Malpractice in Cardiac Surgery is the End-Result of “Bad ... - CTSNet

Malpractice in Cardiac Surgery is
the End­Result of “Bad”Lawyers
Abe DeAnda Jr., MD
Associate Professor, Department of Cardiothoracic Surgery
NYU­Langone Medical Center

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Speakers Bureau, Zymogenetics
Speakers Bureau, Vascutek
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CONFLICT OF INTEREST:
“I have been sued before… ..and probably
will be again”

“The first thing we do, let’s kill all the lawyers”
William Shakespeare
King Henry VI, Act IV
“Lawsuit, n. a machine which you go into as a pig and
come out as a sausage”
Ambrose Bierce
The Devil’s Dictionary, 1906

What Constitutes Malpractice?
• A duty was owed
• A duty was breached where the provider failed to conform to
the relevant standard of care (as defined by their profession,
expert testimony, or the doctrine of res ipsa loquitur)
• The breach caused an injury
• Damages occurred, the damages monetary and/or emotional
• Without damages there is no basis for a claim of malpractice
• Damages can occur without negligence

Is there a Malpractice Crisis?
• Crisis of the 1970’s
• In California, between 1968­1974
• Number of claims doubled
• Number of losses in excess of 300K increased 11­fold
• Losses amounted to $180 for each $100 of premium
• Some private insurers left the market because of the combination of
rising claims and inadequate rates
• Some physicians and hospitals could not find coverage
• Insurance rates increased dramatically
• Various attempts to deal with claims cost
• Tort reform, defensive medicine, improved peer review
• CA enacted the Medical Injury Compensation Reform Act of 1975
(MICRA)

Is there a Malpractice Crisis?
• Crisis of the 1980’s
• Claim frequency and severity increase again
• Premium rise rapidly
• Some specialties cut back on high­risk procedures and patients in
efforts to hold down premiums
• Physicians leave states where premiums and risk are especially high

Is there a Malpractice Crisis?
• Crisis of the 2000’s
• Access to care decreases
• 45% of hospitals report a loss of physicians or reduced ER coverage Am
Hosp Assn Prof Liability Survey 2003
• OB/GYN hit hard
• 70% make changes in their practice
• 7­8% stop practicing obstetrics
• 90% have at least one claim filed against them (average 2.6/MD)
• Residents begin to avoid high­risk specialties and/or states
• In 2003, 62% of residents report that liability issues were their top concern,
compared to 15% in 2001
• In 2003, AMA survey indicates current medical liability environment was a
factor in 50% of specialty choices, 39% said in affected which state they
applied for residency, 61% said the environment decreased their ability to
provide quality care

Is it Just Bad Doctors?
• Study from the Tennessee Medical Association, January 2005
• Between 1995­2005, 100% of cardiac surgeons faced legal action
• 92% OB/GYN’s, 92% orthopedics, 70% of all MD’s
• Dade, Broward, and Palm Beach Counties (2002)
• >94% of cardiovascular or thoracic surgeons had been sued.
• Averaged 2.12 past lawsuits, 1.5 suits pending
• Worse for neurosurgeons –100% had been sued, on average 5 times
• Smaller study of a single hospital in Florida (2003)
• 100% of cardiothoracic surgeons had been sued
• 100% of general surgeons had been sued

Trends in Awards and Settlements
• From 1997 to 2006
• Median jury award increased from $157,000 to $487, 500
• Average award increased from $347,134 to $637,134
• Median settlement increased from $100,000 to $204,500
• Average settlement increased from $212,861 to $335,847
In 2004, 74% of claims were closed without payment to the
plaintiff. Of the 6% of claims that went to a jury verdict, the
defendant won 91% of the time.
Where the defendant prevailed, average defense cost was $94K

Event/Claim Mismatch
• Large “reservoir”of potential claims
• California (Medical Insurance Feasibility Study) – 21,000 medical
records from 23 hospitals
• 4.6% iatrogenic injury
• 0.8% negligent (medicolegal close claim review)
• 0.08% claim rate
• New York –>30,000 discharges, 3500 malpractice claims
• Mismatch
• 3.7% injury
• 1.0% negligent
• Only 2% of negligent injuries resulted in claims, only 17% of claims
appeared to involve a negligent injury

The Cost of Defensive Medicine
• HHS 2003 report estimated cost of defensive medicine to be
$70­126 billion /year
• 2005 estimates increased to $99­179 billion /year!!!
• 59% of physicians feel that the fear of liability discourages
open discussion and thinking about ways to reduce health care
errors
• Harris Interactive Inc., Common Good Fear of Litigation Study: The
Impact on Medicine 65 (2002)

Is it Bad Doctors or Bad Lawyers?
• Medical Malpractice has become a lottery, few plaintiffs will
succeed but a smart lawyer only needs one big winner
• The medical profession continues to try to improve, and
although the IOM report noted a significant number of medical
errors, these were seen as system issues, not personnel issues.
• Is there, in the eyes of a plaintiff lawyer, such a thing as a
good doctor?
The Malpractice Crisis is a Result of Bad Lawyers

Thank you