Doctors, hospitals concerned about hefty malpractice awards

$76 million awarded to two families

August 04, 2012|By Andrea K. Walker, The Baltimore Sun

Maryland's medical community is concerned about the potential fallout from two multimillion-dollar malpractice judgments awarded by Baltimore juries to families who blamed local hospitals where their babies were delivered for their children's disabilities.

Doctors and hospital officials worry that juries, particularly in Baltimore City, are making decisions out of sympathy for sick patients rather than science. In the process, physicians said, these decisions may create an unrealistic benchmark for what future juries are willing to award — and lawyers are willing to seek — in such cases. Such rich awards also could drive up the cost of malpractice insurance for doctors, which likely would be passed along to patients.

The medical community's fears are unfounded, countered Gary Wais, a partner in the Pikesville firm that represented the families in both cases.

"They are trying to beat the drums of fear," said Wais, calling it "sour grapes."

Doctors and hospitials must be held accountable for their errors, plaintiffs attorneys argue.

A jury on Tuesday awarded $21 million to a Glen Burnie couple whose now-9-year-old son was born prematurely with cerebral palsy at Harbor Hospital in 2002.

In June, a jury handed down one of the largest medical malpractice verdicts in state history, awarding $55 million to a Baltimore couple whose son was born with cerebral palsy at Johns Hopkins Hospital in 2010. The amount is twice as high as the $30 million cap state law puts on such awards.

The combined amounts are more than the $72.2 million awarded in Maryland medical malpractice lawsuits in all of 2011, according to the National Practitioner Data Bank.

Hopkins and MedStar, among the region's largest hospital systems, maintain they were not at fault in either case and are appealing the verdicts.

Such large, back-to-back awards are rare, explained Wais, of Wais, Vogelstein, Bedigian & Arfaa. Most malpractice cases are settled out of court and never even make it to trial, he and others said.

Between 2001 and 2011, $890.1 million in medical malpractice claims were awarded in Maryland, according to the National Practitioner Data Bank.

A 2010 survey done for the American Medical Association found that more than 60 percent of doctors had been sued by the time they were 55, and among obstetrician/gynecologists and surgeons it was 70 percent. Among the suits, 65 percent were dropped or dismissed and 5 percent went to trial. Defendants prevailed 90 percent of the time.

Doctors and hospitals said they are bracing for a trickle-down effect of more lawsuits and rising malpractice insurance rates because of the recent judgments. They argue malpractice costs could become so burdensome that doctors decide to stop working in certain locations and specialties.

"Hospitals who provide medical care to high-risk patients — particularly obstetrical patients — are questioning how much longer they will be able to continue providing that care in Baltimore City," said Mary Lynn Carver, a spokeswoman for the University of Maryland Medical Center, in an e-mail.

A 2004 report by Public Citizen found no evidence that doctors leave a state because of malpractice costs.

The AMA and the American Tort Reform Association acknowledge that there are no statistics to show that higher premiums, resulting from large jury awards, push doctors out. But both say there is anecdotal evidence of the impact.

"It's reasonable for physicians and hospital administrators to be concerned about large awards," said Darren McKinney, a spokesman for the tort-reform group. "Doctors do react. If you're a young doctor, you may move, if you're older you may say it's been long enough. But I doubt they tell anyone it's because of their malpractice premiums. So there is no database to prove that it happens. But it most certainly does."

Karl P. Riggle, a general surgeon in Hagerstown who has been outspoken in the past about malpractice costs, said doctors in rural areas like his already send patients with complicated cases to other hospitals rather than risk getting sued.

"I sympathize with the victims, but these types of cases are detrimental," said Riggle, administrative director of trauma at Meritus Medical Center in Hagerstown. "It drives up the cost to do medicine and causes physicians to take precautions in terms of being willing to take care of these kinds of patients."

The issue of malpractice costs last flared in 2004 when insurance rates skyrocketed 33 percent after some hefty judgments, prompting the General Assembly to create a special fund to provide relief. Twenty-six states have sought to soften the blow of litigation by capping noneconomic damages, typically at $250,000, according to the AMA. Maryland's cap is somewhat higher.

The size of the latest awards is raising new questions now about the costs and whether doctors and hospitals can afford to pay out such large sums.

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