By Jo Mathis and Tom Gantert, Legal News
At a time when medical malpractice claims in the state have dramatically decreased and Michigan has among the lowest average claim payments in the U.S., proposed tort reform would make it even tougher for lawyers trying medical malpractice cases, attorneys say.
“It would destroy malpractice cases in Michigan,” said Stephen Goethel, an Ann Arbor personal injury lawyer.
Any day now, the Michigan Senate could vote on a package of bills called the “Patients First Reform Package” that looks at some of the technical issues involved in medical malpractice. The bills would further reduce the amount of damages recoverable and expand the types of damages subjected to the cap.
People are up in arms about this because the state has already imposed some of the strictest medical malpractice tort in the U.S., said Tim Diemer, President, Michigan Defense Trial Counsel.
He explained that legislation in 1993 already enacted a number of tort reform measures that have greatly reduced the number of medical malpractice filings.
“If the goal of these initial reforms was to curb lawsuit abuse and reduce frivolous lawsuits, they were certainly effective,” he said. “The intense public opposition to yet another round of reform measures is largely because of the drastic reduction in medical malpractice filings that has already occurred.”
A substantial component of the initial reforms was to mandate a series of pre-suit procedural requirements a plaintiff’s lawyer must complete before the complaint can be filed, he explained.
These initial requirements include providing the targeted hospital or doctor with a statutorily required notice of intent to sue and preparation of affidavits of merit, which require consultation with expert witnesses who must attest that the medical malpractice case is valid.
“This is an expensive and time consuming process,” Diemer said. “As a result, it is difficult for lawyers to successfully pursue any cases other than those that have the potential of a large jury verdict given the expensive, up front costs associated with even bringing suit in the first place.”
According to Goethel, the most potentially damaging bill in the package would virtually eliminate most malpractice cases by creating a physician judgment defense that would require a judge to dismiss a case if the doctor testified that he or she exercised their professional judgment in providing care.
“The doctors who are sponsoring this say it isn’t intended to prevent legitimate cases from being brought, but is intended to level the playing field so that doctors are treated the same as lawyers,” he said. “But that’s ridiculous. The doctors are trying to create a standard just for them that would allow their subjective belief that they were trying to do the right thing for the patient. And if they can demonstrate that, the judge would be required to throw their case out, regardless of whether or not they met an objective standard of care.”
Before tort reform in 1993, Goethel would accept about one in 20 cases. Now, it’s more like one in 200, he said.
He said it bothers him to have to turn down so many who have suffered injuries, but the law has made it too expensive to try these cases.
Diemer said only “major, major injuries” end up in lawsuits. “It’s tough to bring a medical malpractice suit in this state,” he said, adding that state cap limits mean awards are among the lowest in the country.
Goethel said the cap on non-economic damages—pain and suffering—that can be awarded is set at $424,800 in Michigan. (For extreme circumstances, such as significant brain injuries, the cap is raised to $758,500, and caps are adjusted for inflation.)
Ypsilanti lawyer Andrew Muth said the bills as proposed would confer virtual immunity for doctors whose mistakes cause serious injury.
“These provisions...could make Michigan a dumping ground for physicians who have lost privileges or the right to practice in other states, or whose malpractice history makes them uninsurable in other states,” he said. “With virtual immunity here, they could move here and continue with substandard medical practice and with no protection for patients.”
He said the package is being pushed by the Michigan State Medical Society and is not supported by major hospitals in Michigan, including the University of Michigan.
On its website promoting the reform package, the MSMS says that “studies project that by 2020 the state of Michigan will have a physician shortage of over 4,500 doctors in fields like pediatrics, family practice and general and internal medicine.”
But Muth said the bills would not increase patients access to medical care, as there is no statistical evidence that Michigan physicians are leaving the state due to malpractice premiums.
“The bills are solutions in search of problems to justify the extreme measures being proposed,” he said, “and Michigan would the first in the United States to adopt them.”
Goethel said those physician shortages are a national trend, and have nothing to do with malpractice.
“There hasn’t been one single person who has come forward to testify how access to medical care in Michigan has been affected by too many medical malpractice lawsuits in Michigan,” he said.
According to Statehealth facts.org, Michigan’s average claim payment rose to $181,198 in 2011, the 7th lowest in the country.
“I don’t believe that there should be any limits,” Goethel said. “[V]ictims of malpractice can end up with the most horrific things happening to them.”
Darren McKinney is a spokesman for the American Tort Reform Association in Washington D.C. which tries to reform ‘lawsuit abuse.’
“Michigan’s existing medical liability law is certainly solid, from a tort reformer’s perspective, but I would not join trial lawyers there in describing it as ‘among the most restrictive in the country,’ “ McKinney wrote in an e-mail. “Any number of states have more comprehensive limits on medical liability, but passage of the bills Michigan lawmakers are now considering would put your state among the most reform-minded. Of course, passage would positively affect health care accessibility and costs.., so only personal injury lawyers and the self-described patients advocates they bankroll are likely to object.”
But Goethel called the American Tort Reform Association’s stance “dishonest.”
“Over the last ten years the number of medical malpractice cases filed has dropped by some 80 percent,” he said. “In 2010, a total of just 808 cases were filed. Saying these proposed laws are about putting patients first or would somehow help to improve healthcare for Michigan citizens is simply dishonest. The proposed laws are truly about taking away patient rights, not protecting them.”
Jackson lawyer Janet Hamilton, a personal injury lawyer, finds that many clients assume if they were injured through the negligence of a business or wealthy individual, their recovery will automatically exceed a million dollars.
She said that’s because they are not aware of the state’s cap on non-economic damages, and other restrictions imposed by tort reform.
“Case evaluation is an extremely complex process, and sometimes, a minuscule detail in the circumstances has a dramatic effect on the amount recoverable,” she stated. “Preconceived notions from the days before economic caps sometimes make clients reluctant to accept a settlement recommendation of $250,000 for what they believe is a million-dollar case. They believe what they see in the television advertisements, which can be very misleading.”
The bills would still need to be passed by the House and then signed by the governor to become law.
Goethel said he’s been pleased to see so many people speaking in opposition to the bills at Lansing hearings.
“They haven’t been able to exhaust the legions of people who have turned out to speak. The Senate could vote any time, but they are allowing the people to speak.”
Norm Tucker, a birth trauma lawyer in Southfield, says the problem with the Patients First bill is that it puts patients dead last. “This elixir of bills is nothing but a physician’s placebo to make doctors feel better because they can’t be sued, but does nothing to solve the real disease—patient safety,” he said, noting that when doctors are held less accountable, “irresponsible conduct will result.”
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