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Florida Malpractice News
Malpractice costs aren't a real crisis
Study: Claims don't lead to price increases
By Rocky Scott
DEMOCRAT STAFF WRITER
A comprehensive study of medical malpractice claims in Florida since 1990 shows
no sharp increase in lawsuits relative to population growth and a modest
increase in the size of settlements, according to two Duke University
professors.
"When we compared the number of malpractice cases to the population in Florida,"
said Neil Vidmar, a professor at Duke's School of Law, "there has been no
(large) increase in medical malpractice lawsuits in Florida."
Vidmar, who has a Ph.D. in sociology, was joined by Dr. Paul Lee, a professor at
Duke University's School of Medicine and an attorney, in conducting the study.
Vidmar said the data in the study came from public records filed at the Florida
Department of Health since 1975, when a law was passed to require medical
malpractice insurance companies to file extensive information annually on
claims.
The medical malpractice controversy has been a hardy perennial in the
Legislature.
After intense lobbying by insurers and doctors and a special session in 2003,
lawmakers passed a bill that placed caps on damage awards in medical malpractice
cases in hopes of stemming insurance rate increases.
And last November, voters approved three constitutional amendments dealing with
the issue.
Two of the amendments were pushed by lawyers and the third by doctors. The
doctors' amendment limits fees of lawyers representing patients by guaranteeing
clients a greater share of damages.
The lawyers' amendments require doctors and hospitals to make reports of their
medical mistakes public and to take away the licenses of doctors who commit
three incidents of medical malpractice.
Data supplied by the state Office of Insurance Regulation shows in the past two
years, the top four medical malpractice insurance companies in Florida were
granted rate increases averaging 19.3 percent in 2004 and 9.3 percent for this
year.
Since the mid-1970s, doctors and insurance companies have cited increasing
numbers of medical malpractice lawsuits and huge jury awards as the reason for
rapidly rising malpractice premiums.
Trial lawyers say the number of lawsuits and the size of awards have not
increased enough to justify premium increases sought by insurers.
The Duke study shows that average awards, in 2003 dollars, have increased from
$176,603 in 1990 to $300,280 in 2003.
Vidmar, who has written several studies of the civil litigation system, said
public records show no increase in medical malpractice claims from 1990 through
2003. He said the study reviewed data from 1975, but focused on claims filed
since 1990.
The study shows 2,776 total medical malpractice claims filed in Florida in 1990.
That figure includes all claims that did not involve lawsuits and those in which
suits were filed.
Some medical malpractice claims are settled before litigation begins.
The number peaked with 3,093 claims in 1996 and declined to 2,063 in 2003, the
last year surveyed in the study. In the same period, the number of doctors in
Florida increased from 32,425 in 1990 to 48,706 at the end of 2002, the study
shows.
Median medical malpractice claims payments in 1990 were $28,517 per claim and
$150,00 per claim in 2003. Vidmar said rising health-care costs and more serious
injuries resulting in larger claims or litigated payments caused the increase in
the claim total.
Finally, the report concludes the "vast majority of million-dollar awards were
settled around the negotiation table rather than in the jury room."
Of the 831 million-dollar awards reported since 1990, 63 were awarded by juries.
The rest occurred as settlements.
Of the 37 claims that received awards of $5 million or more, only two claims
went before a jury - the rest were the result of settlements.
"At this stage," the report says, "debate about the role of juries in so-called
'mega' awards is misplaced insofar as Florida is concerned."
Vidmar's study comes on the heels of a similar report from the University of
Texas that was released last week. Assembled by four law professors, the Texas
study mirrored the Duke report.
"We find no evidence of the medical malpractice crisis that produced headlines
over the last several years and led to legal reform in Texas and other states,"
the report said.
"The rapid changes in insurance premiums that sparked the crisis appear to
reflect market dynamics, largely disconnected from claim outcomes," the report
continued.
Charles Silver, a law professor at the University of Texas Law school, said the
report is based on information provided by the Texas Department of Insurance.
Frank O'Neil, senior vice president of investor relations and corporate
communications at Pronational Insurance Co. in Birmingham, Ala., said he had not
seen the Duke study and could not comment on it.
Pronational is one of the top five medical malpractice insurers in Florida,
according to Office of Insurance Regulation records.
"Our results show just the opposite," O'Neil said, referring to the conclusions
in the Texas and Duke studies. "I think what you are proving is we have
conflicting information."
Medical malpractice continues to be a concern in the Legislature. Committees
this week are crafting bills to implement the constitutional amendments voters
passed. In addition, several lawmakers have filed placeholder bills, which will
deal with medical malpractice but have no details yet.
The Duke study will be published in the DePaul University Law Review, said a
spokeswoman for the Chicago university.
HEALTH INSURANCE
Contact Rocky Scott at (850) 599-2176 or
rscott@tallahassee.com
Democrat
reporter Nancy Cook Lauer also contributed to this story.
Bills set rules on popular measures
By Mary Ellen Klas
CAPITOL BUREAU
A Senate committee launched the debate about how to put into practice three of
November 2004’s most widely supported constitutional amendments, passing bills
that impose new rules on doctors and hospitals that make medical mistakes and
another bill that requires that parents be notified when their underage
daughters seek an abortion.
But each of the proposals drew immediate fire from interest groups who say that
the proposals betray voters by watering down the amendments approved by voters
in November 2004.
In spite of the criticism, the Senate Health Care Committee voted out each of
the measures by a near-unanimous vote.
Trial lawyers, who financed the push for the medical-malpractice amendments,
said the Senate bills "eviscerated" Amendment 8, which requires a doctor to lose
his license if he is found guilty of three medical-malpractice incidents.
Voters approved the "three strikes" measure in November by a margin of 71percent
to 29percent.
Under the Senate plan, the amendment would apply only to medical-malpractice
judgments after Nov. 2, 2004, and limit the way the measure would apply to
doctors who have been found guilty of medical malpractice in other states.
Lawyers also complained that the Senate bill restricts the intent of Amendment 7
- which allows patients to get access to hospital and doctor records on medical
mistakes - by limiting who can obtain the records and prohibiting patients from
using them in a lawsuit.
Under the Senate plan, a patient must supply the last four digits of his or her
Social Security number and indicate ailments before obtaining the records.
Voters approved the "Patient Right to Know Act" by an 81percent to 19percent
margin.
The Senate bill "appears to attempt to narrow the kind of records that can be
accessed by patients," said Paul Jess, general counsel for the Florida Academy
of Trial Lawyers. "It seems to imply that you have to actually be a patient of
the hospital or doctor before you can get the records" and prevents prospective
patients who want to doctor shop.
The Senate committee also pushed through a bill to implement the
parental-notification amendment by establishing guidelines for when a pregnant
girl may get court approval not to tell her parents. Voters approved that
proposal by a vote of 65percent to 35percent.
Minors who want to avoid notifying their parents are allowed to petition the
court in any county and have a right to a court-appointed lawyer, although there
is no guarantee in the bill that the lawyers' fees will be paid. The court must
then give the case an expedited review and keep all records confidential.
Mary Ellen Klas is a reporter with The Miami Herald's Capitol Bureau. She can be
reached at meklas@herald.com
Feud may be as much over money as principle
By Larry Copeland and Jill Lawrence, USA TODAY
PINELLAS PARK, Fla. — Michael Schiavo and Bob and Mary Schindler once were very
close. He was the husband. They were the in-laws.
Terri Schiavo's agonizing struggle for life — or death — grips the nation and
much of the world.
Their shared joy was Terri, Michael's wife, the Schindlers' daughter. In photos
from Terri and Michael's wedding day in 1984 and later, everyone is smiling.
The bonds remained strong even after tragedy befell Terri. Early on the morning
of Feb. 25, 1990, she suffered a heart attack that led to massive brain damage.
Today, Terri Schiavo's agonizing struggle for life — or death — grips the nation
and much of the world. Driving the sorrowful, sometimes angry rhetoric in this
epic clash over the right to live or die is something less cosmic: a vitriolic
family feud.
It is a feud, to some degree, over principle. Michael Schiavo says Terri should
be allowed to die because she told him long before she was stricken that she
would never want to be kept alive by a feeding tube or other such measures. The
Schindlers say their son-in-law is starving Terri to death. They want to keep
her alive and try to rehabiliate her.
But it also appears to be a fight over money — how a $1 million malpractice
settlement Schiavo won 13 years ago over Terri's care should be spent.
Without that emotional public schism, the Schiavo case might simply have been
one of thousands of wrenching family decisions about life and death that unfold
quietly every year.
What once was a fond relationship — Michael Schiavo had called the Schindlers
"Mom" and "Dad" — has dissolved into bitter recriminations playing out in
courthouses, capitols, weblogs and on Larry King Live. Schiavo says he hasn't
talked to his in-laws in years.
Some of the protesters gathered outside Woodside Hospice here have demonized
Michael Schiavo, accusing him of everything from murder to adultery because he
lives with a woman and has two toddlers, a daughter and a son, by her.
It wasn't always this way, according to a USA TODAY review of voluminous records
in the Probate Division of Pinellas County Circuit Court in nearby Clearwater.
Those records show that Michael Schiavo and the Schindlers jointly supervised
care for Terri after she collapsed. For the first 16 days and nights that she
was hospitalized, Schiavo never left the hospital. Over the next few years, as
she was moved from the hospital to a skilled nursing facility, to a nursing
home, to Schiavo's home and finally back to a nursing home, Schiavo visited
Terri daily.
They had met in a class at Bucks County Community College in Pennsylvania. They
were engaged five months later and married on Nov. 10, 1984, in Huntingdon
Valley, Pa. She was, he said, "sweet. Very personable. You would meet her and
just be charmed by her. ... To me, she was everything."
Once Terri was unable to help herself, Michael became a demanding advocate.
John Pecarek, a court-appointed guardian for Terri, described her husband as "a
nursing home administrator's nightmare," adding, "I believe that the ward
(Terri) gets care and attention from the staff of Sabal Palms (nursing home) as
a result of Mr. Schiavo's advocacy and defending on her behalf."
Mary Schindler testified that, while her daughter was at one nursing home, her
relationship with her son-in-law was "very good. We did everything together.
Wherever he went, I went."
Schiavo and the Schindlers even sold pretzels and hot dogs on St. Pete Beach to
raise money for Terri's care. But everything seemed to change on Valentine's Day
1993 in a nursing home near here.
In 1992, Schiavo had filed a medical malpractice lawsuit against two doctors who
had been treating his wife before she was stricken. Late that year came a
settlement: Schiavo received $300,000 for loss of consortium — his wife's
companionship. Another $700,000 was ordered for Terri's care.
Mary Schindler later testified that Schiavo had promised money to his in-laws.
They had helped him and Terri move from New Jersey to Pinellas County, let them
live rent-free in their condominium and had given him other financial help.
"We all had financial problems" after Terri's crisis, she testified. "Michael,
Bob. We all did. It was a very stressful time. It was a very financially
difficult time. He used to say, 'Don't worry, Mom. If I ever get any money from
the lawsuit, I'll help you and Dad.' "
By February 1993, Schiavo had the money from the lawsuit.
On Valentine's Day that year, he testified, he was in his wife's nursing home
room studying. He wanted to become a nurse so he could care for his wife
himself. He had taken Terri to California for experimental treatment. A doctor
there had placed a stimulator inside Terri's brain and those of other people in
vegetative states to try to stimulate still-living but dormant cells.
According to Schiavo's testimony, the Schindlers came into Terri's room in the
nursing home, spoke to their daughter, then turned to him.
"The first words out of my father-in-law's mouth was how much money he was going
to get," Schiavo said. "I was, 'What do you mean?' 'Well, you owe me money.' "
Schiavo said he told his in-laws that all the money had gone to his wife — a lie
he said he told Bob Schindler "to shut him up because he was screaming."
Schiavo said his father-in-law called him "a few choice words," then stormed out
of the room. Schiavo said he started to follow him, but his mother-in-law
stepped in front of him, saying, "This is my daughter, our daughter, and we
deserve some of this money."
Mary Schindler's account of that evening is far different. She testified that
she and her husband found Schiavo studying. "We were talking about the money and
about his money," she said. "That with his money and the money Terri got, now we
could take her (for specialized care) or get some testing done. Do all this
stuff. He said he was not going to do it."
She said he threw his book and a table against the wall and told them they would
never see their daughter again.
A rift beyond repair
The accounts of that confrontation came in testimony during a January 2000
hearing on a petition Schiavo filed to discontinue his wife's life support.
Pinellas County Circuit Judge George Greer ruled the next month that the feeding
tube could be removed.
Despite the row over money, Schiavo and the Schindlers agreed on one major point
in the 2000 testimony: the extent of Terri's brain damage, according to
additional court documents cited by The Miami Herald. In the documents, Pamela
Campbell, then the Schindlers' lawyer, told the court that "we do not doubt that
she's in a persistent vegetative state." Campbell could not be reached to
confirm the statement.
At this point, however, the gulf between Schiavo and the Schindlers could not be
bridged.
"On Feb. 14, 1993, this amicable relationship between the parties was severed,"
Greer wrote. "While the testimony differs on what may or may not have been
promised to whom and by whom, it is clear to this court that such severance was
predicated upon money and the fact that Mr. Schiavo was unwilling to equally
divide his loss of consortium award with Mr. and Mrs. Schindler."
Daniel Grieco, the attorney who handled Michael Schiavo's malpractice case, says
his client never promised money to Bob Schindler. He also said Schindler never
understood that he wasn't entitled to money under Florida law.
Grieco says the money is at the root of the estrangement. "It was the
precipitating factor," Grieco says. "That was the fracture. That was the basis
of it."
Without the acrimony, Terri's life-or-death saga probably would not have become
big news, says Steve Mintz, a history professor at the University of Houston who
studies families.
"There have been similar cases where people have been disconnected, but because
they didn't reach the same level of in-law tensions, they didn't evoke such
strong feelings," Mintz told the Associated Press. "The subtext of this case is
intergenerational tension. Parents are more invested than ever in their
children, even when they're grown."
In a case similar to Terri Schiavo's, a 1983 car accident left Nancy Cruzan
unconscious. She could breathe but needed a feeding tube. The Supreme Court, in
its first right-to-die case, ruled in 1990 that Cruzan had a right to refuse
treatment but said her parents did not present sufficient evidence of her
wishes. Friends said that she would not want to be kept alive; a Missouri court
allowed her tube to be removed. She died 12 days later.
"Nancy Cruzan was also found to be in a persistent vegetative state," says
Kendall Coffey, former U.S. attorney in Miami now in private practice. "But the
family was in agreement. So you've got that extraordinary dynamic (in Schiavo's
case) of a bitter family disagreement."
Mintz says similar end-of-life cases, including one this year involving a baby
in Houston, have not resonated with the public because they did not have the
element of family tension. The money, he told USA TODAY, has become "the symbol
of whether one is genuinely concerned about her interest."
Today, the money from the lawsuit settlement is almost gone, Grieco, the
attorney, says. Just $40,000 to $50,000 remained as of mid-March. The $700,000
in Terri's trust has paid for her care, lawyers, expert medical witnesses.
Michael Schiavo's $300,000 share evaporated years ago, he says.
Views about life, death
Terri Schiavo left no instructions about her care. In such an instance, Florida
law requires a judge to follow a person's last wishes, if they can be
established.
In his order, Greer said he relied upon the testimony of five witnesses
regarding Terri's views about right-to-die issues. Schiavo, his older brother
Scott and Joan Schiavo, wife of another of Schiavo's brothers, all said Terri
had said or indicated that she would not want to be kept alive if her brain
stopped working. Mary Schindler and Diane Meyer, a childhood friend of Terri's,
testified that she she would.
Scott Schiavo testified that after the 1988 funeral for his grandmother, who was
briefly kept alive on artificial life support, a clutch of relatives sat around
a luncheon table in Langhorne, Pa., talking about the way she had died. "And
Terri made mention ... that, 'If I ever go like that, just let me go. Don't
leave me there. I don't want to be kept alive on a machine.' "
Joan Schiavo testified that she and Terri, whom she described as "my best friend
and like a sister that I never had," had discussed artificial life support as
many as 12 times. Joan Schiavo testified that she had a girlfriend who had
decided to take her baby off life support, and that Terri indicated she would
have done the same thing.
Mary Schindler's recollection of what her daughter wanted was different. She
testified that Terri had commented on news coverage of the case of Karen Ann
Quinlan, whose ventilator was turned off in 1976 after her parents went to the
New Jersey Supreme Court. Schindler said her daughter told her this about
Quinlan: "Just leave her alone. Leave her. If they take her off, she might die.
Just leave her alone and she will die whenever."
Lawrence reported from Washington, D.C., Laura Parker McLean, Va., Associated
Press - Florida Malpractice
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