I’m announcing the launch of a new attorney web resource for Plaintiff’s Attorneys only. It is called MOPAO (Missouri Plaintiff’s Attorneys Only). Membership is strictly moderated and is open to Missouri attorneys who represent only plaintiffs in the personal injury and medical malpractice arena. Absolutely no memberships will be granted to any attorney who is a member of any defense firm. The goal of the list serve is to give a private and secure environment for open discussions and exchanges of information.If you are a 100% plaintiff’s only firm or solo, you may request membership by sending an e-mail to MOPAO. I look forward to your requests.Todd N. Hendrickson, Moderator–MOPAO

In a companion post, I noted that medical malpractice is costing Medicare billions of dollars-Medicare Study: Medical Malpractice Costing U.S. Government Billions. This study shows that medical negligence cost Medicare nearly 9 billion dollars between 2004 and 2006. Since this study looked only at Medicare patients, it doesn’t take into account Medicaid patients. It’s certainly reasonable to believe that the rate of incidents is similar and the federal government is spending billions more dollars to treat those victims of medical negligence.So what does this have to do with “tort reform?” To answer that question, you have to know how Medicare and Medicaid work. These government programs have so-called “super liens” against any settlement or judgment obtained against a negligent health care provider. A lien means that the government gets reimbursed for what it paid out in medical claims to treat the injuries caused by negligence. In effect, when an attorney takes a Medicare or Medicaid patient as a client, he is working for the taxpayers too.So how does “tort reform” interfere with this process? Most “tort reform” provisions seek to reduce the amount an injured party can recover from a negligent doctor or hospital. By reducing the amount of the recovery, they reduce the amount available to repay the taxpayers. Also, these “tort reform” laws tend to disproportionately affect the elderly and the poor–exactly those persons served by Medicare and Medicaid? Why does tort reform disproportionately affect the elderly and the poor, as well as children and woman who don’t work outside the home? Because arbitrary limits on non-economic damage awards, often called “caps,” fall hardest on these people. The poor, the elderly and the young cannot usually demonstrate significant lost income as a result of medical negligence. Past and future lost income, along with past and future medical expenses, are the cornerstone economic damages in a medical malpractice case. If lost income is out of the equation, those injured as a result of medical negligence are left with damages consisting of medical expenses and non-economic damages, sometimes called “pain and suffering.” When the pain and suffering damages are capped, the award is artificially reduced. With a cap, even if a jury decides that, for example, a surgeon who removes the wrong leg in a surgery, should pay One Million Dollars in pain and suffering damages, a judge is required by law to reduce that award to the capped level, no matter what the circumstances.And the lower the overall recovery, the less money is available to satisfy the federal Medicare and Medicaid liens. The less money available, the less Medicare and Medicaid get back. If the potential recovery is so restricted by caps that the case is no longer economically viable, then the case won’t be filed and Medicare and Medicaid will recover nothing. And then you and I, the taxpayers, will bear the ultimate burden of the medical negligence–not through increased medical costs, as the medical and insurance lobby would have you believe, but by paying the bills of those doctors and hospitals who caused the injury through their negligence.

The federal government has released the result of a study which shows that “patient safety errors” resulted in 238,337 potentially preventable deaths. The cost to the taxpayers? Nearly 9 billion dollars. The study covered the period from 2004 through 2006.The study reviewed the medical records of 41 million Medicare patients. It found that the overall error rate was 3%, meaning that 1 out of every 33 Medicare patients was the victim of medical malpractice. The error rate in smaller community and rural hospitals was significantly higher than that of top performing medical centers, normally found in cities and associated with medical schools and universities.

Patients who experienced medical negligence were 20% more likely to die as a result of the negligence

Incidents of post-operative respiratory failure, pulmonary embolism and sepsis increased

Bed sores, post-op respiratory failure and “failure to rescue” were the most common incidents of medical negligence

Keep in mind that these dramatic numbers–238,337 preventable deaths are not indicative of the rate of medical malpractice in the entire country. This study looked at the records of Medicare patients, a small percentage of the population. Undoubtedly, the death rate and cost, in terms of health care dollars spent in treating victims of medical malpractice, is several times larger.Starting October 1st, Medicare and Medicaid will stop paying for treatment for eight common preventable errors, such as instruments left in the body during surgery, wrong site surgery and certain kinds of post-surgical infections.

Imagine this scenario: You walk into your doctor’s office for a routine exam. You are handed a stack of papers to fill out. Nothing unusual, right? Wrong! Included in that stack is a legal document stating that you agree to give up your right to file a lawsuit if the doctor is negligent and, instead, you agree to binding arbitration. This couldn’t happen in America, right? Wrong.As reported recently in the St. Petersberg Times, an increasing number of doctors, particularly obstetricians, are requiring their patients to sign binding arbitration agreements or they will simply refuse to treat them.You don’t go into a doctor’s office and expect to be making legal decisions, you expect treatment from a compassionate, caring, skilled and ethical physician. If your physician is trying to get you to waive your rights, before you or they know if anything has occurred, and without consulting an attorney, then that physician is not ethical. Patients have a constitutional right to seek redress for injuries caused by negligence.If you are faced with one of these waivers, I suggest you politely ask the doctor to guarantee, in writing, that he will not be negligent in his treatment of you. If he won’t do that, then you shouldn’t agree to arbitration.

A Missouri medical insurer has announced that it will no longer pay hospitals for certain types of medical errors, such as performing surgery on the wrong part of the body or leaving objects in the patient after surgery. This new policy has been reported in the St. Louis Post Dispatch and Forbes.By setting this policy, Anthem Blue Cross Blue Shield has effectively declared that certain occurrence, which they refer to as adverse events, are clearly the result of medical malpractice and that they, the insurer, shouldn’t have to pay for that malpractice. Included in the list of adverse events is:

Wrong site surgery

Surgery performed on the wrong patient

Air embolism or blockage

Blood incompatibility

Decubitus (pressure) ulcers, otherwise known as bed sores

Fractures, burns, crush injuries and other injuries caused by falls or drops in the hospital

and others

While this may seem like a good idea for the insurer, the question for patients who have been the victim of such medical negligence, is: “If my insurer doesn’t pay, then who will?” In nearly twenty years of representing victims ofmedical malpractice, I can confirm that the list above covers a good portion of the common types of medical malpractice cases prosecuted. However, in nearly every case, the doctors and hospitals have defended cases that arise from these types of mistakes, and have defended them vigorously. If the medical insurer doesn’t pay, the patients, will be dealing not only with the problems created by the mistake, but by the bills generated by those mistakes. And often, the doctor or hospital who caused the mistake, is only the first in a long line of treaters who will work to try to correct the mistake. After a severe medical mistake, patients will often (and correctly so) seek treatment from a different doctor or hospital to diagnose and treat the injuries resulting from the medical malpractice. Those secondary treaters haven’t done anything wrong, and the patient needs the treatment. If Anthem Blue Cross Blue Shield refuses to pay those secondary health care providers, the victims of medical malpractice will be victimized again, and again.While the attempt to improve patient safety is certainly laudable, this may not be the best course for the patient. The risk of causing more harm to those already harmed by clear malpractice is simply too great.

In twenty years of practicing law, I’ve learned that most people do not understand their auto insurance coverage. This short article is an attempt to clarify some basic auto insurance issues.There are two types of auto insurance coverage that are mandated by Missouri law: Liability and Uninsured Motorist. Liability insurance is to protect any person who you may injure or who’s property you may damage from your negligence. Uninsured Motorist coverage is to protect you in the event that someone without insurance injures you or damages your property. Between the two mandated coverages, the victim of negligence will likely be covered by some form of insurance.The other common form of auto insurance is commonly referred to as “full coverage.” Full coverage is simply shorthand for having insurance coverage for damage to your vehicle, regardless of who is at fault. Even if you, the insured, cause an accident, with full coverage your vehicle damage will be repaired.Less common forms of insurance coverage are probably the least expensive and most beneficial to you in the event you are injured in an accident. Medical Payments or Med Pay coverage is, in effect, a health insurance plan for any passenger or driver of your vehicle injured in an accident. Usually sold in smaller limits, from $1000 to $10,000, it is usually only a few dollars per six month policy. This protects you and your passengers and is in addition to any health insurance you may have.Underinsured Motorist coverage protects you and your passengers in the situation in which you are injured by a driver who has insurance, but at the minimum or lower amounts. For example, if you are injured by a driver with the minimum $25,000 coverage, and you have Underinsured Motorist Coverage, you can collect for injuries that exceed the $25,000 minimum. Like Med Pay, the cost is low for the coverage. To protect you and your passengers, your Med Pay, Uninsured Motorist, and Underinsured Motorist coverages should be as high as you can afford.If you have been in a motor vehicle accident, call our office for a free consultation.