Missouri Accident Lawyer Blog

In the wake of the midterm elections, an all too familiar topic has once again risen among political pundits: healthcare. Specifically, some in congress seem ready to try and repeal the latest healthcare reform and replace it with something else. Unfortunately, that something else would likely include some type of tort reform designed to restrict payouts in medical malpractice cases.

Tort reform advocates argue that some of the major contributors to out of control healthcare costs are frivolous medical malpractice lawsuits with large settlements and the insurance doctors carry to protect themselves from these suits. Their suggestion is usually some sort of cap on damages that can be paid to the injured victims of medical error.

Opponents of tort reform have long questioned the role that malpractice cases play in rising healthcare costs and a new study from Harvard supports the idea that this role is very minimal. According to the study, which was published in the Health Affairs journal, the medical malpractice system only makes up 2.4% of the total amount spent on healthcare in America. This includes settlements paid to victims, malpractice insurance, and all the legal costs associated with the process.

While reforming healthcare in America is a complicated issue, including tort reform is pretty clearly a mistake. Even if you could eliminate all the costs associated with medical malpractice cases, which is impossible even with the most aggressive tort reform measures, you are barely making a dent in the overall cost of healthcare. This is certainly not the massive cost controlling tool that tort reformers claim and it comes with an incredible human cost. Many people that are seriously injured by medical errors would have their settlements or verdicts limited arbitrarily, perhaps leaving them unable to pay for their recovery.

Another issue that seems to be at work here is popular perception of medical malpractice cases. Because of a few highly publicized incidents, many people seem to think that all malpractice cases are like striking it rich in a multi-million dollar lottery and that a large number of cases are based on frivolous claims anyway. In reality, the court process weeds out cases that are considered frivolous and the average case settles for less than $500,000 before going to trial.

Hopefully whatever healthcare reforms remain permanent, they put patients and injury victims' needs first.

The U.S. Food and Drug Administration released a statement expressing concern over the risks associated with certain imaging agents used during MRI procedures. The agency warned against dangerous side effects of the drugs, especially for people who have existing kidney problems.

The specific substances in question are gadolinium-based contrasting agents which are injected into patients prior to a MRI scan. These agents help produce clearer MRI images for doctors.

Some patients who receive the injections develop a disorder called nephrogenic systemic fibrosis, a condition where the skin and other tissues thicken causing problems with movement and other bodily functions. The risks for this condition, which can prove to be fatal, are drastically higher for patients with kidney disorders, according to the FDA.

FDA officials have been aware of the risks of these potentially dangerous products for a few years, but the warnings have always been a general caution regarding all gadolinium-based agents. Now the agency is saying that specific products may be more dangerous than others and rates for developing the condition may be higher for contrast agents developed by some companies than others.

Specifically, the agents mentioned by the FDA as possibly being more likely to result in the skin condition are GE Healthcare's Omniscan, Bayer AG's Magnevist and Covidien's Optimark. Some of the companies have already issued statements saying they recognize the risks associated with their agents, especially for patients with kidney disorders, but feel there is no conclusive evidence to say that one product is more dangerous than another.

With mid-term elections on the horizon, politicians have their campaigns in full swing. While it's not quite the dominating story it was last year, healthcare reform continues to be a political lightning rod and the notion that tort reform will drastically reduce costs continues to crop up in interviews and campaign ads.

Generally when the words tort reform are used, it is in reference to capping the damages that can be awarded from a medical malpractice case. The reasoning, according to tort reform supporters, is that frivolous lawsuits and malpractice insurance premiums are driving up the cost of healthcare. If there was a cap on damages, they say, the malpractice insurance premiums would go down and the cost of healthcare for the average person would go down.

The fact of the matter is that malpractice costs make up only 2% of the total cost of healthcare in the United States. Even the most aggressive tort reform proposals would stand to save very little money overall. In fact, in states where damages for injuries caused by medical errors are limited, there hasn't been a dramatic drop in healthcare cost for the average person. Sure, malpractice insurance premiums for doctors and hospitals fall in some cases, but they are such a small percentage of overall cost that the savings aren't passed on to the consumer.

The real tragedy is that these money saving measures can keep injury victims from getting the help they need. If payouts are reduced arbitrarily, it becomes financially impractical for personal injury attorneys to take on certain cases, even if the claims are meritorious. These victims are then left without legal representation and can't get the help they need to recover.

Another benefit of malpractice lawsuits is that they hold negligent doctors accountable for their errors. Most doctors do wonderful work most of the time, but mistakes are made and some doctors have a pattern of negligent practices. Actually, the majority of malpractice cases are brought against a small percentage of doctors. There are also cases where the negligence is so great that punitive damages above and beyond the economic cost of the errors is the only way to properly hold those responsible accountable. These are the types of cases where a foreign object is left in a person's body after surgery or disease is spread because a clinic didn't dispose of syringes after they were used in order to save money.

Tort reform advocates like to say they are trying to lower costs, but if they restrict the ability of malpractice lawsuits to hold negligent healthcare providers accountable, there's a great chance that we will only see an increase in the number of medical errors. 98,000 people already die each year as the result of medical error, making it the sixth highest preventable cause of death in the country. That's the cost we can't afford.

The Illinois Supreme Court on Thursday found that a state law capping non-economic damages in medical malpractice cases was unconstitutional. The ruling will lift the cap which had previously limited pain-and-suffering damages at $500,000 or $1 million, depending on whether the case was being brought against an individual doctor or a hospital.

Illinois' ruling comes at a time when Missouri's Supreme Court is also debating whether to backtrack on a failed experiment with tort reform. Here in the Show Me State, the cap on non-economic damages in medical malpractice cases has been $350,000 since a 2005 tort reform law. All this experiment has shown us, though, is that this very low cap saves hospitals a small percentage on malpractice insurance while no savings is seen by the health care consumer. This negligible savings comes at a great cost to those who are seriously injured by medical malpractice.

Supporters of tort reform in Illinois were predictably disappointed in Thursday's decision. Some statements by tort reform advocates in the media claimed the decision was more about lawyers than patients and that tort reform is still the best way to curb health care costs.

What supporters don't realize is that tort reform isn't about protecting patients at all. It's about taking money directly out of the pocket of seriously injured people at the most challenging moment in their lives and protecting hospitals and insurance companies. Perhaps tort reform could be seen as viable option if the ends justified the means, but the ultimate goal of tort reform, cutting health care costs, is not being met. Most independent studies claim that even if the United States as a whole adopted an aggressive set of tort reform policies, the total savings would only be one or two percent on the total cost of health care. Keep in mind that this tiny savings will be financed by the pain and suffering of thousands of malpractice victims who won't receive their full reward as determined by a jury.

Hopefully Missouri follows Illinois' lead and we can go back to putting patients first.

Arguments on a case that could have big ramifications for medical malpractice laws in the state of Missouri were heard today by the Missouri Supreme Court. At the heart of the issue is the question of whether the state's $350,000 non-economic damage cap is fair to consumers and whether the cap can be applied retroactively to injuries sustained before a limit was in place.

As we reported earlier, the case was initially filed by James and Mary Klotz of Arnold, Missouri. James Klotz won a medical malpractice lawsuit after massive complications arose from an operation to insert a pacemaker. While the jury awarded Klotz $1 million, the non-economic damages were reduced to just $350,000. While the actual lawsuit was filed after the 2005 cap was put in place, the personal injuries were sustained in an operation that occurred in 2004.

Those opposed to the damage caps, including consumer advocates and Missouri medical malpractice lawyers, say that the caps are unfair and unconstitutional. They could also be seen as restricting access to the court system, especially for people earning lower to moderate incomes. If non-economic damage awards are reduced arbitrarily to $350,000, it makes it financially unfeasible to take a case to court, a process which could cost tens of thousands of dollars in itself.

It also seems particularly unfair to limit the award given to the James Klotz since his injuries were sustained prior to the cap being in place. According to the St. Louis Post Dispatch, the argument was made before the Supreme Court that limiting the Klotz award was similar to placing a limit on damages for accident victims the day after a bridge collapse. The defense argued that lawsuits arising from that hypthetical situation were different than the actual medical malpractice case before the court.

We will be sure to follow up on this story as it develops.

Arguments for lifting Missouri's noneconomic damage cap based on they claim it may be unconstitutional will be heard early in 2010. Currently, there is a $350,000 award limit in medical liability cases.

This challenge to the current system, put in place through a tort reform movement in 2005, comes on the heels of large medical malpractice verdict from 2008. In that case, James Klotz received a $1 million dollar jury verdict after complications from an operation to insert a pacemaker. His pacemaker became infected and he had to suffer through brain hemorrhages and the amputation of his right leg. His wife also had to quit her job in order to care for him. Due to the noneconomic damage cap on Missouri medical malpractice lawsuits, however, the amount of money Klotz would actually receive will be far less should the cap not be lifted.

Those in support of tort reform due so largely on the assumption that limiting damage awards will lower costs for doctors and insurance companies who will then pass the savings on to the consumer. Since the 2005 tort reforms in Missouri, though, these assumptions have only been proven half true. Some doctors claim their malpractice insurance premiums have dropped by as much as 25 percent and the average malpractice award has dropped overall. These changes have not benefited the average person, though, as health care costs for the consumer have continued to rise unchecked.

So unless the damage caps are eliminated, we will continue to have a system where awards are arbitrarily limited in order to save money for hospitals and insurance companies while the average person receives no financial benefit. Additionally, those like Mr. Klotz who are unfortunate enough to suffer a personal injury due to a medical error will not be protected and not receive the full compensation determined by a jury.

Similar results have also been seen in other tort reform states like Texas. The financial benefits promised by tort reformers are simply not there while legitimately suffering people are left without full compensation. It's time to let Missouri personal injury lawyers and the civil court system go back to doing their job of holding negligent medical institutions accountable.

The issue of medical malpractice lawsuits and the push by some for tort reform has been an ongoing battle for decades. With the recent debate for health insurance reform in Washington, tort reform has once again been thrust into the mainstream spotlight. President Obama and others have hinted that tort reform compromises may be necessary to pass health care reform.

If health care reform comes at the cost of limiting patients’ rights through tort reform, then this whole health care debate will have amounted to two steps forward and two steps back for the well being of medical patients in this country.

Here are some myths often spread by tort reform supporters and the facts debunking them:

Myth: Medical malpractice lawsuits are frivolous or unnecessary.

Fact: 98,000 people die each year from preventable medical errors. That is 98,000 human beings who lost their lives due to a hospital’s or doctor’s mistake. The CDC doesn’t include preventable medical errors on its list of causes of death, but if it did, it would be the 6th leading cause of death in the U.S. Any system that attempts to hold doctors accountable and prevent these deaths is absolutely necessary.

As far as the claim that most suits are frivolous, that is simply not true. Very few claims are even filed in potential malpractice incidents and of the ones that are filed, the vast majority are meritorious. Frivolous lawsuits are weeded out by laws already on the books.

Myth: Patients filing suits for large damage sums are just looking to make it rich.

Fact: Patients just want justice. Those unfortunate enough to suffer injury from medical malpractice only want to be made whole again and have their resulting medical bills covered. Punitive damages are only leveled against the most negligent doctors to hold them accountable. One study cited by the American Association for Justice states that 70 percent of patients who experience an injury due to medical error were not told at the time by their doctor. It has been shown that doctors and hospitals that operate under full disclosure and apologize for medical errors are sued about half as much.

Myth: Tort reform would lower costs

Fact: Research shows that malpractice claims have been steady for years yet medical malpractice insurance premiums have continued to rise. States that have enacted caps on damages have still not seen a decrease in costs as patient bills and premiums continue to rise. Even if the most aggressive tort reform plans were to pass, there would only be about a 0.5 percent savings on nationwide medical spending. Those savings would likely come at the cost of thousands of lives as preventable medical errors would increase without the civil justice system keeping them in check.

A better way to lower health care costs would be to prevent medical errors. Billions of dollars would be saved if we could reduce the number of medical malpractice incidents nationwide.

Myth: Medical boards can punish bad doctors so we don’t need punitive damages.

Fact: The accountability structures for medical professionals often fail to punish negligence as effectively as the civil justice system and personal injury attorneys. Two thirds of doctors with 10 or more negligence payments have never been formally disciplined. Half of all hospitals have never reported a single disciplinary action against one of their own doctors. The civil justice system holds doctors accountable when other oversight programs fail. It is not meant to scare off good doctors. In fact, just six percent of doctors are responsible for 60 percent of medical negligence. Weeding out this small number of negligent doctors will benefit the entire medical industry from overall costs to patient health.