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Exposing Myths About Medical Malpractice

Steve Klearman — Tue, 17 Nov 2009 11:15:58 GMT

The American Association for Justice, in its efforts to promote health care reform, has attacked health care reform opponents' arguments that reform will be a heavy financial burden on the health care system.

“All the facts and evidence show that tort law changes will do practically nothing to lower costs or cover the uninsured,” said AAJ President Anthony Tarricone. “It’s no wonder the tort reformers, insurance lobby, and other corporate front groups have to gin up lies and phony stats, since no legitimate data or research supports their claims. Our focus should be on reducing the 98,000 deaths by medical error that occurs every year, not limiting patients’ legal rights.”

The American Association for Justice takes a look at the misconceptions behind the most common positions of health care reform opponents in its Five Myths About Medical Negligence:

Myth #1: There are too many “frivolous” malpractice lawsuits.

Fact: There’s an epidemic of medical negligence, not lawsuits. Only one in eight people injured by medical negligence ever file suit. Civil filings have declined eight percent over the last decade, and are less than one percent of the whole civil docket. A 2006 Harvard study found that 97 percent of claims were meritorious, stating, “portraits of a malpractice system that is stricken with frivolous litigation are overblown.”

Myth #2: Malpractice claims drive up health care costs.

Fact: According to the National Association of Insurance Commissioners, the total spent defending claims and compensating victims of medical negligence was just 0.3% of health care costs, and the Congressional Budget Office and Government Accountability Office have made similar findings.

Myth #3: Doctors are fleeing.

Fact: Then where are they going? According to the American Medical Association’s own data, the number of practicing physicians in the United States has been growing steadily for decades. Not only are there more doctors, but the number of doctors is increasing faster than population growth. Despite the cries of physicians fleeing multiple states, the number of physicians increased in every state, and only four states saw growth slower than population growth; these four states all have medical malpractice caps.

Myth #4: Malpractice claims drive up doctors’ premiums.

Fact: Empirical research has found that there is little correlation between malpractice payouts and malpractice premiums paid by doctors. A study of the leading medical malpractice insurance companies’ financial statements by former Missouri Insurance Commissioner Jay Angoff found that these insurers artificially raised doctors’ premiums and misled the public about the nature of medical negligence claims. A previous AAJ report on malpractice insurers found they had earnings higher than 99% of Fortune 500 companies.

Myth #5: Tort reform will lower insurance rates.

Fact: Tort reforms are passed under the guise that they will lower physicians’ liability premiums. This does not happen. While insurers do pay out less money when damages awards are capped, they do not pass the savings along to doctors by lowering premiums. Even the most ardent tort reformers have been caught stating that tort reform will have no effect on insurance rates.

For Five Myths About Medical Negligence in its entirety, click here

Originally posted at InjuryBoard by Steve Klearman

Nevada Joins Mission to Save Lives Through Fire-Safe Cigarettes

Steve Klearman — Wed, 01 Apr 2009 09:17:21 GMT

According to the National Fire Protection Association, an estimated one out of every four fire-related deaths in the United States in 2006 was caused by smoking materials (i.e. cigarettes, pipes, cigars, etc.), making smoke materials the leading cause of fire deaths. Not only do smoking materials-related fires take lives, but they also cause millions of dollars in property damage each year. In 2003, New York adopted a fire-safety standard for cigarettes that required all cigarettes sold in New York to have low ignition strength. Tobacco companies were required to sell new "fire-safe" cigarettes that had bands around them to stop them from burning if not puffed on regularly. The standard became effective in June 2004 and roughly a year later there were already reports that the annual death toll for cigarette related fires had fallen by a third. Today, as many as 38 states have adopted similar fire-safe cigarettes standards, and Nevada is now joining the trend.

On March 3, 2009, Nevada legislators introduced Bill AB 229, seeking to set up the requirements and performance standards for fire-safe cigarettes to be sold in the State. The new requirements will apply to all cigarettes sold or offered for sale in the state but will not apply to cigarettes purchased by wholesalers before the effective date of the bill if the wholesaler can show that the Nevada cigarette revenue stamps were affixed to packages before the effective date and that he purchased a similar quantity of cigarettes during that period the previous year. As in New York, cigarettes will be required to have bands on them that act as "speed bumps" in the burning process. There are additional labeling requirements and all cigarettes must be recertified under the safety standards every three years.

Originally posted at InjuryBoard by Steve Klearman

Nevada Legislators Propose Risky Amendment

Steve Klearman — Wed, 18 Mar 2009 15:38:33 GMT

On March 11, Nevada Legislators introduced Bill A.B. 300, amending existing helmet requirements for motorcyclists. Under the new bill, motorcyclists over the age of 21, who have had their motorcycle license for at least a year, and who have completed a safety course, are no longer required to wear protective headgear while riding on highways. All motorcyclists that do not meet these criteria are still required, by law, to be protected. Passengers over the age of 21 are also no longer required to wear protective headgear.

In 2000, Florida amended a similar law enacted in 1967, removing the requirement that motorcycle riders over the age of 21 wear a helmet. Those riders over 21, however, who did not wear helmets, were required to have an additional $10,000 in medical insurance. The U.S. Department of Transportation, National Highway Traffic Safety Administration filed a report in 2005, evaluating motorcycle crashes the two years before, and the two years after the repeal of Florida's helmet requirement. Importantly, between 1997 and 1999, of the 515 motorcyclists killed in the state, 9.4% were not helmeted. Between 2001 and 2003, however, 60.8% of the 933 motorcyclists killed were not wearing a helmet. The incidence of incapacitating injury suffered while not helmeted increased from 20.8% in 1999 to 50.3% in 2001. The study also revealed that while riders under 21 were required to continue wearing helmets, actual compliance decreased after the law was changed. Similar to a trend seen in Arkansas, Texas, and Louisiana, Florida saw an increase in motorcycle registrations coincidental with the repeal of its helmet requirement.

The majority of states have partial laws similar to Florida's law and the law proposed in Nevada but it is likely that Nevada will experience trends similar to those seen in other states after the repeal of a helmet requirement. The American Motorcyclist Association is urging its members to contact their legislators to tell them to say "YES!" to A.B.300, but time will tell if the "right to ride with freedom of choice" is worth the added risk.

Originally posted at InjuryBoard by Steve Klearman

FDA Globalization Act to Increase Nation's Food Safety

Steve Klearman — Thu, 05 Mar 2009 01:36:08 GMT

Congressman John Dingell introduced the Food and Drug Administration's Globalization Act in late January 2009, legislation that if passed would help would help ensure the safety of the nation’s food, drugs, medical devices and cosmetics and help restore confidence in the safety of the nation’s products, according to the American Association for Justice.

The Act adds registration fees for processing plants to provide increased funding for food safety, increases inspections of manufacturing facilities to every four years, including unannounced inspections, increases penalties for noncompliance and increases food-testing for imported products among other safety provisions. The legislation also gives the Food and Drug Administration increased authority to recall products believed to pose a risk to consumers.

"With the onslaught of reports of contaminated spinach, tomatoes, beef, pet food, and now peanut butter, it is clear increased funding and authority is needed at the FDA like Congressman Dingell’s legislation provides," said Bill Marler, a food safety attorney and member of the American Association for Justice’s Foodborne Illness Litigation Group.

Find the full AAJ article here.

Originally posted at InjuryBoard by Steve Klearman

AAJ warns consumers about “Complete Immunity Preemption”

Steve Klearman — Fri, 24 Oct 2008 20:34:06 GMT

Normally, consumer protection for product liability is provided for by state law. However, documents obtained by the American Association for Justice (AAJ)'s repeated requests pursuant to the Freedom of Information Act revealed a Bush regulatory strategy that has serious implications on consumer protection. The strategy, which the AAJ has termed “Complete Immunity Preemption,” provides for federal rules which preempt the rights states possess to protect their citizens with strict safety standards.

The AAJ reported that the documents obtained reveal that protecting corporations escape accountability has been a top priority of the Bush Administration. Since 2005, 7 federal agencies have issued more than sixty proposed or final rules with preambles containing complete immunity language for corporations. Such language has even snuck into the body of the final rules. The preemption language provides corporations with a new legal theory for immunity in product liability cases.

The AAJ wants to get the word out about these far-reaching preambles, and the danger they pose to consumers.

Originally posted at InjuryBoard by Steve Klearman

Steven J. Klearman, Attorney at Law

Steve Klearman — Sat, 15 Oct 2005 10:04:25 GMT

Steven J. Klearman is the Managing Shareholder of Steven J. Klearman & Associates, a civil litigation law firm located in Reno, Nevada. Steve practices primarily in the area of civil litigation, with an emphasis on injury law and medical malpractice.

Steve was born and raised in St. Louis, Missouri. He studied as a fellowship student of Mandarin Chinese in Taipei, Taiwan before he received his B.A., magna cum laude, from the University of Missouri. He then studied international law at the University of Notre Dame's Concannon Programme of International Law in London before he received his J.D. from Washington University School of Law in St. Louis. He completed Harvard Law School's mediator training course in November 2000.

Steve moved to Nevada in 1988 and practiced primarily in the areas of administrative law and civil litigation under the supervision of former Nevada Governor, Robert List, in the Reno office of Beckley, Singleton, De Lanoy, Jemison & List. Steve was the Managing Shareholder of Barber, Klearman & Associates from 1993 until 2005, when he started his own firm.

Steve's articles on various aspects of law have appeared in publications both in the U.S. and abroad, including The Nevada Lawyer, The Federal Bar News and Journal and The Asia-Pacific Lawyers' Association Journal. He is the author of Elements of Nevada Legal Theories, a popular practice guide utlilzed by many Nevada attorneys and judges. He oversees numerous legal websites and he has given seminars on technology in the law office, ethics and other topics at universities in a number of states and before the Nevada State Bar Association and other organizations.

Steve served as Vice-Chair of the Nevada State Bar's Northern Nevada Disciplinary Board and he was a member, for many years, of Nevada's Medical Screening Panel. He currently serves on Nevada's Revised Jury Instruction Committee and he is the long-time Chair of the Nevada State Bar's Consumer Protection Committee.

Originally posted at InjuryBoard by Steve Klearman

Arbitration to be Voluntary under Proposed Legislation

Steve Klearman — Thu, 05 Mar 2009 01:51:28 GMT

On February 12, 2009 Representative Hank Johnson of Georgia introduced the bipartisan Arbitration Fairness Act of 2009. That Act is meant to safeguard citizens from being forced into entering arbitration and would make entering arbitration possible only after the dispute has arisen as to protect consumers from corporations.

For more on this issue, please click here.

Mandatory binding arbitration clauses are hidden in the fine print of everything from cell phone, credit cards, franchise and employment agreements to nursing home care contracts. These clauses force consumers or employees to give up their right to take their case to court in the event there is a dispute with the corporation.

"The Arbitration Fairness Act will prevent negligent corporations from stacking the deck against consumers who unknowingly sign away their access to justice," said American Association for Justice President Les Weisbrod. "Arbitration can only be an effective means to resolve disputes when both parties agree voluntarily, not when it is forced upon consumers in secret to limit their rights."

The Arbitration Fairness Act will help people like Jamie Leigh Jones, who was raped, drugged, beaten, and then confined to a shipping container by KBR/Halliburton employees while working in Iraq. Because of a clause placed in her employment contract, KBR tried to force Ms. Jones to submit to a binding, secret, non-appealable arbitration. Ms. Jones had to fight to obtain access to the justice system because she unknowingly signed an arbitration clause as part of her 18-page employment contract.

Originally posted at InjuryBoard by Steve Klearman

Military Personnel have Increased Risk of Traumatic Brain Injury

Steve Klearman — Thu, 29 Jan 2009 05:38:00 GMT

This comes directly from LegalView.com. You can find the story online with additional references, here.

Unfortunately, those who choose to serve their country run a comparatively high risk of traumatic brain injury. Military personnel are at risk for automobile accidents, the number-one civilian cause of TBI, but they are also consistently exposed to strong munitions that can cause a traumatic brain injury. Military service exposes personnel to a risk of penetrative brain damage, such as that sustained when a bullet or shrapnel penetrates the skull. But the greater cause of TBI among soldiers is closed brain injury, in which there is no break in the skull, particularly those caused by explosive blasts. When soldiers are caught near an explosion, they may sustain brain damage directly from the blast wave, which can increase pressure inside the skull; or indirectly from being physically thrown against a hard object.

We now know those who have served in Afghanistan or Iraq are at a much higher risk of TBI than combat veterans from previous wars. In the Vietnam War, 14 to 18 percent of all veterans had a brain injury. Today, the Walter Reed Army Medical Center says 31 percent of those admitted between January 2003 and May 2005 had some kind of brain injury. A 2005 study in the New England Journal of Medicine attributed these higher numbers in part to advancements in munitions, especially improvised explosive devices, and in part to improvements in body armor, which protects soldiers from what would previously have been a fatal penetrative wound, but not from a nonfatal blast injury.

Misdiagnosed/Undiagnosed Traumatic Brain Injury in Soldiers

Because the symptoms of a traumatic brain injury often do not appear until weeks after the injury is sustained, it is not uncommon for a TBI to go undiagnosed or misdiagnosed. This is especially true when the symptoms of a TBI are subtle, such as a personality change or emotional problems, which are easy for strangers to miss. There is evidence that the military sometimes misdiagnoses such symptoms as psychological, or even accuses soldiers of malingering, due in part to doctors' lack of resources or brain-injury expertise.

And as Commander James Dunne, lead trauma surgeon at the National Naval Medical Center, observed at a 2006 summit of military physicians, the long-term consequences of an undiagnosed TBI can be devastating. Service members with an undiagnosed TBI lose precious treatment time, holding back their recoveries and causing complications in their personal lives. Because side effects of a traumatic brain injury include behavioral and emotional problems, especially depression, TBIs can hold discharged soldiers back from reintegrating into civilian society or even from continued success in the armed services.

A 1996 medical study showed that a behavior-related discharge from the military was 1.8 times more likely for a TBI patient than for a soldier without a TBI. Difficulties with memory, motor skills and the senses, more common side effects of brain damage, can also affect veterans' ability to get a job, care for a family or perform other life functions. And without a diagnosis, military TBI patients may be liable for tens of thousands of dollars' worth of medical bills, on top of lost wages.

Proper helmets and body armor, particularly the newest Kevlar armor, remain the best way to prevent a traumatic brain injury among those who serve in the military. Fast diagnosis and treatment of the injury are also important ways to prevent secondary injuries from the physical and chemical changes to the brain that follow a TBI, such as swelling. It can also minimize the cost, both personal and financial, of the injury to the soldier and his or her loved ones. If you suspect that you or someone you care about has an undiagnosed service-related brain injury, an experienced TBI attorney can help you get the treatment and compensation you need.

Afghanistan, Iraq Conflicts a Major Risk Factor for Traumatic Brain Injury

Originally posted at InjuryBoard by Steve Klearman

Tahoe Burning and More Homes Threatened

Steve Klearman — Mon, 25 Jun 2007 12:27:57 GMT

I occasionally detour from the law.

Last week my wife and I mountain biked up Angora Lakes Road in South Lake Tahoe, California. Straight up a long hill, beautiful views of Fallen Leaf Lake and Lake Tahoe with two idyllic lakes at the very top and Desolation Wilderness even further above.

This week the entire area is evacuated by a fire that has burned more than 2000 acres and South Lake is facing what some are saying is the worst crisis in its history. More than 200 homes burned, 500 more threatened; and a friend at the lake just told me that the high school is now in serious danger of burning as well..

All very sad and sure to call into sharp question the Tahoe Regional Planning Agency's forestation rules.

I encourage everyone to consider donations to the residents of South Lake who lost their homes.

Originally posted at InjuryBoard by Steve Klearman

Expert Witness Fees or Windfalls?

Steve Klearman — Fri, 23 Mar 2007 06:52:32 GMT

Nevada medical malpractice cases were put on the road to extinction several years ago by a voter-approved initiative that restricted lawsuits to such an extent that many attorneys stopped practicing in this area altogether.

I still do and will continue to. But I've noticed that as medical malpractice lawsuits have become more limited, doctor's expert fees have continued to spiral.

Several days ago I was setting expert depositions in a malpractice case. Defense counsel mentioned that her expert would require $3000 to testify. My expert depositions usually take an hour. Hence, her expert wanted $3000 to testify for an hour. I complained about this and indicated that we would likely seek court intervention to lower the expert's fee.

Then, however, we called our own expert in the case.

He casually mentioned that his minimum deposition fee was $4000.

I guess I won't be contesting the other side's expert fee

Originally posted at InjuryBoard by Steve Klearman