by Medical Justice | Sep 4, 2015 | Healthcare Reform, Legal, Medical Malpractice
A driver injured a boy riding a scooter. The boy suffered significant head injury.
The boy sued the driver. While the driver believed that some of the injuries were caused by medical negligence – after the accident – the court precluded the driver from presenting such evidence. There was only one defendant in this case, the driver. And whether or not others caused the giant medical bill was of no concern to the court. The result – a jury verdict for a whopping $14.9M. This amount was reduced by 25% to $11.2M because of the boy’s comparative negligence. Comparative negligence means the plaintiff, in this case the boy, was partly responsible for the outcome.
The carrier then paid the boy $1.1M, the policy limit.
I pause here to allow you to do the math.
There was still a deficit of $10.1M, not exactly walking around money.
The first lesson is to strongly consider umbrella insurance coverage. It is reasonably priced and will comfortably jack up your personal injury limits as a driver to, say, $5M.
The boy then sued the hospital, neurologist, the neurologist’s practice, another doctor, and his group – for medical negligence.
The driver and his insurance carrier were initially granted the right to “intervene” in that medical malpractice case. By intervening, they wanted to subrogate some of any captured funds back to their account ledger. The automobile insurance company was hoping some of the $1.1M it paid would be tied back to expenses related to medical negligence. The driver was hoping to find a way to bridge his $10.1M shortfall.
But….the lower court ultimately dismissed the driver’s claim (and his carrier’s claim) for subrogation. The healthcare providers had successfully argued that these two entities were barred from subrogation because they had not fully paid off the boy’s claim.
The Fifth District Court of Appeal reversed.
The court held [1] that an initial tortfeasor (here, the driver) or the insurer may assert an equitable subrogation claim against a subsequent tortfeasor (here, the healthcare providers) when: (1) the initial tortfeasor (the driver) was precluded from bringing the subsequent tortfeasor (the healthcare providers) into the original personal injury action; (2) judgment was entered against the initial tortfeasor for the full amount of the injured person’s damages, regardless of the initial tortfeasor’s portion of the fault; and (3) that judgment has not been completely paid by the initial tortfeasor or her insurer.
So, the principle of swimming to the deepest pockets was preserved.
Had the boy never filed an action against the healthcare providers, the driver and his carrier would have been out of luck. But, by going a second round, they were able to decrease their losses. This is a Florida case and other states may have come to different results. Given that many medical expenses are paid by auto insurance companies, the urge for such carriers trying to recover funds from healthcare providers (alleging claims of medical negligence) might be too much to resist. What might they do? Persuade the injured party to file a second claim – and then everyone can benefit.
Just saying.
[1] – Allstate Ins. Co. v. Theodotou, 2015 WL 4486578 (Fla.App. 5 Dist., July 24, 2015)
by Medical Justice | Nov 3, 2011 | Medical Malpractice
Michael J. Sacopulos, Esq.
A Louisiana physician was fired for diverting Demerol from his patients and reporting to work under the influence. Upon the dismissal, a colleague wrote a letter of recommendation for the physician. The discharged physician took his glowing recommendation and found a new job thousands of miles away in Washington State.
About a year into working at this new job, the physician was caught “under the influence.” Further, he was caught after he failed to properly administer anesthesia and his patient fell into a permanent vegetative state, according to court records. The patient’s family filed a malpractice lawsuit against the physician and the medical center where the surgery took place. The case was settled with the physician paying $1 million and the medical center paying $7.5 million.
But the story does not end there. (more…)
by Medical Justice | Sep 7, 2011 | Healthcare Reform, Medical Malpractice
Michael Kirsch, M.D. – author, MD Whistleblower
Medical malpractice reform is in the news again. Of course, for the medical profession, the medical malpractice system is the wound that simply will not heal. For the plaintiffs bar, in contrast, the medical liability system is the gift that keeps on giving. I have argued that the current system fails on four important fronts.
- Efficiency
- Cost
- Fairness
- Quality Improvement
I admit readily that my profession has not been as diligent as it should be in holding ourselves accountable. We have not been forthright in admitting our medical errors, although can you blame us under the current medical liability construct? There is merit to the argument that tort reform is (more…)
by Medical Justice | Aug 18, 2011 | Medical Malpractice
Jeff Segal, MD, JD, FACS
Imagine telling your patient the success rate of a surgical procedure you were planning was 20%. year after year. Most patients would hit the door. Unless the only other option – doing nothing – was far worse.
That’s precisely the conclusion drawn from Jena, et al. in a New England Journal of Medicine article released this week – Malpractice Risk According to Physician Specialty. Data was analyzed from a large national carrier covering time period 1991-2005. The researchers analyzed 230,000 physician-years of coverage.
Each year of the study period, 7.4% of all doctors had a malpractice claim. Only 20% of those led to payment – either by settlement or judgment. The majority of claims resulted in zero payment to the plaintiff. Remember, though, the typical claim lingers for about four years before final resolution.
More interesting was breakdown by specialty. Annual risk for being sued: (more…)
by Medical Justice | Aug 10, 2011 | Medical Malpractice
Jeff Segal, MD, JD, FACS
An article in the July issue of Health Affairs detailed the natural history of malpractice claims in Massachusetts. Approximately 60% of these claims were abandoned by the plaintiff. But, this news came slowly to the doctor – who waited an average of 3 years after the claim was filed. During that time frame, costs were incurred to defend the case. And the doctor was burdened by a claim hanging over his or her head.
The study’s author, Dwight Golann, interviewed attorneys and insurance companies about the reasons for the abandoned claims. (more…)
by Medical Justice | Aug 2, 2011 | Medical Malpractice
Michael J. Sacopulos, Esq.
Earlier this month a Galveston County Texas Judge dismissed a medical malpractice claim against Mainland Center Hospital. The malpractice action had been brought by Jim Howard, III. Howard alleged that the emergency room staff at Mainland Center Hospital broke his femur in March of 2009. Howard’s action was originally filed on June 13, 2010. The Court ordered Howard to present an expert report that supported his claims of professional negligence within a 120 day timeframe. That timeframe ended February 23, 2011. Counsel for the defendant notified the Court that an expert report had not been filed and requested that Howard’s action be dismissed. Approximately 13 months after the initiation of the litigation, the suit was dismissed by the Court for Howard’s failure to provide an expert report.
At this time, Howard is incarcerated in the Texas Department of the Criminal Justice System for intoxicated manslaughter and intoxicated assault. This case underscores several important facts about medical malpractice litigation. First, it is easier for a patient to bring a suit than it is for a defendant to have the suit dismissed. Secondly, an expert witness is a critical component to medical malpractice actions.
