fight over the caps."

Associated Press, Chicago Tribune, 11/21/06
http://www.chicagotribune.com/features/lifestyle/health/chi-0611210461nov21,1,382873.story?coll=chi-health-hed

Crains Chicago Business reporter Mike Colias reports that medical malpractice premiums will soon be falling for Illinois doctors as result of competition being made possible by new legislation.

The Aurora attorney has formed the state's first new malpractice insurer since market leader ISMIE Mutual Insurance Co. came together in the 1970s. Targeting a sliver of ISMIE's 66% market share, Mr. Presbrey's startup shows state reforms are stoking competition for Illinois' dominant carrier that could lower doctors' rates.

More than 500,000 Americans die each year from smoking related illnesses. Instead of trying to solve the problem of the high cost of medical care by capping the damages of the most severely injured victims of medical malpractice this country needs to hold the tobacco companies accountable for years of misconduct and deceit. Companies that market an addictive product to children that they know causes cancer should not be allowed to defend by saying the consumer should have known better. The tobacco companies should have known better. The fact that they are clever marketers and successfully fooled people should not be a defense. To reduce the high cost of health care we need to reduce the demands on the health system. High demand leads to higher costs. We can reduce demand by reducing the number of cancer patients created every year by the tobacco companies. The only way to do that is to eliminate the assumption of the risk defense and let the plaintiffs lawyers sue the tobacco companies into oblivion. See Robert Peck's letter to the editor below:

Continue reading "Stop the rising cost of health care by holding big tobacco responsible - not capping damages for victims of medical malpractice" »

I have not heard of an expert being subject to discipline for testifying for a plaintiff in an Illinois medical malpractice case. But in and obvious attempt to make bringing malpractice cases to court more difficult the Texas Medical Board is reprimanding doctors that testify for plaintiffs. This should be no surprise coming from a state with one of the most anti-plaintiff biases in the country.

Texas physician is challenging a state medical board's attempt to discipline him for expert testimony on behalf of plaintiffs in medical malpractice cases. The physician, identified only as 'John Doe, M.D.' in court documents, is appealing a trial court's refusal last spring to issue an injunction blocking the Texas Medical Board from taking disciplinary action against him. A decision from the Texas Court of Appeals is expected early next year. Joe K. Crews (ATLA Member), an attorney in Austin, Texas who is representing the physician, said his client's reputation would be ruined if the medical board issued a public reprimand. In Crews' view, 'the intent of the medical board's action is to let doctors know if they are willing to testify that another physician in Texas has acted below the standard of care they're subject to disciplinary proceedings - up to and including not being able to practice medicine.'"

Nora Lockwood Tooher, Lawyers USA, 10/23/06 (Subscription Only)
http://www.lawyersusaonline.com/subscriber/archives.cfm?page=usa/06/A230614.htm

Next time a corporate CEO calls to cap damages for medical malpractice victims point out the absurd growth of CEO pay that has no relationship to corporate stock performance. How is it that only the people whose lives have been destroyed by negligence have to settle for caps?

NEW YORK (CNNMoney.com) -- The pay packages of U.S. chief executives are outpacing investor returns, suggesting that their compensation is not based on performance, according to a report published Monday.

The survey conducted and reported by the Financial Times, which looked at compensation of chief executives of companies in the S&P 500 index, revealed that the median compensation for a CEO rose 20 percent to $5 million during the past fiscal year.

That tops both the net profit and shareholder returns of those same companies, which rose 15 percent and 9 percent respectively, according to the paper.

"The reality is that this is a false market driven not by appreciation in the share price and earnings but by what other chief executives are getting," Charles Elson, director of the Weinberg Center for Corporate Governance at the University of Delaware, told the FT.

Experts told the paper that the survey, which looked at the salary, bonuses and options exercised by chief executives over the past two years, also indicates that their compensation packages are increasing at a much faster pace than the pay of the average worker.

The United States Chamber of Commerce violated tax laws by failing to report tens of millions of dollars spent to sway state and federal elections from 2000 through 2004, according to a nonprofit watchdog organization that filed a complaint yesterday with the Internal Revenue Service. The watchdog group, Public Citizen, cited internal records, corporate documents and media reports as the basis for its assertions about the chamber, one of Washington's most powerful trade and lobbying groups, and its affiliate, the Institute for Legal Reform. The complaint, in the form of a letter requesting a formal review of the two organizations by the I.R.S.'s criminal division, comes amid heightened scrutiny by regulators and government officials of tax abuses involving nonprofit organizations."

Lynnley Browning, New York Times, 11/1/06
http://www.nytimes.com/2006/11/01/washington/01tax.html

As a medical malpractice lawyer I am pleased to see that at least some people are trying to limit medical malpractice awards by improving safety rather than limiting the amount a victim of malpractice can be awarded by a jury. I learned in college economics that if you want sell less of something then charge more for it. If you want less medical malpractice do not make it less expensive to commit malpractice. By making it expensive to commit medical malpractice people find ways to prevent it.

Laura Landro of the Wall Street Journal reports such an initiative:

Despite years of efforts to fix the nation's error-ridden health-care system, leading safety experts say Americans aren't much safer than they were five years ago -- and too many conflicting safety programs may be part of the problem. Now, a coalition of health-care purchasers, quality groups and government agencies working with the National Quality Forum, the leading government advisory body on health-care quality measurement and standards, have agreed for the first time to endorse a single set of 30 'safe practices' that all hospitals should use to prevent death and injury to patients. The agreement comes after a two-year effort to harmonize the dizzying and often conflicting array of safety guidelines that have sprung up since 2000 in response to the landmark Institute of Medicine report, 'To Err Is Human,' which found that as many as 100,000 patients die each year from medical mistakes."

Laura Landro, Wall Street Journal, 11/1/06 (Subscription Only)
http://online.wsj.com/article/SB116234626074809703.html?mod=todays_us_personal_journal

As a