Hot Coffee: Medical Malpractice and Damage Caps

Colorado law imposes damage caps on medical malpractice claims against hospitals and physicians. Awards may not exceed $1M per patient, and of that $1M, no more than $250,000 may be attributable to non-economic loss or injury. For patients with staggering medical bills, courts may find that future economic damages exceed this cap, and award damages in excess of the limit, but only if it would be unfair to do so otherwise.

A new documentary, Hot Coffee, presents the position that such damage caps relieve the wrongdoer of responsibility for damages, and ultimately require taxpayers to pay for medical malpractice victims' expensive healthcare costs. One of the families featured in the film became the victim of medical malpractice when their doctor failed to properly monitor the birth of twins, resulting in one of the twins being born with cerebral palsy.

In a revealing interview conducted after the film's premiere at the Sundance Film Festival, the family describes how they were successful at trial, but lost much of their damage award after the judge applied Nebraska's med mal cap. The jury awarded the family just over $5.5M, about half of their son's projected medical expenses (estimated at $12.4M); however, the judge reduced the award to $1.25M to comply with the hard cap.

Fortunately, Colorado allows for higher damage awards in some cases; however, our state's cap is regularly enforced, and the Colorado Supreme Court has held it to be constitutional. Therefore, in order to receive proper compensation for your injuries beyond the cap, it is imperative to hire an attorney who can establish that it would be unfair to reduce your damage award.

If you have been injured because a healthcare provider breached the industry's standard of care, contact us for assistance. In most cases, doctors, hospitals, and other medical professionals have substantial insurance policies to cover claims. There is no reason that you, or the taxpayers, should foot the bill for an injury caused by a medical professional's negligence, recklessness, or wrongful conduct.

Colorado Supreme Court Establishes Rule on Expert Testimony

On November 22, 2010, the Supreme Court of Colorado announced its decision in the matter of In Re Garrigan v. Bowen, relating to the use of expert testimony in a medical malpractice action. In the underlying case, the plaintiff patient sued the defendant anesthesiologist, claiming that the defendant negligently managed the patient's care during lumbar spine surgery, causing the plaintiff to suffer loss of vision as a result.

As part of its defense, the defendant hired an expert witness who was the lead author of a published study on post-operative visual loss. The defense expert was going to testify about the study at trial.

The Limits of Discovery

The phase before trial is known as discovery, when each party seeks to obtain facts and information about the case from the other party. A crucial component of discovery is obtaining the other party's witness list, including expert witnesses the party plans to call at trial. It is important to know what the witness will testify to in order to adequately prepare for trial.

Rule 26 (a)(2)(B)(I) of the Colorado Rules of Civil Procedure requires the party to produce a written report or summary of the testimony to be provided, along with "…the data or other information considered by the witness in forming the opinions…" to be expressed in the case. In the present case, the plaintiff objected that the defense did not list the raw data upon which the study was based, but only produced the study itself.

The trial court held that the defense witness had considered the raw study data in forming her opinions for the present case, so the defense should have provided the underlying data when requested by the plaintiff. The Supreme Court disagreed and held that the expert did not consider the underlying data in connection with the particular case, and so the defense was not required to produce such information for the plaintiff.

In making its ruling, it seems that the Supreme Court has significantly narrowed what material must be disclosed by an expert witness, regardless of the facts and circumstances of the particular case. This rule limits the trial courts' discretion to rule on what evidence should be produced in the discovery process. It also hampers the ability of one side to adequately prepare a cross-examination of the other party's witness.

This ruling cuts both ways, in that both plaintiffs and defendants typically use expert medical testimony in medical malpractice cases. With neither side being adequately prepared to examine the other party's testimony, the result of this ruling may be to make medical malpractice trials more confusing and difficult for the jury to reach an understanding of the facts.

If you believe that you or someone you love has been the victim of medical negligence or medical malpractice, contact the Colorado medical malpractice lawyers at Paulsen & Armitage, LLC, for assistance.

Balancing the Budget on Broken Backs

The results are in. The bipartisan National Commission on Fiscal Responsibility and Reform, created by President Obama by executive order on February 18^th, 2010 submitted its draft proposal for deficit reduction on November 10^th. The 50-page plan calls for reducing the deficit nearly $4 trillion by 2020 through cuts in spending, tax reform, and other measures. A significant portion of the proposal is dedicated to a package of health care savings, which includes, among other provisions, a cap on noneconomic damages in malpractice cases.

Colorado already limits non-economic damages, e.g. pain and suffering, in medical malpractice cases at $300,000. Caps on damages were first enacted in Colorado in 1986. The cap was increased from $250,000 to $300,000 for claims arising after July 1, 2003, but has not even been adjusted for inflation since then. In contrast, non-economic damages in other cases of negligence can be assessed at nearly one million dollars.

Obviously, the harm caused by an incompetent or negligent doctor or hospital can be just as great as that caused by a negligent truck driver or restaurant owner. What, then, is the reason for this double standard other than an organized and effective lobby of physicians and their insurers? Whether Congress acts upon the report or not, the report has already been seized upon by insurance industry lobbying groups as support in their long-standing fight to enact "tort reform" at the state and national levels.

The justice system is equipped to handle personal injury and medical malpractice claims appropriately. Frivolous suits are dismissed, and plaintiffs who are truly injured have the burden of proving the nature and extent of their injuries and justifying the dollar amount they seek. A jury of peers decides how much in damages to award, and judges have the discretion to adjust those figures when they deem it necessary.

If as a country we are looking at ways to reduce the deficit, which is a laudable goal, do we really need to do it at the expense of people and families who have suffered severe and catastrophic injuries due to the gross neglect or incompetence of the system to which they entrusted their health?

Thank you for taking the time to read our blog. We hope that these articles are both informative and thought-provoking. If you or a loved one has been harmed in a case of medical malpractice, contact our office for professional legal help. If you have a question or comment, please feel free to reply to this blog or contact us via e-mail.

Colorado Doctors Performing Surgery on the Wrong Patient, Wrong Body Part

A recent study of surgical procedures in Colorado hospitals and health care facilities turned up an alarming number of cases where a surgery was performed on the wrong patient or on the wrong body part. The study, reported in the October issue of the medical journal Archives of Surgery, analyzed a database of over 27,000 adverse occurrences reported by physicians between 2002 and 2008. The findings reported 25 procedures performed on the wrong patient and 107 procedures performed on the wrong part of the body. Since the study only looked at physician self-reported incidents, the actual number of wrong surgeries could be significantly higher.

The mistake does not always originate in the surgery room, the study found. For instance, a mislabeled lab result can result in an unnecessary operation being performed, as happened to three men in the study who had healthy prostrate glands accidentally removed. Although procedures have been put in place requiring the surgical team to take a "time-out" before beginning the procedure to review that they have the right patient and the correct surgery site, this protocol is not always performed with the full attention of the surgical staff and often fails to prevent the wrong surgery.

Wrong-site or wrong-patient surgeries are referred to as "never events" because they should never happen; in other words, there should be zero tolerance for these types of mistakes. The medical establishment also has a term called "sentinel event" to refer to an unexpected occurrence involving death or serious injury, signaling the need for immediate investigation and response. Wrong-site surgeries are among the types of incidents reported as sentinel events by The Joint Commission, the foremost health care accreditation and certification organization in the country.

The wrong surgery caused significant harm in 43 of the cases studied, and one patient died following a wrong-site procedure. Any case of this type of medical malpractice is also likely to cause significant emotional trauma in addition to the physical pain and damage done by operating on the wrong patient or the wrong body part. If this type of needless tragedy has happened to you or a member of your family, contact the experienced Colorado medical malpractice lawyers at Paulsen & Armitage, LLC, for assistance.

Improving Communications With Patients May Reduce Medical Malpractice Costs

Colorado has an "apology statute" for medical malpractice claims that precludes the patient from admitting evidence of doctor statements "expressing apology, fault, sympathy, commiseration, condolence, compassion, or a general sense of benevolence." This evidence law, although similar to provisions in twenty-five other states, is the broadest and most protective of physicians. While the statute encourages doctors to apologize for medical errors, these apologies are often empty, in that they do little to promote patient safety.

In Michigan, where the prevailing practice for medical institutions facing potential malpractice liability has been to terminate all communication between doctor and patient, a recent study suggests a new approach. A twelve-year study conducted at the University of Michigan Health System (UMHS) revealed that a doctor's communication with patients after medical errors tended to significantly reduce costs associated with malpractice actions. In particular, the researchers conducting the study found that annual figures for both lawsuits and legal defense expenditures decreased by over 60% between 2001 and 2010.

UMHS conducted internal reviews for cases involving potential malpractice liability and shared the findings with the affected patients, even if the physician was found to be at fault. Rather than merely providing apologies, UMHS's program sought to educate and inform all parties involved, bringing a level of transparency intended to promote patient safety and peer review.

With the breadth of Colorado's statutory protection of doctor admissions, policy reform in this area may be slower to develop. Nonetheless, the UMHS study reveals a benefit to patients, doctors, and medical institutions that strongly supports the need for more open investigation and continued meaningful dialogue.

Thank you for reading our blog. Personal injury suffered due to medical malpractice can be devastating. If you or a loved one has been seriously injured due to medical malpractice, contact us for immediate assistance. If you have a question or comment, please reply to this blog or send us an e-mail.

Infamous "Nose Doc" Starts First Trial

The first of many civil trials against Dr. Mark Weinberger began this week in Indiana state court, alleging the doctor committed malpractice by lying to a patient about his condition, billing for procedures which were not actually performed, and performing an unnecessary procedure which led to lasting pain and suffering and physical damage. This lawsuit is only one of some 350 lawsuits that have been filed against the doctor, who fled the country, was extradited from Italy, and is currently in prison awaiting trial on 22 criminal counts related to his medical practice.

The civil case against Weinberger first went before a medical review panel, which is a required step in Indiana in order to pursue a claim for medical malpractice. If successful, the plaintiff may obtain compensation from both the doctor's insurer and the Indiana Patient Compensation Fund (PCF). Doctors covered under the Indiana law are liable up to $250,000 in damages, while the PCF may pay up to an additional $1,000,000. Doctors can opt into the program by purchasing liability insurance up to the $250,000 limit and paying a surcharge into the state's PCF.

It appears much of this case will be a "battle of the experts" with both sides presenting expert medical testimony on several key issues, such as whether the procedures which were performed were medically necessary, and whether the procedures were performed incorrectly, causing damage to the patient. The defense already conceded in its opening statement that the doctor violated patient care standards, but the extent of any injury caused by the malpractice remains a disputed issue, one which will bear heavily on the amount of any jury award.

Indiana law shares significant similarities and departures from Colorado law. While Colorado does not require that a panel of experts review a claim before it can proceed, plaintiffs are required within 60 days of filing suit to certify that a competent expert has been consulted on the case. And while Colorado does not have a state-run patient compensation fund, it does require doctors and hospitals to maintain liability insurance of at least $500,000 per incident. As to damages caps, Colorado plaintiffs are limited in most cases to a $1,000,000 judgment, with a limit of $250,000 on non-economic damages such as pain and suffering, mental anguish, and emotional distress.

Whether actual damages are small, or even if they exceed a million dollars, the attorneys at Paulsen & Armitage will fight to see that the plaintiff is fully compensated for all economic harm such as medical expenses and lost wages. If you have been mistreated by your physician who performed unnecessary or damaging procedures, or abandoned you during the course of your care, contact Paulsen & Armitage, LLC for immediate assistance.

"The July Effect" Haunts Hospitals and Patients Year After Year

Historically, it has been believed that the month of July sees more doctor errors resulting in patient deaths than any other month of the year. This has been attributed, correctly or not, to the large influx of new medical students who begin their residency placements every July. Inexperienced new residents are infamous for making mistakes as they struggle to adjust to their new jobs, which often call for long shifts. On July 5, 2010, National Public Radio's Michele Norris interviewed Professor David Phillips of UC San Diego about the legendary "July Effect" and whether there is any truth to it.

Professor Phillips recently finished conducting a study and concluded that a "July Effect" actually does exist. He looked at 250,000 medication error deaths from 1979 to 2006 and found, in counties with teaching hospitals, a significant spike in those that occurred in the month of July. Specifically, over the years, medication errors spiked by ten percent above expected percentiles in the months of July in counties with teaching hospitals; no such spike was observed in counties without teaching hospitals. Furthermore, there was no equivalent spike in deaths outside the hospital, or in deaths from other causes during July.

The study is alarming for patients and their families. Professor Phillips suggests several things individuals can do to prevent themselves or their loved ones from becoming a victim of a medication error in a teaching hospital. First, if you need a treatment or a procedure that is not urgent, instead of July, you might consider going into the hospital in August, when the rate of medication error deaths appears to return to normal. Second, if you must be treated in July, Professor Phillips suggests that you "firmly and assertively and politely ask medical staff to double-check on the medicines and the dosages that are being provided." If you are unable to do that, ask an advocate – such as a friend or relative – to come with you and check the medication on your behalf.

According to Professor Phillips, improved safety could be obtained in teaching hospitals in several ways. First and foremost, residents and their supervisors, as well as other staff, should be notified about the findings of the study so that they can increase their vigilance against medication deaths in July. Further, the professor notes that residents may benefit from increased support as they begin their work. He explains that surgical residents, unlike medical residents, work with a team; and there is no documented spike in surgical deaths in July despite the fact that new surgical residents are beginning their jobs during this time as well.

If you believe that you or a loved one may have been the victim of a medication error or any other type of hospital error or medical negligence, contact an experienced medical malpractice attorney. At Paulsen & Armitage, LLC, our attorneys fight for the rights of injured people, seeking the maximum monetary damages available to compensate our clients for the harm they have suffered at the hands of inexperienced or incompetent doctors. To learn more, contact Paulsen & Armitage, LLC today.