Bloomington Personal Injury Lawyer - Medical Malpractice

Medical Malpractice Verdict a Lesson in Real Aspects of "Tort Reform"

Fred Schultz — Thu, 18 Jun 2009 17:12:13 GMT

An Indianapolis jury recently awarded $5 million to a woman who was misdiagnosed in the emergency room. This case is illustrative of several things. First, any verdict over $1 million is very rare, which is why it makes the news in the first place. Believe it or not, juries do not just hand money out like that.

Second, Indiana's Medical Malpractice Act limits the amount of money an injured person can receive in a malpractice case to $1.25 million per act of malpractice. Therefore, even though this jury believed that the harm suffered by the injured person was worth $5 million, the award is automatically reduced by the judge after the fact. It's really unfortunate. Our system of justice allows juries to decide whether a criminal charged with murder should receive the death penalty, but we don't trust juries to award the appropriate amount of money in a civil case.

The third reason this case caught my attention is because the act of malpractice occurred in 2000, nearly nine years ago.

Roxxanna Smith, then 18, arrived at the emergency room in July 2000 with a ruptured diaphragm after playing softball. But through a series of miscommunications about what was shown by X-rays, her lawyers said, doctors instead diagnosed a urinary tract infection and muscle strain -- and sent Smith home.

Her condition deteriorating, she saw doctors several times over more than two weeks. Emergency surgery confirmed the correct diagnosis, court documents say, and resulted in the removal of a third of her stomach.

The reason malpractice cases like this can take so long is because Indiana's Medical Malpractice Act forces cases to undergo an enormously time consuming Medical Review Panel process. My experience has been that the panel review process adds at least two or three years to the normal lenghth of time it takes to resolve cases. Often times, it takes even longer than that to get a case through the panel process.

Essentially, what happens is that the lawyers in the case must submit medical records and depositions to a panel of three doctors with the same or similar specialties to those who are being sued for malpractice before ever formally sueing the defendant medical provider in court. As easy and reasonable as that might sound, it takes a very long time, and is extremely biased in favor of the defendant health care provider.

The panel process is biased for a very simple reason. We are all human, and we all have biases and opinions. We all have a tendency to want to help a friend or colleague. Health care professionals are no different. My experience has been that if a panel can find even a lame excuse to find in favor of the medical professional, they will. Don't get me wrong. I have good friends and family members who are physicians. I'm just saying that there is a basic human tendency to look the other way when being asked to judge a colleague's conduct.

Essentially, the real winners in the way the current system is set up are the insurance companies who write medical malpractice policies in Indiana. They are limited in the amount of coverage they have to provide, they can virtually ignore people who have been horribly injured or suffered the loss of a loved one because of malpractice, and the medical providers they insure face a medical review panel of their peers who often find ways to look the other way.

The real losers are not only plaintiffs in malpractice suits, but patients as well. Over 90,000 people every year die from preventable acts of malpractice. Instead of capping damages and making litigation egregiously difficult for those who are wrongly injured, we should focus efforts on reducing the number of acts of malpractice in America.

I would love to see changes made to indiana's Medical Malpractice Act. However, the only people who can make changes are the Indiana General Assembly. To learn more about Indiana's Medical Malpractice Act, and to contact your State Representative, go to www.in.gov.

Originally posted at InjuryBoard by Fred Schultz

Hospitals Report Medical Errors - Not the Full Story

Fred Schultz — Thu, 21 Aug 2008 15:47:58 GMT

I recently read an article in the Bloomington Herald Times about medical error reporting. According to the article, Bloomington Hospital reported only two errors in 2007, while Monroe Hospital did not report any errors within the last year. Hospitals reporting clear medical errors to state agencies has become mandatory. This is a very good thing because the information can be used to both track performance of various medical facilities, and to work on improvements to hospital protocols in order to prevent future incidents. And, while I would love to believe that only two acts of malpractice occurred in our local hospitals in 2007, the statistical probability of this is so low that I think we need to talk about it.

Since Jan. 1, 2006, all hospitals and surgery centers in the state have had to report 27 types of preventable errors each year to the state health department, which then publishes them on its Web site — www.in.gov/isdh. The 2007 errors are expected to appear on the Web site in the next two to three weeks.

Included in the list of errors that must be reported are operating on the wrong body part or wrong patient, leaving a foreign object in a patient, and using a wrong drug that results in death of disability.

My primary concern with this story is that it seems to significantly underestimate the likely number of acts of malpractice. There are numerous studies that suggest the rate of medical errors are much, much higher nationally. Several reputable sources, including various federal agencies have found that preventable medical errors cause over 90,000 deaths in the United States every year. Addressing the reality that preventable medical errors occur, and occur more often than we would like to admit, is extremely important so that we can identify the cause of the errors and prevent future ones from occuring.

As many as 98,000 Americans still die each year because of medical errors despite an unprecedented focus on patient safety over the last five years, according to a study released today

First, not all acts of medical negligence get reported. In fact, most do not. All hospitals in Indiana, like Bloomington Hospital and Monroe Hospital are required to report medical errors that fall within specifically enumerated categories, but the individual physicians are not required to follow such reporting requirements. In fact, physicians only report medical errors if they voluntarily admit to having committed malpractice, or are found to have committed an act of malpractice by a judge or jury.

Second, there are many instances where a medical mistake can occur but not be reported. For example, a physician or hospital staff member may not think they have committed an error, when in fact they have. Also, its quite possible that a physician or hospital staff member simply chooses not to report the incident.

A Harvard study has estimated that medical malpractice occurs in one percent of patients who receive medical care. Assuming these numbers are correct, literally, one in one hundred patients each day, in every hospital and clinic suffer from a medically negligent act. Using this statistic, the probable acts of medical malpractice in our local hospitals are likely considerably larger than two acts during all of 2007.

Don't get me wrong, I am not picking on hospitals or physicians. My brother-in-law is a board certified family physician, my mother has worked as a physical therapist for over forty years. As far as our local hospitals, my son was born at Bloomington Hospital and I couldn't have asked for better care for my wife and child. I just believe that it is important to address the reality that medical negligence occurs far more frequently than the article in the Bloomington Herald Times would suggest. After all, the whole point of disclosing medical errors is so that they can be prevented in the future.

If a person finds themselves the victim of a medical error, its important to know the law. Indiana has very strict state laws that govern most medical malpractice claims. First, in most instances, the injured party or their surviving family has to file a claim with the Indiana Department of Insurance. Then, the case is eventually reviewed by a panel of three physicians who review evidence that is submitted to them by both the patient's attorney and the attorney for the doctor or hospital. The panel then determines whether, based on the evidence they have reviewed, they believe malpractice occurred. Once the panel has reached its conclusions, then the claim can be filed in state court.

Originally posted at InjuryBoard by Fred Schultz

Study Shows Pediatricians Rarely Lose Malpractice Lawsuits

Chrissie Cole — Mon, 02 Jul 2007 09:49:10 GMT

A new study by Indiana University researchers says pediatricians rarely lose medical malpractice lawsuits.

Despite concerns about the increase in lawsuits, the study found that claims against pediatricians have remained stable across two decades. Additionally, these types of cases tend not to make it to trial.

Sixty-eight percent of the cases brought against pediatricians in the last two decades were either dismissed or withdrawn without payment, according to the study. Approximately twenty-seven percent were settled for the plaintiff and five percent of claims went to trial and four out of five verdicts favored the pediatrician, the study found.

"What was most surprising to us and should be of some comfort to doctors is that . . . the majority of cases just go away with no payment made whatsoever," said Dr. Aaron E. Carroll, an assistant professor of pediatrics at the IU School of Medicine and a co-author of the report.

"As a pediatrician, I don't want to minimize the fact that every case is traumatic for doctors, but our data show that the reality is probably less serious than people have been led to believe," he said.

The study reviewed data from 1985 to 2005 from the Insurer Association of America, whom represents approximately one third of all malpractice claims throughout the United States. During that time, there were 6,363 claims against pediatricians.

This study is one of the first to accurately display what is happening with pediatrics and malpractice.

Originally posted at InjuryBoard by Chrissie Cole

"Liability Crisis" Survey fares well for Indiana

Christina Cole — Tue, 02 Jan 2007 12:58:56 GMT

The American Medical Association says that Indiana is relatively doctor-friendly in comparison when it comes to state laws that govern malpractice suits and medical liability.

The AMA says the Hoosier state is among eight other states in "stable" condition in what it describes as the country in a "medical liability crisis."

The survey claims excessive malpractice awards are forcing doctors out of practice and limiting patient access to medical care within 17 states, which rates as being in a "crisis." Michigan, along with 25 other states, are in a "cautious" condition.

Indiana lawmakers approved medical liability reform way back in 1975 when Dr. Otis Bowen, a physician from Bremen, was governor.
The law put a cap on total damages (now $1.25 million) and established a statewide compensation fund that limits the liability of individual physicians.

Originally posted at InjuryBoard by Christina Cole