Paying for their mistakes

Study argues against malpractice ‘caps'

Schelly Sanders looks at a nurse's note that was prepared for her malpractice suit after a doctor's mistake during a rou
Schelly Sanders looks at a nurse's note that was prepared for her malpractice suit after a doctor's mistake during a routine surgery left her with years of medical complications and well over a million dollars in bills. Taken at her home in Moline, IL on Monday, January 11, 2010. (Cliff Jette/The Gazette)

CEDAR RAPIDS - She fought the odds after a medical mistake nearly took her life. Many saw her survival as a miracle.

Schelley Sanders, in a January 2010 interview with The Gazette, described how she went into a Davenport hospital in 2003 for a simple procedure — to have her fallopian tubes tied. But the doctor unknowingly punctured two holes in her bladder.

She developed sepsis — a severe infection — and a flesh-eating virus. She lapsed into a “locked in” state, losing all muscle control for several months. She then had to relearn how to walk and talk. After her rehabilitation, she was left with permanent injuries and severe chronic pain.

Sanders sued the doctor for medical errors and won a substantial settlement just before the case went to trial in 2009. The settlement amount was confidential, but it was enough to pay the majority of her medical expenses, which totaled more than $1.9 million, and to provide for her two sons, Robert and Michael.

Sanders died Aug. 11 at age 43 of ovarian cancer, which likely stemmed from having more than 100 X-rays taken since 2003, according to information doctors provided to Davenport attorney Michael Bush, who represented Sanders in the lawsuit.

Sanders’ death came the same month a new study by the New England Journal of Medicine showed how difficult it is for patients, like Sanders, to win payment for medical errors, said Tim Semelroth, a Cedar Rapids lawyer who handles malpractice cases.

According to the study, most malpractice claims are dropped without payment, and the majority of doctors don’t have to pay for any medical mistake they might make in their lifetime.

The study analyzed claims filed by patients with a doctor’s insurance company from 1991 to 2005 from an unidentified major malpractice insurer, which operates in 50 states and the District of Columbia, and involved nearly 41,000 doctors.

In every medical specialty, at least three out of four claims didn’t lead to a payment, according to the study. In many specialties, about nine out of 10 claims didn’t lead to a payment.

Semelroth said the study also debunks a common argument for “caps” on medical malpractice damages. Those favoring caps argue insurance companies are getting hit with “high payouts” to patients, which make doctors’ malpractice premiums increase, he said.

Semelroth said more than one study has disputed that caps lower malpractice insurance rates. The American Association for Justice, the national trial lawyers association, conducted a study in 2009 that showed caps only benefit insurance companies, who profit in states with caps, while doctors’ malpractice and patients’ health insurance premiums continue to increase.

Semelroth said if Iowa capped malpractice damages at $250,000 — an average quality-of-life cap in about 27 states — it wouldn’t have paid a fraction of Sanders’ medical bills and continuing care. He expects some sort of tort reform will come up in next year’s legislative session in Iowa.

Brian Atchinson, president of Physician Insurers Association of America, an insurance industry trade association in Rockville, Md., has a different view on the New England Journal study.

The study, he said, proves what the association has claimed for years — that the vast majority of claims and lawsuits brought against health-care providers are without merit.

“Our figures show that 70 percent of the claims and suits brought against doctors do not result in payments to patients,” Atchinson said. “Furthermore, for claims resolved at verdict, the defense prevails 80 percent of the time.”

Semelroth pointed out the study doesn’t evaluate the merits of the claims that were dropped and doesn’t address lawsuits, only claims.

He also said that a 2006 Harvard University study found most negligence claims were meritorious, with 97 percent of claims involving medical injury and 80 percent involving physical injuries resulting in major disability or death.

It’s an “uphill battle” for injured patients to get compensation and the focus shouldn’t be on capping damages; it should be on preventing medical errors, Semelroth said.

A report in 1999 by the Institute of Medicine estimated that 98,000 Americans die as a result of a medical mistake in any given year.

Semelroth said not all medical errors are as extreme as Sanders’ case, but a medical mistake has to be significant for him or any attorney to pursue a case because of the expense involved. The average cost of such a lawsuit is $50,000 or more, which is for medical experts, not for the attorney. It takes about three years to get to the trial or settlement, possibly longer in Iowa as a result of the court budget cuts.

Bush, the Davenport attorney who represented Sanders, said one of his recent cases cost about $140,000 to pursue.“If this was Texas, we wouldn’t have been able to pursue her (Sanders’) case,” Bush said. “The cap is $250,000 for non-economic loss. These malpractice cases are really heartbreaking, and most (patients) are heroes. Schelley was one of those.”