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Four Massachusetts doctors are asking that a wrongful death lawsuit against them be dismissed because the claim should be handled as a medical malpractice claim. The family of a man who killed in a motor vehicle accident claims these doctors failed to warn the at-fault drive that her medication may have rendered her unable to drive. Defendants in the case ask that it be reviewed by a medical malpractice tribunal consistent with a medical malpractice case.
This claim would not fly in Maryland under a new case decided this year. (The name escapes me.)

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The Volokh Conspiracy has a blog post from David Hyman discussing the logic behind caps on non-economic damages in medical malpractice cases. Apparently, a Harvard Law School student writing a paper on caps asked the principal legislative sponsor of California’s (Draconian) medical malpractice cap why they settled on $250,000. This was the response:

The theory was that you could never really and adequately compensate for pain and suffering, no matter how much money you provided. Money just doesn’t do it. But $250,000 (in addition to meeting the medical and other needs of the patient), properly invested to the extent that it elevated the quality of life over and above the post-injury status, was thought to be enough to do that job.

One of the comments to the post made a very insightful comment:

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The Illinois Supreme Court heard oral arguments yesterday from malpractice lawyers in three cases challenging the Illinois limit on caps in medical malpractice cases. Earlier this year, a trial court ruled that the law violates the separation clause of the Constitution. The Maryland Court of Appeals is also expected to soon hear arguments as to whether Maryland cap on non-economic damages is valid under Maryland’s constitution.

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Hospital infections are becoming more of an issue both within hospitals and in the media in recent years. The Center for Disease Control in Atlanta makes clear the reason: infections at hospitals cause 90,000 deaths in the U.S. every year. Infections result in an estimated 205,000 additional hospital days for infected patients and $2 billion in hospital charges.

Most infections are not the result of hospital malpractice. But consider these facts. In Central New York, University Hospital had, according to one study, an infection rate of 0.669 percent. Other New York Hospitals had lower rates: St. Joseph’s and Crouse had infection rates of 0.405 percent and 0.364 percent, respectively. But Community General’s infection rate was 0.017 percent and Oswego’s rate was absolutely zero.

Now, hospital quality data is not standardized and there are different reports that measure hospitals in different ways. But can this degree of variance in hospital infection rates be the product of mere probability or the way the hospitals report the data? I don’t think so.

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If you are interested in taking a honest look at the medical malpractice problem in Maryland and around the country, Philip G. Peters, Jr’ s 2007 Michigan Law Review Article “Doctors and Juries” is a must read. The article concludes with this:

In recap, the data demonstrate that juries treat physicians very fairly, perhaps with too much deference. Given the limits of human capacity to reconstruct past events and the inevitable subjectivity of judgments about the quality of past performance, it is probably not possible to design a fault-based adjudication system that will have a substantially higher agreement rate in the cases with weak evidence of negligence. At most, modest improvements may be possible through careful refinements of trial procedure and the supervision of expert witnesses. As a consequence, both piecemeal reforms and more fundamental alternatives to malpractice litigation should not be driven by the mistaken assumption that juries treat physicians unfairly. Although the current system of resolving malpractice claims has many shortcomings, neither randomness nor favoritism toward injured patients is among them.

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A recent Jury Verdict Research study looking at cancer injuries involving negligence found that the average compensatory award is $4,147,526 (median is $2,052,500). Most of these cancer cases involve medical malpractice lawsuits for the failure to diagnose cancer.

One medical malpractice study found that 12% of the time, cancer is misdiagnosed because a doctor or other health care provder either missed the signs and symptoms of cancer and did not order further testing or because the cancer test was improperly executed, read, or an error was made with at the lab or with the radiologist. With breast cancer patients, mammograms have a false-negative – malignant cancer that goes undetected- rate of approximately 10%.

  • 2020, Indiana: $238,914 Settlement. A woman died of advanced jaw cancer that spread to her liver. This eventually led to a settlement. However, the estate also petitioned the Indiana Department of Insurance Commissioner for excess damages. They contended that the commissioner owed further compensation that totaled $238,914. This case eventually settled for that exact amount.
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Medical malpractice costs comprise less than 1 of overall health costs. In 2002, medical related costs rose almost 10% to $1.5 trillion. Yet malpractice premiums expenditures were only $9.6 billion – making malpractice costs about .64 percent of national health care expenditures.

First, I grant you, this is old data. But, if anything, medical costs rising a lot faster than malpractice verdicts, which are reported to be falling in many jurisdictions (for example, Texas). Doctors claim defensive medicine costs are not included in this number. But I’ve always said I think most doctors do what is best for the patient as opposed to worrying about malpractice lawsuits. And a lot of “defensive medicine” is just good medical care.

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A Sand Diego jury has awarded $3.7 million to a man who sued a doctor for failing to diagnose the iron-overload disease hemochromatosis.

Plaintiff went to his workers’ compensation doctor who found increased ferritin in his blood, an indication of hemochromatosis. No diagnosis was made. Three years later, they were diagnosed with hemochromatosis. Alleging tissue and organ damage, arthritis, and memory loss, Valentine said that Kramer failed to diagnose and treat his hemochromatosis, failed to refer him to a specialist, and failed to discuss the lab results with him. The workers’ compensation doctor alleged that he showed the Plaintiff the lab results and told him to see a primary care doctor.

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This CNN.com article is a little old, but it is an interesting story of one doctor’s struggle to find a medical malpractice lawyer to bring a medical malpractice lawsuit against her doctor.

No one talks about this tragedy: victims who cannot bring a malpractice lawsuit only because the economics of medical malpractice cases do not allow lawyers to take cases where the injuries are not extreme.

The article includes a very poorly worded quote from medical malpractice lawyer: “What are her losses — maybe $50,000? I can’t afford to take a case that recovers $50,000. My expenses would likely be more than the recovery. She’s out of luck.” True statement, I guess. Awful way to put it.

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Our law firm generally avoids dental malpractice claims because the injuries – while often incredibly significant to the patient – rarely involve the kind of permanent injuries that are required for a malpractice case. Interestingly, I stumbled across data that showed that there were 766 dental malpractice payments made in Maryland between 1990 and 2003. That is almost 5 claims a month, which is more than I would have thought. I wonder (1) how many of these dental medical malpractice claims in Maryland involved a lawyer, (2) what the average dental malpractice settlement is in Maryland, and (3) how many claims were settled without a lawyer.

The following are a few Marland dental malpractice cases that resulted in a verdict:

  • 2014, Montgomery County: $129,742 Verdict. A woman suffered persistent nerve pain after a dental surgeon attempted to place an implant into her lower jaw. She contended that the surgeon failed to set her nerve aside before starting the procedure and failed to properly assess her bone density before operating. The woman also contended that he used excessive force and used an obsolete implant system.  She also claimed that he failed to present other treatment options. The surgeon denied her allegations, contending that his techniques were appropriate. A Montgomery County jury awarded the woman $129,742.
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