Malpractice lawsuits declining, remain costly

At first, Joni Hahn thought her husband’s heart surgery at the University of Minnesota Medical Center was a "miracle."

It seemed that Jim Twernbold — diagnosed with congestive heart failure two years earlier — had been given several more years before he’d have to look for a new heart.

But it turns out a lead wire in his defibrillator, a battery-powered device that delivers electrical pulses to the heart, had become dislodged during the surgery, which is not uncommon during such procedures.

"It was just not a big deal," Hahn said. "They were just going to re-adjust the wire, put it to where it’s supposed to be."

After the second procedure, Twernbold, 47, went into cardiac arrest. The vein that delivers blood to the right atrium in his heart had been torn by the defibrillator’s lead wire.

He died two days later.

After reviewing her husband’s autopsy report, death certificate and speaking with friends who were nurses, Hahn was convinced malpractice had occurred. She worked with an attorney to file a lawsuit.

A judge dismissed Hahn’s case in November 2008, more than three years after it began. The University spent more than $78,000 defending itself for its resident’s role in Twernbold’s care.

Although the number of malpractice lawsuits filed in Minnesota has been nearly halved since 1998, the University has still spent $4.3 million on them in the past five years. Behind the paperwork and court files is often a family like Hahn’s who feels they’ve been kept in the dark.

"If they would’ve sat me down and explained to me what actually happened and said, ‘I’m sorry for your loss,’ –– but they hid a lot of things," she said. "And because of the secrecy in that, we thought, ‘OK, something’s up.’"

'Can't blame the resident'

Over the past five years, the University spent more than $4.3 million settling and defending 42 medical malpractice claims and lawsuits brought over care received at the UMMC, Fairview.

But the amount the University pays in settlements is likely less than one-third of what those plaintiffs actually made off of their cases.

In most cases, plaintiffs sue three different entities: the hospital, University of Minnesota Physicians — the private company that employs all the doctors who work at UMMC, Fairview — and the University’s Board of Regents. If those parties end up paying a settlement, they’ll often decide amongst each other how to divvy the cost.

The University is liable only for its residents and fellows. Generally, the residents will end up paying less than the other entities, as they’re still learning and were usually just carrying out instructions from their supervising physician, Mark Rotenberg, the University’s general counsel, said.

"That’s often [the University’s] argument: You can’t blame the resident," Rotenberg said

The amount of money that UMP and Fairview spent couldn’t be obtained because it’s private data, but Rotenberg said their settlement and defense costs probably exceed the University’s $4.3 million.

Of the 42 claims against the University since 2005, 16 were dismissed before a trial, which is the ultimate fate of many medical malpractice lawsuits. When a case is dismissed, it means a judge ruled that the plaintiff’s argument was too weak to move forward. The University spent nearly $740,000 fighting to get the cases thrown out.

A plaintiff’s best case scenario is to settle the case with the defense. Often, this means there was uncertainty surrounding what actually happened and that the plaintiff’s argument couldn’t be refuted. The University has settled 15 cases since 2005, paying out nearly $1.7 million and spending about $718,000 on legal defense.

It’s relatively rare for medical malpractice cases to go to trial; most are resolved before they reach that point. In the University’s case, this happened only four times, and the jury sided with the University and its doctors in each of them.

Juries tend to side with doctors in malpractice cases. Some estimates put the ratio of defense verdicts at 90 percent of cases. Plaintiffs’ attorneys say it’s just that jurors don’t have a comprehensive knowledge of medical topics and therefore trust the doctor’s evaluation of the situation.

In recent years, there’s been a lot of "tort reform propaganda" working to convince the public that frivolous medical malpractice lawsuits are driving up health care costs, said Joanne Doroshow, executive director of the Center for Justice & Democracy, a consumer advocacy group focused on the civil justice system.

"There’s a PR campaign that’s been pretty effective in polluting the jury pools in the country," she said. "There’s not less negligence — in fact there’s more of it — but the juries are reluctant to want to hit the doctor with a verdict."

The battle over tort reform

The prospect of national tort reform became a central issue in the months leading up to the passage of the health care reform legislation.

"Unless the president and congressional Democrats address the need for tort reform as a critical component of cutting health care costs, a bipartisan solution seems unlikely," Congressman Darrell Issa, R-Cali., wrote in a column on Politico.com in February.

The Congressional Budget Office released a report in 2004 to respond to widespread misconceptions about malpractice reform’s impact on health care.

Addressing the claim that restrictions on malpractice liability would make health care cheaper by lowering malpractice insurance premiums for doctors, the report stated, "By themselves, however, such changes do not affect economic efficiency: they modify the distribution of gains and losses to individuals and groups but do not create benefits or costs for society as a whole."

Malpractice costs account for less than 2 percent of the nation’s total health care spending, the CBO estimated.

"When you have a case that rises to the level of malpractice, it’s hard for the general public to know that it has gone through a really rigorous process to be brought before a jury," said Carla Ferrucci, executive director of the Minnesota Association for Justice. "It’s not like these cases are being brought forth frivolously."

The threat of being sued for malpractice, some argue, encourages doctors to overcautiously order expensive and unnecessary tests,
driving up health care costs.

Several doctors said that’s just not the case — and that for the most part, getting sued isn’t on their minds.

"What we’re trying to do is really help the patient understand what’s going on," Paul Swan, associate professor of medicine said. "It’s not a big part of the medical decision-making."

A smaller number — getting smaller

In Minnesota, the number of medical malpractice cases filed dropped 45 percent from 1998 to 2007. The number of wrongful death cases, a form of medical malpractice, dropped 35 percent in the same period. Nationally, the decrease in filings has been only 8 percent.

One theory is that physicians’ insurance companies are settling more claims before they become lawsuits. With all the federal attention on the cost of malpractice litigation lately, it’s likely that more are being resolved before the claim becomes a lawsuit, Michele Goodwin, a law professor at the University, said.

"I think that absolutely is a factor in the significant reduction in cases that were filed," Rich Thomas, an attorney with Burke & Thomas in Arden
Hills, said.

Claims that are settled without becoming lawsuits don’t appear in court records and rarely become public information. They do go to a national databank and the state Board of Medical Practice, which keeps private record of them and determines whether corrective action should be taken against the doctor.

Some say doctors are simply more careful now.

A famous 1999 Institute of Medicine report found that as many as 98,000 Americans die each year from preventable medical errors, more than motor-vehicle accidents, breast cancer and AIDS.

In 2003, the Legislature began requiring the Minnesota Department of Health to collect adverse health events in hospitals.

"There has been significant intention that’s been internalized amongst those practicing within the medical profession in Minnesota to do the best they can and provide quality care to their patients," Goodwin said.

But since the reporting started, the number of mistakes collected — which include operating on the wrong body part or leaving an object in a patient after surgery — haven’t decreased.

Not everyone agrees doctors are making fewer mistakes.

"I have never seen a situation where a doctor has been purposefully careless," Thomas said. "Doctors try to be careful universally. The fact that they could be sued doesn’t mean they’re going to be more careful."

The laws in each state around medical malpractice determine how difficult it is to bring a suit. In Minnesota, the 1986 law that requires an expert witness — a physician in the same practice area who can testify in support of the case — made attorneys much more selective about which cases they take up.

The National Practitioner’s Databank, a federal reporting system that collects malpractice settlement information on physicians and makes it available to employers, went live in 1990.

The databank prevents doctors from moving from state to state to erase a past marred by malpractice settlements. It "will kind of follow them for the rest of their lives," said Chris Messerly, an attorney with Robins, Kaplan, Miller & Ciresi in Minneapolis.

'A tremendous incentive not to take on a case'

Compared to other states, Minnesotans are generally less likely to sue their doctors.

Some say it’s just their nature.

"Culturally I think we’re a little different," Thomas said. Historically, Minnesotans bear a lot of Germanic and Scandinavian heritage as well as a tendency to live in more rural areas, he said. "They tend to be more stoic."

That has contributed to Minnesota having the 50th lowest medical malpractice insurance premiums for physicians, about $13,000 compared to the $46,000 national average in 2008.

That number is determined by a state’s historic claims frequency, the severity of its jury verdicts and its tort laws, said Mike Matray, editor of the Medical Liability Monitor, a publication that rates the premiums annually. By those measures, Minnesota is a "benign state," he said.

With only 344 malpractice and wrongful death cases filed in Minnesota in 2008 — a minuscule portion of the more than 43,000 civil cases filed in the state that year — it’s likely that not every malpractice victim received compensation.

A 1991 New England Journal of Medicine study estimated that only about 1.5 percent of patients who’ve been injured as a result of medical negligence file malpractice claims. The study’s authors guessed that people don’t sue because they don’t think the chance of success is worth the cost, they don’t think an attorney would take their case or they simply don’t realize that the doctor’s error caused their injury.

Out of the hundreds of calls plaintiff’s attorneys get each month, most only accept a handful.

"There’s a tremendous incentive not to take on a case," Messerly said.

The art of apology

Burton Berlowe’s doctors put him through months of physical therapy after he took a fall in early June 2003 that left him in "excruciating" pain.

A doctor at Smiley’s Clinic, a facility that employs University physicians and residents, X-rayed his knee, told him it was sprained and recommended ice, compression and Vicodin. A month later, another doctor said he had inflammation around his kneecap, sent him to physical therapy classes and recommended Tylenol.

"I just thought all along that if I keep doing the things they’re telling me to do, eventually it will get better," Berlowe said. "But it didn’t get better. It got worse."

Finally, his wife convinced Berlowe to see another doctor, who did an X-ray on his hip and diagnosed him within minutes: a broken hip.

He decided to sue. When his attorney gathered his medical records, a note written by one of his doctors seemed like he thought Berlowe was "faking it," Berlowe said.

"I believe he actually can move his leg to a greater range of motion than he actually is," Steven Stovitz, who saw Berlowe several times, wrote at one point.

Following his hip replacement surgery, the doctors who had treated Berlowe initially visited him in the hospital.

One doctor in particular, "didn’t outright admit that they made a mistake, but was sort of talking around it," Berlowe said. "Like, ‘You know, sometimes things happen, things are difficult to diagnose.’ They were very queasy and nervous about it and they were trying to do everything they could to mollify me so I wouldn’t pursue the lawsuit. I think that was pretty obvious at that time."

Some lawsuits could likely be avoided if doctors maintain transparency and apologize if mistakes do occur, said Chris Fallert, assistant professor of medicine.

"The best way to not be sued is to genuinely care for and have therapeutic relationships with patients," Fallert, also the medical director for the St. Joseph’s Hospital Family Medicine Residency, said. "To genuinely listen to their concerns during your visit with them, tending to their questions and having good follow-up."

An advocacy organization called Sorry Works!, which formed in 2005, attempts to persuade physicians, hospitals and insurers to alleviate the risk of malpractice lawsuits by disclosing any mistakes made.

In 2001, the University of Michigan Health System implemented a disclosure-with-offer policy, responding to all malpractice claims by admitting fault and offering compensation if its investigation revealed an error. By 2003, UMHS reported a 61-percent decrease in legal expenses.

"Often patients just want to find out what went wrong in the first place and litigation’s the only way to do that," said Ray DeLorenzi, with the American Association for Justice.

Berlowe’s case ended up settling outside of a trial. The University gave him a $5,000 settlement and spent about $72,300 defending itself. The amount Fairview and UMP settled for couldn’t be obtained.

Berlowe never got an apology.

"I think it would’ve been appreciated had they said, ‘We’re really sorry. We screwed up,’" he said. "Had they said that, I would’ve thought a little higher of them."

Although the money he got from the lawsuit was helpful, Berlowe said he would’ve rather have never gone through the ordeal. Being "out of commission" for a year changed his life, he said.

Almost every call John Dornik gets is from someone who says they’re "not the suing type."

Dornik, a plaintiff attorney with the Minneapolis law firm Mackenzie & Dornik, said the confusion and loss felt by patients and family members changes their minds.

"People who aren’t the ‘suing type’ are people who haven’t had to face that tragedy yet."