On my constant search for what is new in the world of medical malpractice, I recently came across an article on AMedNews.com that describes the practice by MedStar Health of referring injured patients to lawyers. Intriguing, right? So, we kept reading. Here’s a brief discussion of the article:
MedStar Health is one of the biggest health systems in Maryland. And, when a patient is injured in the MedStar system, they actively work to address the issue. First, they discuss what happened. Second, they work toward a resolution. And, third, if appropriate, they offer a settlement. If the settlement is rejected by the patient, this is where it gets a little weird: MedStar offers the patient the name and number of an attorney. And MedStar is not alone. Two other major Maryland health networks do the same thing: LifeBridge Health and the University of Maryland Medical System.
Is this a good way to handle Maryland medical malpractice liability? Those involved say that it saves everyone time, money, and aggravation. Others worry that the lawyer may go after the physician for medical malpractice once the case with the hospital is settled. It may not matter too much, though, since the number of patients who take the referrals is low.
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I just finished reading an article titled, “Malpractice Lawyer Recommendations Come from Unlikely Source: Hospitals.”
In the article, the journalist recounts the case of Ada George’s thyroid treatment gone wrong in a Maryland hospital. During the course of treatment, the woman was brain damaged and is currently comatose. The hospital apologized and offered compensation twice. The George family twice refused compensation. Then the hospital went one step further, offering the name of a medical malpractice attorney who would handle their case at a reduced rate.
You are probably asking yourself, “WHAT! The hospital is asking to be sued for medical malpractice?” Yes, and it makes sense.
One of the major drivers in the expense of medical malpractice lawsuits is the length of the process. According to one actuarial consulting firm, malpractice litigation costs Americans at least $30 billion a year, and successfully defending a medical malpractice claim costs an average of $100,000.
Hospitals, and the attorneys they refer, explain that a quickly resolved medical malpractice dispute is better for everyone – the doctor, the hospital and the injured patient. The faster the lawsuit is resolved, the less expensive it is for the physician and hospital and the injured patient gets justly compensated in a timely fashion.
The obvious question is whether there is a conflict of interest. If the attorney makes a living off of referrals from a hospital, how vigorously will the attorney pursue the hospital?
The attorneys interviewed in the article brush off the conflict of interest argument, saying that they first and foremost represent their clients. But like the author of the article says, how many cheating husbands would recommend a divorce attorney to their wife? Or how many accident victims would accept an attorney referral from the driver who just hit them?
side note: The Maryland Court of Appeals has upheld the state’s non-economic damage cap, but I’d be surprised if this is the last we hear of the case. The next likely step will be appealing to the state supreme court. This is the pattern played out in other states across the country.
ANNAPOLIS — The Maryland Court of Appeals affirmed the state’s caps on malpractice awards in a ruling Tuesday, overturning a decision by a Montgomery County Circuit Court judge.
The case involved Silver Spring dermatologist Dr. Norman A. Lockshin, who was sued for malpractice in 2008 by a family of a Rockville lawyer, Richard Semsker, who died of skin cancer. The jury awarded the family $5.8 million, a figure that according to the caps, should have been reduced to $3.5 million.
Lockshin’s attorney was not immediately available for comment.
Circuit Court Judge John W. Debelius III ruled the caps applied only to cases that have first gone through arbitration. That didn’t happen in this case, and he allowed the jury award.
His decision, in effect, invalidated caps that were part of a 2004 special session of the General Assembly called to resolve a crisis in medical malpractice. Insurance rates were climbing and doctors were threatening to leave Maryland. The tightened caps were seen as a way to lower insurance rates.
The appeals court ruled the caps applied to all malpractice cases.
read the rest
side note: State Supreme Courts in Georgia and Maryland will rule on non-economic damages for liability cases, will they overturn legislation?
High courts in Georgia and Maryland will decide the fate of caps on non-economic damages in medical liability cases in each state, two of the latest attempts to undo such award limits.
The Georgia Supreme Court case stems from a February trial court decision rejecting the constitutionality of the state’s $350,000 cap. Oral arguments began Sept. 15 in Atlanta Oculoplastic Surgery v. Nestlehutt.
Maryland’s Court of Appeals is set to hear arguments Nov. 5 on whether the state’s caps apply only to cases that are arbitrated.
Because of the constitutional and public policy issues at play, the two cases went to their respective high courts. Physicians in both states are pledging to defend the caps, which they credit with easing liability insurance costs and keeping doctors in practice.
The cases involve high stakes for patients and physicians, and undermining the reforms “would be a step backward” in access to care gains, said Rebecca J. Patchin, MD, chair of the AMA’s Board of Trustees. The Litigation Center of the American Medical Association and State Medical Societies joined the Medical Assn. of Georgia and MedChi, the Maryland State Medical Society, in filing separate friend-of-the-court briefs in their respective state cases. Liability insurance premiums in Georgia declined by 18% after the state capped noneconomic damages in 2005.
MedChi CEO Gene M. Ransom III said the cases also highlight the need for federal endorsement of tort reform as part of national health system reform, particularly for states struggling to pass measures to contain unaffordable liability costs. In light of the legal threats to caps, “federal health reform that includes tort reform becomes even more crucial,” he said.