Day On Torts : Tennessee Injury Lawyer & Attorney : John Day : Personal Injury, Accidents : Serving Memphis, Nashville, Knoxville

Will the President sacrifice the rights of patients injured by medical malpractice to get Republicans to sign-off on a health care bill?

Steven Olsen explains why the President  should not in this article titled "Why Shouldn't Obama Throw Injured Patients Under the Bus to Get Heath Reform?  Ask Steven Olsen."

Steven Olsen is a malpractice victim from California.  Here is a letter written by the jury foreman after he learned that the jury's damage award was cut because of California's cap on damages.

We viewed video of Steven, age 2, shortly before the accident. This beautiful child talked and shrieked with laughter as any other child at play. Later, Steven was brought to the court and we watched as he groped, stumbled and felt his way long the front of the jury box. There was no chatter or happy laughter. Steven is doomed to a life of darkness, loneliness and pain.

He is blind, brain damaged and physically retarded. He will never play sports, work, or enjoy normal relationships with his peers. His will be a lifetime of treatment, therapy, prosthesis fitting and supervision around the clock...

Our medical-care system has failed Steven Olsen, through inattention or pressure to avoid costly but necessary tests. Our legislative system has failed Steven, bowing to lobbyists of the powerful American Medical Association (AMA) and the insurance industry, by the Legislature enacting an ill-conceived and wrongful law. Our judicial system has failed Steven, by acceding to this tilting of the scales of justice by the Legislature for the benefit of two special-interest groups....

I think the people of California place a higher value on life than this.

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The Tennessee Department of Commerce and Insurance has released the 2009 Medical Malpractice Claims Report.  Despite its title, the Report reveals data for calendar year 2008.

This is the fifth report issued by the Department and contains more different types of data than released in previous years because of a change in the reporting law.  Today I will report on some of the data and will address the balance in later posts.

In 2008, there were 3154 medical malpractice claims  closed in Tennessee.  (More than one "claim" can arise in a single case; a claim is defined as "a demand for money damages for injury or death caused by medical malpractice; or a voluntary indemnity payment for injury or death caused by medical malpractice.")  Of those claims 43 were resolved through ADR, 459 were resolved through settlement, 425 were resolved through judgment, and 2227 were otherwise resolved.

I do not understand the difference between those cases resolved by ADR and those resolved by settlement, given the difficulty settling any case without going through a mediation.  However,  the numbers appear to  tell us that  almost 70% (2227 out of 3154) of claims are dropped before suit is filed or by voluntary dismissal.  How do we know that?  Because we know the other 30% or so were settled or resulted in a judgment.

As indicated, 425 were resolved by the entry of a judgment.  How many were judgments for the plaintiff?  Five.  Just over one percent.  In other words, there were 420 claims resolved by judgment, and while the exact numbers are unreported it is reasonable to assume that many were resolved by summary judgment and a lesser amount by judgment for the defense after a trial.

The total amount of damages paid for the five cases in which a plaintiff received a judgment was $790,000, or just under $200,000 per claim.  The total damages received in the claims that were resolved by settlement or ADR was about  $118,500,00, or about $230,000 per claim.  

Payments of judgments were down over 90% from a year earlier.  Payments by settlement or ADR were about the same as they were in 2007.  

The largest reported judgment was $1,150,000.  Obviously, that judgment was not paid because it exceeds the total amount of damages paid for all judgments.  (if a case is settled post-judgment the amount is recorded as a settlement.)

There were 5,780 claims pending at the end of 2008.  

I will share more of the data contained in the Report in a later post.

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Here is the most up-to-date data on medical malpractice case filings in Tennessee.

Regular readers know that  effective October 1, 2008 the General Assembly imposed significant restrictions on patients who want to file a medical malpractice suits.  The new law, which was modified again effective July 1, 2009, requires pre-suit notice and the filing of a certificate of good faith.

For the 12-month period ending September 30, 2008, 644  medical malpractice lawsuits were filed in Tennessee.   A whooping 140 of those were filed in September 2008 as lawyers filed suits to avoid the burden and risks of filing cases under the new law.  If September 2008 were an average month, one would have expected only 45 cases to have been filed.

For the year ending September 30, 2009,  available data indicates that only 263 medical malpractice lawsuits had been filed.  (Note: several counties have not yet reported data for September 2009.  Final numbers will be available in a couple months.  I would be shocked if the total number of filings for the year ending September 30, 2009 would be more that 280.)

If one assumes that total filings for the year ending September 30, 2009 will be 280, medical malpractice filings are down 65%.

That percentage reduction is not really fair, however, because of the surge of filings in September 2008.  So, let's play with the numbers a little bit and see what we find.

Assume that all of the cases filed in September 2008 would have been filed even after the new statute came into effect and that, but for the new law, September 2008 filings should be re-adjusted to 45 - the average number of new lawsuits filed in each of the other months in that year.  Under that assumption, the adjusted total medical malpractice filings for the year ending September 30, 2008 were 549.

Next, assume that the other 95 cases filed in September 2008 would have been filed in the ordinary course in October -December 2008 or in early 2009.  Under that assumption, total medical malpractice filings for year ending September 30, 2009 would be 375 (assuming the final figures show total actual filings to be 280 plus the 95 hypothetical filings).  Under all of those assumptions, it would be fair to say that medical malpractice filings are down 32%.

This is a very conservative estimate.  Why?  First, it assumes that all of the cases filed in September 2008 under the old law would have been filed under the new law.   I think that is unlikely.   Second, it assumes that 36 medical malpractice lawsuits were filed in September, 2009, when available data tells us that only 19 were filed. 

It will take a couple years to get a completely accurate feel of how the new law has impacted medical malpractice case filings.  However,  at this time it is reasonable to say the new law has had a significant impact on case filings.  A reduction in the number of lawsuits is great for medical malpractice insurance companies and bad for insurance defense lawyers who defend malpractice cases.   In the short-run, a reduced number of filings is good for heath care providers. 

The impact on plaintiff's lawyers is that fewer lawyers will be handling these cases because the new law makes handling the cases more time-consuming, expensive and difficult.  In addition, anecdotal evidence tells us that, in an effort to reduce the loss of income from defending cases that are no longer being filed, defense lawyers will be working cases even harder, thus increasing the work on the lawyers for patients and decreasing the profitability of those cases.  As profitability decreases, only cases that have  substantial value will be filed, thus further impacting the ability of patients to seek legal redress for their injuries.

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HeathGrades studies Medicare patient care in our nation's hospitals based on 15 indicators of patient safety.   

Here are some highlights from the 2009 report representing data from 2005 -2007:

· There were 913,215 total patient safety events among 864,765 Medicare beneficiarieswhich represents 2.3 percent of the nearly 38 million Medicare hospitalizations.

· These patient safety events were associated with over $6.9 billion of excess cost.

· The overall incidence rate remained virtually unchanged compared to last year’s study(except the failure to rescue indicator for which there were major methodological changes).

· Eight indicators showed improvement over the course of the study.  Complications of anesthesia, death in low mortality DRGs, failure to rescue, iatrogenic pneumothorax, selected infections due to medical care, post-operative hip fracture, postoperativehemorrhage or hematoma, and transfusion reaction showed improvementranging from 2.3 percent to 52.0 percent.These eight indicators accounted for 14.5 percent of the total patient safety eventsduring the study period.

· Seven indicators worsened over the course of the study. Decubitus ulcer (bed sores), post-operative physiological and metabolic derangements,post-operative respiratory failure, post-operative pulmonary embolism (potentially fatalblood clots forming in the lungs) or deep vein thrombosis (blood clots in the legs), postoperativesepsis, post-operative abdominal wound dehiscence, and accidental punctureor laceration all worsened with changes ranging from a one-percent increase in events to23.4 percent.These seven indicators accounted for 85.5 percent of the total patient safety eventsduring the study period.

Other interesting data:

· There were 97.755 actual inhospital deaths that occurred among patients who experienced one or more of the 15 patient safety events.

· 92,882 of these deaths could be directly attributable to a patient safety event.

· Hospitals that had received a Patient Safety Excellence Award had a 43% lower risk of experiencing patient safety incidents.

· If all hospitals had performed at the same level as the award winners, 22,771 deaths could have potentially been avoided and $2.0 billion would have been saved.

· Award winners in Tennessee are Baptist Riverside, Cenntennial, Memorial (Chattanooga), Northcrest (Springfield), St. Thomas, Vanderbilt and Williamson Medical Center.

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The Commercial Appeal wrote an interesting story on medical malpractice litigation in today's paper.  Read it here.

An excerpt:

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.

I was interviewed by the reporter and gave him the data that readers of this blog have seen about how few medical malpractice claims are filed in relation to the number of malpractice injuries and deaths and how the new statute has impacted the number of case filings.   He was kind enough to accurately quote me on one point:

"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."

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Every day, more than  5 Tennesseans die as a result of medical malpractice.

How do I know such a thing?  Simple math.  The Institute of Medicine has reported that 98,000 people a year die from medical malpractice.  Think about it:  the death rate from medical malpractice  is the equivalent of a large commercial airline crash every day that results in the death of 268 people.

The USA has about 300,000,000 people.  Tennessee has about 6,000,000 citizens, or 2% of the total.  Assuming that the rate of medical errors that result in death in Tennessee is no better and no worse than anywhere else in the country,  1960 Tennesseans die every year as a result of medical malpractice (2% x 98,000).  And that works out to 163 people per month.  That is the equivalent of a commuter jet crash in Tennessee every week that results in the death of about 40 people.

The deaths of 163 people per month equates to over 5 deaths per day.  If a carload of high school students were killed every day of every week of every month for an entire year do you think it would make the news?

Remember that the Institute of Health number does not include injuries from medical malpractice. One study reports the numbers of injuries at 1,500,000 per year.  

So, how many medical malpractice lawsuits are filed each month?  Since the medical malpractice law changed effective October 1, 2008, a total of 222 medical malpractice lawsuits have been filed in the state.  That is about 22 per month.  For reasons I have expressed before, the filings in the early months after the statute were passed  are not representative of what will occur in the future, and I think that we will see about 40 cases per month in August and September.  If another 80 cases are filed, the total for the year since the new law was passed will be 302. Remember, the number of deaths in that period totaled 1960.

Here are some of the filing numbers from the larger counties in the State:

• Davidson        56
• Shelby             55
• Knox                31
• Hamilton          2
• Sullivan             8
• Washington     8
• Rutherford        8
• Anderson          5
• Wilson               4
• Madison            6

A total of 34 counties had one or more medical malpractice filings.  Some 61 counties had no filings in the ten-month period ending July 31, 2009.

In the year ending June 30, 2008, there were 537 medical malpractice case filings for injuries and deaths.  Thus, it appears that filings for the year that ended September 30, 2009 will be down about 44%.  My prediction was that filings would be down about 40% as a result of the new law - I was a little off.  My guess is that filings will increase slightly next year, but I still predict that filings in the year beginning October 1, 2009 will be less than 400.

One last point.  The medical malpractice notice and certificate of good faith statute changed again effective July 1, 2009. .  If you don't regularly do medical malpractice work but plan to file one of these cases, I suggest you read my article about how to give notice under the new law.

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This column from the Business Section of today's Los Angeles Times attacks the myth that restriction of the rights of patients to hold health care providers responsible for harming patients must be a part of national healthcare reform.  

An excerpt: 

Every circus needs a sideshow, which must be why every time the issue of rising medical costs gets debated, politicians start clamoring for "tort reform."

The article explains who wins if patient's rights are restricted.  Here is on example:

How great a business is malpractice insurance nationwide? At American Physicians Capital (an insurer active in the Midwest), claims were falling so fast in 2007 that its chief executive publicly compared his underemployed claims managers to "the Maytag repairman." The next time you find yourself nodding in assent while some politician carries on about tort reform, remember that its benefits will go to characters like this.

Thanks to Brandon Bass for bringing the article to my attention.

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The Tennessee Supreme Court has ruled that a plaintiff who lost a medical malpractice case in federal court was not estopped from pursing a case against a State-employed doctor even though the federal court jury assigned no fault to the doctor, a non-party in the federal court action.

An excerpt:

We have determined that the proceeding in federal court did not provide Ms. Mullins with a full and fair opportunity to litigate her medical negligence claims against Dr. Mejia. It is undisputed that Ms. Mullins could not, as a matter of law, recover monetary damages from either Dr. Mejia or the State in the federal proceedings. Common sense also dictates that it would have been foolhardy for Ms. Mullins to press her claim that Dr. Mejia had been negligent in the federal proceeding because doing so would have diluted the strength of her claims against the remaining defendants and would have profited her little in later proceedings against Dr. Mejia. [Footnotes omitted.]

The case is Mullins v. State of Tennessee, No. E2007-011130SC-R11-CV  (Tenn. Sept. 30, 2009).  Read the full opinion here.   The opinion will be discussed in more detail in the November edition of the Tennessee Trial Law Report.

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I recently wrote this post about the certificate of merit law struck down by the Washington Supreme Court.  Here is an editorial from The Olympian  which supports the Court's decision.

Here is an excerpt:

The justices were right to keep the barrier between the legislative and judicial branches of government. They were equally correct to strike down the barrier to malpractice lawsuits.

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