Medical Malpractice

According to Forbes. the Supreme Court of Oklahoma struck down a tort reform package the Oklahoma legislature passed in 2009.  The single law included numerous tort reform provisions, including a cap on non-economic damages and the requirement that an expert affidavit be filed with the petition in certain negligence cases.

The Supreme Court ruled that the law violated a constitutional requirement that a bill deal with a single subject.  The purpose of the law is to prevent a lawmaker from adding provisions to a bill that a lawmaker would feel log-rolled into agreeing with, in order to pass the provisions of the bill the lawmaker agrees with.

This news comes just days after a report out of Tulsa, by KJRH, that two more of Dr. Scott Harrington’s patients have tested positive for hepatitis.  If you have not previously seen the reports, Dr. Harrington is a dentist in Oklahoma who infected 80 patients with HIV and hepatitis, by using unsanitary conditions, including the use of dirty needles on patients.  The doctor is protected by damage caps the Oklahoma legislature put on these types of negligence cases.  The nearly 7,000 patients the doctor treated and the untold number of people infected by his horrible practices (negligent acts), are not able to obtain full redress for their injuries because of what the Oklahoma legislature has done.

The action of the Oklahoma Supreme Court, in striking down this onerous law, is a positive step in the right direction for the people of Oklahoma.

The family of a Philadelphia man who passed away in 2006 was awarded a verdict of $2.185 Million after a jury found two doctors and a hospital liable for medical malpractice, according to a story on

Zachary James, the decedent, presented to the hospital with chest, back and leg pains.  Tests were ordered in the emergency room, but it took two hours for some of the tests to be performed.  About two hours into the event, the lead emergency room doctor left the emergency room for a meeting, leaving a doctor who was starting his first day in the emergency room as the only physician in the emergency room.  The new doctor was supposed to be in orientation and not left alone to handle the emergency room by himself. 

X-rays were taken of Ms. James, but were not read in the emergency room when they were developed.  Hospital procedure dictated ER physicians were to read the x-rays immediately.  Instead, the x-rays were sent to radiology where they were reviewed the next day. 

Mr. James passed away after spending eleven hours in the emergency room with no diagnosis.  He had a dissecting aortic aneurysm, a tear in the wall of the aorta that allows blood to flow between the aorta wall’s layers, and can result in a rupture of the wall, and death. 

The defense argued that even if the hospital Emergency Room physicians had quickly identified Mr. James’ condition, there still may not have been enough time to transfer him to another hospital to perform a life saving surgery.  The jury found the two doctors 84% liable and the hospital 16% liable for the damages.

There is a new story on which discusses new evidence that malpractice damage caps are not a fix for high health care costs.  The argument advanced by tort reformers in the halls of Congress, as well as the halls of state legislatures all over the country, is that 1) doctors pay high premiums to insurance companies to protect themselves against malpractice suits, and 2) the cost of these premiums are passed on to consumers, which makes health care more expensive. 

Texas passed a medical malpractice lawsuit cap in 2003, limiting the amount of general damages (non-economic damages such as pain and suffering, loss of enjoyment of life, and mental anguish) to $250,000, no matter how egregious the harm done to the patient.  According to the article, the law produced a 30 percent drop in doctors’ mapractice insurance premiums.

 However that has not translated into lower medical costs for consumers.  The cost of medical insurance premiums rose faster than earnings in Texas.  According to Families USA, health care premiums in Texas rose a whopping 86.8 percent betweem 2000 and 2007.  Medicare spending in Texas increased 24 percent in the three years after the cap was passed. 

A study published in December 2008 in the journal Health Sciences Review, found that “(t)ort reforms have not led to health care cost savings for consumers.”  The study asks the question “(a)re there other benefits (from tort reform) to consumers? If these cannot be identified, it is difficult to see a justification for the loss of legal rights.”

The benefits acrue to the insurance companies who do not have to pay for the damages covered under their policies.  Those hurt are not people who have small injuries and heal up from the malpractice done to them.  Those who are damaged by the cap are the severally injured, who then become a burden on society, because the person who caused their injury is not having to pay for the damage they have done.

A new study is out that claims higher malpractice insurance rates for doctors are a function of insurance company price-gouging, rather than a claimed “medical malpractice crisis”. The study tracked trends for the nation’s top 15 medical malpractice insurers over the past several years. The study shows that net paid claims fell 14.7% from 2000 until 2006. Insurers’ incurred losses dropped 48% from 2003 to 2006, with two insurers reporting a drop of 80% in incurred losses.

Between 2003 and 2006, surpluses grew 43%. During this same time period premiums rose sharply. In 2006 the insurers reported a 31.4% loss ratio. That means 61% of every dollar the insurer collects in premiums goes to expenses and profits.

Jon Haber, head of the AAJ, the organization that commissioned the study, summed up the report’s findings by saying:

“Medical malpractice insurance companies have been price-gouging doctors, padding their pockets with excessive premiums and driving up the cost of health care. Cynically, these same insurance companies have been blaming high premiums on a so-called ‘malpractice crisis’ that doesn’t exist. We have an insurance crisis, not a medical malpractice crisis.”

Businesses who do not like paying for “botched medical procedures and low-quality medical care” plan to ask doctors and hospitals for refunds when they commit medical errors. 

The Leapfrog Group and Midwest Business Group on Health, two business groups that purchase health care are asking health care providers to waive their fees in cases of medical mistakes.  They say that when you buy a defective car, lemon laws provide for refunds – so to medical providers who provide substandard care should give refunds.  Other insurers at looking at adding clauses to their contracts to require facilities to report medical errors to state agencies and waive fees for medical errors.