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The study was based on mature claims-made manual insurance rates for $1,000,000/$3,000,000 policies covering internists, general surgeons, and OB/GYN specialties. While this may not be applicable to every specialty, it certainly is representative of a trend.

“This year was the first in recent history when the overall average rate change showed a decline,” MLM’s Michael Matray stated, as he commented on the sharp difference between this year’s rates and the 20% increase experienced by the same group in 2003. MLM claims a -4.3% decrease between 2007 and 2008, and atrtributes it to a supposed soft market in physicians’ liability insurance over the past 3 years.

Another factor suggests a different cause. The report also notes that fewer companies withdrew services from states in 2008 than in 2007. To see this as competition returning to the market may be a miscomprehension. Physicians are also finding themselves less motivated to leave for less oppressive malpractice rates as well. These two combine to suggest that perhaps the tort reform legislations enacted within several states are working. Premiums are less because malpractice claims are less. More restrictive underwriting requirements may play a part in the overall picture, but credit should be given to medical malpractice tort reforms as well.

Finally, congratulations are in order to the physicians themselves, for their part in the reduction of claims and premiums. It’s obvious that they’re paying closer attention, and their efforts are making a difference. We applaud the practitioners’ efforrts, and those of all healthcare professionals, in making medical malpractice and healthcare more affordable.

Regardless of the cause, the entire industry has cause to celebrate this reduction in medical malpractice premiums.

The basics are that a retired judge (paid,) a volunteer doctor and a volunteer lawyer form a tribunal and hear all medical malpractice cases, screening them for merit before taking up court time and money. The law was meant to eliminate frivolous suits. At first glance, its statistics of eliminating 75% of the cases brought before the tribunal would suggest that it’s pretty much in keeping with the findings of the courts, and so it has saved the court 75% of the time they would otherwise have spent weeding out unfounded cases. But that’s not the end of the story.

The plus is that if there is unanimous agreement that the case has merit, the jury of the actual trial will be told that. But because the mock trial may cost the plaintiff as much as $30,000 before the case ever even gets to a binding court, it places injured parties in a very compromised position, when they can least afford such measures. Meanwhile, lawyers who might have taken the case on speculation are now going to have to lay out $30k of their own cash to pre-trial, meaning that most such attorneys will bow out. This means that, in the vast majority of the cases, people who truly have suffered bad practice are left unable to seek compensation or recourse for their legitimate injuries.

New Hampshire isn’t the only state reconsidering such measures. Maine’s own 20-year-old statute, a similar law, has been pegged by their Supreme Court for review and opinions as well The movement to repeal the law is spearheaded by New Hampshire Rep. Robert Rowe, R-Amherst, who said “”This panel has delayed a substantial opportunity for injured citizens to have recourse through the courts.”

The young man’s father, Mahdi Al-Yami, sued on his son’s behalf, claiming that the damage done to his son’s eyes was inoperable, causing him to have to give up aspirations of attending the Military Academy and take a U.S. scholarship for Mechanical Engineering instead. A clinic in the US has diagnosed him with corneal surface distortion that cannot be corrected with eyeglasses. It should be a straightforward case, and yet Mr. Al-Yami has been trying in vain for three years, hoping to gain satisfaction from the hospital.

Mahdi Al-Yami said the hospital had no defense. Nevertheless, the judge refused to accept a US medical report stating that his son’s eyes became worse as a result of the laser surgery. Instead, he ordered the case postponed until the young man returns to Saudi when he can be examined by two doctors at the King Khaled Eye Specialist Hospital. The judge went so far as to express a preference for Saudi physicians to perform the examination. Madhi Al-Yami counters that he cannot afford to pay to have his son return from his studies in the U.S. just for that. Although it has not been stated, there’s reason to think that the Saudi hospital may not be a trustworthy second opinion.

According to Mr. Al-Yami, both the judge and the hospital acknowledge that the boy’s eyes were damaged by whatever happened during the Lasiks procedure. Nevertheless, Mr. Al-Yami informs, “The hospital’s representatives and judge replied that what has happened has happened, and that is God’s will.” This seems all the more strange in light of the fact that the hospital had promised a second surgury to resolve the problem — a procedure which never happened.

The Al-Yami family has expressed anger that their complaint against the hospital was bounced from desk to desk for three years, even though the Ministry of Health has ordered an investigation. Even at that the plight is far from over. “My son now has to use special lenses that need to be changed every 10 months, cost over $1,000 and can only be purchased in the US,” Al-Yami said, exclaiming “What will my son do when he returns as the lenses are not available in the Kingdom? After majoring in engineering, how can he work with his failing vision?”

The judge acknowledged that his son’s case constitutes medical malpractice, but has taken no action against the surgeon or facility.

Perhaps only in Saudi could one make a legal defense out of “It’s God’s will.”

The case centers around verbal and physical abuse of Catherine Skol, a former Chicago police officer and mother of five. The situation began when she went into labor at about 4 am on March 1, 2008, while her regular OB was out of town, and Scott Pierce, MD, filled in for her primary OB, Dr. Weitzner. As one reads the details of the allegations, it becomes clear that, if the accounting is accurate, Dr. Pierce should be Mister Pierce from now on. Through a series of blatantly sadistic, belittling and demeaning remarks, through insensitive conversations on the cell phone while the mother was delivering, and by not even bothering to come by to check on mother or child after delivery, behavior of this nature would earn anyone a special place in the books. But that’s not where the allegations end. According to Mr. and Mrs. Skol, Pierce refused the mother’s requests for anesthesia, demanded that she push at inappropriate times (itself a risk to both mother and baby, inserted a catheter during a contraction, demanded use of a 25 gauge needle to suture a tear in the vulva (without anesthesia) … there’s a lot more in the alleged accounting. Through the entirety of the allegations, we see a combination of both verbal and physical abuses. In the final analysis, the mother and child are both healthy, though. Can a healthcare provider be held accountable for being rude?

This case blows the concept to absurd proportions, and in the magnification it becomes clear that bedside manner is part of healthcare, and that in such extremes as described by the allegations, the physician should be culpable. What of less vulgar and dramatic circumstances, though? Is being short-tempered with a patient a form of malpractice? What about being insensitive to pain or suffering, or being cavalier in discussing another patient? (Best not to discuss other cases in the patient’s presence in any circumstance.)

Anyone can sue anyone for anything. It will be for the courts to decide (if it is allowed to get that far) whether Pierce is liable for civil damages as compensation for his behaviors. Professional credentials are at risk with this case, as well, and that, too, is for others to decide after all of the facts are found out. If this case serves no other purpose, it should remind us that healthcare providers must be on their best and most professional behaviors at all times.

Video: Which types of medical malpractice cases are most common?

A Harvard study proclaimed that physicians who use electronic health records were about 4% less likely to have a malpractice claim against them.  The immediate (and implied) conclusion was that EHRs reduced malpractice claims.  To draw that conclusion based upon that statistic is both bad science and bad journalism.  It’s just as likely that the practice’s progressive perspective towards healthcare is responsible for the lower incidence of claims, and that it would be the same with or without EHRs.  It might even theoretically have been lower without them.  So let’s not jump off presuming that EHRs will reduce incidents and premiums too quickly.

The idea of a computer as a tool is a very good thing.  It can do repetative tasks lightning-quick and avoids humans suffering some of the tediums of record-keeping.   In a perfect world, a well-designed electronic system would be as efficient as restaurants which employ similar systems for communication between the server and the kitchen.  A little touch-screen in each room and everything from health records to billing and calling for a candy-striper and a wheelchair can be accomplished in seconds via that screen.  Access to a PDR, to medical databases, etc. would also aid the physician.  But that’s still just a tool.  The idea of a computerized “virtual” physician is dangerous mojo, something that’s best left in the realm of science-fiction.

Virtual consultations are also something to think long and hard about.  The first question is whether you’d be covered by your malpractice policy in such a circumstance.  The patient isn’t necessarily even on the same continent at the time.  So many small nuances that a healthcare professional might pick up on are not apparent online, and that difference could easily lead to a misdiagnosis.  Here again, using the computers as tools for scheduling appointments, gaining data (such as a glucose record, etc.) and even programming dosage machines (in the future) may be good applications.  Remote surguries, where a full compliment of competent surgical staff is present with the patient, should something go wrong, may also be acceptable, if approved of by one’s malpractice carrier.  But diagnosing, treating, and prescribing via online consultations isn’t wise at this time. 

We all look forward to the progress and improvement that computers and their interfacing promises.  But let’s take things slowly, and make sure that we’re stepping smartly and in the right direction.  To quote Galen, Primum non nocere; First, do no harm.

Your patient may very well only be trying to get fair compensation, but the patient’s attorney is nowhere near so noble.  The attorney is out for your blood, your soul, your home, family, cars, present and future earnings, body parts and your firstborn child.  It’s not personal.  That’s his job — to be coldhearted and ruthless, to do anything and everything he can to win.  If he can trip you up, fracture your confidence, or make you look incompetent, he’s going to do so.  They train for this very thing, and then hone their techniques.

A deposition is supposed to be a fact-finding mission.  In reality, it’s often the prosecuting attorney’s practice round with you.  He’s going to try to set you up, and make statements that he can then bring up in court later.  He’s also feeling you out, finding out what makes you tick and where your buttons are at, if he can get you rattled.  No matter how cheerful you may both be during the deposition, he is the enemy.

One lawyer, in a recent article, outlined fifteen things to do to get you to slip up, to catch you off-guard.  One technique he suggested was to skip over the usual “What’s your name?” and “What are your credentials?” questions and head right to the heart of the matter.  The same attorney suggested asking nonsensical questions to tip you up, such as “Isn’t it true that you removed the wrong half of my client’s brain?”  They’re also advised to try to push your buttons during the deposition, to find out if they can get you flustered and what triggers it, so they can use that in the trial itself.  Any decent lawyer will have Googled you and found any documented skeletons you may possess.

The winning method in handling these questions is to start calm and remain so throughout the deposition.  Listen to each question, remaining cheerful as you respond to that question calmly and precisely.  If the attorney asks you about  a certain detail, answer about that detail, but offer no other information without being asked.  Don’t become argumentative or sarcastic, no matter what you see his question implying.  Stick to the question asked, and answer that specific question politely, regardless of the implication.  Remember, you had no ill intention.  The attorney is trying to find ways to get you to say you that you were negligent or irresponsible.  Don’t give him anything to work with.

Of course. your attorney should be present for any deposition, and you should not speak — on or off the record — to the patient’s attorney in any other circumstance.  If the attorney should contact you, refer him  (or her) to your attorney or insurance company, without giving any statement or reaction about the patient or case whatsoever.

The good part is that you’ve got your own attorney  who is also an experienced professional.  Your attorney will be familiar with these tactics and techniques, perhaps even a step or two ahead of the patient’s attorney.  So relax.   You’re in good hands.   When faced with a deposition, stay calm and stick to the facts, remember that you had no ill intent, follow your attorney’s instructions, and you’ll do just fine.

Consider this: In a recent case reported by the Houston Chronicle, a fatal office building fire killed three people. The cause on the death certificate was given as smoke inhalation. One of the insurance carriers, Great American, is reported to have denied the claim, saying that smoke is “pollution” and there’s an exclusion for pollution in the policy, so there is no coverage. Though the building owner openly disagreed with his insurance company, that’s the story they’re giving, and they’re sticking to it — at least for now.

Some states allow suits against the insurance company. Others, such as Oregon, only allow one to file a complaint with the state’s governing agency. In some states, that would be considered Bad Faith, and if it got to court, Illinois, for example, would hold the insurance company responsible for triple-damages. Unfortunately, it could easily take 10 years for the case to get to the courts, and such disreputable companies may try to settle on the courthouse steps, if they’re even still around.

Where does that leave you, the physician, if you feel that a patient’s claim is justified and want them to gain fair compensation for their injury? You’ve paid your premiums, so you shouldn’t have to pay the actual damages as well, yet you want to do the right thing.

Here again, your best solution is to go with top insurance companies — companies with good ratings and the assets to pay. A quality carrier is unlikely to try such a stunt. Be sure you have at least some control, some say-so in the settlement process.

Please feel free to contact Presidio. As independent insurance agents, we’re on your side. our job is to help you get the right coverage for your needs, at the best rates, from the best possible providers. We look forward to putting our expertise to work for you!

What some may not consider is that doing so may also reduce your risk of liability in Medical Malpractice significantly. The physician, RN or surgical nurse who can demonstrate that they had current knowledge and information at the time will be in the best position to defend their actions if an unfortunate event should occur, causing harm to a patient. Consider it from a jury’s perspective. If healthcare providers haven’t done anything extra to stay abreast since they entered the field, the jury can interpret this as indifference to patient welfare. If, on the other hand, that healthcare provider attends educational seminars, subscribes to publications (and demonstrates a habit of reading them, being aware of their content,) etc. this will be seen as a healthcare professional who obviously takes the job seriously and truly cares for the well-being of the patients in their charge. Obviously, this defendant is far more likely to be given the benefit of the doubt, to be seen as responsible, and to be trusted as having done the best thing possible for that patient.

Since most malpractice cases are taken on a contingency basis, the attorney who sees such credentials is far less likely to pursue a malpractice suit in the first place, knowing that it’s likely the jury will side with the well-informed healthcare provider. Your voluntary efforts at continuing your education may help you avoid being sued in the first place, and will certainly be a factor in gaining a jury’s confidence, should a case arise. You owe it to yourself (as well as your patients) to make a habit of continuing your education. The case you save…

Physicians are not gods. We’re all fallible. When something like this happens, it’s actually more of an indictment against the system than an intentional failing or incompetency on the part of the doctor or staff. When the ball gets dropped, though, it’s important to remember all the good done for all of the other patients. Healthcare providers who experience symptoms of depression should reach out to others in the field. It may surprise some to know that their peers have also felt this way at times. There are assistance programs available from professional associations. (Yes, it is common enough that such help has been established.) At least one Professional Malpractice carrier provides limited assistance on this score, because they know how hard it can be for a physician in a malpractice suit.  Get some help in dealing with it. Sometimes another angle on the situation can help put it in proper perspective.

If you’ve been named in a malpractice suit, It may be time for you to be the patient for a little while. It’s nothing to be embarrassed about. You’ve been attacked. Get some help and take a little time to recover. Above all else, remember that your family and patients need you back at 100%, back at doing what you’ve done so well for so many others, and will soon be back to doing again.