New Orleans Medical Malpractice Law Blog

According to a November 2010 study by the Office of Inspector General of the U.S. Department of Health and Human Services about 1 in 7 hospital patients experience a medical error, 44 percent of which are preventable. These errors cost Medicare $4.4 billion a year. Medicare and Medicaid do not make claims or file lawsuits to recover medical expenses they paid on behalf of patients injured or killed by medical malpractice. Nor do group medical insurers like Blue Cross/Blue Shield. If group medical insurers and taxpayers recover for the expenditures, they do so on the backs of patients who obtain an attorney and file a medical malpractice lawsuit.

Medical malpractice claims are rare and growing rarer on a nationwide basis. According to the insurance industry's own data, medical malpractice claims, inflation-adjusted, are dropping like a rock, down 45 percent since 2000. As A.M. Best put it, "Overall, the most significant trend in [medical professional liability insurance] results over the five years through 2008 is the ongoing downward slope in the frequency of claims...." According to the National Center for State Courts, medical malpractice claims are in steep decline, down 15 percent from 1999 to 2008. The NCSC says rarely does a medical malpractice caseload exceed a few hundred cases in any one state in one year.

According to A.M. Best, the loss ratio for medical malpractice insurers has been declining for at least five years. In 2008, it was remarkably low, at 61.1%. Put another way, medical malpractice insurers believe they will pay out in claims only 61.1 cents for each premium dollar they take in. The rest goes towards overhead and profit, in addition to the profit the insurer makes by investing premiums. The industry's own data, inflation-adjusted per doctor claims have been dropping since 2002 from $8,676.21 that year to $5,217.49 in 2007 and $4,896.05 in 2008.

As medical malpractice claims continue to plummet, the opportunity to recover lost medical expenditures by insurers and taxpayers fall with them. Why are medical malpractice claims falling?

It's not because malpractice is infrequent. A 1999 study by the Institute of Medicine, which advises the federal government on health care issues, counted 98,000 deaths in 1999; HealthGrades said there were 195,000 deaths annually from 2000 to 2002 and estimated that Americans paid an extra $19 billion in medical care costs for the victims of mistakes. The Journal of the American Medical Association (JAMA) estimates over 225,000 people die each year due to malpractice. Medical malpractice has become the third leading cause of death in the United States, after deaths from heart disease and cancer. Medical malpractice deaths have been attributed to various forms of negligence:

· 12,000 deaths/year from unnecessary surgery

· 7,000 deaths/year from medication errors in hospitals

· 20,000 deaths/year from other errors in hospitals

· 80,000 deaths/year from infections in hospitals

· 106,000 deaths/year from non-error, adverse effects of medication

All the following quotations taken from "Waste and Inefficiency in the U.S. Healthcare System, Clinical Care: A Comprehensive Analysis in Support of System-wide Improvements," New England Healthcare Institute, February 2008:

• "Taken together, avoidable adverse treatment events and hospital acquired infections conservatively result in a minimum of $52.2 billion that are wasted each year, not to mention the human toll of these avoidable events."

• "Adverse treatment events are well documented sources of waste. Studies from Harvard Medical School suggest that adverse events conservatively account for 5 percent of total healthcare spending, or $100 billion per year (2006 dollars), and that almost half of all adverse events (46.5 percent) are avoidable."

• "Between five and ten percent of all patients admitted to acute care hospitals acquire one or more infections, resulting in an estimated 90,000 deaths each year and annual waste totaling an estimated $4.5 to $5.7 billion per year."

So why are medical malpractice lawsuits falling when the cost in human lives and money is so staggering? The answer: attorneys have become ever more unwilling to handle medical malpractice claims and lawsuits from victimized patients due to the so-called "tort reform" movement that began in the 1970s.

"Tort reform" is a cost-shifting device. "Tort reform" laws take money from the hands of injured patients and their families and put it into the pockets of insurance companies. Those left to pick up the tab may be group medical insurers and taxpayers, who may have the responsibility to pay for the care of the most seriously hurt. Since most group medical insurance premiums are paid by businesses and employers, the buck stops there. Typical tort reform laws in medical malpractice include pre-lawsuit medical review panels and "caps" on damages. They also reduce the financial incentive of institutions, such as doctors and hospitals to operate safely, which leads to more costly medical errors.

In Louisiana, the 1975 Medical Malpractice Act introduced one of the most restrictive malpractice regimes in the United States. A damages cap of $500,000.00 was set for both economic and non-economic damages that has not been adjusted once for inflation in over 35 years. In addition, the law imposed a pre-lawsuit medical review panel process that even the leading medical malpractice insurer in the state has criticized as increasing the number of non-meritorious claims and the frequency component of insurance premium rates.

The medical and insurance industries' lobbyists routinely resist any upward adjustment of the cap in the Louisiana legislature usually claiming that it would increase medical malpractice premiums for doctors and other healthcare providers. No mention is ever made about the cost borne by taxpayers and business. Consider that the source and responsibility for the major awards in medical malpractice cases are doctors, hospitals and other healthcare providers protected by the MMA, yet the cost of their malpractice is shifted by the MMA to anyone but themselves.

In Louisiana, the Office of Risk Management is charged with recovery of medical expenses paid by Medicaid to and on behalf of victims of medical malpractice. When attorneys in Louisiana decline to accept medical malpractice claims due to their inherent risk, extraordinary expense and time delay, the opportunity to recover these losses by state taxpayers are lost. The same is true for small and major businesses in Louisiana who foot the bill for their employees group medical or workers compensation insurance. Louisiana taxpayers are also paying for medical malpractice expenses to older Americans covered by Medicare.

In conclusion, the Louisiana Medical Malpractice Act and system works to the advantage of those responsible for injury or death of Louisiana citizens who are already well off and who should bear the expense of their own mistakes. Taxpayers and businesses should make themselves heard when healthcare providers seeks to maintain or even expand their privileged status and shift the burden to everyone else.

U.S. Department of Health and Human Services, Office of the Inspector General, Adverse Events in Hospitals: National Incidence Among Medicare Beneficiaries (November 2010), pp. i-ii, found at http://oig.hhs.gov/oei/reports/oei-06-09-00090.pdf.

"Solid Underwriting Undercut by MPLI's Investment Losses," Best's Special Report, A.M. Best, April 27, 2009.

"Solid Underwriting Undercut by MPLI's Investment Losses," Best's Special Report, A.M. Best, April 27, 2009.

Americans for Insurance Reform, True Risk: Medical Liability, Malpractice Insurance And Health Care, July 2009; http://insurance-reform.org/pr/090722.html

Journal American Medical Association July 26, 2000;284(4):483-5

http://www.factsforhealthcare.com/whitepaper/HealthcareWaste.pdf

http://www.lammico.com/CMS400Min/500/insurance.aspx?id=3330#4

According to Dr. Jobs, the average salary for new physician jobs advertised in Louisiana is about 4% higher than the national average. Average starting salary for new general practitioners and family medicine doctors in Louisiana was $194,000.00 and for surgeons, $241,000.00; http://jobs.drjobs.us/louisiana.html

One of the reasons for medical "tort reform" that the medical industry and insurance lobby never tires of repeating is that medical costs are driven up by doctors practicing "defensive medicine" out of fear of malpractice lawsuits.  This claim has surface plausibility, but is in fact a myth.  Its constant repetition by the medical lobby and politicians who are either ignorant of the facts or pander to this special interest group require it be debunked.

There are so many fallacies in this myth that, in a short article such as this, it is impossible to list them all.  To start with, though, one begins by having to swallow whole the idea that contrary to good medical judgment, medical ethics,  and basic rules of Medicare (to use one example) which excludes coverage for tests and procedures that are not medically necessary, doctors will prescribe excessive or unnecessary medications, tests or procedures in the hope that  doing so will save them from legal liability.

"Defensive medicine" as a driver of higher medical costs has no known scholarly or empirical support.  What "evidence" there is arises inevitably from surveys of doctors or other interested parties in the health care industry who, when prompted, respond that they "fear" medical malpractice lawsuits and "imagine" they will avoid liability by violating their medical ethics and the law.  Health Insurance Watch, February 2011.

It is interesting to contrast the claims of "defensive medicine" by anonymous surveys of doctors with the American Medical Association's own Code of Medical Ethics:  "The practice of medicine, and its embodiment in the clinical encounter between a patient and a physician, is fundamentally a moral activity that arises from the imperative to care for patients and to alleviate suffering ... The relationship between patient and physician is based on trust and gives rise to physicians' ethical obligations to place patients' welfare above their own self-interest and above obligations to other groups, and to advocate for their patients' welfare.  (Opinion 10.015 - The Patient Physician Relationship) 

Whatever costs there may be that are incurred for patients, the insurance companies or the government by unethical doctors practicing illegal and immoral "defensive" medicine cannot compare to the medical and social costs of medical negligence. The remedy of legal access to the courts by victims of medical malpractice is perhaps the only real check in our current medical system against the consequences of medical error. 

Perhaps legislators and Congress should consider whether "caps" or other "reforms" of medical malpractice that limit or eliminate any recourse for negligent medical care may lead to increases in acts of malpractice and damage to patients and far greater cost than the mythical cost of defensive medicine.

Welcome to our blog, which is dedicated to discussion of medical malpractice issues in Louisiana from a patient's point of view. We hope to create and expand a network of people who are interested in reform of Louisiana's Medical Malpractice Act that imposes extreme restrictions on the rights of victims of medical malpractice to receive timely and fair compensation for injuries or death caused by medical negligence. We hope to shed some light on the facts and the law involving medical malpractice in Louisiana in the darkness created purposely by misleading and even false propaganda fostered by special interest groups within the medical and insurance industries.

To learn more about the New Orleans Medical Malpractice Forum and our principal author, Chip Wagar, visit the About Us page.

From Healthday

TUESDAY, March 22 (HealthDay News) -- Nurses often don't speak up about incompetent colleagues or when they see fellow health-care workers making mistakes that could harm patients, new research finds.

In recent years, many hospitals have taken steps to reduce medical errors through measures such as checklists, patient handoff protocols, computerized order entry systems and automated medication-dispensing systems.