COMMENTARY

Malpractice News Heats Up in States; Mega Payouts Persist

Wayne J. Guglielmo, MA

Disclosures

August 09, 2012

In This Article

Medical Malpractice News Heats Up in Several States

July ended with the Missouri Supreme Court striking down the state's $350,000 cap on noneconomic damages in medical malpractice cases because it "infringed on a person's right to a jury trial, which includes the right to have a jury set damages."[1] But Missouri wasn't the only state making medical liability news recently, as the following sampling makes clear.

Maryland. Up until now, Maryland was among several jurisdictions that bar a plaintiff who contributes to his or her own injury from recovering damages in a medical or other liability suit. A legal challenge now before the Maryland high court, however, could put an end to the state's "contributory liability clause," as it's known, thereby exposing doctors, among others, to more lawsuits, according to a posting on amednews.com. [2]

The case involves assistant soccer coach James Coleman, of Fulton, Maryland. After swinging from a goalpost, Coleman "experienced multiple facial fractures when the goalpost fell on him." He sued the Soccer Association of Columbia, claiming that it failed to warn him of the dangers involved in his activity and failed to inspect the goalpost to ensure that it was securely anchored to the ground.

In 2011, jurors found the soccer association negligent, although it also found that the plaintiff's actions had contributed to the accident. Under the state's contributory negligence clause, therefore, he was barred from receiving any reward.

But Coleman appealed, with his attorney arguing that the contributory negligence doctrine is outdated and should be replaced by a doctrine of "comparative negligence." This doctrine would enable a jury to determine each party's level of responsibility and allocate liability accordingly. In a medical liability suit, for example, a patient deemed to be 25% responsible for his injury -- whether through his failure to comply with a prescribed medication regimen or some other form of noncompliance -- would have his award reduced proportionately.

Besides Maryland, 3 states (Alabama, North Carolina, Virginia) and the District of Columbia make use of the contributory negligence clause. Most other states have adopted the comparative negligence clause, according to experts.

Medical societies in states that cling to the older doctrine are scared of a trickle-down effect if the Maryland high court should rule in favor of the plaintiff. But plaintiffs' attorneys, including Coleman's own, think that contributory negligence is too all-or-nothing and results in unfair verdicts. "Comparative negligence is an inherently fair system of justice," Coleman's attorney says.

Pennsylvania. In the Keystone State, the number of malpractice cases has remained fairly level during the past decade, but at least 1 Pennsylvania country, Lancaster, has already seen a surprising uptick in filings this year, according to a report on lancasteronline.com.[3]

In the first 6 months of 2012, 18 malpractice cases have already been filed; at this pace, the year-end total could exceed 39, the number of cases filed in Lancaster County in 2002, the single-year record.

In contrast, after peaking in 2002, the number of cases filed statewide has remained more or less constant, a trend many observers attribute to rule changes made that year by the Pennsylvania Supreme Court, including one designed to limit "venue shopping." In 2002, plaintiffs in Pennsylvania brought roughly 2900 med-mal lawsuits. The following year, after the high court enacted its rule changes, that number fell to somewhat over 1700 and has declined more or less steadily ever since. Last year, only about 1530 suits were filed.

Why the countertrend in Lancaster? No one knows for sure, but both defense and plaintiffs' attorneys agree that it has something to do with the wider availability of services. "If you have more care provided here, you have the potential for more clusters" of malpractice suits, explained James Saxton, a Pennsylvania defense attorney. Saxton also believes that another factor has contributed to the uptick in filings, and not just in Lancaster County: "All over the country we're seeing the frequency bump up a bit, and I think the economy plays into the liability picture," he says, perhaps because during hard times juries become more sympathetic to injured plaintiffs.

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