The Falvello Law Firm
Monday, May 19, 2008
Give Our Doctors A Break
Statewide and individual county statistics clearly show that changes to the legal structure of malpractice cases made by the legislature and the Supreme Court in 2002 have had a dramatic effect on the number of filed cases and the size of verdicts.
It was recently reported in Pennsylvania Law Weekly (4/28/08) that the number of medical malpractice filings fell statewide from 2,632 in 2000 to 1,617 in 2007. These statistics were according to those compiled by the Administrative Office of Pennsylvania Courts.
In Philadelphia County, the number of filings fell from 1,085 in the year 2000 to 586 in the year 2007.
In York County, filings dropped from 48 in 2002 to 0 filings in 2007.
In Northampton County, filings were decreased from 89 filings in 2002 to 2 filings in 2007.
In Lackawanna County, the filings were reduced from 55 to 30 during the same time frame.
Statewide in 2007, 185 cases went to jury verdict. Of those, 153 or 82.7% of them were defense verdicts favoring the doctor or hospital. Similar percentages favoring the doctor and hospital were statistically demonstrated from July 2003 to December 2004.
Pennsylvania’s physician and hospital liability insurance coverage scheme differs somewhat from other states. By law, a physician must carry $1,000,000 in medical liability insurance coverage, with $500,000 coming from a primary (private) carrier and $500,000 by the state Medical Care Availability and Reduction of Error (MCARE) fund. Payouts on liability claims have dropped dramatically from the MCARE fund and at the end of 2007, the MCARE fund reported a surplus of $500,000,000.
In spite of this, if you speak to any physician or hospital administrator, they have not experienced a similar reduction in their malpractice insurance premiums.
In addition, President Bush, once the Commander in Chief carrying the banner for tort reform on behalf of physicians, has initiated efforts to cut back on reimbursements or payments to doctors for their services. By doing so, he cheapens the value of life for every citizen in the Commonwealth of Pennsylvania and by cutting their incomes, he insults the very physicians he claims to support.
Looking inside the numbers since the changes of 2002, in our view three factors have had the most critical impact in reducing the number of cases.
First, the Supreme Court has effectively made it impossible to “venue shop”. Prior to the change, a plaintiff could bring a case against the doctor or hospital in any county where the doctor or hospital did business. The most dramatic impact of this prior rule was in the Philadelphia area where, for example, the alleged careless treatment may have taken place in a conservative county like Bucks County, but the doctor and hospital do business in Philadelphia County. Under that scenario, the case could be brought in Philadelphia County. Since the change, the case can only be brought in Bucks County. This rule would give plaintiffs and plaintiffs’ attorneys some pause in filing a claim in a more conservative county unless the claim was clearly meritorious.
Second, the Supreme Court past a procedural rule, which requires that a Certificate of Merit be filed with each case. The Certificate of Merit is a representation by the plaintiff and/or the plaintiff’s attorney that prior to commencing the lawsuit a preliminary investigation must be conducted; a doctor in the same area of practice as the defendant doctor must preliminarily review the circumstances of the case and conclude that the care in question is sub-standard; and furthermore, conclude that it was the sub-standard care that caused harm to the patient. This requirement, quite frankly, had no effect on experienced malpractice attorneys who have always realized the significance of a thorough pre-litigation review. However, this rule eliminated plaintiffs and attorneys from the equation who were under the impression that the simple filing of a lawsuit, without medical substantiation, might leverage the doctors, hospitals and their insurance companies to pay money on the claim. This simply was not the case. It lent itself to the filing of what is commonly called “frivolous lawsuits”. In reality, it added to the physician defense cost by its sheer numbers and clogged court dockets. Since the change, a case cannot be pursued unless a Certificate of Merit is filed. If it is not filed, the case is summarily dismissed at its inception.
Third, the MCARE legislation changed to some degree the manner in which damages in malpractice claims are paid after a jury verdict. Prior to the legislative change, both past and future medical bills were awarded by a jury in a lump sum and paid in a lump sum. The change requires that future medical bills be paid over time in the future. It also eliminated past bills that were paid by a health insurance source from the recovery equation. This component of the change is very similar to what had been present in motor vehicle accident claims for some years. These changes had a tendency to lower the potential value of claims.
The end result of these changes appears to be that only clearly meritorious claims with serious injuries and repercussions to the patient are the ones presently being pursued by experienced malpractice attorneys. The smaller claims and the “frivolous lawsuits” seem to be drying up.
As an attorney who handles malpractice claims, I can tell you that the cost of these lawsuits has increased dramatically. The law requires that experienced experts be presented in support of a plaintiff’s claim. These experts must be legitimate, practicing physicians who truly believe that malpractice has been committed and not some “witnesses for hire” who have not practiced in a given medical specialty for some years. The law simply will not allow this. Most experienced attorneys will hire two or three experts, obtaining independent reviews from each expert to obtain as many unbiased opinions as possible and crosscheck for corroboration on the medical merits of the case. As they should, these doctors who review the medical merits of the case get paid independently, by the hour regardless of their opinion. They have no stake in the outcome of the case. If they believe there is a meritorious claim, these physicians are called upon to write reports and testify at trial. They also assist in the discovery process prior to trial and respond to any expert presented by the defendant. People injured as a result of malpractice cannot afford this and these costs are usually advanced by the attorney handling the claim. In more involved cases, expert and other trial preparation costs can exceed $200,000 if the case goes to verdict. In a recent claim settled by our firm before trial, we had incurred outstanding costs for experts in the medical, vocational, economic and life care planning fields (9 experts in all) in excess of $85,000. Had the case gone to trial, that amount would likely have doubled.
Despite the mantra of President Bush to eliminate what he called “jackpot justice”, the number of filings are down 40% throughout the state and doctors and hospitals still win jury verdicts more than 8 out of 10 times. President Bush suggested putting limits on jury verdicts for the less than 2 people out of 10 who win jury verdicts. These are the people most seriously hurt and most in need of compensation. On the other hand, the President’s position is consistent with his presidential legacy of limiting or eliminating the Constitutional rights of American citizens.
An insurance company expert recently wrote that the medical malpractice insurance environment is stable, calm and improving. He encourages insurers to be aggressive in reducing rates and offering dividends.
With a $500,000,000 surplus in the MCARE fund and the number and size of claims diminishing, it is now time for state government and insurance companies to reduce premiums. Perhaps insurance company CEO’s would be happy with $50,000,000 compensation packages instead of $100,000,000 compensation packages.
As citizens, we should demand that our lawmakers not insult us by reducing doctor wages. A doctor recently told me he paid more to his mechanic to fix a fender on his car than he was paid to surgically fix the hip of that same mechanic’s mother. Doctors spend hundreds of thousands of dollars for four years of undergraduate and four years of medical school education. They forgo family and lifestyle during as many as six more years of residency where they work more hours in one week than most work in a month; and get paid next to nothing in the process. It’s time this country took care of it’s own, patients and Doctors alike. Doctors deserve to have their premiums, not their reimbursements, reduced. It would be a good start for all of us.
Conrad A. Falvello, Esquire
The Falvello Law Firm, P.C.
782 West Butler Drive
Sugarloaf, PA 18249
(570) 788-4191
Falvello@ptd.net
www.FalvelloLaw.com
It was recently reported in Pennsylvania Law Weekly (4/28/08) that the number of medical malpractice filings fell statewide from 2,632 in 2000 to 1,617 in 2007. These statistics were according to those compiled by the Administrative Office of Pennsylvania Courts.
In Philadelphia County, the number of filings fell from 1,085 in the year 2000 to 586 in the year 2007.
In York County, filings dropped from 48 in 2002 to 0 filings in 2007.
In Northampton County, filings were decreased from 89 filings in 2002 to 2 filings in 2007.
In Lackawanna County, the filings were reduced from 55 to 30 during the same time frame.
Statewide in 2007, 185 cases went to jury verdict. Of those, 153 or 82.7% of them were defense verdicts favoring the doctor or hospital. Similar percentages favoring the doctor and hospital were statistically demonstrated from July 2003 to December 2004.
Pennsylvania’s physician and hospital liability insurance coverage scheme differs somewhat from other states. By law, a physician must carry $1,000,000 in medical liability insurance coverage, with $500,000 coming from a primary (private) carrier and $500,000 by the state Medical Care Availability and Reduction of Error (MCARE) fund. Payouts on liability claims have dropped dramatically from the MCARE fund and at the end of 2007, the MCARE fund reported a surplus of $500,000,000.
In spite of this, if you speak to any physician or hospital administrator, they have not experienced a similar reduction in their malpractice insurance premiums.
In addition, President Bush, once the Commander in Chief carrying the banner for tort reform on behalf of physicians, has initiated efforts to cut back on reimbursements or payments to doctors for their services. By doing so, he cheapens the value of life for every citizen in the Commonwealth of Pennsylvania and by cutting their incomes, he insults the very physicians he claims to support.
Looking inside the numbers since the changes of 2002, in our view three factors have had the most critical impact in reducing the number of cases.
First, the Supreme Court has effectively made it impossible to “venue shop”. Prior to the change, a plaintiff could bring a case against the doctor or hospital in any county where the doctor or hospital did business. The most dramatic impact of this prior rule was in the Philadelphia area where, for example, the alleged careless treatment may have taken place in a conservative county like Bucks County, but the doctor and hospital do business in Philadelphia County. Under that scenario, the case could be brought in Philadelphia County. Since the change, the case can only be brought in Bucks County. This rule would give plaintiffs and plaintiffs’ attorneys some pause in filing a claim in a more conservative county unless the claim was clearly meritorious.
Second, the Supreme Court past a procedural rule, which requires that a Certificate of Merit be filed with each case. The Certificate of Merit is a representation by the plaintiff and/or the plaintiff’s attorney that prior to commencing the lawsuit a preliminary investigation must be conducted; a doctor in the same area of practice as the defendant doctor must preliminarily review the circumstances of the case and conclude that the care in question is sub-standard; and furthermore, conclude that it was the sub-standard care that caused harm to the patient. This requirement, quite frankly, had no effect on experienced malpractice attorneys who have always realized the significance of a thorough pre-litigation review. However, this rule eliminated plaintiffs and attorneys from the equation who were under the impression that the simple filing of a lawsuit, without medical substantiation, might leverage the doctors, hospitals and their insurance companies to pay money on the claim. This simply was not the case. It lent itself to the filing of what is commonly called “frivolous lawsuits”. In reality, it added to the physician defense cost by its sheer numbers and clogged court dockets. Since the change, a case cannot be pursued unless a Certificate of Merit is filed. If it is not filed, the case is summarily dismissed at its inception.
Third, the MCARE legislation changed to some degree the manner in which damages in malpractice claims are paid after a jury verdict. Prior to the legislative change, both past and future medical bills were awarded by a jury in a lump sum and paid in a lump sum. The change requires that future medical bills be paid over time in the future. It also eliminated past bills that were paid by a health insurance source from the recovery equation. This component of the change is very similar to what had been present in motor vehicle accident claims for some years. These changes had a tendency to lower the potential value of claims.
The end result of these changes appears to be that only clearly meritorious claims with serious injuries and repercussions to the patient are the ones presently being pursued by experienced malpractice attorneys. The smaller claims and the “frivolous lawsuits” seem to be drying up.
As an attorney who handles malpractice claims, I can tell you that the cost of these lawsuits has increased dramatically. The law requires that experienced experts be presented in support of a plaintiff’s claim. These experts must be legitimate, practicing physicians who truly believe that malpractice has been committed and not some “witnesses for hire” who have not practiced in a given medical specialty for some years. The law simply will not allow this. Most experienced attorneys will hire two or three experts, obtaining independent reviews from each expert to obtain as many unbiased opinions as possible and crosscheck for corroboration on the medical merits of the case. As they should, these doctors who review the medical merits of the case get paid independently, by the hour regardless of their opinion. They have no stake in the outcome of the case. If they believe there is a meritorious claim, these physicians are called upon to write reports and testify at trial. They also assist in the discovery process prior to trial and respond to any expert presented by the defendant. People injured as a result of malpractice cannot afford this and these costs are usually advanced by the attorney handling the claim. In more involved cases, expert and other trial preparation costs can exceed $200,000 if the case goes to verdict. In a recent claim settled by our firm before trial, we had incurred outstanding costs for experts in the medical, vocational, economic and life care planning fields (9 experts in all) in excess of $85,000. Had the case gone to trial, that amount would likely have doubled.
Despite the mantra of President Bush to eliminate what he called “jackpot justice”, the number of filings are down 40% throughout the state and doctors and hospitals still win jury verdicts more than 8 out of 10 times. President Bush suggested putting limits on jury verdicts for the less than 2 people out of 10 who win jury verdicts. These are the people most seriously hurt and most in need of compensation. On the other hand, the President’s position is consistent with his presidential legacy of limiting or eliminating the Constitutional rights of American citizens.
An insurance company expert recently wrote that the medical malpractice insurance environment is stable, calm and improving. He encourages insurers to be aggressive in reducing rates and offering dividends.
With a $500,000,000 surplus in the MCARE fund and the number and size of claims diminishing, it is now time for state government and insurance companies to reduce premiums. Perhaps insurance company CEO’s would be happy with $50,000,000 compensation packages instead of $100,000,000 compensation packages.
As citizens, we should demand that our lawmakers not insult us by reducing doctor wages. A doctor recently told me he paid more to his mechanic to fix a fender on his car than he was paid to surgically fix the hip of that same mechanic’s mother. Doctors spend hundreds of thousands of dollars for four years of undergraduate and four years of medical school education. They forgo family and lifestyle during as many as six more years of residency where they work more hours in one week than most work in a month; and get paid next to nothing in the process. It’s time this country took care of it’s own, patients and Doctors alike. Doctors deserve to have their premiums, not their reimbursements, reduced. It would be a good start for all of us.
Conrad A. Falvello, Esquire
The Falvello Law Firm, P.C.
782 West Butler Drive
Sugarloaf, PA 18249
(570) 788-4191
Falvello@ptd.net
www.FalvelloLaw.com
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