Medical Malpractice News and Views

Welcome to our blog where we discuss current issues in medicine and law. We welcome your comments.

Infections: The Toughest Medical Malpractice Cases

August 14, 2017

Virus, Microscope, Infection, Illness

Although everyone wishes it were otherwise, infections and hospitals are inextricably linked.  Hospitals treat the sickest people and many of them have infections.  Some of those infections have developed resistance to antibiotics.  Despite programs to promote good hygiene and prevent the spread of infection, infections move from patient to patient.

We receive calls on a regular basis about patients who developed an infection in the hospital.  Often these infections have led to disastrous outcomes, including limb amputations, organ failure and death. These are particularly sad cases because, except in unusual circumstances, it is almost impossible to prove that an infection was the result of medical negligence.  Any expert witness testifying on behalf of a plaintiff in an infection case will be forced to admit that infections can happen in the best hospitals with the best nurses and the best doctors doing the best that they can.  No one ever sees a nurse or doctor entering the patient’s room carrying infection-causing bacteria.  Short of an infection outbreak in a hospital, which suggests a problem with infection control, it is almost always a mystery as to how the patient became infected.

If we cannot prove that the infection was the result of medical malpractice, we cannot recover for the patient against the hospital or doctor who transmitted the infection to the patient. This means that when confronted with an infection case, we must go to the next question: Was the infection identified promptly and treated appropriately?  Many times the answer is that it was not identified and treated promptly and appropriately.

When there was a delay or a delay coupled with inappropriate treatment, we can bring a claim for the infected patient or the patient’s family and have a chance of success.  One limitation, however, is that we can never recover for the original infection. We can only recover for the additional damage caused by the delay or the inappropriate treatment.  Sometimes, this means that the recovery for the patient will be quite limited.  On other occasions, when the infection could and should have been nipped in the bud, we may be able to make a recovery for almost all the harm suffered by the patient.

Infection cases are also tough cases because the defense always has a number of arguments available to it.  They will argue that the infection was hard to spot and that they discovered it as soon as was reasonably possible.  They will say that we are being unrealistic in claiming that the infection could have been discovered earlier.  Next they will argue that the infection was very advanced, even by the time we say it should have been detected, and would have been very hard to treat successfully. Lastly, they will argue that the infection was a bad one which would not have responded well even to earlier treatment so whatever damage resulted was likely to occur no matter what.

There is still more the medical profession can do to prevent the spread of infections.  It has been pointed out that a male doctor’s tie is one of the most germ-infested things in the hospital.  It goes with the doctor from room to room and from patient to patient and is rarely, if ever, disinfected.  Despite hospital protocols for hand washing, people are only human and sometimes do not wash as frequently as they should.  Patient advocates suggest patients should not let a nurse or doctor touch them unless they assure themselves that the nurse or doctor just washed their hands.  While there is little we can do when we are patients in the hospital to prevent becoming infected, this is at least something we can do.  If it offends the doctor or nurse, too bad.


Posted in antibiotic resistant bacteria, blood infections, Doctors, Hospital Negligence, Hospitals, Lawsuits, medical errors, Medical Malpractice, medical malpractice cases, medical malpractice claims, medical malpractice lawsuits, medical mistakes, Medical Negligence, plaintiff |

More Proof That Medicine Is A Business

August 09, 2017

Image result for money images

Another day, another proof that medicine is a business, as if we needed any more proof.  Many hospitals are hiring staffing companies to supply doctors to work in various parts of the hospital.  This is a particularly common occurrence in emergency departments.  By hiring a staffing company, the hospital does not have to locate and contract with physicians, handle vacations, scheduling, benefits and the like.  It is simple for the hospitals. Hire the staffing company and let it do the rest.  Unfortunately, it may also be very expensive for the hospital’s patients.

Most hospitals have negotiated prices with the local health insurers.  Having negotiated prices, these hospitals are now “in network” for the customers of those health insurers.  Amounts charged by “in network” providers are discounted by agreement. If a patient sees a provider who is out of network, not only will the price not have been discounted, there is usually a penalty in the form of a requirement that the patient pay a higher percentage of the bill than if the provider were in network.  It is very important for the patient to be treated by an in network provider.

Here is where the problem with staffing companies arises.  Even if your hospital is in network, the staffing company’s doctors may not be.  As reported here and elsewhere, this has resulted in some nasty surprises when patients visiting the emergency department at a hospital in their network receive a large out-of-network bill directly from the emergency physicians.  The staffing company mentioned in the stories linked above, Emcare, is the largest supplier of emergency physicians in the country.  It supplies emergency physicians to a number of hospitals here in the Phoenix area.  Very often, its physicians are not in network.  Emcare sends bills which are not only out-of-network but which reflect substantially higher charges for the same services that were provided by whoever ran the emergency department before.  In at least one hospital in the state of Washington, the number of emergency department patients who required what the doctors claimed was the highest level of medical care increased by almost five times after Emcare took over the emergency department.  Using billing codes, the higher the level of care provided, the more Emcare charges for the services of its doctors.  It would be surprising if the patients at this hospital became five times sicker once Emcare started running the emergency department.

Emergency care is just that – emergency.  When we need emergency care, we don’t have the luxury of time to investigate which hospitals are in network and whether all of the doctors who will see us at an in network hospital are in network as well.  There is very little we can do to protect ourselves from out-of-network doctors hiding in hospitals that are in our networks.  I wish I had a better answer for you.  The best I can do is suggest that before that emergency arises, you find out which local hospitals are in your network and whether their emergency physicians are in network as well.  My only other advice is, “Don’t get sick and need emergency care.”  Good luck with that.


Posted in Doctors, Health Care Costs, Health Insurers, Hospitals, Medical Costs, medical ethics |

Insurance Companies Are Bragging About Their Influence in Washington

August 01, 2017

I have blogged about the bill which passed the Republican controlled House of Representatives gutting state medical malpractice laws.  It is a disaster for patients.  It forces each state to reduce what patients are able to recover in state courts despite all the Republican sanctimony about state’s rights.  It sets a very short limitation period during which suits can be brought.  It fulfills every wish the medical industry and its insurers have ever had.

Today a story appeared in the Washington Post about lobbyists for the medical profession and for the big malpractice insurance companies bragging about how they wrote the bill and got the House of Representatives to go along with no hearings and almost no modifications.  The process was quick since they didn’t bother with hearings or public input on such a momentous bill.  It passed with no Democratic support and only a few Republicans refusing to go along.  Needless to say, this is not how major legislation is supposed to be considered and passed.  But, as the lobbyists brag, now that Republicans are in control of both houses of Congress and the presidency, they can do pretty much what they want with their tame legislators.

What is surprising about this story is not so much that lobbyists wrote the bill and that their tame legislators adopted and passed it.  More surprising is that the lobbyists are bragging about how much power they have over the Republicans in Congress who will do what they are told by the big insurance companies.

As the story points out, this bill is just another example of what is wrong with Washington today.  Instead of open hearings for major bills where those who might be affected get to express their views for and against the proposed legislation, now bills are written in secret and presented to a highly partisan Congress as take it or leave it measures.  The process went so fast and without hearings that it was almost done in secret while those who would almost certainly have objected were focusing on the repeal and replacement of the Affordable Care Act.

If the bill makes it through the Senate, where it is subject to a potential filibuster by Democrats, it will almost certainly be signed by President Trump.  It will take away many rights of badly injured persons, in fact it will have the greatest impact on those most seriously injured by medical malpractice.  The doctors and their insurance companies will reap windfall profits and those patients injured by medical malpractice will be left to wonder what happened.

Posted in Doctors, Lawsuits, Malpractice caps, Medical Malpractice, medical malpractice cases, medical malpractice claims, medical malpractice damages caps, medical malpractice lawsuits, plaintiff, tort reform, Valuing Damages in Medical Malpractice Cases, Verdicts |

No Surprise: Big Business Is Taking Away Your Rights

July 25, 2017

Image result for big business

Whether you were injured in a car accident or were the victim of medical malpractice, whether you live in Bangor, Maine or Phoenix, Arizona, the deck has been stacked against you.  Big business and its allies in the insurance industry have spent years convincing the American people that there are too many lawsuits and that greedy plaintiffs are harming America.  As a result, juries have become skeptical and conservative.  For example, every month a jury in Maricopa County sends home with nothing someone who was rear ended on the freeway and has about $5,000 in medical bills.  The jury does this even though the other driver admits that he or she was careless in rear ending the victim.  The jury sends this poor person home with nothing because they buy the argument of the insurance company attorney that the impact was not that hard and that the victim is trying to strike it rich.  Congratulations to big business.  You win.

The attack by big business has proceeded on two fronts.  On the one hand, they have persuaded jurors that people who sue are playing lawsuit lottery and do not deserve to win.  On the other hand, they have helped to elect Republicans who champion “tort reform” and who pass laws at the state level to make it more difficult to win when you have been injured and which often limit what you can win when you have been injured.

So, how successful has big business been?  Today’s Wall Street Journal calls it a “surprise” when it reports in a front page story that the number of personal injury suit filings have declined by 80% since 1993.  The story points out the disparity between public perception of a court system gone wild with personal injury suits and the reality of a dramatic decline in the number of suits filed.  This, of course, has always been the goal of the push by big business: convince the public and the politicians of a crisis which does not and never has existed and demand changes.  They are still at it.  Republicans in the House of Representatives recently passed a bill severely limiting the rights of persons injured by medical malpractice with the promise of hundreds of billions of dollars in savings.  The figures in the Wall Street Journal make clear these savings are a mirage as the number of malpractice suits has already dwindled to only a few.  Researchers at Northwestern University and the University of Illinois found a 57% decline in the number of paid malpractice claims between 1992 and 2012 and a similar drop in the number of cases filed.  The people who were hurt worst by this drop?  It was those who had smaller cases and who could not afford to prosecute their claim.

This, of course, is a victory big business and the insurance industry cannot acknowledge.  To the contrary, they must continue to push the narrative that there is a crisis of frivolous lawsuits which threatens to overwhelm the courts and destroy our way of life.  Juries must continue to be exhorted to keep awards down.  Politicians must continue to be encouraged with contributions and urged to further protect society from frivolous claims.  It is working so why not keep it up?

People who are injured today are in the wrong place at the wrong time.  They just have to take their medicine and realize they are not going to receive justice.  The rest of us need to push back against the big business narrative and do what we can to protect our rights.

Posted in Finding a Medical Malpractice Lawyer, Health Care Costs, Lawsuits, Malpractice caps, Malpractice costs, Medical Malpractice, medical malpractice cases, medical malpractice claims, medical malpractice damages caps, medical malpractice lawsuits, Medical Negligence, plaintiff, tort reform, Verdicts |

Will Your Surgeon Be Double-Booked?

July 17, 2017

Image result for images surgeons

There are many dirty little secrets in the world of medicine that are not shared with patients.  One of them was recently the subject of a thorough discussion in the Washington Post.  It is the practice of some surgeons to schedule two surgeries at the same time and to move from operating room to operating room while allowing a resident to perform the operation while the surgeon is gone.  Not surprisingly, most patients reasonably expect the surgeon whom they have chosen to perform their operation to be in the room while the surgery is ongoing.  Unless trouble develops patients of surgeons who are double-booked rarely learn that their surgeon has left the room.

The practice of double booking or running concurrent surgeries occurs at teaching hospitals, of which there are about 1,000 in the United States.  Surgery residents are doctors at teaching hospitals who have completed medical school and who are now enrolled in what are usually three year programs where they learn the skills needed to be a surgeon. During the residency, the residents will perform surgeries under the supervision of the primary surgeon.  As the resident develops more skill and has more experience, he or she will be given more to do during the surgery.  At all times, however, the primary surgeon should be present to watch and teach and to address any emergencies which may develop.

Surgeons who defend the practice of double booking claim that it is important to train the next generation of surgeons and that patient safety is not compromised.  The latter contention is not one on which there is general agreement.  Some studies have found an increase in poor patient outcomes (think surgical errors causing death or injury) while others have found little difference in outcomes. Those who oppose the practice note that it occurs for the convenience and financial benefit of the primary surgeon. They also note that it likely would not happen if the patient were not asleep.

Many hospitals which permit double booking are now requiring that patients give specific permission for the practice and that they give that permission at least a week or two before the surgery.  These hospitals disapprove of the practice of including language about double booking in the paperwork presented to a patient on the morning of surgery when the patient is unlikely to notice the language, unlikely to appreciate what it means and would be reluctant to refuse to go forward with the surgery, if they disapproved.

As a patient, you should discuss with your surgeon whether he or she will be physically present in the operating room during your surgery.  Ask about it when you meet the surgeon for the first time and are deciding whether this is the surgeon you want performing your surgery.  Write it on the consent forms.  If the surgeon tells you that he or she will be “immediately available,” you should ask what that means and refuse to use that surgeon, if it means they will not be in the room with you the entire time.  As more than one doctor has noted, double booking is not something that happens to the spouse or family member of a surgeon because surgeons would never tolerate that for their families.  You deserve every bit as good a care as the family member of a surgeon.  Be sure you get it.

Posted in disclosure of medical mistakes, Health Care Costs, Informed Consent, medical errors, medical ethics, medical mistakes, Secrecy, Surgical Errors |

Malpractice Caps Have Not Delivered Their Promised Benefits

July 03, 2017

In 1975, in the face of skyrocketing premiums for medical malpractice insurance, California passed a law limiting jury awards for non-economic damages to a maximum of $250,000. That limitation has never been raised despite the fact that it would take $1,162,164 in today’s dollars to match $250,000 in 1975 dollars.  Governor Jerry Brown, who signed the cap legislation in 1975, regrets that decision and has recommended that Congress not follow California’s example.

One of the reasons for Governor Brown’s change of heart has been California’s experience with malpractice premiums since the enactment of the cap legislation.  The caps were imposed to keep insurance premiums down.  It didn’t work that way.  California continued to experience “malpractice insurance crises” despite the caps and insurers often raised annual premiums by double digit amounts.  It was not until California’s voters passed an initiative limiting rate increases that California’s malpractice insurers were brought under control.  In retrospect, Governor Brown says that it was “insurance company avarice, not utilization of the legal system by injured consumers” that was responsible for “excessive premiums.”  The caps, he said, have had “an arbitrary and cruel effect upon the victims of malpractice.”  The caps “have not lowered health care costs, only enriched insurers and placed negligent or incompetent physicians outside the reach of judicial accountability.”

As in the current Republican proposal pending before Congress, California juries are not told that their award of non-economic damages will be reduced to $250,000.  This deliberate deception has on many occasions resulted in tragic outcomes.  Past and future economic damages are not capped.  But juries often do not distinguish carefully between economic and non-economic damages when making awards.  They try to make it up to the patient with a large award and may not do the necessary math to determine exactly how much the future economic loss will be. They just assume that the millions they have awarded for non-economic damages will give the patient all the money she needs for future medical care.  Some very badly damaged patients with huge future medical needs have seen juries award them millions in non-economic damages and only a little, if anything, in economic damages without realizing that those millions will be reduced to $250,000 and the patient will have nothing for the future medical needs.  Jurors are often shocked to read about the reduction in the newspapers the next day.

Attempts have been made over the years to at least lessen the pernicious effects of the cap on injured patients.  Most recently in 2014, a voter initiative was placed on the ballot.  If passed, the initiative would have raised the cap to $1,100,000 to account for inflation since 1975.  It would also have mandated drug and alcohol testing for doctors and placed some limits on the prescription of pain medication.  It was strongly opposed by the medical profession and the insurance companies and went down to defeat.

Caps on medical malpractice awards demonstrate the hypocrisy of those who push for “reform” to end “frivolous” malpractice claims.  Caps do nothing to weed out “frivolous” cases.  What they do is penalize those with the least frivolous cases.  They limit the recovery of those patients who have been most seriously injured by what the jury has concluded was actual medical negligence.  Rather than promote personal responsibility, caps let negligent doctors and hospitals “get away with it.”

As noted by Governor Brown, caps do nothing to improve care for patients.  Time and time again, studies have shown that the best way to reduce malpractice claims is to improve patient care. Let’s reduce malpractice claims the right way by promoting patient safety and not punishing those who have been injured by medical malpractice.  Tell your Congresspeople what you think.

Posted in Doctors, Health Care Costs, Hospitals, Lawsuits, Malpractice caps, medical errors, Medical Malpractice, medical malpractice cases, medical malpractice claims, medical malpractice damages caps, medical malpractice lawsuits, Medical Negligence, plaintiff, Secrecy, tort reform, Verdicts |

Why Won’t Someone in Arizona Take My Malpractice Case?

June 26, 2017

Finding a good laywer in medellin

You live in Arizona and believe you have a medical malpractice case.  You have spoken to a number of law firms that handle these cases but no one will accept your case.  What is going on? Unfortunately, what is going on is called the system and it is rigged in favor of the medical profession and against you.

Medical malpractice cases are among the most complex and expensive cases in which an individual can be involved.  Almost without exception, such cases require multiple, highly-paid expert witnesses to establish the fault of the medical provider and the damages suffered by the patient.  Depending on the number of defendants in the lawsuit and the nature of the injury, the out-of-pocket costs a medical malpractice lawyer must advance may range from a low of $30,000 to a high well in excess of $200,000.

The number of talented trial lawyers in Arizona and elsewhere is small to begin with.  Lots of lawyers claim to be trial lawyers who can represent injured victims but few of them have actually tried cases and demonstrated ability.  The supply of talented trial lawyers who are experienced in medical malpractice cases is much smaller still.  The successful medical malpractice lawyer must not only be a talented trial lawyer, he or she must also have a sophisticated understanding of medicine and the way the medical profession works.  These cases almost always require the lawyer to invest hundreds of thousands of dollars in legal time.  For all these reasons, the typical fee charged by a good medical malpractice lawyer in Arizona is 40% of any amount recovered by trial or settlement.

You can do the math.  Even if these were the only considerations in determining when a medical malpractice lawyer can take a case, it is clear that, for their to be anything at the end for the injured patient after reimbursing the costs and paying the lawyer, the case must be one worth at least $350,000.  Patients with cases that do not reach that minimum level are not going to be able to find a good lawyer to take their case.  Of course, these considerations are only the beginning.

Juries today are very skeptical about all personal injury claimants. They think most plaintiffs are playing lawsuit lottery and exaggerating their injuries in the hope of receiving a large jury award.  They are even more skeptical of medical malpractice claimants.  They don’t like to find against doctors and nurses.  They don’t want to believe that doctors and nurses make mistakes that kill and maim patients.  Add to this the fact that the Arizona legislature has changed the rules so that juries are told if the patient has received any insurance payments for medical bills or by way of life insurance.  Knowing that the patient has received these payments further reduces the willingness of the jurors to find against the health care providers.  Doctors and hospitals win 9 out of 10 cases that get tried in Maricopa County.  The figures are a little better for patients in Pima County but worse in the other counties.

In my experience, unless a jury believes you need its help in going forward with your life, it will not find in your favor in a medical malpractice case.  This means that no matter how bad the hell you endured as a result of malpractice, if you have made a good recovery, the jury is unlikely to find in your favor.

A good medical malpractice lawyer does not do you any favors if he or she takes your case when it is not a strong one which the medical providers are going to want to settle.  If the case does not settle and you go to trial and lose, you are going to end up with judgments against you by the medical providers for their costs. These could be anywhere from $10,000 to $30,000.  These cost judgments add insult to injury.  The medical professional injured you and now YOU have to pay HIM.

A good medical malpractice lawyer in Arizona is going to look at all of these factors in deciding if your case is one which is likely to be successful and is one worth the investment of costs and time.  It would be nice if we had a simple system for identifying those patients who have been injured by medical malpractice and for compensating them.  Unfortunately, we do not and until the glorious day arrives when we do, good medical malpractice lawyers are going to have to apply their judgment in deciding which patients the system will allow them to help and which it will not.  If you are not happy about this, and you should not be, write your state legislators, your Congressperson and your Senators and let them know it is important to you that patient rights be respected and that patients injured by medical malpractice be fairly compensated.



Posted in Doctors, Finding a Medical Malpractice Lawyer, Hospital Negligence, Hospitals, Lawsuits, Malpractice costs, Medical Malpractice, medical malpractice cases, medical malpractice claims, medical malpractice lawsuits, medical malpractice lawyers, medical mistakes, Medical Negligence, medical negligence lawyers, personal injury lawyers, plaintiff, trial |

Republicans in Congress Keeping Their Promise to Gut Malpractice Suits

June 19, 2017

Politicians like to come up with misleading names for their bills.   The worse the bill is for the American People, the more lovable the name they choose to divert attention from what they are actually doing.  They are true to form in their current attempt to take away your rights in order to make a big gift to the medical profession and the insurance industry.  They call it “The Protecting Access to Care Act of 2017.”  With a name like that, what could possibly be wrong?

Politicians preach about the virtues of local control except when the locals don’t do what the big boys want done.  In this bill, Republicans in Congress are telling the states what they must and must not do when it comes to malpractice.  “We know best,” they say.  It doesn’t matter what the people of Arizona want or what our state constitution says, if this passes, Arizona must obey.

The original plan was to make the changes a part of the repeal and replacement of the Affordable Care Act (“Obamacare”).  However, because the Republicans are trying to accomplish the repeal and replace through the mechanism called “reconciliation,” they are limited to changes which affect the budget.  Reconciliation allows them to pass a bill with only 51 votes; there can be no minority filibuster.  Under reconciliation, however, changes to the malpractice laws cannot be made.  Congressional Republicans will have to pass the bill the old-fashioned way and it will be subject to filibuster in the Senate.

The House bill is sweeping.  It limits your rights in many ways.  First, it shortens the period during which a person can sue to one year from the time the person discovers they have been the victim of malpractice or a maximum of three years, whichever comes first.  If you discover malpractice more than three years after the fact, too bad for you.  If you are a child and cannot sue, too bad for you too unless your parent or guardian has committed fraud against you.  If your parents or guardian are not very responsible and don’t bring suit on your behalf, you just have to suck it up.  If you have future medical expenses and have to go on AHCCCS to get them paid, taxpayers will be responsible for those bills instead of the doctors who made them necessary in the first place.

While there is no limit on economic damages, non-economic damages are capped at $250,000.00.  This means that if your child is killed by medical malpractice, $250,000.00 is the most you can recover.  If a stay-at-home mom is killed by medical malpractice, $250,000.00 is all her husband, children and parents may recover for her loss.  The bill says that the jury cannot be told about the damages cap so that jurors will think they are compensating the victims when they really are not.  After all, we can’t have jurors, to whom we entrust life and death decisions in criminal cases, making full awards against doctors.

It is already difficult for people who have not been catastrophically injured by medical malpractice to find a lawyer to represent them.  The cases are very expensive to prosecute and juries are very reluctant to find against health care professionals.  To reduce further the chances that an injured victim might be able to find a lawyer to represent her on a contingent fee basis, the bill restricts the amount a lawyer may receive.  It doesn’t matter if you are willing to agree to a certain fee, Congress says you cannot unless it is below a certain amount.  Doctors and hospitals can pay as much as they want for lawyers to defend them in malpractice cases but patients are limited in what they can pay.  Does that sound fair to you?

All of this is premised on the idea that there is some sort of crisis in medical malpractice and that doctors are unethically prescribing tests for you that you do not need because they are afraid of being sued.  There is no malpractice crisis.  According to the National Practitioners Data Bank, which by law records every malpractice payment in the country, total malpractice claims and total malpractice payments have been consistently dropping for the last 10 years for which data are available.  Between 2003 and 2013, the total number of claims for which payment was made dropped by 35%.  During the same time period, total payments dropped by over 25%.  Doctors and hospitals win a high percentage of the cases which get tried.  Malpractice insurance companies are making large profits.  According to the A.M. Best insurance rating company, as of 2013 malpractice insurers had reported eight straight year of profits.  Some are reporting record profits.

The idea that doctors will order far fewer tests if this bill passes has been debunked by the non-partisan Congressional Budget Office, which predicts only a small decrease in the number of tests ordered and a small savings equal to less than 0.0015% of the overall annual spending on health care.  This is not a fair benefit to receive in return for trading away your rights.  On the other hand, the medical profession and its insurers will reap billions in additional profits from these restrictions on the rights of patients.

While most Americans have been distracted by Congressional efforts to take away their health coverage and to reinstate the right of insurance companies to deny coverage based on the existence of a pre-existing condition, Congress has been quietly moving to take away other rights, including the right to sue and be compensated when you have been the victim of medical malpractice.  Don’t let them get away with it.

Posted in Defensive Medicine, Doctors, Fee for Service, Finding a Medical Malpractice Lawyer, Health Care Costs, Health Insurers, Hospital Negligence, Hospitals, Malpractice caps, Malpractice costs, medical ethics, Medical Malpractice, medical malpractice cases, medical malpractice claims, medical malpractice lawsuits, medical malpractice lawyers, Medical Negligence, medical negligence lawyers, Statute of Limitations, tort reform |

Medical Malpractice Damages Caps Uncapped

June 12, 2017

Medical malpractice cases are fertile ground for tort reformers.  States around the country have enacted legislation targeted at the specious claim medical malpractice lawsuits are causing skyrocketing medical malpractice insurance costs for doctors and out of control health care costs for insurance companies and consumers.  The legislative responses have been many from creating a heightened burden of proof in medical malpractice lawsuits, increasing negligence requirements, and imposing caps on non-economic damages.  Non-economic damages caps often prevent an injured person from being fully compensated for pain, suffering and loss of enjoyment of life when they are harmed by medical negligence, regardless of how seriously they have been harmed.  The loss of a leg may be worth the same as the loss of a toe.

Despite  heath care industry research which demonstrates tort reform does nothing to lower malpractice premiums or health care costs, the Arizona legislature, not surprisingly has used many of these tools and continues to look for ways to create obstacles for plaintiffs in medical malpractice cases.  But it has not imposed caps, much as it might want to do so. Why?  Fortunately for Arizona citizens, damages caps are prohibited by Article 2, § 31 of the Arizona Constitution which provides, “No law shall be enacted in this state limiting the amount of damages to be recovered for causing the death or injury of any person.”

Some states without express constitutional protections like Arizona has have found caps to be unconstitutional on other grounds.  A decision by the Florida Supreme Court is the most recent example.  There, the majority disputed the existence of a malpractice crisis which the legislature use to justify the caps.  The Court went on to hold that arbitrary and invidious discrimination between victims of medical malpractice and all other personal injury victims, to whom caps did not apply, violated the equal protection clause of the United States Constitution.  That clause says all people must be treated equally.  The Court went on to find, much like the current research, that there was no relationship between caps and alleviating what the legislators perceived as a malpractice crisis.

The Court was narrowly split, however, and not all state courts decided have found caps to be unconstitutional in the same way as the Florida court.  Of course, once a caps loving legislator has been touched by medical malpractice, you’ll hear a change of tune.  And, while tort reform will continue to be a driving force in our country for quite some time, whether facts will play role in the public policy behind it remains to be seen.

Posted in medical malpractice cases, medical malpractice damages caps, medical malpractice lawsuits |

Aspirin – A More Powerful Weapon against Stroke than Previously Thought

June 08, 2017

Aspirin.  The wonder drug that keeps working more wonders.

Don't use aspirin as primary prevention for heart disease and stroke, FDA warns

From headache to heart attack, aspirin is the go-to drug to treat and prevent so many medical conditions.  And, its often lifesaving benefits continue to be better understood day after day.

At least those are the results of a recent retrospective study published in the Lancet which you can read  here.  Researchers examined the individual patient data from all randomized, controlled trials of aspirin administered after ischemic stroke and TIA (transient ischemic attack).  They found that aspirin was far more effective at preventing recurrent stroke and reducing its severity than previously thought.  However, they also found that aspirin was less effective in doing so over the long haul.  Here are the primary findings.

  • aspirin has a far more significant impact on the incidence of early, recurrent stroke prevention in patients with mild and moderate damage
  • aspirin significantly reduces the severity of early recurrent stroke in patients with mild and moderate damage
  • aspirin provides limited benefits for stroke prevention after the first six weeks, regardless of severity

The findings were consistent those from an earlier, non-randomized study which found that administration of aspirin following TIA and ischemic stroke can reduce the chance of early recurrence by 80%.

Consistent with these findings, the researchers recommend that:

  • aspirin should be a front line defense and administered by health care providers immediately following ischemic stroke or TIA
  • patients should self-administer aspirin when they begin to experience acute stroke-like symptoms
  • patients should not self-administer aspirin if they experience chronic stroke-like symptoms which could indicate a hemorrhagic stroke

So, make sure you have some of those little white pills on hand.  They could make a big difference in your future.





Posted in Uncategorized |