Monday, October 08, 2007

Some Validation On Med-Mal Arguments?

The Cook County judge considering the medical malpractice case against Gottlieb Memorial Hospital (LeBron vs. Gottlieb Memorial Hospital, et al.) (Cook County: 06 L 12109) is not likely to be paying attention to news stories concerning other medical malpractice, cases nor cases involving medical malpractice reform.

And Judge Diane Joan Larsen has enough to consider, without being influenced by news items.

But within the past week, there have been two significant news stories that validate the arguments that many advocates of medical malpractice reform have been making.

A major story in last Friday's New York Times discusses the increase in the number of doctors moving to Texas following voter approval of a constitutional amendment limiting awards in medical malpractice lawsuits.

From the news story:

Four years after Texas voters approved a constitutional amendment limiting awards in medical malpractice lawsuits, doctors are responding as supporters predicted, arriving from all parts of the country to swell the ranks of specialists at Texas hospitals and bring professional health care to some long-underserved rural areas.

The influx, raising the state’s abysmally low ranking in physicians per capita, has flooded the medical board’s offices in Austin with applications for licenses, close to 2,500 at last count.

“It was hard to believe at first; we thought it was a spike,” said Dr. Donald W. Patrick, executive director of the medical board and a neurosurgeon and lawyer. But Dr. Patrick said the trend — licenses up 18 percent since 2003, when the damage caps were enacted — has held, with an even sharper jump of 30 percent in the last fiscal year, compared with the year before.

“Doctors are coming to Texas because they sense a friendlier malpractice climate,” he said.
The medical malpractice law enacted in Illinois in 2005 was partly in reaction to the decline in the number of physicians practicing in some areas of Illinois, particularly in Southern Illinois, and the reduction in availability of some high-risk medical care, including obstetrical and neurological care.

(Opponents of the med-mal law claimed that the number of physicians registered in Illinois has actually been increasing. That may be true but just as the lawyers who are registered in Illinois may not actually be practicing law, physicians who are registered may not be practicing medicine, or practicing exactly as they did years ago.)

Legislators throughout Illinois, particularly in rural areas and particularly in Southern Illinois, voted in favor of the reform legislation in 2005 without regard to political party. They did vote with regard to their constituents who were concerned with lessening access to health care.

There is no doubt that if Illinois voters had the same opportunity that Texas voters had, i.e. to enact a constitutional amendment to limit the size of medical malpractice awards, they would have done so.

But they did not have that opportunity so they now must wait for the Illinois court system to determine if the 2005 law passes constitutional muster. The Cook County case referenced above (LeBron vs. Gottlieb Memorial Hospital) is considered the defining case and some of the most prominent Illinois personal injury trial lawyers are involved.

A second news item last week mentioned one of the prominent Illinois personal injury lawyers who is not involved in the "LeBron" case but who is viewed as one of the state's top medical malpractice lawyers and one of the strongest opponents and harshest critics of the 2005 law.

Keith Hebeisen of Clifford Law Offices is a former president of the Illinois Trial Lawyers Association and is considered an expert on medical malpractice litigation.

Last Thursday's Chicago Daily Law Bulletin reported on a DuPage County medical malpractice case in which the verdict was $12 million in favor of the plaintiff, a boy who suffered brain damage at birth.

Hebeisen represented the boy's family, according to the news item, was the attorney for the boy's family. Of the $12 million, $1.5 million was for "non-economic" damages. The injury happened in 1999, before the Illinois law capping "non-economic" damages was in effect.

The $10.5 in "economic" damages is to provide for the boy's care for the rest of his life.

Hebeisen's comments in the Law Bulletin seem to validate the common perception of plaintiffs' attorneys: that it's all about the money.

From the news story:
"I've been told repeatedly,'' Hebeisen said, ''that you can't get a verdict that high in DuPage County in a malpractice case. People have been saying that for years, and it's obviously not true.

''I think some day there will be a verdict out there that will be substantially higher than this one. There is this myth or legend [that] because that jurisdiction is so conservative, it's impossible to get a verdict over the previous record no matter what the case is about. This proves that the myth and legend is false,'' Hebeisen said.
In fairness to Keith Hebeisen, whom we have known for more than a dozen years and who seems to be a decent person and certainly is an effective trial lawyer, the quote from the Law Bulletin may not be all he said. It is all that was quoted, however.

Hebeisen does comment on the injuries to the child on the Clifford Law Offices website but the most evident message on that site and in Hebeisen's comment is that it's all about the money.

New York Times Article (PDF).
Chicago Daily Law Bulletin Article (PDF).
Clifford Law Offices

-- Ed Murnane
Illinois Civil Justice League
October 8, 2007

10 comments:

me 12:26 PM  

Mr. Murnane writes: "Hebeisen's comments in the Law Bulletin seem to validate the common perception of plaintiffs' attorneys: that it's all about the money."

...Um, yes, it costs money to care for a kid after a doctor's malpractice causes brain damage so early in life.

$10.5 million actually sounds low. What sort of quality of life is that child going to have growing up?

Only $1.5 million was for non-economic damages -- ie, the doctor was punished to the tune of $1.5 million. In the scheme of things, compared to how much such doctors and their practices and hospitals earn, that's a small "fine" to pay -- it might sting, but no more than a $250 speeding ticket for an everyday citizen might sting.

That said, why do you advocate letting doctors not being held accountable for their actions?

Anonymous,  12:29 PM  

That damn DuPage county is a judicial hellhole. It should be number one on the list next time.

Anonymous,  3:54 PM  

"There is no doubt that if Illinois voters had the same opportunity that Texas voters had, i.e. to enact a constitutional amendment to limit the size of medical malpractice awards, they would have done so. "

No doubt? I have no doubt that Ed believes this, but I do doubt that it's true.

Anonymous,  4:27 PM  

Welcome to the USA.

It turns out there are O.J. juries everywhere.

When you consider the premier newsworthy case of Governor Ryan and the number of jurors who lied to the court, why should these runaway juries come as a surprise.

On many of these outlandish verdicts, if anyone bothered to check, they'd find that the jurors were probably "exemption proof", meaning they don't even have any assets that a creditor can collect.

To them, a thousand dollars, a million dollars, it's all the same.

It's not their money.

It would also be interesting to find out how many of these jurors actually pay for their own health costs.

Odds are most of them are on some kind of government health program.

They saddle the hard working people with ever larger insurance premiums.

They're so dense they don't even know what mischief they're causing.

Of course, the way the system is set up, neither the Defendants nor the Judge can tell them the consequences of their verdicts.

me 5:46 PM  

Anon 4:27 --

The kid didn't ask for the brain damage. The doctor screwed up his brain.

Not to make light of it, but what you're implying (that a "runaway" jury just went after the hospital and doctor for their money) is akin to having McDonald's screw up your order and you go in and say "Sorry, I messed up when I ordered so you gave me the wrong food. Here's all the food back. Want me to clean your toilets while I'm here?"

...The jury gave the family $1.5 mil in punitive damages. The kid has brain damage. The punitive damages are meant to encourage that doctor to not give other kids brain damage.

And the other $10.5 mil was to cover the kids' medical expenses for the rest of his life. If you ask me, that sounds darn low. Average American male life expectancy is 75 years. That's only $140,000 per year to care for his brain damaged self ... and those medical costs are only going to go up.

Talk about "conservatives without conscience".

Yellow Dog Democrat 5:52 PM  

yeah, here's another story folks should think about when considering whether or not medical malpractice damages should be capped:

More charges of abuse against Berwyn doctor

"As a result of the media coverage of this incident last week, additional victims have come forward. We've had over 25 victims come forward," said Berwyn Police Department Chief William Kushner. "As a matter of fact more have come forward almost every hour."

Kushner says complaints against Arze go back years; some filed when he practiced in other suburbs. He says more charges could be filed against the doctor as those additional victims come forward.


Thanks to all of your hard work capping emotional damages, Ed, it looks like those 25 victims...and counting...will never have the chance to tell their story to a jury.

Absent economic damages (like psychiatric bills or lost work time), how do they find a lawyer to take their case when the most an attorney can hope to earn is $166,000 for years of work?

Perhaps the ICJL will take their case for free?

Yellow Dog Democrat 6:24 PM  

Rob -

Ironically, the doctor's insurance company isn't on the hook for 75 years.

They get to present evidence in court that, thanks to the brain damage they caused, the kid won't live that long.

Rewarding insurance companies for shortening your life makes as much sense as caps.

Anonymous,  6:27 PM  

In DuPage county I believe the jurors know the diferenece between a thousand and a million. And which OJ jury do you have issue with; the criminal jury that found him innocent or the civil jury that got him for 30 Mill?

Anonymous,  6:41 PM  

In the US if you become disabled, the United States Government steps in to help you usually through some type of state Medicaid program.

Today, we have nurses full time with with disabled children in their classrooms and at home 24/7 to attend to their needs all at taxpayer expense.

If the Plaintiff needed it, he would get 24 hour nursing care at govenment expense without a lawsuit.

Agreed that a doctor who is negligent on a consistent basis should lose his license and maybe even be personally liable to a large degree.

By the way, $10,000,000 at 7% interest would give the kid $700,000 a year without dipping into the principal.

Because the med mal recoveries are
all based on a crap shoot and many worthy plaintiffs get nothing, it needs to be made into a no-fault system, with everybody getting something.

If all the doctors have to pay into a pool, it wouldn't take them long to weed out the ones who were costing them.

me 12:07 AM  

Yes Anon 6:41, because all those conservatives without conscience have seen to it that the government care provided to such folks is the absolute best in the world.... not.

Your conservative allies, Anon, are working to ensure that not only would any such 24 hour care be taken away ('We're supposed to give 24 hour care to people we don't know? How can we afford that and why should we even care about those poor schlubs anyway?' they say) but that same set of folks will also work to tar and feather anybody that should dare insinuate such care is in any way helpful in the first place -- going so far as to stalk the people with whom they disagree.

Some friends you've chosen there Anon. Don't let them stab you in the back too.

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