stuart's blog

Patient Safety Crisis: 440,000 Deaths per Year due to Medical Malpractice. Tort Reform is/was Never the Answer.

“All men make mistakes, but a good man yields when he knows his course is wrong, and repairs the evil. The only crime is pride.”

— Sophocles, Antigone

In the most recent peer reviewed investigation into the rate of death caused by preventable medical errors, The Journal of Patient Safety revealed a staggering number of 440,000 deaths per year.  The seminal study into the death rate due to medical neglect, published thirty years ago in 1984 by the Institute of Medicine, revealed a medical error death total of 98,000 per year.  The over fourfold increase in death due to preventable medical errors is eye opening to say the least.  What’s more, the Journal of Patient Safety further estimates that for every preventable death, medical errors produce 10 to 20 incidents of serious harm.  This makes injury or death due to medical negligence a national epidemic.

Clearly, we can do better.  Health care providers, hospitals, and the systems that bind them must begin devoting themselves to two important first steps: (a) acknowledging the problem and (b) doing everything possible to fix it.

Ambulance Chaser or Guardian of Community Safety? Will the Real Trial Lawyers Please Stand up?

The common view of a plaintiff’s personal injury lawyer is not flattering.   Most people see the PI lawyer as an “ambulance chasing” parasite on our economy and our society.  This image, perpetuated by those who oppose personal injury lawyers in court, prevails.  Who are those who oppose personal injury lawyers in court?  Insurance companies, pharmaceutical manufacturers, hospitals, product manufacturers, and doctors, to name a few.  There are plenty of resources available to generate the propaganda machine that feeds and perpetuates the adverse view of personal injury lawyers in our society.

The fault is not all the big money, powerful interests.  There are, of course, plenty of personal injury lawyers who feed the flame and who lack regard for a calling higher than lining their own pockets.  But this group is a minority.  Most personal injury lawyers willing to take on America’s biggest and most powerful entities are devoted to more than their own profit.  These men and women are empowered by the realization that their work makes a difference, that by holding negligent (and worse) actors accountable for the harm they cause, no matter how rich or powerful the negligent actor is, the plaintiff’s personal injury lawyer helps make all of us safer.

Medical Malpractice and the Alarming Rate of Diagnosis Errors

New research released this month by a leading patient safety expert shows that 1 out of every 20 patients, or approximately 12 million U.S. adults each year, will be misdiagnosed by their doctor or hospital.  These numbers are staggering because they involve major illnesses like colon cancer, lung cancer, pneumonia, infections, and other serious, life threatening diseases.  What’s worse is that several experts believe the newly released data is a bare minimum, and that it undercounts the true incidence of medical diagnosis errors.  The culprit?  Lack of attention, insufficient time spent with patients, lack of technical support, and a “chaotic outpatient environment” for evaluating patients.

Patients must be on guard.  They must ask questions and push for better answers.

But doctors and hospitals should eliminate this epidemic of mistakes. Think about it: if airplanes and airplane pilots had this type of failure rate, if 1 out of every 20 commercial aircraft crashed in flight, almost no one would travel by air.

McCall v. United States of America: A Victory for Democracy, for Florida, and for High Quality Health Care

Today the Florida Supreme Court declared that non-economic damage caps in medical malpractice cases violate the Florida Constitution.  This is an historic moment.  Damage caps in tort cases, and medical malpractice cases in particular, were the cornerstone of the “tort reform” agenda.  Tort reform was, and is, the insidious political tool Republicans, under the tutelage of Karl Rove and George and Jeb Bush, used to advance their agenda and win elections.  Rove and the Bush brothers used tort reform to scare voters into believing that lawsuits, trial lawyers, and jury verdicts were the chief threat to our economy, to jobs, to reasonable prices, and to access to health care.  By creating the bogeyman of “greedy trial lawyers” and runaway juries, Rove and the Bush brothers persuaded legislatures, like the Florida legislature, to eviscerate the jury system altogether.  Ignoring the facts that jury verdicts are the product of weeks of intense and careful analysis of evidence, that juries are historically eloquent at determining the fairness and righteousness of a cause, and most importantly, that jury verdicts make us all safer by creating assurances and incentives that curb anti-social and dangerous behavior, Rove and the Bush brothers pulled the wool over our eyes and scared us into ideas that would destroy our judicial branch.

Reflections on a Year in the Life of a Trial Lawyer

          Another year comes to a close this month.  For the Ratzan Law Group, this has been an emblematic year in the life of our trial lawyers.   We had our ups and our downs, our successes and failures.  We took risks on behalf of our clients, and most of them proved successful.  We successfully battled one of the largest transnational companies in the world.  We secured favorable settlements on behalf of our clients. We lost one trial.  We gave back to our community with money and with time.  We fought on behalf of our colleagues.  We supported a dear friend fighting breast cancer.  And we celebrated life.  It was a good year.  We achieved, we prevailed, we fell short.  We felt joy.  We felt pain.  We are left with a feeling of great satisfaction, but also a feeling that we can do more and we can do better.  We love that feeling because we think it drives us to be our best.

Florida Supreme Court: Medical Malpractice Arbitration Agreement Void As Against Public Policy

                In Franks v. Bowers, a landmark decision involving medical malpractice arbitration provisions, the Florida Supreme Court yesterday (June 20, 2013) struck down a medical malpractice arbitration provision that differed substantially from Florida's statutory arbitration provision and violated public policy.  The case involved the wrongful death of Joseph Franks, a patient of Gary Bowers, M.D. at North Florida Surgeons, P.A.

Otaola v. Cusano’s Bakery: Justice for the Family of a Miami Cyclist

After a long, arduous journey, Marisela Otaola and her family received justice this year when they resolved their case against Cusano’s Bakery in the wake of a favorable decision from the Third District Court of Appeal. The underlying, tragic case involved the wrongful death of Omar Otaola, age 34, who was an avid cyclist. Omar, riding his bicycle across Bear Cut Bridge on Key Biscayne (the site of several tragic cycling deaths), was run down and killed by a Cusano’s Bakery truck on a Saturday morning in February, 2006.

The Right Stuff: A Judge for Now, A Judge for All Time

                I attended the investiture of Judge Alan Fine today.  It was a remarkable event.  A testament to a man who is well loved and highly regarded, the event was natural, down to earth, and sincere.  Multiple speakers from Judge Fine's life came and expressed their admiration and their love for him.  They extolled his intellect, his perseverance, his success, and even his good looks.  But most importantly, they extolled his judicial demeanor and his judicial mindset.  Speaker after speaker conf

5 "Big Picture" Trial Tips for Your Next Trial

There are many important and valuable trial tactics and techniques.  You can and should read books on the subjects and attend seminars too.  Here are 5 "big picture" tips to remember before every trial:

Capping Damages on Brain Injured Babies: Florida Supreme Court Gives Approval

                 The Florida Supreme Court this week, in Samples v. Florida Birth Related Neurological Injury Compensation Association, upheld the constitutionality of Florida's $100,000 non-economic damage cap for babies who suffer brain injuries due to medical malpractice during labor and delivery.  The court, split 4-3, concluded that the statutory scheme known as NICA (it creates the "Neurologic Injury Compensation Association") satisfies constitutional scrutiny because it provides a reasonable alternative remedy to the civil justice system for brain injured babies.  The no-fault NICA system enables injured claimants to recover money for economic losses plus the $100,000 non-economic cap, on a no-fault basis, if they suffered a qualifying neurological injury during labor, delivery, or resuscitation in the immediate post delivery period in a hospital.

They Did it Again: The Florida Legislature adds More Roadblocks for Floridians Injured or Killed due to Medical Neglect

           So, it’s over.  Another legislative session.  For the  15th time in 15 years, the Florida Legislature debated "tort reform" seeking to restrict or eliminate the rights of Floridians maimed or killed due to medical neglect.  (I leave "tort reform" in quotes because it is less about reform and more about eliminating rights.)  This year they did it again.  This year they passed more "tort reform." Thanks in large part to a state representative named Matt Gaetz, R-Fort Walton Beach, the Florida legislature made it more difficult for patients injured due to medical neglect to bring claims or to succeed in claims for money damages. 

             For some, this is a good thing.  Doctors, hospitals, and the liability insurance companies who insure them are obviously content. Those who believe that “greedy trial lawyers” and “runaway juries” are a threat to our economy, welfare, and health care system, are also content.

             For years, big business, big insurance, and the health care industry have inundated us with the myth that the civil justice system is not trustworthy and/or that it is damaging our economy.

             But the facts don’t jive with the “tort reform” message.  As I have pointed out elsewhere in these pages, juries are not out of control and the civil justice system is causing little, if any, increased costs.  In fact, the civil justice system is an essential aspect of a public policy seeking safety and excellence in medical care.  See "For Safety's Sake: Doctors Expose Medical Malpractice Myths."

             What is certain is that every time the legislature makes it more difficult to bring a case, the civil justice system grows less capable of dispensing justice, and less capable of protecting us or giving us safer medical care.  

             This year, the new law makes it more difficult to retain expert witnesses to testify about what went wrong.  Ignoring the fact that medicine is interdisciplinary and interdependent, the Bill just passed now prohibits overlapping medical specialties from offering expert opinions about what went wrong in a case.  Even if two physicians are trained to perform the exact same procedure the exact same way, and even where they work together, hand in glove, on the procedure or the patient’s condition, they cannot opine on the care rendered if their background or training is in different specialties. In a world where negligence and wrongdoing have no consequences, negligence and wrongdoing thrive.

"Tort Reform" and the Nursing Home Industry: Bad Public Policy Puts Profits Over Safety

                Recently, there has been news and debate over nursing home legislation.  Over the past few years, nursing home neglect made its way into the public domain as The Miami Herald and other news outlets exposed the state of affairs in many of Florida's nursing homes and assisted living facilities ("ALFs").  Today, as I write this, there is legislation proposed in Tallahassee that seeks to increase government regulation of nursing homes with the hope of making nursing homes safer, cleaner, and more accountable.  Despite the legislation's good intentions, the Florida legislature is likely to let if fail. 

                In truth, the problem with nursing home safety and accountability has a much easier, less costly, and less bureaucratic solution than granting more power to the state's Agency for Health Care Administration: our civil justice system.  If we really want to improve the conditions at nursing homes and ALFs, the solution is simple: (a) eliminate the pervasive arbitration provisions nursing homes and ALFs require of their residents that extinguish the residents' rights to jury trials in negligence cases and seek to cap damages against nursing homes; (b) require nursing homes and ALFs to carry a minimum of $5 million of liability insurance; (c) eliminate the shell game of corporate ownership at nursing homes and ALFs so that anyone who owns or operates such a facility is subject to liability for their  nursing home's/ALF's negligence and for any attempt to put profits over safety; (d) create an enforceable attorney's fee provision for all cases against nursing homes and ALFs; (e) eliminate any damages caps, including punitive damage caps, that might ever apply to the negligent (or worse) conduct of nursing home or ALF facilities. Our state's trial bar and civil jury pool can and would fix this problem in a hurry.

Hospital Errors Equal Hospital Profits: Blaming the Lawyers?

                 In a recent article published by JAMA ("The Journal of the American Medical Association"), the authors revealed what we all probably knew anyway: medical errors, including surgical errors, actually make money for hospitals.  After all, when the errors cause complications the patients require more care, more days in the hospital, and the hospital bill is larger.

                 The authors, from various institutions including Harvard Medical School and Harvard School of Public Health, demonstrated that private insurers and Medicare routinely pay for the added care, irrespective of whether the care was occasioned by medical malpractice.

                 The data, though intriguing, is hardly surprising.  The difficult issue, however, is whether we can trust the marketplace to motivate doctors and hospitals to reduce medical errors when they have no financial incentive to do so.  The article points out that no one believes hospitals are intentionally causing errors to make money.  But the converse concern remains: no one really believes hospitals have great incentives to spend money on error reduction when doing so reduces revenues.

Coming Full Circle: Douglas, Engle, and the Status of Cigarette Litigation in Florida

"I meant what I said, and I said what I meant.  An elephant's faithful, one hundred percent!"

--Horton the Elephant            

                I loved Horton as a kid, and my kids loved him too.  For some reason, over the past few years, whenever I pondered the cigarette industry's challenge to the Florida Supreme Court's Engle opinion, I found myself repeating the elephant's famous line from the Dr. Seuss book Horton Hatches the Egg.  It is a silly book and the elephant is a silly character.  Clearly, most of us, including me, view the Suprme Court as an august and serious body.  But the silliness of the industry's challenge evokes silly images.  And so, like Horton the Elephant, the Florida Supreme Court, in Philip Morris USA, Inc., et al. v. Douglass, 2013 WL 978259 (Fla. 2013), made it clear that it meant what it said in Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. 2006).    

Wos v. E.M.A.: The United States Supreme Court Puts Medicaid Liens in Their Place

          Any plaintiff’s lawyer who has successfully resolved a case for a Medicaid beneficiary knows the importance of the United States Supreme Court’s opinion Wos v. E.M.A., 568 U.S. ___ (2013), released this week.

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