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Infected Patients and Caps on Damages

12 comments

It is always good when you can relate real life examples to current proposed legislation. Today, the Birmingham News reported a tragic incident involving approximately six hospitals and a Birmingham Pharmacy, Meds IV.

According to the article, nineteen (19) patients in six hospitals were infected by a deadly bateria (Serratia marcescens)

after receiving intravenous nutritional supplements. These patients received Total Parenteral Nutrition "TPN" because they typically cannot eat through a feeding tube. For more information on TPN, you may visit Wikipedia here. As a result, the hospitals and pharmacy contacted the Federal Food and Drug Administration (FDA), the Centers for Disease Control (CDC), and the Alabama Department of Public Health.

So, Alabama law states that any action against a Medical Provider, which includes pharmacies, must be brought under the Alabama Medical Liability Act:

Section 6-5-540

Legislative intent.

It is hereby declared by the Legislature of the State of Alabama that a crisis threatens the delivery of medical services to the people of Alabama and the health and safety of the citizens of this state are in jeopardy. In accordance with the previous declaration of Legislature contained in Act 513 of the Regular Session of the 1975 Alabama Legislature it is the declared intent of this Legislature to insure that quality medical services continue to be available at reasonable costs to the citizens of the State of Alabama. This Legislature finds and declares that the increasing threat of legal actions for alleged medical injury causes and contributes to an increase in health care costs and places a heavy burden upon those who can least afford such increases, and that the threat of such actions contributes to expensive medical procedures to be performed by physicians and other health care providers which otherwise would not be considered necessary, and that the spiraling costs and decreasing availability of essential medical services caused by the threat of such litigation constitutes a danger to the health and safety of the citizens of this state, and that this article should be given effect immediately to help control the spiraling cost of health care and to insure its continued availability. Additionally, the Legislature finds that the increasing threat of legal actions for alleged medical injury has resulted in a limitation on the number of physicians providing specialized health care in this state. Because of the limited number of insurers offering professional liability coverage and because of the prejudice to the rights of the defendant health care provider through the interjection of evidence of insurance, the Legislature finds that the interest of all citizens will best be served by prohibiting the introduction of evidence that a witness testifying at trial is insured by the same insurer as the defendant health care provider.

(Acts 1987, No. 87-189, p. 261, §1.)

So, this falls under the medical malpractice umbrella (and potentially a products liability claim). As a result, these are the types of cases which would warrant caps on noneconomic damages according to many in the Federal legislature and the medical community. $250,000.00 is the amount of caps encouraged on these types of claims.

What would this mean to the families of these individuals who received this infection? a maximum of $250,000.00. In Alabama, you cannot recover compensatory damages (i.e.: loss of income, loss of love and support, pain and suffering) for wrongful death. You may only recover punitive damages (damages to punish the wrongdoer). If this were your family member killed, would $250,000.00 compensate you for your mother or father or spouse?

In addition, you can see how the potential defendants are going to defend the case. Here are two quotes from the article:

Don Williamson, the State Health Officer, "stressed that it is impossible to know whether the nine deaths reported were caused by the bacteria or by the underlying health problems."

He was also quoted as saying, "Very quickly you got the shutoff of the production of the product, the cessation of use of the product and the investigation done."

They will argue the deaths are not the result of the infection, and they will argue that they did what they could to insure that this doesn’t happen, and it was cleaned up as soon as it was discovered. This was simply and accident and no intended result. We are VERY sorry, but sometimes life is like that. Accidents do happen.

What consolation is this for the families of these individuals? Shouldn’t this call into question caps on damages in these cases? Shouldn’t it call into question Alabama’s wrongful death statute which does not allow for compensatory damages? We need to question these things when events like this happen, and we need to make sure that we do not enact some law we might regret later.

12 Comments

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  1. Ian says:
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    Well, how much is enough compensation? Considering that these people had to be fed via IV – they were not in such a great shape in the first place. Obviously, the attorneys want the “pie” to be bigger because it makes their share greater.

  2. Jon Lewis says:
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    Wow! If this were your loved one, I will bet you think differently. I don’t care what I make, but these people deserve more considering what these companies make off the patients. How do you know their age or condition to make that statement?

  3. Mike Bryant says:
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    Ian you make an interesting statement: on the one hand saying that these people aren’t worth much and on the other suggesting that lifting caps would be only to get more money. So do you think that their worth is more than the caps? If not why why do you care about the cap? If true, then don’t the caps artificially make them worth even less? I know the lawyer bashing seems fun, but the reality is that juries don’t get asked about what the lawyer gets.

  4. Jim O'Hare RPLU AIC IAS says:
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    Would this article be written if the limit was $500k? Probably not, how about $400k? How many inches/ pounds/ quarts of pain is $250k worth?

    Isnt it silly to try to measure pain with dollars?

    Who is benefiting from the pain? Does not appear to be the injured party but the family of the injured party.
    regards
    Jim

  5. Jon Lewis says:
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    Thanks for your comments Jim. That’s an interesting question. However, in my humble opinion, our founding fathers set this up so that twelve (12) of our contemporaries sitting on the jury should determine the amount, not our elected officials in the State Capitols or Washington D.C. Each case is different, and therefore, the amount will differ on each case. All we are saying is that caps are artificial and should not be implemented.

  6. Jon Lewis says:
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    Ian, in further response, I think I would be less than honest if I said that I didn’t want to have a larger result in cases so I can earn more as well. However, that is not the reason I think caps are wrong. Caps hurt legitimate claims and pass the loss on to either the victims or the taxpayers. The tort system shifts costs to the responsible parties. We carry insurance so that we don’t have to bear the cost ourselves when we are negligent. If, as a society, we decide that this system is wrong or broken, that’s fine. Change it. Make everyone responsible for any incident which occurs, be it their fault or not. This will eliminate the need for insurance. I’ll bet there are a few companies out there who would argue against that system (State Farm, Allstate, GEICO, and Progressive to name a few).

  7. Jim O'Hare RPLU AIC IAS says:
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    Thanks for allowing me to play along. I noted that you stated that 12 contemporaries sit in the jury box. That is certainly different than a peer. Do doctors get them? Only over a plaintiff attorny’s dead body.

    How about a college degree since docs have 10 years of training beyond college.

    Pain, any way you slice it is subjective, some people actually like it. Cash is objective and cant be measured via the pain ruler. WE can agree what the fender of a 99 cadillac is worth on any website. Pain is a guess.

    The cap, any cap, is also a protection of society, that also prevents costs being transfered to tax payers. For insurance companies, without a cap, infinity is the limit, and like any math equation, inserting zero or infinity makes math useless. Therefore, caps helps our rate making ability.

    Is there any pain worth less than $250k? Seems to always be the starting point.
    regards Jim

  8. Jon Lewis says:
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    I don’t allow you to play along – you are always welcome. You want to split hairs on “peers” v. “contemporaries”? I think you knew what was meant.

    As far as who is on the jury, let’s take a look. In Jefferson County, AL, you typically receive a venire of 24 people. Each side gets 6 strikes, and you are left with 12. We don’t get to choose who sits on the jury, but we get to strike 6 whom we don’t believe can be fair, and usually, we obviously try to remove those whom we don’t think will rule in our favor. This is no different than the defense side – they want jurors who will rule in their favor.

    Additionally, many of the people who asked to be relieved of jury duty are the more educated and professional individuals. A lot think serving is beneath them when it is one of the most essential duties of our society.

    How does a cap protect society? There is now a cap on punitive damages in Alabama. If a manufacturer of an automobile produces a defective vehicle and knowingly puts that vehicle in the stream of commerce, that manufacturer should be liable for whatever punitive damages are awarded which gives them an incentive to not KNOWINGLY put a defective product into the stream of commerce. If there is a cap, however, that manufacturer can look at statistics and determine the number of punitive cases they have per year, average that cost, and add it back to the consumer. Knowing the limit, helps them avoid the punitive aspect.

    With doctors or hospitals, what is the incentive for them to provide good care if they will not be held accountable. What if a doctor goes into surgery under the influence of alcohol and kills someone? Should there be a $250,000 cap on that? It’s no skin of the doctor’s back because he pays his premium, and it will cover the case.

    The argument for caps usually centers around malpractice premiums, health care costs, defensive medicine, and frivolous lawsuits. Caps don’t prevent frivolous lawsuits. They penalize legitimate cases. Verdicts account for less than 1% of health care costs. You are probably aware that premiums are not necessarily tied to claims. If that were the case, why do premiums go up when cases go down? As far as defensive medicine, I don’t agree that it is a legitimate concern. Many doctors order tests to get paid more money, not to be defensive.

    A defense attorney told me about 10 years ago that his insurance client told him that they need to lose some malpractice claims so the doctors will think they need them. What does that say? I tell all my doctors to raise their deductibles to the highest level possible because good doctors have very little to worry about in this area in the way of a malpractice claim. They lose very very few, and if they are good doctors, they have very little to worry about.

  9. Jim O'Hare RPLU AIC IAS says:
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    This is good. I enjoy a good debate.
    A contemporary is somebody my age, a peer is like station in society. I see a doctor lawyers, accountants and teachers as peers, to name a few. Juries are for the benfit of the defendant, to be tried by a jury of one’s peers. Never happens.

    I realize that no trial attorney wants fair minded jurors, they want like minded jurors. It isnt about justice, it is about money, and the two are constantly confused.

    Caps keep runaway emotional reactions to pain and suffering( arent they the same thing ? )Naming it twice could double the award. A runaway verdict increases premiums for docs, they go bare due to the high premium, healthcare costs rise etc. The cap that I am talking about is only for the pain cause of action. Ring up all the medicals and loss of earnings that you can board, they are objective findings. I am good with that.

    I am also ok with bad docs and bad people being spanked when they cause harm to others, and I pay those claims.

    You mentioned earlier that insurance companies win most of their trials. That is because they only try those they feel are slam dunk winners, the rest settle. And the 22% that we lose has plenty to do with the jury pool.

    A doctors incentive to provide good care is that they are Doctors, want to help people, and take a hippocratic oath. It is only recently over the last 25 years that fear of financial security alters treatment plans.

    Doctors dont make more money with more tests. Humana does.

    You should argue for higher limits and mandatory coverage in exchange for the cap for this one thing. Isnt the policy limit a cap. Scoring a verdict for 10 mil from a doc with $1oo k coverage is not a win, except on paper, after all the house is now in his wife’s name.

    regards
    Jim

  10. Jon Lewis says:
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    First, I would say pain and suffering can be two different things. You can be suffering and not be in pain (kind of goes along with mental anguish).

    I understand the difference between contemporaries and peers. I used the term synonymously when I probably shouldn’t have, but like I said, I think you knew what was meant.

    As far as fair-minded jurors, I do want fair-minded jurors, but I want biased jurors off the jury, and the EXACT same is true for the defense.

    Caps do nothing for jurors. Typically, they don’t even know about the cap. The Judge reduces the award to the cap after the verdict. If it’s a true runaway jury, the judge typically enters a remittitur (reduction of the award), and if that is not done, the defense appeals it – in Alabama that results in a win for the defense in Montgomery.

    You are wrong on what malpractice cases are tried in Alabama. ProAssurance is, as you probably know, based in Birmingham. They do not settle many claims at all. They try most of them so you cannot say they try the slam dunks. You have no idea how difficult it is to win a medical malpractice lawsuit in this State.

    “Doctors want to help people” – if you think that is the case with most, you are sorely mistaken. The green takes precedence with many. The bedside manner is terrible in many situations. Also, volume is a key. I’ve heard doctors talk about how many patients they can run through in a day. If you don’t think they charge for tests, you’ve got to be kidding.

    With respect to the money issue versus justice, it’s the only thing we can do. We cannot bring the person back to life or eliminate their paralysis. We can only get them money. If it’s paralysis, do you know the cost of such care? It’s enormous.

    Instead of what you proposed in the last paragraph, why not give all medical professionals immunity from suit? What would you think about that?

  11. Jim O'Hare RPLU AIC IAS says:
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    Claims with merit get indemnified by me. Got liability, causation and damages you get paid.

    Anything that cant be weighed or measured goes in the pain and suffering bucket.

    Doctors need to run thru that many patients to make a buck. Fees for procedures are dictated by Aetna and Humana. One gastro doc friend of mine told me he rec’d 14 dollars per colonoscopy. That is a healthcare argument.

    Cant believe that you think the majority of docs are in it for the wrong reasons.

    I do not want immunity for any body for any reason. I have no problem with accountability and making patients whole from a malpractice. doing the right thing is more prevalent than you think, even from a claims guy.
    regards Jim

  12. Jon Lewis says:
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    Brother-in-law is a doctor so I know it’s not all rosy. I never said the Majority are in it just for the money, but I did say that the green takes precedence for many. I, unfortunately, think money controls most decisions. That’s the downside of a capitalistic society.

    I am sure you don’t want immunity (you would be looking for a job). I wish you were my claims guy in some cases. They don’t settle here.