Would Medical Malpractice Tort Reform Really Help?

In October, the Congressional Budget Office (CBO) issued a report to Congress about the potential costs and benefits of instituting national tort reform in medical malpractice cases. While the CBO findings do suggest that tort reform might reduce health care spending and malpractice insurance premiums, the report also questions the impact this reform would have on patients' actual health.

The CBO estimates that the cost of medical malpractice claims, including insurance premiums, amounts to approximately $35 billion, or two percent of total health care spending. It further went on to estimate that if a group of tort reform proposals were adopted, total reductions around .5 percent of current total health care expenditures, or about $11 billion could be saved.

Few would argue with the appeal of saving billions of dollars in potentially unnecessary spending. However, the CBO rightly questions the other impact of medical malpractice tort reform, namely the outcome on actual medical patient health. In its report, it expressed concern about the broader impact these reforms might have on the public in the way of health outcomes. The problem is that many studies inquiring into the impact of medical malpractice reform only study the economic concerns and largely ignore the impact on people's actual health.

Unfortunately, the few studies that have considered the impact on people's health have lead to inconclusive results. The CBO report cites one startling 2009 study that suggests "a 10 percent reduction in costs related to medical malpractice liability would increase the nation's overall mortality rate by 0.2 percent." However, it cites two other studies that suggest there is no connection between tort reform and an adverse effect on patient health. Clearly, before Congress passes national medical malpractice reform, more research must be done to better determine the impact such reform would have on patients nationwide.

Paulsen & Armitage is always apprised of changes in medical malpractice laws both at the state and national levels. We have an in-depth understanding of medical malpractice laws, issues, and litigation, and we are committed to staying current on all of the fast-moving developments in the area of medical malpractice tort reform. If you or someone you know is a victim of medical malpractice or medical negligence, contact us for assistance.

Obama Administration Offers Grants to Curb Medical Malpractice Suits

The debate between trial lawyers and doctors concerning medical malpractice reform appears to be continuing not only on a statewide level in Colorado, but also on a national level as well. Recently, the Obama administration, in an effort to discourage frivolous medical malpractice lawsuits, offered $25 million in grants that would identify ways to reduce medical errors, reduce malpractice insurance premiums, and prevent nuisance litigation.

The White House's proposals have already been met with opposition. Republicans and consumer groups have stated that Obama's plans at medical malpractice reform lack substance. Senate Minority Leader, Mitch McConnell, stated that Obama's proposals do not get rid of enough frivolous lawsuits on doctors and hospitals. The U.S. Chamber of Commerce, representing business interests, stated that the amount of money offered by the administration is insufficient to make any significant progress in medical malpractice reform.

Contrary to what most people believe, however, an article in The New York Times stated that the direct costs of medical malpractice suits, including jury awards and settlements, constitute only a small fraction of health care spending according to economists. In actuality, according to a Harvard economist, Amitabh Chandra, who conducted research on medical malpractice costs, noticed that doctors conducted a noticeable amount of wasteful treatment because doctors feared getting sued by their patients. Chandra found that as much as $60 billion annually or approximately three percent of overall medical spending was attributable to doctors requesting unnecessary treatments.

Additionally, although many people perceive that large medical malpractice settlements and jury awards are commonplace, this is not factually true. In reality, medical researchers have found that after reviewing patient records that numbered in the thousands, only two to three percent of incidents of medical negligence actually led to medical malpractice lawsuits. According to a member of The Robert Wood Johnson Foundation, only a small share of victims receive compensation for their medical injuries, and the award amounts vary widely, ranging from the minimal to the very high jury award amounts.

As the debate over medical malpractice reform continues, the laws regarding medical malpractice, including medical malpractice caps, may change over time. It is apparent though that high costs for medical care are not necessarily due to high medical malpractice jury awards. A combination of different factors is perpetuating high healthcare costs.

Our firm is always apprised of changes in medical malpractice laws both at the state and national levels. We have an in-depth understanding of medical malpractice laws, issues, and litigation. If you or someone you know is a victim of medical malpractice or medical negligence, contact us for assistance.

World's Largest Drug Company Hit With Record Criminal Fine

Pharmaceutical company Pfizer, currently the largest drug company in the world, has been fined $1.3 billion for mispromoting Bextra, a once-popular painkiller that was taken off the market in 2004. Pfizer has agreed to pay an additional $1 billion in civil settlements to Medicare and Medicaid as reimbursement for improper prescriptions.

The federal investigation was sparked by the filing of a whistleblower lawsuit by a Pfizer sales representative who accused the drug company of marketing Bextra for unapproved, or “off-label” uses. Bextra (Veldecoxib) is a painkiller approved for relief of arthritis and menstrual pain. According to the whistleblowing employee - who will personally receive over $50 million in the settlement pursuant to whistleblower provisions in the federal False Claims Act - Pfizer promoted Bextra for uses and in doses that far exceeded the scope of the FDA approval.

A related settlement was also reached regarding kickbacks made by Pfizer to doctors for prescribing Bextra and several other drugs, often for off-label uses.

On the same day that Pfizer disclosed the cost of the settlement, it also announced the takeover of pharmaceutical giant Wyeth at a cost of $68 billion. The news of the merger overshadowed the news of the Bextra problem, which was understandably not highlighted by the drug company.

Doctors who prescribe drugs for a purpose or at a dosage not approved by the FDA may be committing malpractice and exposing themselves to liability. Although off-label use is quite common, it can be malpractice to prescribe drugs for off-label uses when there is no medical basis for doing so, or if safer, more established drugs are available that could accomplish the same purpose. Bextra, for instance, is an NSAID painkiller in the same class as aspirin, ibuprofen, and naproxen, all of which are widely available in differing forms and dosages, and are currently used to fight the type of pain for which Bextra was approved.

The use of defective or dangerous drugs, or the off-label use of otherwise safe drugs, can cause illness or injury, long-term damage, and even death. If you believe that you may have been injured by the prescription of a drug for an off-label purpose, contact our office for a consultation.

Do Damages Caps Make Sense?

In Colorado, total damages in medical malpractice cases may not exceed one million dollars. Within that total cap, state law also places a $300,000 cap on non-economic damages, such as pain and suffering. About half the states in the nation have placed a cap on non-economic damages in civil litigation, with the caps ranging from $250,000 to $750,000. Most of these caps apply specifically to instances of medical malpractice.

The argument for capping damages is mainly an economic one; doctors argue that the potential for larger malpractice damage awards causes them to have to pay higher rates for malpractice insurance. Higher rates, in turn, will either cut into doctors' profits or be passed on to patients in the form of higher bills for office visits and procedures.

While capping damages may seem to make economic sense in the abstract, how do they stack up in individual cases where the cost inflicted by malpractice exceeds the statutory cap? Take, for instance, the recent case where around 21 patients at Rose Medical Center in Denver were exposed to hepatitis C at the hands of a surgical technician employed by the facility, who knew about her condition.

Hepatitis C is an incurable disease that can lead to cirrhosis of the liver or liver cancer. Certain drug therapies are effective at removing large quantities of the disease from the blood stream… at a cost of around $10,000 per treatment. While cost containment is a laudable objective for government policy, is it right for the state to set the price tag for being infected with a life-long, debilitating and potentially fatal condition? Does $300,000 sound like a fair exchange for the emotional pain and suffering these patients must endure, due to actions over which they had no control? Should the state enact a blanket cap without regard to individual circumstances, or should it be up to the judicial system to determine what is appropriate in a given instance?

Recent attempts to increase the $300,000 cap to $460,000 merely to adjust for inflation have been defeated in the legislature. The $300,000 non-economic and $1 million total damages caps still stand, although a judge does have discretion to exceed the total cap when it is shown that future medical expenses and lost wages will exceed the million dollar limit. For an individual infected with hepatitis C in the prime of life, it is more than conceivable that a million dollars will be inadequate to compensate for the loss.

Thank you for reading our blog. If you or someone you know has been injured due to medical malpractice, or someone you love has unfortunately died due to another's medical negligence, please contact us for assistance.

Colorado Patients Exposed to Hepatitis C from Former Hospital Employee

Approximately 21 patients of Rose Medical Center in Denver, Colorado and Audubon Surgery Center in Colorado Springs have tested positive for hepatitis C. Preliminary investigations and tests link the patients' hepatitis C to Kristen Diane Parker's hepatitis C. Parker is a former surgical technician at both Rose and Audubon.

On July 23, 2009, Parker was indicted on 21 counts of tampering with a consumer product and 21 counts of obtaining a controlled substance by deceit or attempt by a federal grand jury. According to the criminal complaint, Parker, who is a former heroin addict and has hepatitis C, allegedly swapped her own dirty syringes that were filled with saline for syringes that were filled with Fentanyl, a narcotic that is 80 to 100 times stronger than morphine, and is often used to help patients after surgery manage pain.

Allegedly, Parker injected herself with Fentanyl, while patients unknowingly were infected with Parker's dirty needles. Out of the 4,700 Rose patients and 1,000 Audobon patients who were potentially exposed to Parker's hepatitis C, there are presently 21 hepatitis-infected patients who are preliminarily linked to Parker's hepatitis C. Authorities have advised all patients, who may have been exposed, to be tested.

Even though Parker is not a nurse, nor holds a medical degree, she received surgical technician training. Additionally, before she was hired at Rose, Parker's pre-employment blood test showed that she had hepatitis C. Despite her condition, Rose Medical Center allowed her to work in its operating rooms after it counseled her about her condition and exposure risks.

Hepatitis C
"Hepatitis" means inflammation of the liver. Hepatitis C is a contagious liver disease that arises after a person has been infected with the hepatitis C virus. Symptoms can range from mild illness lasting a few weeks to serious illness that attacks the liver. However, some individuals who are infected never develop any symptoms.

About 75 to 85 percent of people infected with hepatitis C develop chronic hepatitis C, which is a long-term illness, leading to major liver problems, such as cirrhosis--scarring of the liver--or liver cancer. Often, most people who have acute hepatitis, which is a short-term illness arising within the first six months of exposure to hepatitis C, will lead to chronic hepatitis C.

Hepatitis C is generally spread when blood from a person infected with hepatitis C enters the body of a person who is not infected. Common ways of transmission of hepatitis C include:

• Sharing needles or syringes
• Needlestick injuries in healthcare environments
• Children who are born to mothers with hepatitis C

Some individuals, who have tested positive for hepatitis C, have sued Rose Medical Center for medical malpractice. Medical malpractice is an area of law where if a medical practitioner or medical facility fails to exercise adequate care or skill in treating the patient, doctors or hospitals may be liable for any injuries that are caused to the patient.

If you have suffered a medical malpractice injury due to the negligence of a doctor, hospital, or health care provider, you should contact us immediately for legal assistance. If you would like to discuss your matter with us, please contact our office for a confidential consultation.

Safety Risks of Angioplasties

According to a recent investigative report by CBS, angioplasty is one of the most common medical procedures in the United States. The American Heart Association's Heart Disease and Stroke states that in 2006 as many as 1,314,000 angioplasties were conducted in the United States.

Angioplasty is a medical procedure where the medical practitioner places a small balloon at the location of the clogged blood vessel. The balloon is inflated and widens the obstructed blood vessel, and a stent is placed to prevent re-narrowing of the vessel. Typically, this procedure is considered to be safe, with only about one in 200 patients dying after having non-emergency angioplasty. Still, there is now a growing concern that angioplasties are conducted in unsafe situations and that too many angioplasties are being performed.

Safety Procedures for Angioplasties
Three well-known and respected cardiology organizations, the American Heart Association, the American College of Cardiology, and the Society for Cardiovascular Angiography and Interventions, caution that non-emergency angioplasties should be conducted only when there is a cardiac surgical support at the medical facility. However, smaller-sized hospitals have been performing non-emergency angioplasty without having on-site surgical support to act as back-up in the event something goes awry.

Instance of Possible Medical Malpractice
According to CBS's report, in 2006 Pearl Sullivan went to Holy Name Hospital in Teaneck, New Jersey for shortness of breath. Later on, the hospital's medical staff performed elective angioplasty on her, but complications arose and Sullivan died. Details of the procedure were not disclosed in the report, but Sullivan's family sued the hospital claiming the decedent did not understand the consent form she signed, which stated that on-site cardiac surgical back-up would not be present for the procedure.

Angioplasty is a Lucrative Business
Smaller hospitals are conducting angioplasties because they are trying to remain competitive, particularly when larger hospitals nearby are providing more medical services. Further, the procedure increases the financial margins for smaller hospitals, since on average the procedure costs $16,000 and as a whole, the angioplasty field brings in 21 billion dollars annually.

As a result of this financial potential and new recent technological advances, such as drug-coated stents, experts have remarked that too many angioplasties are being performed. In the past decade, the number of angioplasties being performed has tripled. One physician has also stated that 40 percent of the procedures performed are probably unnecessary. In addition, some studies have shown that medication or non-invasive methods, such as exercise, can be effective alternatives to angioplasty for individuals who are not at high risk of a heart attack.

Informed Consent
When a medical professional obtains a patient's consent, the consent must be informed consent. The physician must fully inform the patient as to the medical condition and the procedure that is about to be performed. In general, the physician should advise the patient of the following:

• The diagnosis
• Purpose of the procedure or treatment
• Nature of the procedure or treatment
• Available alternatives to the procedure or treatment
• Risks and benefits of the procedure or treatment
• Risks of foregoing the procedure or treatment
  

Patients should also be aware that consenting to a treatment does not absolve the medical practitioner of liability for any procedure that is negligently or incorrectly performed. The physician must exercise an appropriate level of care when performing the procedure or treatment.

Medical Malpractice Representation from Paulsen & Armitage
Thank you for reading our blog. Please keep in mind that our postings are not legal advice and your comments will not be treated as confidential. If you suspect that someone you care about has passed away due to the negligence of a doctor, hospital, or health care provider, please contact us immediately for legal assistance. If you would like to discuss your matter with us, please contact our office for a confidential consultation.

House Bill 1344 Regarding Medical Malpractice Damage Caps Fails to Pass

On April 22, 2009, Colorado's House Bill (HB) 1344, a bill that originally would have raised the cap on non-economic damages from $300,000 to about $460,000 in medical malpractice lawsuits, died in the House. HB 1344 was sponsored by the Colorado Trial Lawyers Association, which introduced a similar bill, Senate Bill (SB) 164, in 2008, which was struck down by the House Judiciary Committee by a vote of seven to two on April 29, 2008.

The proponents of both bills argued that raising the caps on non-economic damages in medical malpractice cases was necessary to reflect inflation, particularly when the cap had been first placed in 1988, more than twenty years ago, at $250,000, and raised slightly in 2003, to $300,000. Non-economic damages typically include damages for pain and suffering, loss of companionship, and loss of marital relations.

Unchanged by either bill was the restriction on the total damages for medical malpractice cases, which is set at $1 million. The judge, however, would have the discretion to raise the total award amount.

When SB 164 died in the House Judiciary Committee, Representative Christine Scanlon (D-Dillon) sponsored HB 1344. The House Judiciary Committee approved HB 1344 on Monday, April 20th, but the bill was significantly watered down. Rep. Scanlon removed the language raising the cap on non-economic damages from the bill, because of the strong opposition by medical practitioners, such as the Colorado Medical Society, against the bill.

Opponents of HB 1344 argued raising the damages cap would have raised malpractice insurance rates by seven to ten percent. They argued that after the cap was put in place in 1988, medical malpractice rates fell and have continued to be low.

Proponents of HB 1344 were confident that it would pass, because unlike SB 164, which included a proposal to re-categorize physical impairment and disfigurement as economic damages, and thereby, possibly raise medical malpractice rates, HB 1344 primarily called for a raise on non-economic damages to reflect inflation.

After HB 1344, was stripped of its original language on readjusting medical malpractice caps, the only aspect of the bill that was left consisted of requiring medical malpractice insurers to get prior approval from Colorado's insurance commissioner before raising premiums by more than 5 percent annually. The bill also permitted the state insurance commissioner to publicly post the rate increases, and to hold hearings on proposed premium hikes, if requested to do so by a person acting in good faith.

Once the House Judiciary Committee approved HB 1344, in its revised form, leaving only the language regarding insurance premiums, the House Appropriations Committee approved the bill on April 21st. The bill appeared to be on its way to fully passing, but at the third and final reading on the House floor, it failed by 39 to 24 votes.

The Colorado Medical Society and Colorado Trial Lawyers Association have stated that they are willing to work through their disagreements, and reach some type of compromise regarding the issue of medical malpractice damage caps, but thus far, no solution has been reached. We will continue to keep you updated on any developments regarding this issue.

Thank you for reading this blog. Please be advised that our postings do not constitute legal advice and comments you leave will not be confidential. If you or someone you know has been injured due to medical malpractice, and you need immediate legal assistance, please contact Paulsen & Armitage, LLC for a consultation or information.