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The CMG Voice

The State of Malpractice in America

Posted Wednesday, January 8, 2014 by Tyler Goldberg-Hoss

Medscape recently published an article on the state of Medical Malpractice in America.

You can find the full, five-part article here:

Malpractice in America: Is Anything Getting Better?

Certainly, the tone of the article is meant to sympathize with its expected readers: doctors and other healthcare providers. But if you sift through the rhetoric and focus on the data, you see the future of litigation looks increasingly better for health care providers.

The article certainly contains a lot of rhetoric. It cites the “problem of lawsuits,” the continued “tremendous uncertainty” of the future of litigation in medical care, the “unconscionably high number of claims,” and the “plaintiff bar’s parasitic form of venture capitalism.” That last one in particular hurts.

But when the article focuses on the data and facts, the report reads downright rosy for health care providers. Recoveries for injured patients continue to decline, and liability insurance costs remain flat. Defendant doctors win nearly 90% of the cases that result in a verdict, and 82% of the cases overall.

Tort reform efforts continue to show success on the state level, limiting and sometimes barring an injured patient’s right to recover through caps on damages, certificate of merit requirements, 90 day notice requirements, and other laws.

It is unfortunate that the discussion of medical malpractice is at times so polarizing. There may be attorneys in the United States who bring frivolous medical malpractice lawsuits. I don’t see them filed, and I don’t file them myself, because I’d prefer to stay in business. In fact, the opposite is likely true: given the climate of tort reform and our predisposition to like and trust our doctors and nurses, it’s likely that many meritorious claims are not brought.

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When limited harms mean no viable case

Posted Monday, January 6, 2014 by Tyler Goldberg-Hoss

Often potential medical malpractice clients call with compelling stories about the medical errors they have suffered from, but with harms and losses that are relatively minor. These cases must be considered carefully due to the limited potential recovery for both client and attorney.

A new study from Emory University School of Law found that 95 percent of patient who seek a medical malpractice attorney are shut out of the legal system, primarily for this economic reason.

Find a link to the story here:

Patient Harm: When An Attorney Won’t Take Your Case

In Washington, we are fortunate to have no caps on damage amounts which may further limit the amount of claims that are viable. And contrary to this article, we don’t shy away from some of the smaller cases. When there is obvious and overt negligence, we are successful obtaining recoveries for our clients, even if the recoveries are limited.

Still, this article is accurate explaining the process by which malpractice attorneys decide whether or not to take on a client’s case. Considering the amount of money necessary to evaluate - let alone take the case to trial - is often prohibitive when considering the amount of potential recovery. It makes no sense to spend $50,000 to recover $50,000. Then nobody wins.

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Medical malpractice has minimal impact on health care costs

Posted Tuesday, December 31, 2013 by Gene Moen

A recent article on Factcheck.org summarizes the research on how medical negligence cases impact health care costs.

You can read the article here: Malpractice: Savings Reconsidered

The conclusion: medical malpractice cases make up 0.5% of health care costs in the U.S. So even eliminating all malpractice cases would only shave that small percentage from the total costs of medical care. Republicans in Congress who support medical malpractice “reform” often make wild claims about the huge amount of money that would be saved if only there were more restrictions on the ability of injured patients to bring lawsuits.

They never talk about the benefits of allowing people to enforce their rights through the civil justice system. It benefits us all when the standards of medical care are susceptible to scrutiny through the legal system. Without that invaluable check, there would be very little in the way of consequences if doctors and hospitals provided negligent care to their patients.

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Multiple Errors Can Result in Medical Tragedy

Posted Wednesday, November 20, 2013 by Gene Moen

A recent blog by a noted nurse-educator about the agonizing death of her grandmother illustrates the opportunity for multiple medical errors in today’s complex medical care system.

What started out as a simple overdose of a medication led to yet more mistakes and errors. She wrote that “no amount of industry knowledge on my part, no amount of elder advocacy and no keen interest in Medicare could have saved Tootsie from a textbook case of error, difficult transitions in care, unnecessary intervention, missed opportunities, and conflicting opinions and prognoses. No matter how good Tootsie’s medical care was, non-clinical factors such as hand-off communication, caregiver coordination and outpatient care management and support were overlooked.”

Here is a link to the full blog post:

Tootsie’s Story: Medical Error Takes a Life

Cases in which a long hospitalization results in death, especially of an older patient, are often very difficult to pursue. Unless a specific negligent act or omission can be identified as the key factor in the bad outcome, it can be impossible to sort out the many clinical and non-clinical issues that contributed to the death. And with so many providers being involved, including nurses, consultants, and various specialized providers, pursuing the case can require many different expert witnesses, thus adding to the complexity and costs of taking on the case.

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Nurses Complain About Electronic Medical Records

Posted Monday, November 18, 2013 by Gene Moen

All health care facilities are, or soon will be, required to maintain a patient’s medical records in electronic form. Almost all hospitals currently use EMR systems. Several U.S. companies are marketing and installing these systems. Using them has helped avoid some problems of hand-written charts, but also has created entirely new problems.

A recent medical blog entry outlined complaints that are being made by nurses about threats to patient safety presented by these EMR systems. Here is a link to the blog:

Another ‘Survey’ on EHRs - Affinity Medical Center (Ohio) Nurses Warn That Serious Patient Complications “Only a Matter of Time” in Open Letter

Complaints include medication errors, scanning issues, difficulty in timely accessing records, inaccurate drop-down menus, inaccurate medication times, an inability of nurses to ensure medications are scheduled correctly, and endless loops of computer prompts that are unable to be dismissed by nurses in an emergency.

Most plaintiff attorneys will also tell you that it is extremely difficult to review these records and accurately determine when key events or notations were made. Often, it is necessary to obtain the “audit trail” for the EMR system to determine when providers accessed the records and what was ordered and by whom.

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