Medical Malpractice “Shock Loss” Claims are on the rise

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by Matt Gracey

Insurance underwriters use simple loss ratios (losses and expenses divided by premiums) as one of the tools with which to gauge a company’s suitability for coverage. High loss ratios, in which the losses approach, equal, or exceed the premium, are not good. One factor that has a large effect on loss ratios are “shock loss” claims, catastrophic losses so large that they have a material effect on the underwriting results of an entire insurance company.

These shock losses wreak havoc on a carrier’s overall loss ratio. As one can imagine, it is only a matter of time until the carrier can no longer absorb these losses if they become the norm, and the damages must be addressed and recovered in order to maintain sustainability. Inevitably, this leads us into all-too-familiar territory for Florida’s medical professionals – a return to a hard market, with increased rates and strict underwriting requirements for medical malpractice insurance.

Let’s look at just a few of the larger malpractice judgments from 2018 close to home:

  • Hillsborough County, 2018
    Award Amount: $109,760,930
    A patient was admitted for outpatient surgery to remove a benign ovarian cyst. During the procedure, the doctor sliced through a portion of the patient’s small intestine, closing the wound without addressing the damage. After the surgery, her blood pressure dropped to 67 over 48. A nurse guided her to a bathroom, where her incision opened and emitted large amounts of bloody fluid. She later went into respiratory failure, with signs of sepsis.Days later, a second doctor reopened the patient’s surgical wound and found the intestine nearly sliced all the way through. Flesh-eating bacteria had already consumed parts of her intestines, stomach, and abdominal muscles. She endured several more operations as doctors cut away the decaying tissue. Medicine that the doctors administered to boost the patient’s blood pressure caused blood to flow away from her limbs, the suit stated, which caused complications leading to gangrene in her hands and feet, requiring amputations below both of her knees and both elbows.
  • Pinellas County, 2018
    Award Amount: $9,250,000
    A patient was born prematurely at Mease Countryside Hospital on October, 2010, and was diagnosed with stage II retinopathy of prematurity (ROP), which, if not treated in a timely manner, can cause blindness. According to the plaintiffs, because the patient did not timely see an ophthalmologist upon being discharged from the hospital on December 29, 2010, she lost all of her vision. The plaintiffs were referred to an ophthalmologist, who was unavailable to see the patient and who had not screened neonates with ROP in over a decade. They alleged that the defendants were negligent by, among other things, failing to appreciate the severity of the disease process, failing to adequately inform the plaintiffs of the seriousness of the condition and its consequences, failing to adequately stress the importance of follow-up eye screening, failing to provide the plaintiffs with the name of an alternative ophthalmologist when told that the referred doctor was unavailable to see them, and failing to plan adequately for the patient’s discharge.
  • Pinellas County, 2018
    Award Amount: $6,584,674
    A mother with high-risk pregnancy was admitted for labor at 42 weeks. Fetal heart rate (FHR) monitoring initially showed normal accelerations and absence of decelerations. Several hours later, however, the monitoring strips began to deteriorate with diminished fetal heart rate, variable decelerations and absent accelerations. The nurse called the OB/GYN at home to report the situation and EFM tracings, but he told her to continue with labor and vaginal delivery, at which point the doctor went back to sleep. The jury in Pinellas County found the doctor was negligent in ignoring the EFM warnings resulting in the death of the baby.
  • Polk County, 2018
    Award Amount: $4,914,513
    A 61-year-old patient complaining of feeling severe lower leg pain was seen by a vascular surgeon. The patient alleged that the doctor delayed the patient’s treatment after his arrival at the hospital, leading to the loss of his leg a few days later. The doctor’s defense team argued that the patient lost his leg due to chronic artery disease, and not due to the blood clot and its treatment. After a six-day trial, the jury deliberated for about four hours before ruling in the patient’s favor.
  • Palm Beach County, 2018
    Award Amount: $1,039,000
    A patient suffered a heart attack resulting in heart bypass surgery. The doctor who performed the bypass surgery discovered the tip of a catheter and a ruptured balloon that were left inside the patient during a previous failed angioplasty, resulting in the lawsuit against the medical center and the cardiologist who performed the original failed procedure.

Other notable 2018 cases include:

  • Dade County – Freidin Brown, P.A. represented a plaintiff that was awarded a $4,020,000 settlement against a Miami hospital.
  • Dade County – The Law Offices of Orlando R. Ruiz and The Tinstman Law Firm secured a $3,713,898 settlement against a Miami chiropractor.

These awards and settlements are not to be taken lightly; their implications are far reaching. We are already seeing rate increases across the board in Florida and other states. Many doctors are receiving their renewal policies to discover their rates have been increased 30% – 40%.

These high-award cases are already making headlines in 2019 as well – including an $11.9 million verdict against a Broward County orthopaedic surgeon, a $24.5 million verdict for a mother’s death shortly after giving birth, and a $15 million arbitration award, the largest in Florida in 25 years, for a mother suffering a stroke a few days after childbirth, also in Broward County.

Many insurers have announced rate increases and more will follow. In the early 2000s as the med mal market was in a similar cycle, the number of insurers offering coverage to doctors in Florida for their malpractice risk went from over 50 to fewer than five in two years. Wisely choosing your insurer has now become very important, and finding an experienced, honest expert in the field to lend advice is essential.