Frivolous Defense

April 14, 2010

Tort Reform/Frivolous Defense

With the near omnipresent discussion about Tort Reform, one can’t help but begin to think that there are too many “frivolous lawsuits” being filed, and even won. Just about the only law suits the news reports on are the ones where someone got a ridiculous verdict for a tiny accident. Are these true? Maybe some of them. But, by and large, they are exaggerated or have missing facts that the news didn’t bother to include. Most people do not realize that there are methods in place to keep truly frivolous suits from being filed – and certainly from going to a jury and being won. But that’s another blog for another time.

What is not discussed very often is frivolous defenses. For example, when a doctor does an operation on the wrong leg and gets sued, then files a defense saying that somehow his treatment was not outside the standard of care. As if it could ever be reasonable to do surgery on the left leg when the order clearly states the right leg is the injured one. But this happens much more often than one might realize. And when it does, it costs everyone a lot of money. Because the doctor has filed a defense, the lawyers and parties for both sides must go through hours and hours of discovery, hire experts (often costing the injured plaintiff thousands of dollars) and prepare to go to trial only to have the doctor settle at the last minute when he should have offered the settlement before the Plaintiff even had to hire a lawyer.

But the media does not like to talk about this aspect of lawsuits. After all, Plaintiffs are the ones starting the suit. And no one likes overly litigious people. But our legal system is set up so that people can have some recourse when they are wronged. Money is the only thing an injured person can get to “make up for” the damage. Unfortunately, even the highest court in the world could not give someone a new leg. And it is regrettable when a plaintiff must spend years in litigation and thousands of dollars because of a frivolous defense.

Charity McKenzie

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More Hoax Busters!

March 16, 2010

Defensive Medicine Doesn’t Lead To Unnecessary Medical Treatment

For every injury or illness, there are a range of possible treatments. The (very crude) drawing below represents that range. At the left end of the scale is to “do nothing” and see if the injury gets better on its own. At the far right end of the scale is immediate surgery to try and correct the problem. The bracket in the middle represents treatment within the permissible standard of care for a hypothetical injury. For this hypothetical injury, it would be inappropriate to do nothing, and it would also be inappropriate to take the patient to surgery immediately. Medically appropriate treatments might include administering drugs, ordering an inexpensive diagnostic test, and ordering an expensive diagnostic test. Doctor Smith may be conservative with his treatment and decide to order an inexpensive diagnostic test, while Doctor Jones may be aggressive and order the administration of drugs and the expensive diagnostic test. While both doctors treated the same injury in different ways, neither doctor committed malpractice. More importantly, if Doctor Smith is afraid of being sued and orders the expensive test, we cannot say that his fear of being sued led him to order a medically unnecessary test. The worst we can say is that the tort system nudged the doctor towards being more cautious.

Treatment

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Myth Busters!

March 16, 2010

The Great Hoax: Tort Reform, Better Healthcare

Myth No. 1: Rising healthcare costs can be tied to malpractice claims

According to the most reliable of sources, the projected costs of healthcare spending in 2009 were approximately $2.5 trillion – with a T. Of that, even including the costs of insurance premiums – figures that other studies have conclusively shown to be inflated without being tied to actual claims experience – the amount assignable to malpractice litigation is a mere 2 percent of the total.

The claim of inflated expenses due to so called defensive medicine, tests designed to get at the root of a problem and ensure for the patient as accurate a diagnosis as possible, are immeasurable and cannot be properly brought into the discussion without resorting to wholesale speculation.

Myth No. 2: Madison County-Judicial Hellhole

Reality sometimes intrudes on fantasy, and this is one sure case. Contrary to the popularly held belief, the Courts of Madison County have been among the most hostile to malpractice Plaintiffs in the State of Illinois. Case filings are down dramatically, even while announcements of new arrivals of physicians, the opening of hospital wings and the expansion of oft times competing specialty services fill the newspapers.

Truth be told, with the current litigation climate and juror attitude, no place is more hospitable to the negligent hospital or the clumsy surgeon than the Courts found in Edwardsville.

Myth No. 3: Malpractice premiums can be related to claims filed

Doctors in the Metro East have been consistently abused by their own captive insurance carrier, the Illinois State Medical Insurance Exchange – (ISMIE). Rates were set without regulation, and were naturally raised without remorse. Rather than focus on the real culprit, the strawman of the “frivolous lawsuit” – truly a myth given the oppressive costs involved for any such case – was created to deflect attention.

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Dear Doctor: Just Wash Your Hands!

March 5, 2010

How American Health Care Killed My Father

About a week after my father’s death, The New Yorker ran an article by Atul Gawande profiling the efforts of Dr. Peter Pronovost to reduce the incidence of fatal hospital-borne infections. Pronovost’s solution? A simple checklist of ICU protocols governing physician hand-washing and other basic sterilization procedures. Hospitals implementing Pronovost’s checklist had enjoyed almost instantaneous success, reducing hospital-infection rates by two-thirds within the first three months of its adoption. But many physicians rejected the checklist as an unnecessary and belittling bureaucratic intrusion, and many hospital executives were reluctant to push it on them. The story chronicled Pronovost’s travels around the country as he struggled to persuade hospitals to embrace his reform.

It was a heroic story, but to me, it was also deeply unsettling. How was it possible that Pronovost needed to beg hospitals to adopt an essentially cost-free idea that saved so many lives? Here’s an industry that loudly protests the high cost of liability insurance and the injustice of our tort system and yet needs extensive lobbying to embrace a simple technique to save up to 100,000 people.

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Know Your U.S. Chamber

March 4, 2010

Is Taxpayer Money Being Funneled Through The Chamber Of Commerce To Kill Health Reform?

To preserve brand identity and maintain secrecy, many businesses use groups like the Chamber to launder money for political means. For instance, health insurance companies lied and told the public all last year that they were supportive of reform — while simultaneously funneling up to $20 million dollars for attack ads through the Chamber (the other $80 million spent on Chamber attack ads against health reform is still unaccounted for).

Although reform would benefit the business community at large by controlling insurance costs and improving worker health, the Chamber is taking a rigid, ideological approach. Indeed, the Chamber is known to have become increasingly partisan under the leadership of Tom Donohue; an analysis by the Wonk Room found that the Chamber’s board is dominated by Republican donors. The Chamber seeks to kill large progressive reforms in order to kill progressive policies in general. Chamber officials have even gone on record noting they hoped to block health reform as a tactical measure to kill clean energy reform, a priority of many Chamber member companies.

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Forget The Government… It's The Trial Lawyer To The Rescue

February 22, 2010

Toyota makes the case for U. S. lawsuit system

In a time of carping about our “litigious society,” it’s time to recognize once more that litigation over dangerous products and services can avert countless deaths and injuries.

The courts provide an early warning system, alerting regulators and news organizations to hazards that the public wouldn’t otherwise be aware of. The courts also command responses from manufacturers who might have been able to fend off regulators. More important, the civil justice system is often the catalyst that forces lasting solutions.

In six years of reviews, NHTSA never used its authority to subpoena records from Toyota. But while the company was still dancing around the regulators’ requests in December, lawyers for Alberto’s family grilled a key Toyota official for two days. Other court cases were producing details about the company’s manufacturing processes.

By this time, Toyota had issued limited recalls. The company would soon make public acknowledgments and expand recalls. But while Toyota was focusing on the floor mats and “sticky” accelerator pedals, plaintiffs’ advocates and their experts raised the wider and more dangerous possibility of problems in the electronic system controlling the throttle in many Toyota models.

We have seen this pattern before. We no longer have the deadly Chevrolet Corvair or the exploding Ford Pinto, and we have a safer auto industry overall, largely because discoveries made in the courts prompted overhauls in regulation and oversight.

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Tort Reform Is Anti-Victim/Consumer

February 22, 2010

Tort Reform Caps Result in Double Tragedy

The award sounds pretty significant at first glance; $1.3 million for the death of a daughter and mother. Would any of us give our lives or the lives of our parents for that amount of money? But, it gets worse. In Texas, where the verdict was rendered, there are limitations on the amount of money a jury or judge can award for mental anguish, pain & suffering in medical malpractice cases. The award will be limited to $250,000 per defendant. Tort reform strikes again, and this time it punishes two young children and their grandmother who must raise them.

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The Whole Truth About Medical Malpractice And Insurance

February 10, 2010

ITLA released a white paper entitled “The Whole Truth About Medical Malpractice and Insurance.” (Click on the link for a copy of the paper.) The paper examines and refutes the propaganda being spread by those seeking to destroy the tort system in Illinois.

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