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MALPRACTICE CLAIMS HAVE DECREASED

 

Doctors in West Virginia say a medical malpractice crisis

 

threatens the state. Rising insurance rates are driving them to retire

 

early, limit their practices and even leave the state, they contend.

 

Doctors and insurers blame the frequency and severity of what they

 

describe as mostly meritless lawsuits filed against doctors in the

 

Mountain State. Lawyers say patients deserve compensation when negligent

 

doctors harm them. Who really pays the high price of medical

 

malpractice?

 

A three-day investigative series beginning today digs beneath the

 

rhetoric to examine the malpractice climate in West Virginia.

 

 

 

The Capitol swam with white as doctors in lab coats thronged the

 

Rotunda Tuesday, a climax of a lengthy campaign protesting rising medical

 

malpractice insurance rates.

 

 

A spotty public address system and the Rotunda dome muffled the series

 

of speakers at the White Coat Day rally. But the crowd cheered along

 

anyway, probably because they knew the "talking points" by heart.

 

 

The West Virginia Medical Association has echoed these "talking points"

 

for more than a year now, summed up in a glossy brochure handed out to the

 

lobbied legislators:

 

 

"These [insurance] rates are being driven up primarily by the frequency

 

and severity of lawsuits," the brochure said, invoking the campaign's

 

central mantra.

 

 

The rally's numerous signs also reflected these talking points: "1 out

 

of 2 W.Va. docs sued," "Come to W.Va. and be sued," and "We need tort

 

reform stat."

 

 

There are other talking points. "Aggressive" lawyers and "liberal"

 

judges allow "outrageous" damage awards against doctors. West Virginia

 

outranks surrounding states with the amount of money awarded in

 

malpractice suits.

 

 

The brochure also said, "Over 85 percent of [malpractice] suits

 

were either dismissed as meritless or a jury ruled the doctor did nothing

 

wrong," quoting figures from an insurance company, Medical Assurance.

 

 

Doctors have repeated these points in opinion articles for nearly a

 

year. Newspapers from around the state have printed stories about what is

 

being called a crisis, sometimes echoing the talking points word-for-word.

 

 

"Nobody likes to pay higher insurance rates, but insurance companies

 

just don't pull these numbers out of a hat," one such article quoted an

 

insurance company official as saying.

 

 

A Sunday Gazette-Mail investigation suggests otherwise. Few, if any, of

 

these talking points are supported by a computer-assisted analysis of

 

every malpractice claim reported to the West Virginia Board of

 

Medicine since 1993.

 

 

The Gazette-Mail looked at nearly 2,300 reports of resolved

 

claims, filed as required by law with the board. Among the

 

findings:

 

 

- The number of malpractice claims has declined over the

 

eight-year period.

 

 

- Less than one-fifth of the doctors licensed in the state were

 

involved in a claim reported during the entire period.

 

 

- Less than 4 percent of the doctors were involved in claims

 

filed, on average, in any given year.

 

 

- Nearly 200 doctors accounted for three or more claims each;

 

more than 20 had more than five.

 

 

- More than two-thirds of the cases ended with a settlement or damage

 

award verdict.

 

 

- Forty doctors account for more than one-fourth of the $354 million

 

worth of verdicts and settlements reported during this period.

 

 

- The total amount of settlements and verdicts reported each year has

 

been fairly consistent, and has actually declined since the early 1990s.

 

 

National figures, meanwhile, rank West Virginia in the bottom-half of

 

  • tates for both the total and the median payment in malpractice
  •  

    claims. The state ranks below all of its neighbors for total

     

  • ettlements and verdicts, and below or with its neighbors for median
  •  

    payments, the figures show.

     

     

    "The loss of a chance"

     

     

    People sue doctors for different reasons, the reports filed with the

     

    Board of Medicine show.

     

     

    The family of Frank DeCapio, a Brooke County man, sued Dr. William

     

    Booher alleging he missed signs of the cancer that killed DeCapio. He was

     

    34.

     

     

    Booher, who is no longer licensed to practice in the state, agreed to

     

  • ettle the malpractice claim for $900,000. "Dr. Booher admitted
  •  

    [liability] and demanded the company settle on his behalf," his insurance

     

    company reported to the Board of Medicine in 1997.

     

     

    Dr. Ernest Jerome Bonitatibus was blamed by the family of Charles

     

    Horbatak after the 57-year-old died of a heart attack in 1993. Horbatak

     

    had gone to the hospital earlier that day complaining of chest pains, the

     

    claim report said. He was diagnosed with pneumonia and sent home. The

     

    family settled the claim with Bonitatibus and the hospital, which they

     

    blamed for hiring Bonitatibus, for $1 million, the report said.

     

     

    More than 400 people died because of doctor mistakes, the reports filed

     

    with the Board of Medicine since 1993 alleged. More than one-fourth of the

     

    reports that detailed the alleged malpractice involved a patient's

     

    death.

     

     

    The lawyers who represent the survivors of such patients question how

     

    these claims can be called "frivolous."

     

     

    "This is what doctors don't understand. We have standards," said Bill

     

    Druckman, a Charleston lawyer. "It's not that they're bad people or

     

    they're evil or they intend to harm somebody. But if they are negligent,

     

    and that negligence harms somebody, our court system holds them

     

    accountable."

     

     

    But the lawyers who defend the doctors question whether

     

    malpractice claims wrongly second-guess the complex, often

     

  • plit-second decisions doctors must make.
  •  

     

    "Medicine is not a complete and accurate science. There is a lot of art

     

    involved," said Donald R. Sensabaugh Jr., a Charleston lawyer. "Human

     

    beings are different, and not everybody has the classic symptoms of an

     

    illness that you see in a textbook."

     

     

    Since 1993, verdicts and settlements in claims filed over deaths

     

    - whether blamed on botched surgery, a delayed or wrong diagnosis, or

     

    other malpractice - totaled more than $82 million. That's about a

     

    quarter of all the payments reported to the board.

     

     

    "You essentially evaluate how much longer the patient would have

     

    lived," said Donald J. Tennant Jr., a Wheeling lawyer who has represented

     

    both doctors and patients, of such compensation. "It is the loss of a

     

    chance. When it's a breadwinner, it's devastating."

     

     

    National studies indicate that patients die much more frequently while

     

    in a doctor's care than malpractice claims would suggest. A

     

  • ow-famous Harvard study, for instance, reported that one out of every 200
  •  

    people admitted to a hospital died because of a hospital mistake.

     

     

    USA Today recently previewed a study slated for the March issue of

     

    Chest, a medical journal. The study found that one out of every five

     

    patients who died in a top-rate intensive care unit had been misdiagnosed

     

    by a doctor.

     

     

    Jackpot justice?

     

     

    Negligence and mistakes blamed on doctors prompted settlements and jury

     

    verdicts that totaled $354 million between 1993 and last year, according

     

    to the reports filed with the Board of Medicine.

     

     

    The largest single award during that time was $5.7 million, paid on

     

    behalf of Dr. Alber Lewis Ghobrial. A Wheeling psychiatrist, Ghobrial was

     

    targeted in a claim filed after a Wheeling riverboat pilot, Mark Storm,

     

    left the mental health facility where he had sought treatment. Storm, 30,

     

    then murdered his mother, his wife, their two children and a brother

     

    before killing himself in 1997.

     

     

    Million-dollar settlements or jury verdicts are relatively rare in West

     

    Virginia, the filed reports show. Only 63 settlements and verdicts topped

     

    $1 million, about 4 percent of the 1,523 cases resolved in the plaintiff's

     

    favor. The median settlement during those eight years was less than

     

    $100,000, while the median verdict was $343,323.

     

     

    West Virginia doctors must report malpractice cases to federal

     

    health officials, much like they do to the state Board of Medicine. The

     

    National Practitioner Data Bank lists these cases, though the doctors and

     

    patients are not identified.

     

     

    The NPDB ranked the state 35th for its median malpractice

     

    payment. Pennsylvania had the nation's second-highest median payment,

     

    while Maryland ranked 13th. Ohio, Virginia and Kentucky were ranked 23rd,

     

    38th and 39th, respectively.

     

     

    The Gazette-Mail obtained and analyzed the NPDB records. West Virginia

     

    ranked behind all of its neighbors for total settlements and verdicts

     

    reported in 1999, the most recent year for available data. It lagged

     

    behind all of those states except Kentucky for total payments each year

     

    between 1992 and 1998.

     

     

    In West Virginia, the seven-figure claims almost always involved

     

    either a death or an infant who suffered brain damage during birth. Those

     

    infant claims represent another closely contested area of medical

     

    malpractice.

     

     

    "The tragedy about this, you have a horribly injured child," said

     

    Sensabaugh, the Charleston defense lawyer. "It's a very difficult case for

     

    a doctor to defend, because there's enormous sympathy for the infant's

     

    family."

     

     

    Sensabaugh said that some of these suits overlook or ignore other

     

    factors, such as genetic disorders, as the true source of the birth

     

    defect.

     

     

    The lawyers who represent the families of such children could not

     

    disagree more.

     

     

    "The fact is, when you choke a baby or starve a baby of oxygen during

     

    delivery, an honest doctor isn't going to tell you that the resultant

     

    brain damage is due to genetics," said Druckman, the Charleston lawyer.

     

    "If you don't get the baby out, you may very well be held responsible."

     

     

    Druckman represented the family of a brain-damaged infant awarded the

     

    largest medical malpractice verdict in state history, a $15.25

     

    million jury verdict in 1990. The Supreme Court later reduced the amount

     

    to a now-record $11.75 million.

     

     

    Druckman said infant cases dispel another myth about malpractice

     

    lawsuits: that they're filed willy-nilly by greedy or overly aggressive

     

    trial lawyers.

     

     

    "It costs between $75,000 to $100,000 to pursue a brain damage case,"

     

    he said. "Any lawyer who thinks they're going to win that kind of case

     

    with sympathy is going to go out of business."

     

     

    Most other malpractice cases cost from $50,000 to $100,000 to

     

    prepare, between gathering evidence and testimony, hiring experts, etc.,

     

  • aid Druckman and other lawyers.
  •  

     

    "There used to be an argument that you file a suit and someone just

     

    throws money at you to make it go away. Nobody does that. That's crazy.

     

    That's suicide," he said.

     

     

    Though Sensabaugh said he believes he has seen his share of meritless

     

    cases, he agreed that the cost of developing a case may determine whether

     

    it is ever filed.

     

     

    "There is malpractice that occurs that causes minor injuries,

     

    but those people don't have recourse because no one will take their case

     

    and file an action," he said.

     

     

    A question of merit

     

     

    Not every malpractice claim that is dismissed was frivolous. For

     

    that matter, not every claim that settles out-of-court has merit, say

     

    targeted doctors and the insurance companies who reported their cases to

     

    the Board of Medicine.

     

     

    The reports filed with the board are replete with denials of fault and

     

    other defenses among the 1,458 cases that ended with settlements. For

     

    example:

     

     

    - 23 cases settled for "economic reasons" for $2.7 million

     

     

    - 11 cases settled for "nuisance value" for $130,000

     

     

    - 37 cases settled for $7.3 million despite "liability denied" by

     

    doctor

     

     

    - 74 cases settled as a "compromise of disputed claim" for $14.8

     

    million

     

     

    - 18 cases settled for "cost of defense" for $753,000

     

     

    The lawyers who represent patients bristle at how the doctors and their

     

    insurers sometimes sum up the alleged malpractice in these reports.

     

     

    "I have seen some very self-serving statements of non-liability in

     

    cases where there were egregious, just egregious actual facts," said

     

    Tennant, the Wheeling lawyer. "What doctors want you to believe is that

     

    every settlement is a cost-of-defense settlement. I see very few insurance

     

    carriers willing to pay cost-of-defense in cases where there is no risk of

     

    losing. Those cases are being actively defended and tried."

     

     

    At least 50 of these settled cases involved a death. One blamed a

     

    doctor who failed to answer his pages before his patient delivered a

     

  • tillborn infant. Another doctor settled a disputed case in which a
  •  

  • urgical sponge was left in a woman's stomach after a C-section.
  •  

     

    The reports filed with the board also sometimes explain why

     

    claims are dismissed. About a dozen were dismissed because a

     

    law-imposed deadline blocked the patient from pursuing the case. Another

     

    120 cases were closed because the patient agreed to drop the doctor from

     

    the suit.

     

     

    Such dismissals appear in cases where more than one doctor has been

     

    blamed. The reports that identified patients by name listed a total of

     

    1,736 names. Nearly 200 of those names appeared in more than one report

     

    filed with the board.

     

     

    A number of those dismissal reports said that other doctors or

     

    hospitals remained defendants in the claims. Other such reports

     

  • aid that another doctor or the hospital involved agreed to settle the
  •  

    case in exchange for the dismissals.

     

     

    The Gazette-Mail shared its computer-assisted analysis with the

     

    president of the West Virginia Medical Association on Tuesday, White Coat

     

    Day at the Legislature. Dr. John Holloway distanced his group from the

     

    "talking points" that its campaign has trumpeted, as recently as that

     

    morning during the Capitol rally.

     

     

    "You have to understand, these are the numbers given us by Medical

     

    Assurance," he said. "I'm not defending the insurance company. I'm not a

     

  • pokesman for the insurance company."
  •  

     

    While he was not accepting or refuting the analysis, Holloway said,

     

    "It's silly to argue about numbers. We're concerned about the direction of

     

    the practice of medicine in West Virginia."

     

     

    Frank O'Neil, a vice president for Medical Assurance, said Friday that

     

    the insurer stands by the numbers, noting that they reflect only Medical

     

    Assurance cases.

     

     

    Sensabaugh, the Charleston defense lawyer, said his firm represents

     

    more doctors in malpractice cases than any other in the state. He

     

  • aid he believes more claims have been dismissed than have been
  •  

    reported to the Board of Medicine, based on his firm's success rate.

     

     

    "I know for a fact that at our firm, the doctor has not paid anything

     

    in between 80 and 90 percent of the cases," he said. "I suspect that there

     

    is an underreporting of dismissals."

     

     

    Insurance companies face fines of between $1,000 and $10,000 for

     

    failing to report resolved claims. Board of Medicine Executive

     

    Director Ronald Walton said no insurer has been fined or sent a written

     

    warning for failing to report a claim between 1993 and last year.

     

     

    "Someone would have to report it to us, but I don't recall any sent

     

    within the last eight years," he said.

     

     

    Focusing blame

     

     

    It was at a large gathering of West Virginia's doctors that their

     

    group's president decided to devote his entire address to the "evils" of

     

    malpractice lawsuits.

     

     

    "The successful prosecution of one such suit implies a succession of

     

    them," he said. "The desire for the easy attainment of a fortune, by a

     

    prosecution for malpractice grows like a contagion and spreads like

     

    an epidemic."

     

     

    The situation grows worse "on account of the magnitude of the damages

     

    awarded by ignorant juries," he continued "The institution of such a suit

     

    against a [doctor] should be regarded as an attack on the whole

     

    profession. We should present a united front in repelling it."

     

     

    Though it may sound like it, the speech was not delivered at White Coat

     

    Day at the Legislature.

     

     

    A doctor named R.H. Cummins gave the speech in 1873, as president of

     

    the state's Medical Society.

     

     

    Since the state was born, medical malpractice lawsuits have been

     

    a hot topic for some doctors in West Virginia. In fact, the only sort of

     

    "tort reform" - laws that change how lawsuits are settled and how civil

     

    juries decide cases - recently passed in West Virginia addresses medical

     

    malpractice lawsuits alone.

     

     

    This law, passed in the 1980s, limits the amount of money juries can

     

    award to compensate the victims of doctors for "non-economic" damages:

     

    pain, suffering and similar intangible injuries.

     

     

    The Supreme Court has twice ruled that this $1 million cap is

     

    constitutional, as recently as last year. But the court voted to

     

    reconsider the cap earlier this year, setting the stage for yet another

     

    legal showdown between doctors and the patients who sue them alleging

     

    malpractice.

     

     

    "Somehow, the argument is that doctors shouldn't have to live up to a

     

  • tandard required by law," said Druckman, the Charleston lawyer. "Plumbers
  •  

    have standards, car dealers have standards, and doctors have standards."

     

     

    "The Price of Practice" continues Monday in the Charleston Gazette with

     

    a look at medical malpractice insurance and the state Medical

     

    Association's quiet deal with one provider.

     

     

    To contact staff writer Law-rence Messina, use e-mail or call 348-4869.

     

     


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