Medical Malpractice Law Blog

Damages Cap Unconstitutional

In Louisiana the cap on Medical Malpractice damages was set at $500,000 in 1975.  Well the Louisiana Supreme Court has recently ruled that that amount ($500,000) in not adequate anymore.  It is too low.

BATON ROUGE -- Louisiana's $500,000 cap on medical malpractice damages, set in 1975, is unconstitutional because it no longer provides an adequate remedy to patients, the 3rd Circuit Court of Appeal in Lake Charles has ruled in a 3-2 decision.

A $500,000 award would be worth about $160,000 today, the opinion, issued Wednesday, said. The court said evidence indicates the cap would have to be raised to $1.6 million or $1.7 million to provide the same protection as it did 31 years ago. 

"In either case, we find the current $500,000 cap fails to provide an adequate remedy to today's severely injured plaintiffs, and thus, is unconstitutional. ," the ruling says.

For the full story please see www.wwltv.com

Remember -- Insurance Premiums are supposed to go down.

In South Carolina a cap on malpractice verdicts went into effect about 1 year ago.  Here is an article discussing when or whether doctor's premiums will go down.  Time will tell.

It's been a little more than a year since the state cap on malpractice pay-outs took effect, but both supporters and opponents say it will be years before its impact is felt -- if ever.

The law took effect in July 2005 and limits damages commonly known as pain and suffering to $350,000 per defendant and a total of $1.05 million if more than one provider is involved. It does not affect economic losses.

Supporters of the caps say they are needed to reduce high jury awards and frivolous lawsuits, which they say led to soaring malpractice premiums that have been driving doctors out of the profession.

Opponents say the premiums were so high to offset insurers' investment losses, artificially low premiums offered to attract business in the 1990s, and other industry factors. They also say caps hurt those who've suffered legitimate injuries.

Source:  GreenvilleOnline.com

Doctors Have Trouble with Insurance Companies Too.

Wow.  Even doctors have trouble getting the care they need.

It's easy to imagine that doctors don't get sick. Surely the hygienic shield of the sterile white coat guards them from ever having to put on the flapping gown and flimsy bracelet, climb meekly into the crisp bed and be at the mercy of the U.S. health-care system. And if somehow they did enter the hospital as a patient, physicians ought to have every advantage: an insider's knowledge, access to top specialists, built-in second opinions, no waiting, no insane bureaucratic battles and no loss of identity or dignity when you turn into the "bilateral mastectomy in Room 402." But it doesn't usually work that way. While doctors are often in a better position than most of us to spot the hazards in the hospital and the holes in their care, they can't necessarily fix them. They can't even avoid them when they become patients themselves. When Dr. Lisa Friedman felt the lump in her breast in the summer of 2001, she did--nothing. "I just sat on it," she says, "because I clicked into the mode of being physician, not patient, and I thought, 'Most lumps are not cancer, I'll just watch this.'" That was her first mistake.

By September Friedman had watched long enough. An internist in a practice that covers much of southern Wisconsin, she went to her radiology department to schedule a mammogram. The administrators turned her down: her HMO paid for routine mammograms every two years, and she'd had one 18 months before. "I said, 'Wait a minute, I feel a lump. This is not routine.' They still wouldn't let me do it."

Read the rest of the Article at Time.

Source:  Time.com

Georgia Groups say Tort Reform Failed

Give us Tort reform and we will lower the insurance premiums for doctors.  That's the party line from Insurance companies.

In Georgia, two groups, AARP and Georgiawatch apparently don't believe that this idea worked.

Two groups now say a controversial tort reform law is a failure. This, on the one-year anniversary of the law, which places a $350,000 cap on malpractice pain and suffering awards, and makes it difficult to sue if the malpractice takes place in an emergency room. Georgiawatch and the AARP say the reform has not decreased doctors' insurance premiums as expected. And, the groups say it has made it it hard for people like John Dinda, who almost died in an emergency room. "We called a lawyer and basically he says forget it. You got no chance of doing anything," Dinda tells Channel 2 Action News. Senator Preston Smith, who sponsored the bill, says seven new insurance companies are now underwriting malpractice premiums because of the law, and he says, given time, premiums will fall for doctors.

Source:  WSBTV.com

Insurance Companies Price Gouge? No Way?!?!

Say it isn't so.  Medical Malpractice insurance companies have raised premiums on doctors even though their own costs have risen along with inflation.  It can't be!  Everyone knows that the insurance companies would never do that and that the only reason rates have gone up is because of lawsuits.

Well, here is yet another study showing that the reason for high medical malpractice premiums is NOT lawsuits.

[I]nsurance companies have been raising doctors' premiums even though expenses related to claims have risen slowly, near medical inflation. The release of this report comes on the heels of another study co-released this month by a coalition of national consumer organizations, Falling Claims and Rising Premiums in the Medical Malpractice Insurance Industry, that reaches similar conclusions. That study, reported in the July 7, 2005, edition of the New York Times, sparked two state attorneys general and a state insurance commissioner to explicitly challenge the insurance industry's excessive rate hikes for doctors.

Both studies support the conclusion that the reasons for the dramatic premium increases for doctors cannot be found in any sort of lawsuit "explosion" but must be found elsewhere -- the business and accounting practices of the insurance industry. The "tort reform" remedy pushed by the insurance and medical lobbies is failing to do anything to help doctors with their insurance problems.

Source:  Yahoo News

Should settlements be secret?

Fox News ran a story on July 13th about the dangers of "gag" orders in malpractice lawsuits.  Some people in California want to make confidentiality agreements illegal.  They have a point.  In this case it appears that part of the agreement was to NOT report the medical malpractice claim to the state authorities.

Read the Story...FoxNews

Link to the Consumer Attorneys Association of Los Angeles

Wisconsin Supreme Court Strikes Down Caps on Malpractice Verdicts

On Thursday, the Wisconsin Supreme Court struck down a law that set an arbitrary cap on non-economic damages in medical malpractice cases.  In this particular case, the court found that there was no rational basis for the cap that warranted taking away patients rights to compensation.

This case involved a young man who suffered a birth injury leaving him with partial paralysis and a deformed right arm.

You can read the opinion at the Wisconsin Supreme Court Website in both HTML (web browser) format or PDF (Adobe Acrobat format).

Adobe formatted opinion

Web browser Formatted Opinion

Johns Hopkins says Medical Malpractice lawsuits don't cause high health care costs

Medical malpractice litigation is not to blame for the relatively high cost of health care in the United States, according to a Johns Hopkins Bloomberg School of Public Health study published yesterday in the journal Health Affairs.

Source:  Rednova.com

Study Contends that Malpractice Insurers are gouging clients

The report, written by former Missouri Insurance Commissioner Jay Angoff, contends that the amount of premiums collected by 15 major medical malpractice insurers has more than doubled over the past five years. At the same time, the report found the companies' claim payouts have remained essentially flat...

The report said malpractice insurers as a group raised their net premiums between 2000 and 2004 by 120.2 percent, to about $4.2 billion, even though their net claim payments rose by only 5.7 percent, to about $1.4 billion.

As a result, the amount of claim payments made as a percentage of premiums dropped from 69.9 percent in 2000 to 33.6 percent in 2004.

Read the whole article here at the CapeCodOnline.com

$8.25 Million Verdict in Michigan

In 1997 this child was born premature and was burned when a cauterizing tool was used near a respirator sparking a flash fire.  The child suffered long term lung damage and burns.

Now the case seemed to turn around whether the long term lung damage was actually caused by the fire or by the prematurity.  Nevertheless, the jury returned a $8.25 verdict against the hospital.

Sources:  Detroit News Brief,  Detroit News 5/28/05 article

In what I consider to be an unfair ending, the state law in Michigan takes most of the verdict and reduces it to $375,000.  In this case the jury decided that the lung damage was not caused by the fire, BUT they clearly decided that the burn damage was worth $8 Million over the child's lifetime.  Michigan law takes all that analysis away and arbitrarily decides that all pain and suffering is worth what the state law says.

The hospital admitted responsibility for the burns and Brooks told the jury to award for the burns to the skin as they felt justified. The jurors said they were all close when they each offered an opinion on what was fair, and then they averaged them out, reaching $8 million.

But Fieger's co-counsel, Ven Johnson, railed on the state Legislature for making laws that undo what the jury intended, reducing this award size to $375,000. Combined with the economic damages, the Laportes could receive as little as $575,000.

Jurors were not told during the trial that non-economic damages are automatically limited.

"This shows how sad the Michigan system is," Johnson said, adding that the law was created by former Gov. John Engler and Republican leaders to "trick juries into believing plaintiffs would have received full compensation. You have a law that is intentionally slanted in the favor of the guilty party. That is tragic.

"Their system right now is anti-victim. This baby did nothing wrong."

Don't get hurt or have a malpractice claim in Michigan.  The state government there doesn't believe your injuries are worth anything.

Source:  The Oakland Press