Archive for August, 2013

Medical Malpractice Payments Fall To New Low

By admin

Wednesday, August 21st, 2013

Since 2003, both the frequency of medical malpractice payments on behalf of doctors and the amount of money paid out has fallen every single year.   According to a newly released report from the advocacy group Public Citizen, in 2012 the number of payments fell to the lowest level on record.

During this same time period the nation’s health care cost has risen 58.3 percent.  The difference between rising health care costs and falling medical malpractice litigation further affirms that litigation is not to blame for rising medical costs or inadequate access to care.    According to the report “Dividends promised by those pushing litigation restrictions, such as cheaper overall health care, have not been realized”.

Other data found that despite claims that medical malpractice lawsuits are largely “frivolous” the reality is that over 81% of the money paid for medical negligence was for harms defined as significant permanent injuries; major permanent injuries; quadriplegia, brain damage, or injuries requiring lifelong care; or death.

So why the discrepancy between rising health care costs and decreasing malpractice payments?  According to the report, while medical malpractice payments are down, pay raises for physicians are up anywhere from 24.3 percent to 82 percent.  These figures suggest that the high cost of healthcare, not litigation or the fear of it, provides a far more plausible explanation for the increase.

Issues in Medical Malpractices: The Birth Injury Attorney

By admin

Tuesday, August 20th, 2013

I recently settled a case involving a brain damaged baby with cerebral palsy for $ 3 million dollars. We were able to position it for the right settlement approximately a year or so in advance of any likely trial date, through the hard work of a talented and passionate staff.

The settlement brought out issues that face a malpractice attorney, other than the obvious ones surrounding the fetal monitor strips, meconium staining and genetic or pre-natal abnormalities. The obvious hurdle was to establish that the sad result was caused by delayed medical response to signs of a non progressing labor and fetal distress. We had prepared proofs that this had to be anticipated and avoided by attention, communication and a timely c-section delivery that the situation demanded.

By definition, the only “script” was the chart written by those who malpracticed, and at some point knew their reaction was too slow and medically wrong.  The barrier to a successful outcome was what it always is: the defense bar and insurance carriers have almost limitless access to the witnesses as well as the resources and connection to a cast of “experts” that the injured family frequently can’t match. No matter what is in the record, experience tells us what the defenses will be and what the doctors retained by the defense will be hurling at us.

You cannot properly represent someone with such a life changing injury, without the experience, staffing and resources to understand, develop, and present the reality of what happened, as opposed to the pasteurized version.

There are many ways to tell the story. Knowing how to project it can be as varied and as creative as there are personalities and lawyers. A carrier, defense attorney, or potential juror can say they understand the severity of what the child and family face. They don’t, and it is our job to break through that resistance to something they have never lived, and make palpable the real horror suffered by real people and a real life; one that was unimaginably destroyed by inattention and sometimes, arrogance.

Projecting the reality and magnitude of what was lost, can be all the difference between a settlement, jury trial and the amount of recovery.

It can be the difference between an early settlement versus the ever present risk of a long, drawn out and painful litigation process. That process, by definition, invites the changed circumstances that time can bring to the condition or even survival of the injured child, as well as the obvious twists and turns human testimony can create.

The art is in anticipating the defenses and preparing for the problems so that the defense recognizes the hurdles can be cleared and the risk of trial is not something they want.

Aside from knowing the medicine and questions that must be answered, a focus also has to be on understanding what the child and family need to deal with what the malpractice has thrust upon them. Not for days or weeks, but long term. What can never be forgotten is that this is not the attorney’s case. It is the child’s and his family’s, whose needs and risks must be weighed against the strength and weakness of the facts and medicine.

In this case, no amount of money could make whole what had been taken.  Delay for this 8 year old and his family, was not in their best interests, as they realized money had a purpose and waiting for a trial off in the future was not something that was to the betterment of their child’s remaining life or their ability to care for him for however long that is to be. A big verdict or even a delayed, larger settlement, might have made the attorney feel good, but it had to be weighed against the benefit to the child and family of having resolution and funds to do now what was needed, while at the same time, protecting the future.

Spastic quadriplegia; cerebral palsy; brain damage; cortical blindness; pulmonary problems. These are not just words. They are real, life altering problems for the little boy and for his family. More was required of me than courtroom experience or even performance. More than knowledge of law and medicine. A judge I greatly respected had reminded me a long time ago that I was not just a legal warrior. I was to counsel, recognizing all sides of a law suit and clearly defining for the client what was before them, as we started through our legal system.

Not only did we consult with medical experts to develop a clear picture of the hurdles to proof of fault and its connection to the child’s problems. We also consulted with experts as to the care this child needed and the expense that would cause.

After all of that, we reached out for an expert on how to maximize the use of whatever funds we obtained, so that we knew what was needed, not just wanted. We had to recognize the impact on the family and the need to protect the child’s access to proper care over projected time periods.

Attorneys are trained to litigate. They are not money managers and they are not doctors. They are people who must look at and appreciate all aspects of their client’s needs and the most effective way to highlight their reality and what needs to be done to guide them through it.

Videos and exhibits to make the events and their impact, real, take experience and creativity. Pain must be more than a word. Suffering must be made more than a concept. Their reality requires thought, empathy, and imagination, that go beyond simple knowledge of the law.

More than familiarity with law books is needed. It requires a sense of how to communicate and persuade, so that the other side, whether it be the attorney, the carrier or the jury, is convinced of the right way to resolve such monumental suffering that no one, given the responsibility to evaluate and decide the meaning and impact of what happened, has ever experienced.