Putting a price on malpractice

By BLYTHE BERNHARD
The Orange County Register
http://www.ocregister.com

In Tuesday’s State of the Union address, President Bush said he wants “to protect good doctors from junk lawsuits” through changes in the medical malpractice system.

Bush has touted a nationwide cap on malpractice awards for pain and suffering. The cap is modeled after a law that’s been in place in California for decades.

But some say the state law, considered landmark in 1975, is outdated and unfair to injured patients. Insurers and doctors say it’s lowered insurance premiums and kept doctors in the state.

The Medical Injury Compensation Reform Act limits pain and suffering damages to $250,000. That, say patients such as Steve Charbonneau, is too low, especially in 2007 dollars.

Charbonneau lost his diseased right kidney in December 2005 after doctors at Hoag Memorial Hospital Presbyterian found a 1- by 2-foot blue towel that they left in his body during a previous surgery, according to patient medical records.

“I think my kidney was worth a whole lot more” than $250,000, said Charbonneau, 36. “I’ve slowed down. I don’t do the things I normally used to do. I’m still in a lot of pain because of the two surgeries they put me through. It’s taken a psychological toll. My future is very uncertain.”

Charbonneau, who lives in Costa Mesa, is suing his surgeon at Hoag, Dr. Alan Freedman. Hospital officials declined to comment for this article.

To win million-dollar awards in California, attorneys must prove a patient’s economic damages, such as lost wages or future health care costs. Statewide, just 29 cases resulted in awards of $1 million or higher in 2005.

Cases like Charbonneau’s are typically not worth more than the quarter-million cap because economic damages are hard to prove. Lawyers can argue that he can work with one kidney. And future health care costs resulting from the loss of a kidney are tough to predict.

California’s limit on noneconomic awards is hailed by some as a model for the nation because soaring malpractice premiums are driving some doctors out of the profession. Since 1975, liability premiums for California doctors have increased at one-third of the average rate nationwide, according to the National Association of Insurance Commissioners.

“When you don’t have laws that provide stability … the rates are much higher,” said Leona Egeland Siadek, vice president of government relations for the Doctors Co., which insures 22 percent of doctors in the state.

An estimated 89,000 people die each year from hospital mistakes, and hundreds of thousands more are sickened or injured. Most of these patients and families don’t even file, let alone win, lawsuits.

Victims of medical errors who fare the worst in the legal process are senior citizens and homemakers, because their earnings potential is low. And errors that lead to loss of fertility or disfigurement may cause emotional but not economic damages.

Although there’s a common perception that frivolous or “junk” lawsuits abound, many patients, at least in California, have trouble finding an attorney to take their case. With costs of $50,000 to $100,000 to hire expert witnesses and other legal fees, the cases are a risk to take on.

“There’s a lot of malpractice that no one sues a doctor for because no attorney would take a case where they’re going to risk so much of their own money to try to prove the truth,” said James Daily, an Irvine lawyer representing Charbonneau. “Grandma’s life is only worth 250 (thousand), according to the law.”

Most malpractice cases are settled in mediation discussions involving attorneys for both sides, a representative from the doctor’s insurance carrier and often the injured patient. Lawyers admit that the patient’s appearance and demeanor go a long way in determining their damages.

In the cold calculations of medical malpractice, a brain-damaged baby is worth more than a dead baby. The brain-damaged baby will need a lifetime of specialized care.

In one high-profile local case, lawyers are currently haggling over the injuries to former patients of UC Irvine’s now-defunct liver-transplant program. The program shut down in November 2005 after federal investigators found the hospital had not had a full-time surgeon for more than a year. During that time, donor organs were turned away at a high rate, and at least three dozen patients died while waiting for a new liver.

The families of patients who died on the waiting list and may have been eligible for a donated organ could end up with more money than a patient who left UCI and received a transplant at another hospital.

In the few malpractice cases that make it to trial, the doctor wins three-quarters of the time. One reason is that it’s relatively easy to confuse a jury with medical terms and procedures. Another reason is that people want to trust doctors.

“It’s too scary to believe that my doctor could do this to me, therefore it must be the plaintiff’s fault that the doctor left the sponge in,” Daily said. “The doctor knows he can probably win because he looks like Marcus Welby.”

One simple alternative to litigation is gaining traction. The Sorry Works Coalition (www.sorryworks.net) proposes that hospitals and doctors practice full disclosure, including apologies, with patients and families.

The policy is based on a program practiced at all Veterans Affairs hospitals, many Kaiser Permanente hospitals and the University of Michigan’s health care system. Since the program was adopted at Michigan in 2002, the number of lawsuits has dropped by half, with an estimated yearly savings of $2 million in legal bills.

The Sorry Works Coalition promotes open dialogue as a means of defusing anger and suspicion, which can lead to lawsuits.

Doctors may be reluctant to apologize or express sympathy to a victim of a medical error. The culture of perfection in medicine can breed super-human egos. Also, hospitals and doctors have typically been encouraged by legal advisers to clam up after an unexpected event.

“When you stop communications, cut off the relationship, not return phone calls, all in an effort to mitigate losses, it makes patients and families extremely angry,” said Sorry Works spokesman Doug Wojcieszak, whose brother died of a heart attack in a Cincinnati hospital after doctors failed to diagnose his classic symptoms.

Medical malpractice lawsuits often are driven by a need for answers and a desire to prevent the error from happening to someone else.

Admitting the mistake, offering to waive hospital bills, explaining how it won’t happen again – it’s just good customer service, Wojcieszak said.

“It’s a heck of a lot cheaper to do that than to go and fight it in court,” he said. “If you cut people off, don’t be surprised when they come back with a trial lawyer in tow.”
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