Medical malpractice cases arise when a doctor, nurse, hospital, or other health provider causes a preventable harm. In any medical negligence case, medical records review and medical peer review become necessary. Medical negligence can range from a slight to a disastrous injury or fatality. An analysis by Johns Hopkins Universtiy found that medical mistakes outrank the official third leading cause of death among Americans, i.e. respiratory disease. It is estimated that more than 250,000 people die each year in the United States because of medical errors. That is really frightening!
What are the categories of damages in a typical medical malpractice lawsuit?
- Economic damages, i.e. cost of past and future medical treatment costs; reimbursement for lost income/earning potential
- Non-economic damages or pain and suffering
- Punitive damages applicable in cases involving bad or outrageous conduct
A number of states in the United States have laws that limit the amount of recoverable damages in a medical malpractice lawsuit. These damage caps typically apply to compensation for “non-economic” losses, which includes compensation for the plaintiff’s pain and suffering. In California, for instance, plaintiffs who go on to win their medical malpractice claims can recover only up to $250,000 in non-economic damages.
The duration of a medical malpractice suit is determined by certain factors including how complicated the case is, and whether liability has been admitted. Regarding the value of a malpractice case, its settlement value is different from the trial value. A settlement is a compromise, and many plaintiffs prefer to go for settlement because of the uncertainty that exists as regards what a judge or jury will decide. Settlement value is almost always less than the trial value.
According to a research led by Dr. Adam Schaffer, an instructor at Harvard Medical School, the rate of paid medical malpractice claims in the US has declined considerably, dropping by around 56% between 1992 and 2014. However, the average payout for successful malpractice claims increased by around 23%, reaching $353,000 in 2009 – 2014 (during 1992 – 1996, this amount was $287,000). This trend could be a consequence of tort reforms on malpractice lawsuits, as Dr. Schaffer points out. Apart from placing caps on payouts, tort reform also created claim screening panels and other hurdles in the process that reduced the number of claims filed. The research team obtained the details through a review of the National Practitioner Data Bank, a federally maintained database that keeps track of medical malpractice payments. More than 280,000 claims were paid, of which about 8% topped one million dollars in 2009 – 2014, and approximately one-third involved a patient death.
- Diagnostic error was the most common complaint and malpractice trends and payments differed considerably among various medical specialites.
- When payments for GPs increased about $17,400, pathologists experienced an increase of $139,000.
- Cardiology experienced a 14% decline in paid claims whereas pediatrics experienced a reduction of 76%.
- The top 1% of physicians with the maximum number of paid claims was responsible for about 8% of all paid claims.
Some medical speciaties are at higher risk, and even within specialties there is considerable variation in risk. For example, take the case of neurosurgeons, some of whom perform ordinary surgeries, and some others who do high-risk surgeries. The element of risk varies with each type of surgery.
What are some of the external factors that may have a bearing on the value of a medical malpractice case?
- Location of the case: This has considerable impact on the value of the case. Jurors in different locations may differ in their attitudes. So lawyers and insurance adjusters will place different settlement values on cases on the basis of their perception regarding what the jury might do with the case.
- The capability of the attorney: The quality of the attorney is very important especially in cases involving settlement. Settlement offers are likely to be higher in the case of a lawyer or a law firm that regularly takes cases to trial and doesn’t accept lowball offers.
- Defendant and plaintiff quality: The quality and credibility of the defendant and plaintiff are things that the jury considers. Parties that gain the trust and liking of the jury are very likely to receive a favorable or higher verdict.
Let us look at some of the major medical malpractice cases that made news in 2016, according to a post in www.bluegrassjustice.com.
- The legendary comedian Joan Rivers died several days after going to an endoscopy clinic in Manhattan for a routine procedure in the year 2014. Following the investigation, the Centers for Medicare and Medicaid Services found that the clinic made many medical errors, including failing to keep accurate medical records, and doctors taking “selfie” photos with the patient without heeding her distress. The lawsuit was settled in May this year for an undisclosed amount.
- In July, 43 patients who were victims of Farid Fata, a Michigan-based cancer doctor who provided unnecessary treatment for patients and billed fraudulently, were granted $ 8 million in settlement. Michigan has placed a cap on medical mal claim payouts limiting each claim at $ 438,000 with no exclusions even for egregious cases.
- The biggest ever award in Cook County, a jury award of $53 million was paid to a 12-year-old boy who suffered serious brain injury, and his mom. The damages in this case included $28.8 million for future expenses to take care of the boy whose brain injury at birth left him with cerebral palsy. The boy who is confined to a wheelchair cannot feed or take care of himself. This lawsuit was against the University of Chicago Medical Center.
- A brain-damaged boy’s family settled their medical malpractice suit for $30 million in February 2016. This is Illinois’ state’s fourth largest payment in medical malpractice case in which a child was the patient. The case involved an Illinois doctor who performed a 25th surgery on a 6-year-old boy, leaving him with cerbral palsy and permanent brain damage. The doctor allegedly performed several surgeries that included unproven medical techniques.
- In the largest settlement for medical malpractice in California history, a California mother and her 3-year-old child were awarded $20 million. This was to compensate for a feeding-tube error following the girl’s birth in 2013. Though born premature, the baby was healthy. However, because of human error, the machine attached to the baby’s feeding tube did not operate properly. As a result, the baby was given too much of glucose that led to imbalance in electrolytes. Since sufficient oxygen could not reach the baby’s brain, she suffered brain damage and cerebral palsy.
- A woman who suffered brain hemorrhage following medical negligence was awarded more than $44 million by a Philadelphia jury in April 2016. The Hospital of the University of Pennsylvania was found to have 65% liability for their staff members’ failure to notice the woman’s harmful reaction to the anticoagulant drug Heparin. The attending physician was held 35% liable. The woman was given Heparin to treat a benign brain tumor and caused the patient to suffer a catastrophic brain injury and paralysis.
- A $16 million award was paid to a couple who claimed that a hospital’s advertising campaign was recklessly fraudulent and the medical care was negligent. It was alleged that during the woman’s labor, she expected to be able to rest on her hands and knees but the hospital staff restrained her and forced her to lie on her back. A nurse put pressure on the baby’s head to postpone the delivery, according to the lawsuit. The woman suffered serious nerve damage that causes her significant pain. $10 million was granted in compensatory damages, and $ 6 million in punitive damages.
Medical malpractice victims can and do receive appropriate compensation for their injuries with the able support and counseling of personal injury lawyers. Once the injury and its consequences are established through a medical records review, a medical malpractice lawyer would start developing the case effectively and focus on obtaining financial restitution for the suffering, lost wages, and medical costs of their clients.