LegalMatch: Personal Injury

What’s the Future of Medical Malpractice Damages?

There has always been a debate regarding the caps placed on medical malpractice damages and whether the monetary figure currently in place would justly compensate a victim of medical malpractice.

Health care providers believe that the caps placed on non-economic damages is an effective way to limit the potential liability that they could be against which results in making the cost of providing health care more expectable. Victims of medical malpractice claims believe that the caps are very limited and do not fully compensate the plaintiff for the loss that they incurred.

Currently, 24 states have caps placed on non-economic damages in medical malpractice claims, but there has been much debate and propositions such as California’s Prop 46 trying to increase or even remove the cap on non-economic damages. Health care providers argue that when there are caps on non-economic damages, hospitals will save almost an estimated $400 million dollars and the cap would result in a 24% reduction in insurance premiums for hospitals and premiums. In addition, doctors and physicians would be hesitant to report medical errors because they would be afraid that it would be used against them in a medical malpractice lawsuit.

On the other hand, those who are opposed to the caps on medical malpractice damages argue that the medical malpractice caps help doctors more than anyone and these caps would prevent doctors from being fully responsible for their negligence in treating patients properly. They also counter by saying that medical malpractice caps do not affect the cost on insurance premiums because they only account on less than 2% of all healthcare costs.

The future of medical malpractice damages could be changing since many believe that the caps that were set many years ago have inflated and the amount plaintiffs are being compensated for their pain and suffering and sometimes even death is not enough to compensate their total loss.

It is fair to say that even though doctors and physicians can insure themselves against payments of damages, they cannot insure themselves against emotional reputational and work-related cost of expenses. With the amount of close knit social interaction and communication that occurs in today’s society, one medical malpractice mistake could be very costly to a doctor’s reputation and character, which in the end is more valuable than money. 

Authored by Kourosh Akhbari, LegalMatch Legal Writer

The Debate over Tort Reform and Legislative Caps

The controversy over personal injury damage caps is consistently traveling through state courts causing increasing debate. In state supreme courts, there are conflicting court rulings on the constitutionality of the legislative caps on punitive damages. Unlike compensatory damages, punitive damages go one step further and are awarded to punish and prevent wrong-doing in the future.

The state courts that uphold the caps often find that there is no violation of a plaintiff’s right to a jury, where that jury is supposed to be deciding all questions of law in the case. However, given the trend in states upholding the caps, there is nothing to prevent the court from completely disregarding the jury’s verdict. This inevitably brings up the question of whether there is a violation of the separation between the judicial and legislative branches of the state governments. Many critics of the caps feel that these courts are refusing to provide a remedy at law and, more importantly, violating the important rights to due process and equal protection.

In some states, jury awards have been cut by 30% or more, at the expense of medical malpractice victims. In California, this result was caused by the Medical Injury Compensation Act. Acts such as this result in institutions, such as hospitals, practicing less caution when treating patients since they know that their liability will not carry heavy monetary consequences.

Additionally, as the debate heats up, the effect on personal injury firms is becoming evident. Lawyers may be hesitant to take on a medical malpractice case given the low awards in relation to the cost in litigating the case, as most are taken on a contingency basis.

Courts that uphold the caps seem to be more interested in protecting corporate entities rather than securing the safety of its citizens. The rationale of these courts is that the legislative caps are “rationally related to a legitimate state interest.” That is, they are assisting these companies to remain of business. This relatively low standard is enough to find the caps constitutional in this context.

Lastly, there is much debate among state legislatures concerning the “collateral source” rule when it comes to personal injury cases. Under this rule, juries are prohibited from considering any other money received by the plaintiff for their injury. This type of compensation can be in the form of the defendant’s insurance policy. Many state legislatures are considering abolishing the rule. If this happens, the result will be essentially the same as applying caps to personal injury cases. Again, state legislatures are protecting businesses from paying the price of their tort liability. And, similar to legislative caps, business are less likely to take preventive measures if they know the insurance policy they have already purchased will cover the injury.

LegalMatch.com provides resources on this subject, as well as many other areas of the law. Check out LegalMatch’s Law Library or LinkedIn page for further information. LegalMatch also is committed to streamlining the process of finding the right attorney for your case.

If You Plan on Infecting Your Patient with Herpes, You Have a Duty to Warn

This is going to be awkward.

So, a court in New York has ruled that a doctor has a professional duty to warn, no matter how embarrassing the circumstances. More specifically, a psychiatrist who had a sexual affair with one of his patients has a duty to warn the patient’s spouse that the patient is now probably infected with genital herpes, since the psychiatrist was infected, and knew of this fact.

The court did not rule (also reported here) on the merits of the case, but it did rule that the husband in question has the right to bring a negligence action against this doctor. So, the plaintiff will still have to prove at trial that the doctor was infected with herpes, passed it on to the patient, who in turn passed it to her husband.
I can only imagine what that warning would have sounded like:

“Dear Sir: This is Dr. Creep, your wife’s psychiatrist. I’m just writing to let you know that she is progressing very well in her therapy. I believe that we have established a very intimate connection. We’ve established such an intimate connection, in fact, that I fully intend to have intimate relations with her at our next session. I think it will prove to be a significant breakthrough. I feel, however, that it is my duty as a professional to warn you that I have genital herpes, so there is a very good chance that your wife will pass the consequences of my ill-planned trip to Thailand on to you, unless you take the appropriate precautions.

“Very Truly Yours, Dr. Creep.

“P.S., I’d appreciate if you just kept this discussion between us. Experience has shown that the state authority responsible for licensing psychotherapists doesn’t have much of a sense of humor about these things. Thanks a bunch!”

Or something like that.

Seriously, though, one has to wonder what effect the court thought that this ruling would have. Obviously, the doctor’s behavior was abhorrent, and if the facts are proven, the husband (and perhaps the wife, as well) should be able to collect damages from him, and the doctor should lose his license.

But, assuming that this ruling is upheld on appeal and becomes binding precedent for similar cases in the future, does anyone think that doctors are actually going to warn their patients’ spouses before sleeping with their patients? Probably not. Of course, this could have the effect of at least deterring such behavior by doctors and other similarly-situation professionals in the future, if they face the prospect of having to pay damages, as well as the public ridicule that (properly) comes with such behavior.

This case also raises some interesting questions about how far the “duty to warn” extends. In this case, it’s clear that the doctor could foresee the possibility of his patient passing his STD onto her husband. But what if the patient had confided in the psychiatrist that she was certain that her husband was also having an affair? Would the doctor have a duty to track down and warn the husband’s mistress? What about any of the mistress’ other known sexual partners? Obviously, the problems associated with such line-drawing quickly become apparent.

Of course, basic common-law principles can provide some guidance. The doctor had a basic duty to warn anyone who could foreseeably be harmed by his conduct. This would obviously include the patient and, assuming the doctor knew about him, her husband. While he certainly has the potential to harm others, at some point the connections just become too attenuated to expect him to foresee. Because the border between reasonably foreseeable and not reasonably foreseeable is quite blurry, where we decide to draw the line will necessarily be a little bit arbitrary.

Of course, we have to draw arbitrary lines all the time in the law. Most people agree that age-of-consent laws are necessary. However, it’s hard to find people who can agree on exactly what the age of consent should be. Of course, you have to draw a line somewhere. If you set the age of consent at a reasonable point (say, between 16 and 18 years old), there will be some people younger than the age of consent who are mature enough to consent to sex with an older person, and some who are older than the age of consent who are not sufficiently mature. Nonetheless, the line has to be drawn somewhere.

The same is true with deciding which victims are “foreseeable” and which are not.  

This case also raises questions about imposing liability for infecting people with STDs. By now, just about everyone is aware of the risks of having unprotected sex with an unknown partner. It could very easily be argued that the doctor, at least with respect to the patient he slept with (not her husband since he presumably didn’t know about the affair) has a defense that his partner assumed the risk, or committed contributory negligence.

One the other hand, such arguments could be read as relieving the person in the best position to prevent such things – the person with the STD and is aware that he has it.

Obviously, there are no easy answers to these questions. This story, while certainly amusing (though not to those involved, I’m sure), illustrates that even the simplest “wacky legal news” story can have some very complicated legal and policy issues just below the surface.

By: Rusty Shackleford

If Placebos Actually Work, Can Doctors Use Them Without Committing Medical Malpractice?

Most people are familiar with the basics of the placebo effect: an ailing patient is given some kind of fake medical treatment (a sugar pill, an injection of a simple saline solution, etc.) and told that it is a drug that will treat what ails them. Despite the fact that whatever they just took has no pharmacological effects whatsoever, the patient (at least temporarily) reports a significant improvement in their symptoms.

This is a fascinating illustration of how complex the interactions between the mind and body can be. Of course, it also makes testing new drugs or therapies more difficult: if a new treatment appears to be effective, how can we tell it’s not simply a result of the placebo effect? Modern clinical trials work around this problem by giving half of the test subjects the real treatment, and the other half a fake treatment, without telling them what they’re getting. If the real treatment is more effective than the placebo, the people conducting the study know that the drug is actually causing the desired effect.

The placebo (Latin for “I shall please”) effect has been known for centuries, well before the advent of modern medicine. It was first reported in the 1700s when doctors discovered that patients’ symptoms could be somewhat relieved simply by telling them that they were taking an effective medicine. Until very recently, the placebo effect has been viewed as little more than a curiosity or annoyance.

Over the last 10 years, however, there has been a renewed interest in placebos as a treatment in their own right. New studies have shown that placebo effects can produce objectively-observable changes in a patient’s body. For example, a fake painkiller triggers the brain to produce its own natural painkillers. In one study, patients suffering chronic pain were given inert treatments, while being told it was morphine. Predictably, they reported some improvement in their pain. However, some of those patients were, without their knowledge, given a drug which temporarily blocks the effects of morphine. The result? The placebo was far less effective. This illustrated the fact that there’s far more going on with the placebo effect than we once thought.

An article in the Boston Globe raises a very thorny question: if placebos can, in some cases, be almost as effective as real medicine, without the side effects or financial cost, shouldn’t they be considered as a valid treatment option? Now, obviously, there are plenty of things we know placebos can’t do: a transfusion of strawberry Kool-Aid instead of blood isn’t going to save a patient from bleeding to death, and a fake heart transplant isn’t going to save a patient’s life. Placebos seem to work best when treating symptoms, rather than the underlying causes of disease. Then again, some medications that almost all of us have taken at some point in our lives (aspirin, cold medicine, etc.) do nothing to treat the underlying causes of a disease, but they do alleviate the symptoms.

So, all of this seems to indicate that doctors should start adding placebos to their arsenal of treatment options, right? Well, maybe. I wouldn’t be writing about this if there weren’t some serious legal concerns.

First, and perhaps most obviously, placebos only seem to work if the patient believes they’re getting real treatment. One of the cornerstones of modern medical ethics is “informed consent,” meaning that, before treatment is given, the patient (1) has to consent to the treatment, and (2) has to have all the information necessary to make a reasonably-informed decision on the matter. You can probably see where this is going. Placebos seem to work best (if at all) when the patient believes they’re getting an actual drug. This means that delivering an effective placebo is impossible if informed consent is a requirement.

Furthermore, even if placebos do have some legitimate medical applications, they’ll certainly be quite limited, probably to treating mild pain, depression, and other somewhat subjective (though no less real) ailments. However, the fact that these treatments are basically free might make it very tempting for penny-pinching doctors and health insurers (both public and private) to include them in their treatments, without a patient’s knowledge or consent.

As the law currently stands, this would almost certainly constitute fraud. Fraud, after all, involves lying to someone to induce them into buying a product or service, and thereby causing them harm. It’s easy to see how this could happen, especially if a provider gets a little over-zealous, or overestimates what can be accomplished with a placebo.

Additionally, if a doctor decides that a symptom can be alleviated just as effectively with a placebo as with real medicine, but turns out to be wrong, thereby injuring a patient, he or she would almost certainly be liable for medical malpractice. After all, doctors are expected to exercise the skill and knowledge that their years of medical training have given them. Failure to do so, when it results in an injury to the patient, is medical malpractice and grounds for a lawsuit.

In addition to fraud, prescribing a placebo in place of real medicine, in the hopes that it will produce the same effect at a fraction of the price, would almost certainly constitute malpractice if it could be shown (which would be likely in many cases) that the patient would have gotten better results with real medicine (and if the medicine was approved by the FDA, this has already necessarily been proven).

Obviously, before doctors could even consider this as a valid treatment option, much more medical research would be needed. On top of that, the ethical and legal questions would have to be resolved. Of course, our legal system works in such a way that tough legal questions are often answered with test cases. It’s not exactly clear how many doctors would be willing to put their careers and reputations on the line to test the legality of these types of treatments. Time will tell.

By: Rusty Shackleford

Rescinded: Blue Cross Violating Health Insurance Laws?

The LA Times reported last week on a major violation of health insurance laws by the huge private health insurer, Blue Cross. (Or, as they’re now called in California, “Anthem Blue Cross”).

The California Blue Cross division is under fire for pre-planning rescissions. As I mentioned a few posts ago, rescissions are the heavy artillery behind insurance cancellation. They allow private insurers to find discrepancies in your original application (an abnormal PAP smear, for example) and swing on that “error” to retroactively deny you coverage. Their claim is that the omitted information would have altered their original decision to approve you for a plan, and in some cases that's a valid claim. But Anthem Blue Cross has apparently been taking this process a little too far—by planning their rescissions in advance, and acting against health insurance laws.

Rocky Degadillo, an attorney for the city of Los Angeles, even went so far as to say that “countless Californians who believe they have insurance actually have policies that aren't worth the paper they're printed on” [1]. Not exactly a reassuring sentiment for policy-holders who have already dished out thousands in monthly payments.

Those with individual insurance, such as many self-employed or unemployed citizens, are being hit the hardest.

While the HIPAA (Health Insurance Portability and Accountability Act) makes it easier for people with pre-existing health conditions to get insurance through work, health protection for individuals remains subject to cancellations via rescission, outright denials for pre-existing conditions, and exorbitant premiums and monthly charges.

 

What can I do if my health insurance plan has been rescinded?

If your policy was rescinded and you believe that it was done so unfairly, you may still be able to get coverage. If you are in California, you should be also aware that past rescissions by Blue Cross are currently being reconsidered, which means that you could get retroactive reimbursement for surgeries, procedures, and other work done if you were uninsured because of a canceled policy.

Get in contact with a personal injury attorney and explain your situation.

A few minutes of discussion can give you a professional look at your options and allow you to make an educated approach to getting your health insurance back and your debt repaid.

You can also discuss your policy or issues with your health insurance on our Personal Injury and Accident Law Forum.

by Kate Beall

Are you about to lose your health insurance?

Losing your health insurance is a terrifying experience.

After my most recent trip to the hospital, I started treating my mailbox like it was packed with venomous snakes. I’d pretend that I forgot to check it, or lie to myself about doing it tomorrow. And even when I did work up the guts to approach it, the key would tremble in my hand like a divining rod—shuddering in response to the bill I knew rested just beyond that small, rusty door. 

...And that was with insurance covering most of the costs.

But with over 47 million Americans lacking health insurance, how can we avoid being charged thousands of dollars for medical procedures, check-ups, and emergencies?

 

Know your rights as a health insurance holder. Review your policy and don’t choose your doctor arbitrarily, because whether you’re on a PPO or HMO plan, you must conform to the regulations set down by your insurance company. Familiarizing yourself with your health insurance policy will spare you a lot of time lost chasing approval for procedures, visits, and tests, and your wallet will feel a little healthier when you aren’t dishing out cash for out-of-network issues.

But what if you don’t have any insurance at all? Or what if your insurance policy gets canceled?

 

Cancellation of health insurance policies can be a serious issue—especially if you’re suffering from a chronic condition that needs regular or expensive treatment. And almost all cancellations occur when an insurance company decides that you have either omitted or misrepresented something in your initial insurance application. Forgetting to note something as minimal as childhood asthma could mean that when you get rectal cancer at 50, your provider might refuse to pay for it—simply because of a completely unrelated inaccuracy in your paperwork.

However, your insurance cannot be canceled arbitrarily, and some states prevent providers from canceling insurance if the insured individual has HIV, mental dementia, or a mental illness. Your provider is also unable to cancel your policy if your omission or misrepresentation is discovered after 2 years have passed since the date of your application.

If you feel that your insurance has been unfairly canceled, please contact a health insurance lawyer. You could save yourself thousands of dollars in medical bills that would otherwise be spent on uninsured procedures and medications.

By Kate Beall

Is It Really Worth the Risk?

I recently read about Viagra causing vision loss.  Can the impotence drugs you are taking cause you to go blind?  The FDA seems concerned and is not taking this possible side effect lightly and neither should you.

The FDA is currently in discussions with drug manufacturers of Viagra, Levitra, and Cialis to determine what those drug labels should say.  The maker of Cialis voluntarily added information warning of blindness to its label.  Currently all labels warn of temporary vision changes, among other side effects.

A condition called NAION (non-arteritic anterior ischemic optic neuropathy) is supposedly what is causing this vision loss.  There are currently 43 FDA reported cases of people suffering from NAION while taking impotence drugs.  Federal health officials as well as manufacturers are quick to point out that NAION can be linked to the same illnesses that cause impotence in the first place. 

Although NAION is one of the most common causes of sudden vision loss in older individuals, Dr. Howard Pomeranz of the University of Minnesota suggests there may be a connection between NAION and these impotence drugs.  In his ophthalmology journal it was reported that seven patients suffered from NAION within 36 hours of a Viagra dose.  More research will be needed to establish a definite causal relationship between the vision loss and the use of these drugs.  One thing is for certain: if you experience vision problems while taking any of these drugs consult your physician immediately.

Viagra is not alone in receiving problems from the FDA.  Other drugs/supplements that have been recalled, voluntarily taken off the market or required to include new warning information on their labels include COX-2 inhibitors such as Vioxx, Bextra and Celebrex, the supplement Ephedra and the weight loss drug Fen-Phen.  You can read more about these drugs at LegalCenter.  All but Celebrex has been pulled off the market because the risks of these drugs outweighed the benefits.  Merck & Co. is facing thousands of lawsuits related to the use of Vioxx and their liability may reach upwards of $18 billion.

Is it possible that drugs that are suppose to help us live normal lives may ultimately injure us beyond repair?  Remember that the warnings associated with your prescription are there to protect the drug companies from liability and inform users of the risks they are subjecting themselves to.  Most side effects are so rare that only a handful of users (out of millions) experience them.  Drug companies must list all potential side effects, no matter how rare, to avoid lawsuits based on their failure to warn users.

By

Lisa Zanassi