The Hearst family of newspapers and television stations has put together, Dead By Mistake, an unprecedented look at medical malpractice deaths. This was a massive project, and there are several aspects that I want to look at over the next few days, but the focus of today is, “Why Aren’t More People Outraged Over Medical Malpractice Deaths?”

The study found that an estimated 98,000 people die from preventable medical errors each year. How many is that? To put it in perspective, the article noted that:

More Americans die each month of preventable medical errors than died in the terrorist attacks of Sept. 11, 2001.

Or, as Dennis Quaid put it, it’s the equivalent of a full 747 crashing every day.

Or, as those of us that are football fans might think of, it’s the equivalent of a full Darrell K Royal Texas Memorial Stadium being killed.

And to make it worse, in addition to those 98,000 dead, the Centers for Disease Control estimates that an additional 99,000 people a year die from infections acquired from hospitals. That’s almost 200,000 people a year killed by medical malpractice.

And where is the outrage? Sept. 11 has garnered its deserved media attention. And the airwaves over the last few days have been filled with stories about the small plane/sight-seeing helicopter crash. And I can only imagine the media coverage from some disaster wiping out a full DKR, but no one seems to care about medical malpractice.

Why?

I’ve seen these types of numbers before, and I’ve seen the pain endured by parents, children and spouses after a medical error takes a life, and I’ve wondered why no outrage. And I still don’t have an answer for it.

If any of you have an answer or thought on it, I’d love to hear it.

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Last week, noted blogger, Doctor Rich had a post examining the American College of Surgeons’ advice regarding medical tourism, where a patient travels outside the United States to obtain medical care. No shocker, but American surgeons aren’t fans of the practice, and they did their best to give reasons why patients should be careful with medical tourism.

For those of us that are plaintiffs’ lawyers, the biggest shocker had to be the physicians’ sudden concern that patients traveling out of the country might have difficulties bringing medical malpractice suits. Dr. Rich writes:

Second, and most astoundingly, Dr. Rich notes – not so much with interest, but more with awe – that the surgeons are beseeching their patients to consider just how difficult it might be to launch a malpractice suit against foreign doctors. (Dr. Rich himself does not know how difficult this would be. Given that we are being so strongly urged these days to merge the American legal system with international law, it might not be much of a problem for long.) Indeed, the potential difficulty in suing foreign doctors appears to be the chief differentiator, and the primary argument in favor of good-old-American-surgery. The surgeons, in essence, are saying, “Let us do your surgery, because we’re easier to sue if we screw up.”

This, from the very body of American physicians who are most at risk for malpractice suits, and who traditionally have been most vociferous in favor of malpractice reform.

This isn’t the first time I’ve heard this argument; in fact, I have a previous post on the subject (A Doctor Touting The Benefits of Texas’s Medical Malpractice System?). And I said it then, and I’ll say it again: I find this appalling. In 2003, when the medical and insurance lobbies simply obliterated the Texas medical malpractice system, the doctors were all over themselves to do anything they could to take away patients’ rights to sue. In 2003, and even earlier, the Texas Trial Lawyers’ Association tried to sit down with the medical associations to work out mutually beneficial legislation that might help meet the needs of the medical lobby while also protecting Texas consumers, and the medical lobby wanted none of it. They simply wanted to take away as many rights as possible. To sit there now and tout the medical malpractice system as a reason to avoid medical tourism is hypocrisy at its best.

I don’t know what the future holds for medical tourism, but I’ll continue to watch and see if the medical lobby continues this disingenuous concern for patients.

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Today’s Dallas Morning News ran a story that looked at whether the cost of health care has declined since the adoption of Texas’s medical malpractice caps.  The evidence concludes that the caps aren’t reducing health care costs for consumers.

Six years after the caps were passed, the doctors have enjoyed lower insurance rates (though rates haven’t decreased as much as they rocketed up shortly before the caps were passed) and Texas has more doctors (though, again, there is debate about why the numbers have increased), but consumers aren’t getting any additional relief.  In Texas, health insurance premiums continue to rise dramatically, and Medicare spending, an bellweather for medical costs, have increased dramatically.

And Texas isn’t alone.  The Dallas Morning News article cites a study by University of Alabama researchers that looked at 27 states, including Texas, that had caps on non-economic damages also concluded that tort reforms have not led to health care cost savings for consumers.  As Michael Morrisey, a professor of health economics at the University of Alabama put it:

The results of the study suggest that there are no insurance premium savings that accrue to consumers.  Are there other benefits to consumers?  If these cannot be identified, it is difficult to see a justification for the loss of legal rights.

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In 2003, the Texas legislature adopted sweeping medical malpractice reforms, including putting a cap on the amount of non-economic damages that plaintiffs could recover. Up unitl now, we’ve had a lot of anecdotal evidence that the caps were unfair, but earlier this week, four law professors (including three from the University of Texas school of law) released a study confirming the anecdotal stories.

The professors looked at how the cap was applied to jury verdicts across the state since the passage of HB4, the medical malpractice statute. I think their statistics were stunning. In cases won by the plaintiff, the damages were reduced by the caps in 47% of the cases. Jury verdicts are supposed to be protected. The jurors are the ones that see the evidence, see the victims and get a first hand look at how the malpractice has impacted the victims. The jurors are in the best position to truly determine the plaintiff’s loss. And, unfortunately, in almost half the cases where the jury finds that the doctor was negligent, the caps mean that the plaintiff isn’t being fully compensated, in the eyes of the jury, for his or her loss.

And just as trial lawyers predicted, the caps are having a disproportionate effect on the unemployed, the deceased and the elderly because these groups don’t have lost wages (economic damages) to prop up their claims. And those are just the cases that are brought and tried. The biggest discriminatory effect might come in case selection. In cases involving the elderly, children and the unemployed, the damages are almost always limited to non-economic damages. It is almost impossible to make these cases work economically. In such a situation, the attorneys are likely being asked to spend $80,000 – $100,000 of their own money (a fairly conservative amount for what it costs to work up a good medical malpractice case) when the best that they can hope for is recovering $100,000 in fees (40% of the $250,000 cap). Add in the difficult nature of medical malpractice claims, and good plaintiff’s lawyers have to turn down almost all medical malpractice cases brought by the unemployed or the elderly.

What does this all mean? During the HB4/Prop 12 debate, one of the constant themes that we heard from Joe Nixon and the tort reformers was the need to eliminate frivolous lawsuits. But this data says the opposite is happening. The tort reform measures don’t stop frivolous claims; they simply reduce the amount of meritorious claims.

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I thought this was a case that we could all agree upon.

David Fitzgerald went to his doctor to receive medical treatment and ended up with an infection that led to the amputation of both arms and legs. The case went to trial in February, and Fitzgerald prevailed. A jury awarded him $6.72 million in economic damages (things such as lost income and medical expenses) and also awarded an additional $11 million for his pain and suffering and impairment. Due to Texas medical malpractice limits, the $11 million was reduced to $250,000.00.

I thought this was a case where everyone could agree that the result was unjust. Even the tort reform lackeys talking about the case didn’t defend the result, but just said that limits are working. (They say limits are working because there are fewer malpractice cases. No kidding? If you change the rules so that the recovery in most cases isn’t high enough to justify the excessive cost of pursuing a malpractice case, of course, the number of cases will go down. But is that the proper measure of whether the limits work? Maybe we ought to learn something else from it.)

I didn’t think I’d really see anyone defending the result in the Fitzgerald case. I was wrong. Dr. Evelyn Tobias Merrill, of Fort Worth, had to write in to the Fort Worth Star Telegram and defend the verdict. As Dr. Merrill argued, “this case demonstrates that civil justice reforms in Texas enable patients to fully recover medical costs and living expenses associated with an injury…Reforms do work. They ensure that patients who have been injured receive the justice they deserve.”

Seriously, that’s justice? A man loses both arms and legs due to a doctor’s error and recovers $250,000 for his losses, and that’s justice? I try to think about what it would mean to me. No more hugging my wife. No more games of football or basketball with my kids. No more walking the kids to school. No more wrapping my arms around my kids to try and comfort them when they’re hurt. No more walks around the neighborhood with my dog. No more standing behind a grill with a beer, cooking for my buddies. No more Texas football, basketball or baseball games. No more golfing. No more volunteering around town.

For me, that’s not justice. And I suspect that if Dr. Merrill was the victim, she’d agree it wasn’t justice for her either.

Dr. Merrill’s letter and a response from a Dallas attorney are here.

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In the last few days, two stories have circulated about Texas medical malpractice reforms, and each of the stories has drawn wildly differing opinions about the success of the reforms.  Over the weekend, former Texas representative Joe Nixon, one of the primary backers of tort reform, wrote an editorial in the Wall Street Journal describing the unmitigated successes of tort reform.  (Interestingly, Mr. Nixon notes that in 2005, tort reform had become popular with voters.  Tort reform was apparently more popular with voters than Mr. Nixon.  Mr. Nixon resigned his house seat to run for the Texas Senate.  However, Mr. Nixon came in a distant third — receiving approximately 8% of the vote — in the Republican primary for the seat).

Just two days earlier, reporter Paul Adrian, of the Dallas/Fort Worth Fox affiliate, had run a story asking whether medical malpractice reform was necessary and whether it was benefitting Texans.  Adrian concluded that tort reform was not needed and that there wasn’t any significant benefit, unless you happened to be an insurance company.  In reaching these conclusions, Adrian had several discoveries.

In deciding that tort reform wasn’t necessary, Adrian noted several things.  First, Adrian noted that Texas’s average payout for claims was well below the national average.  He then also noted the work of University of Texas law professor Bernard Black who found that, when adjusted for inflation and population growth, there had not been any increase in the number of claims or the average amount of the claims in the years leading up to the reforms.

Adrian did note that malpractice insurance rates had increased significantly, but those increases didn’t likely have anything to do with malpractice litigation.  Adrian noted that in 1995, Texas had tort reform measures that regulated the rates that the carriers could charge.  At that time, carriers were competing fiercely for business and began undercharging.  Once that undercharging stopped, the rates skyrocketed, but not due to any litigation related expenses.

Adrian also had several interesting findings relating to his conclusion that average Texans aren’t benefitting from the reforms.  While medical malpractice claims have decreased, there is little evidence that this is increasing access to doctors.  While it may be true there are more doctors in Texas, the number of doctors in Texas was increasing prior to the reform.  In fact, Adrian quoted law professor Charlie Silver, who noted that the growth rate in doctors has actually slowed since the tort reform legislation was passed.  Adrian also noted that the reforms haven’t affected health insurance rates, another benefit promised when the reforms were debated.

For doctors, Adrian noted that medical malpractice insurance rates have decreased some, but nowhere near the 140+% increases in rates that led up to the reform.

But the real benefit was for insurance companies.  Adrian noted that medical malpractice insurance companies started making money hand over fist.  By 2006, approximately 50 cents on each dollar of premium collected was going to profit.

Adrian concludes:

So did Texans benefit from tort reform?

Doctors, some.

Insurance companies? A lot.

Most Texans probably couldn’t say.

But if you lost your baby after a difficult delivery, tort reform may have taken away your ability to find answers.

Melody Pinsukanjana said, “We’ve lost access to the courts and that’s the biggest frustration I have.”

I urge you to read and watch these two tales, and then consider the source and the data, and make your own conclusions about whether medical malpractice reform is a success.

Related Posts:

• Medical Malpractice: More Docs In Texas?
• Baby, I Lied.  Rural Texas Still Waiting For Doctors
• Doctors Heading To Texas? Let Them Go

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I was watching a local news station last night, and they had a story about medical tourism.  There is apparently a quickly growing trend of people visiting foreign countries (primarily India) to have medical procedures performed.  The procedures are suppposedly much cheaper than the same surgeries here in the US.  I really began paying attention when the reporter interviewed a doctor and asked his thoughts about the practice. The doctor said that one benefit of having services performed here was that we had medical malpractice laws to protect patients in case something went wrong.  I was shocked.  A doctor touting the benefits of medical malpractice laws?  You’re kidding me, right?  In 2003, when the medical malpractice system came under fire, I don’t remember any doctors jumping up to defend the system and the public’s rights.   I just remember doctor after doctor talking about how bad the system was and pushing for more limits that have essentially destroyed the system for most victims of medical malpractice.  But I guess it’s okay to support the system now when it’s a benefit that could help your business.

You can watch the story here.    Hopefully the station will allow us to embed stories in the future.

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“IT’S BIGGER THAN AIDS.  IT’S BIGGER THAN BREAST CANCER. IT’S BIGGER THAN AUTOMOBILE ACCIDENTS.  AND YET, NO ONE SEEMS TO REALLY BE AWARE OF THE PROBLEM.”

I couldn’t have said it any better myself.  That quote from Dennis Quaid accurately sets forth the problem with medical errors.  Over 100,000 people a year die from medical mistakes, but no one seems to notice.  The Quaids want to change that, and they are using their celebrity to try and raise awareness of the problem.  One of their first stops on the publicity tour was a weekend interview on 60 Minutes.  Their powerful story is below.

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Tort reform lobbying groups took an unusual step this week by filing a declaratory action suit here in Austin trying to establish that the 2003 medical malpractice caps on liability are constitutional.  The suit stems from a lawsuit against Corpus Christi doctor John McKeever.  In that suit, patient Adrian Cerny sued Dr. McKeever after Cerny developed a serious infection following surgery.  As part of the suit, Cerny alleged in his pleading that the Chapter 74 caps on medical malpractice damages violated various provisions of the Texas constitution.  Instead of litigating the constitutionality in the Corpus court, Dr. McKeever, tort reform lobbyist group Texas Alliance for Patient Access, the Texas Medical Association,  and the Texas Hospital Association filed suit against Cerny in Travis County asking the Travis County courts to declare that the caps are constitutional.

This is a highly unusual move that I think will ultimately be unsuccessful. Dr. McKeever and the lobby groups filed their suit based on a provision in the act that said the constitutionality of the statute “may” be addressed in Travis County.  The provision is not mandatory.  It is the general rule in Texas that when two suits are filed litigating the same issue, the first suit usually controls, and the second suit must be abated  (there are, of course, exceptions, but none that I think would apply here).  Because it is not mandatory that the constitutionality be challenged in Travis County, I think it is likely that Cerny will file a plea in abatement arguing that the constitutionality is already being litigated in the Corpus suit.  The plea should be granted, and the litigation over the constitutionality should continue in Corpus.

The real question is why use the Cerny case as a test case?  Mike Hull, the lobby groups’ attorney, says that he chose this suit because Cerny’s lawsuit “has the broadest number of challenges to the Constitution.”  But that’s not really true.  The pleading by Cerny is not much different than most challenges.  In fact, it may be more limited.  Probably the best challenges to the statute are based on arguments that the statute violates the US constitution.  Cerny doesn’t object to the caps on any federal constitutional basis.  Perhaps we’ll see in the coming months the real reason that the lobby groups chose this case.

It will be interesting to see how this turns out.  Regardless, we won’t have a dispositive answer until the federal courts chime in.

Travis Poling of the San Antonio Express News has an article on the case (and it quotes me).

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The American College of Emergency Physicians released its National Report Card of Emergency Medical Services, and Texas received a strong “C” grade.  The state received a “D” in public health/safety, a “D+” in access to care, and a “D+” in quality/patient safety.  But a strong “A+” in medical liability raised the state an entire letter grade to an overall “C.”

It’s great to see the medical malpractice reform really helping improve care that Texas patients receive (and, of course, we say that tongue-in-cheek).

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, LLP or to learn more about Austin Personal Injury visit http://www.civtrial.com/.