Archive for September, 2010

The Staggering Costs of Medical Error

Tuesday, September 21st, 2010

Our Chicago medical malpractice attorneys are intimately and unfortunately familiar with the high costs – both financial and personal – of medical malpractice.  Now, a new study takes a look at another dimension of these costs:  societal.  While a medical error can take a life, or a dramatic toll on the victim and his family, the combined costs of these errors also take a dramatic toll on our entire society and economy.

The researchers at Milliman, Inc. found that in 2008, patients sustained approximately 6.3 million medical injuries in the United States.  Of these, 1.5 million were the result of preventable medical error, or as the study defined it, “injury which results from inappropriate medical care” – likely medical malpractice.  As an example, the authors described various allergic reactions to medication.  Any such reaction would be considered a medical injury.  If, however, the allergy was previously known by the hospital, but the drug was administered anyway, this would be a medical error.  The medical errors identified in the study cost a whopping $19.5 billion.

As the study itself noted, however, this figure was likely underestimated.  Certain types of associated costs were necessarily excluded – for example, uncoded medical errors.  Moreover, if a death from a medical error occurred outside the hospital where the error was made, it would not be recorded in the same records, and thus would also not be included.

Of the total costs, the vast majority – $17 billion, or about 87%, was due to the strictly medical costs of medical errors, including inpatient and outpatient treatment and prescription medicines.  Due to the nature of the study, however, these costs were cut off after one year.  The remainder was made up of the costs of deaths and missed work due to disability.

This estimate was made using medical claims data.  The researchers used the claims data from a large group of insured patients, then extrapolated to the general population.  In addition to the pure monetary costs, the study found that medical errors result in 2,500 unnecessary deaths.

Even more shockingly, medical errors resulted in more than 10 million missed days of work due to disability.  This was in spite of the fact that, like medical expenses, the study excluded any work missed due to disability after one year had passed.  Many disabilities from medical error result in longer disabilities – even lifelong.

And this does not include what is perhaps the largest societal cost of medical errors:  pain and suffering.  Because pain and suffering cannot be ascertained from hospital records, and is difficult to quantify, the study did not include these costs in its estimate.  But the Chicago medical malpractice attorneys of Passen Law Group know that, to many victims of medical error, these costs are the most significant.  The costs of pain and suffering can extend for the rest of the patient’s life, limiting her ability to work, the kinds of work she can do, her recreational activities, and her happiness.

Also not included in the $19.5 billion estimate were the costs and judgments associated with actual medical malpractice claims.  The authors’ rationale is understandable, at least as to judgments and payouts, because much of the money that makes up these payments is duplicative of the amounts the authors had already included . . .

The decision not to include the administrative costs associated with medical malpractice claims (such as legal expenses), however, significantly affected the results.  These expenses are a substantial additional cost of medical errors.  As these costs were not included, the $19.5 billion figure was dramatically underestimated.

For a free consultation with an experienced medical malpractice lawyer at Passen Law Group, call us at (312) 527-4500.

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Appellate Court Supports Plaintiff’s Right to Fair Damages Award

Saturday, September 18th, 2010

Taking an accident or  personal injury case to trial is a challenging proposition, and requires expertise and careful preparation.  But as the Chicago personal injury attorneys of Passen Law Group are aware, even the best-prepared attorney can face occasional injustice at trial.  A recent opinion from the Appellate Court of Illinois, Fifth District, confirms the responsibility of trial judges to correct the problem when a jury veers off course, and to protect the rights of injured plaintiffs.

In Anderson v. Zamir, the trial court was faced with a case stemming from a rear-end car accident.  The plaintiff, Tiffany Anderson, was a college student at Southern Illinois University at Carbondale when her car was struck by defendant Saadia Zamir.  The force of the impact caused Ms. Anderson’s head to strike the steering wheel, and caused her car to strike the vehicle in front of her.

Ms. Anderson was initially diagnosed with a soft-tissue spinal injury.  After about a year of treatment, including diagnostic testing, medication and physical therapy, her cervical condition was sufficiently improved to allow her to increase her activities, but led her to recognize significant pain in her left shoulder.  Only then was she diagnosed with a tear in the labrum of her left shoulder, which required surgery.  She had arthroscopic surgery to reattach the labrum to the bone, then underwent additional treatment and physical therapy to restore as much movement as possible.

At trial, the only issue presented to the jury was damages:  the defendant admitted liability for the accident.  The defendant argued, however, that she should not be responsible for damages resulting from the shoulder injury, but instead should pay only for the spinal damage.  The jury apparently accepted this argument, as Ms. Anderson presented medical bills totaling $28,804, but the jury only awarded her medical damages of $5,000 (plus $7,500 for pain and suffering).

This award was thus directly contrary to the evidence presented at trial.  Not only did Ms. Anderson present her medical bills, but she also introduced the testimony of her two treating physicians.  Both physicians testified that her shoulder injury was proximately caused by the automobile accident, and that the delay in discovering the torn labrum was normal due to the nature of the injury and its combination with the  spinal injury.  Finally, both physicians also testified that they reviewed her records and history and that there was no possible cause for the shoulder injury other than the car accident.  Although defendant cross examined the physicians, neither wavered in his opinion that the accident was the cause of Ms. Anderson’s shoulder injury, and there was no showing of bias in their testimony.

Defendant introduced no evidence, choosing instead to rest on her cross-examinations.  After the jury verdict — awarding plaintiff basically nothing for her injuries –  Ms. Anderson moved for a new trial.  That motion was denied, and Ms. Anderson appealed.  Our Chicago accident attorneys applaud both Ms. Anderson and her counsel for not taking the easy way out, and pressing forward with an appeal to ensure that Ms. Anderson was fully compensated.

On appeal, the appellate court noted that although a jury award is entitled to substantial deference, that deference does have its limits.  Under Illinois law “a jury’s damages award cannot be overturned unless it is shown that the jury clearly ignored an established element of damages, that the verdict was the result of passion or prejudice, or that the award bears no reasonable relationship to the loss that was suffered.”  In this case, that is precisely what happened – the $5,000 awarded bore no reasonable relationship to Ms. Anderson’s nearly $30,000 in medical expenses, and other non-economic damages, such as pain and suffering and loss of normal life.

As the defendant presented no evidence in support of its theory of causation, the only way the jury could have accepted the defendant’s theory is if it discredited the testimony of Ms. Anderson’s two treating physicians.  As the court noted, however, in Illinois a jury may only discredit a witness based upon “all of the other evidence or the inherent improbability or contradictions in the testimony.”  The jury thus may not disregard witness testimony unless it is inherently improbable, directly contradicted by other testimony, or the witness has been impeached.

In Ms. Anderson’s case, none of those things occurred.  The uncontradicted, unimpeached, rationally-based evidence all stated that Ms. Anderson’s shoulder injury was caused by the auto accident, for which defendants has admitted liability.  The jury was not permitted to disregard that evidence, and its verdict therefore bore no “reasonable relationship” to the injuries suffered.

The Appellate Court of Illinois for the Fifth District thus correctly reversed the trial court, and remanded the matter for a new trial on Ms. Anderson’s damages.  Although this opinion was obviously legally correct, it was nonetheless courageous.  Judges, both trial and appellate, have every incentive to simply let stand the jury’s award, even if it is as outrageous as what occurred here.  The unusual step of overturning a jury verdict always raises eyebrows, and is never done lightly.  But it must be done, or victims such as Ms. Anderson will not be compensated for their loss.

For a free consultation with an experienced Chicago personal injury lawyer at Passen Law Group, call us at (312) 527-4500.

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States Move to Require Hospital Negligence Disclosures

Thursday, September 16th, 2010

Our Chicago medical malpractice attorneys have previously argued that hospitals must begin to “own up” to their medical mistakes – and that doing so actually decreases medical malpractice exposures.  Now, state legislatures have begun to take notice, and are moving towards requiring public acknowledgment and reporting of medical errors.

This trend appears to have arisen from an investigation by the Las Vegas Sun.  The newspaper looked at so-called “Sentinel” events, incidents at a hospital that cause injury or harm to patients, or the risk of injury or harm to patients.  These events had previously been reported and available to the public only as a state-wide figure, leaving patients completely unable to compare the history and record of various hospitals, and leaving the hospitals with no public accountability for preventable injuries and infections.

The Sun, however, used 2008 and 2009 hospital billing records to identify 969 such incidents in the Las Vegas area alone, as part of a total of 1,363 incidents of preventable harm.  Importantly, the newspaper was thus able to identify which hospitals were the source of these events.  During the same period, only 402 events were reported to state regulators – but because the figure has only been reported as a statewide total, there is no reasonable way for the paper to determine which hospitals have been violating their reporting duties.  Nevada state legislators have, however, launched an investigation.

Although there is every reason to believe that the problem of under-reporting is not confined to Las Vegas, naturally the Nevada Legislature was the first state to act on the Sun’s findings.  Last month, the Nevada legislature’s Committee on Health Care approved two draft bills aimed at requiring hospitals themselves to disclose what the press unearthed.  The new laws would require hospitals to report for public disclosure – by location – preventable hospital injuries and infections.  This legislation builds on a 2009 federal law on infection reporting which permitted, but did not require, states to report infection data by facility to the National Healthcare Safety Network (a branch of the Centers for Disease Control and Prevention).

But Nevada is not alone in its efforts.  The Iowa Department of Inspections and Appeals is now moving to require similar disclosures of Sentinel events, called “never events” under Iowa law.

What we have not yet seen, however, is any similar action in Illinois.  Our Chicago medical malpractice attorneys urge the Illinois legislature to require similar disclosures.  Illinois patients and consumers, like those in Nevada and Iowa, deserve the opportunity to make informed decisions between available hospitals, and deserve the improved care that increased scrutiny will bring.  Requiring the public reporting and disclosure of incidents of preventable injury and infection at hospitals in our state can only increase the level of care provided to Illinois’ citizens, and decrease the need for medical malpractice actions to compensate the injured.

For a free consultation with an experienced Chicago medical malpractice lawyer at Passen Law Group, call us at (312) 527-4500.

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