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OPINION: Stop letting our hospitals die!

couloir d'hopital2As in recent news, we are continuously seeing our downstate hospitals struggling with the threat of disclosure, the necessary changes to our damaged medical liability system become more evident than ever.  This week, the Brooklyn Daily Eagle shared a piece written by LRANY Executive Director, Thomas B. Stebbins, regarding this growing problem.

An Excerpt:

“The looming threat of yet another Brooklyn hospital closing (Another Dying Brooklyn Hospital, July 23, 2013) is a sad reminder of just how broken New York’s medical liability system really is. The citizens of our state are continuing be held victim this downward spiral substantially limiting access to healthcare.    

Last year alone New Yorkers paid $127 million to subsidize medical-malpractice insurance.  Even with this subsidy, doctors across the state still pay astronomical amounts for insurance, some as high as $200,000 annually, far more than their counterparts in other states”. 

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What Trial Lawyers and Ticks Have in Common: They Spread Lyme Disease

By: Michael Seinberg

In 1975, Dr. Allen Steere was sent to Connecticut to investigate a strange cluster of children who had developed arthritis. After diligent research, Dr. Steere and his colleagues discovered the disease we now know as Lyme disease also finding that ticks were the cause. By the early 1990s, two major pharmaceutical companies were on track to produce a vaccine for the growing threat, and by the mid-1990s clinical trials were underway. Results showed a whopping 80 percent of test subjects became immune to Lyme disease. So what went wrong? Trial lawyers, the media and public hysteria.

The fully tested vaccine was introduced in 1998, and sold very well until people began to claim they got arthritis from it. Despite NO actual clinical data to support those claims, the public began to believe the claims, and as is too often the case, lawyers got involved and started to put a class action lawsuit together. Anti-vaccine groups were formed, and the scientists involved began to receive threats. Dr. Steere had to hire a security detail things got so out of hand.

To make it clear, the Centers For Disease Control and The Food and Drug Administration looked into the anti-vaccine claims but found nothing and recommended those in tick infested areas get the vaccine. But the damage was done, and SmithKline Beecham pulled the vaccine. Pasteur Mérieux Connaught was working on its own vaccine, but never released it as a result.

So here we are in 2013 only able to offer a Lyme vaccine to animals.  With cases growing every year from 10,000 confirmed in 1995 to at least 30,000 in 2009, there is a renewed push for a human form of the vaccine. “In my opinion, this is a public health fiasco,” said Stanley A. Plotkin, a pediatrician and infectious disease specialist at the University of Pennsylvania, Philadelphia. “There are well over 20,000 annual cases of Lyme disease and probably more than that. When else do you have a disease with that incidence where you know you can prevent it with a vaccine, but you don’t make it?”

With that sort of growth (Lyme is now the most common tick-borne disease in the U.S.) and the severity of the disease, it would seem that making a vaccine for people would be a forgone conclusion, but that’s not the case. When deciding when to develop a drug, pharmaceutical companies must weigh profit versus legal risk factors. In Massachusetts, where the disease is very widespread there has been a call for the state to step in since private industry appears unwilling or unable to do so.

At a hearing last summer, of the Massachusetts Lyme Disease Commission, veterinarian Sam Telford suggested the state license GlaxoSmithKline’s FDA-approved vaccine. He suggested that it could be produced at a state lab, but Glaxo has not said if they’d jump on board, no doubt waiting to hear from their lawyers. “We all know that the market has changed,” Dr. Telford said then. “People are fed up! This is a terrible situation we’re in, which means that a vaccine still makes sense.”

“I’m personally aware of individuals, who in desperation have gone to veterinarians and remarkably convinced the veterinarian to inject them with the canine vaccine,” said Dr. Gregory Poland a vaccinologist at the Mayo Clinic

While keeping the Lyme vaccine away from humans may prevent lawsuits against pharmaceutical companies, it hasn’t stopped the lawsuits altogether.  Just this past March, a Connecticut woman won a $41 million lawsuit against her school for contracting Lyme disease while on a school trip to China.  Had the vaccine been available, this woman would likely still have her speech and the lawsuit would have been prevented.

So while lawyers argue over liability and manufacturers worry about class action lawsuits, people – many of them children – are left to suffer if bitten by an infected tick.  It’s hard to tell what’s more harmful, ticks or trial lawyers. They’re both making people sick and keeping them that way.

The Daily Star – Fox Judgment Is Bad for New Yorkers

This past weekend, The Daily Star ran an opinion piece written by LRANY Executive Director, Thomas Stebbins, which was in response to the recent news that an Otsego County jury awarded a woman $126 million in a lawsuit against the local Fox Hospital.  Stebbins highlights the impact that such a large judgment has on the hospital, the community and the state.

An excerpt:

“The recent news of a historic, nine-figure judgment against Fox Hospital (“Fox Hospital hit with $126M verdict,” Oct. 3) should serve as a reminder for why health care costs in New York remain among the highest in the nation.

An Otsego County jury awarded the plaintiff $126m to pay for a lifetime of care and lost wages. The jury found Fox Hospital liable for the woman’s heart condition and decided Fox should compensate her for her injuries. However, her medical care and lost wages are just a fraction of the total $126 million award. The remainder is for non-economic or “pain and suffering” damages.”

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The Vicious Cycle of Defensive Medicine

New York is one of the most litigious states in the most litigious nation in the world. Consequently, fear of lawsuits is a driving factor for most everything people do.  A recent nationwide poll found that 51% of the nation believes that people have become so fearful of frivolous lawsuits that they are discouraged from engaging in normal activities.  Worse yet, a survey released this July by CNBC ranked New York dead last for business friendliness due in large part to litigation fears.  Those in the medical profession are driven to order unnecessary tests and procedures to protect against lawsuits, referred to as “defensive medicine.”

In 2011, New York paid out a staggering $677,866,050 for medical malpractice litigation, the highest in the nation and over double the amount the next highest state, Pennsylvania.  This number speaks not to the quality of doctors in our state, but to our imbalanced and misguided civil justice system. In fact, a series of studies of closed claims by the Harvard School of Public Health found that more than half of medical malpractice claims were either “frivolous” or of “uncertain merit. ” Equally troubling, almost a quarter of frivolous suits received compensation, while those of uncertain merit received compensation more than half the time. It’s no wonder our courts are inundated with lawsuits.

A recent opinion piece in the New York Times highlighted the link between the use of defensive medicine to prevent malpractice, and more incidents occurring due to the increased treatment.  Since 1999 it is estimated that despite advances in medicine, the deaths related to medical malpractice have almost doubled.  Medicine and technology have made great strides over the past years, yet the fear of lawsuits has sabotaged any gains in safety.

“In a recent anonymous survey, orthopedic surgeons said 24 percent of the tests they ordered were medically unnecessary. This kind of treatment is a form of defensive medicine, meant less to protect the patient than to protect the doctor or hospital against potential lawsuits.” The New York Times reports.

What the doctors do not intend is the increased possibility for something to go wrong with each additional test or prescription.

“Defensive medicine is rooted in the goal of avoiding mistakes. But each additional procedure or test, no matter how cautiously performed, injects a fresh possibility of error.” 

There are countless mechanisms in place to try and counter the use of unnecessary tests such as hospital checklists, rules, and weekly meetings. These are critical steps – but the only way to truly reduce defensive medicine to a minimum is to decrease the risk of litigation.

Numerous promising common-sense solutions are available to reach this goal. For example, strengthening evidentiary standards would ensure that claims are supported by scientifically sound theories – current rules of evidence merely require that a theory be “generally accepted.” Implementing a time frame for the disclosure of expert witnesses, as is the norm in Federal courts and many other states, would eliminate last minute “trial by ambush.” Lastly, requiring medical malpractice lawsuits to be accompanied by a certificate of merit signed by a physician would create a strong mechanism for blocking meritless suits.

There is no way to fully eliminate mistakes in the medical field because, as Alexander Pope so famously noted, “to err is human.” But we must repair our broken liability system to ensure that litigation does not perpetuate the ill effects it was intended to prevent. Doctors and medical professionals make tremendous sacrifices every day to save lives and make people healthy – they should be allowed to focus on providing care, not fighting off lawsuits.

New Hampshire Adopts “Early Offer” Reform

By: Scott Hobson

New Hampshire recently enacted legislation which gives plaintiffs in medical malpractice cases the choice to opt out of filing a lawsuit in favor of accepting an early settlement. If the plaintiff does not feel the settlement is fair, they may reject it and still file a lawsuit.

Both houses of the legislature passed the legislation, but it was vetoed by Governor Lynch. On June 27th, the legislature overrode the veto, enacting the legislation into law. New Hampshire is the first state in the Nation with such a law.

This “exit ramp” approach to litigation serves a dual purpose – dramatically shortening compensation times while reducing medical malpractice litigation costs. Dr. Cynthia Cooper, President of the New Hampshire Medical Society noted that, “Under our current legal system, the aggregate administration and litigation costs for medical injury claims can be higher than the amount some plaintiffs receive for their injuries.”

Much of the savings are realized by eliminating the lawyers’ fees – which typically consume at least 33% of the final award. The trial lawyers must now come to terms with an uncomfortable truth – given the option, many plaintiffs would prefer to skip the courtroom altogether.

Read the full article here 

New York Hospitals Go “Naked”; Cannot Bear the Cost of Malpractice Insurance

The New York Times recently reported a growing trend among New York Hospitals going “naked” or “bare,” which is the industry term for operating without malpractice insurance.  Many hospitals in our state, particularly downstate, have followed this trend due to the soaring cost of the insurance, or – in the worst cases – a complete absence of carriers willing to provide coverage at any rate.  There are also many hospitals which are “partially self-insured,” but not fully covered for malpractice cases.  These institutions are forced to make the choice of keeping the lights on and medical staff paid or paying the unsustainable insurance costs.

New York courts, and Bronx courts in particular, are infamously known for plaintiff-friendly practices and egregious awards.  A recent example of this is the case in which a Bronx jury awarded a New York woman $120 million from three different NYC Hospitals – $105 million of which was for non-economic damages, often referred to as “pain and suffering.”

The article refers to insurance executives who note that in general these “naked” hospitals are in areas where juries award big judgments.  Edward J. Amsler, vice president of Medical Liability Mutual Insurance Company was quoted, “this is a very litigious state, high severity and high frequency.”

For years, the medical profession has warned of the growing impact of lawsuits on health care delivery. In 2002, the American Medical Association categorized New York as a “crisis state”, a distinction we have held for a decade. Now ten years later, as doctors continue to flee the state and health care costs surge, little has changed. The pressures of litigation have tipped the scales, and now threaten to close hospitals and cut vital services.

But the crisis is fixable. Comprehensive tort reform in Texas in 2003 increased the number of practicing doctors by almost 20%, and cut costs to health care providers dramatically. Where did the savings go? When surveyed, 58% of hospitals reported using the savings to expand patient safety programs, while 51% used the funds to expand or maintain vital services for uninsured and underinsured patients. On the national level, the Congressional Budget Office determined tort reform could save $54 billion over ten years.

There are many reforms on the state level that if enacted would alleviate some of the financial burden on New York’s hospitals, including caps on non-economic damages, fair expert witness standards, and requirements for certificates of merit.  New York needs to take these steps to heal our civil justice system before more hospitals close their doors.

NYP: Patients, Docs in — and Lawyers Lose

A recent opinion piece in the New York Post, written by Walter Olson of Overlawyered.com, points to why doctors and should be interested in New Hampshire’s “early offers” experiment in malpractice reform. Highlighting the clear win for doctors and patients while giving the boot to trial lawyers.

“Look northeast, docs: Late last month, over a veto from Democratic Gov. John Lynch, New Hampshire lawmakers enacted an “early offer” system for medical-malpractice claims that could become a national model — much to the chagrin of trial lawyers everywhere.

Based loosely on the idea of freedom of contract, and adding a dollop of the “loser-pays” legal fee principle long practiced in other nations, the reform promises to put a big dent in the costs of the Granite State’s malpractice system — while leaving genuine victims more satisfied.

Nothing like it has been tried anywhere — but if it works, imitators are sure to follow”.

Read full Article from the New York Post

$120 Million Dollars Awarded in Malpractice Suit

By: Michael Seinberg

A Bronx jury recently awarded about $120 million to a 45-year-old woman who suffered brain damage after being treated by three different NYC-area hospitals. The award, one of the largest ever issued for medical malpractice in the state, will likely be appealed by the city. Civil juries in the Bronx are notoriously plaintiff-friendly; As one personal injury lawyer told the Associated press, “If I’m a plaintiff, I rather be there than anyplace in the world.”

The case concerns Jacqueline Martin who received treatment during a one-month period in February 2004. She originally sought treatment for a seizure and was later diagnosed with a rare skin disorder that ultimately left her brain damaged. Prior to this she was a single mother of two earning about $40,000 per year as an insurance claims adjuster.

The jury awarded her $10 million in lost earnings, $5 million for past medical expenses (the full costs have been covered by Medicaid since the incident, to the tune of $583,000). The rest of the $105 million is for “pain and suffering,” highlighting the need for a rational limit on such awards in New York. The greatest problem with these awards is that a dollar value cannot precisely be determined – by definition, no amount of money will mitigate the suffering or undo the loss. With 90% of the award to be paid by city owned hospitals, taxpayers will be responsible for the majority of the verdict, while the already desperate healthcare system in the Bronx will take a huge hit.

The events that took place leading to Ms. Martin’s unfortunate condition were extremely tragic. Nobody would disagree that she is due compensation for her injuries and future suffering that she will endure. However, such and outsized awards do little, if anything to improve standards of medical care and prevent future errors. Instead, they drive up healthcare costs to consumers, which disproportionally impacts the poor and underserved who are least able to afford premium increases. Until New York institutes a cap on pain and suffering awards, malpractice premiums will keep rising, doctors will flee the state, public health will suffer, and taxpayers will continue to foot the bill.

The Counsel for the City’s Health and Hospitals Corporation noted that “the amount of this judgment is not consistent with the facts and the law.”  One thing is for sure, out-of-control judgments like this one increase medical costs for all of us.

New York Post Letter: Heal The Bronx

Be sure to read LRANY’s Executive Director’s letter, Heal the Bronx, featured in the New York Post this past weekend.  This letter is in response to the recent conviction of ex-senator Pedro Espada, who was convicted of stealing hundreds of thousands of dollars from a federally funded healthcare center in the Bronx.   LRANY sees this scandal as a result of the underlying problem of our medical liability system and our state’s desperate need for reform.

Read the letter here

Nyack-Piermont Patch Opinion: Carlucci Should Treat Disease, Not Symptom

Today the Nyack-Piermont Patch highlighted LRANY Executive Director’s letter to the editor in response to the recent announcement of a program designed to bring doctors back to New York.

An Excerpt:

“We applaud Senator Carlucci’s call for greater efficiency in multimillion dollar Doctors Across New York program, a program designed to lure doctors back to New York (“Carlucci Calls for Reform of Medical Program,” May 17). However, the Senator’s reform fails to tackle the major underlying issue, namely, why are doctors leaving New York and why are millions of dollars earmarked to lure them here left unspent?

The answer is largely the medical liability climate in New York.”

Read the full letter.