Law Office of John
S. Xydakis, P.C.
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Chicago , Illinois 60602
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MEDICAL MALPRACTICE
Despite what the insurance companies have led you to believe, there is no crisis in this area. If there is, it is because those who have suffered less than permanent or fatal injuries cannot find an attorney to take their case. Consider the following, every year: medical errors kill between 44,000 and 98,000 Americans every year, 100,000 Americans die from infections they receive in a hospital, and only one out of every eight patients who are seriously inured or killed by medical negligence ever file a lawsuit.
Malpractice premiums are not driving up health care costs. Medical costs rose 13 times faster than malpractice premiums from 1988-1998. In 1998, medical malpractice premiums accounted for less than 1% of total health care costs in Florida. Insurance companies' total profits as a percentage of premiums is nearly twice as high for malpractice insurance than for casualty and property insurance. Recent increases in premiums are merely an attempt by the insurance industry to maintain the extremely high level of profitability for malpractice coverage.
Make no mistake, medical malpractice cases are extremely costly for attorneys to pursue and have a low percentage of actual recovery. Because of this, attorneys will want to see two things: clear fault on the part of the doctor, and high damages. Medical malpractice cases are inevitably taken on a contingency basis, where the attorney's compensation will be a percentage of the recovery you obtain, if any. The legal theory underlying a medical malpractice claim is a variant of "negligence." That is, every doctor and health care provider must perform his duties and acts with the standard of care which exists in his medical community. Deviations from this standard of care which injure a party, results in liability.
Before an attorney can proceed, he needs to obtain a copy of all of your medical records from the hospital or care provider. He will then forward these on to another doctor who is an expert in the field to get an expert opinion as to whether medical malpractice has occurred. Only after this determination has been made, will an attorney consider filing suit. Remember, even if malpractice is established, if the attorney does not think that the damages are substantial, he will usually refuse the case.
Before you decide to proceed, ask yourself the following questions:
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Has another doctor or nurse told you that the procedure or treatment was not done appropriately or that the outcome was unusual?
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Were you informed of any possible risks for the treatment or procedure?
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Did you sign an informed consent form?
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Has your insurance company refused to pay for any of the medical bills or questioned their appropriateness.
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Has the doctor been evasive when you ask him about the results of the procedure or treatment and why they did not meet your expectations.
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Has anyone told you that the doctor has a bad reputation or has had similar complications?
National Medical Malpractice Statistics
1. Fewer than one-half of 1% of the nation’s doctors face any serious state sanctions each year. 2,696 total serious disciplinary actions a year, the number state medical boards took in 1999, is a pittance compared to the volume of injury and death of patients caused by negligence of doctors. A recent study by the Institute of Medicine of the National Academy of Sciences estimated that as many as 98,000 patients may be killed each year in hospitals alone as a result of medical errors. Earlier studies also found that this was a serious national problem.
2. Harvard researchers found that 1% of a representative sample of patients treated in New York state hospitals in 1984 were injured, and one-quarter of those died, because of medical negligence. Nationwide, that would have translated into 234,000 injuries and 80,000 deaths in 1988 from negligence in American hospitals. Most of this involves physicians. There is no clear evidence that there has been significant improvement since then.
3. A similar study conducted in California in 1974 found that 0.8% of hospital patients had either been injured by negligence in the hospital or had been hospitalized because of negligent care. Extrapolation of those findings would have yielded an estimate of 249,000 injuries and deaths from negligent medical practice in 1988.
4. In 1976 the HEW Malpractice Commission estimated similarly that one-half of 1% of all patients entering hospitals are injured there due to negligence. That estimate would have indicated 156,000 injuries and deaths resulting from doctor negligence in 1988.
5. Expanding these estimates to include general medical practice outside of a hospital, the potential abuse by physicians is even greater. An in-depth interview with 53 family physicians revealed that 47% of the doctors recalled a case in which the patient died due to physician error. Only four of the total reported errors led to malpractice suits, and none of these errors resulted in an action by a peer review organization.
6. Medical students at SUNY-Buffalo were asked to recall incidents during their clinical training that raised ethical concerns. More than 200 students responded (40% of total sample); the majority of instances they reported (60%) did not in the researchers’ opinions threaten the patient’s life, health or welfare. This, however, implies that potentially 40% did.
7. It is not unreasonable to estimate that at least 1 percent of doctors in this country deserve some serious disciplinary action each year. This would amount to 7,703 physicians being disciplined each year, a number that, unfortunately far exceeds the actual number of physicians disciplined.
8. Sexual abuse of or sexual misconduct with a patient is also a serious issue. Six to ten percent of psychiatrists surveyed confessed to having engaged in sexual contact with a patient and in a longitudinal study.
9. Two studies surveyed residents to determine the incidence of substance use. Recent alcohol use was extremely high in both groups (87% within the last year for emergency medicine residents; 74% within the past 30 days for surgery residents). Additional findings proved extremely disturbing; although the emergency medicine program directors accurately determined the incidence of alcohol use amongst residents, they dramatically underestimated the percent who were actually impaired by the substance as indicated by diagnostic tests (1% estimate impaired vs. 13% diagnosed.)
10. This does not bode well for creating a medical system that prevents mishaps before they occur. And although the surgery residents reported negligible recent cocaine use, when employed, the drug was typically obtained from the hospital supply, indicating a greater ease of access than for the general population.
11. residents excessive work hours Their longest period without sleep during their first year of residency was an average of 37.6 hours (standard deviation (SD) 9.9). · During a typical work week, they worked an average of 56.9 total hours (SD 30.19) in on-call shifts (as distinguished from the total average number of hours they worked per week). An on-call shift is a continuous shift at the hospital allowing for little to no sleep; two on-call shifts are typically scheduled per week. · 25% reported being on-call in the hospital a total of over 80 hours per week. Surgeons reported the highest average hours of on-call time per week (72.5). · On a scale of 0 (never) to 4 (almost daily), residents most frequently gave a response of 3 for the amount of sleep deprivation experienced during the first year. Over 10% of residents indicated sleep deprivation was an “almost daily” occurrence.
12. Just 5.1 percent of doctors account for 54.2 percent of the malpractice payouts, according to data from the National Practitioner Data Bank. Of the 35,000 doctors who have had two or more malpractice payouts since 1990, only 7.6 percent of them have been disciplined. And only 13 percent of doctors with five medical malpractice payouts have been disciplined.
13. Between 44,000 and 98,000 people die in hospitals annually each year due to preventable medical errors, the Institute of Medicine found. A survey of doctors and other adults released in December in the New England Journal of Medicine found that more than a third of the doctors said they or their family members had experienced medical errors, most leading to serious health consequences. The cost to society in terms of disability and health care costs, lost income, lost household production and the personal costs of care are estimated to be between $17 billion and $29 billion. In contrast, the medical liability system costs $6.7 billion annually, about what is spent on dog food each year.
14. There is no growth in the number of new medical malpractice claims. According to the National Association of Insurance Commissioners, the number of new medical malpractice claims declined by about four percent between 1995 and 2000. There were 90,212 claims filed in 1995; 84,741 in 1996; 85,613 in 1997; 86,211 in 1998; 89,311 in 1999; and 86,480 in 2000. While medical costs have increased by 113 percent since 1987, the amount spent on medical malpractice insurance has increased by just 52 percent over that time. Insurance companies are raising rates because of poor returns on their investments, not because of increased litigation or jury awards, according to J. Robert Hunter, director of insurance for the Consumer Federation of America. Recent premiums were artificially low. Malpractice insurance costs amount to only 3.2 percent of the average physician’s revenues. Few medical errors ever result in legal claims. Only one malpractice claim is made for every 7.6 hospital injuries, according to a Harvard study. Further, plaintiffs drop 10 times more claims than they pursue, according to Physician Insurer Association of America data.
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