Mothers and Malpractice – Part Two

Part One | Part Two

By: Jean Johnson for Body1

Part Two

It’s not just Helen Jean Brown’s late mother who took weeks to die after a negligent physician gave her medication she had a known allergy to. So too, did the former Oregon Gov. Barbara Roberts’ late mother who suffered medical mistreatment. As a result, Roberts opposed a cap on medical malpractice cases that insurers and doctors promoted to the tune of a $6 million sales campaign in 2004.

And of course, what’s known in the business as “negligent or reckless injury” to patients is hardly limited to mothers.

Father and former Portland TV news anchor, Ken Ackerman, went into Oregon Health & Sciences University Hospital for what was supposed to be a 45 minute day surgery after experiencing a sharp pain in his neck while playing tennis. He did everything right: Called the head of neurosurgery at Oregon Health & Science University (OHSU) to locate a good physician. Asked questions about the procedure the surgeon proposed that was designed to reduce spinal nerve pressure.

“‘Dime a dozen,’ my doctor said. When the anesthesia wore off, I’d go home,” wrote Ackerman in a March 2006 opinion piece published in Portland’s major newspaper, the Oregonian.

Take Action

Do you have a possible malpractice suit? Questions to ask a potential lawyer: How many years have you been in practice? What percentage of the cases you handle are medical malpractice/accident cases? Have you lost a case? (Very few lawyers have a perfect record so a “yes” to this question is not a deal breaker.) Will the attorney you’re meeting with be your day-to-day contact? If not, who will be? Be aware that on average, medical malpractice cases take 2-3 years to resolve. Take your time and ask enough questions to ensure that you are comfortable with your attorney. Don’t hesitate to call back after your initial appointment with more questions.

That was Ackerman’s plan – to go home after the surgery – but things didn’t go as anticipated. “After the early morning operation, I woke up in a hospital room. It was dark outside. Nighttime. I was supposed to be home. Yet, there I was, hooked up to tubes, my friends and family there. My mother was crying.”

“‘We think the swelling in your neck is the cause of your paralysis,’ my doctor said,” Ackerman recounted. “Paralysis? The shock of hearing that word was only slightly more unnerving than the news I received a few weeks later.

“A friend told me that an acquaintance of his was in the operating room during my surgery and had witnessed a second-year resident performing most of the procedure. I had put my faith and trust in one doctor. I had gone under the anesthesia with the understanding that the physician I had selected would be performing my surgery. I began to look for legal representation. That’s when I received a big surprise.”

Finding Attorneys for Medical Malpractice Cases Not Easy

“One well-respected Portland lawyer told me I had a case, but he wouldn’t represent me because I had the surgery at OHSU. Doctors at OHSU claim protection under the Oregon Tort Claims Act, a law designed to limit liability for public agencies,” wrote Ackerman. “If you file a medical malpractice claim against an OHSU doctor, you are limited to a maximum of $200,000 in damages.

“The cost, I learned, of preparing a malpractice claim for trial is too great and doesn’t pencil out with those limits in place. In other words, I discovered that OHSU doctors are virtually unaccountable.”

Ackerman eventually found an attorney “who believed that with the right approach, we could make a difference. We filed suit against the OHSU Medical Group, which the doctors established in 1998 for the express purpose of separating themselves from OHSU Hospital. It’s our contention that these doctors shouldn’t be able to hide behind any kind of public protection,” Ackerman stated.

He goes on to explain that after months of physical therapy he has regained most of his mobility. Nonetheless, during the two years since the horrible incident, “reality set in,” he penned. “I would live the rest of my life in pain and with limited use of my right hand. I can’t open a jar of baby food for my young son. I will never be able to put on a glove and play catch with him or teach him many of the things my father taught me.”

Ackerman’s trial was set for August when “a jury will decide if the OHSU Medical Group doctors are public agents or private businessmen,” wrote Ackerman. “If jurors rule in our favor, it will open the door for many others to get the most of basic questions answered – questions a patient has a right to know when a routine day surgery turns into a lifelong disability.”

To see how Ken Ackerman's case turned out click here.

Are Caps on Medical Malpractice Cases the Answer? – Patients’ Rights vs. Insurance Companies and Physician Groups

Ken Ackerman’s tragic experience at the hands of a negligent neurosurgeon and an inexperienced resident occurred in 2004, the same year Oregonians went to the polls and rejected a measure to place a constitutional cap on jury awards in medical malpractice cases.

This issue that is on the drawing board of states throughout the nation bears treatment here since at essence it pits patients’ rights to equal protection against the interests of insurance companies and the American Medical Association (AMA).

As an editorial in the Oregonian argued, caps are the wrong solution to giving doctors relief from their malpractice insurance premiums.

“The state should do more to assist doctors in high-need, high-premium areas,” editors wrote. “But Oregon citizens shouldn’t limit their own ability to be compensated if their health is ruined by a reckless healthcare provider.”

Reckless healthcare provider. The phrase makes Helen Jean Brown wince [see Part One of this story for her late mother’s sad story], and we assume former Gov. Barbara Roberts would do the same thing if we contacted her. Clearly the words must also have made Ken Ackerman grimace as the man worked with his attorney to prepare for his court date in which he will have to relive in detail the horror of waking up from “a dime a dozen” surgery to find he was paralyzed. Oregonian editors don’t stop there, however. Rather they speak of procedures “botched by cavalier doctors or in poorly-run facilities.” They also give kudos to Oregonian voters for rejecting caps on non-economic damages in medical malpractice cases. (The proposed caps would have limited awards to $500,000, adjusted annually for inflation. This was the measure that that Oregon hospitals, physician organizations and insurance companies spent $6 million on trying to convince voters otherwise.)

The Portland newspaper also made three salient points about caps, and why in its view they are not an appropriate way to deal with current problems in Oregon or elsewhere.

“First, the caps aren’t for honest mistakes. They’re for ‘negligent or reckless injury’ to patients. Juries should retain the right to sue the stethoscopes off doctors who harm patients through negligence.

“Second, the caps would give juries less latitude in malpractice cases involving senior citizens. Retired and elderly people whose lives are ruined by negligent doctors or facilities won’t get much money for lost wages or long-term medical care. In those cases, the best option that juries have for punishing negligence is through non-economic damages.

“Third, Gov. Kulongoski and the Legislature already tackled Oregon’s worst insurance problem with a new, four-year $40 million program to subsidize malpractice premiums for rural doctors. The subsidy program is no substitute for insurance reform, but it’s an excellent stopgap measure. More, 1,000 doctors who practice in rural Oregon already have signed up. (In the short term, the state could expand this premium relief to more doctors who work in high-demand, high-premium specialties such as neurosurgery. In the long term, the state should make insurance companies more accountable when they set rates.)”

That said, Oregonian editors also acknowledge that many “doctors are truly in a bind. Their reimbursements for Medicaid and Medicare patients are too low. Their malpractice premiums are too high. Many of the hospitals where they do surgery or deliver babies are crunched for money and staff. Doctors are stretched thin, and worried about making mistakes. They do need help. A cap is a wrong fix.”

Journalist Finds Physicians Doing Better than in 1980s – Malpractice Costs Hardly Put Dent in Doctor’s Net Income

After the 2004 editorial, however, Joe Rojas-Burke, staff writer at the newspaper, looked into the matter of malpractice insurance and pulled together an article in May 2006. What he found was that despite their cries to the contrary, physicians in Oregon and across the nation are actually doing better than those in their profession did in the 1980s.

Here’s how Rojas-Burke begins his provocative article: “The price of malpractice insurance has soared to crisis levels in Oregon and 19 other states, according to the American Medical Association and other physician groups. But has it really?” The journalist goes on to draw on information published in a recent issue of the journal Health Affairs that suggests “malpractice premium costs have hardly put a dent in the average doctor’s net income.”

And what is a physician’s average take-home pay? Approximately $160,000 for an internist (general practitioner) to $240,000 for ob-gyns – this is after they pay for malpractice insurance and other expenses.

Rojas-Burke also found that professor Marc Rodwin at Suffolk University Law School canvassed AMA surveys of self-employed physicians from 1970 through 2000 and discovered that “for doctors nationally, premiums rose by an average of $416 a year over that time. The average annual price was $18,400 in 2000, slightly lower when adjusted for inflation than the price in 1986.”

Rojas-Burke goes on to state that “malpractice coverage never accounted for more than 11 percent of overhead costs, and stood at 7 percent of practice costs in 2000.”

Rojas-Burke’s findings indicate that physicians are not unfairly burdened. But Body1 doesn’t want to leave the discussion of this important topic languishing within the borders of a single Pacific Northwest state. Join us in Part Three of this series to read about the size of average malpractice awards and how states across the nation are trying to strike a balance between protecting patients and orchestrating policies that hospitals, physicians, and insurance companies will tolerate.

Last updated: 12-Sep-06