Category Archives: News

A doctor’s place is in the exam room

An orthopedic surgeon and a neurosurgeon walk into a room … Unfortunately, this is not the start of a joke. While we would prefer to be sharing best practices and treating patients in our exam rooms, the fact is we’re spending more time than we’d like in a courtroom. Because our medical liability system is broken, orthopedic surgeons, neurosurgeons, OB-GYNs and other specialty physicians continue to find themselves on the receiving end of meritless lawsuits. As a pediatric orthopedic surgeon practicing for more than 40 years in Iowa City, I’ve seen countless colleagues forced to defend their treatment decisions and reputations — leaving less time for patients — only for the lawsuits to be dropped, dismissed or withdrawn for lack of merit. Our medical liability system costs too much, takes too long, undermines the doctor-patient relationship and does not serve the needs of patients or physicians. Too often, the cost of defensive medicine — the tests and procedures above and beyond what is medically necessary to limit exposure to litigation — is tacked on to health care bills, leading to steep increases in costs year after year. When applied to 2015 health care spending, defensive medicine adds anywhere from $160…

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Commentary: Florida Supreme Court crowns itself fact-finder and policymaker on malpractice

On June 8, in North Broward Hospital District v. Kalitan, the Florida Supreme Court ruled that caps on noneconomic damages (pain and suffering) in medical malpractice lawsuits violated the equal protection clause. Mostly, the court said that the caps did not pass the “rational basis test,” where a challenged law must be rationally related to a legitimate government interest. By deciding the Legislature had no rational basis for imposing the caps, the court crowned itself fact-finder and policymaker, rejecting all of the Legislature’s work and its role under our system of government. Under the rational basis test, the court is supposed to defer to the Legislature if there is any “rational basis” in the record. Here, the court found there was no conceivable rational basis for the Legislature’s action. Let’s take a look at the record. In 2002, the Governor’s Select Task Force on Healthcare Professional Liability Insurance spent months traveling around the state, listening to all interested parties, gathering relevant data, and analyzing trends. What they observed and documented was alarming: In 2002, the average liability premium per doctor in Florida was 55 percent higher than the national average. For the period from 1996 to 2002, average insurance premiums in Florida…

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Medical malpractice tort reform: A remedy for ‘fairness’

While repeal-and-replace health care legislation sputters and stalls in the U.S. Senate, the House has advanced a medical tort-reform bill that could, by one estimate, save taxpayers at least $50 billion over 10 years. The Protecting Access to Care Act passed by a precariously slim margin. It now faces an uphill battle in the Senate. The legislation caps the gray area of medical malpractice lawsuits — noneconomic damages — at $250,000. Injured parties would still receive full compensation for measurable, economic harm, such as medical expenses and lost wages. Of course, the legal lobby is not going to sit still for legislation that limits these lawsuits. Democrat sympathizers already are bemoaning the injustice to mothers and children, who may not necessarily face economic losses such as lost wages. But “fairness” is elusive when punitive damages are, at best, speculative and subjective — if not inconsistent. Back in 2008, a comprehensive study by the Harvard School of Public Health found medical liability costs totaled $56 billion (or 2.4 percent) of all U.S. health care spending, according to The Heritage Foundation. Other studies show medical liability costs may account for up to 10 percent of all U.S. health care expenditures, Heritage reports….

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Wisconsin’s cap on medical malpractice awards unconstitutional, courts rules

Ruling that Wisconsin’s $750,000 cap on medical malpractice claims is unconstitutional, an appellate court said Wednesday that a Milwaukee woman who lost all four limbs should collect the $16.5 million for pain and suffering awarded to her and her husband. “We conclude that the statutory cap on non-economic damages is unconstitutional on its face,” Judge Joan Kessler wrote in the 19-page unanimous opinion by the three-judge First District Court of Appeals panel. Kessler added that “Wisconsin’s cap on non-economic medical malpractice damagesalways reduces non-economic damages only for the class of the most severely injured victims who have been awarded damages exceeding the cap, yet always allows full damages to the less severely injured malpractice victims.” The appeal involves the $25.3 million award given in 2014 to Ascaris Mayo, a 57-year-old mother of four who had her limbs amputated in 2011 after a Strep A infection — the kind that causes strep throat — went undetected, leading to septic shock. The damage caused by the infection led to the amputations.  Wisconsin law caps non-economic damages in medical malpractice cases at $750,000 but does not put a ceiling on the amount that could be awarded for economic damages, such as medical costs, which in Mayo’s case was awarded at $8.8…

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June 2017 Newsletter

  Patient access to care scores a win in Washington The passage of comprehensive medical liability reform legislation this week in Washington gives patients and physicians a win on access to affordable care. H.R. 1215, the Protecting Access to Care Act of 2017, passed the House by a vote of 218 to 210, and enacts reasonable limits on non-economic damages while modeling the common-sense reforms of states like Texas and California. According to the Congressional Budget Office, the comprehensive medical liability reforms included in H.R. 1215 would lead to cost savings of $44 billion over the 2017-2026 period for federal health care programs such as Medicare and Medicaid, and reduce the national deficit by almost $50 billion over the same 10-year period. The Protect Patients Now grassroots network was activated over the past month and was instrumental in gathering support for the bill. Nearly 650 emails were sent to members of Congress, with many others taking to Facebook and Twitter to advocate for support of medical liability reform. “Our broken medical liability system is one step closer to more efficiently and equitably compensating deserving patients and reducing the medical lawsuit abuse that undermines the physician-patient relationship,” said HCLA Chair Mike…

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Florida patients face uncertainty after liability reforms deemed unconstitutional

On Thursday, in a 4-3 decision by the Florida Supreme Court, a 2003 law setting caps on medical malpractice damages in personal injury cases was declared unconstitutional. The law, which was strongly supported by then governor Jeb Bush, limited non-economic damages in malpractice cases in which a patient was injured to $500,000, or $1 million if the injuries were catastrophic. At the time the legislation was passed Florida physicians were faced with skyrocketing malpractice insurance premium rates with many exiting practice in the state. The decision comes three years after the court struck down caps in cases where malpractice resulted in death. The four-member majority ruled that the caps on “non-economic” damages violated equal-protection rights, that the caps were arbitrary and that there is no proof that they reduced malpractice insurance rates. They also said that there is no existing malpractice insurance “crisis” to justify the caps. “We conclude that the caps on noneconomic damages … arbitrarily reduce damage awards for plaintiffs who suffer the most drastic injuries,” said the majority opinion shared by Chief Justice Jorge Labarga and justices Barbara Pariente, R. Fred Lewis and Peggy Quince. The three dissenting justices, Ricky Polston, Alan Lawson and Charles Canady, issued…

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Trial lawyers push bill for heftier fees in malpractice cases

Trial lawyers are trying to slip in a fast one in the waning days of the legislative session in Albany that would fatten their legal fees in medical malpractice cases. Lawyers can earn 30 percent of the first $250,000 recovered in medical malpractice recoveries, dropping to 20 percent of the next $500,000, 15 percent of the following $250,000 and 10 percent of any amount over $1.25 million. A bill introduced on Sunday by Senate Deputy Majority Leader John DeFrancisco (R-Syracuse) and Assembly Judiciary Committee Chairwoman Helene Weinstein (D-Brooklyn) would allow much heftier fees. The 30 percent cut would be applied to the first $1 million recovered, 25 percent of the next $250,000 and 20 percent of any amount over $1.25 million in cases decided by the end of 2019. The contingency fees then get bumped up even higher — 30 percent of the first $1.25 million and 25 percent of any amount over that — in cases decided before Dec. 31, 2020. And after Dec. 31, 2020, lawyers could collect the contingency fee percentage allowed in all other litigation — 33 percent of recoveries. “This is a gift to the trial lawyers. The bill would directly take money from injured…

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May 2017 Newsletter

  Liability reform cited as major savings in President’s budget With an emphasis on deficit reduction, the President’s 2018 budget highlighted how medical liability reform can lead to improved fiscal health. Cited as resulting in major savings and reform, medical liability reform is noted in the President’s budget as necessary due to the fact that “the current medical liability system does not work for patients or providers, nor does it provide quality, evidence-based care,” budget language states. The liability reform proposal in the budget contains proven state reforms that have lowered costs and increased access to care in states such as California, Texas, West Virginia, and Ohio. This allows for deficit reductions of $55 billion over 10 years upon passage of a bill that contains reasonable limits on non-economic damages of $250,000 (increasing with inflation), a three-year statute of limitations, and modifications on attorney’s fees to ensure deserving patients – not personal injury lawyers – benefit from liability judgments and settlements. To review the medical liability reform proposal contained within the President’s budget, click here. Panel discussion yields insights into future of liability reform Taking part in a legal panel on the future of medical liability reform, HCLA chair Mike…

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Oregon Court Ruling Opens Avenues for Defensive Medicine, Lawsuit Abuse

The Oregon Supreme Court on Thursday revived a patient’s medical malpractice suit accusing a hospital and doctors of depriving him of a chance of a full recovery from a stroke, saying such “loss of chance” theories are fair game in medical negligence cases. The state’s highest court unanimously overturned the dismissal of a suit alleging Drs. Linda L. Desitter and Michael R. Harris and Providence Hood River Memorial Hospital failed to properly follow up on patient Joseph Smith’s complaints of stroke symptoms which robbed him of a one-third chance at a full recovery in cases like his, had he received timely and proper treatment. The justices said in the context of Oregon common-law medical malpractice claims, loss of chance of a better medical outcome is itself a type of injury, rejecting the defendants’ arguments that such a ruling would be an improper relaxation of standards regarding causation, or that a health care provider’s alleged negligence caused a patient’s injury. “When the lost chance is the injury in a medical malpractice action, the plaintiff still bears the burden to prove that, more likely than not, the defendant’s negligence caused the plaintiff to lose the chance of a favorable medical outcome,” the…

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Liability Reform Brings Help to the Hawkeye State

Friday morning, Governor Branstad signed SF 465 — the IMS-crafted tort reform legislation. This legislation marks the culmination of decades of work by countless physicians throughout our state. “Today’s historic achievement is a victory for every physician, resident, and medical student in the state of Iowa. This success would not have been possible without the tireless work of so many individuals to give the house of medicine a strong voice in the legislative process. I am delighted to begin my tenure as President of the Iowa Medical Society with enactment of these sweeping reforms.” said newly-installed IMS President Joyce Vista-Wayne, MD, DFAPA. SF 465, which will take effect July 1, 2017, enacts the following reforms: A $250,000 Cap on Noneconomic Damages, With Some Exceptions Strengthened Expert Witness Standards A Certificate of Merit in all Medical Liability Suits Expanded Candor Protections A Brief History of These Reforms in Iowa Cap on Noneconomic Damages In 1975, California became the first state in the nation to enact a $250,000 cap on noneconomic damages. Shortly thereafter, IMS made its first attempt at enacting a similar cap here in Iowa. After nearly three decades of work, IMS championed the passage of a $250,000 cap on…

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