St. Louis Personal Injury Blog

Medical Malpractice Insurance Premiums Dropping–and NOT Because of Tort “Reform”

Todd Hendrickson — Thu, 08 May 2008 19:01:09 +0000

I recently learned of an interesting article in the Medical Liability Monitor, an industry publication on medical malpractice. In the April 2008 issue, Phil Dyer, V.P. of Professional Liability Division of Kibble & Prentice, declares that the volatility in the healthcare professional liability market may finally be over. Mr. Dyer cites 6 reasons–and not one is tort “reform.”

Reinsurance Changes: Reinsurers, large companies who buy packages of insurance risk, have reduced their holdings in property insurance following Hurricane Katrina and are purchasing more malpractice risk packages, driving down the cost of reinsuring.

Reduced Frequency of Claims: The number of claims per bed for hospitals and the number of claims per doctor has dropped significantly in recent years. No reason is listed, but it would appear to be the result of better managing risk, as described below.

Reaping Rewards of Previous Years: This is my favorite! In recent years the insurers have hike premiums, dropped physicians and generally caused havoc. Now, as a result of a reduced frequency of claims, they are “reaping the rewards.” In other words, they are now seeing the profits from those years of sky high premiums that they were claiming they needed to keep from going broke! As a result of years of gouging hospitals and doctors, insurers are reaping record profits!

Companies Have Money to Spare: Obviously, the insurance companies don’t want their customers and the public to know this, but it is there in black and white and it is a direct quote: “With clean books of business, robust premiums and a favorable claims environment, there is a great deal of room for companies to be aggressive and lower rates.” Here we go again … the same cycle we’ve seen for years. The insurance companies cry wolf, raise rates and drop coverage claiming that the lawyers are driving doctors out of business, then the companies suddenly have “money to spare,” begin cutting rates, insuring doctors who shouldn’t be practicing and then the cycle will repeat, ad nauseum.

Healthcare Delivery System is Better at Preventing Claims: This is the first thing that is actually good news for patients. In light of the skyrocketing premiums over the past few years, hospitals and doctors have worked to reduce mistakes, and they’ve been successful to some extent in doing this. Every attorney welcomes this.

The Trial Bar Cannot Afford to Bring Cases that Have Little or No Settlement Value: This is the industry’s only attempt to indirectly link their improved fiscal position with tort reform, and it is simply a fantasy. Those of us who specialize in Medical Malpractice have never taken marginal cases. We have never been able to spend money to investigate claims without merit. What does happen, as Mr. Dyer recognizes, is that attorneys who don’t concentrate in medical negligence cases can, and often do, prosecute cases where liability is not clear. They then often lose those cases and the health care industry rolls out the term “frivolous” to describe the suit. A loss does not mean frivolous. It just means that the attorney wasn’t able to prove the case.

What does this mean to patients? Probably not much. Hopefully, doctors and hospitals will continue to implement practice modifications that will “prevent claims.” Hopefully, the insurers will stay off the roller coaster of raising and lowering premiums so that doctors and hospitals can better predict these costs, but that probably won’t happen. Hopefully, the next time reinsurance costs go up because the reinsurers have found a better place to park their money, the insures won’t scream “tort reform” and try to take away the rights of the very patients who are injured by doctor’s and hospital’s negligence, but that probably won’t happen either. Maybe, just maybe, someone will pull this article from Medical Liability Monitor and waive it in the face of the insurance industry and cut off the argument. Maybe … but don’t hold your breath.In the mean time, trial attorneys will keep protecting the victims of medical negligence and dangerous products.

Heparin Contamination More Extensive than First Thought

Todd Hendrickson — Fri, 02 May 2008 18:51:39 +0000

The New York Times is reporting that Heparin contamination is more widespread than first thought. And Heparin may be just the tip of the iceberg. Unknown to most Americans, U.S. drug manufacturers are purchasing many chemical components of their drugs from Chinese suppliers.The F.D.A. has linked contaminated Heparin to at least 81 deaths in the United States. Heparin, a drug-thinner used extensively to treat strokes, heart attacks and as a preventative measure in certain types of surgeries, has been found to be contaminated. If you or a loved one has suffered death, stroke, bleed or other side-effect in recent years, and Heparin was involved, please contact the The Law Offices of Todd N. Hendrickson to discuss your legal rights.

Bill Passed in Missouri Legislature to Make Mortgage Fraud a Crime

Todd Hendrickson — Fri, 02 May 2008 18:44:58 +0000

A bill has been approved in the Missouri Senate and House to make Mortgage Fraud a felony, punishable by up to 7 years in prison, reports the Springfield News-Leader. The bill has been presented to Governor Blunt for his approval.The legislation defines mortgage fraud as making false statements or failure to disclose material facts and includes attempts to influence appraisals through extortion or bribery.If you have been a victim of mortgage fraud, contact the offices of Todd N. Hendrickson, P.C. to discuss your case. You have legal rights which may entitle you to damages.

New Plaintiff’s Only Web Resource

Todd Hendrickson — Mon, 21 Apr 2008 14:52:34 +0000

I’m announcing the launch of a new attorney web resource for Plaintiff’s Attorneys only. It is called MOPAO (Missouri Plaintiff’s Attorneys Only). Membership is strictly moderated and is open to Missouri attorneys who represent only plaintiffs in the personal injury and medical malpractice arena. Absolutely no memberships will be granted to any attorney who is a member of any defense firm. The goal of the list serve is to give a private and secure environment for open discussions and exchanges of information.If you are a 100% plaintiff’s only firm or solo, you may request membership by sending an e-mail to MOPAO. I look forward to your requests.Todd N. Hendrickson, Moderator–MOPAO

Another reason why so-called “Tort Reform” doesn’t make sense-Malpractice cases recover Governments money

Todd Hendrickson — Mon, 21 Apr 2008 14:46:06 +0000

In a companion post, I noted that medical malpractice is costing Medicare billions of dollars-Medicare Study: Medical Malpractice Costing U.S. Government Billions. This study shows that medical negligence cost Medicare nearly 9 billion dollars between 2004 and 2006. Since this study looked only at Medicare patients, it doesn’t take into account Medicaid patients. It’s certainly reasonable to believe that the rate of incidents is similar and the federal government is spending billions more dollars to treat those victims of medical negligence.So what does this have to do with “tort reform?” To answer that question, you have to know how Medicare and Medicaid work. These government programs have so-called “super liens” against any settlement or judgment obtained against a negligent health care provider. A lien means that the government gets reimbursed for what it paid out in medical claims to treat the injuries caused by negligence. In effect, when an attorney takes a Medicare or Medicaid patient as a client, he is working for the taxpayers too.So how does “tort reform” interfere with this process? Most “tort reform” provisions seek to reduce the amount an injured party can recover from a negligent doctor or hospital. By reducing the amount of the recovery, they reduce the amount available to repay the taxpayers. Also, these “tort reform” laws tend to disproportionately affect the elderly and the poor–exactly those persons served by Medicare and Medicaid? Why does tort reform disproportionately affect the elderly and the poor, as well as children and woman who don’t work outside the home? Because arbitrary limits on non-economic damage awards, often called “caps,” fall hardest on these people. The poor, the elderly and the young cannot usually demonstrate significant lost income as a result of medical negligence. Past and future lost income, along with past and future medical expenses, are the cornerstone economic damages in a medical malpractice case. If lost income is out of the equation, those injured as a result of medical negligence are left with damages consisting of medical expenses and non-economic damages, sometimes called “pain and suffering.” When the pain and suffering damages are capped, the award is artificially reduced. With a cap, even if a jury decides that, for example, a surgeon who removes the wrong leg in a surgery, should pay One Million Dollars in pain and suffering damages, a judge is required by law to reduce that award to the capped level, no matter what the circumstances.And the lower the overall recovery, the less money is available to satisfy the federal Medicare and Medicaid liens. The less money available, the less Medicare and Medicaid get back. If the potential recovery is so restricted by caps that the case is no longer economically viable, then the case won’t be filed and Medicare and Medicaid will recover nothing. And then you and I, the taxpayers, will bear the ultimate burden of the medical negligence–not through increased medical costs, as the medical and insurance lobby would have you believe, but by paying the bills of those doctors and hospitals who caused the injury through their negligence.

Medicare Study: Medical Malpractice Costing U.S. Government Billions

Todd Hendrickson — Mon, 21 Apr 2008 14:45:48 +0000

The federal government has released the result of a study which shows that “patient safety errors” resulted in 238,337 potentially preventable deaths. The cost to the taxpayers? Nearly 9 billion dollars. The study covered the period from 2004 through 2006.The study reviewed the medical records of 41 million Medicare patients. It found that the overall error rate was 3%, meaning that 1 out of every 33 Medicare patients was the victim of medical malpractice. The error rate in smaller community and rural hospitals was significantly higher than that of top performing medical centers, normally found in cities and associated with medical schools and universities.

Patients who experienced medical negligence were 20% more likely to die as a result of the negligence

Incidents of post-operative respiratory failure, pulmonary embolism and sepsis increased

Bed sores, post-op respiratory failure and “failure to rescue” were the most common incidents of medical negligence

Keep in mind that these dramatic numbers–238,337 preventable deaths are not indicative of the rate of medical malpractice in the entire country. This study looked at the records of Medicare patients, a small percentage of the population. Undoubtedly, the death rate and cost, in terms of health care dollars spent in treating victims of medical malpractice, is several times larger.Starting October 1st, Medicare and Medicaid will stop paying for treatment for eight common preventable errors, such as instruments left in the body during surgery, wrong site surgery and certain kinds of post-surgical infections.

DOCTORS REQUIRE PATIENTS TO GIVE UP RIGHTS OR GIVE UP TREATMENT

Todd Hendrickson — Mon, 21 Apr 2008 14:45:30 +0000

Imagine this scenario: You walk into your doctor’s office for a routine exam. You are handed a stack of papers to fill out. Nothing unusual, right? Wrong! Included in that stack is a legal document stating that you agree to give up your right to file a lawsuit if the doctor is negligent and, instead, you agree to binding arbitration. This couldn’t happen in America, right? Wrong.As reported recently in the St. Petersberg Times, an increasing number of doctors, particularly obstetricians, are requiring their patients to sign binding arbitration agreements or they will simply refuse to treat them.You don’t go into a doctor’s office and expect to be making legal decisions, you expect treatment from a compassionate, caring, skilled and ethical physician. If your physician is trying to get you to waive your rights, before you or they know if anything has occurred, and without consulting an attorney, then that physician is not ethical. Patients have a constitutional right to seek redress for injuries caused by negligence.If you are faced with one of these waivers, I suggest you politely ask the doctor to guarantee, in writing, that he will not be negligent in his treatment of you. If he won’t do that, then you shouldn’t agree to arbitration.

Missouri Insurer Won’t Pay for Medical Mistakes

Todd Hendrickson — Thu, 03 Apr 2008 14:04:49 +0000

A Missouri medical insurer has announced that it will no longer pay hospitals for certain types of medical errors, such as performing surgery on the wrong part of the body or leaving objects in the patient after surgery. This new policy has been reported in the St. Louis Post Dispatch and Forbes.By setting this policy, Anthem Blue Cross Blue Shield has effectively declared that certain occurrence, which they refer to as adverse events, are clearly the result of medical malpractice and that they, the insurer, shouldn’t have to pay for that malpractice. Included in the list of adverse events is:

Wrong site surgery

Surgery performed on the wrong patient

Air embolism or blockage

Blood incompatibility

Decubitus (pressure) ulcers, otherwise known as bed sores

Fractures, burns, crush injuries and other injuries caused by falls or drops in the hospital

and others

While this may seem like a good idea for the insurer, the question for patients who have been the victim of such medical negligence, is: “If my insurer doesn’t pay, then who will?” In nearly twenty years of representing victims ofmedical malpractice, I can confirm that the list above covers a good portion of the common types of medical malpractice cases prosecuted. However, in nearly every case, the doctors and hospitals have defended cases that arise from these types of mistakes, and have defended them vigorously. If the medical insurer doesn’t pay, the patients, will be dealing not only with the problems created by the mistake, but by the bills generated by those mistakes. And often, the doctor or hospital who caused the mistake, is only the first in a long line of treaters who will work to try to correct the mistake. After a severe medical mistake, patients will often (and correctly so) seek treatment from a different doctor or hospital to diagnose and treat the injuries resulting from the medical malpractice. Those secondary treaters haven’t done anything wrong, and the patient needs the treatment. If Anthem Blue Cross Blue Shield refuses to pay those secondary health care providers, the victims of medical malpractice will be victimized again, and again.While the attempt to improve patient safety is certainly laudable, this may not be the best course for the patient. The risk of causing more harm to those already harmed by clear malpractice is simply too great.

What You Need to Know About Your Auto Insurance

Todd Hendrickson — Wed, 02 Apr 2008 02:02:10 +0000

In twenty years of practicing law, I’ve learned that most people do not understand their auto insurance coverage. This short article is an attempt to clarify some basic auto insurance issues.There are two types of auto insurance coverage that are mandated by Missouri law: Liability and Uninsured Motorist. Liability insurance is to protect any person who you may injure or who’s property you may damage from your negligence. Uninsured Motorist coverage is to protect you in the event that someone without insurance injures you or damages your property. Between the two mandated coverages, the victim of negligence will likely be covered by some form of insurance.The other common form of auto insurance is commonly referred to as “full coverage.” Full coverage is simply shorthand for having insurance coverage for damage to your vehicle, regardless of who is at fault. Even if you, the insured, cause an accident, with full coverage your vehicle damage will be repaired.Less common forms of insurance coverage are probably the least expensive and most beneficial to you in the event you are injured in an accident. Medical Payments or Med Pay coverage is, in effect, a health insurance plan for any passenger or driver of your vehicle injured in an accident. Usually sold in smaller limits, from $1000 to $10,000, it is usually only a few dollars per six month policy. This protects you and your passengers and is in addition to any health insurance you may have.Underinsured Motorist coverage protects you and your passengers in the situation in which you are injured by a driver who has insurance, but at the minimum or lower amounts. For example, if you are injured by a driver with the minimum $25,000 coverage, and you have Underinsured Motorist Coverage, you can collect for injuries that exceed the $25,000 minimum. Like Med Pay, the cost is low for the coverage. To protect you and your passengers, your Med Pay, Uninsured Motorist, and Underinsured Motorist coverages should be as high as you can afford.If you have been in a motor vehicle accident, call our office for a free consultation.

“OPERATING UNDER THE INFLUENCE” ON CNN TONIGHT

Todd Hendrickson — Mon, 31 Mar 2008 15:43:39 +0000

Anderson Cooper 360˚will air “Operating under the Influence” tonight, March 31, 2008, at 10pm, eastern. The advertisements for the show indicate “imagine undergoing the knife, while your doctor is undergoing treatment for addiction!” Unfortunately, a number of my clients don’t have to “imagine” that consequence.I have a number of cases in which a physician’s addiction is an issue. In one, within days of operating on my client, the physician tested positive for cocaine use. Only after the patient suffered a horrible complication did he learn that his surgeon had returned from rehab only a few days before operating. And worse yet, the hospital was aware of the stint in rehab and had not provided for drug testing before allowing the surgeon to return to the operating room and had not required that the surgeon be monitored by another surgeon in surgery.This type of negligence, on behalf of both the addicted doctor and the hospital, is clearly inexcusable. All hospitals have, or should have, in place policies and procedures to detect and monitor impaired doctors, nurses and other staff.I’ll watch “Operating under the Influence” tonight with interest. For more, see AndersonCooper360