Medical lawsuits radically declining

On November 2, 2009, in News from Nashville 2009, by Mark Norris

November 2, 2009

Friends –

It is not often in public service that we can look back to a specific piece of legislation and say “this worked,” and back it up with experience. In 2002, I first introduced medical liability reform legislation which finally passed in 2008. It took six years, numerous revisions, and a lot of hard work by the medical community, lawyers and fellow legislators. We developed a workable solution that strikes a balance between access to justice and access to affordable medical care.


Medical lawsuits radically declining

Tennessee, Mississippi make it hard to pursue malpractice case

By Tom Charlier

Jurors cried and lawyers hugged, but the plaintiff — a young mother dying of breast cancer — was sick at home when the largest medical-malpractice judgment in Tennessee history was handed down in Memphis this summer.

Although it was later reduced in a confidential settlement, the $23.6 million judgment for Courtney Hill and her husband, Robert, reverberates through the legal and medical communities at a time when malpractice litigation is emerging as a linchpin national issue.

Congress is hashing out whether health-care-reform legislation should include measures addressing malpractice litigation, which many lawmakers, particularly Republicans, see as a driving factor in spiraling costs. President Barack Obama, too, has voiced concern that lawsuits could give rise to wasteful “defensive medicine.”

However, despite the Hill verdict, and a recent wrongful-death suit filed by the widow of longtime Memphis television meteorologist Brian Teigland, malpractice cases and payments are on a sharp downward trend locally and nationally.

A major reason: For all the reform efforts by Congress, states like Tennessee and Mississippi already have adopted their own laws clamping down on the litigation.

“I think it’s become harder to get lawyers (to take malpractice cases),” said Taylor Lincoln, a research director for the consumer-advocacy group Public Citizen. “Only the most clear-cut and the most egregious cases, in terms of the potential financial recovery, can be pursued.”

Nationwide, the number of payments physicians made for malpractice claims fell to 11,037 last year — the lowest figure since the National Practitioner Data Bank began tracking data in 1990. Adjusted for inflation, the total $3.6 billion they paid was the second-lowest sum on record.

In Tennessee, a 2008 law requiring plaintiffs to certify that they’ve consulted an expert before filing suit has had a profound effect on malpractice litigation.

Between October 2008 and May of this year, for instance, only 111 malpractice cases were filed statewide, a 65 percent drop from the 314 suits during the same months the previous year.

“We didn’t think it would be terribly effective,” Memphis attorney David M. Cook, who defends hospitals and physicians, said of the new law.

“(But) there has to be due diligence now, and it has had a dramatic effect.”

Mississippi adopted sweeping lawsuit-reform legislation in 2004. It set a $500,000 cap on the amount of money plaintiffs can receive for non-economic damages, such as pain and suffering, in malpractice cases. It also imposed new rules on venue to prevent court-shopping and got rid of “joint-and-several” liability rules that allowed the suits to target deep-pocket doctors who were only marginally involved in cases.

Figures cited by Gov. Haley Barbour in a recent Washington speech show that since the law took effect, malpractice claims in Mississippi have plummeted 91 percent. During that same time, the state’s largest medical-practice insurer dropped its premiums by 42 percent.

“It’s made a sea-change in the practice of medicine in Mississippi,” said Dr. Randy Easterling, president of the Mississippi State Medical Association and a physician in Vicksburg.

In all, some 40 states have adopted so-called tort-reform legislation aimed at reining in malpractice suits.

But the proliferation of the legislation has only sharpened the debate over the need for national reform.

Supporters of the legislation say they aren’t trying to inhibit legitimate malpractice claims. Instead, they’re targeting the frivolous or excessive claims that needlessly drive up medical costs and harm health care by forcing doctors to close their offices.

In Mississippi, huge jury awards to out-of-state litigants had made the state infamous for what some called “jackpot justice.” As a result, malpractice-insurance rates “went crazy,” Easterling said, and doctors began exiting the state in droves, leaving vast areas — most of them poor and rural — under-served.

“We had groups of 10 or 15 (doctors) just close their doors,” he said. “You could drive from Gulfport to Memphis and not have a single neurosurgeon on call in any town you stopped in.”

In Memphis, many physicians say the new Tennessee law, while helpful, doesn’t go far enough. Along with the American Medical Association, they argue that Congress should include malpractice reform in any health-care legislation because doctors remain overly vulnerable to broad-brush lawsuits.

“They sue the pathologist, the radiologist, the anesthesiologist — anybody who’s on the case,” said Dr. George Flinn, a radiologist who’s also a Shelby County commissioner and a businessman.

In addition to the effects it can have on insurance premiums, a lawsuit poisons a doctor’s relationships with patients and makes it difficult to practice, he added.

“I cannot overemphasize the emotional toll,” Flinn said. “When you read one of these complaints, it talks about you like you’re the worst person alive.”

The mere threat of a malpractice suit can induce doctors to conduct extra tests that add thousands of dollars to a patient’s bill, said Dr. Keith Anderson, a Memphis cardiologist.

He cites the example of a patient experiencing syncope — blacking out — during a stress test. Although the condition is almost always innocuous, doctors feel compelled to order a battery of costly tests to provide cover against litigation.

“If I said, ‘Let’s sit on this and see if it happens again,’ and the patient died, I’d be strung up,” Anderson said.

Too often, he said, lawsuits are filed because patients or family members are looking to blame someone when things go wrong.

“A horrible outcome doesn’t mean the doctor was negligent,” Anderson said. “Horrible outcomes happen.”

But trial lawyers and consumer groups have trouble summoning sympathy for physicians.

They cite the decline in payments as evidence that malpractice lawsuits are not the burdens the medical and insurance establishments make them out to be.

Further proof, lawyers and consumer groups say, can be found in estimates by the Congressional Budget Office and groups like Public Citizen that put the total cost of malpractice litigation at somewhere between 0.6 and 2 percent of all health-care expenditures in the U.S.

In fact, they see malpractice litigation as a necessary disciplinary influence that improves medical care.

“The reason there’s so many medical malpractice lawsuits is, there’s so much medical malpractice,” said Memphis attorney Gary K. Morrell.

He and others point to a landmark 1999 study by the Institute of Medicine estimating that between 44,000 and 98,000 Americans die each year from avoidable medical errors. That’s several times the 11,000-plus malpractice payments made.

“What’s happening to all the other dead people? All the injured people? The cases just aren’t being brought,” said Nashville attorney John Day. “Is there a problem with too many lawsuits? I could make the argument that there’s not enough.”

To win a malpractice suit against doctors, plaintiffs already must run a gauntlet of protections for doctors, attorneys say.

And because of the six-figure costs of litigating malpractice cases, caps on non-economic damages, such as Mississippi’s, make it unfeasible for lawyers to pursue suits, said Jim Lees, a Charleston, W. Va., attorney who was the lead counsel for Courtney Hill in the case that produced the record-setting judgment.

The origins of that suit date back to 2003, when Hill, then in her early 20s, told her gynecologist, Dr. Claudia Moise, about a pea-sized lump she’d noticed in her left breast. According to the complaint, Moise performed a manual exam on the lump — rather than ordering an ultrasound or mammogram — and told Hill not to worry because it was probably just a harmless fatty deposit or cyst.

About a year and a half later, by which time the lump had grown to the size of a marble, Hill was diagnosed with Stage IV breast cancer, and in a deposition given just before trial this summer, a physician stated she had “a period of months to a year at most” to live. Had she been treated when the lump was first noticed, Hill’s prognosis would’ve been “excellent,” Dr. Lee Schwartzberg said.

Lees acknowledges the trial was emotional, but says the jurors were very diligent and thoughtful.

“The predicate for (limits on suits) is we can’t trust jurors to do the right thing,” Lees said.

After the verdict, jurors asked to talk to him.

“They said they wanted to send a message,” Lees said.

— Tom Charlier: 529-2572

Medical malpractice by the numbers

Total malpractice claims paid nationwide to plaintiffs in 2008: 11,037, totaling $3.6 billion, down from 11,475 and $3.8 billion in 2007, and 16,571 and $5.3 billion (adjusted for inflation) in 2001.

Average payment by doctors last year: $326,665.

Total amount in claims that had been sought in malpractice suits resolved in Tennessee during 2007: $19.2 billion.

Total amount paid out by Tennessee doctors that year: $126.2 million.

Range of malpractice insurance rates charged by State Volunteer Mutual Insurance Co. for Tennessee doctors in 2007 (based on coverage of $1 million per incident, $3 million per year): $8,510 for a pediatrician to $58,207 for a doctor practicing maternal and fetal medicine.

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