Malpractice lawsuits take time, money to wend through legal system

Sept. 16--A needle broken during prostate surgery. Incompatible blood types used during a transplant operation. A surgical towel left inside a body after surgery.

Mistakes happen and, eventually, doctors pay. But the process takes too long, some lawyers say.

Since 2008, more than 1,250 malpractice cases involving doctors now practicing in North Carolina have been settled out of court for at least $75,000 each. The average time span from date of incident to settlement in those cases was more than 50 months.

In 106 cases, plaintiffs received malpractice judgments against doctors practicing in North Carolina. Those cases took, on average, about 60 months to adjudicate.

Sometimes patients spend five or six years trying to collect money to repay medical bills, to replace lost income and to modify their homes to accommodate their new limitations.

70 months

The N.C. Medical Board's records show that Donna Ball's case took 70 months from incident to settlement. And New Hanover County court records show that 36 months elapsed between the first court action and the last.

Ball, a Pender County newlywed and a nursing student, had her legs amputated below the knee and lost the fingers on her left hand to sepsis in March 2008. Twice, Ball was sent home from the emergency department at New Hanover Regional Medical Center.

In court documents, Terre Yde, Ball's attorney, alleged that medical professionals focused on the back pain and ignored other symptoms that would have helped diagnose the bacterial infection that led to sepsis. The complaint alleged that emergency department personnel (Eastern Carolina Emergency Physicians) and VitaLine nurses (employed by New Hanover Regional Medical Center) mismanaged the situation. One nurse received a report that Ball's blood culture was positive. The nurse, according to the complaint, did not notify anyone.

Four hours after that report, Ball was at the emergency department at Pender Memorial Hospital, where she had a rash on her body and was experiencing pain and numbness in her hands. Sepsis could have been prevented or treated with antibiotics, Yde said.

"The delay in treating her infection resulted in necrosis of both legs and all of her left fingers. As a result, Donna underwent numerous surgeries and other procedures including bilateral below the knee amputations and amputation of all four fingers on her left hand," the complaint said.

Drs. Andrew Terzian and Ted Winneberger, Eastern Carolina Emergency Physicians II and New Hanover Regional Medical Center were named as defendants in the complaint. Neither Terzian nor Winneberger returned messages, and NHRMC does not comment on litigation, said Martha Harlan, director of marketing and public relations. Ball, through her attorney, declined an interview request.

The complaint said that both doctors "failed to order appropriate diagnostic studies," "failed to recognize and appreciate Donna's abnormal vital signs" and characterized the doctors as "careless and negligent."

The case was settled in January, and Terzian's record with the N.C. Medical Board shows a malpractice settlement in excess of $75,000. Winneberger's does not.

Terms of the settlement are protected by a confidentiality agreement.

No frivolity

Some plaintiff's attorneys feel the cards, at least in North Carolina, are stacked in favor of the defense.

Rule 9(j) establishes that a medical expert must review the medical care provided and attest that the care did not comply with the applicable standard of care. Many malpractice suits filed in New Hanover County include an objection to rule 9(j), saying that it forces the plaintiff to prove its case before a judge ever considers it.

The medical experts don't come cheap. Paying a consultant $350 an hour gets expensive really quickly.

Often, that money comes out of the attorney's pocket.

"Attorneys have to pay it," said malpractice attorney Larry Coe, who is representing a client in a claim against NHRMC. "Who else is going to do it?"

Plaintiffs, Coe said, often are hurt or injured and don't have much money.

Coe said he lost one case in Brunswick County that cost him $75,000 and two years' worth of work.

"I took a beating on it," he said.

Yde said cases can cost even more -- up to $250,000.

"That's why you don't see frivolous cases in North Carolina," Yde said. "If we file one or two frivolous cases, we're done."

A ploy?

Coe believes defendants' attorneys purposely slow the process. It puts a financial strain on the plaintiff while the malpractice insurance company has the funds to keep going.

But John Martin, a malpractice defense attorney for Cranfill Sumner & Hartzog, said the delays are not a tactic.

Martin said a plaintiff's attorney might have been working on a case for a year and a half before the defendants are ever contacted.

Once he's retained, Martin has to obtain the medical records and get medical experts to review the case.

"It takes about a year to get up to speed," Martin said.

MagMutual provides malpractice insurance to about 30 percent to 40 percent of North Carolina physicians. Karen Still, director of claims, said MagMutual averages 22 months from court filing to resolution.

She blames the lengthy process partly on North Carolina's three-year statute of limitations for plaintiffs to file suit.

"Once a claim is filed, we move along as quickly as possible," Still said. "There is a designated scheduling order and we push hard to stick to those dates so we can get through adjudication."

Malpractice cases rarely make it to juries. MagMutual settles cases or makes payments about 13 percent of the time and wins 80 percent to 85 percent of malpractice trials, Still said.

Coe said malpractice insurance companies don't want to go to trial, and some insurance policies (not at MagMutual, Still said) give the insurance company final say about whether to settle or proceed to trial.

Anthony Njapa, a family physician in New Hanover County, said he was paying $115,000 a year for malpractice insurance when he worked as an obstetrician in New York. Some of his colleagues in high-risk specialties paid up to $300,000 a year, he said. Now in a lower-risk practice, Njapa pays around $10,000 per year in malpractice insurance.

The risks to malpractice insurance companies -- MagMutual and Medical Mutual are the main players in North Carolina -- are significant, even though North Carolina has capped awards at $500,000 for most noneconomic losses, such as pain and suffering.

In another state at another time, malpractice payouts were virtually unlimited. Dr. Jacqueline Halladay, who now practices in North Carolina, lost a $40 million suit in 2005 in Massachusetts after a baby was born with cerebral palsy.

And million-dollar awards aren't extinct. In August, a jury awarded a Durham man $1.5 million for loss of vision in his left eye after a doctor applied a toxic drug, methylene blue, to his eye in 2008.

The idea of a multi-million dollar payoff might keep a plaintiff from accepting a settlement that is fair, if not generous, Coe said. That's why he usually makes clients pay a $1,500 or $2,000 retainer. Clients are less likely to gamble with their own money, he said.

The 2011 North Carolina law that capped most noneconomic damages at $500,000 has helped reduce the number of malpractice suits, said attorney Britt Blackerby, who represents NHRMC.

"I can affirmatively say we have seen a decrease in the number of cases filed in recent years following the institution of what is commonly referred to as tort reform. I think more time is needed to tell, but this should translate into less burden on health care providers, including hospitals," Blackerby responded in an email.

Mike Voorheis: 910-343-2205

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