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  #1  
Old 07-09-2002, 08:35 PM
hts hts is offline
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Is this medical malpractice

and if so, does my friend have a case?

A doctor recommends a surgical procedure for his son. The parents, understanding the risks involved, comply with the doctor's recommendation and grant permission for the procedure. It's successful. The test results are sent off to a lab for analysis. The doctor informs the parents that the tissue samples were never sent out to the lab, and that the procedure should be performed again. The parents give consent. The procedure is performed a second time (exact same procedure, bone marrow aspiration, same risks, etc.). After the second procedure was performed, the parents are notified that in fact the tissue from the FIRST procedure was in fact sent out to the lab (although it was thought by the doctor that it hadn't been), thus making the second procedure unnecessary. Fortunately the child wasn't harmed/injured (other than normal surgical recovery) as a result of either procedure.

Should I recommend to my friend to pursue with a malpractice attorney, or just forget about it and let it drop (no real harm, no foul)? Your thoughts?
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  #2  
Old 07-09-2002, 09:13 PM
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dredmo dredmo is offline
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Re: Is this medical malpractice

Quote:
Originally posted by hts
and if so, does my friend have a case?

A doctor recommends a surgical procedure for his son. The parents, understanding the risks involved, comply with the doctor's recommendation and grant permission for the procedure. It's successful. The test results are sent off to a lab for analysis. The doctor informs the parents that the tissue samples were never sent out to the lab, and that the procedure should be performed again. The parents give consent. The procedure is performed a second time (exact same procedure, bone marrow aspiration, same risks, etc.). After the second procedure was performed, the parents are notified that in fact the tissue from the FIRST procedure was in fact sent out to the lab (although it was thought by the doctor that it hadn't been), thus making the second procedure unnecessary. Fortunately the child wasn't harmed/injured (other than normal surgical recovery) as a result of either procedure.

Should I recommend to my friend to pursue with a malpractice attorney, or just forget about it and let it drop (no real harm, no foul)? Your thoughts?
It is not malpractice, more like neglect. I would ask for a settlement, to cover the balance of the second procedure. If for some reason they are gonna attempt to claim unnecessary pain and suffering, maybe they were emotionally hurt, but that is a little touchy feely since nothing happened.. To me the chance was there for disaster, but it just did not happen. I would be pretty furious more than anything, but legally I dont think there is enough gist to the claim. But I am sure they could settle for missed work, etc, for the second procedure.

It seems all this could be achieved without a lawyer.
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Old 07-09-2002, 09:57 PM
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Re: Is this medical malpractice

Quote:
Originally posted by hts
and if so, does my friend have a case?

...the child wasn't harmed/injured (other than normal surgical recovery) as a result of either procedure.

Should I recommend to my friend to pursue with a malpractice attorney, or just forget about it and let it drop (no real harm, no foul)? Your thoughts?
Doesn't sound like there's a case there Harrison.

Negligent infliction of emotional distress??
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  #4  
Old 07-10-2002, 06:04 AM
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Re: Is this medical malpractice

I'm obviously not a lawyer, but it doesn't sound like there's much of a case. But, the child should receive some sort of "settlement" for enduring the procedure twice. Perhaps a free tonsillectomy? Or maybe a coupon for mom to get a free set of breast implants!

Sorry, that was probably out of line. :-)
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  #5  
Old 07-10-2002, 07:56 AM
Flee67 Flee67 is offline
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From what I've been told, you must prove a few things to have a good malpractice case.
1. Negligence
2. That negligence led to an "event"
3. That "event" led to "damages" (real damages, not stress, etc)

No case here, since you only have step 1 possibly proven. The MD was trying to do the right thing in making sure that the tests were run;
With this current litigatious climate in the health care field, I'm not surprised that we have a real access problem for care in some areas that is only going to get worse
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Old 07-10-2002, 08:34 AM
CD-55 CD-55 is offline
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I wish people would stop suing each other outrageous sums of money for honest mistakes. It disgusts me that it is the first thing that people often think of these days. I presume that the people who are mostly likely to sue over the normal misfortunes of life are self righteous spoiled whinny brats who think the world owes them. Get over it, life is a box of chocolates not a bowl of cherries.

The doctor should apologize and really mean it, send flowers/card or do something kind for the kid and the family (give them baseball tickets or something). The doctor should also reimburse all real cost associated with the 2nd procedure to the family. If the family had travel, meal expenses, or time off from work, the doctor should reimburse for all of that.

If the doctor is a responsible enough person to go to these lengths, then surely he will put in place procedures in his practice to prevent this from occurring again.
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Old 07-10-2002, 09:43 AM
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Re: Is this medical malpractice

[QUOTE]Originally posted by hts
[B]and if so, does my friend have a case?
QUOTE]

I'm sure there are scores of ambulance chasers who would argue he has a rock solid case....
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  #8  
Old 07-10-2002, 10:43 AM
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Spiderm0n Spiderm0n is offline
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if there is no harm done then there is no reason to sue, except the lure of easy $. We all pay more for insurance because people consider suing in cases like these. It is a crisis:


Lawsuits Alone Didn't Inflate Malpractice Premiums;
Reserves at St. Paul Distorted Pricing Picture in 1990s
By RACHEL ZIMMERMAN and CHRISTOPHER OSTER
Staff Reporters of THE WALL STREET JOURNAL

As medical-malpractice premiums skyrocket in about a dozen states across the country, obstetricians and doctors in other risky specialties, such as neurosurgery, are moving, quitting or retiring. Insurers and many doctors blame the problem on rising jury awards in liability lawsuits.

"The real sickness is people sue at the drop of a hat, judgments are going up and up and up, and the people getting rich out of this are the plaintiffs' attorneys," says David Golden of the National Association of Independent Insurers, a trade group. The American Medical Association says Florida, Nevada, New York, Pennsylvania and eight other states face a "crisis" because "the legal system produces multimillion-dollar jury awards on a regular basis."

But while malpractice litigation has a big effect on premiums, insurers' pricing and accounting practices have played an equally important role. Following a cycle that recurs in many parts of the business, a price war that began in the early 1990s led insurers to sell malpractice coverage to obstetrician-gynecologists at rates that proved inadequate to cover claims.

Price Slashing

Some of these carriers had rushed into malpractice coverage because an accounting practice widely used in the industry made the area seem more profitable in the early 1990s than it really was. A decade of short-sighted price slashing led to industry losses of nearly $3 billion last year.

"I don't like to hear insurance-company executives say it's the tort [injury-law] system -- it's self-inflicted," says Donald J. Zuk, chief executive of Scpie Holdings Inc., a leading malpractice insurer in California.

What's more, the litigation statistics most insurers trumpet are incomplete. The statistics come from Jury Verdict Research, a Horsham, Pa., information service, which reports that since 1994, jury awards for medical-malpractice cases have jumped 175%, to a median of $1 million in 2000. During that seven-year period, the median award for negligence in childbirth was $2,050,000 -- the highest for all types of medical-malpractice cases, Jury Verdict Research says. (In any group of figures, half fall above the median, and half fall below.)

Gaps in Database

But Jury Verdict Research says its 2,951-case malpractice database has large gaps. It collects award information unsystematically, and it can't say how many cases it misses. It says it can't calculate the percentage change in the median for childbirth-negligence cases. More important, the database excludes trial victories by doctors and hospitals -- verdicts that are worth zero dollars. That's a lot to ignore. Doctors and hospitals win about 62% of the time, Jury Verdict Research says. A separate database on settlements is less comprehensive.

A spokesman for Jury Verdict Research, Gary Bagin, confirms these and other holes in its statistics. He says the numbers nevertheless accurately reflect trends. The company, which sells its data to all comers, has reported jury information this way since 1961. "If we changed now, people looking back historically couldn't compare apples to apples," Mr. Bagin says.

Some doctors are beginning to acknowledge that the conventional focus on jury awards deflects attention from the insurance industry's behavior. The American College of Obstetricians and Gynecologists for the first time is conceding that carriers' business practices have contributed to the current problem, says Alice Kirkman, a spokeswoman for the professional group. "We are admitting it's a much more complex problem than we have previously talked about," she says.

Scrambling for Doctors

The upshot is beyond dispute: Pregnant women across the country are scrambling for medical attention. Kimberly Maugaotega of Las Vegas is 13 weeks pregnant and hasn't seen an obstetrician. When she learned she was expecting, the 33-year-old mother of two called the doctor who delivered her second child but was told he wasn't taking any new pregnant patients. Dr. Shelby Wilbourn plans to leave Nevada because of soaring medical-malpractice insurance rates there. Ms. Maugaotega says she called 28 obstetricians but couldn't find one who would take her.


Frustrated, she called the office of Nevada Gov. Kenny Guinn. A staff member gave her yet another name. She made an appointment to see that doctor today but says she is skeptical about the quality of care she will receive.

In the Las Vegas area, doctors say some 90 obstetricians have stopped accepting new patients since St. Paul Cos., formerly the country's leading provider of malpractice coverage, quit the business in December. St. Paul had insured more than half of Nevada's 240 obstetricians. Carriers still offering coverage in the state have raised rates by 100% to 400%, physicians say.

Dr. Wilbourn says his annual malpractice premium was due to jump to $108,000 next month, from $33,000. The 41-year-old solo practitioner says the increase would come straight out of his take-home pay of between $150,000 and $200,000 a year. In response, he is moving to Maine this summer.

Dr. Wilbourn mourns having "to pick up and leave the patients I cared for and the practice I built up over 12 years." But in Maine, he has found a $200,000-a-year position with an insurance premium of only $9,800 for the first year, although the rate rises significantly after that. Premiums in Maine are relatively low because a dominant doctor-owned insurance cooperative there hasn't pushed to maximize rates, the heavily rural population isn't notably litigious and its court system employs an expert panel to screen out some suits, says Insurance Commissioner Alessandro Iuppa.

Until the 1970s, few doctors faced big-dollar suits. Malpractice coverage was a small specialty. As courts expanded liability rules, malpractice suits became more common. Dozens of doctor-owned insurance cooperatives, or "bedpan mutuals," formed in response. Most stuck to their home states.


St. Paul, a mid-sized national carrier named for its base in Minnesota, saw an opportunity. An insurer of Main Street businesses, St. Paul became the leader in the malpractice field. By 1985, it had a 20% share of the national market. Overall, the company had revenue of $8.9 billion last year, with about 10% of its premium dollars coming from malpractice coverage.

The frequency and size of doctors' malpractice claims rose steadily in the early 1980s, industry officials say. St. Paul and its competitors raised rates sharply during the 1980s.

Expecting malpractice awards to continue rising rapidly, St. Paul increased its reserves. But the company miscalculated, says Kevin Rehnberg, a senior vice president. Claim frequency and size leveled off in the late 1980s, as more than 30 states enacted curbs on malpractice awards, Mr. Rehnberg says. The combination of this so-called tort reform and the industry's rate increases turned malpractice insurance into a very lucrative specialty.

A standard industry accounting device used by St. Paul and, on a smaller scale, by its rivals, made the field look even more attractive. Realizing that it had set aside too much money for malpractice claims, St. Paul "released" $1.1 billion in reserves between 1992 and 1997. The money flowed through its income statement and boosted its bottom line.

St. Paul stated clearly in its annual reports that excess reserves had enlarged its net income. But that part of the message didn't get through to some insurers -- especially bedpan mutuals -- dazzled by St. Paul's bottom line, according to industry officials.

In the 1990s, some bedpan mutuals began competing for business beyond their original territories. New Jersey's Medical Inter-Insurance Exchange, California's Southern California Physicians Insurance Exchange (now known as Scpie Holdings), and Pennsylvania Hospital Insurance Co., or Phico, fanned out across the country. Some publicly traded insurers also jumped into the business.

With St. Paul seeming to offer a model for big, quick profits, "no one wanted to sit still in their own backyard," says Scpie's Mr. Zuk. "The boards of directors said, 'We've got to grow.' " Scpie expanded into Connecticut, Florida and Texas, among other states, starting in 1997.

As they entered new areas, smaller carriers often tried to attract customers by undercutting St. Paul. The price slashing became contagious, and premiums fell in many states. The mutuals "went in and aggravated the situation by saying, 'Look at all the money St. Paul is making,' " says Tom Gose, President of MAG Mutual Insurance Co., which operates mainly in Georgia. "They came in late to the dance and undercut everyone."



The newer competitors soon discovered, however, that "the so-called profitability of the '90s was the result of those years in the mid-80s when the actuaries were predicting the terrible trends," says Donald J. ***er, president of Medical Liability Mutual Insurance Co., a bedpan mutual started in 1975 in New York. Except for two mergers in the past two years, his company mostly has held to its original single-state focus.

The competition intensified, even though some insurers "knew rates were inadequate from 1995 to 2000" to cover malpractice claims, says Bob Sanders, an actuary with Milliman USA, a Seattle consultancy serving insurance companies.

Alleged Fraud

In at least one case, aggressive pricing allegedly crossed the line into fraud. Pennsylvania regulators last year filed a civil suit in state court in Harrisburg against certain executives and board members of Phico. The state alleges the defendants misled the company's board on the adequacy of Phico's premium rates and funds set aside to pay claims. On the way to becoming the nation's seventh-largest malpractice insurer, the company had suffered mounting losses on policies for medical offices and nursing homes as far away as Miami.

Pennsylvania regulators took over Phico last August. The company filed for bankruptcy-court protection from its creditors in December. A trial date hasn't been set for the state fraud suit. Phico executives and directors have denied wrongdoing.

In the late 1990s, the size of payouts for malpractice awards increased, carriers say. By 2000, many companies were losing money on malpractice coverage. Industrywide, carriers paid out $1.36 in claims and expenses for every premium dollar they collected, says Mr. Golden, the trade-group official.

The losses were exacerbated by carriers' declining investment returns. Some insurers had come to expect that big gains in the 1990s from their bond and stock portfolios would continue, industry officials say. When the bull market stalled in 2000, investment gains that had patched over inadequate premium rates disappeared.

Some bedpan mutuals went home. Scpie stopped writing coverage in any state other than California. "We lost money, and we retreated," says the company's Mr. Zuk.

New Jersey's Medical Inter-Insurance Exchange, now known as MIIX, had expanded into 24 states by the time it had a loss of $164 million in the fourth quarter of 2001. The company says it is now refusing to renew policies for 7,000 physicians outside of New Jersey. It plans to reformulate as a new company operating only in that state.

St. Paul's malpractice business sank into the red. Last December, newly hired Chief Executive Jay Fishman, a former Citigroup Inc. executive, announced the company would drop the coverage line. St. Paul reported a $980 million loss on the business for 2001.

As carriers retrench, competition has slumped and prices in some states have shot up. Lauren Kline, 6 months pregnant, changed obstetricians when her long-time Philadelphia doctor moved out of state because of rate increases. Now, her new doctor, Robert Friedman, may have to give up delivering babies at his suburban Philadelphia practice. His insurance expires at the end of the month, and he says he is having difficulty finding a carrier that will sell him a policy at any price.

Last year, Dr. Friedman says he paid $50,000 for coverage. If he gets a policy for next year, it will cost $90,000, he predicts, based on his broker's estimate. "I can't pass a single bit of that off to my patients," because managed-care companies don't allow it, he says.

Dr. Friedman says he is considering dropping the obstetrics part of his practice. Generally, delivering babies is seen as posing greater risks than most gynecological treatment. As a result, insurers offer less-expensive policies to doctors who don't do deliveries.

Mr. Golden of the insurers' association argues that whatever role industry practices may play, the current turmoil stems from lawsuits. The association says that from 1995 through 2000, total industry payouts to cover losses and legal expenses jumped 52%, to $6.9 billion. "That says there are more really huge verdicts," Mr. Golden says. Even in the majority of cases in which doctors and hospitals win -- the zero-dollar verdicts -- there are still legal expenses that insurers have to pick up, he adds.

Industry critics point to different sets of statistics. Bob Hunter, director for insurance at Consumer Federation of America, an advocacy group in Washington, prefers numbers generated by A.M. Best Co. The insurance-rating agency estimates that once all malpractice claims from 1991 through 2000 are resolved -- which will take until about 2010 -- the average payout per claim will have risen 47%, to $42,473. That projection includes legal expenses and suits in which doctors or hospitals prevail.

While the statistical debate rages, pregnant women adjust to new limits and inconveniences. Kelly Biesecker, 35, spent many extra hours on the highway this spring, driving from her home in Villanova, Pa., to Delran, N.J., so she could continue to use her obstetrician. Dr. Richard Krauss says he moved the obstetrics part of his practice from Philadelphia because malpractice rates had skyrocketed in Pennsylvania. Ms. Biesecker, who gave birth to a healthy boy on June 5, says Dr. Krauss was the doctor she trusted to guard her health and the health of her baby: "You stick with that guy no matter what the distance."

Dr. Krauss, 53, left Philadelphia last year only after his malpractice premium rose to $54,000, from $38,000, and then was canceled by a carrier getting out of the business, he says. After getting quotes of about $80,000 on a new policy, he moved. New Jersey hasn't been a panacea, however. His policy there expires July 1, and the carrier refuses to renew it. The doctor says he hopes to go to work for a hospital that will pay for his coverage.
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Old 07-10-2002, 10:54 AM
hts hts is offline
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Thanks guys, those were pretty much my thoughts as well--no real damages (thank goodness everything was ok as a result of the 2nd procedure as well), but I just wondered what the rest of you thought. I suspect they'll prolly still consult with an attorney, but I also think they're just wasting their time.
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