62-year-old Kenneth F. Morris is both paraplegic and a schizophrenic. He refused to cooperate with the doctors and nurses at other hospitals, and when he arrived at Western Convalescent Hospital, he had infected bedsores, which eventually resulted in the amputation of his leg below the knee. A Los Angeles County jury held the nursing care facility 90% responsible for the injury, and awarded over $12 million in compensatory and punitive damages. “A spokeswoman for the California Department of Health Services, which inspects and licenses nursing homes, said state officials had never received a complaint about Morris’ injuries and had no plans to investigate.” (Jack Leonard, “Abuse Victim Wins Award”, Los Angeles Times, Jul. 2; plaintiffs’ law firm summary). The award will likely be lowered somewhat later in the litigation process, but the trial court is still likely to award between $3 and $6 million.
Loads of coverage of health matters in recent weeks over at our sister website, including: liability fears and emergency room admissions; New Jersey bans “retaliating” against expert witnesses over testimony they give, no matter how untrue it may be; Ted on one lawprof’s grossly misleading use of med-mal statistics, and a second round of the same; pain medication in nursing homes (and more on nursing homes); two doctors pick up stakes; Australian med-mal rates fall after reform; same thing in Texas; HHS introduces a distinctive “early offers” program for medical malpractice claims involving its clients; please don’t let him grow up to be an M.D.; Pennsylvania hospitals’ bill; MICRA and Prop 103; the March of Dimes wants Bendectin back; federal judge Loretta Preska in Manhattan throws out a major Dickie Scruggs case against the non-profit health sector; and a must-read article on defensive medicine. To explore all this and much more, follow the links provided or visit the site’s topical page on medicine and law.
A New Jersey nursing home defense attorney finds himself under fire after a presentation to fellow litigators at which he seemed to recommend, whether in a jocular way or not, making plaintiffs fight for every document and asserting blanket claims of privilege to keep relevant papers out of their hands. Curiously, adversaries who’ve litigated against attorney Donald Davidson tell a reporter that they consider him a straight shooter who has not used abusive or stonewalling tactics against them. (Charles Toutant, “Candid Comments About Discovery Bring Lawyer National Notoriety”, New Jersey Law Journal, Sept. 21).
In West Virginia, insurer NCRIC was paying out $1.07 in claims for every $1 in premiums collected; it almost left the state until regulators allowed them to raise rates to make up the difference. Of course, some doctors can’t afford the new rates, and have had to stop practicing at hospitals and nursing homes that require insurance. ATLA once again blames the insurance companies for failing to invest premiums in such a way to pay the rising claims. The insurer’s problems were exacerbated when a D.C. jury levied a $18 million countersuit verdict against NCRIC when it tried to collect $3 million in unpaid premiums from the defunct Columbia Hospital for Women Medical Center. (Dina ElBoghdady, “D.C. Malpractice Insurer Feels Squeeze”, Washington Post, Sep. 6).
In Illinois, the political debate continues over the need for tort reform, as doctors continue to flee the state. Ed Murnane, of the Illinois Civil Justice League, notes that 40% of the doctors in St. Clair and Madison Counties have been named as defendants in lawsuits between 2000 and 2003; even though the overwhelming majority of plaintiffs collect nothing from such cases, the costs of defense are high. (Mark Samuels, “Group: Tort Reform Can Stop Malpractice Crisis”, The Southern, Sep. 3; Rob Stroud and Herb Meeker, “Illinois physicians say insurance rates are driving them out of state”, Journal Gazette/Times-Courier, Sep. 3).
An editorial signed by 25 Washington County, Maryland doctors protests the legislature’s failure to reform the medical malpractice system. (“Lawsuits will drive doctors away”, The Herald-Mail, Sep. 5).
In Nevada, the trial lawyers groups are trying to obstruct reform by putting forward faux reform measures on the initiative ballot that would wipe out the real reform measure, Question 3. For example, Question 5, proposes penalties for filing or defending “frivolous” lawsuits–but redefines “frivolous” to narrow the classification as to be meaningless. At the same time, it bars the legislature from ever implementing caps. An earlier attempt to stop Question 3 with a last-minute lawsuit failed. (Tanya Albert, “Nevada tort reform ballot fight now brewing”, American Medical News, Sep. 13; AP, Aug. 25; No on 4 and 5 website).
Washington state doctors are traditionally politics-free, but the medical malpractice crisis could change that and force them to lobby for the reform Initiative 330. “‘Physicians in the main have an aversion to mixing politics with their professional medical practice,’ said Dr. Kevin Ware, president of the county medical society. ‘But under the current circumstances, the need for malpractice insurance reform is so desperate that physicians are having to look seriously at departing from that custom.'” (Sharon Salyer, “Doctors may lift ban on politics”, The Herald, Sep. 6; Wallace blog, Aug. 31).
Wyoming has lost 10 percent of its doctors in the last eighteen months, and the state’s largest malpractice carrier will stop renewing policies October 1. A constitutional amendment is necessary for reform there. (Lee Lockhart, “Lawmaker predicts heated debate over damage caps”, Casper Star Tribune, Aug. 27).
Evan Schaeffer, who’s poked fun before at the way plaintiff’s lawyers from elsewhere in the country endeavor to solicit business in his own Madison County, has some thoughts (Aug. 23) prompted by a Minnesota lawyer’s advertisement which includes a LOT OF CAPITAL LETTERING and which lays out a “Chinese menu” of potential complaints which might entitle the prospective client to money damages. Touchingly, the ad in the Alton, Ill. Telegraph addresses the danger that some local residents might be so unfortunate as not to be exposed to its message: “CLIP AND SAVE. Please take this notice and post it in your nursing home, church, community center or anywhere that it may reach people who are suffering and need help.”
“A Brooklyn, N.Y., judge [last month] dismissed a $112 million medical malpractice verdict — the third-largest in the state’s history — saying a local hospital could not be blamed for an aneurysm that left a man a quadriplegic. Brooklyn Supreme Court Justice Melvin S. Barasch said that although the case was ‘one of the saddest’ he had heard, the jury had no rational basis for its verdict.” David Fellin’s lawyer had played the jury a “day-in-the-life” video of his disabled client “in a nursing home, where he needs constant care. He also told the jury about Fellin’s mother, whose life, according to Barasch, now revolves around visiting and caring for her son. The judge said the film ‘brought tears to everyone’s eyes.'” However, the judge said, that’s no substitute for showing that defendant Long Island College Hospital had negligently caused Fellin’s injuries, which he said the plaintiff’s side hadn’t shown. (Tom Perrotta, New York Law Journal, Jul. 15).
The medmal crisis isn’t just affecting doctors, it’s having an impact on nurses, too:
Kimberly Ridpath was shocked to learn earlier this year that the malpractice insurance policy for her 150 health care workers had been canceled.
In three years of supplying nursing homes with nurses and assistants, no lawsuits had ever been filed against her Mechanicsville firm, Advantage Staffing.
…The tension over the future of her company and its 150 employees took its toll.
“I cried. I couldn’t eat. I couldn’t sleep,” said Ridpath, a registered nurse.
(Could this be the woman Senator Edwards was talking about?) She eventually found a policy, at roughly ten times the price of her original. It’s the nursing home work that makes her company such a high risk. But the problem isn’t confined to nurses who staff nursing homes. Midwives and nurse practitioners, who often serve the underserved, are finding their malpractice insurance premiums rising, too. As result, they can no longer afford to staff public health clinics on the cheap as they once did. Tort reform. It really should be a bipartisan issue.
New Jersey: “County freeholders Tuesday paid nearly $26,000 to a Crest Haven Nursing Home employee who claimed she suffered a psychiatric disorder in 2001 after a nursing home visitor made an inappropriate remark to her.” Nursing assistant Cynthia Allen, a longtime employee whose lawyer said she had a good work record, “alleged that she was feeding another patient in late December 2000 when a nursing home visitor said ‘I bet you have some fresh stuff.'” Although the visitor later denied saying anything and no one else heard the comment, Allen said it had been made in a sexually offensive way and that she had felt intimidated when seeing the visitor on two subsequent occasions. Medical experts agreed that she had suffered psychological trauma over the incident. A freeholder who voted for the payment nonetheless termed it “bizarre” and said “This is what’s wrong with our legal system.” (W. F. Keough, “Visitor?s remark to worker at Crest Haven costs county $26,000 in compensation claim”, Press of Atlantic City, Jun. 23 (reg)).
In Ohio, doctors treating the elderly are being given an “ultimatum: Stop seeing nursing home patients or get no insurance at all. … Frank O’Neil, vice president of corporate communications for malpractice insurer ProAssurance, said the company has made it a policy to stop insuring doctors whose main business is nursing home care. The lawsuit climate in nursing homes, O’Neil said, is worse than any other area of malpractice law, ‘bar none.'” (Tracy Wheeler, “Insurers push doctors to drop older patients”, Akron Beacon Journal, Feb. 15) (via MedPundit, who also covers the Ohio malpractice crisis in posts dated Feb. 14 and Feb. 17). See also Tracy Wheeler, “State seeks solutions to rising insurance costs”, Akron Beacon Journal, Feb. 15. For more on nursing home litigation, see Dec. 17 and links from there.
State medical societies have expressed considerable ambivalence about proposals to proceed specialty by specialty on malpractice reform, starting with the hardest-hit areas such as obstetrics and emergency medicine, fearing that such measures might serve to divide the profession and allow politicians to say that they had “done something” after addressing only the most obvious crisis areas (“AMA vows united voice in battle for tort reform”, American Medical News, Jan. 5). At any rate, it seems the choice of such a compromise won’t be available at the federal level, since opponents have no seeming interest in it. This week the Senate’s Republican leadership brought back malpractice reform in a pared-down version intended just to address obstetric litigation, but no go: the 48-45 vote was pretty much the same as that by which omnibus reform had failed, falling far short of the 60 needed to overcome an expected filibuster by Democrats.
The Associated Press report on the vote (Jesse Holland, AP/DailyNews.com, Feb. 25) reported that “some conservatives” opposed the bill, but the conservative it quoted turned out to be Ken Connor, former head of the religious-right Family Research Council. What AP didn’t add is that Connor is not exactly your typical conservative, having made his fortune in Florida as a plaintiff’s lawyer suing nursing homes and having served as a tenacious legislative advocate for the interests of the trial bar before his stint at FRC (see Mar. 2-4, 2001).