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Maine medical malpractice insurer records big drop in claims, but attorney says system is stacked against patients

Posted Aug. 08, 2014, at 12:32 p.m.
Last modified Aug. 08, 2014, at 2:16 p.m.

The company that insures most Maine doctors and hospitals against malpractice has seen claims drop by more than half over the past decade, citing improved care and communication with patients among the many reasons.

But one of the state’s most experienced medical malpractice lawyers argues that Maine law favors doctors over patients, discouraging even legitimate claims.

Medical Mutual Insurance Co. of Maine, which insures about 3,000 physicians and more than 20 hospitals in the state, paid out fewer than 200 claims in 2013, down from a high of 434 in 2003, according to John Doyle, vice president of marketing and administration.

“Claims have been reduced substantially,” he said.

The Portland company announced in late July that premiums would drop an average of 3.2 percent effective this September, marking the fourth rate reduction since 2008. Earlier this year, Medical Mutual declared the largest dividend in its history, totaling more than $5 million.

Many factors play into the lower claims, including health providers focusing more on delivering quality care and communicating better as teams working together to treat patients, Doyle said. Patients also have greater understanding of their own care, he said.

“It’s a lot of different stuff coming together,” Doyle said.

In a July 25 letter to policyholders, Medical Mutual President and CEO Frank Lavoie credited a record of quality care provided by Maine physicians and hospitals.

“The fact is, you, the physicians and surgeons we insure, have effectively driven rates down by providing high quality care and emphasizing patient safety within your practices,” he wrote.

Julian Sweet, a malpractice lawyer who represents plaintiffs with Berman and Simmons in in Lewiston, contends that a Maine law passed in 1986 altered the legal landscape, creating a doctor-oriented screening system that prevents many legitimate claims from ever getting filed.

Before making it to court, every malpractice claim in the state must go through “pre-litigation screening,” he explained. Claims are handled much like any other, with attorneys taking depositions and calling expert witnesses. The process culminates in a one-day, confidential hearing before a three-member panel, which includes a doctor practicing in Maine in the same speciality as the accused physician, he said. That creates a friendly forum for the defending physician, Sweet said.

While it can lead to fair results, “the effect of the panel system is that any case with any serious doubt in it gets resolved in favor of the doctor,” he said.

The process also essentially doubles the expenses and time plaintiffs must invest, with cases often investigated over nine months to even years and costs than can mount into the hundreds of thousands of dollars, Sweet said.

Patients often can’t afford the expense, even for claims with real merit, he said.

“These are going to become the most expensive, most time-consuming, highest-risk cases that any lawyer in Maine is going to bring,” Sweet said.

The panel’s decision is admissible in court. Other states also operate pre-litigation panels, but the setup varies.

In the decades since the law’s passing, malpractice claims have, on the whole, decreased in Maine, he said.

“What you’re seeing is the result of a long-term trend,” Sweet said. “These cases are very aggressively defended by highly specialized lawyers. What this law has had the effect of doing is to drive out anyone who isn’t as sophisticated and well financed as the defense lawyers.”

In more recent years, malpractice payments have remained fairly steady in Maine, though the total ticked up from 44 in 2010 to 53 in 2013, according to the National Practitioner Data Bank.

Adverse actions — a separate reflection of medical wrongdoing that can include licensing discipline, such as revocations or suspensions — have dropped significantly, however. Maine recorded 227 adverse actions last year, down from 255 in 2012 and 292 in 2011.

Medical Mutual Insurance’s claims include both payments in malpractice cases and settlements for adverse actions. It insures about 63 percent of the market in Maine.

David King, a lawyer who has represented hospitals and doctors in malpractice cases, said the 1986 law has prevented weak claims from resulting in lawsuits.

“The purpose of the law was to weed out non-meritorious claims,” said King, a partner at Rudman Winchell in Bangor. “I think the law has had the effect of doing that, in large part.”

As for the costs, lawyers typically front the expenses for their plaintiffs and get paid with a percentage of the eventual settlement or judgment, he said. That means the plaintiff’s financial status plays no role in whether a lawyer takes their case, King said.

“Essentially the lawyer works for free unless he makes a recovery,” he said.

Attorneys may avoid cases with clear merit if the potential damages are low, but insurers often pay those claims and resolve them with settlements, King said.

King represents Medical Mutual, but commented on his own behalf.

 

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