As mentioned in our April 19th blog post, the United States House of Representatives passed two bills in March intending to limit medical malpractice lawsuits. The Innocent Party Protection Act would transfer some lawsuits to federal courts from plaintiff-friendly state courts. The Protecting Access to Care Act (H.R. 1215), would restrict medical malpractice awards to $250,000 for noneconomic damages in medical malpractice, nursing home abuse, prescription and over-the-counter (OTC) drug and medical device lawsuits, including pain and suffering, permanent disfigurement, or other serious disabilities that do not restrict the ability to work. Current law contains no caps on these awards.
Recently, however, the Florida Supreme Court has ruled that a law limiting pain-and-suffering damages in medical malpractice cases is unconstitutional. The Broward County case decided by the Supreme Court began after dental assistant Susan Kalitan went into surgery in 2007 for carpal-tunnel syndrome and ended up with a perforated esophagus because of tubes inserted into her mouth and esophagus during the anesthesia process. Kalitan filed a lawsuit in 2008 against the North Broward Hospital District and other defendants. A jury awarded $4 million in non-economic damages, but the amount was reduced by about $2 million because of caps instituted in a 2003 Florida law.
Justices were divided, with the four-member majority finding that the caps on “non-economic” damages violated equal-protection rights. “We conclude that the caps on noneconomic damages … arbitrarily reduce damage awards for plaintiffs who suffer the most drastic injuries,” said the majority opinion shared by Chief Justice Jorge Labarga and justices Barbara Pariente, R. Fred Lewis and Peggy Quince. Also, the majority disputed that a malpractice insurance “crisis” exists — a justification that lawmakers used in approving the limits. “We further conclude that because there is no evidence of a continuing medical malpractice insurance crisis justifying the arbitrary and invidious discrimination between medical malpractice victims, there is no rational relationship between the personal injury noneconomic damage caps … and alleviating this purported crisis.’’
However, Justice Ricky Polston, in a dissent joined by justices Charles Canady and Alan Lawson, argued that the majority was overstepping its role: “The majority just discards and ignores all of the Legislature’s work and factfinding. But, under our constitutional system, it is the Legislature, not this Court, that is entitled to make laws as a matter of policy based upon the facts it finds. It is the Legislature’s task to decide whether a medical malpractice crisis exists, whether a medical malpractice crisis has abated, and whether the Florida statutes should be amended accordingly.’’
Medical Malpractice “Crisis”
As stated in our April 27th blog post, a recent database study conducted at Brigham and Women’s Hospital found that the rate of medical malpractice claims paid on behalf of physicians in the United States has actually declined substantially from 1992 to 2014, belying the claim that there is a medical malpractice insurance crisis.
The study analyzed data from the National Practitioner Data Bank (NPDB), a centralized database of paid malpractice claims that was created by Congress in 1986. Researchers found an overall drop in the amount of paid claims across all specialties, but the extent of the decline was markedly different by specialty.
Researchers report that the overall rate of claims paid on behalf of all physicians dropped by 55.7%. Pediatricians had the largest decline, at 75.8%, and cardiologists had the smallest, at 13.5%. Mean compensation amounts and the percentage of payments exceeding $1 million increased, with wide differences in rates and characteristics across specialties. After adjusting for inflation, the amount of the paid claims increased by 23.3%. Neurosurgery had the highest mean payment, and dermatology had the lowest. The most common type of allegation underlying all paid claims was an error in diagnosis (31.8%), followed by errors related to surgery (26.9%) and errors related to medication or treatment (24.5%). Thirty-two percent of paid claims were related to a patient death. Pulmonologists were most likely to be involved in a claim that involved a patient death.
The number of malpractice payments in 2010 was 13,277 nationwide, equating to a 35% drop since 2001. According to the National Center for State Courts, medical malpractice cases represent under 2% of all civil cases, and less than 8% of tort cases, with 22% of medical malpractice cases involving the death of the patient. In fact, malpractice insurance premium increases experienced by health care professionals have found to be cyclical and not tied to medical malpractice lawsuits.
For more information, please contact The Ahearne Law Firm, PLLC at (845) 763-4100 for an initial consultation and case evaluation.