The Rising Cost of Clinical Negligence: Who Pays the Price?

By John Tingle

The Medical Protection Society (MPS) have recently published a report arguing that the rising costs of clinical negligence needs to be urgently controlled. They state that the NHS is struggling under the increasing burden of clinical negligence costs and suggest some reforms.The report is detailed and thorough and raises some good and interesting points but in reading it, it should be remembered that there is also a very good contrary position that can be advanced by those who act for patients in clinical negligence litigation. This report puts the issues to test.

The Report

The report begins by looking at the increasing costs of clinical negligence claims. Costs have increased over the years and the figures are stark. The report quotes figures from NHS Resolution, the new name for the NHS LA (National Health Service Litigation Authority) who estimates that the provision for future clinical negligence costs, relating to claims arising from incidents that have already occurred, stands at £56.1 billion:

“Expenditure on clinical claims by NHS Resolution increased by 72% (11.5% a year on average) over the five years to 2015/16. Should this trend continue it risks becoming wholly unsustainable for the NHS and wider society, which ultimately pays for these cost. Last year alone, nearly £1.5billion was spent and, put into context, this equates to the cost of training over 6,500 new doctors.(p4).” Read More

CAVEAT HOSPITIA: Suits Alleging Negligent Credentialing Against Hospitals Get Exemption from Tort Reform

By Alex Stein

Policymakers and scholars interested in medical malpractice and torts generally should read Billeaudeau v. Opelousas General Hospital Authority, — So.3d —-, 2016 WL 6123862 (La. 2016). In this recent and important decision, the Louisiana Supreme Court ruled that suits alleging negligent credentialing against a hospital sound in regular negligence, rather than medical malpractice, and consequently fall outside the purview of the state’s Medical Malpractice Act (MMA) and its limitations on liability. The Court made this decision in connection with the state’s cap on damages recoverable in medical malpractice actions, La. Rev. Stat. § 40:1231.2(B)(1), which limits the total amount that courts can award the victim to $500,000, plus interest and cost, on top of the victim’s future expenditures on medical care and support. For many victims of medical malpractice and their families this cap amount is meager, but the Court nonetheless upheld its constitutionality back in 1992. See Butler v. Flint Goodrich Hosp., 607 So.2d 517 (La. 1992).

The Court has now decided that suits alleging negligent credentialing against hospitals are not subject to this cap and that successful plaintiffs consequently will recover full compensation for any proven damage. Read More

President Trump’s Tort Reform

By Alex Stein

President Trump’s budget for Fiscal Year 2018 proposes a thoroughgoing reform of our medical malpractice system [Executive Office of the President of the United States, Major Savings and Reforms, Budget of the U.S. Government, Fiscal Year 2018, at 114 (2017) (hereinafter, the “Budget”)]. The reform’s stated goals are “[to] reduce defensive medicine … limit liability, reduce provider burden, promote evidence-based practices, and strengthen the physician-patient relationship.”

To achieve these goals, the reform will introduce the following measures:

  • a cap on non-economic damage awards of $250,000 (adjustable to inflation);
  • a three-year statute of limitations;
  • allowing courts to modify attorney’s fee arrangements;
  • abolition of the “collateral source” rule (to allow judges and jurors to hear evidence of the plaintiff’s income from other sources such as workers’ compensation and insurance);
  • creating a safe harbor for clinicians who follow evidence-based clinical-practice guidelines.

Read More

The High Cost of Clinical Negligence Claims

By John Tingle

In the UK, the Department of Health (DH) have just published a consultation paper on introducing fixed recoverable costs in lower value clinical negligence claims. The document contains some controversial proposals which many claimant, patient lawyers are very concerned about. They feel the proposals will make it much harder for patients with lower value claims to find a solicitor to fight their case .The publication of the consultation paper comes in the wake of criticism that some clinical negligence claimant lawyers, solicitor firms , make excessive and unreasonable costs demands. The NHS LA (The National Health Service Litigation Authority) which manages negligence and other claims against the NHS in England states:

“Claimant costs for lower value claims are disproportionate and excessive. For claims where compensation is less than £10,000, claimant lawyers recover almost three times more in costs on average.”(p.10)

The DH Consultation Paper begins by stating the annual cost of clinical negligence in the NHS. It has risen from £1.2bn in 2014/15 to £1.5bn in 2015/2016.Legal costs were 34% of the 2015/16 expenditure.The consultation paper states that the current system of claims resolution is often lengthy and adversarial. This creates what can be termed a dual problem. Delaying possible learning of lessons from incidents and also escalating the costs of litigation when claims are brought. Read More

Improving the safety of maternity care in the National Health Service (NHS) and other medico-legal matters

By John Tingle

There are some very interesting Government patient safety and access to justice policy development activities currently going on in England.

Maternity Services

In maternity services, there is a clear recognition by Government that safety is inconsistent and that there is significant scope for improvement. Our still birth rates are amongst the highest in Europe despite the National Health Service (NHS) making advances in patient safety in this area. In the National Maternity Review we are reminded that half of the Care Quality Commission (CQC) inspections of maternity services result in safety assessments that are either ‘inadequate’ (7%) or ‘requires improvement (41%) (page 22). The CQC is the independent regulator of health and social care in England.

In a speech to the Royal College of Obstetricians and Gynaecologists (RCOG) in London, the Secretary of State for Health, 17th October, 2016, Jeremy Hunt laid out plans to make giving birth safer, including maternity safety funding and other related matters. The Government’s ambition is to halve neonatal death, stillbirth, maternal death and brain injuries caused during or shortly after labour by 2030 and a series of measures were  launched. There will be a £250,000 maternity safety innovation fund and a new national Maternity and Neonatal Health Quality Improvement Programme. New maternity ratings will also be published to help improve transparency, raise standards and will give families better information about the quality of local maternity services.

A safe space Read More

Medical Malpractice vs. General Negligence under California Law

By Alex Stein

In its recent decision, Flores v. Presbyterian Intercommunity Hosp., 369 P.3d 229 (Ca. 2016), the California Supreme Court has sharpened the critical distinction between “medical malpractice” and general negligence.

Under California statute, a plaintiff’s ability to file a medical malpractice suit expires in one year after the accrual of the cause of action. The statute tolls this period for two additional years, provided that the plaintiff files the suit within one year after he discovers the injury or could reasonably have discovered it. Cal. Code Civ. Proc. § 340.5 (providing that suits for medical malpractice must be filed “three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.”). For other personal injury suits, the limitations period is “two years of the date on which the challenged act or omission occurred.” Cal. Code Civ. Proc. § 335.1.

In the case at bar, the plaintiff was injured when one of the rails on her hospital bed collapsed. Read More

Tort Reform in Oregon: Constitutional, After All?

By Alex Stein

Three years ago, Oregon’s Supreme Court voided the state’s $500,000 cap on noneconomic damages for medical malpractice for violating the constitutional guarantee that “In all civil cases the right of Trial by Jury shall remain inviolate” (Or. Const., Art. I, § 17, as interpreted in Lakin v. Senco Products, Inc., 987 P.2d 463, modified, 987 P.2d 476 (Or. 1999)). Klutschkowski v. Oregon Medical Group, 311 P.3d 461 (Or. 2013). This cap also clashed with “every man’s” right to “remedy by due course of law for injury done him in his person, property, or reputation” (Or. Const., Art. I, § 10, as interpreted in Smothers v. Gresham Transfer, Inc., 23 P.3d 333 (Or. 2001), and in Hughes v. PeaceHealth, 178 P.3d 225 (Or. 2008)). The Court reasoned that a person’s right to recover full jury-assessed compensation for injuries recognized as actionable in 1857, when Oregon adopted its constitution, cannot be abolished or abridged by statute or common law. For my discussion of the Klutschowski decision, see here. For my discussion of a similar entrenchment principle adopted by the Utah Supreme Court in Smith v. United States, 356 P.3d 1249 (Utah 2015), see here.

The Oregon Supreme Court has now changed this course in a long precedential decision, Horton v. Oregon Health and Science University, — P.3d —- 359 Or. 168 (Or. 2016). Read More

Patient Fall: Medical Malpractice or General Tort?

By Alex Stein

Courts coalesce around the view that patient fall injuries are actionable only as medical malpractice except when the care provider acts with intent or malice. This approach gives providers of medical care all the protections that benefit defendants in medical malpractice cases (compulsory suit-screening panel procedure, merit certificate / affidavit as a prerequisite for filing suit, stringent and short time-bars for filing suits that use both limitations and repose mechanisms, strict same-specialty requirement for expert witnesses, damage caps, and other protections).

The recent decision of the Louisiana Court of Appeals, White v. Glen Retirement System, — So.3d —- (La.App.2d Cir. 2016) 2016 WL 1664502, continues this trend. Read More

Medical Malpractice: The New Wave of Constitutional Attacks on Damage Caps

By Alex Stein

About forty-five years ago, tort reforms took off and states have started capping compensation awards for victims of medical malpractice. The plaintiffs bar countered this initiative by raising different constitutional challenges against caps. Those challenges alluded to equal protection, due process, separation of powers, and the general right to a jury trial. Some state courts have rejected those challenges, while other courts have struck the caps down for being unconstitutional. For discussion and the list of representative cases, see Alex Stein, Toward a Theory of Medical Malpractice, 97 Iowa L. Rev. 1201, 1253-54 (2012).

Courts’ decisions in favor and against the caps juxtaposed the victim’s entitlement to remedy against society’s interest in reducing doctors’ compensation burden and cost of liability insurance. Courts that gave precedence to the latter interest did so in the hopes to contain the cost of medical care for patients. The “trickle down” theory underlying these hopes has been questioned on empirical and doctrinal grounds. See Tom Baker, The Medical Malpractice Myth 1-21 (2005) (demonstrating that claims linking the cost of medical care to medical-malpractice liability are empirically unfounded and calling them an “urban legend”) and Stein, id. at 1247-56 (showing that, as a doctrinal matter, doctors can be found responsible for patients’ injuries only in extreme cases and that a rational physician should care more about being identified and reported to the federal databank as a malpractitioner than about how much she will pay if found liable). The Florida Supreme Court has rejected that theory in a recent decision, McCall v. United States, 134 So.3d 894 (Fla. 2014), that relied (inter alia) on Tom Baker’s work. For my discussion of this landmark decision, see here.

For obvious reasons, plaintiffs’ attorneys are loath to depend on such tradeoffs and prefer to base their claims on constitutional rights that are not subject to balancing.  Read More