A report which will be published in May in the Michigan Law Review.confirms what most tort law practitioners have long recognized: the defense has a strong advantage in medical malpractice trials.

Philip Peters Jr., of the University of Missouri-Columbia School of Law, concluded that juries treat doctors favorably, "perhaps unfairly so," and are more likely than even fellow physicians to defer to a doctor’s opinion. Peters found that most malpractice suits end in defense verdicts, and that the cases that go to trial tend to be the weakest ones, since those with strong evidence usually settle before trial.In an examination of win rates, Peters found that 27 percent to 30 percent of filed medical malpractice suits end in a plaintiff’s verdict, the lowest success rate of any type of tort litigation.

In the study, jurors found in favor of physicians significantly more often than independent reviewing physicians would have.  The study asked independent physicians to evaluate incoming claims and rate them as defensible, indefensible or unclear. Plaintiffs won 21 percent of those cases rated as defensible, 30 percent of those rated unclear and 42 percent of those rated indefensible. Thus, plaintiff wins were in the minority even in the most meritorious cases.

Frankly, I wouldn’t think the plaintiff’s win rate is as high in Georgia as the 27 – 30% rate cited in the study.  For years I have heard that the defense wins 80% of medical malpractice trials in Georgia, and have seen no data to the contradict that.

"Both piecemeal reforms and more fundamental alternatives to malpractice litigation should not be driven by the mistaken assumption that juries treat physicians unfairly," Peters wrote. "Although the current system of resolving malpractice claims has many shortcomings, neither randomness nor favoritism toward injured patients is among them."

A new study reports that surgeons who play video games at least three hours per week made about 37 percent fewer mistakes in laparoscopic surgery and performed the task 27 percent faster than their counterparts who did not play video games.Laparoscopic surgery — using a tiny camera and instruments controlled by joysticks outside the body — is performed on just about any part of the body, from an appendix to the colon and gall bladder. Kurt Squire, a University of Wisconsin researcher of video game effects on learning, said that "with a video game, you can definitely develop timing and a sense of touch, as well as a very intuitive feel for manipulating devices."

I expect smart kids will start responding to parents’ complaints about excessive video gaming by saying they are just preparing for careers as surgeons. Whatever.

Kudos to State Rep. Robert Mumford (R-Conyers) who on Tuesday introduced the Medical Malpractice Insurance Reform Act  . The bill wouldrequire the Insurance Commissioner to hold medical malpractice insurers tothe same rate-filing standards that auto and homeowner insurers have to meet.
"We need to do everything we can to make sure people are able to get affordable health care," said state Rep. Robert Mumford, R-Conyers. "In my view, tort reform has not produced the results it advertised."
An Associated Press analysis of state insurance records last year revealed six of the state’s top insurers of doctors and dentists have increased their liability rates _ in some cases by more than a third _ since new restrictions on malpractice cases became law in February 2005.
Supporters of Mumford’s measure point to California as an example of how theslight change could ultimately decrease medical malpractice rates. Three years after the state approved a similar measure, the malpractice premiums declined by 3 percent, according to Georgia Watch, a consumer advocacy group.


Currently, most insurers have to get a rate increase approved by the Commissioner before they raise premiums on consumers. But medical malpractice insurers aren’t held to the same standard. An insurer can "file and use" the higher rate immediately, even if the Insurance Commissioner has not yet reviewed the request. Rep. Mumford’s bill would require "prior
approval" for malpractice insurers. It would also require public hearings on any rate increase over 10 percent, so that doctors could voice their opinion about costly insurance. Finally, the bill would give Georgians more information about what’s behind high rates by requiring malpractice insurers to file information with the Insurance Commissioner about their claims
experience and what claims they have paid. This information would then be turned into an annual report and made available to the public.
Two years ago, when we were trying to tell legislators that doctors needed insurance reform more than a "one size fits all" cap on damages, the legislative leadership didn’t want to slow down the train long enough to consider what might really work in holding down medical malpractice insurance premiums.  We tried to tell them that the legislation that contained premiums in California wasn’t the damages cap but the later enactment of insurance reform, but of course they didn’t want to listen.

These sorts of changes are sorely needed in the medical liability insurance market, which is dominated by one organization (MAGMutual). Despite a lack of understanding about what was causing high medical malpractice insurance rates, Georgia enacted tort "reform" in 2005. But

since Georgia passe the bill, doctors haven’t seen rates go down. In fact,some companies have actually raised their rates.

Today’s Washington Post includes an article about a case arising from  the death of a college freshman under the care of poorly supervised, overworked and highly fatigued young doctors. The resulting malpractice litigation set in motion a series of reforms, most notably a series of work hour limitations instituted by the Accreditation Council on Graduate Medical Education (ACGME), that have revolutionized modern medical education.  The result will likely save countless lives by making the clinical training of young doctors less of an exercise in hazing and sleep deprivation which leads inevitably to gross errors of judgment.

Yet another state Supreme Court has held that an arbitrary cap on damages violates the state constitution. 

In Arrinton v. ER Physicians Group, APMC, the Louisiana Third Circuit Court of Appeals has held that a $500,000.00 cap on medical malpractice damages was unconstitutional as failing to provide the plaintiffs an adequate remedy” as guaranteed under the provisions of La.Const. art. 1, § 22. The court cited a long list of cases in other states holding such caps unconstitutional under state constitutional provisions.

In Georgia, the tort reform lobbyists won passage in 2005 of a $350,000 cap on noneconomic damages in medical malpractice cases. They won with illusory promises that doctors’ malpractice insurance premiums would go down.  The only way premiums will go down is if the legialature passes a law requiring disclosure of insurance company finances and underwriting.

Meanwhile, the folks who hate the civil justice system and can’t stand the idea of little guys having access to justice continue to organize well-funded campaigns to pick off state Supreme Court justice around the country and intimidate the rest of our judges. See Justice for Sale in West Virginia?  In Georgia, we see that in the campaign of Mike Wiggins, who was an associate at two large law firms and a political appointee.  He has never tried a case in a trial court and never argued a case in a Georgia appellate court. However, despite a complete lack of courroom experience, he is waging a campaign with virtually  unlimited  corporate funding to unseat Justice Carol Hunstein.  He apparently picked her because she is "vulnerable," e.g., a one-legged, non-politcal woman judge with a Jewish sounding name.

I certainly have some sympathy for my doctor friends and businessman friends who feel vulnerable in the court system.  However, the answer is not to impose a one-size-fits-all cap on damages, to abrogate state or federal constitutional law, or to terrorize independent, impartial, nonpartisan judges.  Remember, my friends in the business and medical communities, while you may think you are more likely to become a defendant, the reality is that you or a family member may just as likely become a victim of a grievous injury.  If you take away the civil justice system today, it won’t be there for your family tomorrow.

When the Georgia General Assembly passed Senate Bill 3 — the "tort reform" conglomeration — in February 2005, most of the legislators hadn’t even read the entire bill, most of its provisions were not discussed in any detail, and hardly anyone understood it. To say it had a lot of poor draftsmanship is an understatement.  I heard one prominent Republican legislator privately describe it has having been "written with a crayon."  Since then bits and peices of the legislation have been been held unconstitutional by trial or appellate courts, and more likely meet the same fate.  Increasingly, I hear legislators who voted for it in the rush of the moment saying things like, "we went too far," "we didn’t understand what was in the bill," etc. 

It will take a few years, but I predict that the problems with the bill will be largely repaired.  A cap on noneconomic damages in medical malpractice cases will likely remain, as the political support for it in the medical community is mighty strong.  However, as in California after it adopted such a cap in the 1970’s, we may see a requirement for financial disclosure by insurance companies to support premium rate increases.

Likewise, the replacement of "joint and several liability" with "proportional liability" will be politically difficult to change.  However, if the problems with the new rule are explained to legislators, perhaps there could be some modification.

The Daubert rule on expert testimony is here to stay, but the version of it in the State Bar’s proposed new Georgia Evidence Code makes more sense, both procedurally and substantively, than the self-contradictory scissors and paste job in S.B. 3.

The offer of judgment rule in S.B. 3 is such a miscarriage that I hardly ever hear of anyone actually using it.  I know that most of the insurance companies are afraid to use it in significant cases out of concern that it will be they rather than the plaintiffs who it will hurt.  It may take a couple of years, but I expect that a more sensible and workable version of the offer of judgment rule will be passed.

A lot of the other stuff that was included in S.B. 3 will bite the dust over the next couple of years.

Hospital-acquired infections are a major concern in healthcare facilities, affecting at least 2 million patients annually and resulting in extended durations of care and substantial morbidity. Such infections are estimated to cause or contribute to 88,000 deaths annually in the US, as well as requiring nearly $5 billion in treatment costs. The incidence of infections in acute care facilities is about 9.8 infections per 1,000 patient care days and in long-term care facilities, approximately 7.2 infections per 1,000 resident care days. Maximizing Hand-Hygiene Compliance to Improve Outcomes: A New Tool for Infection Control

Last month I had occasion to spend a couple of weeks in and around Massachusetts General Hospital in Boston, where my daughter was a patient. As a teaching hospital of Harvard Medical School, Mass General has always been a leader in setting the highest standard of care in medical practice.
One simple thing I observed struck me as different from many other hospitals I have visited. Outside the door of every patient room, and at every entrance to a patient floor, there was a conveniently located dispenser of hand sanitizer. Every time a doctor or nurse entered my daughter’s room, they were rubbing hand sanitizer on their hands. After surgery, prophylactic antibiotics were prescribed for a period of time after discharge.
In most hospitals I have visited, if there is a hand sanitizer dispenser available it tends to be mounted by a sink in the patient’s room and seldom used. My daughter went from Mass General to another hospital in another state for another surgery. I don’t intend to pursue it or go to the trouble to closely analyze it, but I did note that the degree of fanatical attention to infection prevention we saw at Mass General was not followed at the second hospital. A few days after the second surgery she did get a staph infection and an epidural abscess in the incision site of the first surgery.
A lot of doctors consider hospital acquired infections, such as staph infections, unavoidable risks of any hospitalization. Some think prevention is attainable.
Those Harvard doctors are pretty smart. It would be interesting to compare the infection complication rates at Mass General with that of other hospitals where those rigid precautions are not followed.
The Centers for Disease Control Guideline for Hand Hygiene in Healthcare Settings says that “If hands are not visibly soiled, caregivers should use an alcohol-based waterless antiseptic agent for routinely decontaminating hands.” That’s what they do at Mass General, and it’s what I’m doing now at home in changing my daughter’s IV pump every day, whether the nurses tell us to or not.

The Georgia Court of Appeals has held that an anesthesiologist committed negligence per se by allowing nurses who did not have advanced skills or training to administer narcotics to patients without consulting with a physician prior to administration in violation of O.C.G.A. § 43-34-26.1. See Groover v. Johnston, below.

Georgia law requires an affidavit from a qualified expert in order to file a medical malpractice case, and has stringent requirements for qualifications of such experts. It is virtually impossible to get a qualified expert within the state, so lawyers handling such cases generally start with the assumption that they will have to go out of state to find an expert willing to testify. Now, medical specialty boards are taking action to discipline and intimidate doctors who dare to testify against other doctors. While there may be extreme situations in which a professional organization would be justified in disciplining a member who gives completely off-the-wall testimony about malpractice, the potential for abuse is obvious. If an expert witness within an area of practice is required to make a case, and the professional organizations within the area of practice intimidate their members from providing truthful and accurate testimony, then the injured patient is denied access to justice in even the most meritorious cases.

This year the Georgia General Assembly adopted a $350,000 cap on noneconomic damages in medical malpractice cases. Noneconomic damages include physical and mental pain and suffering, permanent impairment, intangible value of life in a wrongful death case, etc. Today the Supreme Court of Wisconsin released a decision holding a similar Wisconsin statute unconstitutional, as there is no objectively rational basis for the cap. The full text of the decison appears below. Key quotes:
“Based on the available evidence, we cannot conclude that a $350,000 cap on noneconomic damages is rationally related to the objective of ensuring quality health care by creating an environment that health care providers are likely to move into, or less likely to move out of, in Wisconsin. The available evidence indicates that health care providers do not decide to practice in a particular state based on the state’s cap on noneconomic damages.”
“The evidence does not suggest that a $350,000 cap on noneconomic damages is rationally related to the objective of ensuring quality health care by preventing doctors from practicing defensive medicine. We agree with the non-partisan Congressional Budget Office’s finding that evidence of the effects of defensive medicine was ‘weak or inconclusive.’”
“The court must presume that the legislature’s judgment was sound and look for support for the legislative act. But the court cannot accept rationales so broad and speculative that they justify any enactment. ‘[W]hile the connection between means and ends need not be precise, it, at least, must have some objective basis.’”
The rationale used by the Wisconsin Supreme Court would appear fully applicable in Georgia. We have some strong, principled Supreme Court justices in Georgia. Whether a majority of them will have the political courage to make such a forthright and sensible decision remains to be seen. But since Governor Perdue’s House floor leader made an impassioned speech about the unconstitutionality of the cap, maybe we shouldn’t expect the worst even from Gov. Perdue’s recent appointee to the Supreme Court.