Joint study recently released on medical malpractice claims

On Tuesday, October 29 Aon Risk Solutions and the American Society for Healthcare Risk Management (ASHRM) released a joint study on medical malpractice.

The study, released at ASHRM’s Austin, Texas conference  posits that the frequency of medical malpractice claims will not increase in the upcoming year and will only increase slightly over the next ten years at a rate of 2.5%. This is the lowest recorded rate of severity growth in the 14-year history of the study.

Though medical services can be extremely helpful, victims of malpractice and negligence should consult experienced legal counsel if they have suffered from poor treatment. The Massachusetts attorneys at Crowe & Mulvey, LLP have the knowledge and competence to effectively represent our clients’ needs. Contacts us at (617) 426-4488 to find out if we can help you.

Monday Mornings

monday mornings cover
For anyone who wants a peek behind the curtain of Morbidity and Mortality conferences–those secret peer review meetings where medical errors are discussed–there’s a book-turned TV series that offers an interesting glimpse.  Monday Mornings is a TNT series based on a book of the same name by medical journalist Sanjay Gupta.  As with most things worth watching, the series was cancelled after one season, but it remains readily available thanks to Amazon Instant Video!

As I’ve ranted before, the medical profession has an established tradition of meeting to discuss bad outcomes in patient care, and has prevailed upon legislatures in every state to pass laws allowing them to keep those discussions secret, even from the patients whose care is being discussed.  Monday Mornings offers a fictionalized description of what goes on behind those closed doors.

While the characters’ personalities–the pompous chief of staff, the emergency department doctor who shoots from the hip, the scruffily handsome neurosurgeon who is having an affair with his beautiful colleague– are rather stereotypical and obviously created to bolster the dramatic storyline, there is still plenty of focus on how hospitals react to medical mistakes.  For the most part, discussions in the Monday morning meetings are brutally honest in their criticism of surgeons who’ve made errors, both in technique and in reasoning.  Of course, when the chief of staff decides to terminate the privileges of a doctor who made an inexcusable error, it is clear that he will allow the physician to go practice at another facility–another dose of reality in a world where bad doctors move freely from hospital to hospital and state to state.

Most people outside the medical profession will never get a chance to see the inner workings of the peer review process up close and personal.  Gupta’s inside knowledge brings readers and viewers a unique look at how the medical profession handles errors.  The result is flattering and frightening in equal parts, as the providers genuinely seem to strive for improvement, yet at the same time are willing to conceal mistakes from public view.  Despite the dramatic embellishments, the book is worth a read for lawyers and patients who are interested in how the peer review system really works. The TV series faithfully tracks the book, and the cast makes a compelling drama.

The Great Investment Nobody Wants

Interest-Rate-300x300Last week, Massachusetts Lawyers Weekly published an editorial advocating that the interest rate on tort judgments be reduced from 12%, where it has stood since 1982.  Noting that the 12% rate is “dramatically higher than commercially available rates,” the local legal newspaper claimed that the rate ignor[es] the economic realities of 2013.”  The local defense bar has called the rate a “windfall” and a “lottery.”

The truth of the matter is that no injured victim in his right mind would intentionally allow a case to go to a jury verdict simply to gain the “advantage” of the 12% interest rate.  Injured people deserve and need prompt, fair compensation, often simply to pay their medical bills and replace lost income.  When they don’t get it because of delays in the litigation process, the consequences often include massive debt and even financial ruin.  And incidentally, when those victims use their credit cards to cover their medical bills and living expenses, they don’t pay 12% interest on their debt–they pay 18% or even 21%!

So that 12% interest rate may sound like a great investment, but the reality is that it doesn’t begin to address the financial devastation caused by most serious injuries.  In fact, many of those same defense lawyers who decry the 12% interest rate for injured victims charge 1.5% per month (18% per year) on their own unpaid bills.

The 12% interest rate comes into play only when a case is tried to a verdict–it has no effect on the more than 95% of cases that are settled before trial.  And it applies only to general tort claims; an exception carved out for medical malpractice cases allows only a much lower interest rate in those cases.   Since 2004, the interest rate for malpractice cases has been established by M.G.L. c.231 s.60K at the one-year Treasury Bill rate plus 4%; last year, the legislature lowered it again, to the one-year rate plus 2%.

And in attempting to justify its position by referring to other states’ somewhat lower judgment interest rates, Lawyers Weekly ignored our neighbor to the immediate south.  The Rhode Island Supreme Court recently refused a defendant doctor’s pleas to toss out a similar interest rate that applies to Rhode Island cases.  In Oden v. Schwartz, the Rhode Island court held that the 12% interest rate on judgments in that state is constitutional, and serves the dual purpose of compensating successful plaintiffs for the delay in obtaining the compensation they are due, and encouraging pre-trial settlements.

The clamor for lower interest rates is simply another effort by insurance companies to increase their bottom line at the expense of injured people.  Before the legislature attacks this vulnerable group by lowering interest rates, it would do better to look at all the other industries where interest rates are much higher.

Surgical Errors on the Rise?

mast-surgical-errorRecently released statistics from the Massachusetts Division of Health Care Quality  (DHCQ) show a projected increase in certain types of surgical errors in 2012 as compared to 2011.  According to the data, which comes directly from mandatory hospital reports, the number of surgeries performed on the wrong body part and the incidence of foreign objects left in patients both increased by 60% in the first half of 2012, as compared to the previous year.  Hospitals reported smaller increases in performance of the wrong surgery or procedures performed on the wrong patient.

The DHCQ calculated the statistics by doubling the the number of each type of incident reported by hospitals from January through June 2012 to estimate the number of adverse events for the full calendar year.  The data for the last half of the year is not yet available, and may not be directly comparable due to changes in some definitions that took effect in October 2012.

The statistics are based on Massachusetts hospitals’ self-reports of “serious reportable events (SREs),” a term intended to capture certain presumably preventable adverse events.  Under DHCQ regulations, hospitals must report events falling within the enumerated categories–and must notify patients that such an event has occurred.

A major weakness in the system is that it is dependent on the honesty of hospitals and the health care providers who may be involved in errors.  A surgeon who quickly finds a sponge left in a patient might not report it to the administration–or the administration might interpret the regulations so as not to require a report.  For example, recent statistics show that neither Children’s Hospital in Boston nor South Shore Hospital in Weymouth–two fairly busy hospitals– reported ANY surgical errors during the 18 months from January 2011 through June 2012.  Maybe, but I’m suspicious.

A more serious problem flows from the definitions used by the DHCQ, which exclude many otherwise serious reportable events.  For example, hospitals are required to report any death of a low-risk patient occurring within 24 hours of surgery.   Yet if the patient  is irreversibly brain damaged during surgery, yet remains on life support until the day after the surgery, no report is required.

Other gaps occur when patients are treated at multiple hospitals, none of which accepts responsibility for the report.  For example, in one case we handled, a mother suffered a hemorrhage during delivery and was transferred to a tertiary care hospital, where she later died (a reportable event).  The delivering hospital took the position that it was not required to report the death because the mother didn’t die at its facility–while the receiving hospital didn’t feel it had to report since the injury that caused the death occurred elsewhere.  In another case, a psychiatric patient being transferred from one hospital to another eloped  (another reportable event) during transport and committed suicide.  Neither hospital reported the elopement.

While the SRE program is well-intended, the tremendous individual variation in hospital reporting and the narrow definitions used by the DHCQ make the resulting statistics of limited use to consumers.  Unless more stringent reporting requirements are instituted, it is difficult to compare one hospital to another, or even to determine whether the quality of care is improving.  So far, there is little evidence to show that it is.

Read the DHCQ presentation of its statistics here.

When Simple Malpractice isn’t Simple

broken glassA woman falls on broken glass, cuts herself, and goes to the local emergency room, where the doctor on duty sends her home without finding a piece of the glass lodged in her buttocks.  Several days later, another doctor orders a CT scan–not done by the first doctor–that shows the glass.  On its face, many people would think this is clear malpractice–the first doctor should have found and removed the shard of glass.

A recent decision by the Massachusetts Appeals Court reminds patients and lawyers alike that even seemingly simple malpractice cases aren’t all that simple.  In Delaney v. Russo, the court dismissed the case because the patient didn’t have a medical expert witness to testify that the emergency room’s doctor’s failure to find the piece of glass was malpractice.  The patient had claimed that the malpractice was so obvious that a jury could recognize it without testimony from an expert.  The court disagreed, and that was the end of the plaintiff’s case.

The general rule in medical malpractice cases is that expert testimony is required to prove both the standard of care–what the average health care provider would have done under the circumstances–and causation–how the alleged negligence of the defendant caused injury.  The only exception is if the negligence is so obvious that it falls within the “common knowledge” of the jurors.  In fact, this seemingly straightforward case would require expert testimony on several points: 1) that the standard of care required the emergency room doctor to do a particular test to search for broken glass; 2) that the test, if performed, would have located the glass, and 3) that the patient was harmed by the doctor’s failure to find the glass.

Many people with potential malpractice claims that seem obvious are dismayed to learn that the legal requirements for expert testimony make it difficult or impossible to bring their claims.  Particularly if the injury is minor or temporary, the expense of hiring an expert witness can be prohibitive, and the patient is left with no practical remedy.

The result in Delaney v. Russo demonstrates the danger in attempting to proceed with a malpractice case without an expert witness.  Experienced malpractice lawyers can help determine whether a claim is valid, and whether expert testimony will be required to bring the case.

The Appeals Court opinion is available on the court’s website.

When a Contingent Fee is Not Contingent

dollar_familyIn a previous post, I discussed the benefits of contingent fee agreements, which are the standard compensation arrangement for personal injury cases.   Although subject to more detailed rules than hourly or other fee agreements, the contingent fee system for the most part works flawlessly, to the satisfaction of the many thousands of clients and lawyers who enter into these agreements every year.  This isn’t to say that there are never any problems with contingent fee agreements.  But for the most part, those problems arise when a lawyer tries to use a contingent fee agreement in an unusual way.

A recent decision by the Massachusetts Appeals Court underscores the limitations on the appropriate use of contingent fee agreements.  In Landry v. Haartz, a lawyer tried to enforce a contingent fee agreement in a case where he had represented a couple in a business transaction concerning the sale of their share in a family enterprise.  Unlike some more colorful family business disputes in recent memory, the plaintiff and her sibling co-owner remained on friendly terms throughout, and the sale was concluded quickly, and at a value set by the corporation’s accountants.  The jury found that the lawyer, who had the burden of proof, had failed to prove that the amount of the contingent fee was reasonable under the circumstances, and therefore could not enforce the contract.

While on its face concerning to lawyers who handle contingent fee cases, Landry is actually a situation where there was no real risk to the lawyer, and no significant uncertainty about the outcome of the transaction.  Given the pre-existing business agreement and the friendly relations between the siblings, it is difficult to say that the lawyer’s services contributed significantly to producing the resulting sale.  In the absence of any “contingency” that might or might not occur, a contingent fee is often inappropriate.  This case probably would have turned out much better for the lawyer if there had been litigation about the terms of the sale or the value of the business.

The situation in Landry stands in stark contrast to most personal injury cases, where there are usually significant uncertainties about liability and/or the amount of damages, and where there is usually a genuine risk that the plaintiff may get no recovery at all.  In those cases, not only does the lawyer take a serious risk in contributing his time and money to the effort, his services play a major role in accomplishing a favorable outcome for the client.  Unlike Landry, in these cases, there is a genuine contingency: the client may recover nothing, in which case the lawyer gets no fee and loses his investment in the expenses; the recovery may be far less than the lawyer and client expect or hope at the outset, in which case the lawyer’s compensation is much less than a regular hourly rate; or the recovery may be adequate to provide the lawyer with a fair return on his investment, while allowing the client to receive excellent legal services that he could not otherwise afford.

The important message for clients, lawyers and judges who deal with contingent fee agreements is that the fee must be reasonable, at the time the agreement is signed.  This determination involves considering the nature of the case, and what difficulties may be anticipating in proving liability and/or damages, the skill required to handle the case, and the expected investment of time and money that might be involved.   In the vast majority of cases, both client and lawyer will feel at the end of the case that their arrangement was fair to both of them.

Read the Appeals Court’s decision in Landry v. Haartz on the court’s website.

Contingent fee opens courthouse doors to people regardless of means – also serves as important check on frivolous lawsuits.  If client has money to pay lawyer, lawyer cares less about merits, because being paid.

What You Should Know About Contingent Fees

pie shareContingent fee agreements–arrangements that call for a lawyer to receive a percentage of the client’s recovery by way of compensation for legal services–are often criticized, but usually not by the clients who sign them.  While early English and American courts disfavored contingency fees, believing that they encouraged litigation, this type of fee arrangement has been recognized and approved by courts for more than a hundred years.

Contingent fee agreements, which are common, if not universal, in personal injury cases, provide important societal and individual benefits.  These agreements make quality representation available to even the poorest individuals, and allow them to pursue meritorious claims against individuals, corporations and insurance companies who have enormous resources to fund litigation.  They assure the client of the lawyer’s best efforts, by giving the lawyer a financial incentive to achieve the best possible result for the client.  And they provide a return to the lawyers who invest their own time and money to pursue what they believe are meritorious claims.

But there is an important benefit to society and the judicial system as well.  The practical effect of the contingent fee system is to encourage lawyers to screen cases carefully, and to pursue only those that have merit. The shrill cry of the insurance industry that contingent fee agreements encourage frivolous lawsuits is ridiculous.   A lawyer who repeatedly brings baseless claims will soon find himself unable to pay his office expenses.

Indeed, it is the lawyers who are paid by the hour, no matter what the result, who have no incentive to resolve a case or to be concerned with its merits.  The longer the case goes, the more they can bill.  And if they lose the case for their clients, they still get paid.  These are the lawyers who represent corporations and insurance companies.

Most states have special ethical rules that apply to contingent fee agreements.  Rule 1.5 of the Massachusetts Rules of Professional Responsibility applies to contingent fee agreements in the Commonwealth.  In addition to a requirement that the agreement be in writing, lawyers must be sure the client understands the percentage of the fee, and how case expenses will be paid and reimbursed.  The New Hampshire Rule 1.5 and the Rhode Island Rule 1.5 are similar, although less detailed.  In some specific types of cases, such as Massachusetts medical malpractice cases and cases brought under the Federal Tort Claims Act, there are separate statutes that limit the amount of a contingent fee.

In addition to paying a percentage of the recovery as a contingent fee, most agreements require reimbursement of any costs that have been paid by the law firm during the case.  Many firms will advance all of the costs until the time of settlement or verdict, so that there is no out-of-pocket cost to the client at all.

If you are considering hiring a law firm under a contingent fee agreement, you may want to ask some or all of the following questions:

  • Exactly how is the fee calculated?
  • Am I required to pay any costs to have my case evaluated?
  • What do I owe if you decide not to take my case?
  • Am I required to pay any costs during the litigation process?
  • What kinds of costs should I expect in my case?
  • If there is no recovery in my case, do I owe anything, either for costs or attorney’s fees?
  • If I change law firms, what do I owe to your firm?
  • What legal work is covered by the fee, and is there anything that isn’t covered?
  • What happens if there is an appeal of my case?

It is important to read the agreement carefully, and ask questions until you’re sure you understand all of the terms.  If you’re unsure, take the agreement home and read it at your leisure until you’re comfortable with what you’re signing.  Once you’ve signed, the lawyer should sign the agreement as well, and give you a copy for your personal files.

Once the agreement is signed, most cases proceed smoothly, and clients are usually satisfied with the result.  In a future post, I will describe some of the problems that arise when these agreements are not used correctly.

The Kind of Person Who Sues

courtroom300A lot of prospective clients who call our office start the conversation by saying, “I’m not the kind of person who sues.”

I assume those people don’t really mean that, because otherwise, why would they be calling a lawyer’s office to ask about bringing a lawsuit?  Yet I’m always amazed by how many callers feel the need to tell me what kind of people they aren’t, as if bringing a lawsuit is somehow shameful or wrong.  What most of these callers are actually trying to do is to convince me from the outset that their cases are serious and meritorious, that they have truly suffered a grievous wrong at the hands of someone else.  Left unsaid, perhaps, is the caller’s perception that many people who sue bring frivolous claims over trivial matters, and the caller doesn’t want to be lumped with those litigants.

The “kind of people who sue” include people of all ages, professions, and social, economic, ethnic and racial backgrounds.  Our clients include teachers, office workers, bus drivers, government employees, corporate executives, doctors and nurses, lawyers.  We represent people who are receiving public assistance benefits, and people who have trust funds, people who go to work every day–or used to before they were injured–and people who are retired.  But they all have two things in common.  The first is that they all feel they have been harmed by someone else’s negligence, and they want to do something about it.  The second is that they all have the right to file a lawsuit and ask a jury of their fellow citizens to resolve their dispute.

The “kind of people who sue” are usually people who have suffered some sort of personal or family tragedy.  People who say that they aren’t the “kind of people who sue” are often simply people who have never had the misfortune to be injured by another’s negligence.  Until they have personal experience with unnecessary suffering or death, they may not realize the effects those events can have.  But when someone suffers a serious injury, or loses a loved one to negligence, the reasons people sue all of a sudden become very clear to them.  There is a normal human desire for justice, which in our society is achieved through the court system rather than through violence or other means.

The stigma attached to “people who sue” is a relatively recent phenomenon fueled  by large-scale public relations efforts by corporations, insurance companies, doctors’ organizations and other so-called “tort reformers.”  As a result of these well-financed efforts, the meaning of the word “plaintiff”–the person who brings a lawsuit–has changed from “injured victim” to “money-grubbing freeloader looking for a handout.”  And the term “trial lawyer” no longer means an advocate for the rights of injured victims, but is used as a pejorative term.

It’s a sad change, because it undermines the very foundations of our justice system.  People who have been injured through negligence have a right to seek compensation from the people and entities responsible.  And negligence suits have been responsible for many positive changes in our society: safer cars and consumer products, better medical practices, more secure schools and other facilities.  That’s a major motivation for many people who bring lawsuits–they want to make sure that no one else is injured or killed in the same way.

Most people would certainly hope never to become the “kind of people who sue.”  But when circumstances force someone to become a party to a lawsuit, it shouldn’t be something to be ashamed of.

Who and What Does HIPAA Protect?

HIPAA-COMPL monkeysThe HIPAA police are at it again.  A Massachusetts federal district court has dismissed a claim brought against Baystate Medical Center by a nurse who was fired for asking about a patient’s condition and expressing her concerns about the hospital’s care of the patient.  The hospital claimed that the nurse’s conduct was a violation of the patient’s privacy, in violation of HIPAA (the federal Health Insurance Portability and Accountability Act).

Audrey Dyjak had worked as a registered nurse at Baystate Medical Center in Springfield for some eighteen years, always garnering positive employment reviews.  She was commended at least fifteen times with “Baystate Best” awards giving excellent care.

In June of 2009, Dyjak was caring for a patient who became non-responsive.  As per hospital protocol, she paged a Rapid Response Team that was tasked with responding to such situations, and when the team did not arrive fast enough, she called a Code.  Dyjak was upset with what she viewed as a lack of a proper response, voiced her concerns loudly, and was told to leave the room by the radiology manager.

The next day, Dyjak saw the patient’s partner–who was also a Baystate employee–and mother in a restaurant at the hospital, and asked how the patient was doing.  The partner informed Dyjak that the patient had had a stroke.  Dyjak then related the events of the previous day, including the fact that she had been asked to leave the patient’s room.  She added that there was “some mismanagement” going on, and that she viewed the radiology director’s actions as “unprofessional.”  Few people were nearby at the time, and Dyjak spoke quietly.

A few days later, the partner complained to the hospital, saying she believed Dyjak had acted in violation of HIPAA.  The partner also told the hospital that Dyjak had  inappropriately expressed criticisms of the hospital staff.  The complaint resulted in Dyjak’s termination, the stated reason being her violation of the hospital’s Confidentiality Policy.  She sued Baystate for age discrimination, claiming that the hospital had used her supposed HIPAA violation as an excuse to get rid of her.

In Dyjak v. Baystate Health Systems, Inc., the federal court in Springfield ruled that the hospital was within its rights in firing Nurse Dyjak for her conduct, and that she had not proven that the hospital’s excuse was simply a pretext for age discrimination.

I don’t know whether Baystate was truly trying to get rid of older workers, but it does seem like the hospital’s termination of this long-time employee was motivated by her criticisms of its staff, rather than her rather benign inquiry about the condition of a patient she had cared for.  Most family members would be pleased by the nurse’s concern–not only for the health of their loved one, but for the quality of care that the patient was receiving.

It’s not clear from the court’s opinion exactly what, if any, medical information Dyjak disclosed to the patient’s partner and mother.  It’s difficult to believe that this was anything more than the kind of conversation that takes place in every hospital every day, when nurses update family members.  Perhaps technically, those are HIPAA violations, but at some point, the law must yield to common sense, courtesy and decency.  Most family members wouldn’t be pleased if their inquiries about a patient’s health were met with stony silence from nurses concerned with losing their jobs if they respond.

It really seems like what did Nurse Dyjak in was not her brief conversation with a patient’s family in a quiet  corner of a public place, but her airing of the hospital’s dirty laundry.  Most hospitals frown on their employees discussing mistakes with outsiders–and their internal discussions are strictly protected from disclosure by the peer review privilege,   In many facilities, written policies for “Resolution of Clinical Discord” or the like (what do to when providers don’t agree with each other), admonish providers not to express their disagreements in the medical records or in front of a patient’s family.

Dyjak may not have been fired because of her age, but rather for something much more dangerous for patient safety–speaking up about what she viewed as bad patient care.

Case Law Update: SJC Limits Doctors’ Liability to Non-Patients

car crashThe Massachusetts Supreme Judicial Court ruled today that a doctor who told his patient that it was safe to drive was not liable to another motorist injured when the patient suffered a grand mal seizure and lost control of his car.  The Court’s decision in Medina v. Hochberg restricted the application of the Court’s earlier opinion imposing liability on physicians.

The patient, Robert Riskind, was being treated by a Massachusetts General Hospital neurologist, Fred Hochberg, for an inoperable brain tumor.  The tumor caused Riskind to suffer seizures on several occasions, including a previous grand mal seizure which, under Massachusetts law barred him from driving for six months.  Riskind followed Hochberg’s instructions, and did not drive during this period.

Hochberg continued to treat Riskind, and several months later, told him that he could pursue his normal activities, including driving.  Riskind, again following Hochberg’s instructions, was driving on December 10, 2001, when he suffered another grand mal seizure, and lost control of his car, injuring Richard Medina, who was on his way home from work.  Medina brought suit against Riskind and Hochberg, claiming that Hochberg was negligent in permitting Riskind to drive given his numerous medical problems.

The Court chose to narrow the application of an earlier decision, Coombes v. Florio, in which it had held that a doctor could be liable to a non-patient who was injured as a consequence of a doctor’s failure to warn a patient of side effects of a prescribed medication.  Although this decision caused much hand-wringing among malpractice insurers, who are always active in trying to limit patients’ rights, it has resulted in very few lawsuits, and does not require doctors to do anything they shouldn’t already be doing.

Distinguishing Coombes, the Court in Medina held that a doctor has no liability to non-patients who are injured as a result of complications or effects of the patient’s underlying medical condition, as opposed to consequences of an affirmative act by the doctor, such as a prescribed treatment or medication.  A doctor is only liable if his treatment of the patient “creates or increases” the risk of harm to the general public.

In reaching its decision, the Court also relied heavily on numerous “public policy” grounds urged upon it by doctors and their insurance companies.  The Court gave short shrift to the concern that the public may be endangered by patients whose medical conditions put others at risk, instead focusing on the supposed cost to doctors of increased litigation and the privacy rights of the ailing patients whose conduct causes harm.

The result is that there is an entire class of injuries that doctors have the ability, but not the obligation, to prevent. Without question, the doctor would be liable to the patient if the patient himself were injured by the doctor’s failure to give him important safety information.  Yet when the injured party is not the patient, the doctor escapes liability for not doing what good medical practice would require him to do anyhow.  Proper information and warnings given to the patient protect not only the patient, but the public as well.

And in focusing on the potential liability of the doctor, the court fails to recognize that in some cases, it will be the doctor, rather than the patient, who is in the best position to prevent harm to others.  A patient may be completely unaware of the potential danger he creates by driving or otherwise engaging in activities that could harm himself or others–as in the case of Mr. Riskind, who was simply following his doctor’s advice when he crashed into Mr. Medina.

The Supreme Judicial Court’s decisions are available on its public website.