Category Archives: California

October 2019 Newsletter

Alarming rise in premiums highlighted in Medical Liability Monitor The annual Medical Liability Monitor rate survey highlighted a rate increase, not seen in over a decade, and shed light on how the future of liability rates could begin sounding industry alarms. The 2019 Medical Liability Monitor Annual Rate Survey, for the first time since 2006, found that more than 25 percent of medical professional liability (MPL) premium rates increased, while only five percent of rates went down. The overall rate increase year over year was approximately 0.8 percent. The uptick led analysts to study whether or not the conditions exist for a repeat of the cost crisis that occurred in the mid-2000s, with annual rate increases averaging between 10 and 30 percent. Notably, rate increases for general surgery were found to be greater than the average increases. Guest editors of the survey edition, Bill Burns and Alyssa Gittleman from the Insurance Research Department of the global investment management firm Conning, did a deeper dive into the results. According to a press release issued by the Medical Liability Monitor, Gittleman and Burns “compared current market conditions to those which preceded the last hard market. They note similarities between the two in…

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Physicians increasingly face “hybrid” medical liability claims

SOURCE: American Medical Association California physicians are increasingly facing “hybrid” lawsuits alleging professional negligence as well as medical battery from plaintiffs who want to avoid the state’s long-standing $250,000 limit on what juries can award for noneconomic damages in medical liability cases. A jury recently awarded $22,246 in economic damages and $9.25 million in past and future noneconomic damages to a plaintiff who tried this approach, with the court refusing to apply limits set in California’s Medical Injury Tort Compensation Reform Act (MICRA). The physician defendant is appealing the ruling and the Litigation Center of the American Medical Association and State Medical Societies joined with the California Medical Association and two other groups to file an amicus brief urging the appellate court to apply the law’s $250,000 cap. That should be done because the plaintiff’s claims were based on the same set of facts for a single act by a single surgeon—facts that wholly fit within MICRA’s “professional negligence” definition. The brief filed in the Court of Appeal of the State of California, 4th Appellate District, Division Two, cites more than a dozen published appellate decisions where plaintiffs pursued hybrid claims, noting many unpublished decisions as well. “The result, when…

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September 2019 Newsletter

Longer statutes of limitation could invite in lawsuit abuse A challenge to Kentucky’s longstanding statute of limitations on medical liability lawsuit filings could open the door for additional litigation – and medical lawsuit abuse. A case is currently pending before the Supreme Court of Kentucky, seeking permission for a lawsuit to continue outside the statute of limitations under a narrow doctrine intended to apply in situations where continuous care is provided after an instance of negligence. In this case, the plaintiff is challenging that the statute of limitations should be waived anytime a patient is receiving follow up care from any health care provider at the same institution. Ruling in support of expanding that window would have negative repercussions. The Litigation Center of the American Medical Association and State Medical Societies, along with the Kentucky Medical Association, filed an amicus brief with the court. The brief detailed the effect overturning current law would have in permitting patients with lifelong conditions such as diabetes or asthma who receive continuous follow up care to be able to file lawsuits indefinitely. “Such a result would destroy the predictability and certainty essential to the ‘peace and welfare of society’ that the General Assembly sought…

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Coalition launches MICRA ballot initiative with backing from wealthy trial lawyer

SOURCE: POLITICO SACRAMENTO — A deep-pocketed lawyer and a coalition led by Consumer Watchdog are launching a November 2020 ballot initiative that would multiply the amount medical negligence victims stand to receive in court, potentially resurrecting a political dogfight involving attorneys, hospitals and doctors. Opponents of the Medical Injury Compensation Reform Act, passed in 1975, are seeking to pass a November 2020 ballot initiative that would index the legal payout cap for inflation — initially raising it to $1.2 million for people injured as a result of what’s referred to as “non-economic” damages such as pain and suffering, loss of limbs or hearing and wrongful death, according to a document obtained by POLITICO. The coalition estimates it will need $4 million to gather signatures and qualify the initiative. The effort comes nearly five years after another MICRA initiative was roundly defeated amid opposition from major health industry groups. Three initiative filers said they’re getting involved because they’ve been personally affected by the cap and are expected to submit the “Fairness for Injured Parents Act” Thursday. Trial lawyer Nick Rowley said the lungs of his own infant son were “blown up” as a result of medical malpractice. He told POLITICO he…

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Legal reform advocates point to medical malpractice figures in New York, Pennsylvania

ALBANY, N.Y. (Legal Newsline) – Experts who have watched medical malpractice lawsuits skyrocket in states like New York, Rhode Island and New Jersey say lawmakers have made it too easy and attractive to sue and reform must happen. “New Yorkers once again pay more for medical liability than anywhere in America,” Tom Stebbins, executive director of Lawsuit Reform Alliance of New York told Legal Newsline. “Sadly, Albany recently made matters worse by approving legislation that expands liability and makes it easier to file lawsuits.” The “2018 Medical Malpractice Payout Analysis” released March 1 by Diederich Health Care, a medical liability insurance and consulting company based in Carbondale, Illinois, includes figures comparing medical malpractice rates among states. Among Northeast states, New York topped the list for the most malpractice cases with a total approximate $617,973,000 in payouts with Pennsylvania second at $342,093,300, and New Jersey third with $267,913,250. The lowest in the Northeast were the District of Columbia with $11,498,500, Delaware with $8,253,250 and Vermont at the bottom with $1,536,500. Among Midwestern states, Illinois was far in the lead with $300,790,050 in payouts with Michigan second at $77,072,200. The lowest Midwestern states were Wisconsin at $13,527,100, North Dakota with $3,505,000 and…

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AMA Studies Show Continued Cost Burden of Medical Liability System

The American Medical Association (AMA) today released a new series of trend reports in its Policy Research Perspective series illustrating the price Americans pay for the nation’s broken medical liability system. “Information in this new research paints a bleak picture of physicians’ experiences with medical liability claims and the associated cost burdens on the health system,” said AMA President David O. Barbe, M.D., M.H.A. “The reports validate the fact that preserving quality and access in medicine, while reducing cost, requires fairness in the civil justice system. Every dollar spent on the broken medical liability system is a dollar that cannot be used to improve patient care.” The first report analyzes medical liability claims frequency among patient care physicians in the U.S. and finds that getting sued is virtually a matter of when, not if, for physicians. Highlights in the report include: Getting sued is not an uncommon event for physicians. More than a third of physicians (34 percent) have had a claim filed against them at some point in their careers. Because older physicians have been in practice for a longer time and thus have had more exposure, the probability of getting sued increases with age. Nearly half (49.2 percent) of physicians…

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December 2017 Newsletter

Year-end report sheds light on “Judicial Hellholes” The American Tort Reform Association (ATRA) end-of-year “Judicial Hellholes” report offers a public glimpse at the most unfriendly jurisdictions for those defending themselves against civil litigation, including medical liability lawsuits. At the top of the list this year was Florida, where once-strong medical liability reforms have been continuously rolled back at the expense of patients seeking affordable and accessible care. “This year, thanks to a state high court majority’s barely contained contempt for the policy-making authority of the legislative and executive branches of government, and a notoriously aggressive and sometimes lawless plaintiffs’ bar, Florida earns the ignominious #1 ranking among eight Judicial Hellholes…” said American Tort Reform Association president Tiger Joyce. Also high on the list was St. Louis, where “antiquated rules have made it a favorite of personal-injury lawyers shopping for big-money verdicts” resulting in $300 million in awards since 2015. However, recent changes in state government, including a governor in support of changes to the liability system, do hold promise for much-needed reform in the coming year. To read more about ATRA’s “Judicial Hellholes” executive summary and report on the where physicians and defendants fare the worst when it comes to…

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Top cases show physicians had a forceful ally in the courts

One thing physicians from Florida to Hawaii had in common in 2017 was that the Litigation Center of the American Medical Association and State Medical Societies had their backs. The Litigation Center was involved in legal battles that helped prevent an insurance mega-merger, protected physicians’ right to free speech, and fought back on multiple fronts against attempts to sidestep or peel back established state liability reforms. But it was a case involving the staff at a hospital in rural California that may have attracted the most attention. Case signaled threat to end medical staff independence in California. In Tulare Regional Medical Center Medical Staff v. Tulare Local Healthcare District et al, the Litigation Center provided significant legal and financial support after the hospital’s board of directors voted to terminate the medical staff organization, remove elected medical staff officers, install a slate of appointed officers and approve new medical staff bylaws and rules without staff input. “This case serves as an existential threat to independent hospital medical staffs,” said Long Do, California Medical Association (CMA) legal counsel and director of litigation. Just before closing arguments were scheduled in October, Tulare filed for Chapter 9 bankruptcy. As part the process, the hospital…

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High Court’s Contempt for Lawmakers’ Authority, Lawsuit Rackets Place Florida atop Latest ‘Judicial Hellholes’ List

WASHINGTON, D.C., December 5, 2017 – The American Tort Reform Foundation issued its 2017-2018 Judicial Hellholes® report today, naming courts in Florida, California, Missouri, New York, Pennsylvania, New Jersey, Illinois and Louisiana among the nation’s “most unfair” in their handling of civil litigation. “With both this annual report and a year-round website, our Judicial Hellholes program since 2002 has been documenting troubling developments in jurisdictions where civil court judges systematically apply laws and court procedures in an unfair and unbalanced manner, generally to the disadvantage of defendants,” began American Tort Reform Association president Tiger Joyce. “This year, thanks to a state high court majority’s barely contained contempt for the policy-making authority of the legislative and executive branches of government, and a notoriously aggressive and sometimes lawless plaintiffs’ bar, Florida earns the ignominious #1 ranking among eight Judicial Hellholes, even as authorities have begun to crack down on some of the lawsuit industry’s most obviously fraudulent rackets. “Ranked #2 is perennial hellhole California, where lawmakers, prosecutors and plaintiff-friendly judges inexorably expand civil liability at the expense of businesses, jobseekers and those desperately in need of affordable housing,” Joyce explained. “The good news is the U.S. Supreme Court in June reversed a…

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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…

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