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The example of the dead infant isn’t mere conjecture on our part. According to an investigative piece by Paul Adrian that was broadcast on a Fox TV affiliate in Dallas, a family from that area made the decision to take their infant son off of life support. The infant’s parents were convinced that a preventable medical error had been made which placed their child in that position, but due to the non-economic caps, the cost of bringing the case to court would have cost more than the damages they would have received. As awful as this sounds, it turns out that the only way that damages in a malpractice trial involving a dead baby can be taken seriously in Texas is if the baby was making money. The life altering pain of the parents counts for nothing.

What was the situation like in Texas where such absurd and draconian measures were actually voted into law by its own citizens? Were people whose injuries involved nothing more than stitches walking out of courtrooms with million dollar verdicts? Was the Texas judicial system nothing more than a free ATM machine for unethical people and their equally unethical attorneys? Was there an exodus of doctors from Texas, leaving the injured and sick to fend for themselves? Were the insurance companies bleeding money so badly over lawsuits that they had no choice but to raise their rates to astronomical proportions?

The answer depends on who you ask. If you ask insurance companies and their public relations teams, the answer is yes. If you ask a bipartisan group of college professors, the answer is no.

The piece on the Fox affiliate cites a study that provides 14 years worth of Texas malpractice data, including claims and payouts, through both settlements and verdicts. In this study,

“…The data present a picture of stability in most respects and moderate change in others. We do not find evidence in claim outcomes of the medical malpractice insurance crisis that produced headlines over the last several years and led to legal reform in Texas and other states. At least in Texas, the rapid rise in insurance premiums that sparked the crisis may reflect, in significant part, insurance market dynamics rather than changes in claim outcomes.…Controlling for population growth, the number of large paid claims (over $25,000 in real 1988 dollars) was roughly constant from 1990-2002. The number of smaller paid claims declined. Controlling for inflation, payout per large paid claim increased over 1988-2002 by an estimated 0.1% (insignificant) - 0.5% (marginally significant) per year, depending on the

dataset we use to define "medical malpractice" claims. Jury awards increased by an estimated

2.5% (insignificant) - 3.6% (barely significant) per year, depending on the dataset, but actual

post-verdict payouts in tried cases showed little or no time trend. Real defense costs per large

paid claim rose by 4.2-4.5% per year. Real total cost per large paid claim, including defense

costs, rose by 0.8-1.2% per year.”

In other words, according to the actual numbers, there wasn’t much to panic about in terms of medical malpractice lawsuits.

So why were groups like Texans for Lawsuit Reform claiming that the sky was falling? If there was no big leap in judgments or payouts or even malpractice claims, then why were the premium rates going through the roof?

According to Paul Adrian, the answer might be, ironically, tort reform.

In 1995, Governor George W. Bush enacted what were called “Tort Reform Rate Reductions,” which forced medical malpractice insurers to lower their rates over a period of five years. How significant were the overall rate reductions?

·         1996: $435.5 million in rate reductions

·         1997: $441.2 million in rate reductions

·         1998: $656.4 million in rate reductions

·         1999: $699.5 million in rate reductions

·         2000: $685.5 million in rate reductions

So between 1996 and 2000, the state of Texas enacted regulations that cost medical malpractice insurers a little under THREE BILLION DOLLARS in premiums. Once the five year period was up and the mandatory rate reductions were over, insurance companies were quite eager to make up their losses. Hence the skyrocketing rates.

Insurance companies needed both a fall guy and justification for the spike in premiums, and they found them in trial lawyers. They also needed any sort of legislative leg up that they could get in order to maximize their profits. Since the insurance companies weren’t comfortable with going through the very legislature that made them lower their rates in the first place, they did an end run around them and, with the help of tort reform organizations that they financed and PR firms that they hired, they managed to get Proposition 12 on the ballot. It was voted in to law in November of 2003, and as a result a case involving a dead baby can’t even get to court.

Tort reform organizations all over Texas and all over America are touting the results of these economic caps as the reason that Texas malpractice insurers were able to offer even lower rates to their doctors, as shown in an article in The Austin Business Journal:

“In recent months, the state's top medical malpractice insurance companies have trumped rate cuts. They're crediting the lower rates to Proposition 12, a constitutional amendment approved by Texas voters in September 2003. That amendment cemented the Legislature's decision that year to cap noneconomic medical malpractice damages at $250,000.”

The article also mentions that the Texas Medical Liability Trust will reduce its rates by 5%, while Americans Physician Insurance Exchange is cutting theirs by 13%. And why wouldn’t they? By all accounts insurers in Texas have been making money hand over fist. And the $250,000 cap on non-economic damages is a miniscule proportion of that money.

Remember that after the “Tort Reform Rate Reductions” in the late 90s, insurers raised their rates to astronomical levels, and although they lowered them a bit after Proposition 12 was voted into law, the rates were still incredibly high. We refer again to the remarkable piece by Paul Adrian:

“Insurance premiums did drop for Texas doctors. According to TDI, the state’s largest insurer of doctors, The Texas Medical Liability Trust, dropped its rates 31% between 2004 and 2008, but that's after the rates had jumped up 148 percent between 1999 and 2003.  Insurance rates have come down, but not by nearly as much as they had previously increased.”

For a real world analogy, the Texas Medical Liability Trust bragging about dropping its rates 31% is the equivalent of an 800 pound man losing about forty pounds and then putting out a press release proclaiming that he is “thin.”

To summarize, “Tort Reform Initiatives” cost insurers in Texas billions of dollars, so they spiked the rates and blamed the lawyers in order to recoup what they lost. After securing legal limitations to the rights of Texans, they lowered the rates just enough to appear magnanimous, but not really enough to bring them down to normal levels. They then made it seem that the reason that they could finally “afford” to bring the rates down was not because of the windfall profits that they have made over the past six years, but because of a ballot initiative that states that unless a Texan makes money, then that Texan isn’t worth anything.

It should be mentioned here that the term “emotional pain” does not exist to simply make people rich. It is rather an acknowledgement that incompetence and preventable mistakes can cause crippling emotional hardship. If you think that’s an exaggeration, try to imagine how Paul Pinsukanjana felt when he ordered his infant son taken off life support. Try to imagine how he felt when he discovered that, thanks to the laws of his own state, lawyers can’t even afford to accept his case. Try to imagine how he feels, living with the knowledge that there might be a doctor or nurse still at work at that same hospital who was directly responsible for his son’s death. Try to imagine how he feels, knowing that that same doctor or nurse can continue to practice, with no fear of any adverse consequences if another mistake is made.

As we said, it’s impossible to put a price tag on that kind of pain, but we think that $250,000 feels pretty cheap.

To learn more about medical malpractice law, please read our medical malpractice law home page.  To learn more about our medical malpractice lawyer, John Sellinger, read about John Sellinger, or watch the medical malpractice video by John Sellinger..

Mammograms are certainly useful in the early detection of breast cancer, but to call the technology a golden bullet is going much too far. A study by the U.S. Preventive Services Task Force indicates that a random selection of 1,000 women must receive screenings for 14 years for one woman to be prevented from dying due to breast cancer.

It makes sense that when there are more women receiving regular mammograms there will be more women receiving treatment for breast cancer. However, there have been a number of studies which indicate that mammograms and other breast cancer screening technologies can actually over-diagnose patients. In spite of the great deal of stories about failed diagnosis, mammograms can actually diagnose patients as having life-threatening tumors when, in fact, they are perfectly healthy. This is called over-diagnosis, and can result in women without cancer undergoing painful radiation and surgical treatments unnecessarily. A recent study in the British Medical Journal has compiled a few statistics about the likelihood of over-diagnosis. This study suggests that in a population of 250 (assuming an 8% chance of getting breast cancer) regular mammograms will protect one of the women from a death due to breast cancer. However, the mammograms will also result in the over-diagnosis of two women. The study further indicates that there is no way to distinguish between the three women.

There has also been some discussion in recent literature regarding the utility of magnetic resonance imaging (MRI) in screening for breast cancer. Some studies have been interpreted as recommending this technology over mammograms. However, MRIs are plagued by the same problems of over-detection which affect mammograms. In fact, MRIs cannot even detect all of the types of cancer which can be detected through a mammogram. A recent study found that an MRI could detect 32 types of cancer, but missed 13 other types. Eight of the 13 types that the MRI missed were detected by the mammogram. Additionally, MRIs may also detect normal cyclic hormonal changes as cancer. Doctors recommend that patients who use MRIs for breast cancer screenings use facilities which can also perform MRI-guided needle localizations and MRI-guided core needle biopsies. Another screening tool, sonography, is being tested for its utility in initial breast cancer screenings. The technology is currently used to monitor cancer after it is diagnosed. However, medical professionals agree that the best method of breast cancer screening is a physical examination coupled with a mammogram.

Although mammograms are capable of such over-detection the amount of medical professionals that are capable of performing the procedure is diminishing. Radiologists feel that they do not have much of an incentive to offer the procedure because the cost of performing it is higher than the Medicare reimbursements they receive. Additionally, they fear large liability lawsuits if in fact they do miss a cancer diagnosis. Suggestions for reform include higher Medicare reimbursement rates, and allowing health professionals who are not professionals to conduct initial screenings.

The statistics about over-diagnosis are frightening, and call into question the old saying, ‘better safe than sorry.’ However, this does not mean that you should forego a mammogram, merely, that you should, like everything in life, not always take what you see or hear at face value. Furthermore, let’s not forget the importance of prevention; women who have mammograms every two years are 16- 19% less likely to die from breast cancer.

If you believe that you or a family member has been a victim of misdiagnosis, you may contact Greenberg & Bederman for a free medical malpractice consultation about your legal claims.   To learn more about medical malpractice issues, please read our frequently asked questions on our medical malpractice page.  To learn more about our medical malpractice lawyer, John Sellinger, please read about our firm and go to attorney bios, or watch his medical malpractice video.