Category Archives: National

November 2017 Newsletter

Physician opinions: medical liability lawsuits and impact on care Holding strong opinions about the current liability climate, its impact on patient care, and the way to discourage medical lawsuit abuse, physicians weighed in on the way toward comprehensive medical liability reform. Surveying over 4100 physicians across more than 25 specialties currently practicing in the US, Medscape captured the prevailing thoughts of physicians who bear the brunt of a broken system that costs too much, takes too long, and undermines their relationship with their patients. With 55 percent of those taking part in the survey responding that they had been named in a medical liability lawsuit, specialists across surgery and OB/GYN practices were found to be most likely to be sued. Eighty-five percent of respondents in each specialty noted that at one point or another in their careers, they were forced to spend countless hours on defense preparation and in court for lawsuits, that, 40 percent of the time, took between one to two years to resolve. As a result, 45 percent of physicians report that the threat of medical liability lawsuits are on their mind all or most of the time – a driving factor in the practice of defensive…

Read More

Court Stays Order Striking Down Medical Review Panel Law

FRANKFORT, Ky. (AP) — The Kentucky Court of Appeals has stayed a lower court’s ruling striking down a state law requiring a panel of doctors to review medical malpractice cases before going to trial. Franklin County Circuit Judge Phillip Shepherd’s Oct. 30 order prevented state officials from enforcing the law. Republican Gov. Matt Bevin’s administration asked the appeals court for an emergency stay until the case can be heard on appeal. The court noted 89 cases are pending before the medical review panels, and if it did not order a stay, the statute of limitations would expire on at least one of those cases. Bevin spokesman Woody Maglinger said the Bevin administration is encouraged by the ruling and is ready to resume enforcing the law.

Read More

Florida Supreme Court tosses out part of state medical malpractice law

TALLAHASSEE– Saying that changes approved by lawmakers “have gashed Florida’s constitutional right to privacy,” a sharply divided Florida Supreme Court on Thursday rejected parts of a controversial 2013 medical-malpractice law. Justices, in a 4-3 decision, said the 2013 law — which involved an issue known as “ex parte” communications between doctors and defense attorneys — could lead to the disclosure of patients’ private health information that is unrelated to malpractice cases. The law dealt with the process in which defense attorneys gather information in medical-malpractice disputes and their conversations with doctors who treat plaintiffs for reasons unrelated to the alleged malpractice. The 2013 law would allow such conversations, at least in certain circumstances, to occur outside the presence of the plaintiffs’ attorneys. Opponents of the law argued that such “ex parte” communications could lead to violations of patient privacy. “Even the possibility that a person’s extremely sensitive private medical information will be exposed is the type of governmental intrusion that the Florida Constitution protects against because it is impossible to know if an inadvertent disclosure occurred when the meetings are not only ex parte and without a judge, but also secret without a record,” Justice R. Fred Lewis wrote in…

Read More

Judge strikes down new Kentucky law creating medical review panels

Dealing a major blow to efforts to curb supposedly frivolous malpractice claims, a judge has struck down a new Kentucky law creating medical review panels to screen such cases before they go to trial. In a ruling Monday, Franklin Circuit Judge Phillip Shepherd found the law passed this year by the Kentucky General Assembly is unconstitutional, because it restricts the right of people to plead their cases in court. “The effect of the medical review panel process is not the reduction of frivolous negligence claims, but rather, the erection of barriers to the court system,” Shepherd’s order said. “Those that cannot afford the additional delays and costs should not be prevented from pursuing their constitutional right to a ‘remedy by due course of law.’ ” Shepherd’s order bans the state from enforcing the law that requires a three-member panel of health professionals review medical malpractice claims before a lawsuit is filed. Gov. Matt Bevin, a Republican, signed the bill into law, and his administration touts it as “the first step toward tort reform” on the website of the Cabinet for Health and Family Services, which administers it. A Bevin spokeswoman said Monday the administration will challenge Shepherd’s decision. “We are…

Read More

October 2017 Newsletter

Oklahoma Supreme Court ruling could lead to medical lawsuit abuse Patients and physicians in Oklahoma could face a deteriorating liability climate in the coming years, as the state Supreme Court recently ruled against an effective liability reform. This setback to accessible and affordable care is the third time the Supreme Court has ruled against a certificate of merit requirement, following several revisions to past legislation which had also been invalidated by the Court. The latest version of the reforms included expanding the scope of expert witness affidavits to include all civil negligence actions which required testimony by an expert, following previous rulings that the law put a higher burden on victims of professional negligence than victims of general negligence. “We believe the certificate of merit has been an important legal reform that helped prevent baseless lawsuits, and we will look carefully at our options and next steps to address today’s ruling,” said Wes Glinsmann, executive director of the Oklahoma State Medical Association. Without an umbrella of federal reforms, medical liability at the state level has too often been a game of one step forward, two steps back, as reforms are passed and then continuously challenged by the personal injury lobby….

Read More

Law written to deter frivolous malpractice lawsuits declared unconstitutional

A state law designed to deter the filing of frivolous medical malpractice lawsuits was declared unconstitutional Tuesday by the Oklahoma Supreme Court. This is the third time the state Supreme Court has struck down similar legislation. In each case, the Legislature attempted to deter frivolous negligence lawsuits by requiring the person filing the lawsuit to include an affidavit from an expert witness attesting that the claim has merit. “The obvious purpose of the affidavit requirement reflects the Legislature’s desire to weed out non-meritorious negligence claims,” the Supreme Court noted. However, all three rejected versions of the state statute created “a costly, meaningless and arbitrary barrier to court access,” the Court said. Justices also ruled that the rejected statute was an unconstitutional special law that “impinges on the district court’s adjudicative authority.” Legislatively removing “the discretionary component in (the) adjudicative process is a usurpation of the courts’ freedom that is essential to the judiciary’s independence from the other two branches,” the Supreme Court said. Wes Glinsmann, executive director of the Oklahoma State Medical Association, expressed disappointment in the ruling Tuesday. “We are in the process of reviewing the ruling but, at first glance, it certainly appears to be a disappointing step…

Read More

Arkansans for Jobs and Justice Launches Campaign for Real Tort Reform in Arkansas

A coalition representing a diverse group of Arkansans has joined together to support commonsense reforms that will help make Arkansas more competitive with surrounding states and protect everyday Arkansans. Paperwork was filed today for Arkansans for Jobs and Justice to advocate for the passage of SJR8. The committee will be anchored by the Arkansas State Chamber of Commerce with leadership from the Arkansas Medical Society, The Poultry Federation, Arkansas Health Care Association and Arkansas Trucking Association. “It’s time to once again level the playing field in Arkansas with commonsense reforms that strike a balance between protecting the rights of everyday Arkansans while creating an environment of economic growth and job creation in Arkansas,” said Randy Zook, President of the Arkansas State Chamber of Commerce. “Unfortunately, the progress made on tort reform in 2003 has been stripped away, piece by piece, over the last 14 years by the Arkansas Supreme Court, making a constitutional amendment necessary. The passage of SJR8 by the voters of Arkansas will make Arkansas more competitive with surrounding states while still protecting the right to a jury trial and damages.” The legislative effort for the tort reform measure passed in 2003 was led by the Arkansas Medical…

Read More

‘Sorry’ doesn’t mean they’ll sue: How hospitals avoided lawsuits after adverse events

Communication-and-resolution programs (CRP) at four Massachusetts hospitals led to lower medical liability costs and improvements in patient safety after adverse events, countering concerns that telling patients about errors would motivate more to file lawsuits. Led by Stanford University health law professor Michelle Mello, PhD and published in the October issue of Health Affairs, the study evaluated programs implemented at six hospitals run by either Beth Israel Deaconess Medical Center or Bayside Medical Center. Their CRP protocol, called CARe (Communication, Apology and Resolution) was introduced in their large level 1 trauma centers (Beth Irael’s 672-bed Boston facility and Baystate’s 716-bed facility in Springfield, Massachusetts) as well as two Baystate community hospitals. The protocol was used in all clinical settings for all adverse events. When events met (or when a patient alleged they met) a severity threshold, it was included in the evaluation. That threshold was any event which caused harm to a patient which either led to or extended a hospitalization, necessitated an invasive procedure or resulted in at least three outpatient visits. If an investigation finds significant violations in the standard of care, the CARe protocol calls for providers and liability insurers apologize to patients and proactively offer compensation. The…

Read More

September 2017 Newsletter

Liability concerns drive up defensive medicine, cost of care Providing treatment above what is medically necessary to fend off the threat of a lawsuit continues to be a trend – and a major driver of health care cost increases. A study of over 2100 physicians conducted by Johns Hopkins University found that more than two-thirds of respondents believe that 15-30% of tests, procedures, and prescriptions were unnecessarily recommended. The reason? Liability concerns. Over 80% of the physicians surveyed cited the fear of medical liability lawsuits as the justification for practicing defensive medicine. “Addressing overtreatment can have a major impact on rising healthcare costs in the U.S.,” the authors wrote. “Using the Institute of Medicine’s estimate of excess costs arising from overtreatment, a 50% reduction in ‘unnecessary services’ would result in $105 billion in savings each year, or about 4% of total national healthcare spending.” With a patchwork of laws leaving uncertainty about the liability climate from state to state, physicians surveyed recommended a series of changes that could help in the interim, including improved training on appropriate criteria for care, more accessible medical records, and evidence-based practice guidelines. To read more about the Johns Hopkins study on defensive medicine, click…

Read More

Physicians Say Up to 30% of Treatment Unnecessary

Despite years of emphasis on curbing costly and potentially harmful unnecessary care, physicians believe that overtreatment remains an ongoing problem, according to research from Johns Hopkins University published this week in the journal PLOS ONE. The findings, based on a survey of 2,106 physicians, revealed that most of those surveyed (64.7%) believe that at least 15% to 30% of medical care is unnecessary. Participants were from a subgroup of the American Medical Association’s Physician Masterfile. The top three “culprits” cited were: Tests (24.9%) Prescription medications (22%) Procedures (11.1%) “Unnecessary medical care is a leading driver of the higher health insurance premiums affecting every American,” said the study’s senior author, Martin Makary, MD, MPH, professor of surgery and health policy Johns Hopkins. Makary and colleagues also collected physicians’ opinions as to why overtreatment occurs, and found the following perceived reasons: Fear of malpractice (84.7%) Patient pressure/request (59%) Difficulty accessing medical records (38.2%) In addition, most respondents (70.8%) said they believed that physicians are more likely to perform unnecessary procedures when they profit from them. And most respondents believed that de-emphasizing fee-for-service physician compensation would reduce healthcare utilization and costs. The top three potential solutions for eliminating unnecessary services were: Training medical…

Read More