Medical Malpractice Increases While Payments Decrease

Insurance companies and their lobbyists have made much over the supposed "malpractice crisis." They have used this mantra, along with unfounded threats of rising costs and doctor desertion, to enact legislative restrictions on the rights of injured citizens to recover. I recently wrote about Utah's newest tort reform proposals in the Salt Lake Tribune, but to no avail. Although the bill was modified, it still imposes economic restrictions on the rights of recovery, and makes the process longer and more expensive for malpractice victims.

Of course, tort reform is nothing new in Utah. Utah has had some of the most aggressive tort reform laws in the nation for over thirty years. Ironically, while the legislature is busy passing even more pro-insurance, anti-victim laws, reports are coming out that medical errors are increasing. Today, the Deseret News reported that MEDICAL ERRORS ARE INCREASING IN UTAH. This should come as no surprise. Thanks to the legislature's special favors to the health care industry, there is no longer much accountability for medical errors.

So we're all at greater risk when we go into a hospital. At least this will lower doctors' malpractice rates, which will in turn save money in health care costs, right?

Wrong.

As reported in Healthcare Finance News on March 10, 2010, medical malpractice payments are steadily on the decline. Indeed, this simply continues a a five year trend.

The facts show that malpractice payments have been dropping for years. Why haven't malpractice premiums gone down, and taken health care costs with them?

Maybe the Utah State Legislature should ask the insurance lobby these questions before passing more laws reducing accountability for medical errors....

Study Shows that Some Heart Doctors Put Profits Before Patients

Today a report was released that showed that many heart doctors, or cardiologists, are not following the treatment guidelines recommended for treatment of coronary artery disease (CAD). The guidelines, published by the American College of Cardiology and the American Heart Association, recommend that in some cases, coronary artery bypass surgery should be done instead of angioplasty.



Bypass surgery, however, is a time intensive and complicated process. Some procedures can take all day. Angioplasty, on the other hand, is a relatively minor procedure, so cardiologists can perform--and bill for--multiple procedures in a single day.

It is much more lucrative for a cardiologist to do six or seven angioplasties in one day than it is to do a surgical bypass. This decision is made purely out of profit, and is contrary to professional medical standards.

To be fair, the demand for profits may not come from the doctors themselves. Rather, it may be that the corporations that run the hospitals where the procedures are performed are placing higher volume demands upon the physicians, in exchange for granting doctors hospital privileges.

Either way, however, cardiologists may be rendering substandard care to patients in order to make money, rather than to make quality health care decisions.

Injured by Medical Malpractice: Now What?

In most cases, a visit to the hospital or doctor's office is a routine event. Usually, everything goes the way it is supposed to.

Sometimes, however, things don't go right. Doctors and nurses are good people, but even good people make mistakes. When professionals make mistakes, the consequences can be disastrous. Not only will you have to endure additional pain and suffering, but you'll be facing expensive medical bills, costs of future treatments, and possibly the loss of your ability to work. It is not your fault that a health care professional committed malpractice. But you will need help to hold them accountable.

If you or someone you know has been injured by medical malpractice, here are somethings you can expect:

• You won't get answers. Medicine is not an exact science, and sometimes, complications can cause bad outcomes. If this happens, then your doctor will sit down with you and explain the complication, as well as how and why it happened. If a bad outcome is caused by negligence or other medical mistake, however, you won't get answers. Your doctor will suddenly be evasive about your questions, or may even transfer your care to another physician. If the doctors and other professionals aren't giving you answers, give us a call. Our experienced medical malpractice attorneys work with a team of nationally recognized medical experts, and together, we can get the answers for you.
  
  
• Risk Managers and Insurance Adjusters Will Try to Convince You to Settle On Your Own. If you're lucky enough to get a meeting with a Risk Manager or other hospital administrator, the first thing they will tell you is that you don't need a lawyer. Your first question should be, "Does the negligent doctor or hospital have a lawyer?" If they answer honestly, they will tell you that they have a team of high-paid lawyers working on their side. "But," they'll say, "if you hire a lawyer, they'll get all the money, and you won't get anything."
  
  This is absolutely not true. By hiring a lawyer, you will recover far more than the hospital will be willing to pay if you settle on your own, even after fees and expenses. Hiring a lawyer will get the negligent doctor or hospital to pay full value on your claim; otherwise, they will offer you pennies on the dollar. At G. Eric Nielson & Associates, we pride ourselves on maximizing recoveries for our clients, and working conservatively to ensure that the injured patient receives as much of the award as possible.
  
  
• Hospital Administrators Will Delay Your Case. We have seen a troubling practice a lot lately. A patient will be injured, and for two years, the negligent hospital or doctor will pay for minor medical expenses--maybe a few hundred to a few thousand dollars. The injured malpractice victim will assume that these payments will continue, but as soon as the statute of limitations runs (usually two years, but in some cases, as little as one year), the payments stop. At that point, the patient cannot bring a legal action. The negligent doctors or hospital administrators will lead you to believe that they're taking accountability for their mistakes, but as soon as they can cut you off without being sued, they will do it. You will be left with a lifetime of medical bills.
  
  
• You Won't Be Given Your Medical Records. The government has passed laws that provide patients with access to their medical records--it is a legal right. When you've been injured as a result of medical malpractice, however, negligent hospitals and doctors will try to stop you from finding out what happened. Your records may get "lost," or you may be asked to fill out complex forms and wait weeks--even months--to get your medical records. Once you receive those records, they may be incomplete, or inaccurate. The medical malpractice lawyers at G. Eric Nielson & Associates use all of our resources to ensure that we get a full, complete set of your medical records, and can give you the answers you deserve.

Medical malpractice cases are complex, and you need an experienced team of legal professionals on your side.

The Utah malpractice attorneys at G. Eric Nielson & Associates have the experience to give your attention the case it deserves, and the expertise to give you the answers you've been looking for.

When you call our offices, you'll speak to an attorney who can discuss your case with you. We will set up a free, no-obligation consultation where you can meet face to face with a lawyer to discuss what happened. If you have been injured by medical malpractice, we can tell you your options and discuss your legal rights.

Call today: (801) 424-9088.

Utah's Legislature and Special Favors for Insurance Companies

Article VI, Section 26 of the Utah State Constitution states, "No private or special law shall be enacted where a general law can be applicable."

Utah's constitutional framers included this provision in order to prevent the legislature from granting special privileges to individuals or corporations. The convention notes indicate that the framers were concerned with legislators who pass laws granting special privileges, for some at the expense of the rights of others. As Utah Constitutional scholar Jean Bickmore White has noted, this provision "express[es] the feeling that laws should not promote special treatment and should be administered even-handedly," and was specifically included as "a reaction to the corruption of some mid-nineteenth-century Legislatures." (The Utah State Constitution: A Reference Guide, at pp. 83-84.)

Notwithstanding this provision, the Utah State Legislature continues to enact special laws that permit negligent health care providers and their insurance companies to escape liability for their mistakes.

Last year, for instance, Utah enacted a law that raises the burden of proof for people injured by negligent emergency room doctors. This means that if you sue someone for causing a car accident, breaching a contract, or other civil wrong, you have a burden of proving your case by the "preponderance of the evidence;" in other words, you simply have to show that it is more likely than not that the other party is liable.

According to Utah politicians, however, Emergency Room doctors are "more special" than everyone else. The new law passed last year says that if an emergency room doctor is negligent, and causes you harm, you have to prove your case by "clear and convincing" evidence. This is a much higher burden, one that is almost impossible to meet in most civil cases. Indeed, this is the same standard murderers must meet to overturn their convictions. This special law was enacted by the Utah State Legislature to benefit insurance companies, and it has produced its desired effect. Since its passage in 2009, there has not been a single case filed against an Emergency Room doctor in the State of Utah.

What this means for you is that if you have an emergency and go to the hospital, the doctors can render substandard care, and there is virtually nothing you can do about it.

Interestingly, when the medical lobby was urging Utah's legislators to pass this bill, the hospitals promised that they would permit state officials to conduct a performance audit to ensure that Utah citizens were still receiving adequate care.

Not surprisingly, however, the medical and insurance companies have gone back on their word. They have refused to permit the state to investigate the quality of emergency care in Utah.

Thankfully, one legislator is trying to hold these companies to their promise. Representative Lorie D. Fowlke (R. Orem) is fighting for the citizens of Utah, and is demanding that the state be permitted to conduct its audit of Emergency Care in Utah.

Last year, the legislature did corporations and insurance companies a big favor. Make sure those companies keep up their end of the bargain, and allow the state to ensure that quality health care is still available.

Contact Lorie Fowlke and tell her that you support her fight to restore accountability in Utah:

Lorie Fowlke

lfowlke@utah.gov

596 West 1200 north

Orem, UT 84057

(801) 255-0721

Also, contact these officials and let them know that you will not tolerate the insurance companies' efforts to keep secrets from you and other Utah citizens:

John Schaff

Legislative Auditor General

jschaff@utah.gov

W315 State Capitol Complex

P.O. Box 140151

Salt Lake City, UT 84114

(801) 538-1033

Curtis S. Bramble

cbramble@utahsenate.org

3663 North 870 East

Provo, UT 84604

(801) 373-1040

John L. Valentine

jvalentine@utahsenate.org

857 East 970 North

Orem, UT 84097

(801) 373-6345

Health Care and the Malpractice Crisis Myth

There has been a lot of focus on health care lately. Any time the government addresses the skyrocketing costs of health care, many politicians and pundits use it as a platform to perpetuate the myth of a "medical malpractice crisis," and call for reform of the civil justice system.

Interestingly, data commissioned by proponents of so-called "tort reform" reveals that radical restrictions on injured patients' rights would result in--at most--a 0.5% savings on national spending. Five tenths of a percent. Clearly, the effect of malpractice lawsuits has been grossly overstated.

Another myth perpetuated by those seeking to limit the rights of injured patients is that physicians are abandoning the practice of medicine. Once again, the data tell a completely different story. The American Medical Association just released physician data for 2008, and it shows that overall, the number of physicians in the United States increased to 954,224. This means that there is an all-time high of 309 doctors for every 100,000 people. Indeed, this data reveals that there are now twice as many physicians practicing than there were in the 1960's, when the American Medical Association began tracking numbers.

Perhaps even more startling is the fact that there are more doctors per capita practicing in states that have not limited the amount of money malpractice can receive as compensation for their injuries. In states without damage caps, there are 346 doctors for every 100,000 members of the population. Conversely, in states that have limited the amount of economic recovery, there are only 285 doctors practicing per 100,000.

These facts show that there is no significant correlation between medical malpractice lawsuits and national healthcare costs or the number of practicing physicians. Powerful insurance companies and medical industry insiders, however, have misled the public in order to maximize their profits at the expense of injured people.

On the other hand, curtailing the rights of injured persons to recover would have catastrophic financial consequences.

As medical malpractice attorneys, the lawyers at G. Eric Nielson & Associates specialize in helping people harmed by medical negligence recover fair value for their injuries. Our clients are school teachers, receptionists, firemen, carpenters, and other regular people who went to the hospital expecting to receive professional care, but who were injured due to negligence. They are not looking for a windfall, but they each deserve fair compensation for their injuries. Most of them never thought about suing a doctor or hospital until faced with the prospect of living their lives in pain, being unable to work, or worse, losing a loved one to wrongful death. These are the people who are hurt most by the insurance companies who are spending millions of dollars lobbying politicians to close the courthouse doors.

Strict Application of Statute of Limitations Bars Patient Claims

Today the Utah Court of Appeals issued its decision in Harper v. Evans, 2008 UT App 66, --- P.3d ---. The court upheld a trial court's ruling that the patient had delayed in bringing her claim to court, and the statutory time limit for doing so had expired.

Statutes of limitation--laws that place limits on how long an injured person has to sue--are just one of the many legal pitfalls facing malpractice victims. There are some narrow exceptions and statutory tolling provisions, but as Harper illustrates, courts are generally strict in enforcing the time limits.

If you believe you have been injured by medical error, do not delay in seeking legal advice. Even if your claims have merit, you can be precluded from any recovery if you wait to long. You should seek legal assistance immediately.

Utah Supreme Court Protects Patient Confidentiality

Today the Utah Supreme Court issued its decision in Sorenson v. Barbuto, 2008 UT 8, --- P.3d ---, which upheld important patient confidentiality rights.

In Sorenson, Nicholas Sorenson was injured in a car accident. He sought treatment from Utah physician Dr. Barbuto. When Mr. Sorenson brought a personal injury claim, his treating physician, Dr. Barbuto, went to work for the defense lawyers. Dr. Barbuto told the lawyers confidential information about his patient; information that was different from what he'd put in the medical records. The defense lawyers even tried to use Dr. Barbuto--the patient's own physician--as an expert witness in the case.

The district court disallowed it, however, and Mr. Sorenson prevailed on the merits of his personal injury claim. He then brought a separate action against Dr. Barbuto for violating his duty to protect the confidentiality of the physician/patient relationship. At first, the district court dismissed Mr. Sorenson's claim against Dr. Barbuto. But the Utah State Court of Appeals reversed that decision, and held that doctors cannot engage in ex parte, or "one-way," communications with anyone--including defense lawyers--about their patients, without violating their duties to the patient.

Dr. Barbuto took the Court of Appeals' decision to the Utah Supreme Court, which affirmed the lower court's ruling, and went one step further. The Utah Supreme Court also declared that it is unethical for defense lawyers to initiate or engage in ex parte communications with a patient's treating physicians, even when the patient is involved in a lawsuit.

This is an especially important decision in Utah, and for medical malpractice cases. The Utah Medical Insurance Association (UMIA) insures the vast majority of doctors in the state. If you have a medical malpractice claim against one doctor, and are seeing another one for treatment of your injuries, chances are, UMIA insures both of them. The defense lawyers that work for the insurance company can no longer call treating physicians and ask them for help in defending another physician's negligence.

This is a good decision, because it ensures that when you are seeing a doctor for treatment--even for injuries caused by another negligent health care professional--your communications will not be used against you. Further, it guarantees that any information treating physicians have will be disclosed under court supervision, pursuant to an oath of honesty.