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Issue #1 for the House Judiciary Committee: medical malpractice reform. The title of the hearing gives you some idea of the objectivity: “Medical Liability Reform — Cutting Costs, Spurring Investment, Creating Jobs.”

The hearing came a day after the House of Representatives voted 245-189 to repeal the Affordable Care Act (ACA). The repeal vote is seen as largely symbolic, since leaders of the Democratic-controlled Senate have vowed to block repeal. However, Republicans are now expected to begin trying to chip away at the ACA by passing bills to repeal certain provisions. Doctors are shooting for the same thing they always want: malpractice caps – preferably hard malpractice caps that include economic damages.

Ardis Hoven, M.D., chair of the American Medical Association’s Board of Trustees, told the House panel that the system we have had for hundreds of years is “an ineffective and often unfair mechanism for resolving medical liability claims.”

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The Maryland General Assembly is open for business, which means a lot of lobbying on both sides of the aisle on medical malpractice related issues. Lobbyists for doctors and hospitals have been forever sounding the alarm of doctor shortages, relying primarily on their own studies to support this premise. Maybe there is a small issue of bias in citing yourself for the premise that is in your financial interest.

The American Medical Association’s data suggests that the doctor/patient ratio has increased in Maryland almost every year for more than forty years. In 1963, there were 470 doctors for each patient in Maryland. That number has more than tripled. Today, there are 153 lawyers for every 300 people. The real problem we have in Maryland is that we do not have enough lawyers. (Wait, I’m getting carried away. That is definitely not a problem we have in Maryland.)

But I’m sure that some rural areas of Maryland lack some specialties. MedChi points out that vascular surgeons are in particularly short supply. But this is not just true in Maryland. It is a problem all over the country. Moreover, rural areas are great places to practice to remain insulated from medical malpractice claims. Some rural counties in Maryland have not seen a plaintiff’s verdict in a medical malpractice case in years.

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For a variety of reasons, there is often a significant lag time between the time of death and the filing of a wrongful death lawsuit. For better and for worse, life goes on and the widow often remarries.

So the question is, “Should a jury take this into consideration in computing damages?” The short answer, and the human answer, is that they should not. People who have suffered a great loss should not be penalized for moving on with their lives.

What is Maryland law? Maryland law for at least the last 112 years has supported this common sense view. The rule is that a jury should consider the probable duration of the joint lives of the spouse had one not been killed.

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The Maryland high court provides a good look at just how complicated the implications of joint tortfeasor releases can be in Hashmi v. Bennett, a medical malpractice case filed against Good Samaritan Hospital of Maryland and a number of other medical providers.

Plaintiffs’ filed a medical malpractice survival action/wrongful death lawsuit claiming defendants failed to diagnose and treat plaintiffs’ father, a 27-year-old man, who showed signs and symptoms of progressive septic methicillin-resistant staphylococcus aureus, or MRSA, and was treated instead with Ambien to help him sleep.

Good Samaritan Hospital settled the case for $550,000 and the claim against the emergency room practice, and the ER doctor settled for $400,000. The case against the doctor at the hospital who treated the patient was taken to verdict and a Baltimore City jury awarded Plaintiffs $2,295,000, which was reduced by the Maryland medical malpractice cap to $1,795,000.

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A lot of very smart people are looking at ways to decrease the incidence of medical malpractice in this country. The early returns are not good, according to a new study published in the New England Journal of Medicine. The study found that efforts to decrease medical malpractice in our hospitals has, at least as of 2007, failed and that the Institute of Medicine’s goal of a 50% reduction during a 5-year period has not been met, to say the least.

Interestingly, the 10 North Carolina hospitals chosen in the study were picked in part because they were considered progressive in their handling of and addressing the root causes of medical malpractice. The authors, and we have no way of gauging this beyond taking their word for it, believe these results are indicative of malpractice rates in this country generally.

Does this mean that efforts to reduce malpractice don’t work? The authors suggest the opposite, saying that focused efforts to reduce discrete harms, such as nosocomial infections and surgical complications, can significantly improve safety. I think it means that we have to do more of what we have been doing and do it better.

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The Baltimore Sun wrote an article a few months back on hospital executive compensation that I did not see until today.

No breaking news there: these guys make a ton of money. But it is interesting snooping around looking at non-profit health care providers’ salaries. Sometimes, hospitals will create a separate nonprofit for different services, such as emergency room services. They are nonprofits so they have to name the salaries for what I think are their ten highest-paid employees. I could give you a link to a few of these but it names names and gives salaries and that is a little too intrusive for me. But it is fair to summarize my research by saying these guys don’t want to hold up their salaries when arguing that high malpractice premiums are putting them out of business.

I’ve made this point before and I’ll make it again: I think doctors should get paid a ton of money, more than any other profession because I think the medical profession is, as a class, more important than any other. If I make a mistake, someone does not get the money and justice they deserve. Doctors screw up and someone dies. So feel free to make a fortune. Just don’t plead poverty and claim you will quit your job and go work at McDonald’s because you can’t earn a living wage because of your malpractice premiums.

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A hospital leaves a 4-inch-long piece of plastic tubing inside an infant boy at birth. The child may have a permanent injury. What should the verdict be? How much is that medical malpractice lawsuit worth?

If a potential client called our law firm and asked that question, I would say I have absolutely no idea. There are just too many details you would need to know. To start, does it mean the child may have an injury? Do you know? If you don’t, what are the odds the injury is permanent? Another incredibly important question: was the child in pain and if so, for how long? What are the past and expected future medical bills? Why did this mistake happen? Who made it?

The first paragraph is a fact pattern of a case that was decided recently in Washington State. The jury awarded $257,000 in this malpractice lawsuit against the hospital.

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Let’s take a sampling of people who answer yes to this question: “Are medical malpractice insurance rates for doctors in Maryland too high?” The follow-up question that 95% (source: my best guess) of them cannot answer is: “Exactly how much does malpractice insurance cost?” To say the least, it varies wildly by specialty.

In Maryland malpractice lawsuits, the most common insurance company at risk is Medical Mutual of Maryland, a doctor-owned insurance company. This chart provides the rates according to one source, which includes data on how the rates changed from 2008 to 2009:

My comments:

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There has been a settlement in the St. Joseph’s stent case. No, not those cases. This settlement was for the not so unrelated lawsuit by the federal government for the kickbacks given for referrals from Mid-Atlantic Cardiovascular Associates. St. Joseph was accused of making payments to Mid-Atlantic for referrals for cardiac procedures, most notably, stents.

How many people were privy to this scheme? We are talking about a nonprofit hospital here. Why is a nonprofit – basically a publicly owned business – willing to risk its reputation by engaging in an illegal scheme to get more patients? On its face, it seems crazy.

Nonprofit or not, most hospital executives have a vested interest is a big and “profitable” hospital. It means more prestige and, not so parenthetically, more money for everyone involved in the hospital. The added perks and future job opportunities don’t hurt the motivation to get bigger and better. Notwithstanding the nonprofit veil that most Maryland hospitals have, there is an economic motivation that guides, to varying degrees by hospital and administrator, their decision-making process.

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Good doctors commit malpractice less often than bad doctors. But sometimes, very meritorious medical malpractice lawsuits in Maryland are brought against very good doctors who made a very unfortunate mistake.

In Florida last week, an appeals court affirmed a $2.15 million verdict that has ballooned to $4.3 million because the case is 17 years old. The verdict was against a hip specialist who has operated on the likes of New York Yankees slugger Alex Rodriguez, Miami Dolphins quarterback Jay Fiedler, golfer Greg Norman, hockey star Mario Lemieux, and Olympic skater Tara Lipinski. Pretty impressive group.

But in this case, a young woman cannot walk without a cane because the doctor gouged the smooth lining of her hip joint trying to repair an injury in 1997.

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