Abe DeAnda Jr., MD. Associate Professor, Department of Cardiothoracic Surgery NYU Langone Medical Center

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1 Malpractice in Cardiac Surgery is the End Result of Bad Lawyers Abe DeAnda Jr., MD Associate Professor, Department of Cardiothoracic Surgery NYU Langone Medical Center

2 Presenter Disclosure Information FINANCIAL DISCLOSURE: Speakers Bureau, Zymogenetics Speakers Bureau, Vascutek Advisory Board, Baxter, Inc. Advisory Board, Oxygen Biotherapeutics UNLABELED/UNAPPROVED USES DISCLOSURE: None

3 Presenter Disclosure Information CONFLICT OF INTEREST: I have been sued before..and probably will be again

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7 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

8 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

9 Is there a Malpractice Crisis? Crisis of the 1970 s In California, between Number of claims doubled Number of losses in excess of 300K increased 11 fold 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)

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

11 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 7 8% stop practicing obstetrics 90% have at least one claim filed against them (average 2.6/MD) Residents begin to avoid high risk 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

12 Is it Just Bad Doctors? Study from the Tennessee Medical Association, January 2005 Between , 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

13 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

14 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

15 The Cost of Defensive Medicine HHS 2003 report estimated cost of defensive medicine to be $ billion /year 2005 estimates increased to $ 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)

16 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

17 Thank you

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