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01/02/08

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If I think my baby was hurt by negligence, does that mean my doctor is a bad doctor?

Maybe, but maybe not.  Let's look at it in the terms of a situation where you might have been involved in an accident.

If you were to drive your car through a stop sign because you were distracted and caused a crash, you would have committed a negligent act. But this one event would not make you a bad driver or a reckless person.  Everyone makes mistakes.  You just had a moment of inattention - that is, you made a common human error.  You are responsible for the error, but that doesn't make you a bad person.

Because your obstetrician did not deliver your baby safely, this lapse does not make him a bad doctor. It is not a statement about his personal integrity, or even his general medical practices.  It could be that he had a moment of inattention - a common human error - in just one unfortunate situation.

Your physician has insurance to cover him, just as you have when you drive your car; because he, like you, is human and will make a mistake once in a while.  Though many of us put doctors on a pedestal and expect superhuman feats, the reality is that neither "higher education" nor medical degrees protect the doctor from making mistakes.  It is not up for debate as to who should be accountable for a mistake.  If the doctor made a mistake that resulted in a serious injury, s/he should be held accountable, and whose insurance should pay for injuries and the other costs that flow from those injuries.   Civil litigation is not a process to vilify a medical provider.  It is the only process we have allowing an injured party to be compensated for their injuries.  

Sadly, some people who have been seriously injured, or have a loved one who has been injured by medical malpractice or negligence, fear that there will be negative consequences to society if they were to seek a legal remedy.  Following are some questions you may be asking, and citations from some fair and objective studies that may help you come to terms with this very difficult issue:

  • If I were to file a law suit would I be helping driving up Health Care Costs that are already too high?

    • No.

n

In 2005, the Texas Insurance Commission completed an intensive review of medical malpractice claims in Texas, a study that is felt to fairly represent the medical malpractice scenario in America

In 2002, payouts to patients were about $515 million and Texas health care spending was about $93 billion, meaning that malpractice payouts equaled 0.6% of health care spending.

This is a tiny part of the total of health care costs.  In contrast, preventable medical errors that result in serious injury or death lead to billions of dollars in healthcare costs for its victims, not to mention incalculable suffering to both the patients and their loved ones. 

From:
  1. "Stability, Not Crisis: Medical Malpractice Claim Outcomes in Texas, 1988–2002,"  March, 2005.
  2. The HealthGrades Quality Study: Patient Safety in American Hospitals, July 2004.
  3. Abramson, J. Overdosed America. 2004.

  • If I brought a lawsuit on behalf of my child would I contribute to driving up Physician’s Insurance Premiums?

    • No, again.

nHigh premiums are the direct result of bad insurance industry conduct.

nA coalition of public interest organizations found that malpractice premiums increase when investment values decrease. “Since 1975, the data shows that in constant dollars, per doctor written premiums—the amount of premiums that doctors have paid to insurers—have gyrated almost precisely with the insurer’s economic cycle, which is driven by such factors as insurer mismanagement and changing interest rates.”

nFrom: Americans for Insurance Reform, 10/10/02.

nInflation and other insurance industry forces drove up doctors’ insurance premiums more than lawsuits,

according to Weiss Ratings, Inc., a non-partisan, independent financial ratings company. These factors “continue to drive—med mal premiums up, evidently overwhelming any reduction in jury awards.” The factors include, among other things, 75 percent inflation in medical costs and dramatic declines in insurers’ investment income as the stock market collapsed. 

Clearly there are factors other than tort reform and caps that effect insurance premiums:

  • States with caps experienced a 48.2% increase in premiums.

  • States without caps experience only a 35.9% increase in premiums.

nFrom: Weiss Report, 6/3/03

nFor more information, see:

nThe Truth About Make-Believe Legal System Costs (12/04)

nUS Tort Costs by Tillinghast-Towers Perrin: No Scholar Will Cite (1/05)

  • Why Does my Doctor's Professional Liability Insurance Cost So Much?

  • "[M]edical malpractice premiums charged by insurance companies do not correspond to increases or decreases in payouts, which have been steady for 30 years. Rather, premiums rise and fall in concert with the state of the economy."
From:
nMedical Malpractice Insurance: Stable Losses/Unstable Rates, Americans for Insurance Reform, under the direction of J. Robert Hunter
n(Director of Insurance for the Consumer Federation of America, former Federal Insurance Administrator and Texas Insurance Commissioner) October 10, 2002.
 
  • Would I contribute to the problem of driving doctors out of my state?
    • Doctors are not fleeing states in droves, despite increasingly frantic and unsupported claims from the American Medical Association, the insurance industry and their allies.

 

  • nThe number of Physicians has increased in every state every year from 2000 to 2002
  • n
  • nThenThe number of physicians per 100,000 has increased in every state every year since 1996
Independent assessments by state officials and the media have found that the number of doctors in many states has remained stable and in most, has actually increased.

 

From: FL, Palm Beach Post Editorial, 7/16/03; OH, Toledo Blade, 7/17/04; PA, Allentown Morning Call, 4/24/04; WA, Seattle Times, 2/23/04
  • Is there really a medical malpractice crisis?
    •  No!
 A study released on [March 10, 2005] casts doubt on whether recent "tort reform" in Texas that limited payouts in medical malpractice lawsuits and is similar to what President Bush wants nationally was really needed.
 
The study looked at Texas Department of Insurance records dating back to 1988 and found claims that medical costs were soaring because of too many malpractice lawsuits, the supposed reason for the reform, were not true.
"We find no evidence of the medical malpractice crisis that produced headlines over the last several years and led to legal reform in Texas and other states," said the study, conducted by law professors at the University of Texas, University of Illinois and Columbia University law schools.
"Everyone who is collecting data is finding more or less the same thing -- there is no evidence of a tort crisis," he told Reuters.
"The clear implication is that 'runaway medical malpractice litigation' makes a poor poster child for the cause of tort reform," said the study, which was released at the Texas law school in Austin.
In 2003, in response to the alleged litigation crisis, Texas passed a law placing a $250,000 cap on certain damages in medical malpractice lawsuits.
But the study found that insurance payouts, jury awards in malpractice lawsuits and costs of legal defense had changed little between 1988 and 2002
The only thing that jumped, they said, was the cost of malpractice insurance, which rose 135 percent from 1999 to 2003 likely because of financial pressures that had nothing to do with litigation.
 

from: HOUSTON (Reuters), Thu Mar 10, 1:59 AM ET

  • Are the cries for "Tort Reform" legitimate?
nThirty years ago, politicians in California were persuaded by insurance companies, HMO’s and the medical establishment, that the civil justice system was broken.
nThe Legislature passed the Medical Injury Compensation Reform Act (MICRA) in 1975. The changes enacted as a result of MICRA have worked very well - for the insurance industry.
nDoctors didn’t fare so well. In California, the changes did NOT bring down the cost of professional liability insurance for doctors.
nIn fact, premiums for physicians increased 191 percent in California between 1976 and 1988.
nThe cost of insurance for doctors did not stabilize until after California voters passed insurance reform in 1988. Insurance costs have risen predictably since.
nThe data from other states that enacted reform was not much different, according to the 1996 U.S. General Accounting Office report, "Medical Malpractice: Six State Case Studies Show Claims and Insurance Costs Still Rise Despite Reforms."
  • The Bottom Line:
    • Please do not be inhibited to seek a legal remedy to obtain legitimate compensation to which you and your injured child are entitled. 

     

    • Objective reviews of jury awards demonstrate that the award that most plaintiffs, like your child, get are far from outrageous.  This recent assessment of verdicts in Washington State is real and applies to most of America:
    • The insurance commissioner's office asked the top five medical malpractice insurers to supply information on claims that were closed between July 1, 1994 and June 30, 2004. These five insurers account for more than 90 percent of the regulated malpractice market for the state's physicians and surgeons, according to Kreidler.

      Of those 10,000 cases, juries decided in favor of plaintiffs in just 50 cases. Not 50 percent of cases, but 50 cases total . . . final jury score was apparently patients: 50 and docs: 307.

    n
    • nAnd what about those blockbuster, multibillion-dollar jury awards?

    Over the 10 years, 200 claims resulted in compensation payments of more than $1 million. And that's apparently for all compensation, including economic damages and the non-economic or "pain and suffering"

    n
     

    From: "Gouging, numbers belie medical malpractice 'crisis' claims"
    By THOMAS SHAPLEY, Seattle Post-Intelligencer Columnist

    You and your child are entitled to fair compensation.  The cards are stacked against plaintiffs in the current political climate.  To have a fair chance for obtaining a just settlement, you need to find an attorney who is experienced and concentrates his practice on defending your rights.

The Law Office of Mark R. Bower, PC would like to help you.
     

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