Chicago Medical Malpractice Lawyer Blog

This week, the Illinois Supreme Court will release a decision regarding the constitutionality of the state’s medical malpractice law (12/17, AP for FindLaw).
Of particular concern is the Court’s ruling on whether damage awards in medical mistakes may be capped. In 2005, “the General Assembly adopted caps…as a way to keep doctors from fleeing the state because of rising insurance rates” limiting “what victims could collect for non-economic damages such as pain and suffering to $500,000 against doctors and $1 million against hospitals”.

In 2007, a Cook County judge ruled against damage caps holding that they interfered with juries' power to award appropriate damage awards for medical errors. The Supreme Court has twice before thrown out medical malpractice caps.

As a medical malpractice attorney in Chicagoland, I hope the Supreme Court again throws out damage caps. The jury should be able to award case specific damages for pain and suffering as damage caps are highly unfair to those who are catastrophically injured.

A recent article broke down the key issues in the health care debate and supported assertions with nonpartisan Congressional Budget Office Data (AP for FindLaw, 9/10). As a medical malpractice lawyer, I am pleased to see the use of unbiased data to explain realistic conclusions. We have finite resources to address very complex healthcare issues, thus reform should be efficiently targeted.

The key issue addressed by the article was whether restrictions on medical malpractice lawsuits mean cheaper health insurance. The short answer is, if at all, not by much.

To summarize a large issue succinctly, the article stated:

Lawsuits - or the threat of them - can drive up health care costs in several ways, but it's questionable by how much. Most directly, malpractice insurance is expensive for medical professionals, and for lawyers as it can cost upward of $100,000 to bring a case to court. Still, the nonpartisan Congressional Budget Office estimated last year that savings achieved by limiting medical liability would amount to less than 0.5 percent of health care spending. In addition, the office studied states with their own controls on medical lawsuits and found no proof that those limits have reduced "defensive medicine" - expensive and unnecessary tests and procedures ordered by a doctor only to reduce the risk of a lawsuit.

With the recent press about health care reform, the issue of tort reform is once again at the forefront. As a medical malpractice lawyer, I want to expel the incorrect notion that litigation is the primary cause of the rising cost in health care. Several columns around the country have addressed this issue, and a few were summarized in a recent AAJ news brief.

For example, the Kansas City Star (8/28, Margolies) touched on the issue of tort reform and noted “the push for tort reform rests largely on anecdotal evidence of the occasional large jury verdict or outrageous lawsuit.” The column further went on to state that although the perception of “jackpot justice” had fueled rising healthcare costs, data produces a different picture. According to the column, the “most reliable estimates peg the cost of malpractice litigation at 2 percent of overall health care costs.” Therefore, the tort system is, at best, only a small contributor to the larger problems with healthcare.

The most important issue that must be addressed is the equity and affordability of healthcare. Since there is reliable data that “even when states have capped medical malpractice awards, and malpractice suits have dwindled to near zero, insurance companies have not reduced the premiums they charge doctors” (Green Bay Press, 8/29, Fagin). Therefore, perhaps more attention should focus at eliminating a larger problem at the source by targeting the insurance industry for reform.

American Association for Justice President Les Weisbrod issued a statement following President Obama’s comments (6/15). Mr. Weisbrod agreed that “it’s clear America’s health care system is in crisis. Over 40 million people are without health insurance and costs are skyrocketing. President Obama is right that health care reform is needed now and patient safety should be the top priority.” As a medical malpractice lawyer I align myself with his sentiment.

What is less clear is the role that medical negligence plays in the skyrocketing costs and the health care debate. “According to the Institute of Medicine, 98,000 people die every year because of medical errors. Eliminating these errors, not further hurting the victims of negligence, is where lawmakers should focus their attention.”

Many believe that the practice of so called “defensive medicine” is the primary culprit for the high and rising health care costs. However, this assertion “is not supported by empirical data or academic literature.” Recent news reports, CBO and GAO analyses, and statements from administration officials have shown that “physicians will over-test and over-treat purely for financial reasons, unrelated to liability concerns.”

While the healthcare system is clearly in need of reform, patient saftey should not be sacrificed. Limiting the rights of victims of medical negligence would have a detrimental effect on the quality of health care. Lawmakers should seek to decrease the 98,000 deaths that occur each year as the result of medical negligence, and limiting the ability for victims to hold wrongdoers accountable will not accomplish this goal.

A lawsuit testing the constitutionality of Illinois' medical malpractice damage caps is expected to come before the Illinois’ Supreme Court this fall. The 2005 state law limits medical malpractice awards for non-economic damages such as pain and suffering to $500,000 for doctors and $1 million for hospitals. The law does not limit compensation for economic damages such as the cost of medical care and lost wages.

The case that could overturn the law was filed by Frances LeBron, whose daughter Abigaile was seriously injured during her October 2005 birth. The complaint alleges that the girl suffers mental impairment and cerebral palsy and will need extensive medical care for the rest of her life. In November, Cook County Circuit Judge Diane Larsen sided with plaintiffs and declared the law unconstitutional and invalid in its entirety. She said the statutory limits on awards interfered with juries' responsibility to award appropriate compensation for injuries.

At least twice before the Supreme Court has declared laws that limit personal injury awards to be unconstitutional, partly on grounds they violate the separation of judicial and legislative powers. Arguments before the high court have not been scheduled but could come as early as next month. 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. If you have comments about this post, please contact Chicago Medical Malpractice Attorney Chris Hurley at (312) 553-4900.

University of Illinois Hospital has adopted the approach of the University of Michigan in dealing with medical errors. Rather than run from the truth doctors involved in medical malpractice are being honest with the victim and apologizing. The result has been fewer lawsuits and less cost for malpractice litigation.

At the University of Michigan Health System, one of the first to experiment with full disclosure, existing claims and lawsuits dropped to 83 in August 2007 from 262 in August 2001, said Richard C. Boothman, the medical center's chief risk officer.

''Improving patient safety and patient communication is more likely to cure the malpractice crisis than defensiveness and denial,'' Boothman said.

Boothman emphasized that he could not know whether the decline was due to disclosure or safer medicine, or both. But the hospital's legal defense costs and the money it must set aside to pay claims have each been cut by two-thirds, he said. The time taken to dispose of cases has been halved.

The number of malpractice filings against the University of Illinois has dropped by half since it started its program just over two years ago, said Dr. Timothy B. McDonald, the hospital's chief safety and risk officer. In the 37 cases where the hospital acknowledged a preventable error and apologized, only one patient has filed suit. Only six settlements have exceeded the hospital's medical and related expenses.

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 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 Chicago medical malpractice lawyer I have seen hundreds of severe injuries which could have been prevented with simple safety precautions. It has always been interesting to me that whenever there is a plane crash there is a massive investigation done by the NTSB to determine the cause and procedures are instituted to make sure it never happens again. I have often wondered why the medical profession has not done more to evaluate mistakes and make sure that they do not happen again.

Now Kate Murphy of the New York Times reports that the medical profession is starting to learn from pilots:

Spurred by a 1999 report by the Institute of Medicine, an arm of the National Academies, titled “To Err Is Human,” which estimated that as many as 98,000 patients die annually from preventable medical errors, and by more recent bad publicity from mistakes like amputations of the wrong limbs, many health care providers are redoubling their efforts to improve patient safety.

“We’re where the airline industry was 30 years ago” when a series of fatal mistakes increased scrutiny and provoked change, said Dr. Stephen B. Smith, chief medical officer at the Nebraska Medical Center in Omaha, the teaching hospital for the University of Nebraska.

It is well established that, like airplane crashes, the majority of adverse events in health care are the result of human error, particularly failures in communication, leadership and decision-making.

http://www.nytimes.com/2006/10/31/health/31safe.html

Illinois and Chicago consumers of medical care have the right to know the medical malpractice records of the doctors and hospitals they visit but our state does not provide that information. If you are worried about medical malpractice and want to check up on your doctor before surgery then you need to go to New Jersey to access a database with the information most patients want. Mary Jo Layton writing for The Record states:

"The online state directory of physicians' malpractice and disciplinary histories was ranked the top in the nation by a national patient advocacy group on Tuesday. The state Board of Medical Examiners' Web site, which provides profiles of New Jersey's nearly 30,000 licensed physicians, was praised for its detailed information on medical malpractice payments, hospital disciplinary actions and conviction information, according to a survey by Public Citizen, a Washington, D.C., patient advocacy group."

"The president of the West Virginia Chamber of Commerce, a longtime advocate of tort reform, is suing his neighbors over an injury to his daughter. According to the lawsuit filed in Kanawha Circuit Court in August, Stephen Roberts and his wife, Anne, allege that their neighbors' son shot their teenage daughter in the left eye with a paintball gun. The couple is seeking unspecified compensatory damages from the boy's parents, David and Linda Wooddell, for medical bills and other related expenses. Caroline Wooddell, the owner of the South Hills house where David and Linda live, is also named in the suit, as is the juvenile who allegedly fired the paintball gun. Reached on Wednesday, Roberts said that the kind of reforms recommended by the Chamber of Commerce would have no effect on lawsuits like this one."

Andrew Clevenger, West Virginia Gazette, 10/19/06
http://wvgazette.com/section/News/Today/2006101818

A recent study by the Committee on Quality Health Care in America has quantified the number of deaths related to medical malpractice:

• Preventable adverse events are a leading cause of death in the United States. When extrapolated to the over 33.6 million admissions to U.S. hospitals in 1997, the results of these two studies imply that at least 44,000 and perhaps as many as 98,000 Americans die in hospitals each year as a result of medical errors.3 Even when using the lower estimate, deaths in hospitals due to preventable adverse events exceed the number attributable to the 8th-leading cause of death.4 Deaths due to preventable adverse events exceed the deaths attributable to motor vehicle accidents (43,458), breast cancer (42,297) or AIDS (16,516).5

As a practicing medical malpractice lawyer I purchase malpractice insurance every year. Although I have never had a claim made against me my premiums have more than tripled since 9/11. I have never heard anyone say there is a crisis in liability against medical malpractice lawyers, yet the premiums keep going up. What gives?

Insurance companies raise their premiums when the money they are making on their investments goes down in bad markets. Then they ramp up the PR machine to blame the higher premiums on run away juries and greedy lawyers. When they start doing better in the markets their premiums usually stabilize. They do not often lower premiums now that their customers are used to the higher rates.

This year the companies will be making record profits:Insurance companies are expecting record profits in 2006 after predictions of another year of devastating hurricanes have so far come to naught. Industry experts are estimating that profits may reach $60 billion, on a combination of higher premiums along the coasts, no major payouts for natural disasters and strong investment returns. The insurers also had high profits on other lines of coverage like auto insurance, workers compensation and general liability. The record profits expected this year come after a terrible 2005, when insurers paid out $61 billion for damage from Hurricane Katrina and other storms. Even so, the insurers ended up with a profit of $43 billion for the year because of exceptionally good results on investments, declining claims on policies on homes away from the coast and profits on other lines of coverage. But homeowners and businesses along the coasts, hit with much higher insurance costs after the barrage of hurricanes, probably will not get any relief as a result of the much quieter season, industry experts and consumer advocates said."

Joseph B. Treaster, New York Times, 10/14/06
http://www.nytimes.com/2006/10/14/business/14insure.html

The American Medical Association and many insurers have been trying to get the U.S. Congress to pass caps for years. The House passed caps on economic damages in 2005. The house bill limits pain and suffering awards for brain damaged infants, victims of wrongful death and others to $250,000. This bill has not passed out of the Senate and is not likely to do so before the next election.

There is also legislation proposed that would take medical malpractice cases out of the state courts and create a special health court whose members would supposedly have special expertise in medical issues. This sounds good on paper but it really depends on who gets to pick the experts. As the tobacco companies discovered many years ago -- for the right price --you can get experts to say anything. I am more comfortable having unbiased juries hear my cases.

The most common reason given for capping damages awarded by juries in medical malpractice cases is that juries award too much money and that there is a crisis in the jury system. A new study has found that the amount of punitive damages awarded has not increased over the last ten years and judges are more likely than lawyers to award punitive damages in personal injury cases. You can find it at 3 J. Empirical Leg. Stud. 263(2006)

Medical malpractice insurer Med Pro has recently announced that it will lower premiums for medical malpractice insurance in Illinois. The reason they are in position to do this is because of a new law making data available on medical malpractice insurance rates. The reason has nothing to do with an unconstitutional law capping damages for the most severely injured victims of medical malpractice.

Read the story here.