Recently in Legislation Category

February 24, 2011

Tort Reform And The Imagined Health Care Crisis

This blog entry comes courtesy of the President of the Illinois Trial Lawyers Association and was published in the February 24, 2011 edition of the Belleville News Democrat:

It is once again time to set the record straight with your editorial board. There was never a health care crisis in this state and there were no "jackpot justice conditions" that caused doctors to flee Illinois.

Your editorial board and the president of the Illinois State Medical Society (ISMS) have chosen to ignore important facts when it comes to medical care access in this state. Over the years, we have consistently increased the number of physicians in our state. That's right. The American Medical Association data reflects increases for each of the last 45 years. Clearly not a climate of doctors leaving Illinois or retiring early.

Funny how it used to be, for years, ISMS would falsely claim doctors were fleeing our state and that we already had a shortage of doctors because of fabricated "jackpot justice conditions." As the data has failed to support that claim, the dialogue now shifts to an attempt to create a "future crisis". In fact, a recent survey - funded in part by ISMS - clearly demonstrated oversaturation of physicians in the largest populated area of our state. That's correct - more than enough doctors in the greater Chicagoland area.

Dr. Steven Malkin, the president of ISMS, recently tried to tie a potential doctor shortage in Hillsboro, Illinois to lawsuits. He suggested lawsuits were preventing doctors from setting up practice in the Hillsboro area. What are the facts? In 2010 there was only 1 case of physician negligence filed in Hillsboro, Montgomery County, Illinois, and that's about the number each year over the last nine years according to the Court Clerk's office. Hardly, a "toxic" malpractice lawsuit environment. Additionally, the number of medical negligence cases filed in Illinois, overall, has steadily declined over the last seven years. Filings are down almost 40% since 2003.

We do agree that a portion of the 2005 law, which was struck down last year, needs to be reinstated. The insurance reforms contained in the law forced malpractice insurance companies to provide greater transparency on rate-setting and payouts, that spurred competition and motivated more companies to enter the marketplace. These measures resulted in a reduction of malpractice premiums for doctors.

Health care in Illinois doesn't improve by taking away the constitutional rights of those injured by medical negligence. It improves by providing better care, and holding those who are careless and their insurance companies accountable. True reform of the insurance industry and a reduction in medical errors is the only way to ensure a thriving healthcare system that works for every citizen of this state.

August 24, 2010

Medicare Liens and Medical Malpractice Litigation

The Deficit Reduction Act of 2005 (DRA) overhauled Medicare's perspective on payment for medical care related to "never events" including a list of delineated hospital acquired conditions. Hospitals will no longer receive reimbursement for conditions that are (a) high cost or high volume or both, (b) result in the assignment of a case to a DRG that has a higher payment when present as a secondary diagnosis, and (c) could reasonably have been prevented through the application of evidence-based guidelines. The ten categories for hospital acquired conditions are: Foreign Object Retained After Surgery,.Air Embolism,,Blood Incompatibility, Stage III and IV Pressure Ulcers, Falls and Trauma including, Fractures, Dislocations, Intracranial Injuries, Crushing Injuries, Burns and Electric Shock, Manifestations of Poor Glycemic Control including, Diabetic Ketoacidosis, Nonketotic Hyperosmolar Coma, Hypoglycemic Coma, Secondary Diabetes with Ketoacidosis and Secondary Diabetes with Hyperosmolarity, Catheter-Associated Urinary Tract Infection, Vascular Catheter-Associated Infection, Surgical Site Infection Following Coronary Artery Bypass Graft (CABG) - Mediastinitis, Bariatric Surgery, Laparoscopic Gastric Bypass, Gastroenterostomy, Laparoscopic Gastric Restrictive Surgery, Orthopedic Procedures and Deep Vein Thrombosis (DVT)/Pulmonary Embolism (PE).

While the Centers for Medicare and Medicaid Services (CMS) have prohibited hospitals from recovering payment for the treatment of secondary conditions acquired in the hospital, practically, these charges are often submitted and paid by Medicare long before and attorney becomes involved and makes a claim for medical malpractice. Careful examination of the supporting documentation Medicare provides at the time they require reimbursement often reveals that benefits were paid for hospital acquired events.

We pay close attention to each and every aspect of our clients cases and work very hard to insure that they receive the maximum recovery. This includes the work we do to check and negotiate all of our clients liens, including Medicare liens.

April 15, 2010

The Whole Truth About Medical Malpractice and Insurance

Fact: Did you know independent authoritative studies have shown that medical malpractice claims have little effect on overall health care costs?

• Malpractice claims boost overall health care costs no more than a tiny percentage
according to the Congressional Budget Office.

• The Congressional Budget Office has also concluded that the most anti-patient medical
malpractice "reforms" may lead to poorer health care and worse patient outcomes.
Source: Personal Health Care Expenditures taken from the Centers of Medicare and Medicaid Services.

• For more information regarding insurance reform, see "The Whole Truth About Medical Malpractice and nsurance" pages 31-33 available HERE.

*Thanks to the Illinois Trial Lawyer's Association for this information.

February 5, 2010

Illinois Supreme Court Rules In Favor Of Patient On Medical Malpractice Reform

The Illinois Supreme Court in a 4-2 decision struck down limits on damages awards in medical malpractice cases with its decision in Lebron v. Gottlieb Memorial Hospital on thursday. The court held that the legislation was unconstitutional. The majority opinion, authored by Justice Fitzgeral held, in part: "[W]e necessarily consider...the legislature's goal in enacting the statue-responding to a health-care crisis. Our separation of powers analysis, however, does not stop there. The crux of our analysis is whether the statue unduly infringes upon the inherent power of the judiciary. Here, the legislature's attempt to limit...damages in medical malpractice actions runs afoul of the separation of powers clause."

This is a major victory for patients and consumers in Illinois. The legislature has tried, on three seperate occasions, to enact caps on damages in medical malpractice cases. For years lobbiests for the insurance industry have argued that medical malpractice awards have contributed to the high cost of health care in Illinois despite the fact that insurace payouts on these claims have remained level for the past two decades.

All citizens of Illinois should have a right to ask a jury of their peers for redress when they have been victimized by negligence, regardless of the profession of the guilty party. To see a copy of the Supreme Courts landmark opinion look here.

December 17, 2009

Illinois Supreme Court Delays Release Of Medical Malpractice Reform Decision

Earlier this week the Illinois Supreme Court announced that it would likely release its decision on medical malpractice reform in the case of Lebron, et al vs. Gottlieb Memorial Hospital, et al today.

Unfortunately, it appears that the court did not release the decision today as anticipated. This is not an uncommon occurence. The Lebron case was argued before the court over one year ago and the supreme's decision is much anticipated by the trial bar and general public.

The Medical Malpractice Reform Act of 2005 was determined to be unconstitutional by Judge Diane Larsen of the Circuit Court of Cook County. Her ruling determined that caps on damages in medical malpractice cases are not allowed by the state constitution, something that the Illinois Supreme Court has decided on two prior occasions.

October 2, 2009

Illinois Governor Forms Task Force To Make Nursing Homes Safer

In the wake of the devastating three part series in this week's Chicago Tribune exposing Chicago and Illinois nursing homes and their practice of housing sex offenders and convicted felons with regular patients, Patrick Quinn, the Governor of Illinois, has announced the formation of a high level task force to look into these troubling issues.

The goal of the task force is to find safe ways to house those nursing home patients suffering from mental illness. The Tribune report exposed several shocking cases of nursing home abuse and neglect where residents were assaulted and/or raped by mentally ill criminals being housed in area nursing homes.

The Chicago Tribune has developed a website which will allows the public to track convicted felons and sex offenders residing in Chicago and Illinois nursing homes.

September 18, 2009

Illinois Law Protects Brain Injured Children's Right To File Lawsuits

In Illinois there is a stautue of limitations on medical malpractice claims which generally prohibits filing of a lawsuit two years from the date of malpractice or two years after the malpractice is discoverd. The statute of repose sets an outside tail date for filing such claims after four years have elapsed from the time of the initial malpractice. There are certain exceptions to this general statute of limitiations. At Goldberg & Goldberg we are proud of our work to help protect the rights of brain injured children. As an example of such work we are proud to say that due to our tireless efforts to fight for and protect brain injured children, including those suffering from cerebral palsy, the Illinois Supreme Court extended the statute of limitations for minors suffering from a brain injury indefinitely.

In Bruso v. Alexian Brothers Hospital, 178 Ill. 2d 445, 453 (1997), the Illinois Supreme Court, in an opinion authored by Justice Michael Bilandic held, that a minor who is under another legal disability, such as a brain injury, shall have the statute of limitations tolled on his claim until said legal disability is lifted. As a result, brain injured persons are protected from the statute of limitations until such a time as their disability no longer exists. This is a significant victory for consumers in Chicago, and throughout Illinois.

July 13, 2009

Black Chicago Area Nursing Home Residents Get Worst Care In The Nation

A study prepared by the Chicago Reporter shows that black Chicago area nursing home residents receive the worst quality care in the country. There is just one nursing home in the Chicago area rated excellent by the federal government where the majority of the patients are black. These homes have more federal violations, medical malpractice and personal injury claims against them then majority white nursing homes.

The Reporter analyzed records from over 15,000 nursing homes nationwide in order to determine whether disparities exist in the quality of care based on a variety of factors, including race. The Reporter found that the worst rating was given to 57% of Chicago area nursing homes where the patient population was majority black.

Nursing homes have to comply with a variety of state and federal regulations that govern the quality of care required of their patients. There is a particular need to regulate nursing homes as they are usually operated as a for profit business and the patients are typically infirm and/or elderly. In 1987 the federal government passed The Omnibus Budget Reconcilliation Act which outlined the rights of nursing home patients, including the right to be properly evaluated at the time of admission and regularly thereafter as well as the right to have a doctor care for them.

July 6, 2009

Does Medical Malpractice Reform Belong In The Healthcare Debate?

What does reforming medical malpractice have to do with the current health care reform debate that is a hot topic in Washington and here in Illinois? Not much, at least according to one ranking United States Senator.

"I honestly really don't see this as a health care issue," said Sen. Sheldon Whitehouse (D-R.I.). The Senator, a former Rhode Island attorney general, argues that medical malpractice is more of an "intruder" into the debate to protect insurance companies, hospitals and doctors from being accountable for their mistakes.

There is very little objective evidence that malpractice reforms, like capping damages awards, have any impact on health care costs. California, which has had caps on medical malpractice awards for more then thirty years, has not seen health care costs reduced over that time period. The argument that doctors are practicing defensive medicine by ordering expensive tests to protect themselves from litigation is equally unpersuasive. Susan Steinman, the American Association for Justice's director of policy, argued that hospitals and doctors seek additional tests to make more money, not because of the fear of lawsuits. Defensive medicine is not nearly the issue that doctors make it out to be and is more of a red herring to distract from real problems with the health care system, she said.

June 22, 2009

Capping Medical Malpractice

How do we cap medical malpractice without capping medical malpractice awards for those patients who are injured by the negligence of doctors. Everyone agrees that the health care system in the United States is in need of a drastic overhaul. The key is accomplishing an overhaul without further abridging the rights of the needy.

Andy Hoffman in Friday's Daily Kos Online wrote an excellent editorial suggesting a novel, yet thusfar, unexplored solution to reducing the cost of medical malpractice claims on society. Weed out the worst offenders, those doctors who repeatedly victimize their patients and have no business practicing medicine.

Focusing on medical malpractice caps will do nothing to reduce health care costs. California, as Hoffman notes, has had caps on medical malpractice awards for the past 34 years. The caps in california are drastic, $250,000 limits on malpractice awards, and have had literally no effect on the cost of malpractice insurance or the price of health care in that state. Why not focus on the cause of medical malpractice cases and the conduct of those bad doctors who are driving up prices for everyone else, rather then the victims? Sounds reasonable to us.

May 21, 2009

Medical Malpractice In The Military Revisited

On March 26, 2009 we reported on the efforts of one family to have the Feres doctrine legislatively overturned.  If you recall the Feres doctrine prohibits an active member of the United States military from suing the an Army hospital for medical malpractice.  This prohibition on medical malpractice suits brought by members of the armed services has long been an unfair bar to the legitimate claims of our nation's heroes.

We are glad to announce that a House Judiciary subcommittee recently approved legislation to correct the injustice that is the Feres doctrine.  This new bill would allow servicemen and their families to hold the military accountable for medical malpractice.  The Carmelo Rodriguez Military Medical Accountability Act of 2009 is sponsored by Rep. Maurice hinchey (D-NY) and is named after serviceman Carmelo Rodriguez who died in 2007 after his cancer was misdiagnosed by military doctors.  Below is a CBS news report about the late Sgt. Rodriguez.



The full House Judiciary Committee will take the matter up in July and decide whether to present the same to congress before it can become the law.  While early on in the process, we are pleased to see the injustice of the Feres doctrine, which has been the law of the land since 1950, finally on the verge of being corrected.

April 23, 2009

Damages Caps Do Not Lower Health Care Costs For Consumers

One of the principal arguments backers of tort reform use to justify damages caps is that increased insurance premiums have an adverse effect on health care costs that are passed on to the consumer.  This argument persists in spite of the fact that there is little or no evidence that this actually occurs.  In California, for instance, caps on medical malpractice damages have been in place for more then thirty years and there has been health care savings passed on to the patient.  The Dallas Morning News is reporting this morning that tort reform is not a panacea for health care costs.

In Texas voters were convinced to amend the state constution to impose a $250,000 cap on pain and suffering damage award.  Again, caps have failed to lower health care costs.  One study, from Dartmouth College, found that health care costs actually rose 24% in the three years after tort reform damages caps were imposed.

Now researchers at the University of Alabama have analyzed health care costs in the 27 states where there is some limit on damages imposed by the legislature, otherwise known as tort reform.  They concluded that there is no correlation between tort reform damages caps and decreased costs of health care.  In fact the price of health insurance has doubled in those states with damages caps and medicare spending has increased on average nearly 5% a year.

April 20, 2009

Medical Mistakes: How The UK Is Taking Steps Toward Transparency

Sadly, medical mistakes continue to be one of the leading causes of death in the United States.  There are close to 100,000 preventable deaths a year in America making medical errors the fifth leading cause of death in our country.  A culture of shame and a lack of accountability often times prevents full disclosure of medical mistakes to the victims or their families.

In Great Britain steps are being taken at the legislative level to change the secrecy that often involves a medical mistake.  Legislation is being introduced which would make it a doctor's duty to inform the patient or his family if a medical mistake has occured.  This duty of candor will be imposed upon all health care providers and their corporate managers.



This is exciting news.  Full and honest disclosure has many benefits to both the patient's family and the medical profession in general.  By being honest and responsible those medical providers involved in the mistake can hopefully learn, and teach others, in the hopes of avoiding a tragic circumstance in the future.  Furthermore, patients and their families are often looking for an explanation to help make sense out of a senseless tragedy.  Candor will hopefully help victims achieve closure in difficult times. The video above is an excellent example of one person's story about preventable medical errors and the devastation they can cause to both the victim and the victim's family when nobody takes responsibility for a tragic unforseen and preventable medical mistake.

April 17, 2009

California Medical Malpractice Settlement Illustrates Arbitrary Nature Of Caps On Damages

Five medical malpractice cases pending in California settled this week for a sum of $1 million.  The settlements arise out of improper patient care that occured at a Northern California kidney transplant center that has been at the center of a controversy revolving around a poor record of patient care.

Federal and state investigators forced the hospital to close after the transplant waiting list grew to 1600 patients in 2006 while the center did less then 70 transplants.  It has been alleged that these transplants were either delayed or not performed due to bureacratic barriers at the the institution which caused some of the patient's conditions to decline or die before they could receive life saving treatment.

The low dollar figures in these settlements are emblematic of the unfairness caused by California's arbitrary cap on medical malpractice damages which sets the maximum compensation for these types of claims at $250,000.  This cap figure has remained unchanged since it was imposed in the 1970s.  The Supreme Court in Illinois is currently deciding the constitutionality of caps on medical malpractice awards.


April 7, 2009

Colorado Contemplating Raising Medical Malpractice Caps

Glori Anne Scott of the wrote an excellent piece in support of the Colorado Legislature's recent attempts to raise statutory caps on medical malpractice cases in that state.

Her explanation applies to counter the arguments of tort reformers everywhere.  While it will likely be a long and difficult battle to educate the Colorado legislature on the benefits of allowing a jury to fairly and accurately adjudicate medical malpractice cases on their merits without artificial limits on liability, the fact that the issue is even on the agenda is a positive steps for consumers and patients nationwide.

Here is an excerpt from her excellent piece:

MYTH #1: It is easy to file a medical malpractice suit. In fact, it is very difficult (and expensive) to file a medical malpractice lawsuit. Most attorneys will not take on a medical malpractice case unless the damages are high and the liability is clear. Even in clear-liability cases, it can be difficult to provide the required evidence to prove your claim. Additionally, your expert witnesses will, by nature, likely be other doctors. It is hard to find credible, reputable witnesses who will testify that another doctor made a mistake. If you do find a good witness, testimony and report fees for doctors can be extremely high because their time is valuable.

MYTH #2: Statutory caps prevent astronomic awards. Wrong. Juries prevent astronomic awards. Just because the caps are increased does not mean that juries will hand out money hand over fist. What the statutory caps actually do is prevent a catastrophically injured patient from recovering adequate compensation for medical bills, time lost from work, pain and suffering, disfigurement, etc. These days, many malpractice cases are actually resolved in arbitration (where a panel of arbitrators hears testimony and decides the award), but under the current statutory caps, the arbitrators deciding the case have their hands tied if they believe the victim deserves a larger award.

MYTH #3: Statutory caps are high enough already. Current statutory caps are $300,000 for non-economic losses such as pain and suffering. The previous cap was $250,000, set in 1988. It took 15 years for that amount to be adjusted for inflation to the current cap. It has been six years since the last inflation adjustment; let's not wait another 15 years. Additionally, the statutory cap on economic losses is currently $1,000,000 (though a judge has the discretion to award more). Anyone who has dealt with the medical system knows that medical bills can pile up quickly, even for a minor accident. Now imagine a health care provider's carelessness causes debilitating paraplegia, requiring 24-hour care for the rest of the patient's life. These medical costs will easily surpass the statutory cap within no time. Additionally, many assume that if they have health insurance that pays their medical bills, any settlement money goes into their pocket. However, insurance companies have right of subrogation and can recollect what they have paid out if a settlement is reached, profoundly minimizing the victim's recovery.

MYTH #4: Malpractice suits are only filed by greedy people. Many people assume that all litigation is "frivolous litigation" and insist they themselves would never file a civil suit. And then a loved one loses a baby due to a doctor's incompetence. Or a child becomes paralyzed, or even loses his life, due to a doctor's mistake. Or an "angel of death" decides to play god. All of a sudden, someone has to pay. While I would never claim that there are no frivolous lawsuits, I do believe we need an unfettered civil system within which to try claims, for those cases in which real damages are clearly the fault of another party. There are significant checks and balances within the civil system to ensure that fraudulent, excessive claims do not prevail.