This morning, MedPage Today — which should know better — began their “Morning Break” with this description and link:

An analysis of closed claim data from The Doctors Company suggests that physicians spend about 10% of their professional life dealing with malpractice claims, but most of those claims are closed with no money paid to the plaintiff.

Goodness! That sounds incredible. Turns out, it is incredible. In fact, it’s false.

The linked post by “The Doctors Company” at The Doctor Weighs In says:

The average physician spends over 10 percent of his or her career consumed in defense of an open malpractice claim. For the average neurosurgeon, that number is 25%—that’s a quarter of a career dealing with the intense emotional stress of defending your reputation and livelihood.

And the majority of those claims close with no payment to the plaintiff. That means the average U.S. physician in every specialty spends a significant portion of his or her career in court defending malpractice claims, but the overwhelming majority of those claims are found to be at best fruitless, and at worst frivolous.

These numbers come from a RAND Corporation objective analysis of the claims database of The Doctors Company, the nation’s largest physician-owned medical malpractice insurer. According to Richard E. Anderson, MD, FACP, chairman and CEO of The Doctors Company, these numbers show that our medical malpractice litigation system is broken—and must be fixed.

The only support given for any of these assertions is this YouTube video, where Dr. Anderson makes the same claims.

But there’s a problem: the RAND Corporation’s “objective analysis” never said anything like that. Continue Reading The Doctors Company’s Dubious Medical Malpractice Statistics

For lawyers who represent birth malpractice victims, few phrases conjure up as much ire and frustration as “the ACOG report,” the shorthand for a 2003 document put out by the American College of Obstetricians and Gynecologists (“ACOG”) called “Neonatal Encephalopathy and Cerebral Palsy: Defining the Pathogenesis.” Despite its title, the report made no effort to explain how a doctor could determine the cause of a particular child’s cerebral palsy, and it made no effort to explain how the incident of neonatal encephalopathy (i.e., newborn brain damage) could be reduced. (Bob Schuster has a little more on its origins, and MedScape has a summary of it.)


Rather, the sole purpose of the report was to prevent children with cerebral palsy caused by labor and delivery malpractice from obtaining compensation, which it accomplished by giving a cover to insurance company’s efforts to confuse judges and juries into believing that babies could survive hours without adequate oxygen and suffer no consequences. The report established core four “essential” criteria, and five “suggestive” criteria that, ACOG claimed, had to be met before a child’s cerebral palsy could be linked to hypoxia at birth.


Sure, in the “Task Force on Neonatal Encephalopathy and Cerebral Palsy,” ACOG dressed up their preordained conclusions in scientific and medical jargon and gave passing nods to basic principles of honest medical research, but the report was worthless from a medical standpoint. It wasn’t a real compilation of medical information, like a Cochrane Review or UpToDate, and it didn’t give any recommendations on how to diagnose or treat patients.


Instead, the report was used constantly in birth injury litigation by paid experts testifying on behalf of obstetricians and hospitals sued for ignoring the signs and symptoms of fetal distress and failing to treat fetal hypoxia. If you brought a hypoxia birth injury claim anywhere in the United States after 2003, you could be assured that the ACOG report would be front and center in the defense, with the veneer of “scientific” and “medical” proof.


ACOG wasn’t responsible for coming up with most of the “essential” and “suggestive” criteria, but instead cut-and-pasted them from the International Cerebral Palsy Task Force’s 1999 “template for defining a causal relation between acute intrapartum events and cerebral palsy,” available here. You can see a comparison of the ACOG and International guidelines on table 3 of this article.


The International Task Force’s criteria was suspiciously strict to begin with, like with their criteria for blood pH and Apgar scores.  Continue Reading ACOG Improves Its Guidelines On Brain Injury At Birth (A Little)

Two weeks ago I wrote about a defense lawyer in a malpractice case being sanctioned for trying to intimidate the plaintiff’s expert witness. I’ve come across two recent Pennsylvania trial court opinions involving doctors and hospitals themselves being sanctioned for improper conduct.

First up is Borrero v. Lake Erie Women’s Center, et al., a shoulder dystocia birth injury case. (For some general background, see my Erb’s Palsy page.) Opinion is here. In discovery, the plaintiffs served Lake Erie Women’s Center and Hamot Medical Center standard interrogatories seeking “written policies in place in 2000 that pertain to or relate to … shoulder dystocia” and were told no such policies existed. At deposition, Hamot’s corporate designee confirmed there were no such policies, and that the only guide they used was Varney’s Midwifery. The case was tried twice, resulting in two mistrials, one for some problem mid-trial and the other for a deadlocked jury. I’m assuming it then sat for some time awaiting a new trial.

The same plaintiff’s lawyer, Patrick Loughren, then became involved in a separate shoulder dystocia case against Lake Erie Women’s Center and Hamot Medical Center while the case was already in suit. He learned that, in that case, the defendants had produced 56 pages of policies and procedures, including a specific protocol for shoulder dystocia.

“Oops” would be an understatement. “Pants on fire” would be more appropriate.

Continue Reading Civil Sanctions Against Pennsylvania Doctors And Hospitals

It’s no secret that patients and their lawyers have a lot of difficulty finding physicians to serve as expert witnesses in medical malpractice cases. A large fraction of doctors refuse to ever testify in a patient’s favor, regardless of how negligent, reckless, or reprehensible the care provided by the defendant-doctor was. Among the doctors who do testify on behalf of patients, most will only testify against doctors in other jurisdictions, adding difficulties in communication and scheduling as well as travel costs. It also makes it harder for plaintiff’s lawyers to find qualified, credible experts, because we don’t know them by reputation the same way we know local doctors. Just this week MedScape had a column bragging about how “tort reform” expert witness laws make malpractice cases harder and more expensive, and thus thwart many patients with valid claims from even having their day in court, much less recovering compensation.

For defense lawyers, the process of finding an expert is quite easy: they call up their insurer or their local hospital and are immediately provided with a willing local expert. The code of silence around the medical profession is alive and well.

There are, however, some notable — and laudable — exceptions, and in Philadelphia one of those exceptions was on the receiving end of some particularly appalling conduct by a defense lawyer for doing nothing more than preparing to tell the truth in a courtroomContinue Reading Defense Lawyer Sanctioned For Expert Witness Intimidation In Medical Malpractice Case

The Philadelphia Inquirer today profiles an issue of disturbing importance to doctors and malpractice insurance companies: the legal right to lie to patients with impunity.

Of course, they don’t describe it that way, they describe it like this:

Many doctors feel that an apology – accepting responsibility for errors, telling what went wrong – is a dramatic advance and the right thing to do since doctors have long been loath to admit mistakes.

But they say the trend will continue only if doctors know they can speak openly, without fear of being bludgeoned in a lawsuit.

“Isn’t that a little like testifying against yourself?” asked Jim Redmond, head of legislative affairs for the Hospital Association of Pennsylvania.

Let’s get one thing straight, Jim. I’m assuming you’re referring to the right against self-incrimination by mentioning “testifying against yourself.” That right protects criminal defendants from being punished for refusing to confess to their crimes. Outside of that narrow circumstance, people ‘testify against themselves’ all the time.

If you run a red light, hit someone, then jump out of your car and exclaim, “I’m so sorry, I didn’t see the light change, are you okay?” that can be used against you in court. If you slip and fall on an olive oil spill at the grocery store and the manager comes out and says, “We’re so sorry, somebody should have cleaned that up,” that can be used against them in court.

It’s pretty simple: with a few exceptions relating to constitutional rights, what people say outside of court matters inside court. Why? Because what people say matters in real life outside the courthouse. It matters that you admitted not seeing the light and the store manager admitted someone should be cleaning up the floor — do we want our courts to be nothing more than a collection of legal fictions with no relationship to the real world? Why should we pretend that someone didn’t say something they did?

It’s important that we all understand exactly what doctors, hospitals, and more importantly their insurance companies are demanding: they want a special exemption from a basic principle of law and evidence that’s applicable to everyone.

But there’s another, more insidious, issue underlying the “medical apology” lobbying. To see it, let’s dive into the facts of the case described by the Inquirer:

Destinee Lotoya Blake arrived in this world by cesarean section after doctors determined the umbilical cord was wrapped around her neck. At 29 weeks, she was small, weighing just 1 pound, 9 ounces. …

The newborn needed to be fed intravenously. Her doctor threaded a catheter no thicker than a human hair through her veins, intending it to stop where her biggest vein reached the heart. The nutritional fluid was so concentrated that it needed the largest possible vein and maximum amount of blood to dissolve safely into the bloodstream.

Her heart was the size of an adult thumb, and the catheter went a few millimeters too far, entering the heart. In the vein, the blood flow keeps the catheter away from the vessel wall. But inside the heart, blood doesn’t move as rapidly, and her catheter rested against a heart wall.

The fluid actually seeped through the wall, into the sac surrounding her heart. That sac began to fill with fluid – a teaspoonful, but enough to stop the heart.

A chest X-ray is always taken to confirm proper placement. But in Destinee’s case, the X-ray wasn’t read in time.

When processing the X-ray, the technician clicked on the wrong baby’s name, realized it, but when she clicked again on the correct name, a drop-down screen that normally auto-populates with data had to be filled in manually, which the technician wasn’t accustomed to doing.

She confused the birth date with the film date, since they were close together. As a result the X-ray wasn’t seen in a timely manner or in context.

That is blatant, unambiguous malpractice. When my twins were in the NICU, they, too, received intravenous feeding (“Total Parenteral Nutrition”), and indeed the technicians took dozens of x-rays every time the catheter was placed anywhere near the heart. It’s one of the more dangerous moments for the baby; everyone from the technicians to the nurses to the doctors knows that, and they’re supposed to be on guard.

An aside: in the comments to the Inquirer story, a number of readers make arguments like “At 29 weeks and 1.5 pounds, this baby should have never lived as long as it did. Hard to say but it’s true.” Rubbish. Destinee was small for gestational age, and she had a nuchal cord, but the odds were still in her favor. My twins were 26 weeks. One was 1.625 pounds and had a nuchal cord. Years later, they’re both alive and doing well. NIH has a tool for predicting outcomes in extremely premature children, and it tops out at 25 weeks because the odds of survival rise so rapidly after that.

In addition to the malpractice claim, there’s likely a ‘corporate negligence‘ claim against the hospital (see Thompson v. Nason Hosp., 591 A. 2d 703 (Pa. 1991)), too, for having inadequate procedures to confirm the x-ray was timely reviewed. Abington Memorial Hospital should have had adequate policies, procedures, and electronic health records systems to ensure that, even if the technician did make that type of mistake, the problem would be caught in time. Healthcare researchers often describe medical errors in terms of “the Swiss Cheese Model:”

The ideal system is analogous to a stack of slices of Swiss cheese. Consider the holes to be opportunities for a process to fail, and each of the slices as “defensive layers” in the process. An error may allow a problem to pass through a hole in one layer, but in the next layer the holes are in different places, and the problem should be caught.

In many ways, Destinee’s death was due more to the lack of enough “layers of cheese” than to the technician’s mistake. Humans are mortal. They make mistakes, have errors in judgment, and mix up dates and numbers. At a hospital is supposed to ensure that these mistakes don’t lead to tragic outcomes by implementing many “layers of cheese,” which Abington apparently failed to do here.

I write all of that so everyone reading knows that this case doesn’t involve much debate about the standard to which doctors are held. It was malpractice, pure and simple.  Continue Reading Medical Apology Laws Are An Excuse To Avoid Doctors’ Ethical And Legal Duties To Patients

As recently as twenty years ago, large parts of the medical establishment believed that neonatal Group B Streptococcus was rare disease that couldn’t be prevented or treated. Unsurprisingly, the failure to treat Group B Strep remains one of the leading causes of malpractice in labor and delivery.

Group B Strep was, and remains, the leading cause of meningitis and sepsis in newborns, but the American College of Obstetricians and Gynecologists (ACOG) and the American Academy of Pediatrics (AAP) didn’t even have any documents, much less guidelines, on Group B Strep prevention until 1991. In 1993, the Centers for Disease Control (CDC) found that Group B Strep screening was cost-effective. In 1996, the CDC, ACOG, and AAP finally published their first consensus statement on Group B Strep prevention, leading to formal guidelines in 1997. The GBSA has a timeline of its efforts explaining the considerable effort it took to get us where we are today.

As late as 1998, an editorial in American Family Physician still had to convince obstetricians and pediatricians that GBS was a real problem, and explain to them how to prevent it:

First and foremost, we must not ignore the problem. Neonatal group B streptococcal infection is more prevalent than many of the other conditions we screen for in pregnancy, and the effects can be just as devastating. Based on the importance of group B streptococcal infection, there are two possible principles governing our obligation to inform and to care for patients: One is to adhere to the community standard and the other is to provide care that any reasonable patient would want.

Both of these principles can be addressed by two linked steps. First, each practice or care system can develop and document a standard (or reasonable choice of standards) that is supported by current literature or by authoritative clinical guidelines. The CDC consensus recommendations provide some latitude for this, as noted in this editorial and in the article by Keenan. Second, inform patients, document that the information has been provided and provide the opportunity for questions, additional information and choices, when choices are appropriate.

That was just five years before Christian Arroyo was born. As the Seventh Circuit recounted in the Arroyo v. United States opinion last Thursday:

On May 16, 2003, Solorzano Arroyo went into labor. She went to Northwestern Memorial Hospital and gave birth to her son, Christian Arroyo in the early morning hours of May 17, 2003. Because Christian’s birth was more than a month premature, Solorzano Arroyo had not undergone the battery of diagnostic tests, including a test for Group B Streptococcus (GBS), that women typically undergo in the month prior to delivery. These diagnostic tests are extremely important, as they indicate whether an infant will be at risk of contracting any diseases from his or her mother’s blood during birth and allow health care practitioners to take steps to reduce the risks that such incidents will harm the infant.

When a mother has not had these diagnostic tests, medical professionals protect infants by utilizing a two-pronged approach. First, at the delivery stage, doctors are required to observe the presence or absence of four risk factors. Second, after the baby is born, doctors are required to be vigilant in looking for signs indicating the presence or absence of neonatal sepsis (a bacterial infection of the baby’s bloodstream). If a medical professional finds any indications of infection, then she must immediately administer antibiotics to prevent the spread of infection. Because GBS is fairly benign in adult s, mothers can carry it asymptomatically during pregnancy. Newborns can contract the disease during birth and, unless it is treated immediately, it can cause severe and permanent brain injuries.

Shortly after birth, Christian exhibited several symptoms indicating that exposure to his mother’s blood had infected him with GBS. However, the obstetrician and pediatrician responsible for taking care of Solorzano Arroyo failed to detect the infection and treat Christian with antibiotics. Because of this failure, Christian suffered severe and permanent brain injuries. If the doctors had promptly treated Christian, it is likely that the damage done to Christian’s brain would have been significantly reduced.

(Names of physicians omitted.) Christian developed cerebral palsy and is a spastic quadriplegic, requiring substantial additional medical care.

It wasn’t negligent for the physicians not to test for GBS that early in her pregnancy. Nonetheless, because she wasn’t tested before going into labor, the standard of care demands the physicians presume she has GBS and that the baby has been infected until symptoms show otherwise, and to treat at any sign of infection. The failure to do so was classic medical malpractice; said his lawyer, “At one point or another, he pretty much had almost every sign of the infection; at one point, the baby was not even able to see, which was a really bad sign.” Still, he wasn’t treated. Cutting edge to do so ten years ago, malpractice not to do so today. That’s how the standard of care in medicine advances.

Medical causation was similarly indisputable. As the CDC states, “A pregnant woman who tests positive for group B strep and gets antibiotics during labor has only a 1 in 4,000 chance of delivering a baby with group B strep disease, compared to a 1 in 200 chance if she does not get antibiotics during labor.” And that’s just for the antibiotics during labor; antibiotics immediately after birth lower the odds even further.

Recall how, just five years earlier even many doctors didn’t understand the dangers of Group B strep, how to prevent it, or how to treat it. Solorzano Arroyo didn’t know it could be prevented, either, and none of her treating physicians bothered to tell her that. (Any guesses why not?) It wasn’t until she saw a personal injury lawyer’s television ad mentioning that Group B Strep infections that she suspected the possibility of malpractice. She hired a lawyer and sued.

Because the obstetrician and pediatrician worked at a federally-funded clinic, they were immune under the Federal Tort Claims Act, and the United States government was substituted as a defendant. At a bench trial, a federal judge found the United States liable for $29 million in medical care, economic damages, and pain and suffering.

The United States didn’t challenge the finding of medical negligence, nor the size of the damages — it is very difficult to get a federal appellate court to overturn the purely factual findings of a federal district court — but instead claimed that the lawsuit was filed outside the statute of limitations.

There are good policy reasons for having a statute of limitations that bars claims at some point down the road, but none of those policy reasons applied here: the malpractice occurred in May of 2003 and the lawsuit was filed in December of 2005. All witnesses were still living and of sound mind. The medical records were all available.

Most states recognize the particular circumstances of malpractice injuries to children, and so extend the statute of limitations at least a few years, sometimes until the injured child reaches adulthood. Illinois extends the statute of limitations for children to eight years, or until the child turns 22. That extended statute would have applied if this was a normal medical malpractice lawsuit, but, as noted above, this case was against federal employees, so the stricter Federal Tort Claims Act rule applied, and thus the case was governed by the state’s statute of limitations for general personal injuries, despite the child-specific statute. (Strange, I know; the Federal Tort Claims Act is a strange beast, a handful of sentences that opened up a can of worms inside Pandora’s Box.)

The question, then, was when did the statute of limitations begin to run? Under the Federal Tort Claims Act, a claim accrues when the plaintiff discovers or  a reasonable person in the plaintiff’s position would have discovered, that he has been injured by an act or omission attributable to the government. W

e know that Solorzano Arroyo didn’t “discover” the negligence until, at the earliest, she saw the personal injury ad on television, but the question is when “a reasonable person” in her position would have “discovered” the negligence.

The government argued that, “from an objective standpoint, reasonably diligent persons are aware that infections can be prevented, particularly in hospital settings.” Did the Department of Justice take the time to review the history of GBS prevention and the scope of GBS educational efforts? Did they stop and consider that, if just five years earlier an editorial in a major medical journal was imploring doctors “not ignore the problem,” then maybe, just maybe, your average American might not know that the standard of care demanded Group B Strep be closely considered in all pre-delivery testing and, if found, treated with antibiotics?

Or did they just throw out whatever arguments they could, regardless of merit or justice?

Enter Judge Richard Posner. Continue Reading When Does A Reasonable Person Suspect Medical Malpractice?

The New England Journal of Medicine released a new study in today’s issue, Malpractice Risk According to Physician Specialty, which concluded:

There are few recent estimates on the likelihood of malpractice claims and the size of payments according to physician specialty. Using physician-level malpractice claims from a nationwide liability insurer, we found substantial variability across specialties in each of these descriptors of liability risk. Specialties in which the largest proportion of physicians faced a claim were not necessarily those with the highest average payment size. For example, physicians in obstetrics and general surgery — both fields that are regarded as high-risk specialties — were substantially more likely to face a claim than pediatricians and pathologists, yet the average payments among pediatricians and pathologists were considerably greater. …

Our study uncovered an important aspect of malpractice liability: the high likelihood of claims that do not result in payments to a plaintiff. Annual rates of claims leading to indemnity payments ranged from 1% to 5% across specialties, whereas rates of all claims ranged from 5% to 22%. Our projections suggest that nearly all physicians in high-risk specialties will face at least one claim during their career; however, a substantial minority will not have to make an indemnity payment.

The study’s authors tied this all back into the core concern among tort reformers — “the perceived threat of malpractice among physicians” — but I think the real question should be, why is there so much medical malpractice?

We know from the 2006 study by a group at Harvard Medical School (which was also published in the NEJM), “Study Casts Doubt on Claims That the Medical Malpractice System Is Plagued By Frivolous Lawsuits,” that our medical negligence tort system gets it right three-quarters of the time, and, when it gets it wrong, favors the doctors.

The Harvard study found that three-quarters of lawsuits that resulted in compensation indeed involved bona fide malpractice, while only one-tenth of paid claims involved injures not caused by medical malpractice — and the plaintiffs in those cases received far less than the plaintiffs who had injures which even a panel of doctors thought were caused by medical malpractice. While only one-tenth of paid claims did not involve malpractice, one-quarter of bona fide medical malpractice victims did not recover any compensation. (I previously discussed the Harvard study here and here.)

It’s simple to connect the dots between the 2006 study and the current studies:

  • if 1% to 5% of doctors pay malpractice claims every year, and
  • even a panel of doctors agree that three-quarters of those paid claims involve bona fide malpractice, and
  • there’s also substantial rate of bona fide malpractice cases that don’t turn into successful claims, then:
  • between 1% and 5% of doctors commits malpractice serious enough to warrant a successful lawsuit every single year.

Little wonder, then, that the economic cost of malpractice is $20 billion annually — more than five times the cost of the entire malpractice system, insurance premiums, lawyers and paid claims included.

The study also added some empirical data about the relationship between particular specialties and the likelihood & size of claims:

Across specialties, the mean indemnity payment was $274,887, and the median was $111,749. The difference between the mean and median payment reflects the right-skewed payment distribution. Specialties that were most likely to face indemnity claims were often not those with the highest average payments. For example, the average payment for neurosurgeons ($344,811) was less than the average payment for pathologists ($383,509) or for pediatricians ($520,924), even though neurosurgeons were several times more likely to face a claim in a year. The estimated correlation between the proportion of physicians with a claim and the average payment amount was 0.13 (P=0.52). The correlation between the proportion of physicians with an indemnity payment and the average payment was similar and was not significant. This suggests that factors driving the likelihood of a claim are largely independent of factors that drive the size of a payment.

That’s not surprising to medical malpractice lawyers. When considering whether or not to recommend litigation, we don’t just tell the clients with the largest damages “yes” and then work our way down, saying “no” at some arbitrary dollar amount.

The recommendation for litigation involves a balancing of factors:

  1. the likelihood of proving the physician breached the standard of care;
  2. the size of the provable damages that can be connected to the negligence;
  3. the predicted cost and duration of the litigation.

Incorporated within #1 and #2 are details specific to each specialty. Focus in particular on the “connected to the negligence” part — proving causation is simple in slip-and-fall cases but complicate in a wide variety of potential malpractice claims.

Pediatric malpractice claims, for example, are rare given the nature of what pediatricians do, or rather what they don’t do: they don’t typically diagnose or treat acute conditions. Pediatric malpractice litigation thus typically arises when a pediatrician fails to diagnose (or properly treat) a chronic condition, one that worsens during the malpractice and becomes either harder to treat or untreatable, an uncommon but devastating situation. Otherwise, pediatric malpractice goes under the radar, so to speak.

In contrast, surgical malpractice claims are more common because surgeons treat acute conditions and because the causal connection between the alleged malpractice is quite clear. The “causation” step thus typically isn’t a problem: the improper technique in surgery and the complications that arose were plainly “caused” by the negligence.

All in all, a useful an interesting study, one that hopefully brings us a little closer to the real issue: the need to reduce the volume and frequency of medical malpractice.

Last month the American Journal of Medicine published a new study (“Longer Lengths of Stay and Higher Risk of Mortality among Inpatients of Physicians with More Years in Practice”) with the unexpected conclusion that hospitalized patients were more likely to die or stay long in the care of an experienced physician than in the care of a recent graduate from residency:

According to findings in the American Journal of Medicine, patients whose doctors had practiced for at least 20 years stayed longer in the hospital and were more likely to die compared to those whose doctors got their medical license in the past five years. …

Over the course of the study, there were 59 different attending physicians. The researchers divided them up based on how long they were practicing: five years or less, six to 10 years, 11 to 20 years, or more than 20 years. …

At first glance, compared to patients with the newest doctors, those with the most experienced physicians had more than a 70 percent increase in their odds of dying in the hospital and a 50 percent increase in their odds of dying within 30 days.

However, when the researchers took into account how sick the patients were, they found that only the sicker patients — those with complicated medical problems — were at higher risk in the hands of the more experienced doctors.

Southern’s group also found that while the doctor’s experience played a role in how long patients stayed in the hospital, it also mattered how many hospitalized patients he or she was taking care of.

When doctors weren’t very busy, they kept patients in the hospital for roughly the same average time no matter how many years of experience they had. But when they did have a lot of patients to see in the hospital, those with more than 20 years of experience kept patients there about half a day longer than their peers who’d been practicing for less than five years.

Description from Reuters. The authors suggested that the younger doctor’s “familiarity with more current guidelines and practices” explained the difference, and suggested requiring periodic re-certifications. Scepticemia notes some possible confounding variables and sample size issues, but on the whole the study’s conclusions look robust.

We have a fair amount of experience investigating medical mistakes around here, including malpractice by hospital residents, so let me offer another possibility.

There is a misunderstanding about medical malpractice law which goes like this: if a doctor is faced with multiple potential diagnoses and treatments and the doctor chooses the wrong one, the doctor will be liable for medical malpractice.

Such myth is not and has never been the law. Continue Reading Medical Malpractice, Errors in Judgment, and The Beginner’s Mind

It’s conventional wisdom among trial lawyers and insurance lawyers that few plaintiffs are as sympathetic as a brain-damaged baby. The baby plainly did nothing to contribute to their harm, but has nonetheless been deprived of many of the basic joys of their infancy, childhood, adolescence, and adulthood. It’s thus presumed that, if a jury finds liability in a birth injury lawsuit — like a negligent hospital or obstetrician that failed to observe fetal distress, leading to hypoxia, or failed to treat jaundice, leading to kernicterus — they’ll inevitably award a substantial amount of non-economic damages for pain and suffering. Indeed, that was the whole thought behind New York’s misguided “reform” which limited non-economic damages to $250,000.

Conventional wisdom suggests that Ja’Kareon Graham was a sympathetic plaintiff. It wasn’t his fault he was brain damaged at birth, that at 4 1/2 years old he can’t speak, that he’s fed through a gastric tube and needs round-the-clock medical care. It was the fault of the nurses and obstetrician who delivered him. He was a twin, and the nurses only bothered to monitor his twin’s heart rate; by the time he was born, he had spent hours in fetal distress.


The hospital’s expert claimed (see this story) that he was too small to monitor correctly, but that’s just rubbish: one of my twins was smaller than Ja’Kareon and also wasn’t showing up on the fetal heart rate monitor, so the attending obstetrician — after he learned what I did for a living — brought in another doctor to follow her with an ultrasound, and she was delivered the moment trouble appeared.

Compounding the problems, Ja’Kareon became stuck after turning to breech position, and the obstetrician negligently dithered around for a while before ordering an emergency c-section. The prolonged hypoxia and resulting metabolic acidosis caused his cerebral palsy.

Conventional wisdom, but perhaps not actually correct:

An Erie County jury has delivered what is believed to a be record $21.6 million verdict in the case of a boy who suffers from cerebral palsy as a result of a lack of oxygen during birth. … On April 20, following a trial that was just over a week long and deliberations that lasted about three hours and 40 minutes, a unanimous 12-member jury delivered the $21,573,993.10 verdict against defendant Hamot Medical Center of the City of Erie in President Judge Ernest J. DiSantis Jr.’s courtroom. According to the verdict slip in Graham v. Townsend , $19,588,217 was awarded for future medical expenses and is to be paid in annuities through 2081, while $1,424,314.10 was for past medical expenses and $561,462 was for lost earning capacity.
Notice anything missing there?

That’s right: the jury awarded the child zero in non-economic damges.

To see what the jury didn’t think he deserved, let’s take a refresher on non-economic damages in Pennsylvania by reviewing the civil jury instructions:

The plaintiff has made a claim for a damage award for past and for future noneconomic loss. There are four items that make up a damage award for noneconomic loss, both past and future: (1) pain and suffering; (2) embarrassment and humiliation; (3) loss of ability to enjoy the pleasures of life; and (4) disfigurement. … [P]laintiff is entitled to be fairly and adequately compensated for all physical pain, mental anguish, discomfort, inconvenience, and distress that you find (he) (she) has endured from the time of the injury until today and that … (he) (she) will endure in the future as a result of (his) (her) injuries. … Plaintiff is entitled to be fairly and adequately compensated for such embarrassment and humiliation as you believe (he) (she) has endured and will continue to endure in the future as a result of (his) (her) injuries. … Plaintiff is entitled to be fairly and adequately compensated for the loss of (his) (her) ability to enjoy any of the pleasures of life as a result of the injuries from the time of the injuries until today and … in the future as a result of (his) (her) injuries. … The disfigurement that plaintiff has sustained is a separate item of damages recognized by the law. Therefore, in addition to any sums you award for pain and suffering, for embarrassment and humiliation, and for loss of enjoyment of life, the plaintiff is entitled to be fairly and adequately compensated for the disfigurement (he) (she) has suffered from the time of the injury to the present and that (he) (she) will continue to suffer during the future duration of (his) (her) life. In considering plaintiff’s claims for damage awards for past and future noneconomic loss, you will consider the following factors: (1) the age of the plaintiff; (2) the severity of the injuries; (3) whether the injuries are temporary or permanent; (4) the extent to which the injuries affect the ability of the plaintiff to perform basic activities of daily living and other activities in which the plaintiff previously engaged; (5) the duration and nature of medical treatment; (6) the duration and extent of the physical pain and mental anguish which the plaintiff has experienced in the past and will experience in the future; (7) the health and physical condition of the plaintiff prior to the injuries; and (8) in case of disfigurement, the nature of the disfigurement and the consequences for the plaintiff.

The jury took a close look at the child’s lifetime of round-the-clock care, the fact that he can’t even eat, much less feed himself, and decided it was worth nothing. Nothing for physical pain. Nothing for mental anguish. Nothing for loss of pleasures of life.


Would they have checked “yes” if there had been a item on the verdict slip for awarding him a lump of coal?


Yet, the award itself is not an unusually small size. It’s actually high: appellate courts generally take large birth injury verdicts move them down below the $10 million range, often below the $5 million range. Last month the family of baby in New Jersey who suffered similarly debilitating injuries as the result of a compromised umbilical cord — blindness, seizures, loss of head control — requiring full-time care settled their claims against Bayonne Medical Center for $8.5 million. It’s not like the Erie County jury was stingy.


So what happened? I believe it’s the result of more than a generation of insurance-industry funded propaganda (deceptively called “medical malpractice tort reform“) which has taught everyday citizens that non-economic damages aren’t “real” damages. Thus, when a jury is presented with a case that undoubtedly shows extensive pain and suffering — nothing less than taking away a normal, productive life and replacing it with a nearly vegetative state that requires constant health care intervention just to sustain — that jury either doesn’t know how to award non-economic damages or is so afraid of awarding them that they lump them in with future medical expenses.


Assuming this ends this case (the article references a high-low settlement agreement but doesn’t say if any rights of appeal were reserved), Ja’Kareon will receive enough money for his trust fund to fund adequate care for the rest of his life, but that’s because the jury apparently overestimated the cost of his future health care. The same can’t be said for the thousands of medical malpractice plaintiffs whose meritorious cases are either rejected because they’re too risky in this “tort reform” environment or whose cases win at trial but result in inadequate awards.


Read more about our medical malpractice and birth injury legal services.


Today’s Legal Intelligencer tells us what we already know: in Pennsylvania and New Jersey, patients’ right to compensation for injuries caused by medical malpractice is dying. Not a quick death, mind you, like the death of patients’ rights in Texas (a punishment insurance companies and medical associations are trying to inflict upon New York), but a slow death.

I use the word “death” because that’s what it often what it takes to qualify for a medical malpractice lawsuit these days. If a patient wasn’t killed or permanently injured by the malpractice, then often it doesn’t matter how outrageously negligent or reckless the doctor was, because a lawsuit isn’t worth the financial risk to any lawyer who might take the case.



In Pennsylvania (here’s one of my prior posts about Pennsylvania medical malpractice tort reform), even though every single medical malpractice lawsuit filed has to be supported, at all times, by the testimony of a qualified physician who currently practices in the same field as the defendant — an expensive requirement that makes it difficult to find experts in the first place, given how specialized medical fields are and how many specialists know each other, even specialists on opposite sides of the country — defendants win more than 80% of cases taken to trial.



The current climate in Pennsylvania’s courtrooms is forcing many of the state’s plaintiffs firms to be more selective in the medical malpractice cases they take on, and also has them looking to areas like mass torts and class actions for new business.

Nearly eight years after the state enacted medical malpractice reform measures and in the wake of one the worst economic downturns in history, the number of plaintiffs verdicts has continued to dwindle in many venues statewide, leading several of Pennsylvania’s largest plaintiffs firms to screen those cases more rigorously.



Civil lawsuits typically measure the damage inflicted by a death in terms of its economic cost. There is room for non-economic damages, but after a generation of insurance-industry funded “tort reform,” even winning, much less winning, recovering economic damages, and recovering non-economic damages, is difficult these days. That’s a problem when some cases, like birth injury claims, can cost a quarter-million or more in expert fees and litigation costs just to get to trial. A slip and fall in a hospital costs over $25,000 in expert fees to pursue, because it occurred in a hospital.



Sometimes even permanent injury isn’t enough to make a lawsuit feasible. Scarring, disfigurement, loss of mobility, and constant pain — all common injuries caused by malpractice, yet often not enough, by themselves, to justify spending tens of thousands of dollars retaining an expert for testimony and thousands of dollars for medical records and depositions, not to mention hundreds of hours on the case.



Sometimes even killed isn’t enough. Remember the economic damages; when an elderly patient dies from a botched surgery performed by an unsupervised resident who are just learning the procedure (a situation I’ve seen many times before), there’s often no recourse for the family, because the case likely won’t recover more money than it would cost to pursue. If medical malpractice lawyers took all these cases, they would be swiftly bankrupted.



This isn’t an issue about one lawyer or one firm finding it hard to win medical malpractice cases; we have no problem winning malpractice cases, even in counties outside of Philadelphia. The lawyers and firms quoted in the article, too, are more than up to the task. These cases are just harder, longer, more expensive, and riskier than they used to be.



As a business matter, our firm will be fine, as will all of the firms mentioned in the article. We will restrict our medical malpractice cases to those with extraordinarily large damages, like birth injury and cancer misdiagnosis cases, and focus our efforts on other legal fields, both within the big picture of personal injury and in entirely different fields, like infringement lawsuits.



But what the tort reformers have never understood, or have deliberately ignored, it’s not about us.  It’s about putting injured patients and their families back to where they should have been, about how medical malpractice causes over $20 billion in economic harm each year, yet the entire malpractice system — including all attorneys’ fees on both sides — is only around $4 billion each year, which means that most victims of medical malpractice go completely uncompensated. It’s about improving the practice of medicine by making that fraction of physicians who practice beneath the standard of care accountable for their negligence, and how, solely to avoid lawsuits, one labor and delivery ward brought their delivery malpractice rate down to zero.


It’s not really a loss for trial lawyers if medical malpractice liability is restricted to a tiny fraction of catastrophic injury cases. It’s a loss for everyone.

Read more about our medical malpractice and birth injury legal services.