Chicago Injury Law Blog

Having a baby is a joyous experience. Every mother wants their child to be healthy. Imagine a mother's consternation in the realization that her baby has Down Syndrome. And imagine her reaction when she is informed that she has the power of prevention.

Previously, only women over 35 had amniocentesis and chorionic villus sampling tests in addition to the typical blood test and ultrasound for detection of the disease. This precaution for older women is associated with higher risk of having babies that test positive for Down's.

To provide mothers with the option of prevention, new guidelines published in January by the American College of Obstetricians and Gynaecologists (ACOG) urge all women to have the same comprehensive tests at their 20th week or earlier. Before the amendment, younger mothers were only screened at their 20th week with blood tests.

The new guidelines are mostly advantageous. The new tests are more accurate and give mothers more time to decide what to do. However, they also carry a slight risk of miscarriage, and about 80% of women who test positive for Down's have abortions. The latter statistic is particularly unsettling to advocates of Americans with the genetic disease.

In addition, caution must also be exercised in believing the doctor's statistics. In their zeal to catch Down syndrome early in the mother's pregnancy, many Arizona clinics have cited a figure that as many as one in four  40 year olds has a baby with the disease. Rather, academic research suggests the number is one in one hundred.

For more information, see www.economist.com/world/na/displaystory.cfm

"As many as 1.2 million hospital patients are infected with dangerous, drug-resistant staph infections each year, almost 10 times more than previous estimates, based on findings from a major new study.

And 48,000 to 119,000 hospital patients a year may be dying from methicillin-resistant staphylococcus aureus (MRSA) infections, far more than previously thought, the study suggests.

The Tribune obtained the results during the weekend from the Association for Professionals in Infection Control & Epidemiology (APIC), which is releasing the report publicly on Monday. The author is Dr. William Jarvis, former acting director of the hospital infections program at the Centers for Disease Control and Prevention."

Read the full article in the Chicago Tribune.

"When nurse Julie Thao put a spinal drug in Jasmine Gant's arm at St. Mary's Hospital in Madison a year ago, the fatal mistake struck many as a freak event.

But Thao's intravenous delivery of an epidural pain medication was an unusually public example of a quiet but dangerous health care problem: tubing misconnections.

At least 1,200 times in the past nine years, U.S. hospital workers have inadvertently given patients solutions meant to flow through one tube -- an IV, an epidural, a feeding tube, a bladder catheter, a blood line -- into another tube, frequently causing harm and sometimes death. The true tally is much greater."

Read the full article in the Wisconsin State Journal.

"When her 18-month-old daughter Josie died after a series of medical mistakes at Johns Hopkins Children's Center in Baltimore six years ago, Sorrel King was consumed by grief and anger, wanting to destroy the hospital and even end her own life. But with three other children to live for, she and her husband Tony decided they had to help fix a broken system.

"We had to do something good that would prevent this from ever happening to a child again," Ms. King says. When the hospital offered a financial settlement, Ms. King, a former fashion designer who had become a stay-at-home mom, asked Johns Hopkins to take some of the money back to start a children's safety program. She also created the Josie King Foundation to fund safety initiatives at other hospitals.

Now, to take the message to a broader audience of both consumers and medical professionals, she is launching a new Web site, josieking.org, with her own blog on patient safety; an online community where families can post their medical-error experiences and provide emotional support; advice from medical and legal experts on how to avoid error and deal with it when occurs; and resources for hospitals seeking to improve safety."

Read the full article on the Wall Street Journal Online.

"It's midnight in Charleston, South Carolina, and something has gone terribly wrong in room 749 of the Medical University of South Carolina Children's Hospital. The patient, Lewis Blackman, is a 15-year-old boy recovering from surgery to correct a relatively common birth defect called pectus excavatum, or sunken chest. The condition is not life-threatening and never seemed to slow Lewis down. A whiz in every school subject, he acted with the South Carolina Shakespeare Company and, at age seven, appeared in a long-running TV commercial for Sun-Drop soda with Dale Earnhardt. But a sunken chest can sometimes lead to respiratory difficulties, so Lewis and his parents decided to go for a minimally invasive surgical correction: inserting a metal strut to support the breastbone.

Three days after the surgery, Lewis should be feeling better. Instead, despite doses of a powerful painkiller called Toradol, the boy is racked with agonizing pain -- "five on a scale of five," he pantingly tells his mother, Helen Haskell, an archaeologist. Oddly, the pain seems centered in his abdomen, not his chest. Nurses are certain the boy is suffering from gas, a diagnosis reinforced earlier that evening by Dr. Craig Murray, the chief resident on call. Dr. Murray had stopped by and prescribed a suppository for what he believed was probably constipation, a common problem after surgery."

"The study ("No Basis for High Insurance Rates") shows that the med mal insurers are gouging doctors, padding their pockets with excessive premiums and driving up the cost of health care. These same insurance companies have of course been blaming high premiums on a so-called "malpractice crisis" that doesn't exist. We have an insurance crisis, not a medical malpractice crisis – and this report sets the record straight."

Read the full report here.

"Likened to "body snatchers" by Orange County's top prosecutor, three doctors were arrested Wednesday for their alleged roles in an elaborate insurance fraud scheme in which hundreds of patients across the U.S. were recruited to undergo unnecessary procedures in exchange for money or low-cost cosmetic surgeries.

The arrests bring to 17 the number of people named in the "rent-a-patient" scam allegedly operated out of Unity Outpatient Surgery Center in Buena Park.

Michael C. Chan, a Cerritos obstetrician, William W. Hampton, a Seal Beach surgeon, and Mario Z. Rosenberg, a Beverly Hills gastroenterologist on staff at Cedars-Sinai Medical Center, are accused of performing more than 1,000 unneeded procedures on 940 patients, then billing insurance companies an estimated $30 million for the work."

Read the full article in the LA Times.

Here is a moving story printed at cbs2.com:

"In a shocking report, more people die from medical mistakes each year than from highway accidents, breast cancer or AIDS. And in California, a little known law puts a price tag on what the state says your life is worth. Now, a Simi Valley family blames a local hospital's errors for robbing their daughter of her young and innocent life.

"She died in my arms," Jodi Gonzalez said. "The doc kept coming over and putting the stethoscope to her heart. 'Why do you keep doing that?' She said, 'The heart is still beating and we have to record the time of death.' See, she didn't want to die."

In the very same UCLA hospital Delaney Lucille Gonzalez was born in, just 16 months later, the toddler would die in.

"The next thing you are at the mortuary, you are picking out little coffins for your daughter… little coffins for your daughter," said Delaney's father Daniel Gonzalez.

Delaney was with Treacher Collins Syndrome, a rare disorder that causes physical abnormalities of the head and face.

The Gonzalez family never treated their bouncing baby girl, they lovingly nicknamed "Laney the ladybug," any different."

" An umbrella activist group calling for insurance reform released a study Wednesday in an attempt to refute the claim that out-of-control litigation prompted medical malpractice insurance rates to skyrocket in recent years.

Americans for Insurance Reform says annual insurance industry numbers show that the amount of money paid for medical malpractice settlements, verdicts and legal defense has remained relatively flat for almost two decades, when adjusted for inflation and accounting for the growing number of doctors nationally.

According to the study — which based its findings on information from A.M. Best & Co., an insurance industry analyst firm — the total amount of money paid was almost $4.9 billion in 2005 nationally. The study calculated that to be a payout of $5,400 dollars per doctor, the lowest since 1981 when adjusted for inflation.

The study's author, a former government official, said those numbers indicate that the rising insurance rates that drove doctors to leave Madison and St. Clair counties can't be the result of the active trial bars of the Metro East area. Instead, market-related forces — poor performance in investment bonds — and bad insurance company management are to blame, said J. Robert Hunter, a former federal insurance administrator during President Gerald Ford's administration. He is now with the Consumer Federation of America.

"The insurance companies have incentives to blame the lawyers," Hunter said. "Otherwise they'd have to blame themselves for mismanagement of economic cycle."

Many state laws keep doctor histories safe from public review. This is especially the case when considering peer review reports. However, the sketchy past of an OB/GYN doctor in Texas was revealed after a long (and ongoing) court battle.  As you read the following except from TheEagle.com, keep in mind that this doctor still practices.

"According to Ellison's ruling, 16 of Benson's patient charts were reviewed by ACOG in 2001, and 'all 16 were rated unsatisfactory.' Eleven charts were found to be unsatisfactory in both documentation and management, the ruling states, while three others were found to be unsatisfactory only in documentation and two were cited solely for unsatisfactory management.

'Specifically, the ACOG report cited surgery that was not indicated, poor judgment in laparoscopic procedures, not anticipating complications, poor clinical management demonstrating substandard care that does not reflect ACOG's guidelines, poor management potentially exposing the mother and infant to [physician-induced] injury and questionable surgery performed in a patient with a presumed absence of her gynecological organs,' according to a footnote in the judge's ruling.

'The ACOG report concluded that Dr. Benson's charts exhibited a trend of 'grossly inadequate documentation' and that there were consistent indications of inadequate care,' the judge wrote. 'The ACOG report also concluded that Dr. Benson appeared to be 'unwilling or unable to accept peer review as an educational process.''

It is likely known by all doctors, but very few will admit: Greed subverts healthcare.  The following is an article in the Portsmouth Herald Local News about a brave doctor who is telling it like it is.

"Dr. Terry Bennett, the controversial and opinionated Rochester physician who has traveled the world practicing medicine -- including a stint as physician to the Saudi royal family -- does not have high hopes that a fix can be found for the country's broken health care system.

The reason, he contends, is that the amount of money involved in the system brings out one of the more negative human attributes -- greed.

"Unless and until these extraordinary costs unique to the United States are squashed into manageability, there is too much greed and too little control of greed being exercised," said Bennett, a Harvard Medical School graduate, who operates a practice that bases its fees on the ability of his patients to pay. "It does not matter what politician suggests what plan --- Republican or Democratic, that plan will fail."

There are four primary reasons for Bennett's pessimism: the educational debt carried by new doctors; the practice of hospitals "owning" the physicians who are affiliated with them; extraordinarily high prescription drug costs; and the advent of health management organizations, which have assumed a middleman position between patients, health care providers, pharmaceutical companies and hospitals."

Believe it or not, some state laws forbid the disclosure of medical errors.  Below is an article from a Colorado woman seeking disclosure of medical mistakes:
"GOLDEN - The loss of her only son still a sharp wound, Patty Skolnik is determined to make Colorado the 16th state to publicize malpractice judgments against doctors.

Skolnik, of Centennial, appeared at a news conference Tuesday where Health Grades announced it has gone online with the first national data base with information on malpractice settlements against doctors. Information on malpractice judgments, settlements and arbitration awards against doctors from 15 states is available at www.healthgrades.com.

Health Grades, which bills itself as the nation's largest independent health-care rating company, can only make available the information if the states don't shield it, said Sara Loughran, executive vice president."

Read the full article in the Rocky Mountain News.

This is an interesting article written in the Philadelphia Evening Bulletin, addressing the problem with hospitals getting in bed with the news media:

"Local television stations are now making deals with hospitals to air their propaganda disguised as news. Frankly, I don't understand this new development, as based on over 30 years of closely observing the local television scene, local stations have often run the propaganda of hospitals disguised as news. Here's how that long-standing scenario works: The local medical reporter gets cozy with the hospitals who feed the station what the hospital would like to think are the latest medical advances or other medical news of interest. The hospital comes up with the happy patients, the doctors who treated them and the hospital backdrop for shooting the story. The reporter puts the hospital's sales pitch on the air, and everyone is happy. The reporter gets a flow of medical stories that are easy to shoot and produce and the hospital gets free advertising."

"Americans for Insurance Reform (AIR) announced today the release of Stable Losses/Unstable Rates 2007, a new study that examines fresh insurance industry data to determine what caused the most recent medical malpractice insurance crisis for doctors.  The study by AIR, a coalition of over 100 consumer and public interest groups representing more than 50 million people, finds that the insurance crisis that hit doctors between 2001 and 2004 was not caused by claims, payouts or legal system excesses as the insurance industry claimed."

This week two Florida doctors that got hammered with a $217 million medical malpractice verdict are turning the table: on their own attorneys.  Claiming that the attorneys failed to properly advise them of $1 and $3 million dollar settlement offers by the plaintiff, the doctors suing for professional negligence, fraudulently concealing information, and failing to properly advise. 
Of course, the doctors would have quickly settled the case, but the defense lawyers are not paid by the doctors, they are paid by the insurance company.  The insurance company absolutely refused to settle.  One doctor has stated that he was pressured by attorneys to essetially perjur himself on the stand or his case woud be "indefensible and that he would be looking at a $20 million judgment against him."
You can read the facts here, but the doctors committed gross negligence and the case should never have gone to trial.  However, the medical liability insurance company involved in the case stuck to the industry standard of delay, deny, and defend.  Unfortunately, the defense attorneys in the case performed as essentially lackeys for the insurance company, and were forced to try the case.  Big mistake.  Now they are looking down the barrel of their own malpractice suit.  Nonetheless, the malpractice insurance carrier committed the real malpractice and fraud in refusing to settle the claim.

People in 'tort reform' states, such as Texas and Illinois, are coming to realize their folly. In Texas, tort reform measures were voted on by the public. Insurance companies spent millions to misinform the public, and the public supported the measure. Now, it is coming back to haunt them. Below is an excerpt from the Austin Chronicle:

"Back in 2003, 71-year-old Alvin Berry of Copperas Cove went to the doctor for a routine prostate screening. He was told his antigen levels were elevated, so his doctor referred him to a urologist for a follow-up. The urologist, however, told Berry not to worry. Seven months later, Berry's antigen levels had skyrocketed – he had developed prostate cancer, and it was too late, the cancer had already spread to his bones. He was given five years to live. Unfortunately, reports the consumer-advocacy group Texas Watch, in 2003 Berry had also voted in favor of Proposition 12 – the sweeping "tort reform" package that severely limited the ability of individuals to avail themselves of the legal process and to sue in cases of medical negligence (what tort reformers – read, insurance companies – prefer to call "frivolous lawsuits") – and with its passage, discovered that now he was left without the ability to seek legal redress for his doctor's deadly oversight. 'We'd voted on something,' Berry told Texas Monthly in 2005, 'and we really didn't know what the facts were.'"

"A hospital van dropped off a paraplegic man on Skid Row, allegedly leaving him crawling in the street with nothing more than a soiled gown and a broken colostomy bag, police said.

Witnesses who said they saw the incident Thursday wrote down a phone number on the van and took down its license-plate number, which helped detectives connect the vehicle to Hollywood Presbyterian Medical Center, the Los Angeles Times reported on its Web site.

Police said the incident was a case of "homeless dumping" and were questioning officials from the hospital.

"I can't think of anything colder than that," said Detective Russ Long. "There was no mission around, no services. It's the worst area of Skid Row."

Read the full story at CNN.com.

"Doctors' sloppy handwriting kills more than 7,000 people annually. It's a shocking statistic, and, according to a July 2006 report from the National Academies of Science's Institute of Medicine (IOM), preventable medication mistakes also injure more than 1.5 million Americans annually. Many such errors result from unclear abbreviations and dosage indications and illegible writing on some of the 3.2 billion prescriptions written in the U.S. every year."

Read more here. 

Let us add doctor fraud to the pot when discussing the rapid rise of healthcare costs and insurance premiums.

" The Illinois attorney general's office claims that more than 20 Chicago-area radiology centers engaged in a widespread scheme to win referrals for MRIs by paying illegal kickbacks to doctors.

Read the full article in the Chicago Tribune.

Our friends at Public Citizen released a report dispelling the myths associated with the medical malpractice 'crisis'. Are malpractice suits driving up the cost of healthcare? No. The answer is even more simple: medical malpractice.
"The real problems are a lack of attention to patient safety, the high incidence of preventable medical error and the lack of accountability for a small set of doctors who account for a majority of medical malpractice payments, the report reveals. The report also presents several recommendations for Congress, state governments and hospitals to reduce health care costs and save lives."

Read the full report here.

The doctor in the article below testified on behalf of  the plaintiff in a medical malpractice action against a VA Hospital.  It sounds like there were some discrepancies in his deposition testimony regarding his experience as a heart surgeon.  Clearly stuff of cross-examination, but the feds did not stop there: they indicted him for it.  I am not sure who prompted the indictment, because it appears the charges are actually for defrauding the plaintiff's attorney of expert witness fees.  Even if that is the case, the chilling effect of indicting doctors for false testimony in a civil trial far outweighs any benefit from charging them criminally.

"Alex Zakharia, 68, a Miami-Dade heart surgeon for more than 30 years, is facing criminal charges in Detroit for perjury and fraud.

The doctor was indicted by a federal grand jury, which alleged that he exaggerated his qualifications about his experience doing open-heart surgery while giving a deposition for the plaintiff in a Michigan malpractice case, in which the federal government was the defense.

Zakharia told The Miami Herald on Monday that the defense lawyers didn't understand him, he didn't exaggerate and the issue of his experience wasn't even material to the central subject in the case, which he said involved botching the presurgery tests of a patient."

Victims of medical malpractice in Oklahoma could not have asked for a better Christmas present.  The Oklahoma Supreme Court recently struck down the states malpractice reform laws as unconstitutional.  Below is an excerpt from the opinion which rings true to all states:

"Another unanticipated result of statutes similar to Oklahoma's scheme has been the creation of a windfall for insurance companies who benefit from the decreased number of causes they must defend but which are not required to implement post-tort reform rates decreasing the cost of medical malpractice insurance to physicians^.  These companies happily pay less out in tort-reform states while continuing to collect higher premiums from doctors and encouraging the public to blame the victim or attorney for bringing frivolous lawsuits."

Read the opinion here.

"Infections acquired in hospitals, which take a heavy toll on patients, arise mainly from poor hygiene in hospital procedures, not from how sick patients were when they were admitted, according to three new studies.

The studies, published yesterday in the American Journal of Medical Quality, provide new evidence for experts who argue that hospitals could prevent many of the growing number of infections that afflict patients nationwide, cost billions of dollars to treat and are responsible for thousands of deaths each year."

"Infections acquired in hospitals, which take a heavy toll on patients, arise mainly from poor hygiene in hospital procedures, not from how sick patients were when they were admitted, according to three new studies.

The studies, published yesterday in the American Journal of Medical Quality, provide new evidence for experts who argue that hospitals could prevent many of the growing number of infections that afflict patients nationwide, cost billions of dollars to treat and are responsible for thousands of deaths each year.

'It's the process, not the patients,' said David B. Nash, the journal's editor and chairman of the Department of Health Policy at Thomas Jefferson University in Philadelphia. 'These three groups independently found that despite hospitals' claim that in the sickest patients it's inevitable that someone is going to get a hospital-acquired infection, that's just not the case.'"

Read the full article in the Washington Post.

One of the benefits of the Democrats taking over Congress this fall is that we may be hearing less and less of the medical malpractice "crisis" in this country. To be sure, Congress will focus its attention on legitamate crisis issues, or at least those with factual support.
Alas, the damage has already been done at the state level in many states including West Virginia.  The result? More money for the insurance companies by taking away an injured party's right to the courts.

"Medical malpractice insurance in West Virginia, once a money-losing business, has become a profit machine for insurers as the number of lawsuits filed against doctors has declined, a report by the state Insurance Commission shows.

Medical malpractice insurers made twice as much money as they spent in West Virginia last year. These insurers' profit margin is higher than the national average for medical malpractice insurers, the report said.

Doctors have benefited as well. West Virginia Mutual, the state's largest medical malpractice insurer, cut its rates by an average of 5 percent and plans another 15 percent cut in January, said Bill Kenny, deputy director of the Insurance Commission and the report's author."

Read the full article in the Charleston Daily Mail.

"TAMPA - Seven months after he was found guilty of falsely diagnosing dozens of people with cancer and subjecting them to unnecessary surgery, Michael Rosin apologized to the patients who put their trust in him.

"I'm terribly, terribly sorry," Rosin said during his sentencing hearing in U.S. District Court on Wednesday. "I hope before they make a final decision about me they will be patient, they will be forgiving and they will not be overly strict or harsh as they form their opinion."

But Rosin's tearful apology didn't sway the victims who attended his final hearing or U.S. District Judge William Castagna, who sentenced the disgraced Sarasota dermatologist to 22 years in prison."

Read the full story in the St. Petersburg Times.

The following is an exerpt from an excellent book addressing the falsities surrounding medical malpractice lawsuits.  It is written by Tom Baker and appropriately titiled "The Medical Malpractice Myth."

All this is because medical malpractice litigation is exploding. Egged on by greedy lawyers, plaintiffs sue at the drop of a hat. Juries award eye-popping sums to undeserving claimants, leaving doctors, hospitals, and their insurance companies no choice but to pay huge ransoms for release from the clutches of the so-called “civil justice” system. Medical malpractice litigation is a sick joke, a roulette game rigged so that plaintiffs and their lawyers’ numbers come up all too often, and doctors and the honest people who pay in the end always lose.

This is the medical malpractice myth.

Built on a foundation of urban legend mixed with the occasional true story, supported by selective references to academic studies, and repeated so often that even the mythmakers forget the exaggeration, half truth, and outright misinformation employed in the service of their greater good, the medical malpractice myth has filled doctors, patients, legislators, and voters with the kind of fear that short circuits critical thinking."

"When defects are common, they can feel normal—inevitable. Instead of trying to fix them, people accept them. For a lot that is wrong with health care today, that is exactly the situation—even though the Institute of Medicine reports that as many as 100,000 people die each year in hospitals from avoidable errors. These errors aren't invisible. Many nurses, doctors, patients and families are all too familiar with what went wrong in care despite the best efforts of the clinicians. But if completely preventing errors seems a hopeless task, why even try?

Recent experience—at first from just a handful of hospitals, but now from hundreds—shows that this pessimism is unfounded. Many kinds of errors can be completely eliminated; "zero defects" is possible. Some hospitals are, for example, achieving once impossible success at eliminating certain kinds of infections and medication errors. There is no reason these successes can't be widely replicated, maybe everywhere.

In 2000, the Robert Wood Johnson Foundation, in cooperation with the Institute for Healthcare Improvement (IHI), challenged hospitals to apply for grants to help them "pursue perfection" in their safety, reliability, patient focus, waiting times and efficiency. More than 200 hospitals applied; seven were chosen as grantees in what became the Pursuing Perfection Project. After five years, each was still far from "perfect," but their achievements clearly raised the bar for all U.S. hospitals."

Read the full story at MSNBC.com

"A lawsuit filed in federal court against Hilton Head Regional Medical Center and a former cardiologist, James D. Johnston, alleges the hospital performed hundreds of medically unnecessary heart procedures from 1997 through 2000.

The suit also alleges that officials in charge of the hospital at the time were aware of the problem but allowed the procedures to continue because they were profitable for the hospital.

The suit was filed in September 2005 by a former physician, Dr. Bruce Lowman, who was director of the hospital's vascular laboratory starting in 1997. The case remained secret for 10 months until a federal judge unsealed it in July.

The suit was filed under strict provisions applying to federal "whistleblower" cases, which are aimed at recovering money paid by the government as a result of fraudulent claims. Such cases automatically are sealed after being filed to give the government time to decide whether to join as a plaintiff. In this case, the government decided against joining, but the private attorneys handling it are pursuing it anyway."

Read the full article in the Hilton Head Island Packet.

South Carolina is yet another state that has passed damage caps on non-economic damages and has not seen a drop in the amount of premiums for doctors. How many states are going to report this before everyone realizes that medical malpractice lawsuits are not the cause for increasing malpractice insurance rates?

"It's been a little more than a year since the state cap on malpractice pay-outs took effect, but both supporters and opponents say it will be years before its impact is felt -- if ever.

The law took effect in July 2005 and limits damages commonly known as pain and suffering to $350,000 per defendant and a total of $1.05 million if more than one provider is involved. It does not affect economic losses.

Supporters of the caps say they are needed to reduce high jury awards and frivolous lawsuits, which they say led to soaring malpractice premiums that have been driving doctors out of the profession.

Opponents say the premiums were so high to offset insurers' investment losses, artificially low premiums offered to attract business in the 1990s, and other industry factors. They also say caps hurt those who've suffered legitimate injuries."

Read the full article in the The Greenville News.

The tragedy of Ms. Beatrice Vance, who died in a ER waiting room chair of a heart attack, is criminal. A coroner's jury declared that the death is a homicide, resulting from gross deviations in the standard of care. The woman sat in the ER for two hours complaining of classic heart attack symptoms, but was found slumped over dead by the time the nurses got to her.
Clearly this sort of tragedy should never happen. However I would expect the same doctors and groups who successfully lobbied the passing of the damage caps in Springfield last year, to look for further liability protection from criminal lawsuits. Why not? If doctors and insurance groups want protection from civil liability, why not criminal liability also? Surely the same arguments reform groups used to pass the civil protections would apply to criminal protections: it would lower insurance premiums for doctors and hospitals. 
Of course this idea is ridiculous, but it is to emphasize the fact that attention needs to by put more on patient safety and less on protecting negligent doctors and hospitals and from civil (or even criminal) liability.

The following is a press release from the Illinois Trail Lawyers Association:

"Judy L. Cates, President of the Illinois Trial Lawyers Association, released the following statement today on the one-year anniversary of the enactment of Illinois's medical malpractice law (PA 94-677).

"One year after the Illinois legislature passed a civil justice restriction that would limit the ability of victims to hold hospitals and health care workers accountable for negligence, the law has done nothing to decrease premiums for doctors and everything to increase the insurance industry's already bloated bottom line. 

"Limiting what an Illinois patient, injured through no fault of their own, can seek from a negligent health care worker or hospital is unfair - the arbitrary, one-size-fits-all approach ignores the degree of negligence or harm inflicted on the patient.  Politicians should not be making decisions as to what an injury is worth.

"The civil justice system is many times the last resort for victims of medical negligence - with hundreds of thousands of people dying each year from medical errors, eliminating the right of victims to hold negligent health care workers and hospitals accountable leaves them with no avenue to seek justice and get the care they need and deserve."

Below are the facts:

In another example of gross medical negligence, a 49-year-old Waukegan woman died of a heart attack after being neglected for two hours in the waiting room of Vista Medical Center. The county coroner ruled the death a homicide, and the state attorney's office is considering pressing charges.
This is just another example of why doctors and hospitals should worry less about limiting victims' rights to the court, and more about patient care. 

Read more in the Chicago Tribune.

"...As debates over medical malpractice raged in Washington and across the country, many doctors have blamed a litigious system in the United States for discouraging doctors from openly admitting mistakes to patients. Those same doctors have held up the Canadian system, which drastically limits liability and discourages lawsuits, as a model. But it turns out that it's not the risk of lawsuits that zips doctors' lips but rather the 'culture of medicine' itself, say leading researchers on the subject. Canadian doctors are just as reluctant to fess up to mistakes, said Dr. Thomas Gallagher, a University of Washington internal-medicine physician and co-author of two studies published Monday in the Archives of Internal Medicine. They are the first to compare attitudes about error disclosure among doctors in the two countries."

Read the full article in the Seattle Times.

"Kids with leukemia treated as outpatients at Seattle Children's Hospital & Regional Medical Center have about a 1-in-5 chance of being given the wrong medication or the wrong dosage, a study being published today says.

Most mistakes the researchers found were trivial, although three could — but did not — cause problems for the children, said the lead researcher, Dr. James A. Taylor, professor of pediatrics at the University of Washington Medical Center.

Taylor said he was amazed at how well the doctors who prescribed treatment and the parents who administered the drugs did in the study.

Taylor's study is in today's issue of Cancer, a journal by the American Cancer Society."

Read the full article in the Seattle Times.

Recently, an article was brought to my attention concerning the state of affairs with large hospitals vis-a-vis patient care. It was the story of a man whose life was saved by his primary care physician, who works out of a small office with one other doctor and two dogs. The doctor became concerned about the man's acid reflux and sent him to a large corporate hospital for testing. The doctor who performed the tests told him that he would send a report to his primary care doctor and to call him to schedule a follow up appointment. Fortunately, the man's primary care doc called him shortly thereafter to inform him that he had a curable type of cancer.
Without the care of of his primary doc, the man's case could have lingered in the corporate hospital, delaying diagnosis and potential treatment.

Read the article here.

There is a lot of discussion regarding the implementation of a no-fault medical review board to handling medical malpractice claims. A parallel to workers compensation, the board would hear individual cases and make awards depending on the severity of the injury. However the faults we see with workers compensation would be magnified in the medical malpractice context. Consider the following except from a Virginia newspaper regarding that states medical review board:

"Families that depend on a state program to help their severely injured children asked the governor yesterday to replace key officials and rid the board of "irreconcilable conflicts of interest.

"On a day that several family representatives gained access to ongoing discussions that could chart the future of the state's birth-related injury compensation program, 20 families yesterday wrote Gov. Timothy M. Kaine that they have witnessed "underhanded tactics, outright dishonesty, and cruel insensitivity to our children from the program and its associates."

The tone of the letter is in sharp contrast to the impressions of some families reached by The Times-Dispatch last week who voiced support for program operations and are pleased with medical benefits that are projected to average about $2 million per child.

Kaine's office said the governor was reviewing the letter yesterday and had no immediate comment.

The letter to Kaine reflects growing tensions over the future of a program that at its outset 18 years ago was portrayed as an imaginative no-fault alternative to costly malpractice litigation; one objective was to preserve access to obstetrical health care, especially in rural areas."

A recent article in the New England Journal of Medicine argues that more lawsuits will decease the amount of medical errors. In fact, the article states, the current environment where malpractice victims' rights are under attack will only lead to more needless errors down the road.
Echoing what malpractice attorneys have been saying all along, article calls for a shift of focus ti corporate and hospital responsibility rather than limiting victims' recovery.

An 11 year old boy died from complications during a routine surgery to drain an abscess in the boys ankle. The Institute for Healthcare Improvement reported the event, citing careless medical errors and sloppy adherence to safety protocols during the surgery.
This is another tragic example of a failed system of safety procedures in some hospitals.
Had this occurred in Illinois, the recovery of the 11 year old in a malpractice action would by severly limited. The General Assembly passed caps on jury awards in malpractice actions to $500,000 for non-economic damages. Considering the economic worth of an 11 year-old, his recovery would have not far exceed this amount. Another example of how caps only work to pushish those severly injured by medical carelessness.

A new tactic taken by doctors and their insurers is to stifle testimony given by doctors on bahalf of injured plaintiffs. Many states require a doctor signature affirming a meritorius claim before a lawsuit can be filed, while all medical malpractice actions require expert testimony from a doctor stating how the defendant doctor was negligent.
By suspending or censuring doctors who testify on behalf of the injured, doctors and their insurers have found a way to deter doctors from testifying, thereby preventing a malpractice suit.
Fortunately, at least in North Carolina, this tactic will not stand.

Read the full decision here.

A new book written by a Connecticut Mutual Professor of Law and director of the Insurance Center at the University of Connecticut details the evidence show that in fact "the real problem is too much medical malpractice, not too much litigation." In "The Medical Malpractice Myth" the author, Mr. Tom Baker, cites mostly medical journals to lay out the case against the myth that litigation is driving up the costs of healthcare. He concludes that the "tort reformers" have a detrimental impact on patient safety.

Senators Hillary Clinton and Barack Obama joined forces to tackle the issue of Medical Liability Reform. Their answer? Putting patient safety at the forefront of the discussions. In an opinion piece published in the New England Journal of Medicine, the Senators clarify the legal systems role in bringing about changes for patient safety. They quickly dispel the notion that capping jury awards does anything to achieve this end. "Capping malpractice payments may ameliorate rising premium rates, but it would do nothing to prevent unsafe practices or ensure the provision of fair compensation to patients." They go on to detail their legislation for medical liability reform.

The full article may be found here.

The horrific stories of patients going in for surgery on one part of their body, only to have another part operated on, is on the rise. A recent article in USA Today. The horrors include mistakingly removing wrong limbs or organs, slicing into the wrong side of the body, or performing surgery on the wrong patients. A study published in the Archives of Surgery found the events on the rise, and although rare, is unacceptable.
Another facet to the problem is the fact that some hospitals don't report any of these types of events. Some states require their hospitals to report any such event. Other states do not require public disclosure of the mistakes.

"A Crossville, Tenn., oncologist blamed her nurses, her busy schedule and complicated billing procedures as she was sentenced to 15½ years in prison yesterday after shortchanging her patients of chemotherapy drugs.

But the family members of cancer patients under her care, in asking the judge to give Dr. Young Moon a maximum sentence, said her greed was the reason she shorted their loved ones of life-saving medications.

"It's one thing to lose your mom, and to find out it's because of malicious behavior just adds to it," a choked-up Diana DeWitt, 47, a Nashville musician, told U.S. District Judge Todd Campbell yesterday."

Read the full article in the Tennesean here.

The annual report filed by Illinois' largest medical malpractice insurer, ISMIE, shows that claim payments fell, while profits and executive pay rose last year.
The filing indicates that claims fell by 5.3%, the second drop in as many years. At the same time, salaries for executives increased by as much as 33%, with the CEO's pay increasing 4.5% to $1 million a year.
Let us not forget that ISMIE's battle cry for capping victim's damages in medical malpractice lawsuits was skyrocketing rates due to greedy lawyers. Not only have these caps not lowered premiums, we continue to see rates increase, almost as much as ISMIE's executive board's salaries.
The hard truth is that ISMIE succeeded in 'reforming' malpractice lawsuits, and continue to raise doctors' insurance rates. How any doctor is not infuriated by these numbers is a mystery.

Read the full story in Crain's Chicago Business here.

In the wake of the medical malpractice bill passed by the General Assembly last summer, Illinois largest medical malpractice insurer, ISMIE, was recently ordered to reduce rates charged to Illinois doctors. The medical malpractice reform law capped awards on non-economic damages, but also implemented new insurance regulation. As a result of these new regulations, ISMIE was subject to hearings regarding their corporate governance and rate increases last fall.
As a result of those hearings, the Illinois Department of Financial and Professional Regulation required ISMIE to implement and disclose the following:
-establish a dividend return program to return excess dividends or premiums to doctors
-cap the average premium rate increase for 2006-2007 and set a target rate of reduction of 3.5%
-give deep discounts to doctors who participate in education programs designed to improve quality of health care; and
-provide extensive date on how ISMIE establishes its rates and determines risks.
These new regulations constitute substantial reform in the malpractice insurance industry in Illinois. This type of regulation, and not limiting victims' rights by capping damages, will reduce the malpractice premiums charged to doctors.

Americans for Insurance Reform (AIF) recently released results of a study indicating that malpractice insurance rates have stopped rising. The study, performed by the Council of Insurance Agents and Brokers, indicated that the average rate hike for doctors over the last 6 months was 0 percent.

The most important result of this study is that the static rates occurred in both states with and without damage caps. Just another piece of evidence supporting the fact that damage caps on medical malpractice lawsuits have no correlation with fluctuating insurance rates.

An error during a common surgery aimed to reduce ear infections resulted in the death of four-year-old Harry Donnelly. While doctors were implanting ear tubes and removing his adenoids, his breathing tube became dislodged. The oxygen monitor had slipped off Harry's pinky finger, and no warning sounds went off. As a result, Harry went without oxygen for 36 minutes and ultimately died.

The Institute of Medicine at the National Acedemy of Sciences estimates that 98,000 deaths occur each year because of medical erors and negligence in U.S. Hospitals. We can only wonder the results if the time and money spent on lobbying to limit victims of malpractice rights was spent on looking to reduce medical errors.

Read more here.

President Bush said in his State of the Union Address on January 31, 2006, that “[a]nd because lawsuits are driving many good doctors out of practice -- leaving women in nearly 1,500 American counties without a single OB/GYN -- I ask the Congress to pass medical liability reform this year.”

The American Bar Association sent out a fact sheet the debunks the President's claim. According to data provided by the American Medical Association, the number of OB/GYN doctors has increased steadily over the last 30 years.
Furthermore, The General Accounting Office, the nonpartisen research wing of Congress, noted instances of ER and OB/GYN doctors leaving some rural areas. However, the GAO found these occurrances ‘in scattered, often rural, areas where [doctors] identified other long-standing factors [other than malpractice suits] that affect[ed] the availability of services.'

The full fact sheet may be found here.

New evidence keeps emerging that the medical profession has sold its soul in exchange for what can only be described as bribes from the manufacturers of drugs and medical devices. It is long past time for leading medical institutions and professional societies to adopt stronger ground rules to control the noxious influence of industry money on what doctors prescribe for their patients.

Last week two new cases came to light that reveal the lengths to which companies will go to buy influence with doctors, pharmacists and other medical professionals. Reed Abelson reported in The Times on Jan. 24 about a whistle-blower's lawsuit alleging that Medtronic had paid tens of millions of dollars in recent years to surgeons in a position to use and recommend its medical devices. In one particularly egregious example, a prominent Wisconsin surgeon received $400,000 for just eight days of consulting.

Read the full NY Times editorial here.

Galvanized by soaring malpractice insurance costs, Illinois physicians led the charge for the landmark tort reform law the General Assembly passed last year.

But they followed a road map charted a decade earlier by an unlikely ally -- cigarette giant Philip Morris, according to a company memo entitled the "1995 Tort Reform Project."

In pushing for tighter product liability laws, the memo's author called for the broadcast of three messages to the public: "David v. Goliath. Lawsuit abuse witnesses/poster children. Making the trial bar radioactive."

This document can be found among the millions of other records that Philip Morris posted on a special Web site devoted to previously secret insider records.

The Web site was created as part of the $246 billion settlement that tobacco companies entered into with 46 states in November 1998.

The Philip Morris documents shed light on a "dirty little secret" of the tort reform movement in Illinois and other states, said Joanne Doroshow, executive director of the Center for Justice and Democracy in New York City.

"Because the tobacco industry has been one of the principal architects of it," Doroshow said.

Read the full article in the Belleville Democrat here.

A recent survey performed by Public Citizen reveals that the D.C. Medical Society has grossly understated the number of obstetricians practicing in the Washington D.C. area. The new survey was prompted the Society's cry for tort reform due to the exodus of doctors. Much like reformists across the country, the Society demanded legislation that punishes victims to curb doctors fleeing the state to get away from lawsuits.
The Survey shows that there are over 40 percent more obstetricians practicing in the D.C. area than the number released by the Society.

Read the full article, as well as the methodology for the survey, here.

As more information is made public during the hearings for ISMIE, the state's largest medical malpractice insurer, the lengths to which the insurer will go to mask the reasons for skyrocketing malpractice rates become clear. ISMIE is currently before the Illinois Department of Insurance in an effort to increase their rates, only allowable with the Department's permission under the new medical malpractice law.
Testimony and records show that while ISMIE was raising premium costs by 120 percent, forcing some doctors from practicing in rural areas, they continued to extend big perks to ISMIE executives including:
• Big pay raises, including one that boosted [CEO] Lerner's 2004 yearly salary to nearly $1 million, the firm's annual reports show.
• Low-interest mortgage loans, including a $995,000 loan on Lerner's
4,800-square-foot home in Glencoe, a wealthy Chicago suburb, Cook County property records show.
• Nearly $5 million in deferred compensation to Dr. Don Udstuen, a top
lobbyist who pleaded guilty to taking part in a kickback scheme connected in testimony to former Gov. George Ryan.

Not to mention the huge amounts spent on political campaigns, also revealed in ISMIE records. Consider the statement by St. Clair County Medical Society's President Dr. Stephen Burger: "I just don't think [ISMIE] did a very good [public relations] job campaign to notify the general public, specifically the doctors, on how the operation actually works."
No kidding--how about execs stuffing their pockets without disclosing their "operations" to not only the public, but doctors as well.
In what hopefully with be the final blow to ISMIE's request to increase rates yet again, records also show that ISMIE exaggerated medical malpractice claims by including any policyholder that merely testified at trial as a "claim." Can ISMIE explain how this is misleading? Of course not.

Read more here.

Yet another study proving that skyrocketing malpractice insurance rates have only a tenuous relationship with malpractice lawsuits. The study, performed by the Foundation for Taxpayer and Consumer Rights, considered industry reported loses to actual payouts over a 8 year period from 1986 to 1994. The reported loses totalled nearly 40 billion, while the actual payouts were only 26.7 billion, a 31 percent difference. The insurance industry overstated their losses every year considered in the study.
Among other factors, insurers consider estimated losses when calculating premiums. The study shows that by overstating their losses, insurance companies can inflate their premiums well beyond what the market would otherwise support.

Read the full article here.

The Illinois General Assembly passed a law which will require all major medical errors, called "never events", to be publically reported. The law requires all Illinois hospitals and surgery centers to publically admit if they commit any of 24 types of "never events." Some of these events include: performing the wrong surgical procedure; leaving a foriegn object in someone's body; or discharging an infant to the wrong person.
Although they are called never events, they happen all too often. Minnesota, which implemented a similar law years ago, recorded 90 'events' at 30 hospitals, resulting in 20 deaths and four serious disabilities in a 15 month period.

Read the Sun-Times article here.

A review of cancer diagnoses from pathology tests at four hospitals found that up to 11.8% were in error, according to a study slated to appear in the Nov. 15 issue of the journal Cancer. Researchers at the University of Pittsburgh School of Medicine said because of the variety of detection methods used, they couldn't pinpoint the cause of misdiagnoses. They recommended standardizing tests and error reports as initial steps toward improving safety.

Get the full article here.

A recent study performed by the Commonwealth Fund, a non-for profit organization focused on independant research for health care issues, indicated errors occuring in over 30% of patients treated. U.S. patients participating in the study also reported the highest rate of disorganized care.
Even more disturbing is the fact that U.S. healthcare costs are amongst the highest in the world. Many of the patients involved in the study indicated that they did not visit their doctors as often as they should, or take their medication, because of high costs.
As patients continue to have their rights stripped away by state governments, we have to ask ourselves...do we have a lawsuit crisis in this country or a crisis of quality medical care?

Read more here.

How many reasoned voices will it take before people realize that skyrocketing malpractice rates are unrelated to malpractice lawsuits? The latest voice is Ken Conner, Chairman of the Center for a Just Society. The Society has a broad conservative agenda but still recognizes the importance of the civil justice system. Mr. Conner also served as Florida Governor Jeb Bush's attorney in the Terri Schiavo case.
Clearly Mr. Conner would not side with the Plaintiff's Bar on many issues, but he agrees with one. Malpractice insurance prices have no relation to actual insurance payouts.
Consider one of the facts that persuaded Mr. Conner. Healthcare Indemnity, Inc., charged doctors an extra $173 million even though the company's payouts had decreased by more than $170 million during the same timeframe. Mr. Conner states: "Of course, you'd never know those facts listening to the spin coming out of the insurance industry. The industry's clear strategy is to blame injured patients and their attorneys in order to deflect attention from their averice."
It takes bravery for a man in Ken Conner's position to come forward with the truth regarding skyrocketing malpractice rates. We can only hope that this becomes a trend.

I encourage everyone to read his entire statement found here.

In July, the U.S. House of Representatives passed a bill which limits the rights of patients injured by negligent doctors. The bill also limits the liability of drug companies and medical device manufacturers for putting dangerous products into the marketplace, and restricts actions against nursing homes and HMO’s.

Earlier this year, Gov. Blagojevich signed into law a medical malpractice bill that places caps on damage awards in malpractice actions. Signed under the guise of a lawsuit “crisis” in Illinois, the bill harms those injured who need compensation the most. Thankfully, the malpractice bill included controls on the insurance industry, and we shall see in the following years how these insurance companies have fabricated this “crisis” to fill their coffers.

Nonetheless, the federal bill passed in the U.S. House of Representatives places even further restrictions on the rights of the injured. And the bill does not stop with those injured by medical malpractice. The bill would also protect drug companies from full responsibility for putting dangerous drugs into the marketplace. For example, under the proposed bill, Merck’s liability for covering up the cardiovascular risks associated with Vioxx while spending hundreds of millions of dollars on direct to consumer advertising would by severely limited.

Clearly this bill is a slap in the face to consumers, and we encourage you to contact our Senators Richard Durbin and Barack Obama to express your disapproval to this bill.

Dr. Barry Schifrin was a well respected parinatologist and member of the American College of Obstretics and Gynocology (ACOG), up until he testified on behalf of the plaintiff in a medical malpractice action against another member of the ACOG. After his testimony, the defendant ob/gyn filed a complaint and censure against Dr. Schifrin with the ACOG citing unethical behavior while testifying. The ACOG hit Dr. Schifrin with a censure in February of 2004, and he has since resigned from his practice.
The problem here is that doctors are turning on their own and seeking to censure those who give plaintiff's testimony in malpractice actions. They see plaintiff friendly doctors as perpetuating the medical liability crisis (which in itself is a myth).
"What they're trying to do is blacklist experts so people can't exercise their rights in the civil justice system," said plaintiffS lawyer Robert Boyers of Hannon & Boyers in Florida, where the problem is especially prevelant.

The mother of a 23-year-old brain-damaged patient found to be pregnant while living in a Bloomingdale healthcare facility has sued the company and the doctor who cared for the woman, alleging abuse and neglect. Cheryl Hale-Crom, filed a civil suit in Cook County on alleging her daughter was sexually assaulted and physically abused by "agents and employees" of the Alden Village Health Facility for Children and Young Adults between November and December 2004. Hale-Crom's daughter, who has cerebral palsy and uses a wheelchair, is completely disabled and is fed through a tube. The woman was taken to a hospital June 11 after Alden workers and the woman's doctor, Roland Borrasi, noticed her stomach was swollen, according to the lawsuit. Alden workers allegedly believed she might have a feeding-tube problem, though one nurse reportedly said she might be pregnant. Tests revealed the woman was almost 29 weeks pregnant.

Read the full article in the Chicago Tribune here.