How does the court in a medical malpractice case decide how much money to allocate for my child’s future care-related needs?

Filed under: Lifetime Financial Benefits, Medical Malpractice Lawsuits

If the development of an individual’s cerebral palsy is related to the negligent care of a doctor, hospital or midwife, most jurisdictions allow for the parents or guardian pursue a case on their child’s behalf.   While some jurisdictions limit the compensation that an injured party may seek for intangible damages such as pain and suffering or disfigurement, most jurisdictions allow for parents to recover money for economic damages that their child has incurred as a result of his birth injury.

While uncertainty is an element in every person’s life, in the context of medical malpractice litigation— and cerebral palsy cases in particular— the future care-related expenses can be so significant that there is little room for error.  Consequently, many cerebral palsy lawyers utilize the services life-care planners to help educate decision makers in the case who are responsible for making determinations as to financial awards.

In the case of most cerebral palsy lawsuits, damages may be sought for both past and future care.  The use of a physician or other medical professional with who is trained in life care planning is an important component in both ascertaining an individual’s life expectancy— and specifically what the needs will likely be— and what they will likely cost.

Most life-care planners go about their work after evaluating the individual, the patient’s medical records, and reports from the individual’s treating physicians.  After analyzing the related data, a life care planner can make predictions– within a reasonable degree of medical certainty— as to the person’s realistic life expectancy as well as the type of care that they will likely require throughout their life– from the number of hours of skilled nursing care they will likely require on a daily basis, they type of wheelchair they need, to how frequently a handicapped vehicle likely needs to be replaced.

Frequently, the services of an economist are engaged to help explain the life care planners recommendations in a dollars-and-sense fashion.  Working in tandem with a life care planner, an economist looks at the recommendations made in the life-care plan and calculates a monetary figure necessary to pay for the care–  throughout the course of the person’s life.  Most economists incorporate a rate of return for conservative investments to devise a present cash value for a cerebral palsy patient’s life plan.  Put simply, a sum of money needed today to provide for the suggested care of the individual over the course of the individual’s life.

Malpractice reform efforts stalled

Malpractice reform efforts stalled By: Brett Norman November 7, 2011 10:29 PM EST

In a bid to win support for health reform from skeptical doctors back in 2009, President Barack Obama pledged action on an item near the top of their wish list — malpractice reform. And he delivered an initial step: $25 million to test alternatives to the medical liability system. That won praise from the American Medical Association, among others. But since then, tort reform on the federal level has been put on ice, a victim of both tight money and bitter politics. Malpractice provisions in the Patient Protection and Affordable Care Act were limited in the first place — $50 million for expanded state demonstration projects. And Congress didn’t fund it. Nor did the administration get the $250 million it requested for fiscal year 2012 for the Department of Justice to explore alternative approaches. Meanwhile, House Republicans are pushing for the kind of reform they’ve backed for many years — a $250,000 federal cap on noneconomic damages and shortening the statute of limitations. But the bill, called the HEALTH Act, has little chance of clearing the Senate, which is controlled by Democrats, who have historically resisted tort reform. The two sides have been arguing for years, with the Democrats accusing Republicans of siding with insurers instead of injured patients, and the Republicans saying Democrats are beholden to trial lawyers. Meanwhile numerous studies have documented ongoing problems with patient safety, as well as significant flaws in the way the legal system currently handles malpractice cases, sometimes dubbed “jackpot justice.” Yet unless the supercommittee acts, it looks like tort reform will be left for now to the states — many of which have already taken some kind of action. The Congressional Budget Office has estimated that tort reform similar to the Republican caps proposal would save $54 billion over 10 years. “It doesn’t look like anything big is going to happen soon,” said Urban Institute scholar Randall Bovbjerg. The $250 million DoJ request to finance alternatives including so-called health courts, safe harbor and “disclose and apologize” models, “could have been a meaningful effort,” he added. The ACA provisions, on the other hand, were worth little to begin with. The proposed $50 million “showed they cared about responding to reform and defensive medicine and such, but the restrictions in the law made it impossible for it to amount to anything,” Bovbjerg said. “It was only ever intended as a political sop,” said Philip Howard, founder and chairman of Common Good, which advocates for expert health courts to settle medical liability claims. Backers of health courts say they would be fairer and more consistent than the current way of handling malpractice cases. What’s left are the relatively limited projects funded in June 2010 with the initial $25 million through the Agency for Healthcare Research and Quality — 13 planning grants of about $300,000 each and seven $3 million, three-year demonstration projects. And even that AHRQ program is on hold. The Department of Health and Human Services solicited applications for a second round of grants but “since Congress hasn’t funded it yet, the applications have not been reviewed,” an HHS official said. Congressional Republicans oppose the demonstration projects in hopes of positioning their tort reform law as a core piece — and a well-defined piece, after so much congressional debate — of their “repeal and replace” strategy for the ACA, staffers say. “The president’s demonstration projects are an attempt to profess interest in malpractice reforms without actually taking action,” Rep. Lamar Smith (R-Texas) wrote in an email to POLITICO. “We don’t need to ‘demonstrate’ that medical malpractice reforms are effective; that has already been proven in the states where these reforms have been enacted.” The caps, already in place in many states including Texas and California, may provide more predictability for doctors and malpractice insurers. But they do nothing to address the underlying system, which is increasingly understood to serve neither patients nor doctors well or fairly. But the political debate over how to address the problem has ossified into a rote partisan exercise, Bovbjerg said. “The lawyers say the system works great,” he said. “The other side says it’s the worst thing since the fall of man from Eden, but if we have a little less of it, it will be fine.” In his book, “Healthcare, Guaranteed,” Ezekiel Emanuel, a bioethicist now at the University of Pennsylvania and a former White House adviser on health policy, laid out the case against the existing malpractice system. “Numerous studies have shown that the majority of patients who suffer a medical error are not compensated, while a select few win outsize awards. And on average, patients must wait nearly five years to resolve claims and receive payments from a malpractice case — six if the case is related to the delivery of a baby.” Among the alternatives being developed in several states or communities include the “disclose and offer” or “disclose and apologize” model. First introduced by the Veterans Administration and adopted by other health systems, including the University of Michigan, it encourages health providers to acknowledge and apologize for medical errors and offer patients compensation. If the patient rejects the offer and opts to sue, any previous admission would be inadmissible in court. Proponents say this model encourages providers to identify mistakes openly — and work on ways to prevent errors or harm from happening to another patient. Health courts, based on previous specialized courts, would provide administrative compensation as ordered by trained judges and medical experts, rather than the usual trial by a lay jury. These have not been tested yet. The safe harbors model would protect providers from liability if they follow established best practice guidelines, although in many cases, those guidelines have not yet been specified or widely agreed on. “There are a lot of ideas that need to be tested as a first step,” said Michelle Mello, a professor of public health at Harvard and a malpractice reform advocate who has applied for funding through AHRQ. The initial round of AHRQ grants provided funding to develop and test some of these models, particularly the disclose and offer variety. The demonstration grants went to university researchers, health systems, a public health department and a court system. And the idea was that some of the 13 planning grants would subsequently get project-level funding. “That was the hope,” said Joy Wilson, health policy director of the National Conference of State Legislatures. “But it’s not easy to fund anything in this environment. It didn’t happen.” Advocates of comprehensive malpractice reform are frustrated by the mismatch between rhetoric and action. And the AMA still wants a nationwide fix. “It will come back around — and sooner rather than later — because fundamentally, you can’t manage health care if you can’t manage health care justice,” Howard said. “But no politician wants to do it.”

Medical Malpractice and Deficit Reduction Lunacy- From The POPTORT.com

August 09, 2011

Medical Malpractice and Deficit Reduction Lunacy

We’re getting a little uncomfortable with the direction of some policy discussions about medical malpractice and the debt.  As we’ve noted many times, most recently here, the amount of medical negligence in the nation boggles the mind.  How is it that some respected opinion leaders don’t seem to care about addressing the problem of deaths, injuries, claims and lawsuits with proven patient safety solutions, but instead would rather focus on reducing accountability and the legal rights of sick and injured patients after they’ve been hurt?  And by the way, then forcing taxpayers to pick up the tab for their care and letting the insurance industry make out like bandits. I don’t get this.

In the February 2011 American Journal of Obstetrics & Gynecology, three physicians published an article about a comprehensive obstetric patient safety program that was implemented in the labor and delivery unit at NY Presbyterian Hospital-Weill Cornell Medical Center (pictured), beginning in 2002.  This program initially came at the recommendation of the hospital’s insurance carrier, MCIC Vermont. Here are some of the things they did: team training and other methods to improve communication, electronic medical record charting, improved on call scheduling, established new drug protocols, premixed and color coded solutions, hired full time patient safety obstetric nurses funded by the carrier, made better use of physicians assistants and put a laborist on staff, required certification in electronic fetal monitoring and held obstetric emergency drills.  As a patient about to give birth, wouldn’t you expect at least this from any hospital you enter?

What’s more, they found that “that implementing a comprehensive obstetric patient safety program not only decreases severe adverse outcomes but can also have an immediate impact on compensation payments.”  For example, they reported that “2009 compensation payment total constituted a 99.1% drop from the average 2003-2006 payments (from $27,591,610 to $ 250,000). The average yearly compensation payment in the 3 years from 2007 to 2009 was $2,550,136 as compared with an average of $27,591,610 in the previous 4 years (2003-2006), a yearly saving of $25,041,475 (total: $75,124,424) during the last 3 years.”  Win, win, right?

But then you have some – I apologize for this language – really dumb suggestions by former OMB director Peter Orszag (who now works for Citigroup) that one big way to contain the deficit is by “enacting medical malpractice reform.”  Let us be clear – the Congressional Budget Office came up with budget savings that were trivial at 0.5% – and even those were questionable – if Congress enacted all of the most Draconian, cruel restrictions on the rights of patients that exist in this country, which even Peter Orszag does not support. See also here. That’s basically the unconstitutional bill circulating in the U.S. House of Representatives now.

But back to NY Presbyterian Hospital-Weill Cornell Medical Center.  Dr. Lora Ellenson, a pathologist there, whose now 13-year old son, Thomas, was brain-damaged from a birth injury due to negligence, told the New York Daily News in March:

“My son cannot walk or talk.  He is not able to carry out activities of daily living – eating, dressing, toileting, bathing – without constant assistance from an adult. He also needs a motorized wheelchair, a speech output device and a wheelchair-accessible van, just to name a few.”

Had the Ellenson’s not won a malpractice award well above the proposed $250,000 she would have had to quit her job to stay home with her son every day.

“Even with all the support, my son will face huge challenges throughout his life including his ability to move freely in the everyday world, to have a profession, to build friendships.  Many of the things created for nondisabled individuals will never be available to him – climbing simple stairs, eating with utensils, swimming at a beach, rearranging the covers on his bed.…

“As a physician, I have also had to grapple with the implications for my profession.  I have had to come face-to-face with the knowledge that mistakes are made.  Like most physicians, I live with the reality that we might one day make an error and be sued.  When that day comes, I will be grief-stricken, not because of the process – although I am sure that won’t be pleasant – but due to the fact that I may have caused someone irreparable damage.

“My only hope is that the damaged person can get what they need to live in the best way that they are able.  As a physician, I want to know that there will be compensation to rebuild a life that has been diminished.  Yet, as a mother, I also know that no typical physician, nor the system within which they operate, can possibly understand the true depth of these mistakes.”

Physicians like Lora Ellenson have been drowned out of this discussion.  They should be front and center.

Cuomo and Tort Reform Selling Out Injured Baby Rights

Cuomo and Tort Reform
Selling Out Injured Baby Rights
from

www.nader.org
By RALPH NADER

New York State’s Governor Andrew Cuomo will be judged harshly by history if he doesn’t reverse his position supporting limiting the legal rights of brain damaged babies. Imagine a life-time $250,000 cap on pain and suffering and families having to endure a burdensome and humiliating struggle to get medical bills paid as they arise from an insurance funded entity. Governor Cuomo is hiding behind the recommendations of his Medicaid Redesign Team, which has more than a sprinkling of hospital and industry lobbyists, and which was the stalking horse for this heartless proposal.

Why you might ask would Andrew Cuomo, the son of Mario Cuomo, a man widely regarded as a champion of the underdog, advance such a mean-spirited and wrong-headed measure?

The short answer: political expediency. Credible observers say Governor Cuomo needs to give the health insurance industry a financial benefit in exchange for the health insurance industry not economically punishing hospitals workers. And to top it off with a touch that would make Machiavelli proud, the Governor placed this initiative in his budget proposal. This means that for the New York State Assembly and Senate to vote against this draconian measure used to seal a political deal, the legislators would have to vote down the entire state budget.

It is shameful that the Governor would use his creativity and intellect to help the health industry at the expense of helpless babies who are victims of medical malpractice.

Many in the health care and insurance industry seem to regard the civil justice system as a nuisance that threatens to destroy our economy and way of life. In reality, America’s civil justice system plays an indispensable role. When the rights of injured consumers are vindicated in court, our society benefits in countless ways: compensating victims and their families for shattering losses (with the cost borne by the wrongdoers rather than taxpayers); preventing future injuries by deterring dangerous health care and other practices, spurring safety innovation; and educating the public to risks associated with certain products and services. These legal rights provide society with its moral and ethical fiber by defining appropriate norms of conduct.

Governor Cuomo needs to review the facts on medical malpractice. First he should know that supporters of tort “deform” invoke one myth after another: a litigation explosion, juries automatically ruling in favor of plaintiffs and routinely awarding punitive damages, an economy shattered by these awards. Each of these notions is demonstrably false. Only a tiny percentage of persons injured bring lawsuits, and an even tinier percentage of those who do receive large verdicts. Limiting victims’ rights is an anti-democratic solution to a trumped-up problem.

Second, a driving force behind this dishonest campaign is the insurance industry. Whenever, over the years, insurers face low interest rates and declining stock investments, they start the drumbeat against justice for victims. They’ve made a particular cause against liabilities for medical malpractice. Instead of demanding disciplinary action against incompetent physicians, urging medical associations to police their own ranks, the insurance industry lobbies state and federal legislatures to curtail victims’ rights and remedies in courts of law. At the insurance industry’s behest, their physician policyholders have joined the call.

Why do physicians allow themselves to be tools of insurance companies that gouge them especially when they are not among the incompetent few who account for most malpractice claims (five percent of doctors are involved in roughly 50 percent of malpractice payouts)? One answer is that insurance companies frighten physicians with false data suggesting that malpractice suits run amok. A persuasive case can be made that there are far too few malpractice suits. The 1999 Institute of Medicine study estimated that gross malpractice in hospitals alone takes up to 98,000 American lives a year and causes hundreds of thousands of serious injuries. Yet various studies show that roughly 90% of people harmed by medical malpractice do not even file suit.

If you total the entire amount of premiums physicians pay in a year for their malpractice insurance and divide it evenly by all the physicians practicing in the United States, the average annual premium is less than $10,000 per doctor. Very manageable. So why are some doctors paying $50,000 or $100,000 a year to their malpractice insurers? Because the profit hungry companies have learned to over-classify their risk pools, thereby charging exorbitant amounts to specific specialists like obstetricians and orthopedic surgeons. In addition, because insurers fail to surcharge the few incompetent physicians in these specialties, the competent specialists pay for more than they should.

There is another benefit to the insurance industry from this kind of over-classification. When obstetricians are gouged, they protest loudly, threaten not to deliver babies, and sometimes actually go on strike. This makes great television — crying babies and physicians in their garb blaming lawyers – and deflects blame from the insurers, who laugh their way to the bank. In recent years, their profits have soared.

Neither organized medicine nor the insurance companies go after bad doctors. The AMA’s web site does not report any data about incompetent or crooked physicians, and the insurance companies have shown little interest in loss prevention. Instead, both physicians’ and insurers’ lobbies fund and press legislators to enact laws that politicize the courts, tie the hands of judges and juries, and make it harder for innocent people or children to receive just compensation for their tragic suffering.

Isn’t it time to focus on malpractice prevention instead of trying to hamstring hundreds of thousands of Americans harmed by their doctors’ negligence? Are malpractice awards the national crisis physicians and insurers suggest? In fact, the entire medical malpractice insurance industry payout to victims in verdicts and settlements is about $5 billion a year (substantially less than the amount our the country spends on dog food). Isn’t it time to focus on malpractice prevention instead of trying to restrict the rights of hundreds of thousands of Americans harmed by their doctors’ negligence?

We need to ask whether proposed reforms level the playing field or tilt an already un-level field even further by making it more difficult for wrongfully injured citizens to receive justice from the perpetrators of their harms.

The tort deform movement amounts to a perverse rewriting of history. Tort law produced decades of slow but steady progress in state after state respecting the physical integrity of human beings against harm by recognizing that even the weak and defenseless deserve justice. Instead of seeing this evolution as a source of national pride, a coalition of insurance companies, corporate defense lobbies, and craven politicians depict it as an accountability that must be stripped.

If this campaign succeeds, the results are sadly predictable. Tort reform means less deterrence, which means more injuries, more uncompensated victims, and tremendous overall costs transferred to society.

Send the governor a letter and remind him an important part of being a leader is defending the defenseless. His address is:

The Honorable Andrew M. Cuomo of New York State
State Capitol Building
Albany, NY 12224

Ralph Nader is the founder of the Center for Study of Responsive Law, in Washington.

Brett Newman
Leo Dunn-Fox

 

PLEASE READ THIS AND TAKE ACTION*************

PLEASE READ THIS AND TAKE ACTION:

The rights of all New Yorkers’ are in jeopardy of being taken away as they relate to a patient’s right to pursue an action for medical malpractice.  Presently the legislature has before it a budget proposal which caps non economic damage awards at $250,000.00 no matter how egregious the injury and creates a Neurological Impaired Infant Fund which may affect a child’s right to a jury trial.

PLEASE CLICK ON LINK TO BE HEARD BEFORE IT IS TOO LATE.

Forward to your friends and family and allow the many consumers it affects to take a stand on a proposal that is under the radar to so many.

HELP STOP the Medicaid Redesign Team Proposal Limiting Compensation for Patients Hurt by Bad Doctors

HELP STOP the Medicaid Redesign Team Proposal Limiting Compensation for Patients Hurt by Bad Doctors
http://capwiz.com/nysba/home/

National Medical Malpractice Statistics

National Medical Malpractice Statistics

http://www.medicalmalpractice.com/National-Medical-Malpractice-Facts.cfm

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1. Fewer than one-half of 1% of the nation’s doctors face any serious state sanctions each year. 2,696 total serious disciplinary actions a year, the number state medical boards took in 1999, is a pittance compared to the volume of injury and death of patients caused by negligence of doctors. A recent study by the Institute of Medicine of the National Academy of Sciences estimated that as many as 98,000 patients may be killed each year in hospitals alone as a result of medical errors.Earlier studies also found that this was a serious national problem.

2. Harvard researchers found that 1% of a representative sample of patients treated in New York state hospitals in 1984 were injured, and one-quarter of those died, because of medical negligence.Nationwide, that would have translated into 234,000 injuries and 80,000 deaths in 1988 from negligence in American hospitals. Most of this involves physicians. There is no clear evidence that there has been significant improvement since then.

3. A similar study conducted in California in 1974 found that 0.8% of hospital patients had either been injured by negligence in the hospital or had been hospitalized because of negligent care. Extrapolation of those findings would have yielded an estimate of 249,000 injuries and deaths from negligent medical practice in 1988.

4. In 1976 the HEW Malpractice Commission estimated similarly that one-half of 1% of all patients entering hospitals are injured there due to negligence. That estimate would have indicated 156,000 injuries and deaths resulting from doctor negligence in 1988.

5. Expanding these estimates to include general medical practice outside of a hospital, the potential abuse by physicians is even greater. An in-depth interview with 53 family physicians revealed that 47% of the doctors recalled a case in which the patient died due to physician error. Only four of the total reported errors led to malpractice suits, and none of these errors resulted in an action by a peer review organization.

6. Medical students at SUNY-Buffalo were asked to recall incidents during their clinical training that raised ethical concerns. More than 200 students responded (40% of total sample); the majority of instances they reported (60%) did not in the researchers’ opinions threaten the patient’s life, health or welfare. This, however, implies that potentially 40% did.

7. It is not unreasonable to estimate that at least 1 percent of doctors in this country deserve some serious disciplinary action each year. This would amount to 7,703 physicians being disciplined each year, a number that, unfortunately far exceeds the actual number of physicians disciplined.

8. Sexual abuse of or sexual misconduct with a patient is also a serious issue. Six to ten percent of psychiatrists surveyed confessed to having engaged in sexual contact with a patient and in a longitudinal study.

9. Two studies surveyed residents to determine the incidence of substance use. Recent alcohol use was extremely high in both groups (87% within the last year for emergency medicine residents; 74% within the past 30 days for surgery residents).Additional findings proved extremely disturbing; although the emergency medicine program directors accurately determined the incidence of alcohol use amongst residents, they dramatically underestimated the percent who were actually impaired by the substance as indicated by diagnostic tests (1% estimate impaired vs. 13% diagnosed.)

10. This does not bode well for creating a medical system that prevents mishaps before they occur. And although the surgery residents reported negligible recent cocaine use, when employed, the drug was typically obtained from the hospital supply, indicating a greater ease of access than for the general population.

11. residents excessive work hours Their longest period without sleep during their first year of residency was an average of 37.6 hours (standard deviation (SD) 9.9).
· During a typical work week, they worked an average of 56.9 total hours (SD 30.19) in on-call shifts (as distinguished from the total average number of hours they worked per week). An on-call shift is a continuous shift at the hospital allowing for little to no sleep; two on-call shifts are typically scheduled per week.
· 25% reported being on-call in the hospital a total of over 80 hours per week. Surgeons reported the highest average hours of on-call time per week (72.5).
· On a scale of 0 (never) to 4 (almost daily), residents most frequently gave a response of 3 for the amount of sleep deprivation experienced during the first year. Over 10% of residents indicated sleep deprivation was an “almost daily” occurrence.

12. Just 5.1 percent of doctors account for 54.2 percent of the malpractice payouts, according to data from the National Practitioner Data Bank. Of the 35,000 doctors who have had two or more malpractice payouts since 1990, only 7.6 percent of them have been disciplined. And only 13 percent of doctors with five medical malpractice payouts have been disciplined.

13. Between 44,000 and 98,000 people die in hospitals annually each year due to preventable medical errors, the Institute of Medicine found. A survey of doctors and other adults released in December in the New England Journal of Medicine found that more than a third of the doctors said they or their family members had experienced medical errors, most leading to serious health consequences. The cost to society in terms of disability and health care costs, lost income, lost household production and the personal costs of care are estimated to be between $17 billion and $29 billion. In contrast, the medical liability system costs $6.7 billion annually, about what is spent on dog food each year.

14. There is no growth in the number of new medical malpractice claims. According to the National Association of Insurance Commissioners, the number of new medical malpractice claims declined by about four percent between 1995 and 2000. There were 90,212 claims filed in 1995; 84,741 in 1996; 85,613 in 1997; 86,211 in 1998; 89,311 in 1999; and 86,480 in 2000.
While medical costs have increased by 113 percent since 1987, the amount spent on medical malpractice insurance has increased by just 52 percent over that time.
Insurance companies are raising rates because of poor returns on their investments, not because of increased litigation or jury awards, according to J. Robert Hunter, director of insurance for the Consumer Federation of America. Recent premiums were artificially low.
Malpractice insurance costs amount to only 3.2 percent of the average physician’s revenues.
Few medical errors ever result in legal claims. Only one malpractice claim is made for every 7.6 hospital injuries, according to a Harvard study. Further, plaintiffs drop 10 times more claims than they pursue, according to Physician Insurer Association of America data.