Health Care Blog comments favorably on a critique of the malpractice system – QUALITY/MALPRACTICE: Change malpractice system to patient safety system, say Pfizer doc. He references an article from Health Politics – The Road from Medical Malpractice to Safety: You Can’t Get There from Here. Quoting from the original article:

A head-to-head comparison tells the story. The tort system uses litigation as its lever for change. The safety movement uses quality improvement analysis. Tort law focuses on the individual. Safety focuses on the process. The tort system’s punitive and adversarial style drives information down, encouraging secrecy. The safety movement uses a non-punitive and collaborative approach, which encourages openness, transparency, and continuous improvement. With tort law, exposing oneself can end one’s career and harm one’s mental health. In the safety movement, contributing is career-enhancing and therapeutic.

It may seem counterintuitive, but for medical malpractice to achieve its stated social purpose it must abandon the emphasis on a tort-based approach and embrace safety. Alternate dispute resolution, no-fault systems, raising fault to the institutional level, and exploring the use of medical courts all merit consideration and could begin to break the cycle of blame and provide a level of security necessary to ensure openness and transparency.

I do believe that most physicians would endorse a true safety process. The Health Care Blog finishes their rant

The AMA and the rest of organized medicine need to take the lead here, get off their high horse about the malpractice issue, and while they have a very sympathetic (i.e. Republican) Congress, develop some real bipartisan consensus on replacing the current tort system with a legally mandated patient safety system. That system will need real teeth to assure the public that it’s not biased in favor of physicians and providers. And of course we need a neutral public education campaign about why such a system is required; reason number one being that most malpractice currently goes on unimpeded, and this system will stop that.

Physicians support malpractice reform – including a safety system. Do not attack physicians and Republicans here. Rather attack the Democrats and the trial lawyers who apparently have no interest in safety, rather an interest in the tort process.

Will the governor veto?

Iowa governor might not sign tort reform bill

Iowa physicians cleared two of the three hurdles needed to enact a $250,000 cap on noneconomic damages awarded in medical malpractice lawsuits. But it looks as if the third obstacle — the governor’s signature — will be a stumbling block.

After failing to pass tort reform by one vote in early April, the Iowa Senate April 12 voted 27-21 to pass a bill that would cap the amount injured patients could receive for pain and suffering. The House already had passed the measure.

At press time, it was a long shot that Iowa Gov. Tom Vilsack would sign the bill into law.

“ The governor is a past president of the trial lawyers association ,” said Iowa Medical Society President Tom Evans, MD. “We knew that going in, but we are hopeful it will be signed.” Dr. Evans said Iowa doctors need the relief.

Hmmmm

No comment necessary

Malpractice Legislation Remains Stuck in the Senate

Republicans say their measure could help reduce unnecessary lawsuits and higher malpractice premiums that make it harder for doctors to practice. They tried last year and again earlier this year to force votes on similar measures.

“The crisis faced by obstetricians, gynecologists and emergency and trauma care professionals illustrates the urgent need for national medical liability reforms,” the White House said in a statement.

Democrats accuse Republicans of playing up to their donors in the medical and insurance lobbies and say that limiting damages is unfair to injured patients and their families.

HMOs and their malpractice

Now this represents an interesting problem. Justices Hear Arguments About H.M.O. Malpractice Lawsuits

With the debate over patients’ rights stalled in Congress, the issue moved to the Supreme Court on Tuesday in an argument about whether patients can invoke state law to sue managed-care companies for medical malpractice when treatment recommended by their doctor is withheld.

The federal law that governs the health insurance that millions of people receive through their workplace does not authorize such lawsuits. The question for the court is whether that law, the Employee Retirement Income Security Act of 1974, or Erisa, pre-empts the growing number of state laws that do.

The ability of patients to sue health maintenance organizations for damages for the denial of needed care is one of the most contentious issues in the health care debate, and this case has drawn intense interest from the industry and consumers alike.

Two managed-care companies, Aetna Health Inc. and Cigna HealthCare of Texas, are appealing a federal appellate decision that permitted patients’ lawsuits to proceed under the Texas Healthcare Liability Act. President Bush was governor of Texas when the measure became law in 1997, without his signature, and he embraced the law during his last presidential campaign.

Now, however, the Bush administration is supporting the managed-care companies in arguing that the Texas law and others like it are invalid. Nine other states — Arizona, California, Georgia, Maine, New Jersey, North Carolina, Oklahoma, Washington and West Virginia — have enacted similar laws. These laws threaten to upset the “very careful balance” that Congress struck in the federal law, James A. Feldman, an assistant solicitor general, told the court.

As I consider this problem I do feel some conflict. I dislike legal solutions to these problems, but … many managed care companies put physicians and patients into undesirable situations. While I understand the law, I disagree with the reasoning underlying the law. Thus, I must strongly disagree with the Bush administration on this issue.

Whenever I consider such a conflict, I try to consider first principles. In this case, patient care should trump everything. If that assumption is true (and I understand that some would debate that assumption), then it follows that managed care companies should not restrict necessary care.

First, I will start with an absurd hypothetical. A patient comes to the office with severe pneumonia. You calculate a pneumonia severity score – Improving Treatment Decisions for Patients with Community-Acquired Pneumonia – and determine that the patient needs hospital admission. The managed care company refuses admission and thus you try treating the patient as an outpatient. The patient dies. Who gets sued? Can the managed care company make this decision for financial reasons?

Now that example clearly rates as aburd, however, I have heard similar anecdotal stories over the years. What are the boundaries of medical decision making without liability for a managed care insurer?

I do not understand how I can be held liable for a decision for which I have incomplete responsibility. Thus, at least at the extremes, the insurer who refuses care must take some responsibility (and thus liability). I cannot understand any law which would prohibit this responsibility.

We will follow this decision with great interest.

Juan Davila, one of the two patients whose suits led to the Supreme Court case, was prescribed Vioxx by his doctor for arthritis but was required under his Aetna health plan to try two less expensive medications first. One of those drugs caused severe gastrointestinal bleeding that sent him to the emergency room.

The other patient, Ruby Calad, was hospitalized for a hysterectomy and other abdominal surgery under a Cigna HealthCare plan that authorized a one-day stay for those procedures. Though her surgeon recommended a longer stay, Cigna’s hospital-discharge nurse refused to authorize it. Ms. Calad suffered complications at home and had to make an emergency return to the hospital several days later. The two cases, consolidated for the argument, are Aetna Health Inc. v. Davila, No. 02-1845, and Cigna HealthCare of Texas v. Calad, No. 03-83.

George P. Young, the patients’ lawyer, said the inability of people like his clients to recover damages under federal law had necessitated the state’s action. “ What Texas has done is to fill a vacuum and say we are going to set out a professional medical standard of care when H.M.O.’s make medical necessity decisions,” Mr. Young told the court.

He said that under the companies’ position “they would be free to say we’re going to use the medical-necessity standard of a witch doctor or whatever we decide it is.”

A malpractice story

What is malpractice? What are the costs of malpractice cases? Why does the legal system frustrate physicians so much?

One physician’s malpractice battle: Dr. Diakos on trial

Despite the “win,” Dr. Diakos said she didn’t feel like celebrating. “I’m glad it’s over,” she said a few days after the trial. “But this was not a cost-free case for us.”

The insurance company had to pay to defend the suit and Dr. Diakos lost about a week’s worth of office time, using vacation days for the deposition and trial.

And she was clearly innocent.

Rangel on expert witnesses

Having been an expert witness on 2 occasions, I have chosen to no longer participate in the process. I have had colleagues who do this frequently. Being an expert witness is financially lucrative.

Because of the financial benefits we have a class of expert witnesses for hire. Reforming the “expert witness” system.

Medical malpractice civil trials often involve so-called expert witnesses in order to provide testimony on the current standards of medical practice and whether they were adhered to in a specific case or whether the actions of the physician where likely to have contributed to or directly caused injury to the patient. Such expert testimony is needed because of the insane way our justice system organizes civil trials.

=================

Therefore both the plaintiff and defendant use “expert witnesses” to provide testimony that supports one side or another and it is here where the problems start. The irony is that the same bias that the court wants to avoid in jurors by excluding peers of the same profession is accentuated in the form of expert witnesses who are paid for their testimony. This has created an entire industry of “expert witnesses for hire”, many of whom have highly questionable credentials and are too willing to “stretch the truth” or even simply state their “expert opinion” without any evidence to base such an opinion.

Such testimony enables their side to win the case and this may, in turn, lead to the witness being hired for more cases by the same law firm (it is considered unethical to pay expert witnesses based on the outcome of the trial). An example of such abuse of the system involves Jetta Brown MD who was hired by trial lawyer Ramon Garcia to provide “expert testimony” in a lawsuit involving cardiothoracic surgery;

Go read his entire rant. He highlights a feature of the malpractice problem on which we rarely focus. And that feature is very important.

Nuff Said

Texas Company Removes Web List of Malpractice Plaintiffs

The AMA on malpractice

Tort reform debate best served by truth

Here’s another e-mail: “Peer review may be one part of the solution, but it should be serious, responsible peer review of doctors and hospitals. … Shining the light of investigation on negligence incidents would do more to reduce medical errors, thereby reducing malpractice claims.”

The Institute of Medicine and the Health and Human Services Dept. say most medical errors are not failures of physicians, but failures of the system. Even when doctors do their jobs correctly, most errors would still occur.

A better approach to fixing the problem of system errors would be to dispel the fear of physicians, hospitals and nurses that open discussion on adverse events would be discoverable in lawsuits.

That’s why we support the Patient Safety and Quality Improvement Act (S 720), a proposed federal law that would allow the voluntary, confidential reporting of errors to patient safety experts. The result would be advice on how to improve the system and therefore patient safety. This system fix would be shared with all in a de-identified manner. This model works for the Aviation Safety Reporting System. It would work in the health care field, too.

The AMA also helped launch the National Patient Safety Foundation in 1996 and has supported it since with more than $6.5 million dollars. Despite our repeated public challenges to match our donations, the Assn. of Trial Lawyers of America has not contributed a dime.

If this excerpt whets your appetite, go read the entire article.

Even more on the malpractice web site

Thanks for all the comments. As I have thought through the issues, I would like to be more explicit in my dislike of the web site.

My problem relates to diagnostic test performance. Of all the people (lawyers, unethical testifying physicians, and litigious patients) that one might conceivably like to exclude from ones practice, they would all be there. However, many people on the list do not deserve the scorn that one would give to anyone on the list. Thus, the list is sensitive, but not specific.

This listing sets a danger precedent. I am against similar lists of physicians have been sued, for exactly the same reason.

If one could look at each case, and classify the lawyer, testifying physician and patient as legitimate or not, then they might have a decent argument. However, in the absence of complete information this list does not meet my fairness test.

More on the malpractice web site

MDs Urged to Denounce Malpractice Site

Dan Lambe, executive director of Texas Watch, said the site is attempting to scare patients.

“This type of blacklisting runs counter to the Hippocratic Oath to the ethical and moral goals and obligations of medical professionals,” Lambe said.

Dr. John Shannon Jones, a radiologist who created the database, could not be reached by The Associated Press for comment Friday. He told The Wall Street Journal that people who sue doctors are going to find their access to health care may be limited.

“That’s a harsh thing to say, but this is a war,” said Jones, who has settled two malpractice cases.

I understand it, but I cannot support it.

Texas docs fight against malpractice

In Texas, Hire a Lawyer, Forget About a Doctor?

For months, an obscure Texas company run by doctors has been operating a Web site, DoctorsKnow Us.com, that compiles and posts the names of plaintiffs, their lawyers and expert witnesses in malpractice lawsuits in Texas and beyond, regardless of the merit of the claim.

“You may use the service to assess the risk of offering your services to clients or potential clients,” the Web site says.

For fees listed as low as $4.95 a month for the first 250 searches and thereafter 2 cents a search, subscribers are invited to search the database “one person at a time or monitor any sized group of individuals for litigious conduct.” They can also add names to the database “from official and unofficial public records.” Whether that could include a doctor’s own files is not clear.

“They can sue but they can’t hide,” says the Web site.

So I ask, is this strategy akin doing a credit check, or is this an excuse to deny service. Some malpractice suits are legit.

I understand this strategy, but I do not think that I can personally endorse it. What do you think?

Democrats support trial lawyers on malpractic reform

Senate Democrats Block Caps for Malpractice

For the second time in less than a year, Senate Democrats on Tuesday blocked a White House-backed effort to impose strict caps on jury awards in medical malpractice cases. But Republicans vowed to bring the issue up again later in the year.

The backers of the measure, which would curb jury awards in medical liability cases against obstetricians and gynecologists, fell 12 votes short of the 60 necessary to have the bill considered by the Senate. The final vote, 48 to 45, fell mostly along party lines; the outcome was a foregone conclusion.

“We’re going to keep going until we succeed,” said Senator Elizabeth Dole, Republican of North Carolina, at a news conference before the vote. Senator Bill Frist of Tennessee, the majority leader, said after the vote, “I want to keep the issue out there, because I think patients are being hurt.”

You know how I feel about this issue. While caps will not solve the malpractice issue, they would help keep obstetricians practicing.

My point on malpractice

Again I will use MQ’s words to stimulate a rant:

It was the role of the docs’ defense team to convince the jury (and I agree here) that not providing the CT scan was appropriate care.

The defense team failed. And you blame the plaintiff’s lawyer for effectively arguing his case.

If only people who feel that they’ve been the victims of medical errors would hire incompetent lawyers! That’s the solution to the malpractice.

So MQ, you agree that the physicians made the correct decision. Then you blame the defense lawyers.

This is my problem. Malpractice cases should not be a game between competing lawyer teams. My lawyer is better than your lawyer!

As original conceived, tort cases should arrive at truth. The goal of the law (not the practice unfortunately) is to provide justice.

I, and my physician readers, are interested in justice and equity. If I commit malpractice, the patient should receive a reasonable compensation.

Where we differ, and where I differ with the trial lawyer lobby, is in the venue for achieving justice. I shudder when I think of malpractice cases as a battle of wits between lawyers. They can become battlegrounds of sophistry, hyperbole, and obfuscation.

Trial lawyers who use these techniques can become rich, and even run for President. But I contend that the public suffers from this perversion of the tort philosophy.

We need a better method for judging claims. We need a method which looks at the data dispassionately, and seeks truth. We do not have that method in 2004.

When defense lawyers try to make medical decisions

Each time I find another of these cases I become more astonished. Thanks to Overlawyered for finding them. Doctors on hook for $5M

On December 4, 1998, 11-month old Jack Sprague, while with his babysitter, suffered a subdural hematoma that has left him disabled. A Maryland jury just awarded $5 million against three doctors who saw Jack a couple of weeks earlier–the theory being that if they had performed a CT scan on the infant, the parents would have discovered the babysitter’s alleged abuse earlier, preventing the injury. …. Never mind that all three doctors diagnosed the asymptomatic infant as healthy: “What harm could it have done to do a CAT scan?” a juror asked. Well, even aside from the cost, and the risk of an anesthetic on an infant, doctors warn against unnecessary CAT scans to children because of the radiation exposure. How many healthy children will end up with cancer because of defensive medicine in response to this verdict?

Just another example of the problem of our tort system. This case makes no medical sense. The lawyer’s argument defies evidence based medicine (the cry that I keep getting as to the solution to the malpractice problem). I use this case to point out that many cases having nothing to do with evidence as physicians define evidence. Outrageous!!!

Responding to a comment on Edwards and malpractice cases

“His tactics in winning cases using an unreliable tool in cerebral palsy cases demonstrate once more the triumph of junk science in the courtroom, and of how unreliable the jury system is in judging malpractice cases.”

If the defense (the medical community) couldn’t demonstrate that Edwards’ methods were “junk” (and the patients weren’t ahrmed), then the victim of the alleged malpractice deserved to win. Are you insinuating that juries are too stupid to make decisions in malpractice cases? What about murder cases?

With the current error rates in treatment decisions (~45% of the time) and with the needless death of tens of thousands of Amercans per year as a result of medical errors – and only a SMALL percentage of them ever seeing a court – the idea that docs are the helpless victims in this is myopic.

I just had to copy this comment – because it defines our problem exactly! Yes, I do believe that most juries are too unsophisticated to evaluate malpractice cases. These cases are often extremely technical, and require understanding scientific evidence.

Physicians are not receiving juries of their peers. The junk science which Edwards uses would not pass muster in any scientific medical journal. We (physicians) are taught to evaluate evidence carefully. Juries have no such training. Lawyers must disregard the scientific evidence in such cases, and replace it with emotional appeals and sophistry. That is exactly what distresses me.

I cannot speak about murder trials. My impression is that trial lawyers use evidence selectively in murder trials also (e.g., the jury ignoring the DNA evidence in the OJ trial).

When a physician’s career is on the line (and sometimes malpractice cases are that serious), then we need a higher standard of judging than our current system.

Most critics of physicians quote the flawed medical errors study. But even if that study were true (and I believe it greatly exaggerated), our current malpractice system does nothing to address errors. The randomness of awards and suits does not change practice for the better.

Rather we need a system that makes physicians accountable and provides fair compensation to patients. We do not need lawyers raking in a high percentage of malpractice settlements.

The commentor and I clearly have fundamental differences in how we view malpractice. I believe that a better system would reward more patients and challenge more physicians to fix our current system. The problem is that for us to really fix the current system we would need dramatic changes in reimbursement for medical care.

But then, these issues occupy a central theme of this blog almost daily. Daily readers know my positions. I am just so frustrated about the damage that malpractice attorneys do to health care that my fingers are obliged to type and type.

Two letters from physicians concerning malpractice

Letters to the Editor – Feb. 16, 2004

Drop current medical tort system in favor of arbitration boards
Recently I spent two weeks in a courtroom, and the two months prior in preparation for that appearance. Going to the courthouse every day, I was comforted, in an uncomfortable way, at the sight of other physicians. I nervously joked that it was like attending grand rounds. They, too, were there for malpractice cases.

After an emotionally arduous two weeks, the jury returned a verdict in my favor. The system seemed to work in the end, but I submit that it failed miserably for letting my case go as far as it did.

And

Absurd tort system pushes physicians to countersue

Regarding “Ob-gyn sues W.Va. trial lawyers” (AMNews, Jan. 26): While I agree that it seems reasonable to give lawyers a taste of their own medicine, unfortunately it degrades physicians by forcing us into playing their game.

However, until realistic reforms occur in this country (which take lawyers and juries out of the picture), countersuits appear to be the only way to bring attention to the absurdity of our medical tort system.

As Howard Beale said in Network – I’m mad as hell, and I’m not going to take it anymore. And that is how we physicians feel. We are tired of the absurdity of the current tort system.

From the AMA president

Lawyers who play the liability lottery must be stopped

A small subset of the legal profession makes fortunes for themselves — and creates costs for the rest of us — by suing physicians. Whether it is justified or warranted is, for them, beside the point. It is an abuse of the legal system — and it affects everyone.

This abuse is in the form of disingenuous lawsuits aimed at getting money from someone else — instead of seeking compensation for someone with legitimate claims. Some might call it legalized extortion.

These abuses are choking the health care system. They are sending medical liability insurance premiums soaring for thousands of physicians, making it impractical, or impossible, for them to practice in many parts of the country.

These lawsuits lead to other agonies as well. For a physician, a wrongful suit can cause great harm — embarrassment, loss of time, defense costs, injury to reputation and resulting loss of practice, stress and anxiety.

Meanwhile, cases with merit can take years to navigate an overloaded, confusing court system — as they wait their day in court behind a traffic jam of frivolous suits — brought by lawyers looking to win a litigation lottery — and then taking a huge chunk of the award.

Authoritative studies have shown that awards do not correlate with negligence and noneconomic damages can’t be objectively predicted. This creates an unstable environment akin to a chain reaction.

The trial lawyers who file the suits that breed this chaos operate in a system that imposes neither accountability nor restraint. The law puts up major obstacles to countersuits, and statutes that authorize sanctions for lawyers are rarely applied in medical liability cases.

More than 125,000 cases against physicians clog our nation’s courts on any given day. Yet 70% of cases filed are closed with no payment — and physicians win 80% of the cases that do go to trial.

Imagine the outcry if a physician had a record like that. As a surgeon, if 70% of the appendices I removed were normal, I would not be allowed to operate. Which is why I believe the medical community can agree that the time is right for a little peer review for the lawyers who file these worthless complaints.

We must fight back. We must oppose these lottery lawyers at every step. They are a curse to public health!

Time to fight back

Readers know my feelings about our current tort situation. Ohio physicians are fighting fire with fire – Ohio physicians fight back: Panel documents frivolous lawsuits

Wanted: Blatant examples of frivolous medical malpractice lawsuits filed against Ohio physicians.

Reward: A chance to recover the money spent defending the lawsuit and put lawyers on notice that physicians are going to stand up to meritless suits.

“We are looking to find the most egregious cases to bring forth as test cases in the court and shed light on the issue,” said Almeta E. Cooper, the Ohio State Medical Assn.’s general counsel.

OSMA hopes that its newly formed Frivolous Lawsuit Committee will give Ohio lawyers a disincentive to file baseless cases. The committee is believed to be the first of its kind formed by a state medical association.

OSMA is responding to an increasing number of physician members concerned that they are being named in “shotgun” lawsuits that include every physician listed on a chart. They also know of a few instances in which physicians were included even when their names weren’t in the chart.

Frivolous suits are a common complaint among doctors nationwide. Physicians and insurers say these cases are contributing to rising medical liability insurance costs that are forcing doctors to retire early, discontinue high-risk services or move to states that have enacted tort reform.

They point out that it still costs insurance companies thousands of dollars to defend lawsuits that are eventually dismissed.

“More than the money, physicians have to shut down their offices to defend the suits, and it’s an emotional strain,” said Findlay, Ohio, internist William Kose, MD, who has a law degree and is serving on the Frivolous Lawsuit Committee. “Physicians take lawsuits personally. Someone is telling them they did not do their job properly.”

But few physicians have challenged lawyers, and the success rate among physicians who have is small. OSMA hopes to change that.

Here is one blogging doc who is rooting for OSMA.

Sydney Smith on Edwards

Edwards scares me. He scares Sydney also – Our Edwardian Healthcare System

Malpractice – the games lawyers play

Malpractice cases often are about the money, not justice. Read this article for some outrageous examples (I know the Bloviator will argue that the exceptions are just that – but these cases are real and do hurt physicians). – Lawyers try new tacks in malpractice suits

 

• Last year, an Ohio jury awarded $3.5 million to the family of a man who died of a heart attack.His family claimed that the physician didn’t do enough to help the man lose weight and stop smoking, given that physicians now know how smoking and excess weight contribute to heart disease and given the significant advances in treatment.
• Florida resident Miriam Kamin, along with her husband and son, filed a medical malpractice claim against Baptist Hospital of Miami and several of its physicians in 2002. Instead of claiming the standard of care wasn’t met, the woman argues that she should have been referred to a hospital down the street to have a low-grade pancreatic tumor removed.
• In Ohio, the basis of a case against a Dayton physician practice is that a medical test was not performed according to the standard of care. But the facts leading up to the claim offer a different twist on the law.The patient, John Dobran, is suing because he says he is being denied the best information possible on whether his melanoma could return. The Ohio Supreme Court is poised to decide whether he has a claim.When doctors discovered that a mole on Dobran’s arm was malignant melanoma, Dobran decided that he wanted a sentinel lymph node biopsy. By harvesting the lymph nodes first encountered when melanoma metastasizes, doctors can determine the chances of the cancer coming back.The tissue had to be sent to a lab in California. But it thawed before it arrived, making it untestable, and Dobran now wants to be compensated for the emotional pain and suffering of not having those results.

These examples are (in my not so humble opinion) outrageous! We need a filter prior to jury trials – or no jury trials at all. Our system encourages lawyers to gamble on the big hit. They know that they can convince jurors, regardless of the facts. From Webster’s

sophistry

n : a deliberately invalid argument displaying ingenuity in reasoning in the hope of deceiving someone [syn: sophism]

The fundamental underpinnings of our legal system have nothing to do with sophistry. Yet sophistry wins cases. We need a system that protects us against these tactics.

More on Edwards

A vote for Edwards would be a vote against malpractice reform. A reader emailed me to comment on Medpundit’s post from yesterday. I can only say – brilliant – Fortune’s Son

Commonsense concerning malpractice

Fixing American health care requires a basic shift in approach in the system of justice. What’s needed is fundamental: deliberate standards that everyone can rely upon — standards governing not just the amount of damages but what is good care and what is not. A growing consensus among patient safety advocates and other credible health care experts holds that a new system of medical justice is needed, including a special health court or administrative compensation scheme that could deliver deliberate, binding rulings on standards of care.

Defenders of the current system argue for juries because they are “democracy in action.” But that is exactly what’s wrong. Justice is supposed to be rendered by the rule of law, not a kind of running plebiscite.

William Sage, a health care expert at Columbia Law School, recently observed that it would be a shame to waste the current crisis. American health care finds itself in a “perfect storm” of needless errors, unaffordable cost increases, declining access, inadequate accountability and fearful and frustrated professionals. Millions of people are being hurt. Instead of frittering away the moment in an effort to solve one part of the problem, we should seize the crisis to do what’s needed.

Now go read the entire Op-Ed from the Washington Post – Heal the Law, Then Health Care.

This Op-Ed lays out the problem and the solution beautifully. They echo my opinions.

And here is another editorial about the topic – not as complete – but the point is made – Ending legal maltreatment

Why I am rooting against Edwards?

He virtually defines the problem of malpractice lawyers – Edwards’ persuasive powers and Junk Science Warrior.

Edwards’ is smooth, ruthless and apparently unconcerned with data. He scares me. The Mr. Nice Guy routine does not ring true after reading these two entries.

Considering malpractice

I remain upset over the malpractice case which the Bloviator pointed out to me yesterday. It seems like thoughts of the malpractice problem have caused an obsession this week.

What obscenity has 11 letter?

According to Miriam Webster:

1 : a dereliction of professional duty or a failure to exercise an accepted degree of professional skill or learning by one (as a physician) rendering professional services which results in injury, loss, or damage

2 : an injurious, negligent, or improper practice : MALFEASANCE

We all abhor malpractice. We all want to improve the quality of care that patients receive.

Unfortunately, our current tort system acts against improving care.

The current system has many losers – patients, physicians, and access to care amongst others. Patient care does not improve because malpractice claims are random, unsystematic and only someimtes related to true malpractice. Even if we commit malpractice (and I will assert that this designation is a hazy one), we are unlikely to be charged, and if charged we are still likely to win our cae.

Several problems exist with our current system. The first is in defining malpractice. I see malpractice as a very complicated label. To prove that someone has committed malpractice should require an extremely high standard. The default should be innocence.

Medical care is complex. It takes 4 years of medical school and 3-6 years of residency before one is ready to start practice. We continue to learn throughout our careers.

Judging another physicians care as malpractice requires a thorough understanding of the alleged activity, taken in the context of the interaction. I have written before, and still believe, that a random jury in this country cannot (and should not) be expected to understand the medical issues involved.

We must develop a system of accountability that helps patients and fairly evaluates medical care. Such a system would require a trained panel, probably including both health care professionals and other judges (here I use the generic meaning for judge rather than the legal meaning).

True malpractice has such great complexity that we need a separate and specific system for evaluating such cases. The system should have two functions – redressing patient and improving future care.

We have neither today. The case we discussed yesterday proves the flaws in our system.

Quality care has too much importance for us to ignore. A fair impartial system, one not prone to sophistry, obfuscation and hyperbole, rather one which dispassionately examines the facts and determines fair remedies, would advance our goal of having the best possible health care system.

Our current system wastes resources and makes lawyers unncessarily wealthy. Our legal system cannot have intended to treat medical care in this way. The current process has too much potential for financial reward (for the lawyer, rarely the patient). Finally, our current system negatively impacts access to care and quality of care.

The current tort reform goals of capping penalties for pain and suffering would only represent a short term financial bandaid. Until we transform our conceptualization of malpractice we will never make progress on providing the highest quality care possible.

Still upset

I cannot stop thinking about this article and my rant (see just below). We must make this story a cause celebre. Any suggestions on what we can do?

Unbelievable malpractice case

Ross the Bloviator has a post which will make anyone shudder – Medical Malpractice: Evidence of An Imperfect System

The plaintiff’s attorney, in essence, wants to reward those physicians who are behind the curve of adopting widely-accepted principles, and punish those who follow the latest literature. In his closing argument, the attorney makes what can only be described as outrageous claims:

During closing arguments the plaintiff’s lawyer put evidence-based medicine on trial. He threw EBM around like a dirty word….He defined EBM as a cost-saving method and stated his belief that the few lives saved were not worth the money. He urged the jury to return a verdict to teach residencies not to send any more residents on the street believing in EBM.

I’m flabbergasted by this argument. Granted, it is an effective argument for its ability to tap into the current zeitgeist about the health care system — average folks losing their health care coverage, managed care companies taking away benefits to make more profits, and our system’s tendency (Don Johnson’s going to love hearing me say this) to “give the people what they want” irrespective of what the science says is appropriate. In other words, no one should stop you, members of the jury, from having Cadillac care for Hyundai prices.

On the other hand, this flys completely in the face of two central tenets of our health care system — a desire for an informed, autonomous patient who is able to effectively manage and participate in their own care, and a desire to have our health system adopt the latest medical evidence and, by doing so, improve patient safety.

At this point (and please read Ross’ entire rant), I am just as flabbergasted as he. I have argued that the current jury system cannot fairly judge most malpractice cases. This case stands as testimony to my viewpoint.

Here a jury was obviously swayed by the hyperbole, obfuscation and sophistry of an attorney. There is no verdict here based on facts.

We must fix our system. Otherwise we cannot improve medical care. This case proves (as much as any one case can prove anything) that our legal system can impede quality improvement. The medical resident and the residency practiced excellent medicine. They followed guidelines.

These cases (albeit anecdotes) have a tremendous effect on our thinking. This case is wrong, but not as wrong as the legal system which allows it!

More on malpractice – explication time

I was rightly chastised for not explicating my position on malpractice in last night’s post. When I found this link, I blogged in anger – a major mistake. This issue requires careful thought and a listing of all the problems. I made the mistake that a calculus professor might make, I went from equation A to equation F and skipped all the obvious steps in between.

The crux of Dwight Meredith’s argument:

When discussing tort reform, and particularly medical malpractice reform, it is helpful to know the size of the problem. How much money is paid out each year in medical malpractice judgments and settlements? That would seem to be a basic fact that needs to be established at the beginning of a public policy debate. After all, if we do not know the size of a problem, how can we ever decide on a solution?

The tort reform lobby and the scare tactic media almost never report that basic fact. If you do not believe me, go to Google News or Google and try to find the answer.

In my post, I noted that medical malpractice payments total a little over $4.2 billion per year. As I have previously noted, the total of all sums paid out in medical malpractice settlements and judgments is approximately the same as Estee Lauder?s sales of makeup. The total of payments in 2002 would have paid interest on the national debt for about eight days.

This argument assumes that we can quantitate the cost of malpractice simply by counting pay outs. If the malpractice problem was just lost court cases and settlement, then Dwight would have a good argument.

The figure he cites greatly underestimates the costs of malpractice. As most physicians know, the vast majority of malpractice suits are won by the defendant (the physician or physicians involved). However, these cases still require significant financial resources (which the insurer pays). Even more cases are filed and withdrawn – still with significant legal costs.

Now I do not know the cost of defending a malpractice case, but these costs are not insignifcant.

The threat of malpractice permeates medical practice. It clearly influences physicians to order more expensive tests than are necessarily indicated. It can hamper the doctor patient relationship. Many physicians now fear malpractice so much that it has influenced their care.

Another issue that Dwight overlooks is the inability of physicians to pass on costs. If Chrysler loses a lawsuit, they can raise the price of cars. Physicians work in an artificial market. Our income is controlled by third party payors. We cannot successfully increase fees.

Malpractice insurance costs are rising. No one can dispute that. If it were a lucrative field, we would see more companies offering this insurance. The decrease in malpractice insurers speaks much louder than the hyperbolic quote above.

I am still angry over this issue. I hope this explication has done a better job of making my arguments. Tort reform is a complex issue. One figure of approximately $4 billion does not describe the issue. It reminds my of having a blind man describe an elephant from one touch.

On malpractice from someone who does not understand the issues

One should always worry when someone uses hyperbole and obfuscation to make points. Scare Tactics Part II. The scary thing here is Dwight Meredith’s post!

The Pennsylvania Malpractice Crisis continues

Pennsylvania tort crisis: Lawmakers fiddle, doctors burn

In order to attract younger physicians and keep older physicians from retiring early, physicians say Pennsylvania needs to pass a constitutional amendment that would allow noneconomic damage caps. And they say lawyer fees need to be curbed.

Not surprisingly, the Pennsylvania trial bar disagrees. Instead, it points to the cyclical nature of the insurance business, noting that insurance companies have gone through a spell during which they are receiving lower income on investments. Attorneys also say the state should focus on improving patient safety.

It’s been an ongoing argument in Pennsylvania for several years now. And doctors say that as more of them leave the state, retire early or cut high-risk services, the state is growing ever closer to a meltdown.

Would you start a practice in Pennsylvania? Would you stay?

The battle for tort reform continues

AMA vows united voice in battle for tort reform

Howard Dean, the Democratic party and tort reform

Go over and read Rangel’s take. He has been on a roll recently, and this particular rant is great. Howard Dean: compromising on tort reform? I like this line particularly:

But the rest of this statement seems as if Dr. Dean had two henchmen from the DNC looking over his shoulder making sure that he didn’t stray too far from the party line. First he evokes the trial lawyer’s favorite “scientific” study of all time that appeared to show that as many as 98,000 people die in US hospitals every year due to medical “errors”. The problem is that the study is deeply flawed and total bullshit and most physicians know this. Or does Howard really believe that our hospitals “mass murder” almost 100,000 patients a year?

Expert witnesses – a vanishing breed?

Making Malpractice Harder to Prove

Slowly and quietly, the rules regarding expert witness testimony in medical malpractice cases have been changing: a handful of states have passed legislation in the last two years that generally requires physician experts to work in the same field as a defendant doctor, while professional doctors’ groups are setting up committees to review the testimony of their members.

A medical expert is indispensable to a medical malpractice case. To show negligence, the plaintiff must demonstrate that the “standard of care” has been breached by the doctor in question. And who knows more about that standard than another doctor? Without a medical expert, there is no case.

As I say repeatedly, we need a new system. The current one does not work. Comments on the article??

A tricky ethics question

Robert Prather writes:

I have a question. I don’t know if you read this post: Regulation Through Litigation but a friend went to a surgeon’s office and the doctor won’t provide service to plaintiff’s attorneys or their employs. In a political / philosophical sense I agree with it since you could make a good argument that these guys have been enemies of the healthcare industry.

However, I’m wondering if it’s ethical. Any thoughts?

What a great ethical dilemma! I will cheat on this one and give two answers.

For elective care, i.e., normal office consultation, physicians have no obligation to accept any patient. The physician can elect to see only private insurance, only indigent patients, or only patients who live in their town. If one assumes that the potential patient pool is large enough, then these are legitimate decisions.

Physicians can even fire patients for any variety of reasons.

Physicians should not abandon patients. Thus, if a patient has an ongoing relationship with this physician and then goes to work for the lawyer, he/she should continue the doctor patient relationship.

All discretion ends when emergencies arise. If the surgeon is on call for the emergency room, and the lawyer comes in with an emergency, then the only ethical standard that I know would require the surgeon to provide the emergency care.

There are probably more intelligent ethicists who could expand on this quick and dirty analysis.

Looking through the retrospectoscope

Apparently lawyers and juries can look back in time better than physicians and hospitals can look forward. Following the standard of care?

Perhaps they should have read Malcolm Gladwell’s article from the New Yorker (I have cited this article previously, but it is so good and so relevant that I provide the link once again) – Connecting the Dots The retrospectoscope always works better than any other scope. Our challenge is in learning how make better decisions prospectively. Lawsuits such as the one cited here do not help the decision making process.

Texas physicians relieved

Doctors hope law boosts patient care

Texas doctors hope last month’s narrow passage of Proposition 12, a law that gives the state Legislature authority to cap non-economic damages, will make it easier for them to practice medicine.

Texas is one of a few states that have recently tackled soaring medical malpractice claims and the booming malpractice insurance rates that accompany them.

Other states have adopted similar laws this year, including Idaho, Oklahoma, Florida and West Virginia, following Mississippi and Nevada in 2002. President Bush is pushing Congress to pass legislation that would limit damage awards in medical malpractice lawsuits.

Texas is one of 19 states considered to be in a “full-blown” medical liability crisis by the American Medical Association. Numerous physicians in these states have retired, left high-risk practices or changed practices because they feared litigation. These states also have high malpractice insurance premiums, an increase in jury awards and settlements, and numerous lawsuits.

The Association of Trial Lawyers in America, however, says laws capping medical malpractice claims may only benefit insurance companies without driving insurance costs down. And, they say, limiting damages only punishes the most severely injured.

If indeed malpractice cases had a positive effect on medical care, then the lawyers would have a reasonable argument. However, all evidence that I have read shows that malpractice acts more like a lottery. I have argued often that malpractice awards and higher insurance rates have a negative effect on health care access. We have a laboratory now – what happens with access in Texas compared with other states which have not passed a cap on punitive damages.

A psychologist pleas for no-fault malpractice

Beyond the Blame: A No-Fault Approach to Malpractice

The truth, of course, is more complex. Most physicians, even those whose skills are excellent, make terrible mistakes at some point in their careers.

Most doctors are genuinely committed to their work and carry their mistakes with them, secretly, for the rest of their lives. Unfortunately, a vast majority do not tell their patients when they have made mistakes that harmed them.

It is not surprising that so many doctors who are successful and usually ethical will cover up their mistakes. And it is not surprising that many doctors, as well as patients, find the current system of accountability unworkable, especially in medical malpractice cases.

Fear of malpractice is rampant. Research studying physicians’ responses to being named in malpractice suits has revealed that the experience is traumatizing for most and that 20 percent of doctors who are defendants describe the experience as the most traumatizing of their lives.

Part of the trauma is financial; doctors are personally responsible for damages beyond the amount that malpractice insurance will pay.

The trauma is also psychological, as most physicians derive much of their self-definition from their knowledge that they are good doctors. In suits, it is to the plaintiff’s advantage to characterize the doctor as uncaring, negligent and unskilled. Physicians who have been trained to expect perfection from themselves usually find this battering.

This may explain why so many mistakes go unreported. In 1999, Dr. David Studdert, a Harvard researcher, published a paper in which doctors and nurses reviewed 14,700 medical charts from Utah and Colorado for evidence of negligent care.

Then Dr. Studdert and his colleagues tracked how often bad medical care resulted in malpractice suits. “Of the patients who suffered negligent injury in our study sample, 97 percent did not sue,” they wrote.

The author goes on to suggest a solution.

A better plan would call for motivating physicians to report their own mistakes by offering them no-fault judgments in exchange for their disclosures. This will work as a “carrot” only if there is also a “stick” waiting for those doctors who chose to cover up their errors.

In such a system, instead of physicians’ paying for malpractice insurance, the doctors and patients would pay into local injured-patient compensation funds. In this way, the burden of reimbursing injured patients would be shared, and everyone would enjoy the benefits of better care resulting from changes in the way medicine is practiced.

Physicians making serious mistakes would voluntarily report them to local commissions.

The commissions, which would consist of physicians and patients, would strive to compensate the injured patients according to guidelines established to ensure that reimbursements were uniform.

In exchange for disclosing mistakes, physicians would be granted no-fault judgments and avoid liability. If the commission agrees with the physician that harm has occurred, the patient will be compensated according to guidelines designed to ensure uniform compensation.

The compensation would be more modest than the occasional enormous judgments in the courts today, but many more patients would be compensated, because the reporting onus would be on the doctor (who is in a better position to perceive the mistake), rather than the patient.

Very interesting ideas are presented here. I am skeptical that they would work, and even more skeptical that the trial lawyers would allow such a system (which would apparently take them out of the financial loop). But I do recommend that we all consider this proposal, and perhaps even debate the ideas.

And I believe they are all missing the point

What Crisis?

But a new study by the General Accounting Office (GAO), the investigative arm of Congress, has reached a very different conclusion about the effect of rising malpractice premiums on consumers. Investigators who studied nine states found instances of localized but not widespread problems of access to health care mostly in “scattered, often rural, areas” that have long-standing problems attracting doctors.

And many of those highly publicized accounts of doctors who have retired or moved are, according to the GAO, either “not substantiated,” temporary or involved only a few physicians.

Great, we will wait until we have a major crisis in health care rather than an impending crisis. The GAO both asked the wrong questions and used the wrong analytic techniques.

The AMA news also covered this story – GAO report calls liability crisis localized.

Malpractice comment

Bernie writes

The contentious and adversarial system by which we investigate, prosecute and compensate for medical errors is at the heart of our incapacity to build an effective performance and quality improvement system in this country.

Maufacturers don’t seem to have any problem improving the safety and reliability of their products despite the fact they are liable to be sued over these issues. Why is it so different for medical practitioners?

Bernie, Bernie, Bernie. You still do not understand.

Manufacturers have several advantages. They can raise prices to pay for safety (or increased insurance costs). Physicians have fixed pricing (with variable expenses). Manufacturers generally control a significant portion of a market. Each physician represents a very small business. Manufacturers focus on making a specific product (or two or even 10). Physicians have patients with unknown problems coming for diagnosis and treatment. The complexity of the human body leads to a real probability of undesirable outcomes – even when we do everything right.

Medicine is complex. We can do better. We should do better. But we will only improve when the system rewards us for quality. And currently there is no clear way to measure quality consistently nor is there a way to reward quality. If a car manufacturer really has better quality – many consumers learn and preferentially buy cars from that manufacturer. The individual physician cannot expand his/her practice to accept the increased business.

There are just too many dissimilarities here to even consider this question. We are not manufacturers. We are physicians – and there lies the beauty and the problem.

The right idea

Can’t we all just get along? Let’s talk more, litigate less

This interesting article written by two negotiation experts, tries to bring common sense to the malpractice crisis.

The irony of course is that, bottom line, most stakeholders voicing an opinion on these issues want slight variations on the same theme: high quality, cost-effective care that is accessible and affordable to all.

Getting there is the problem. We have been fighting about health care in this country for years. Might this not be the time to propose a health care cease-fire, to get the sides talking, and out of it, to find solutions reflecting what is best for and best about the country?

The matter of performance improvement provides a pragmatic illustration. Performance improvement is directly tied to adoption of a linked series of clinical protocols, behaviors, expectations and routines. Clinical decision-making must be based on evidence and sound science. Care must be measured and caregivers must be accountable for their decisions and actions. The measurement process must create information that can be used to meaningfully assess and improve the quality of care.

Problems and errors in the course of care are likely and perhaps even inevitable. Every reasonable effort should be invested to reduce their likelihood, and when they do occur, what is learned from those errors should be used to generate information, corrective actions, and changes that will decrease the likelihood of recurrence.

These activities taken together represent a simple formula that would save lives, money, and an enormous amount of distraction. And yet, adoption of such a recipe has been elusive at best. Why?

People are not talking. The mantle and impact of medical malpractice is about far more than just the verdicts and awards in the courtroom or negotiations on the courthouse steps. And it is about far more than the high costs involved in financing this expensive system.

The contentious and adversarial system by which we investigate, prosecute and compensate for medical errors is at the heart of our incapacity to build an effective performance and quality improvement system in this country. The tort system essentially creates a “wall of silence.” Physicians are discouraged from discussing a medical situation openly and honestly for fear of harsh and punitive legal ramifications. As a result, the litigious nature of error identification and assessment has hindered efforts to fully disclose and translate important findings into new knowledge that can be shared, learned and adopted.

Go back and read that last paragraph one more time. The tort system paradoxically decreases well intentioned attempts at improving health care. The threat of lawsuit (as much as the lawsuits themselves) create a paranoia and block improvement processes.

We have written in previous columns about the methods and advantages of alternative dispute resolution as a means to encourage patients and physicians to talk safely and constructively with one another. Mediated conversations between patients and caregivers following an unexpected outcome have been found to reap important advantages for both sides.

Our research indicates patients are eager for three key outcomes:

• To know what happened.
• To receive an apology or an acknowledgement from the caregiver.
• To see that corrective actions are taken so that what happened to them will not recur.

These objectives are in keeping with those of the caregiver, who is:

• Eager to reduce anxiety related to the unresolved claim or complaint.
• Wanting to communicate on a human level with the patient.
• Encouraged and assured by the prospect that corrective actions can be taken to reduce the likelihood of a repetition.

For both sides, the notion that something good can emerge out of something that was unintended and bad provides just the sense of hope and resolve that is essential, both to the conflict resolution and to the patient safety processes.

This philosophy makes much sense. I fear that my skepticism does not allow me to believe. Until we have true tort reform, I do not know how we can get to this point. But for a moment, let me dream.

Tort reform

Both the Democrats and the Republicans take positive positions. Unfortunately, they both also take negative positions. The Republicans clearly win this one – Limits in medical malpractice cases high on agenda for GOP this fall

Republicans intend to stage another Senate clash this fall over legislation to limit damage awards in medical malpractice cases, undeterred by a congressional report that says rising insurance costs for doctors are not causing widespread denial of care.

While Democrats this year blocked a bill to limit damages across a range of cases, some Republicans say they may sharpen the issue next time by proposing caps only on one type of medical malpractice suit — those involving obstetrical care — or in a limited geographical area.

Even a limited bill could face a Democratic filibuster. Still, Sen. Mitch McConnell, R-Ky., said rising insurance premiums have led to a “national crisis” and he added that the GOP sees political gain in pursuing the issue. “One of the reasons we have votes around here is to put people on the record,” he said Wednesday.

President Bush long has supported medical malpractice legislation, arguing it could help reduce unnecessary lawsuits that make it harder for doctors to practice. The GOP-controlled House approved a measure on the issue this year.

In the Senate, McConnell and many Republicans cite American Medical Association claims of widespread problems resulting from rising malpractice insurance premiums. The doctors’ organization said in March that 18 states were in a “full-blown medical liability crisis.”

But a General Accounting Office study released last week of nine states — five of which are AMA-labeled crisis states — came to a much different conclusion. Congressional investigators cited “localized but not widespread access problems.” The report added that these instances “often occurred in rural locations, where maintaining an adequate number of physicians may have been a long-standing problem.”

I hope that we do not wait to solve this problem until the crisis has major effects. Unfortunately, I suspect that our government does not respond will to projected threats. They (especially in this case the Democrats in the Senate) will wait until the crisis becomes obvious. And as usual their constituency will suffer. And as usual they will blame the Republicans.

Some malpractice thoughts

Back in June, the NEJM had a review of the malpractice crisis – The New Medical Malpractice Crisis (subscribers only). This article does explore the issues from all sides. I particularly like the final paragraph.

An important shortcoming of traditional tort reform is that it does little to improve the widely recognized deficiencies of the tort system in preventing injuries due to medical errors. Expert committees from the Institute of Medicine and elsewhere are calling for experimentation with more radical reforms, including alternatives to adversarial litigation. For now, however, most expect the malpractice crisis to deepen and spread even in the face of aggressive tort-reform efforts at the state and federal levels.

Today’s NEJM has two letters concerning this article. The New Medical Malpractice Crisis Let me provide the text for non-subscribers.

Mello et al. do an excellent job of summarizing the current medical malpractice crisis but overlook one of the simplest solutions. Physicians, unlike those in virtually any other business or industry, are unable to pass on costs. If, with every hike in malpractice premiums, we could increase our charges (and actually collect them), then the burden of malpractice premiums would fall on society as a whole. These increased charges would be no different from the increased prices we pay for most products when the industry producing them is hit with new taxes, wage hikes, increased costs of insurance, and so forth. At that point, society could decide how much it wished to spend on medical malpractice. I suspect the answer would be “not much,” and the crisis would be rapidly resolved.

This writer is (as the English say) spot on!! This echos many comments that I have made over the past year. Restricting the reimbursement for providing care, while allowing overhead (and malpractice is overhead) to increase becomes untenable! The current system hides the cost of malpractice from patients. This hiding prevents economics from working.

Despite a more socialized health system, Australia has medical malpractice problems that are almost identical to those in the United States. The largest medical insurer collapsed, necessitating a government bailout, and there has been talk of tort reforms and capitation limits on blue-sky claims. This will serve only as a Band-Aid, and a few years down the track the same problems will surface.

Most writers on this issue and many legislators are lawyers, and as a result, the perceived right to sue has become a sacred cow. Until this notional right is overcome, there will be only marginal change. The pity of it is that excellent schemes such as the New Zealand accident-compensation scheme and other no-fault models in Scandinavia could serve as a template to address these issues. Most damage suits could not have been foreseen and rarely result from incompetence, malfeasance, or criminal behavior. If these circumstances exist, there are much more appropriate ways of dealing with them than hungry plaintiff lawyers’ clamoring for a jury award. A no-fault scheme provides appropriate compensation, ongoing care, and professional protection.

While I am not familiar with the New Zealand and Scandinavian models, they sound intriguing. If any readers can provide information I and many readers will owe you a debt of gratitude.

Florida malpractice cap passes

This result is better than nothing, but not really great. Fla. Lawmakers Approve Medical Malpractice Capsl

The measure limits an individual doctor’s liability for non-economic damages in most medical malpractice cases to $500,000. A medical facility’s liability would be limited to $750,000 in most cases.

Multiple victims — such as a victim, a spouse and their children — could file multiple lawsuits against the doctor and the facility, but no group of victims could receive more than $2.5 million.

Economic damages, such as for lost wages or medical care, would not be capped.

“I know this legislation will serve its intended purpose and bring relief to physicians, keep insurance companies writing policies in our state and protect victims of medical malpractice,” Senate President James E. King said.

But people on both sides of the debate have criticized the measure.

Doctors whom the bill was intended to help have said they do not support it, and insurance companies say it likely will not lower rates.

Sandra Mortham, chief executive of the Florida Medical Association, said doctors wanted a $250,000 hard cap with no variations.

Malpractice victims say limits on damage payouts make it less likely lawyers will take cases, meaning access to justice could be denied.

This looks like a typical compromise – no one is happy. These caps do not really solve the malpractice crisis. They are a bandaid. Hopefully, in the near future we will see politicians attacking the real problems (see my recent posts on malpractice).

More malpractice woes

Doctors ask hospitals to help pay soaring insurance costs

Experts say hospitals are increasingly stepping in to help independent physicians pay soaring liability insurance premiums. Concerned there won’t be enough local physicians offering some medical services, hospitals are writing checks, creating special trust funds and changing business relationships to subsidize insurance costs. And though the arrangements can raise legal issues, experts say more and more hospitals are taking action to keep physicians in their communities.

For Baptist Memorial Health Care Corp., a Memphis-based hospital system, helping Dr. Creekmore’s group was a no-brainer. “If we did not get them help, there was going to be a major part of the community that didn’t get medical care,” said Jim Ainsworth, a vice president for the company.

The hospital system considered several options before developing a program to subsidize insurance premiums for about 30 physicians in Mississippi, one of 19 states the AMA defines as being in a liability crisis.

Legal counsel helped tailor the program so that it fit within guidelines set by the Office of the Inspector General and didn’t run afoul of Stark or anti-kickback laws as they apply to relationships between hospitals and physicians. Once they had the program blueprint, hospital system officials set out to find the roughly $650,000 needed to pay for it this year. The program likely will only last a couple of years.

I hate this story. I hate that the malpractice business establishment threatens health care delivery. This article discusses band-aids on a system that needs extensive surgery.

“The pros are that they are able to hopefully retain or recruit physicians for their hospital and continue to offer the services that are necessary for the community. The flip side is that they have to pay for it and it’s expensive and it doesn’t really provide a solution for the big picture,” Rooney said.

Donald J. Palmisano, MD, president of the American Medical Association, said communities must work together to help physicians continue to serve their patients, and help from hospitals with insurance costs is one way to assist.

“They’re trying to figure out a way. But we must understand these are temporary measures. We must fix the root cause of this problem — the broken medical liability system,” said Dr. Palmisano.

Ethical medical testimony

My ranting leads to many readers finding this blog through googling! I received a very nice email from – Louise B. Andrew MD JD FACEP, President, CCEMT.org. Of course I had to check out their web site – Coalition and Center for Ethical Medical Testimony . This organization is fighting against hired guns (slang for physicians who often and consistently testify for money). This organization finds such behavior a major contributor to the malpractice crisis.

The New York Times is the first large media outlet to reveal to the general public the existence of the unethical medical expert witness. Heretofore, the problem of dishonest medical expert testimony has an embarrassing little secret of our profession. Dazzled by hourly fees which far exceed what the average clinician can earn, perhaps unaware of the prevailing standard of care in smaller communities and institutions, and sometimes swayed by incomplete or inaccurate information provided by the hiring attorneys, some physicians are regularly perjuring themselves on both sides of the bar. They are doing this because they are solicited by the attorney advocating for one party to serve as an expert, and are almost wholly dependent upon the materials that attorney provides to make an assessment of the case. They are also doing it, because being an expert witness is far more lucrative and far less stressful than practicing medicine for many physicians today; and because there has previously been no reason for them to believe that their testimony will ever be seen or even heard about by their colleagues, except possibly the experts representing the other side, and peer review has not extended into the courtroom until very recently, as the Times article reveals.

…

Two physicians who are particularly passionate about the unethical medical expert witness, Drs. Bernard Ackerman and Dr. Louise Andrew, have begun a nonprofit membership association, the Coalition and Center for Ethical Medical Testimony CCEMT.org, to educate and empower physicians and attorneys on effective ways to deal with dishonest or unethical experts. This grass roots organization encourages and empowers members to use their associations, state medical boards, and any other available avenues for peer review, to inject real time accountability into the business of being an expert witness. Living by its motto, “Nothing but the Truth”, CCEMT.org is equally concerned about unethical testimony by witnesses for plaintiffs OR defendants in medical malpractice cases. CCEMT.org was introduced at the AMA meeting in June, and its membership is growing daily. CCEMT.org is providing a way for physicians to turn their anger at unethical experts into useful concerted action designed to “Make Hired Guns History”.

So I provide this link as a public service. I have not yet joined the organization, but I do admire their goals and ethical stance.

Studying the impact of malpractice laws

Walter Olson provided this link. Uncapped Medical Malpractice Awards Adversely Affect Doctor Availability, Health Care Cost and Health Insurance Premiums Here is the description of the organization responsible for the report:

The Employment Policy Foundation (EPF) is a nonprofit, nonpartisan public policy research and educational foundation based in Washington, D.C. focused on workplace trends and policies. Its mission: to shape the direction and development of U.S. employment policies by providing policymakers, the media and the public with timely, high quality economic analysis and commentary. Federal and state executive branch officials and legislators, corporations, think tanks, universities, media and the public use EPF as a primary source of unbiased, reliable data, research and knowledge on employment and labor issues.

I feel certain that the trial lawyers and Democrats will challenge the objectivity of this organization. In contrast, I am happy to accept their analysis.

Rising Verdicts and Increasing Cost of Discovery Forces Rate Increases

Doctors, nurses and hospitals have been faced with skyrocketing malpractice insurance premiums in response to increasing claims. The rising litigation costs are reflected in malpractice insurance underwriting losses, which doubled from $4.1 billion in 1991 to $8.6 billion in 2001. This total includes amounts paid to plaintiffs and their attorneys, expenditures for processing and investigating claims, including the majority that are subsequently dropped or dismissed and expenditures to defend litigated claims. The study found that as the number of claims increased, so too have jury awards. Between 1995 and 2001, median jury awards in medical malpractice cases doubled from $500,000 to $1,000,000 for the typical case with the maximum annual claim award reported nationwide increasing from $5.3 to $20.7 million over the same period.

Malpractice insurers paid out $1.53 in claims settlements and claims adjustment and defense expenses for every dollar that they collected in premiums. In 2001, the gap between premiums collected and underwriting losses amounted to $4,033 per physician, assuming that all 744,000 full-time physicians in the U.S. were covered.

Most Litigation Costs Do Not Benefit Injured Patients

EPF’s analysis found that the malpractice litigation system is a highly inefficient method for identifying and correcting medical errors. Plaintiffs eventually receive only 38 percent of the total dollars that flow through the malpractice litigation system. The majority – 62 percent – compensates the plaintiff?s lawyers and expert witnesses and the insurer?s claims adjustment, cost of investigating claims and defending claims made against insured physicians and hospitals.

These data speak loudly. While trial lawyers work hard to obfuscate this issue (remember that they are trained to obfuscate) by blaming the insurance industry, these data suggest otherwise.

Caps on Non-Economic Damage Awards Are Effective

The study found that significant cost differences do exist between states with non-economic damage award caps and those states without limits. Between 1976 and 2000, malpractice insurance premiums nationwide increased 505 percent – equivalent to 7.8 percent annual premium growth compounded over 24 years. In California – which caps non-economic damage awards – malpractice premiums increased 167 percent?equivalent to a 4.2 percent annual growth rate. The resulting impact on premiums is very real. In 2001, the premium range for obstetricians was $143,000 to $203,000 per physician in Florida compared to $23,000 to $72,000 in California. The pattern was similar for surgeons – $63,000 to $159,000 in Florida compared to $14,000 to $42,000 in California.

Indirect Costs Result from ?Defensive? Medicine

Faced with the prospect of litigation, the study found many doctors and hospitals practiced “defensive” medicine. This practice artificially inflates health care expenditures with additional, medically unnecessary tests and diagnostic procedures. EPF’s analysis found that controlling excesses in the malpractice litigation system could reduce current health care costs by 5 to 9 percent without sacraficing quality of care. The dollar impact on annual medical expenditures is large – up to $68.8 billion.

This report documents many arguments that I and other bloggers have made over the past year. We have a very serious malpractice crisis. Politics should not prevent rational solutions. But politics do prevent rational solutions!

The study concluded that the medical malpractice litigation system is a costly and ineffective approach that ultimately fails to protect patients. Its primary impact is to increase costs that employers and employees pay for health insurance, to reduce the number of employees and their families covered by affordable employer sponsored health plans and to reduce access to health care in communities impacted by physician flight from liability risks.

On malpractice, Nevada tort reform, and heated exchanges

Over the past 2 days I have monitored a heated exchange in my comments section. The rant in question is – More on the Nevada tort crisis . The exchange started when a reader left this comment:

To reduce risk, doctors perform redundant and unnecessary diagnostic tests and offer only middle-of-the-road medical advice and procedures, even when they know that other treatments would be more beneficial. Not only does this escalate expenses and pad the doctor’s wallet, but it also wastes a tremendous amount of time in hopes that the cattle will die and the risk dissipates. Doctors are not performing procedures and tests to resolve medical issues, but instead dance around issues to cover or avert errors and reduce risk. Accordingly, as long as the doctors “do something,” regardless of the outcome, then they have done their job, according to the powers-that-be.

It’s a trade off. Sub-standard care is politically acceptable to limit risk, which in turn raises risk because of sub-standard care. To avoid the resulting risk, the political system relieves the medical community of accountability. This downward spiral only demonstrates that the politicians are aware of the situation, but are not seeking any resolution. Now, the brunt of the risk is absorbed by the patient in that they’re paying for care that they’re not obtaining, especially once the doctor errs and is unwilling to accept responsibility. When you buy a car, the dealer is willing to provide support and repairs, even when they err. As naïve as this may sound, I would assume that human life is more precious than an automobile, which makes me wonder why the standards of quality are higher for car maintenance than they are for human care.

Not to mention the fact that this malpractice crisis and tort reform has created a breeding ground for additional deceit and a mechanism to raise the status of the inept in the medical community.

I have read the commenters web site. He is clearly angry at physicians about the care his wife received. I will not argue with his depiction of the care (click on his name in the comments section to read his rant), but try to bring the heat engendered by this comment under control

I do understand that not all medical care works. Physicians generally do their best, and try hard to make decisions which will help patients. Regardless of intention, bad outcomes do happen.

I also understand that some physicians do not meet the standards that I would want for the care of my family. However, I believe that determining the less adequate physicians is much more complex than one might guess. We need a verifiable system of identification. The system must have objective measurable standards.

The author castigates all physicians and especially all physicians in the state of Nevada. This hyperbole creates negative reactions. I assume that the commenter follows his inference and thinks we would be better without physicians.

The crux of the malpractice crisis is how to protect patients and improve overall care. I have argued that we need a better system – most recently – Rethinking Malpractice. We do need a system that protects patients. We do need a system that is fair and predictable to physicians. Our current system does neither.

More on the Nevada tort crisis

This editorial from Nevada – EDITORIAL: Insurers aren’t to blame

In Clark County, by contrast, the premium base rate for obstetricians increased from $95,000 per year to $142,000. Since then, the Legislature attempted to implement malpractice reform, but portions of that legislation were designed as a sop to Democrats and their trial lawyer allies. For instance, the $350,000 “cap” on noneconomic damages enacted last year is riddled with loopholes, and there are no limits on joint and several liability, meaning a doctor found to be 1 percent responsible for a mistake could end up liable for 100 percent of the damages.

While the ever-cautious GAO was true to form in one sense — rather than recommending specific legislation, it suggested that insurance commissioners might want to gather more information — the report’s findings clearly indicated that moves to rein in excessive jury awards and to limit joint and several liability should significantly slow the rise in malpractice insurance premiums.

Whether state or federal lawmakers are courageous enough to take on the powerful plaintiff’s bar and make the necessary changes that would moderate those rates is another matter altogether.

No comment is necessary here.

Insurer leaves Nevada

The trial lawyers (and by extension the Democrats) blame the malpractice crisis on the insurance companies and their stock investments. This disingenuous claim makes no sense when one reads about situations like this – Medical insurer to quit Nevada, raising malpractice crisis fears

A medical liability insurance company is quitting Nevada, fueling fears of another state health care crisis.

Medical Insurance Exchange of California cited company losses and the failure of the Nevada Legislature to change state medical malpractice laws as it began notifying doctors this week that it will withdraw coverage in February.

“The absence of very meaningful tort reform in Nevada … doesn’t give us much hope for a future for us in the state,” said Ron Neupauer, vice president of underwriting for the physician-owned company based in Oakland, Calif. “We’ve lost over $19 million in Nevada since we began offering coverage in 1977.”

The company will continue to provide coverage in California, Idaho, Alaska and Hawaii, Neupauer said.

I believe this a simple exercise in logic and finances. The insurance company expects to make a profit. If they feel that they cannot make a profit, they should not do business in that state. So this insurance company is walking. This has nothing to do with stock market losses (or they would leave the other states). One can explain this defection from a fear of downside risk. They have run the actuarial estimations and decided the potential for gain is not there. I hope that I never get sick in Nevada.

GAO on the cost of malpractice insurance

I will quote this entire AP piece (which was sent to me)

Report: Legal losses spurred hike in medical malpractice insurance rates

Associated Press

July 29, 2003

By Lara Jakes Jordan

Increases in medical malpractice insurance rates in some states, including Pennsylvania, were due largely to high payoffs on legal claims, according to a congressional survey released Monday.

In Pennsylvania, insurers faced a 70.9 percent increase in successful malpractice claims against doctors and other medical providers between 1998 and 2001, according to the U.S. General Accounting Office, the investigative arm of Congress.

“Losses on medical malpractice claims appear to be the primary driver of increased premium rates in the long term,” the report stated. “Such losses are by far the largest component of insurer costs.”

But the report, which surveyed rates in seven states, noted that the increases varied greatly from state to state and across medical specialties. General surgeons in Florida, for example, faced a 75 percent rate increase between 1999 and 2002, but rates increased only 2 percent in Minnesota during the same period.

Pennsylvania is one of a dozen states in the country that does not cap the payout in jury awards for victims of medical malpractice seeking non-economic, or pain and suffering, damages. The U.S. House this year passed legislation, endorsed by the White House, to cap non-economic jury awards at $250,000. But Senate Democrats killed the bill, maintaining that men, women and children who were grievously injured through medical errors should be entitled to seek the damages.

Close to 1,000 Pennsylvania doctors have left the state in recent years, in large part to avoid paying the skyrocketing costs of malpractice insurance policies, according to the Pennsylvania Medical Society.

The GAO report found that insurance rates for obstetricians and gynecologists in Pennsylvania increased by 165 percent between 1999 and 2002, compared to 9 percent for their California counterparts. California law caps non-economic jury awards.

Insurance rates for Pennsylvania surgeons and internal medicine doctors both increased by 130 percent between 1999 and 2002, the report showed.

The report examined medical malpractice insurance rates in California, Florida, Minnesota, Mississippi, Nevada, Pennsylvania and Texas.

For those who care – the GAO report in full – GAO on Medical Malpractice Insurance

The extent of expert witnesses – end speculation!!

California court throws out “speculative” expert testimony

In a medical malpractice trial in California, physicians admitted that leaving a retractor in a man’s peritoneal cavity after a September 2000 surgery was a deviation from the standard of care. It was the question of how much damage the mistake caused that was left to a jury, particularly whether the oversight contributed to an infection.

The jury’s decision would rest on what medical expert witnesses had to say. But after the plaintiff’s expert witness testified, the trial court judge told the jury to disregard the expert’s testimony and threw it out, saying the opinion was based on speculation, not science.

…

n the California case, Jennings v. Palomar Pomerado Health Systems Inc. et al., the plaintiff’s expert testified that the retractor left below the patient’s peritoneal cavity during abdominal surgery contributed to an infection in the upper subcutaneous tissue and fascia, according to court records.

Doctors discovered the infection when they went in to remove the retractor. There was no infection in the area around the retractor.

The plaintiff’s expert testified that there was “guilt by association” even though there wasn’t evidence of an infection where the retractor was lodged, court records show. He told the jury that the omentum encased the retractor to isolate and kill germs in the peritoneal area where it was lodged.

The expert testified that the sutures used to close the surgical opening could have brought the infection back up to the peritoneal area, before the omentum was able to take care of any infection below.

As soon as he was finished testifying, defense attorneys for the hospital and two physicians who were named in the lawsuit moved to strike the testimony because there was no basis for the expert’s opinion that the retractor left in the man’s body contributed to the infection.

The judge agreed.

He said the infection, under either explanation the expert outlined, “would have happened anyway even if the retractor had been removed during the original surgery,” according to court records.

Plaintiffs argue that the judge engaged in fact-finding. But the hospital, physicians and the CMA argue that the judge was just doing his job — keeping out speculative and unreliable testimony.

“Trial judges should not abdicate responsibility for determining the reliability and admissibility of evidence before it may be submitted to the jury,” the CMA said in its brief. “In fact, trial courts should be encouraged to do exactly what the court in this case did: carefully analyze expert testimony to ensure that only well-founded, nonspeculative expert opinions reach the jury.”

Indeed, that’s happening more often today than it did a decade ago.

First, a round of applause for the judge. This case illustrates some points that Mr. Howard made in his NY Times piece last week – my rant on that op-ed – Rethinking malpractice . Judges can and should influence malpractice cases in just the way that this judge did. They should not allow speculative testimony. Rather they should remember that the jury is a fact finding group. They should not have to make theoretical judgements.

More malpractice angst

Hospitals Helping Doctors With Insurance

When a group of specialists were dropped from their malpractice insurance last year and began job-hunting in other states, their cash-strapped community hospital started weighing its options.

“Our board took a look at the situation and the first question was, ‘What will happen when these doctors leave?”’ said Perry Pepper, chief executive officer at Chester County Hospital.

“And the answer was, ‘Well, we won’t be able to recruit any more obstetrician-gynecologists,”’ Pepper said.

So the hospital offered to make a subsidiary of the obstetrician-gynecologists’ group, and now pays to insure the eight doctors in it.

Hospitals across the nation are making the same tough choice, particularly those in states hard-hit by rising malpractice insurance costs: Help doctors pay their rising malpractice liability premiums, or risk losing them to states where conditions might be better.

This is not a cure. This is not a solution. This is a band-aid. And the cut is widening.

Part 4

More excellent comments and questions from Lisa.

Ah, see, now we are beginning to tease out the tangled meanings. I appreciate your explanation of the difference between the informed consent a patient may be giving before a medical procedure and what you mean by “a juror judging standards of care.” Since it seems that universal standards of care don’t (perhaps can’t?) exist, this is where the issue lies. Would you support a national standard of care, or is that a nonsensical suggestion?

Medical care really does have great complexity. The problem with developing a national standard of care comes from patient factors and new knowledge. Let me try to explain.

We all know that we should anticoagulate patients with atrial fibrillation. All guidelines support this idea; all the studies support the practice. However, anticoagulation puts the patient at risk of bleeding. We often decide that the risks (in an individual patient) of anticoagulation exceed the risk of not anticoagulating. I do not know how to make that a standard of care. Perhaps our problem here is in developing a documentation record.

The more difficult problem is the one that I described in part 3. When we have new information, how fast should we incorporate that information into practice. How do we revise the standard of care? The standard of care is now an informal understanding amongst physicians. Perhaps we should set explicit parameters with the goal of improving quality of care. Such a proposal would require careful pilot studies to understand the “unintended consequences” of a standard setting body.

I think the “finding of fact” system could be entered into by private parties today as a form of binding arbitration. I wonder, if I were presented by my HMO with a contract saying, “As a condition of your insurance, you may not sue your doctor but must instead submit to our binding arbitration/mediation process” would I sign it? Would I be better off if I did? I might (maybe) be better off as a patient, but maybe not better off as a citizen.

Lisa has a start at a solution here. Our goal should be several fold. We want fair compensation for injured patients. We want a system that identifies substandard physicians – and either directs them to improve or revokes their license. We want a system that allows physicians to continue to practice.

We need a new system. Perhaps arbitration would work. Perhaps a medical court system would work. What we currently have fails both patients and physicians!

Part 3

So Bernie writes:

Third, the attitude that patients can’t understand complex medical cases strikes me as a bit arrogant. The older I get, the more I understand that the most important quality to cultivate is not knowledge, but judgement. Doctors may be very knowledgable about the practice of medicine, but they sometimes show poor judgement. I think the case you present undercuts your own argument. You ably presented the facts and I think a resonable person could reach a conclusion on the facts you present. And I don’t think a further knowledge of the facts of the effectiveness of NAC would significantly aid in reaching this conclusion.

Bernie, Bernie, Bernie. Please reread my rant. You seemingly misunderstand my point.

We are not arguing against jury trials per se. Rather we are arguing over the responsibility that a jury should have. In the simple hypothetical case that I outlined, the facts are not disputed. We are disputing a concept called standard of care. How does one establish standards of care? Who can judge when new knowledge reaches the threshold that makes us change our practice standards?

As I wrote on July 4th

Thus, the authors make the case that we need to study methods for translating knowledge into practice. Identifying suboptimal practice no longer should interest us. We know that many new findings are not quickly translated into practice.

As one studies adoption of new practice, one finds an interesting curve of adoption.

At what point on this curve would you find someone guilty of malpractice. How do we decide when everyone should have adopted an innovation (and I would argue from my example that many still consider NAC an innovation in protecting against dye induced renal failure)?

We should look at the flip side of this curve. What if I am an early innovator of a drug which causes a serious side effect? Am I guilty of malpractice then? Where should I lie on the technology adoption curve?

My argument is simple. The judge(s) should set the parameters for the jury. They should define the problem. The jury should decide the facts of the trial, not the standards of care. I am not even asking for physicians to make the decisions, but rather legal experts on the problem of care standards.

My simple case is actualy quite complex and full of nuance. We regularly use NAC to decrease the risk of dye induced renal failure on my service. But are we early adopters or the early majority? How does one decide?

Malpractice and Common Good continued

Go to the next rant (written earlier today) and read the comments. Lisa comments

Howard merely states that jurors are unable to judge, but gives no reasons why.

I would take issue with that comment. Read again his exact wording.

The role of juries in civil cases is to decide disputed facts, like whether someone is telling the truth. It is not to declare standards of care that affect society as a whole. That’s why the Seventh Amendment qualifies the jury right as applying to “suits at common law” and ends by saying that “no fact tried by jury shall be otherwise re-examined . . . than according to the rules of the common law.” Judges declare the standards of law that affect all of society; juries decide disputed facts in a particular case.

Howard makes the point that when one asks a jury to judge a standard of care, that oversteps the legal responsibility that one should accord to a jury. Juries, he states, have the responsibility of deciding disputed facts not disputed standards . As he states, the problem in many malpractice cases comes from the difficulty of anyone including physicians discerning the standard of care.

As I read his op-ed, he does not make the point that juries are too ignorant, but rather that the question being asked is not one for which we have a jury system.

She goes on to pose the following hypothetical:

If an individual without medical training can give informed consent to a complex procedure that involves risk, why can’t twelve of his or her peers, also with no medical training, understand the same material?

I agree that informed consent represents a difficult problem. But it does not equate to the problem that a juror faces. An example might help.

You get admitted to the hospital with chest pain. I take your history, do a physical exam, check your laboratory data and interpret your EKG. Your history suggests that you have coronary artery disease. I recommend that you undergo cardiac catheterization. I represent the risks and potential benefits of that procedure. You then decide whether or not to undergo the cardiac catheterization. This is a personal decision based on how I explain the risks and benefits and your understanding and experience with physicians and heart disease.

This process of informed consent involves a discussion of risks and benefits. Most often patients ask me for my opinion. Thus, often we revert (at the patient’s request) to a paternalistic process.

Contrast the following example. You are admitted with chest pain. I recommend a cardiac catheterization, for which you give your informed consent. You develop acute renal failure related to the dye used for the cardiac catheterization. You hire a lawyer to sue me (even though you have a complete recovery).

The lawyer argues that I could have prevented the acute renal failure by using n-acetylcysteine prior to the dye injection.

The data supporting this claim are new, and do not yet reach the standard of care in my hospital. You obtain an expert who quotes recent articles that show the benefit of n-acetylcysteine. I obtain an expert who states that the articles remain controversial.

Should a jury judge this case? Who should establish the criteria involved in this case?

I have used real situations. We make these decisions every day. The level of decision making in informed consent is more clear and definable than the level of decision making in the acute renal failure situation.

I do not believe that we have a paradox here. We need a clearer method of defining the standard of care. Remember that malpractice implies that the physician has not complied with the standard of care. If we hold physicians to that standard, we should expect a clear and consistent way of determining that standard.

For further explication of this thinking please see the reference cited towards the end of the rant. Admittedly, these are difficult issues to sort through. I believe that patients would benefit, and medical care would benefit from a fair system rather than the random lottery system that we currently have.

Rethinking malpractice

Previously, I have lauded Common Good. Yesterday, the chair of Common Good, Philip K. Howard (a lawyer), published an op-ed piece in the NY Times. I will give 2 sites for the op-ed entitled The Best Course of Treatment , The Common Good site, and the online NY Times version. This op-ed does a better job than I have done in presenting an alternative to our current malpractice nonsystem.

Lose-lose is perhaps the best way of describing the sorry state of justice in American health care. Doctors are going on strike and even quitting because of ruinous increases in liability premiums. Patients aren’t doing so well, either: thousands die annually because of simple slip-ups, and no one seems to be able to revoke the licenses of inept physicians.

He starts by defining the problem. This definition is fair. We would like a system that would protect patients, and not put good physicians at unnecessary financial hardship.

Doctors and patients aren’t natural enemies. They’ve been driven apart by an unreliable system of justice that tolerates both abusive claims and bad care, breeding distrust on both sides. Studies about jury awards in health care confirm what every doctor fears ? and every victim should fear: justice is random. Most doctors who make mistakes don’t get sued. But most lawsuits are against doctors who did nothing wrong; the cases involve human tragedy but not medical negligence.

Remember this is a lawyer writing. He understands (as did Mike Kingsley in his column within the last month). The problem is the random nature of justice. We need a more reliable system. One which protects patients and physicians.

The Constitution’s right to a jury trial does not require judges to abjure their traditional role of defining the boundaries of reasonable dispute. The role of juries in civil cases is to decide disputed facts, like whether someone is telling the truth. It is not to declare standards of care that affect society as a whole. That’s why the Seventh Amendment qualifies the jury right as applying to “suits at common law” and ends by saying that “no fact tried by jury shall be otherwise re-examined . . . than according to the rules of the common law.” Judges declare the standards of law that affect all of society; juries decide disputed facts in a particular case.

Today, however, juries are being asked to decide not only disputed facts but standards of medical care. How does a jury know how to do that? More important, how does a doctor know what standards to abide by? Every time a sick person gets sicker, it’s easy to come up with a theory of what a doctor might have done differently. Chemotherapy didn’t work, but maybe radiation would have.

He reinforces my point, that juries cannot reliably and should not decide standards of care. Those judgements remain very difficult, even for experienced physicians. He challenges us to have judges decide on the merits of considering malpractice.

Unreliable justice harms patients more than it does doctors. Pervasive distrust is causing a meltdown in American health care. Quality suffers as fear of lawsuits chills the professional interaction necessary for informed and humane care. Costs spiral out of control in part because doctors squander resources with unnecessary tests in order to build a record just in case they get sued.

A reliable system of medical justice could take many forms, but because the critical issue in virtually all cases is whether the doctor complied with appropriate standards of care, the key element must be expert judges ruling on standards of care. Specialized tribunals are common, in areas ranging from taxes to vaccine liability. A bill to finance pilot projects for special medical courts is scheduled to be introduced in the Senate later this week.

The common ground here is the need for reliable justice. For doctors, reliability would offer protection against baseless claims. For patients, it would provide victims with quicker compensation without the legal costs that consume almost half the awards. A system of reliable justice could also remove from practice incompetent doctors who often escape accountability now by threatening to sue their hospital or state licensing board.

This proposal makes so much sense that it can not possibly succeed. Trial lawyers will oppose this ferociously, because (I fear) many trial lawyers are more interested in jackpots than justice. This proposal focuses on justice. I believe we would all benefit from fair justice. Fair trumps random every time!

Here is an editorial supporting the idea of medical courts – Medical Courts Would Heal Infirmities Of Legal System. If your are interested in these issues, please read both pieces carefully. I am impressed with the though process behind this proposal. Now to figure out how I can make a difference!

Not giving up on tort reform

One of the most important lessons my mother taught me was the necessity for persistence. We often lose the first battle (or battles) in a war. But if the cause is just and logical, eventually we just might win. So is (in my opinion) the war for tort reform Our system is broken and needs to be fixed. The AMA agrees. Measure stalls in Senate: “We’ll be back,” say tort reformers

“Medical liability is going to pass at the federal level,” AMA President Donald J. Palmisano, MD, said. “It’s a question of when, not if.”

“This is a stop along the road,” added Richard Anderson, MD, chair of The Doctors Company, a physician-owned, national medical liability insurer. “I am not discouraged.”

In fact, advocates say there are several reasons to be encouraged. President George W. Bush supports legislation. The House of Representatives in March passed a bill that includes a $250,000 noneconomic damages cap. And a Gallup poll shows that 72% of Americans favor caps on noneconomic damages.

“The only people we haven’t convinced are the Democrats in the Senate,” Dr. Anderson said. “When they go home, I think they will find that their constituents want this.”

With physicians continuing to leave medicine because of high insurance rates, both sides acknowledge that the issue won’t be going away anytime soon. During Senate floor debate, Republicans said they would make tort reform a campaign issue.

“The American public will know where the responsibility lies” for legislation not being passed, Dr. Palmisano said.

The vow from tort reform champions to continue their push comes after a 49-48 Senate vote July 9 — almost entirely along party lines — not to let debate continue on the Patients First Act of 2003, introduced by Sen. John Ensign (R, Nev.) and endorsed by the Senate majority leadership as well as the AMA. The measure needed 60 votes in order to clear this procedural hurdle.

In addition to capping noneconomic damages, the measure proposed limiting punitive damages, setting a statute of limitations on filing lawsuits and establishing tougher standards for expert witnesses.

So I will continuing blogging this subject. As will my physician blogging colleagues. Perhaps we will need a more obvious crisis to get something done. I hope not.

Walter Olson on medical tort reform

He is the best. His blog, Overlawyered, should go on your daily routine. Here is his update – Kinsley: GOP is right on malpractice

Senator Enzi on medical liability reform

Many readers know that I have become a fan of Our Common Good. This organization is working to provide common sense in tort matters. They have an important piece from Senator Enzi that everyone should read: Statement of U.S. Senator Mike Enzi on Medical Liability Reform. He ends this statement:

When I spoke on this bill yesterday, I said that the current medical liability crisis and the shortcomings of our medical litigation system make it clear that it is time for a major change. I also said that regardless of how we vote on this legislation before us, we all ought to start working toward replacing the current medical tort liability scheme with a more reliable and predictable system of medical justice. I’ve heard Members on the other side of the aisle say that they want to work with Republicans to find a better way to solve this problem ? to find reasonable, good-faith alternatives to this legislation. If we vote not to proceed to this bill, I hope that process will begin sooner rather than later. The people of Wyoming and other states in crisis cannot afford to lose any more doctors than we’ve already lost. If we do not proceed to this bill today, I also pledge to continue working to find solutions to this medical liability crisis. I hope that Members on both sides of the aisle will also take this pledge to keep working on this. I yield the floor.

Please read his statement, and then explore the entire site.

Medpundit on tort reform

Get out of here – go read what she says – The Threat to Medical Innovation

Who should judge malpractice?

Educated Guesswork rags on my idea of having physicians judge malpractice – Doctors punishing doctors? Given the following criticism I would like to clarify my points:

It’s not like there would be any conflict of interest in having doctors judge other doctors. They wouldn’t circle the wagons or anything like that. That would never happen.

Well this represents an excellent use of sarcasm, however one cannot really classify these statement as criticism. Physicians do want to see high quality care. State medical boards do censure other physicians regularly. While we may do a great job of self-policing, we are improving. I believe (as a physician) that we could develop a system which would protect patients.

Physicians have the knowledge to review the chart, interview the patient and the physician. They will less likely succumb to legalese. They will less likely provide a “verdict” based on sympathy for the “victim”. I truly believe that non-physicians would have great difficulty judging patient care decisions. It takes medical school, residency and continuing practice to understand many intricacies of patient care. Lawyers would not like a rational solution, because they would prefer sophistry and other legal tricks.

I am advocating a system which tries to judge truth. I thought that was the goal of our legal system. Our point (and here I do believe I speak for most physicians) is that our current tort system make truth only one of many variables in the legal equation. All too often other variables trump truth. We would support any rational system of judging our performance. The current tort system does not meet that standard.

A plea for malpractice

Please read the comments contained herein – New Jersey game of chicken. The writer tells a story which moves any reader. It is certainly possible that a physician erred. Without reviewing the records, one cannot tell.

While this story is poignant, it does not change my position. The accused physician should have his records and other evidence judged by a panel of peer physicians (perhaps from another state to decrease conflicts of interest). That panel could best judge whether the physician made errors. They could then authorize appropriate payments. We all agree with the payment of legitimate damages. Physicians want a cap on punitive damages only. The writer, if the victim of medical error, deserves financial support for medical care and disability and the equivalent of his expected income. Our position would not deny that.

Trial lawyers and the Democrats

Political Malpractice: Trial lawyers ask Democrats to walk the plank–again.

Democrats are expected to muster the 41 votes needed to kill medical liability reform in the Senate today, so why are Republicans smiling? Perhaps because they know they’re teeing up what promises to be one of their better issues going into 2004.

Democrats have long made the Senate the graveyard of any and all legal reform. The news is that they’re having a harder time getting away with it. The scandal of asbestos litigation has forced them at least to bargain on that issue, while momentum is also building to limit class-action suits. It says something about Tom Daschle’s devotion to the trial bar that he’s willing to ask his Members to walk the plank even on medical liability, just as voters are discovering the damage it is doing to health care across the country.

Read the entire article. I do believe that malpractice is becoming an important issue – and not just for doctors and doctor blogging. We must continue to educate the public about the problems with our current tort system. The Wall Street Journal makes a nice contribution to education here. Shame on the Democrats!

On expert witnesses

Expert medical witnesses face review: Lawyers say move intimidates doctors

Feeling under siege by malpractice lawsuits, medical societies are setting up tribunals to review the testimony of doctors who act as expert witnesses in malpractice cases.

Doctors whose testimony does not pass muster can be suspended or expelled from the societies.

Lawyers who represent those suing doctors in malpractice cases say such reviews and the threat of sanctions are meant to intimidate witnesses. They say the mere existence of the reviews has made it harder to find experts, whose testimony is crucial in most malpractice trials.

The idea for the grievance review seems to have started with the American Association of Neurological Surgeons, which has prevailed in three court battles over their legality. Societies of obstetricians, gynecologists and spine doctors followed, and societies of anesthesiologists and ear, nose and throat specialists are expected to vote on establishing similar procedures this summer and fall.

“There are probably another 10 that are studying it closely,” said Russell M. Pelton, a lawyer in Chicago who represents the neurosurgeons’ association.

The American Medical Association supports the moves, said Dr. Donald J. Palmisano, the association’s president-elect.

“The giving of expert testimony should be considered the practice of medicine, and it should be the subject of peer review,” Palmisano said. “If someone comes into court and gives junk science, we don’t want fraudulent testimony in court.”

We (physicians) all know that there are “witnesses for hire”. Testifying in malpractice cases results in significant billing and collection. Lawyers gladly pay (as do insurers for defense work).

The challenge for juries is to evaluate the experts. Each side will have experts who will argue for their position.

If the plantiff’s expert is really an “expert for hire”, then his/her credentials become very important. If the expert gives scientifically unsound testimony, then he/she should receive censure.

This tactic makes great sense. If we expect physicians to police ourselves, then we should include expert testimony among the activities that we evaluate.

The plantiff’s lawyers want to get the most convincing expert testimony that money can buy. The tort system cannot provide a fair assessment of malpractice. We need a new system; one based on true expert review. We need peer evaluation. But then the trial lawyers could not charge a percentage of the damages.

Surprise, surprise, if you want to understand the true problem in malpractice, just follow the money. And when you do, it goes mostly to the trial lawyers.

Tort reform again

Reason demands that we do not let this problem become dormant. This editorial from US News and World Report is “spot on”. Welcome to Sue City, U.S.A.

The Bush administration is committed to tort reform. It has proposed capping jury “pain and suffering” awards in medical malpractice suits at $250,000, limiting punitive damages and lawyers’ contingency fees. Democrats oppose these proposals, on the grounds that no restrictions should be placed on any injured American’s right to sue. We can all agree that one injured medical patient is one too many. But one falsely accused doctor is one too many, as well. Somehow, we must restore a sense of responsibility, and of proportion.

To do so, we must create a new system of medical justice. Clearly, we want to distinguish between good care and bad care, but juries have limited appreciation of the scientific issues and are not much helped by expert witnesses endlessly contradicting each other. We could, instead, rely on independent panels answerable to the court. We might also penalize those who bring frivolous lawsuits, have damages set by judges rather than by juries, and make the losing party pay the legal expenses of the winner.

Reforms will not come easily, given that trial lawyers have become the most powerful special interest group in American politics, bankrolling politicians, especially Democrats. But tort litigation is costing us all. The current estimate is $200 billion a year, and rising. As author John Naisbitt said in Megatrends, “Lawyers are like beavers. They get in the mainstream and dam it up.”

This is one dam we must dynamite–now.

The entire editorial is well written. I found this link at the Common Good web site about which I ranted last week.

Thinking about malpractice

Two days ago I ranted about Common Good. Over the past 2 days we have had a fairly heated exhange in the comments section. As I have read the comments (and yes I do read every comment), I have considered the various opinions about the malpractice crisis.

Many years ago I read a famous book from the Harvard Negotiation Project – Getting to Yes! This book has guided me in various negotiations over the years. If I recall the principles correctly, one early step towards getting to “yes” is to understand the various interests. This principle parallels Steven Covey’s “Seek First to Understand, Then to Be Understood” (the 5th Habit of Highly Effective People).

This rant represents my effort to understand the problem from various sides. I hope this explication works. If it does not, then I expect appropriately pointed commentary!

What do patients want?

Patients want excellent health care. More than knowing that they are receiving excellent health care, they must believe that they are receiving excellent health care. The doctor patient relationship has its own therapeutic value. Patients want to bond with their physicians and trust them. Generally they do.

Patients also want perfect outcomes. Regardless of the illness or injury some patients expect us (the medical profession) to cure them. We have done a great job at improving both the quality and quantity of life for many people. We have, however, raised expectations that we can always cure the patient.

Patients often do not understand or accept the limitations of medical care. They sometimes believe that there is a better doctor elsewhere who could have done a better job. Some patients will not accept a poor outcome.

Let me give explicit examples. A 21 year old man is riding a motorcycle without a helmet. He has an accident and suffers severe head trauma. The patient’s only hope is immedicate surgery. Prior to surgery, the probability of survival was 0% without surgery and 20% with surgery. Despite the neurosurgeon’s heroic efforts, the patient dies. Some families (not many, but enough) cannot accept that the death came from the accident. They believe that the neurosurgeon could have, and should have saved the patient.

So some patients want great outcomes guaranteed. They do not understand probabilities and the role of chance. They want physicians to communicate clearly and set realistic expectations.

What do physicians want?

We want to practice excellent health care. Society rewards us generously for this work. We get there through an investment of many years and many dollars. We expect a reasonable return on that investment.

Most physicians understand that providing health care is a business. We want to receive a reasonable return on our investment (see above paragraph) and to be able to run our business predictably.

Most physicians (all physicians will admit that like any other profession we have our bad apples) strive to provide the best possible care. We would like to work at a pace which allows us to make carefully thought out decisions. We want excellent outcomes, but understand the role of chance in every therapeutic or diagnostic decision. We have all done the right thing, and had the patient either die or suffer. Our decisions affect our patients.

We want all physicians to do a good job. We would like to police ourselves, however we understand the difficulties of policing the profession.

We want to be rewarded for providing appropriate care. We do not want to be sued when we have done nothing wrong. We do not want our malpractice insurance rates to increase because another doctor got sued.

What do lawyers want?

[insert jokes here] – Seriously, tort lawyers take what the law allows. Their job is to make a good living, and win lawsuits for their patients. While I like to paint them as evil, we should recognize that the problem is the laws and precedents that encourage them to become aggressively litigous. They are only foraging what they can legally forage. We should not label them with evil intent, or even expect them to consider the common good. That is not their job.

What do the insurance companies want?

They want to make a profit for their shareholders.

Where are the solutions?

First, blaming the insurance companies is unlikely to be productive. No one can make them provide insurance coverage to physicians if they cannot make a profit. That is their job, and their only job.

Second, we really cannot blame the lawyers (as much as I would like to blame them). We can only blame the laws. Our tort system is the disease. Any good physician knows that we must treat the disease not the symptoms.

Third, we must educate the public. They should understand the limitations of medicine. We must provide better information about outcomes prior to initiating care. Involving patients in medical decision making should help greatly.

Fourth, we must develop a better method of policing physicians. We need objective standards and peer assessment of physicians. We as physicians have an obligation to provide appropriate medical care. If we no longer provide such care, we should no longer have the privilege of practicing medicine.

I believe that Common Good is on the right path. They understand that attacking lawyers is not the answer. They understand the limiting awards represents a bandaid solution.

What’s missing are reliable standards, the essence of what law is supposed to provide. Today, there are no deliberate rulings of who can sue for what, or what is appropriate care. There are no societal judgments of the appropriate levels of compensation, or even a recognition that moneys spent in lawsuits reduce funds for future healthcare. There are no inducements for openness and for improved systems.

I hope that physicians, all health care workers, patients and even lawyers can work together to improve the quality of health care. Our current tort system will lead to decreased health care access (see many rants over the past several months). We all must demand a new creative solution. The current system is broken, we must fix it!!

The Common Good

As I was browsing the Time magazine articles, I came across this link – Common Good. They have a petition calling for a reliable system of medical justice. I was delighted to see that my dean had already signed this petition. I signed the petition today. Please read it, and consider signing it. I do believe this organization has an enlightened approach – and not just a bandaid.

An Urgent Call for a Reliable System of Medical Justice

Current reform proposals to “cap” one category of damages are not nearly ambitious enough. Providing relief to doctors squeezed by insurance premiums is important, but will not heal the deep distrust of justice that skews daily decisions. Nor will it provide incentives to overhaul outdated practices.

America needs an entirely new system of medical justice. Its first goal is to be reliable – reliable to protect patients against bad practices, reliable to protect caregivers who act reasonably, and reliable to interpret standards of care so that all participants know where they stand, and where they must improve.

We call upon Congress immediately to initiate hearings on the broad effects of litigation on healthcare, not just on the immediate litigation insurance crisis, and to consider recommendations on how to create new systems of medical justice that will promote better care, not undermine it. The health of all Americans depends upon it.

Time magazine on the malpractice crisis

I have not had time to read the issue yet, but here is the on line link – The Doctor Won’t See You Now. Hopefully some loyal readers and commentators will have time and help us with commentary.

The true cost of increased malpractice – redux

I am obsessed! I see social injustice and I cannot control my fingers. I must type incessantly. Malpractice lawyers are hazardous to patient care. They hide behind hyperbole and obfuscation, yet they are slowly depriving Americans of adequate health care. In Insurance Cost, Woes for Doctors and Women

Shannon Minor went to the drugstore last year to buy a home pregnancy test, picked up the local newspaper and read some bad news: her obstetrician, Barbara Pringle, was planning to stop delivering babies.

But not only was Dr. Pringle giving up obstetrics, so were four other doctors in Mount Vernon, including Dr. Pringle’s husband, Robert, and the Pringles’ longtime partner. Within a year only four obstetricians would be practicing in Mount Vernon, a small city in an agricultural valley of the Cascade Mountains, halfway between Seattle and the Canadian border.

“I was so upset about it,” said Ms. Minor, 35, who found a doctor at a hospital in Everett, Wash., 34 miles north of here. “There were hardly any doctors available. When I got pregnant a second time, I just felt lost.”

Ms. Minor’s obstetrician is one of hundreds around the country giving up delivering babies. They cite the soaring cost of malpractice insurance. Here in Washington, rates have more than tripled since 1975, even after accounting for inflation, according to figures from Physicians Insurance, the state’s largest insurer of doctors.

The Pringles calculated that the annual cost of policies that would cover them for claims of up to $2 million ? the median jury award in lawsuits related to childbirth ? was about the same as the income they would lose by giving up obstetrics.

The Pringles are not suffering as much as their patients. Apparently malpractice lawyers have no concern for social justice.

An opinion piece on CBS Marketwatch (free registration required) adds these interesting points. Why we need malpractice reform

Overall, malpractice insurance rates are increasing 25 percent annually and quadrupling in states with particularly high damage awards. It’s no wonder that premiums are so high when juries bring back damage awards in the $20 million range.

Can it be that doctors are getting that much worse? Or is it that our approach to conflict resolution is in complete chaos? Statistics show that only 28 percent of every dollar paid for malpractice insurance actually goes back to the victim. The other 72 percent disappears in legal, administrative and “related” costs.

Meanwhile, physicians are fighting back by practicing “defensive medicine” that adds some $50 billion annually to the nation’s medical bill in the form of unnecessary tests and treatments.

From my perspective as CEO of a hospital company that owns 100 facilities in 23 states, as well as the District of Columbia, Puerto Rico and France, I see the need for change.

To put it plainly, I can’t run a hospital and provide quality care without a stable, professional staff. I fear what might happen to our patients if doctors decide the price for practicing medicine is too great.

If anyone had evidence that malpractice suits lead to better care, then I could understand. I believe that malpractice suits lead to worse and more expensive care. They negatively impact the doctor patient relationship. I assume that malpractice lawyers either do not, or do not want to understand the unintended consequences of their actions. I cannot accept that they really understand.

Not just malpractice

And this from the NY Times – Pressure Increases for Tighter Limits on Injury Lawsuits

Legislative battles in the states have also become intense as doctors protest what they call the effects of costly malpractice insurance and lawsuits. Hospitals in some states have closed their obstetrics departments because the risk of lawsuits and the price of liability insurance are both too high, an issue that resonates with the public. Measures drafted to reduce doctors’ liability often contain language that will also limit other kinds of liability.

“This is a year where we had seen considerable opportunity at the state level, and the major reason is the health care issue has been driving the agenda,” said Sherman Joyce, president of the American Tort Reform Association.

Just last week, doctors held a poorly attended rally in Manhattan in favor of changing state laws on tort litigation ? civil lawsuits arising from claims of injury, including injury as a result of malpractice. Doctors and insurers blame jury verdicts for the high premiums.

“That’s where you see these losses,” said Loretta Worters, a spokeswoman for the Insurance Information Institute in New York. The average medical malpractice award rose to $3.9 million in 2001, from $3.41 million in 2000 and $3.29 million in 1999, according to the institute.

I rant so often on tort reform, that I may have to take some law courses. Seriously (that was a joke) we have too much evidence of the cost to society of our current tort system. Unfortunately, most reform has to occur on a state by state basis. Thus, some states will win and some will lose in the business and medical marketplace.

Tort reform – not just medicine

Today’s Wall Street Journal (subscription required) has an editorial on the need for tort reform – The Tort Temptation

Somehow in recent years the American tort system changed from one designed for justice to one bent on redistributing income. Now we are beginning to see the temptation to corruption that usually accompanies such political abuse.

…

The solution here is for state legislatures to return tort law to the business of promoting justice instead of making instant billionaires. Plaintiffs can still get their day in court, without putting the entire tort system in the dock.

These thoughts are very important.

Tort reform dealt a blow

Tort reform, R.I.P. While this article refers to more general tort reform, the inability to pass this legislation seems chilling to those who champion malpractice reform.

Tort reform is a popular issue for Republicans on the stump. At a March speech to the American Medical Association, President Bush said, “Without fair and reasonable limits, the legal system looks more and more like a lottery. And with trial lawyers getting as much as 40 percent of the awards and settlements, it’s pretty clear who is holding the winning ticket.” Tort reform is a major plank of the president’s plan to reform health care. Unfortunately, Senate Republicans blew an opportunity to make progress on limiting excessive lawyers’ fees.

By a vote of 61-37, the Senate last Thursday rejected an amendment authored by Jon Kyl to the tax-cut bill that would have capped the amount lawyers could receive when working on major tort cases for the government, such as in the anti-tobacco litigation. Republicans voting against the amendment were George Voinovich, George Allen, Norm Coleman, Lindsey Graham, Lincoln Chafee, Saxby Chambliss, Thad Cochran, Mike Crapo, Mike DeWine, Richard Shelby, Gordon Smith and Arlen Specter. Trent Lott voted “present,” and Orrin Hatch voted against it twice ? once in the Finance Committee two days earlier, signaling to conservative colleagues that it was acceptable to vote against it on the floor. Every single Democrat voted nay, except for Daniel Inouye, who didn’t vote.

Despite the 14 Republican defections,Mr. Kyl’s legislation was not radical or restrictive to the suing profession. It merely would have confined the lawyers’ cut of awards of more than $100 million to 500 percent of “reasonable hourly rates.” Poor chaps, the law would have pared their pay down to $2,500 per hour, from the $100,000 an hour some currently are making on the tobacco settlement.

For once I think that I am speechless.

Read Overlawyered.com

While it seems as if I write about malpractice incessantly, I omit many stories. Overlawyered.com does a great job keeping up with this crisis. Go read (but maybe take a Valium first) – Malpractice studies

Congress’s Joint Economic Committee publishes a new study finding that the medical malpractice litigation system performs poorly in both its major social roles: deterring medical negligence and fairly compensating the negligently injured. Reform including liability limits would offer substantial benefits that could include billions in annual budgetary savings to the federal fisc and improvements in medical care affordability that could permit millions of Americans to be priced back into the health insurance market.

A great way to improve health care access is to solve the malpractice crisis. But I guess the Democrats will deny that message.

Tort crisis – how patients are suffering!

Sometimes I start to think that I am a broken record. I keep harping on this theme. I try to break my addiction, but I just cannot. This issue is so important that I cannot avoid it.

Tort crisis limits hospital services

A majority — 53.1% to be exact — of the more than 1,000 hospitals surveyed in the 18 states the American Medical Association has determined are in the middle of a medical liability crisis say it’s more difficult for them to recruit physicians.

About 45% of the hospitals in those states say high medical liability insurance premiums have forced them to cut emergency department coverage.

Nearly 35% of hospitals say insurance woes have caused a negative impact on their ability to provide services, particularly trauma care and obstetrics.

And nearly 19% of hospitals say professional liability premiums have had a “significant” impact on their community’s access to care.

But when will our society and our legislators listen to the physicians and the hospitals. The problems are so obvious, and yet they garner little attention. If I were just a bit more cynically, I would roll my eyes, and pontificate. It will get worse. People will die, or suffer. And it will not be the medical professions fault. Maybe trial lawyers can learn neurosurgery.

Unintended consequences

Nonprofit Health Care Takes a Hit. I will quote this entire letter to the Washington Post.

Yes, private-practice doctors are having difficulty obtaining malpractice insurance [Business, May 10], but nonprofit health care organizations are taking just as big a hit.

Premiums for physician malpractice insurance at Whitman-Walker Clinic jumped last year from $50,000 to $150,000. And because the number of insurers in the Washington market fell from 11 to two, at one point we were one day away from suspending medical services because we couldn’t find coverage. The extra $100,000 we now have to pay could go a long way toward providing our 7,000 clients with health care they desperately need.

Their only sin is trying to provide health care in DC. Malpractice causes problems for all of society. This is the health care crisis.

No trial lawyer means to decrease health care access. Nonetheless, their actions have that effect. No jury rewards a huge settlement with the understanding of the down stream implications. They hit the deep pockets of the insurance companies. Everyone forgets where the money comes from, and the unintended consequences of each settlement.

The AMA and malpractice

Today’s fight for tort reform will ensure care in future

A study in JAMA last September found medical school applications are down 30% since 1996. This decline in interest persists even in the face of an economic downturn, when graduate medical programs usually flourish.

Medical research and medical education are also inspiring less interest. Between 1980 and 2000, the percentage of physicians serving on medical school faculties or research staffs fell from 6% to 2%.

The reasons for these declines are clear to anyone in medicine: government red tape; Medicare payment problems; an average medical school debt of more than $100,000; eroding physician independence under managed care; and most of all, a medical liability system that is sending insurance premiums skyrocketing.

This oppressive system fails to identify negligence and impedes efforts to improve medical safety. It creates inappropriate standards of care and abuses innocent defendants.

The crisis isn’t just making it difficult to practice medicine today. It is also poisoning the well for the physicians of the future. This is especially true in crisis states such as Nevada.

I write often about unintended consequences . I hope that congress will understand how the malpractice crisis impacts the health of the nation. This crisis is snowballing, and causing widespread angst.

 

On this issue, medicine must speak as one. We must demand reform of our medical liability system. For physicians, medical students, our patients and the public.Let’s ensure that our destiny is a matter of choice, not chance. Through our unity, enthusiasm and optimism, we can attract the best and brightest to carry on the traditions of ethics, caring and science.

At stake isn’t only access to care for the people we treat now. The future of our profession is also on the line. If medicine is to survive — and thrive — it must continue to push the boundaries of science and technology. In so doing, we make longer, better lives available to all Americans — and all humankind. That is something worth fighting for.

Well said!!!

Wahington Post on malpractice

Doctors’ Insurance Soars, Then Disappears: Physicians Blame Lawsuits, Awards . This article provides mostly data. It is not an opinion piece.

Insurance costs are causing physicians to reconsider their current practice. I have ranted on this subject so often, that I can only link this article for your perusal. I do not have the energy to repeat my arguments today. This malpractice crisis is frustrating for its lack of logic and common sense.

Some more thoughts on malpractice

I run an academic division of approximately 20 general internists. On Tuesday I was discussing our budget with my administrator. She told me that our malpractice bill was increasing 15% this coming year. This will cost us around $25,000 as a group. That increase must come from expenses, as clinical income is unlikely to cover the increase. We pay full insurance, even though we practice part time.

This increase seems minor compared to the increases seen by other specialties. Yet looking at the numbers, and understanding the implications of that money personalizes my constant ranting about malpractice insurance.

I am not alone in this persistent ranting. Medpundit stresses this problem frequently. Her Wednesday rant clued me to this link – Diagnosis: Premium Shock Rx Strike. I recommend reading the entire article (which is balanced and from a business perspective). Like Medpundit, I found this section particularly revealing.

If there aren’t a huge number of lawsuits or multimillion-dollar verdicts in New Jersey, why are malpractice premiums going up? The answer, says Peter Leone, vice president of claims at Princeton Insurance, is that plaintiffs don’t have to win big very often to push up insurers’ costs. “Verdicts,” he explains, “drive the settlements.”

The bulk of the dollars the insurers pay out in malpractice cases is in the form of settlements, not verdicts. In 2002, the year insurance carriers in New Jersey lost only 54 cases, they settled 732. Jury awards, Leone explains, put floors under the amounts for which suits can be settled. If juries have tended to award plaintiffs $1 million for a certain injury, the insurer knows it can’t expect to settle a similar case for much less.

And the direction of verdicts and settlements, Leone claims, is up. In 1998, he says, Princeton’s average payment to plaintiffs in malpractice cases against doctors was $235,000; in 2002 it was $343,000. The company’s total payout to physician malpractice plaintiffs rose from $88 million in 1998 to $115 million in 2002.

What the doctors and insurers in New Jersey want is a law to limit verdicts and thus settlements. When a jury awards a plaintiff money in a malpractice case, the award has two parts: a sum for economic damages, like lost wages and future medical costs, and a sum for pain and suffering. In any malpractice trial, there will be testimony from both sides about economic damages and the jury will be instructed to be guided by that testimony in setting an award. Pain and suffering, it goes without saying, is less tangible. If you lost a leg due to a doctor’s screwup, the cost of a prosthesis, physical therapy, lost income and so on could be estimated with some precision. But what’s the dollar value of your suffering? A hundred million dollars? Zero? New Jersey jurors can give you whatever they think fair (although judges and appellate courts can and do reduce awards they consider wildly excessive).

Are juries in the state giving away the store when it comes to pain and suffering? You can’t tell by looking at the public records. The limited data collected by the courts doesn’t break verdicts down into economic and pain and suffering damages. The insurance companies certainly know–they write the checks–but they’re not required to disclose their numbers on damages to regulators or anybody else.

Princeton’s Peter Leone did provide MONEY with verdict breakdowns for the largest cases the company has lost for 2001 and 2002. According to his figures–which we’ll have to take on faith because they can’t be checked against public records–pain and suffering accounts for roughly 70% of those verdicts. In the past two years, Leone says, the company lost 16 cases with verdicts of more than $500,000, 13 of them for $1 million or more. Usually the awards for pain and suffering were larger, often substantially, than those for economic losses. One case yielded $90,000 in economic damages but $1,910,000 in pain and suffering; another, zero economic damages and $3,580,000 in pain and suffering.

This article makes sense out of the lawyer hyperbole and obfuscation. The problem does stem from verdicts because verdicts drive settlements. Patient care is suffering. When will patient advocates understand that our broken tort system (and the trial lawyers who benefit from that system) has major unintended consequences. Each successful verdict and settlement takes money out of the health care system. Who should fund these costs? Apparently, the trial lawyers (and their political buddies) do not care, or delude themselves by not working through the consequences. This blogger will continue to rant, hoping that by ranting I will educate a few more people with each rant. As we educate more, they in turn educate more people. Eventually, I believe that a majority of the country will understand our outrage over a broken system.

Need an Appendectomy? Call a Trial Lawyer.

The battle rages. This war will not end quickly. The combatants are obvious. In this war, too often the innocent suffer. In Pa., Doctors Rally For Malpractice Limits

This past Saturday, I spoke to 1st, 2nd & 3rd year medical students from the University of Nebraska, Creighton University and the University of South Dakota. My talk focused on how one picks a medical specialty. The symposium demystifies applying for residency training.

The first question from the audience was about malpractice. The malpractice crisis soon will impact on students’ specialty choices.

 

Two thousand doctors, stethoscopes at the ready, gathered outside a convention center here to chant and jeer and demand that the governor and state legislature enact a $250,000 limit on malpractice awards.

Unlikely revolutionaries, the white-coated medical men and women depicted a profession besieged by lawsuits and perched on the edge of ruin. Surgeons and obstetricians around Philadelphia say they have seen their payments for malpractice insurance increase from $25,000 to $125,000 in the past five or six years.

“We are in danger of losing our best and brightest physicians,” said Anthony V. Coletta, a Main Line surgeon. “Doctors may land on their feet, but it won’t be in Pennsylvania. They’ll move.”

We do have a crisis. Which politicians will respond? How can we address this issue rationally? Who can really define malpractice? How much should the aggrieved party receive? How much should his/her lawyer receive?

We must resolve these issues. Physicians cannot “pass on the costs”. Each malpractice dollar directly impacts their income. And malpractice insurance increases even if the physician has no suits filed. From a societal perspective, our current tort process makes no sense for medical care.

We need a revolution, but I wonder where it will arise.

The crisis intensifies

Doomsday Scenario for Doctors

In early March the House passed a much-needed tort reform bill, and the Senate now is debating the issue. Unfortunately, even if the Senate passed the bill tomorrow, more than 300 high-risk specialists in the District, mostly obstetricians and gynecologists, still would face a painful decision: Pay an outrageous amount for liability insurance or drop out of the District health care system. If they opt out, the result could be disastrous.

The annual liability insurance premium for these 300 specialists is coming due soon. Last year it was $89,000. This year it is $108,000, which equals about four months’ worth of gross income for these doctors.

Rather than pay this huge sum, some of the 300 doctors may retire early. Others may take their practices elsewhere. Still others may decide to take a chance on going without insurance, which would mean that they would have no admitting privileges at hospitals and could not be preferred providers for health plans.

Any of these alternatives to ponying up $108,000 would mean that D.C. hospitals might lose thousands of patients, which would make it difficult for them to keep their delivery suites open, their trauma centers operational and their operating rooms functional. Hospital beds would go empty, and capacities that once were assets would turn into liabilities.

This story sounds very similar to Rangel’s rant that I cited on Saturday. Increasing malpractice insurance rates do not just impact physicians. Rather the entire health care system is at risk in this crisis.

If enough doctors opt out of the District, health insurance plans might be unable to ensure access to necessary medical services in provider networks as required, and they, too, might not be able to remain in business in the District. Employer health benefit plans also would feel the pinch.

Ironically, doctors who choose to continue practicing in the District might see their premiums go up still more if some of their colleagues give up their D.C. practices. The National Capital Reciprocal Insurance Co. (NCRIC) is the liability insurance company for 90 percent of D.C. doctors. An exodus from the physician ranks could mean an increase in premiums for those remaining, because risk would be spread over the smaller group. Internists, whose $16,000-a-year premiums are recoverable in about two weeks, might find themselves working for several months to pay for insurance.

Further, if NCRIC went bankrupt, as similar companies have in some states, not only would all physicians be uninsured but they also would need to buy insurance to cover risks that had been covered by NCRIC before they could get other liability insurance. “Prior acts coverage” generally costs 150 percent of the annual premium for regular liability insurance; that would translate to $162,000 for obstetricians and gynecologists.

This worst-case scenario may seem extreme, but it is the logical endpoint of a long-emerging crisis. Even if a tort reform bill is passed that covers the District, it almost certainly will not reduce malpractice premiums.

Everyone must understand the unintended consequences of out-of-control malpractice suits. We need real tort reform. I remain pessimistic that we will get that reform in the near future. And the Democrats continue to accept money from the trial lawyers. And the Democrats use the tort lawyer talking points. They are talking us into a health care crisis!!!!!!!!

Keep it simple

So how do we solve health care problems? This opinion piece has some very interesting ideas – To Solve America’s Health Care Crisis, Think Small

Health care expert Brian Klepper introduces a three-fold strategy to respond to these concerns by marrying the best of both parties’ proposals. First, Klepper advises that we need to ensure that our safety-net institutions do not collapse under the weight of an increased uninsured population. This protects the patient base while we address the pressing cost and sustainability issues.

Second, we need to rebalance the healthcare liability system. One such model is being advocated by University of Virginia law professor Dr. Jeffrey O’Connell, who calls for a no-fault system patterned after the workers’ compensation program. Third, Klepper argues that we need to standardize the management capabilities of health systems. The near double-digit increases in premiums cannot become perennial entries in company balance sheets, of course. Without addressing the issue of exploding costs, it hardly matters what other reforms we pursue. Desired new management practices should include finding agreement on how to measure our progress and ensuring better information sharing, which combine to stimulate the transfer of innovation and installation of accountability.

We need creative solutions. The best solutions will not come from government. One need only look at HIPAA to understand how unnecessarily complex government solutions become.

I very much like the proposal for a no fault malpractice replacement. Corporate Law Concept May Provide Cure To Medicine’s Malpractice Woes

As O’Connell and Boutros explain, the “early offers” plan is essentially an improved adaptation of the business judgment rule. It would allow a health care provider, including an HMO, facing a patient lawsuit, to offer the patient within a timeframe set by law (say 120 days after a claim is filed), periodic payments of all net economic losses not covered by other insurance, namely, lost wages, medical expenses, rehabilitation costs and attorney fees. Importantly, nothing would be paid for noneconomic damages such as pain and suffering. An early offer accepted by a patient would end the dispute.

A patient who rejects an early offer, however, would have to establish two things: First, that the defendant acted with gross negligence, and second, such gross negligence would have to be proved by clear and convincing evidence or preferably beyond a reasonable doubt. An early offer results in a much more difficult case for a plaintiff to prove, the theory being that once an early offer has been made, courts should not substitute their judgment for that of a defendant unless there is bad faith in the decision-making process or in the execution of the decision.

In an extensive discussion, O’Connell and Boutros show that the policies and rationales behind the business judgment rule apply with equal force in the area of medical malpractice claims. Moreover, they write, the majority of claims against health care providers, including HMOs, would lend themselves to resolution under the early offers plan, which offers benefits to both sides of a lawsuit.

Perhaps solutions to the malpractice crisis can come from such innovative thinking. The trial lawyers will dislike this possibility. It would greatly decrease their income possibilities.

Arbitration as an alternative to malpractice suits

Increasingly, providers are having patients sign agreements for arbitration rather than litigation for malpractice claims. For Patients, Unpleasant Surprises in Arbitration. The author has tried to frame arbritration is unfair to patients. I disagree with her assessment.

Patients who go through arbitration instead of a jury trial, however, may feel as if they have been hurt twice: first by their health care provider, then by the system that is supposed to resolve the problem. They generally have little choice in the way claims are handled. Gary and Sharon Rushford of San Jose, Calif., certainly didn’t.

To me the advantage of arbitration is the skill of the arbitrator. Rather than an easily influenced jury (not that all juries are easily influenced), a skilled ‘judge’ renders a decision.

Selection of arbitrators varies by health care provider and by state. In California, Kaiser arbitrators are chosen by an office overseen by a 13-member board composed of Kaiser stakeholders and members of the public. The parties in a case choose an arbitrator from a large pool assembled by the office, but if they cannot agree on one, the office chooses. The arbitrators are usually retired judges.

Trial lawyers will dislike this, because their antics, manipulation of emotions, and obfuscations will not work as easily. Others complain of the secrecy of the proceedings. They also complain that the arbitrators become beholden to the insurers (after rewarding major settlements, they are no longer selected).

This might form the basis of major malpractice reform. We could have an independent pool of arbitrators with random selection for any case. Having a professional solves a philosophical problem for me. If I were sued, I am entitled to a jury of my peers. If you sue me, you are entitled to a jury of your peers. But we do not necessarily have the same peers. Perhaps the jury system is a major part of the problem. It is not designed to handle such disputes efficiently or rationally. I hope my friend the Bloviator will comment on this one.

An essay on malpractice

Hard Cures

There was a time when every large city hospital had wards for diphtheria and scarlet fever. Doctoring in that pre-antibiotic era was mostly about observation and hope (that the body would win the battle). That passive medicine has given way to aggressive, interventionist care, reflected in our modern intensive care units, newborn nurseries and transplant units. Organ bouquets are harvested here and planted there. Tubes routinely pierce bladder, vein, artery, heart, trachea or ventricle of the brain; each tube serves a vital function, but at the same time breaches one of our physical defenses. Meanwhile, chemotherapy, antibiotics, steroids all compromise the immune system even as they produce other desired effects. Progress has a price, and it’s often infection. A century ago, to have E. coli or one of the other bacteria we carry in our bowels cause bloodstream infection was almost unheard of, worthy of a case report in The New England Journal of Medicine. Now bloodstream infection by these bacteria is a major cause of the estimated 100,000 deaths a year from sepsis. It’s not so much that these bacteria have changed (they have); instead, this increase reflects the present invasive nature of hospital medicine. But sepsis as a consequence of heroic treatment does not constitute negligence. To prove malpractice, you need more than a bad outcome; there has to be significant deviation from the usual standard of care.

Still, I suspect the great majority of malpractice suits are for bad outcomes. Take a woman who has had no prenatal care and who turns up in a hospital in premature labor. An obstetrician and a neonatologist get involved and deliver the best care, but the baby is born damaged. A personal-injury lawyer (who learns about the case through paid touts in the hospital) encourages the mother to sue. The lawyer knows that bringing the affected child into the courtroom will have a powerful effect on the jury, which will be persuaded to believe this is negligence, not just a bad outcome. Insurance companies settle rather than take a chance with a jury.

The author displays much wisdom here. I like one of his solutions.

Solutions are desperately needed. I think we could start by sending all malpractice suits to regional panels of judges, physicians and consumer advocates to screen and eliminate those with no merit. And organized medicine could rein in the professional-physician expert witness: much like jurors, specialty physicians might serve as expert witnesses when their turn comes up for a nominal fee. Lawyers would not be able to shop around for an expert witness with just the right testimony. (A disclaimer: In 20 years, I have served as an expert witness four times.) And when we are patients, we could insist on being equal partners in our care. We might bring along family and friends when we interact with doctors and see that all our questions are answered and our expectations realistic. Medicine is fantastic in what it can accomplish, but there are real and clear risks.

We need intelligent, thoughtful physicians to work on real answers. This is a reasonable suggestion. The trial lawyers will never make it easy on anyone. They want uninformed juries. They want “hired gun” expert witnesses. We just want the truth.

House down, Senate to go

The President is serious about this. House Acts to Limit Malpractice Awards. The President worked hard to get this passed. Now Dr. Frist will lead the charge in the Senate.

The bill the House passed today does not limit jury awards for medical and funeral expenses. But the caps it imposes on pain and suffering damages apply not only to lawsuits filed against doctors, but also to those filed against insurers, pharmaceutical companies and medical devices ? a provision that Representative Henry A. Waxman, Democrat of California, called “another reward that Republicans are giving to the pharmaceutical industry.”

Democrats, adopting the argument of trial lawyers and consumer groups, say the House bill will unfairly prevent innocent victims of medical malpractice from seeking legal recourse. They also argue that there is no evidence the bill will actually reduce liability premiums.

We will definitely follow this story.

AMA malpractice map

Torts and tragedy

The AMA president has written eloquently about medical tragedy and subsequent suits. Please read his remarks. Tragedy and torts: Bankrupting medicine not the answer

Bush on tort reform

Bush to AMA: Tort reform a must

“There are too many frivolous lawsuits against good doctors, and the patients are paying the price,” Bush said, generating a standing ovation by his physician audience. The federal government loses $28 billion a year from the direct cost of liability insurance and the indirect cost of defensive medicine, he added. “Something which affects our budget so significantly requires a national solution.”

Bush and Republican leaders in Congress have advocated for legislation that would cap awards for noneconomic damages at $250,000. A House bill, based on a California law that physicians say has been successful in keeping liability insurance premiums in check, also would limit the proportion of awards that trial lawyers could claim.
Speaking at the meeting, Senate Majority Leader Bill Frist, MD (R, Tenn.), vowed to address the issue this year. Liability reform legislation was passed by the House last year but never made it to the Senate floor.

Dr. Frist called the court system the wrong place to address medical errors. “The way you fix a system’s failure is to fix the system,” he said, adding that the way to fix the system is to allow physicians to discuss problems without having trial lawyers use it against them.

Rep. James Greenwood (R, Pa.), who has spearheaded liability reform in the House, said he hoped to send his bill, the HEALTH Act, to the Senate by mid-March. He said opponents would try to slow the passage of the bill, but that arguments for tort reform are stronger than ever.

The article includes a link to the text of Bush’s speech to the AMA.

Another state heard from

Illinois doctors stage insurance protest But this one has a twist

Premiums across-the-board have been rising because some insurers — who entered the market during good economic times with low premiums — are leaving the business or being forced to raise prices in the wake of bad times and rising jury awards in malpractice cases, protest organizers said.

Tom Pliura, a physician and lawyer from LeRoy, Illinois, headed up Wednesday’s rally, said “No one single thing is going to kill this beast. We need to work with the insurance industry to identify patterns, recurring episodes of negligence, to educate and train physicians and to train patients on how to avoid negligence.

“We need need educational systems set up and a data collection repository. We need the help of trial lawyers to understand that this is a problem that affects everybody,” he said in an interview.

He added that some proposals, such as the limit on punitive awards being discussed in Congress, have no impact in states like Illinois, which have already done away with them in health care cases.

This problem reflects some of the problems that I have ranted about. Apparently they have proposed some remedies which jas caused our friend (and frequent adversary) the Bloviator to go ballistic. (again, he needs to make rants linkable – but in that absence – go to his page on scroll down to Wednesday). Ranting aside, this crisis will have major adverse effects on health care delivery. We must find creative solutions which protect individual patients and protect the health care system in general.

Malpractice reform?

Congress will once again consider malpractice reform this session. Medical liability crisis: Tort reform bill goes to Congress

The legislation — the Help Efficient, Accessible, Low-cost, Timely Healthcare Act of 2003, or HEALTH Act — also would hold physicians responsible for only their portion of damages, impose a three-year statute of limitations on when most medical malpractice cases could be filed and limit punitive damages to whichever is greater, two times the economic damages or $250,000.

The bill is nearly identical to tort reform legislation that the House passed 217-203 last year, but that the Senate never considered.

The new bill drew immediate support from the American Medical Association, the Federation of American Hospitals, the American College of Physicians–American Society of Internal Medicine and other organizations that claim that excessive jury awards have led to increased insurance premiums.

Those groups and the Bush administration favor legislation that includes a cap on pain and suffering awards because they say similar legislation passed in California more than two decades ago has helped keep insurance rates stable there.

“It brought a crisis state of 1975 to a state of stability,” said AMA President-elect Donald J. Palmisano, MD. “The HEALTH Act will go a long way toward bringing common sense back to our liability system.”

The bill, which Republicans generally support and Democrats generally oppose, is expected to pass the House again. On Feb. 10, a House subcommittee held a hearing on medical liability insurance in Greenwood’s district in Bucks County, Pa. The legislation has already received support from key House members, including House Judiciary Committee Chair F. James Sensenbrenner Jr. (R, Wis.), Majority Leader Tom DeLay (R, Texas) and House Speaker J. Dennis Hastert (R, Ill.).

This bill has so much logic behind it, that only trial lawyers can argue against it. And they are arguing against it, and therefore their buddies (the Democrats) will argue against it.

This case makes me shudder

Thanks to Overlawyered.com for this link. Cash Diet: When medicine can’t produce a miracle, there’s always litigation. This case becomes my poster case for malpractice reform. I am so angry, that typing becomes difficult.

The volcano inside Lawrence Smith’s chest erupted on June 8, 1999. The LTV shipping supervisor crumpled to the plant’s floor, dead of a heart attack. But as abruptly as his life ended, it’s surprising he lived to age 54.

At 6 feet 2 and 260 pounds, the beefy Smith treated his body less like a temple than a tool shed. He’d hit the bad-health trifecta: too much smoking, too little exercise, and a poor diet, the last triggering high cholesterol and diabetes. He’d felt stressed since becoming supervisor, a job he got after the previous foreman suffered a heart attack a year earlier.
Smith visited Dr. Franklin Price almost two dozen times in the five years preceding his death. In between badgering his patient to swap the cigs for a salad fork, Price guided his treatment for prostate cancer. The doctor ran regular cholesterol tests and six EKGs to gauge Smith’s cardiac health. Price’s records also suggest he told Smith to see a cardiologist two months before he collapsed.
Last August, Smith’s widow asked a Cuyahoga County jury to decide who to fault for the seizure — her husband or his doctor. Maggie Smith brought a wrongful-death suit against Price in common pleas court, where her lawyers argued that he missed billboard-sized warning signs of heart disease. They asserted that even if he had made the cardiologist referral — documents were hazy on the matter — it should have come years earlier, after Lawrence Smith’s first heart test in 1994. Price’s attorneys countered that the physician did everything to help a man who did next to nothing to help himself.

Jurors blamed Price. On a 6-2 vote, they awarded Maggie Smith and the couple’s two adult children $3.5 million; a judge later added $1.2 million in prejudgment interest.

In a written summary, the jury claimed that Price failed to provide “ordinary, reasonable care.” Yet insofar as Lawrence Smith preferred french fries to Fitworks, it’s fair to ask if the same charge should have applied to him.
“A doctor can advise and give counsel to a patient,” says Dr. Kevin Geraci, president of the Northern Ohio Medical Association’s Cleveland branch. “But it’s still up to the individual to do what he has to do. We can’t guarantee immortality.”

This judgement makes no sense. Read the rest of the article, but consider taking a benzodiazepine first. I must quote one of the jurors.

The jury’s two dissenting members believe Smith’s vices claimed his life — along with Price’s reputation. One of them, Morris Blatt, wrote to defense lawyers, alleging that the other six jurors let their emotions obscure the evidence and that Smith “abused himself.”

A judge denied Price’s request to include the note in his pending appeal. But malpractice attorneys say it’s the first time they can recall a juror attempting to enter written frustrations into the court record. Allyson Cooley, who sided with Blatt, says she was tempted to follow suit. “[Smith] didn’t try to change. He didn’t fix his diet, he didn’t exercise, he started smoking again. But the widow was looking to place blame, and Dr. Price was the closest one.”

In his closing argument, John Martin, Weinberger’s co-counsel, suggested Smith bore no liability for his death: “It’s absurd for anybody to come into this courtroom and say, Lawrence Smith would be alive today if he stopped smoking, if he had lost weight . . . The doctor let him down.”

Following a week-long trial, the Smith jury took only two hours to deliver a verdict on a Friday afternoon. Blatt and Cooley contend other jurors rushed the decision to avoid returning to the courthouse on Monday. “Their whole thing was ‘Let’s get out of here,'” Cooley recalls, adding that none bothered to so much as scan the case’s numerous exhibits. “They just said, ‘Her husband’s gone, give her the money.'”

AAAAARRRRRRRGGGGGGGGHHHHHHHHHHHH!!!!!!!!!!!!!!!!!!!!!

Another view of malpractice

Mending Malpractice Mania . Read this interesting essay which concludes:

President Bush proposed a $250,000 nationwide ceiling on pain and suffering awards to clip insurance premiums and staunch the hemorrhaging of doctors from high-risk specialty practices. And Congress is holding hearings on medical liability. But discovering the most enlightened balance between compensating injured patients, deterring irresponsible care, and arresting the cost of medical treatment is an art, not a science.

Experimentation in 50 state laboratories is urgent to gather empirical data. If the nature and severity of the medical malpractice problem varies from locality to locality, then so should the answers. Moreover, states are more alert to correct medical malpractice infirmities because inertness will precipitate physician flight to warmer professional climates in sister jurisdictions. In other words, our system of federalism fosters competition in good government when an issue is left undisturbed with the states. The federal government should thus silence its monopolistic voice. It squelches experimentation where, as with medical malpractice, states are actively considering and enacting varied reforms in searching for the superior solution.

Is the author right? Should we allow some states to fail and others to succeed? Is that just?

Malpractice crisis = decreased access

As I have been ranting. Those dang unintended consequences. Access hurt in liability crisis states

NY Times on NJ Doctors

The Doctor Is Out in New Jersey. The Times tries in this editorial to balance the controversy. They miss entirely. They miss the point.

I was talking with an obstetrician yesterday. We discussed malpractice premiums. I mentioned an article I read about a Wyoming obstetrician being charged $160,000 for the privilege to deliver babies. (I pulled that number from memory and cannot verify it). He shared that he received approximately $1,800 per delivery and probably did around 100 each year. You can do the math.

Why do we have a malpractice crisis? Do we have a physician malpractice epidemic? I believe that trial lawyers have created a culture which encourages a lawsuit for any bad outcome.

This culture does not just occur with physicians. You can read about excessive lawsuits at Overlawyered.com. In medicine, bad outcomes are too often blamed on the physician.

Several solutions seem apparent, but unlikely. First, we need to curb the true beneficiary of malpractice lottery – the lawyer!! The contingency fee arrangement encourages the “exploratory” lawsuit. Who knows? You might get a settlement just to prevent further legal proceedings. Second, we need to have better definitions of pain and suffering. Having each jury decide makes the system too random. Third, we need a different concept than punitive damages. If a physician needs punishment, then the courts can recommend such to the state board. State boards do a much better job than many think.

We cannot continue providing excellent health care under the current legal atmosphere. Our system is broken. But will anyone willingly fix it? Or will 2003 go down as the year of doctors’ strikes.

Instead of cowboys and indians, let’s play doctors and lawyers

Behind Walkout by Doctors, Chronic War With Lawyers

Mindy Cohen lives a reclusive life marked by fistfuls of painkillers and the drone of daytime television.

A former school psychologist who lives in Randolph, Ms. Cohen, 47, has been largely bedbound since 1997, when doctors were forced to remove a portion of her thigh after a liposuction procedure went awry. The unceasing pain, the narcotic-induced fog and the crushing depression, she said, make mundane activities nearly impossible.

“I desperately miss being out in the world,” said Ms. Cohen, who took part in a news conference last week featuring several medical malpractice victims. “I’m just a shell of a person.”

I must consider several points here. Liposuction clearly represents an elective procedure. It has clearly defined complications. Did Ms. Cohen have expected complications or did the physician do something clearly wrong? This question is our point. All outcomes are not good, even if the physician does everything right! We do not always understand why patients have poor outcomes. Apparently trial lawyers assume that any bad outcome must result from physician error.

Dr. Elliot Kaplan, a thoracic surgeon in Morristown, endures a different sort of anguish, one brought on by what he and his colleagues describe as a malpractice insurance crisis in New Jersey. He was forced to stop working for a month after malpractice insurers in the state, calling his specialty a magnet for litigation, refused to issue him a policy. When he finally found one last January, his annual premium, $60,000, was 40 percent higher than the previous year’s for just a third of the coverage.

With reimbursements from health maintenance organizations and Medicare holding steady or falling, Dr. Kaplan, 44, wonders how much longer he can keep working in New Jersey. “I’m very anxious because I love what I do,” he said. “But if there are any more increases, I won’t be able to remain in practice.”

Is he exaggerating? How many surgical procedures does he do just to pay his insurance? Where is the middle ground?

Insurance experts and consumer advocacy groups say that focusing solely on huge awards further muddies a complex problem that requires more than just a $250,000 limit on pain-and-suffering awards, the goal sought by doctors in New Jersey. The entire insurance industry, these experts say, suffers from a chronic malady stemming from the way malpractice insurers invest their premiums, a business model that turns customers into cash machines during economic downturns.

The National Association of Insurance Commissioners counters that insurance companies are prudent investors. A study by the association found that only a quarter of insurance companies’ assets were invested in stocks in 2001.

The consumer groups say that the rush to cap awards ignores the problem of medical negligence in America, which accounts for 44,000 to 98,000 preventable deaths a year, according to a 1999 study by the Institute of Medicine, part of the National Academy of Sciences. “The so-called crisis with medical malpractice is another symptom of a health care system that is broken and out of control,” said Dena Mottola, acting director of the New Jersey Public Interest Research Group. “There’s a lot of misinformation out there, but whether or not you agree with the numbers, until we fix the underlying problems, nothing will change.”

For the moment, medical professionals in New Jersey are united in their belief that aggressive lawyers and greedy patients are to blame for the spike in premiums. Many doctors see their fight against large malpractice payouts as part of a noble stand against freewheeling litigation, an issue that riles many Americans. “It’s more than just a medical problem, it’s a societal problem,” said Dr. Donald Allegra, an infectious-disease specialist in central New Jersey, who said he planned to treat only the most gravely ill patients on Monday. “I’ve never seen doctors so galvanized by an issue.”

Again, the Institute of Medicine errors study is being used as an argument against the profession. The study has fundamental errors (surprise) and very likely markedly overestimates the problem. Does that mean that we have no problem?

Health care is often complex. No simple algorithm works for each patient. As we can do more, each medical situation requires more complex decision making. One must balance risks and benefits.

How does one establish a fair tort system? Clearly, the current malpractice lottery game is not fair. How does one protect our health care system and maintain protection for individual patients?

We clearly need caps. We also need a much better system of judgement. How can one distinguish between bad outcome and negligence? I cannot believe in a jury system making consistently good decisions. I have no faith in the randomness in awards.

This crisis has done something very unusual. It has united physicians. It has united us, because we understand the unintended consequences . We understand the current malpractice system threatens the entire health care delivery system. If physicians leave New Jersey, can patients sue malpractice lawyers for inadequate availability of medical care?

Malpractice commentary

Mona Charen writes on malpractice this week. Malpractice: By lawyers . I could almost quote the entire article, but let me choose some snippets.

… But doctors have been driven to this attention-getting extreme by an out-of-control malpractice system. To quote the old movie “Network,” they’re “mad as hell and they’re not going to take it anymore.”

The doctors are outraged because the malpractice lottery has made the practice of medicine a combat zone. It is making a few lawyers very rich but driving up costs, causing good doctors to abandon medicine, and souring the relationships between physicians and patients.

..

… Obstetricians are paying a heavy price because most malpractice suits in America are not about bad medicine, they are about bad outcomes. In obstetrics, more than in other fields, a certain number of disabled children and bereft parents is unavoidable. But trial lawyers seize upon every tragedy as an opportunity to enrich themselves.

…

The trial lawyers argue that malpractice suits improve medicine by going after the few bad apples in the medical profession and holding them accountable. But as the Harvard Medical School study of 30,000 New York City cases demonstrated, more than 80 percent of the lawsuits filed were without merit — i.e., no malpractice was found.

As Peter Huber, a tort reform advocate has pointed out, about 20 percent of the suits did not even involve an adverse event — yet these tended to be settled for an average cost of $29,000. (Fifty-seven percent of medical malpractice premiums pay for lawyers’ fees.) The presence or absence of actual malpractice had nothing to do with the likely outcome of the case. Insurance companies settle with plaintiffs all the time in order to avoid the expense of litigation.

Read the entire piece. Then say … Amen!

Testimony

Surgical Strike Read this short piece highlighting quotes from West Virginia surgeons.

Now Florida and Mississippi

Doctors in Fla., Miss. Protest Insurance Rates I will just direct you to the article. I have one thought, partially taken from a comment left yesterday. Thinking over night, I hope that I make this clear.

If a business has increased overhead, it passes those costs over to consumers. They raise prices (within the context of supply and demand). Physicians generally work under price fixing (by the insurers, especially the government – Medicare and Medicaid). Thus, when overhead increases and gross income does not, net income decreases. So if I were working in a state with increased malpractice rates, my take home income would decrease, regardless of my own practice. I see no logic here, nor do my colleagues.

Another view of malpractice

A loyal reader sends this link – Malpractice crisis: It doesn’t take a brain surgeon

So who’s right?

Both sides are, and that’s what’s so darn irritating about this tit-for-tat political dance in which neither side is willing to concede to the other that there’s room for improvement. How can they? Bush and his Republicans are beholden to the doctors and insurance executives who paid big bucks to get them elected. Democrats’ biggest financial backers are the trial lawyers who claim to fight “for the people” so long as there are deep pockets at the other end to recover damages.

Most people don’t want to have their rights to sue for cause taken away. Yet the answer isn’t to attack rights, it’s to seek a fair system.

It doesn’t take a brain surgeon to know what should happen. First, we must punish the bad docs who continue to make the same mistakes and yank their medical licenses. At the same time, government must regulate the greedy business practices of insurers so that they don’t treat reserves as profits, make bad investments and then turn around and try to recoup losses from the rest of us. Finally, curtail frivolous lawsuits without trivializing the suffering of those who have been unnecessarily hurt, and that means some kind of cap on awards.

Bush wants a national cap of $250,000 on awards for patients’ pain and suffering caused by bad medical decisions, regardless of the type of screw-up a doctor, hospital or other health professional might have caused. He’s off the mark. It should be a graduated system that considers the severity of mistake, a medical professional’s history of wrongdoing, and how a person’s quality of life will be affected.

Perhaps it does take a brain surgeon. With all due respect to the author, I do believe she tends to oversimplify the issue. It is easy enough to ask doctors to police themselves, but when one tries, lawyers threaten the boards, or the hospitals.

The author wants a graduated system for ‘pain and suffering’. Again, who decides how quality of life is affected. How can one properly quantitate someoneelse’s quality of life?

No, Virginia, there is no Santa Claus. We will find no easy solutions. But I still believe that we must be careful not to jeopardize patient care and access in the name of ‘justice’. Afterall, the physician does not pay, the system pays. Physicians both guilty and innocent pay. And therefore patients pay.

Bush and malpractice

Bush turns up the heat on liability reform.

President Bush in January renewed his push for Congress to pass legislation aimed at making medical liability insurance more affordable and available for physicians. This time, he emphasized how the “broken” system is hurting patient care.

The president first unveiled his tort reform plan last summer. It calls for a $250,000 cap on noneconomic damages in medical malpractice lawsuits, a shorter statute of limitations for such cases and other reforms.

But the then-Democrat-controlled Senate failed to pass legislation last year after the Republican-controlled House approved a bill that included the measures Bush favors.

The crisis has worsened in some places since then. Now more patients are directly affected, as physicians can no longer afford to keep their practices open because of rising liability insurance costs combined with low HMO and Medicare payments.

These problems have spurred physician protests. Surgeons in Wheeling, W.Va., took leaves of absence from area hospitals starting Jan. 1; massive office closures were averted in Scranton, Pa., this month after Gov. Edward Rendell promised to make changes; and New Jersey physicians are planning a partial work stoppage starting Feb. 3.

“When a doc can’t pay the premiums and, therefore, can’t practice, somebody is going without health care,” Bush told a crowd gathered at the University of Scranton in mid-January. “It strains the system. So what happens is, doctors say, ‘Well, gosh, I can’t afford it here in Pennsylvania, I’m moving. I’ll just take my heart and my skills to another community where I can afford it.’ But when that happens, somebody hurts. Somebody doesn’t have the care.”

As I write often, the unintended consequence of increased malpractice payouts becomes decreased access to health care. Obviously, trial lawyers worry about their client. One would think the Democratic party would understand the link between malpractice payouts and access. But, the trial lawyers give a lot of money to the Democrats, so they become apologists and try to blame everyone else.

Still, GOP control in the Senate is not a guarantee that a bill will pass there. Sen. John Edwards (D, N.C.) criticized Bush for “siding with insurance companies over children and families.” He is strongly considering introducing his own legislation, a spokesman said.
“The truth is that the insurance industry has done poorly in the market and is simply passing those costs on to the doctors and patients,” Edwards said. “First and foremost, we need to address the root causes of premium increases and take away the special rights of the insurance industry.”

Senate Democrats could stymie legislation that includes noneconomic damage caps with a filibuster. Sixty votes would be needed to stop such a tactic, and could be difficult to get.

So now we must wait for a political solution. And patients suffer with decreased access. I just do not understand this brand of politics.

The NY Times weighs in on malpractice reform

Thanks to President Bush, malpractice costs have become a major political issue. Not surprisingly the NY Times editorial page weighs in today – The Malpractice Insurance Crisis

They try to run the middle ground on this issue. While they understand the need for caps, they worry about medical errors and harmed patients. While I agree that we should work diligently to minimize error, and that we should continue our efforts at policing ourselves (i.e., suspending licenses when physicians become incompetent or dangerous), I believe that we can have much greater success if we are not besieged by the malpractice threat. These are difficult issues, but the tort system is not the answer.

Bush makes his speech

Bush Urges Nationwide Limits on Medical-Malpractice Awards

Bush understands

Bush to Meet Docs on Malpractice Reform

President Bush was making a fresh pitch Thursday for his solution to high malpractice insurance costs: a nationwide limit on the amount injured patients can win from doctors.
In the 18th trip of his presidency to politically important Pennsylvania, Bush was calling on Congress to deliver on medical malpractice reform.

The president was to argue, in remarks at the University of Scranton in northeastern Pennsylvania, that lawsuits are behind soaring health care costs and doctor shortages and that limiting jury awards in medical malpractice suits is the way to solve the problem.

Before his remarks, Bush was to meet with doctors and officials at Scranton’s Mercy Hospital.

“We are in a medical liability crisis because excessive and abusive litigation is driving up costs, decreasing access to quality care, threatening patient safety and leading to a badly broken system,” White House deputy press secretary Scott McClellan said.

Of course, the Democrats (being the puppets of the trial lawyers) want to blame the insurance industry. I have written many times, the Democratic position on malpractice reform is despicable and the Republican position on the pharmaceutical industry is equally despicable. Can someone find me a party to respect?

Now New Jersey

Doctors in New Jersey Plan Job Action Over Insurance

“We need to do this for our patients,” said Dr. John Poole, chief of surgery at Holy Name Hospital in Teaneck. “Just like you don’t wait until a patient has a stroke to treat his high glucose levels, we want to take action now because our state is in a meltdown situation when it comes to malpractice insurance rates.” Dr. Poole said he would refuse to perform elective surgeries “until they fix the problem.”

The idea for a work stoppage rippled through the state’s medical community in the last few days, by word of mouth, at meetings of county medical societies and by individual e-mails and faxes between doctors spurring others to join them.

The problem is not unique to New Jersey. The American Medical Association has made a list of 12 “crisis states” where higher premiums are forcing some doctors to leave their states, retire early or restrict their practices. New York State is also on the list. “This is our No. 1 legislative priority,” said Dr. Donald J. Palmisano, president-elect of the American Medical Association. “There is a crisis in the nation and we are concerned about it spreading.”

As usual the Governor, and I expect the legislature, thinks that this is the wrong strategy for the physicians.

“The governor and his administration have been working cooperatively with doctors, insurance companies and the lawyers to address the high cost of malpractice insurance,” said Micah Rasmussen, a spokesman for Mr. McGreevey. “But the governor does not believe the doctors of New Jersey should be getting up in the middle of that process and deciding that they’re going to put patients at risk by not living up to the Hippocratic oath.”

They always try to pull out Hippocrates. Do lawyers have an oath? Do insurance companies have an oath?

The problem does not reside on the physician’s court, rather the problem stems from the constant specter of malpractice cases. The trial lawyers (slick talking sophists) blame the insurance companies. I suspect that the insurance companies are not totally innocent, however, one cannot blame the malpractice climate on insurers. One cannot blame a shift in physician’s thinking about the doctor patient relationship (is this patient going to sue me?) on insurers. One cannot blame the unnecessary ordering of tests on insurers.

The problem stems from a poor understanding of medicine and a wonderful understanding of argument by some malpractice lawyers. Patients in our society expect perfect diagnostic tests and perfect outcomes of treatment. Every test has a sensitivity (the probability of a positive test in disease) and a specificity (the probability of a negative test when the disease is not present). So we are forever having to interpret tests in light of first the probability that the patient has the condition prior to testing, and then incorporate the test result.

Medicine is not a straightforward science. We use many scientific principles, however, medical decision making generally remains an art.

I have a patient with a liver mass (which we just biopsied), chronic renal insufficiency (creatinine = 3), and new mitral regurgitation (secondary to a myocardial infarction 3 weeks ago). How can I develop a formula for addressing his issues? I am certain to being trading errors of omission with errors of commission.

We try to spend the necessary time to address these issues (and fortunately working in an academic setting I do have enough time to think and discuss). However, at some point we will have to make some decisions. Each decision may help one organ system, but may hurt another. How do we decide where to start?

Can a jury of the patient’s peers evaluate my medical decision making? Will juries judge a physician defendant based on their medical expertise and understanding of the nuances of a particular case?

So often physicians resort to CYA. And CYA costs patients money. And yet we still get sued, and some (not all) judgements are clearly excessive. Who will fix the system? What oath have the lawyers taken that allows them to threaten the doctor patient relationship? Why do they want to transfer their adversarial style to us? They can keep adversarial relationships, we just want to help patients.

New Jersey game of chicken

Thanks to overlawyered.com for this link. MDs will fly the coop rather than play chicken

Here is where the capitalist-bashing approach of the Democrats comes up against reality. The Democrats’ assertion is that this crisis is illusory, that there has been no boom in malpractice judgments. The dollar figures say otherwise. In 1975, insurance companies paid out a mere $521 annually per doctor in judgments and defense costs, according to Americans for Insurance Reform. By 2001, that figure had risen to an astounding $7,232 per doctor. Even after accounting for inflation, payouts per doctor rose by more than 400 percent in a mere 26 years. If payouts had stayed flat, there would be no crisis regardless of how the stock market performed. But costs rose and premiums had to rise accordingly.

But did premiums rise by too much? A Star-Ledger editorial offered the very reasonable suggestion that New Jersey adopt a system similar to that in use in California. Any annual increase of more than 15 percent needs state approval in California.

Great idea. But before capping premiums, California first capped judgments, with a 1975 tort reform law that is the model for the nation. New Jersey Democrats reject that approach. They seem to be arguing that we can cap premiums without capping judgments. Can we? Fine, let’s not wait until Thursday. Let’s do it tomorrow.

That would take the doctors out of it and put the administration on a collision course with the insurance companies. If the Democrats are right, the companies will reduce their premiums and the crisis will end. If they’re wrong, they’ll create a mess similar to the car insurance crisis.

We have too many states in crisis. Only a national solution will work. I have written often of the unintended consequences of huge malpractice settlements. We need sanity. Why can the trial lawyers not see that? Do they ever get sick?

Read Bloviator

Go to the left column, under medical blogs, and click on Bloviator. He has a response to Krauthammer’s column which I discussed earlier this week. While I do not agree with everything the good Bloviator has to say on this issue, we all should read opposing opinions carefully. His piece runs on Thursday (I cannot get links to work to individual articles on his blog). You will not miss it.

Krauthammer on malpractice

Yesterday evening my son pointed me to this article. Sick, Tired and Not Taking It Anymore: Surgeons are striking in West Virginia. Here’s how to cure what ails them

Surgeons in West Virginia have gone on strike to protest the exorbitant cost of malpractice insurance. Good for them. Don’t talk to me about the ethics of doctors going on strike. So long as they agree to treat emergency cases, they have as much right to strike as anybody else. The premise of a free market is that people can withhold their labor if they find the conditions under which they work intolerable.

Many doctors do. Many, especially those in the inherently risky specialties, such as surgery or obstetrics, have been forced out of business by malpractice premiums or hounded out by malpractice litigation. A totally irresponsible legal system, driven by a small cadre of lawyers who have hit the mother lode, has produced perhaps the most dysfunctional medical-liability system in the world. Juries hand out millions of dollars not just for lost earnings but also in capricious punitive damages in which the number of zeros attached to the penalty seems to be chosen at random.

Please read the entire piece. Krauthammer has nailed this subject!

Malpractice – the managed care perspective

Beware the Hidden Consequences of the Malpractice Crisis: Soaring malpractice insurance rates are thinning out provider ranks in at least a dozen states. Could access problems pose issues for HMOs in those areas?

A surgeon’s view of the crisis

Doctors Belong in Hospitals, Not Courtrooms

We doctors are now obsessed with the legal system. When I’m in the surgeons’ lounge at my hospital, I don’t feel like a doctor, given all of the legal jargon flying back and forth among my colleagues. Instead, it feels as if I’m in some sort of lawyers’ confab. Rather than discussing medicine, we talk about which colleagues have retired early because their malpractice premiums hit six figures. It’s the same at professional meetings. Instead of attending lectures on the latest advances in our specialties we sign up for the ever more frequent workshops on the finer aspects of tort law.

I went to medical school to become a doctor, not to become a moderately knowledgeable legal hack. I don’t want to practice defensive medicine, ordering unnecessary tests out of fear of litigation. I don’t want to evaluate new patients for signs of litigiousness instead of disease. I don’t want to squeeze extra patients into my schedule just so I can pay down my malpractice premiums.

But the system is now compelling me to do all these things ? and I know many of my colleagues feel the same way. In some states doctors in the more high-risk specialities like neurosurgery and obstetrics pay as much as $200,000 a year for malpractice insurance. I have not been sued for malpractice (yet). But my insurance premiums increase each year anyway, forcing me to raise my rates, too. If I’m a good doctor, why do I ? and you ? have to pay for the errors of others?

Making it more difficult to file malpractice suits and imposing caps on excessive awards for pain and suffering, as the surgeons in West Virginia are demanding, is a start. But this won’t get to the deeper problem: Mistakes do happen, and they have consequences, sometimes dire ones. Rather than focusing on rewarding victims and their lawyers, we should concentrate on creating fewer victims ? that means changing how we train doctors, track and correct errors and mete out punishment.

Read the entire piece, and fret for patient care. That is my concern, patient care. I do not believe our current tort system works to support excellence in patient care.

Washington Times on the malpractice crisis

Malpractrice insurance madness

But West Virginia, as readers of this editorial page know, is but one example of the festering national problem of lawsuits which are driving up insurance costs for conscientious doctors. The American Medical Association, for example, has listed West Virginia and Pennsylvania among more than 15 states whose health-care systems are threatened by or on the verge of crisis due to the proliferation of medical malpractice lawsuits.

It’s long past time for responsible legislators on the state and federal level to say no to the excesses of trial lawyers and yes to responsible doctors and their patients.

The West Virginia crisis has stimulated interest in the malpractice problem. Editorial pages and talk shows are now focused. We need this media interest to spur on legislative reforms. I will continue to blog on this issue and hope other bloggers who read these rants will join the debate. Bloggers do make a difference. And this problem needs a much different solution.

Malpractice suits do cost society

Increase in Physicians’ Insurance Hurts Care: Services Are Being Pared, And Clinics Are Closing

“My sense is that in past malpractice crises there’s been a lot of talk about a lack of availability of care, but that has largely been to serve political and financial agendas. But this time it seems more real,” said Troyen Brennan, a professor of medicine at Harvard Medical School in Boston. “There’s really no good empirical data, but I’m less suspicious this time. It’s pretty widespread and spreading.”

Twenty percent of hospitals have had to curtail services in some way because of rising insurance costs, and 6 percent have completely closed or discontinued some service, according to a survey by the American Hospital Association.

So who is to blame? What causes the malpractice crisis?

Doctors blame multimillion dollar jury awards and say the answer is limiting the amounts that juries can give plaintiffs. Lawyers blame insurance companies, contending they are raising rates — not because of big jury awards but to make up for money they would be earning if the stock market were doing well.

“Insurers place profits over people and threaten the livelihood of America’s doctors,” said Mary E. Alexander, president of the Association of Trial Lawyers of America. “It’s unfair to ask patients to give up their legal rights so the insurance industry can make higher profits.”

One thing is clear: The cost of malpractice insurance is rising rapidly in many parts of the country — with doctors in some areas seeing their premiums jump 80 percent in one year, according to the Medical Liability Monitor, an independent newsletter. Rates vary widely, and metropolitan areas such as New York, Chicago, Detroit and Miami tend to be hit hardest. But premiums are rising unexpectedly fast elsewhere, including Pennsylvania, West Virginia and Texas.

Now, I ask you, do you really believe that settlement costs have nothing to do with insurance premium increases? If you believe that, then why does California have a much better situation (remember they have a rational cap on awards)? I do not believe that the insurance companies are entirely innocent, but the blame still must rest on our tort system. As I stated earlier this week, laywers do not acknowledge the unintended consequences of malpractice suits. Doctors consider these effects constantly. Ask The Trial Lawyers Why Your Health Care Costs So Much: – found after reading this on Viking Pundit – Right Wing News . Read those 2 rants and then please comment if you can really still defend the trial lawyers. I personally am very tired of their sanctimony!

And the WVa strike continues

W.Va. Surgeons Say Walkout Will Continue

A walkout by surgeons protesting high malpractice insurance costs will continue indefinitely because Gov. Bob Wise and the Legislature have not done enough to address the problem, a participating surgeon said Friday.

“No progress has been made,” said Dr. Robert Zaleski, an orthopedic surgeon. “I am pessimistic at present that the state and trial attorneys of this state will give such concessions to make West Virginia a more attractive place for new physicians.”

More than two dozen orthopedic, general and heart surgeons serving four hospitals in West Virginia’s Northern Panhandle began 30-day leaves of absence Wednesday or planned to begin leaves in the next few days.

They want the state to make it harder to file malpractice lawsuits, a move they say would lower their premiums. They want a cap on pain and suffering awards, a board to review the validity of lawsuits before they are filed, and repeal of laws that allow suits to be filed twice in some cases, Zaleski said.

Most of the West Virginia surgeons are insured through a special program created by lawmakers last year, but even though the state recently cut rates for those policies, the premiums remain among the highest in the country.

“The only requirement for attorneys to file a lawsuit — and I have been victimized at least a dozen times — the only requirement is an attorney have an idea and $35,” Zaleski said. “The attorneys in West Virginia shoot first and ask questions later.”

But note that the surgeons have not abandoned the critically ill –

Surgeons have gone back on the job in when needed. Thursday evening, two came in without hesitation to operate in a life-threatening trauma case, he said.

Doctors and hospitals are losing income. All but one of the surgeons at Wheeling Hospital are independent practitioners, not salaried hospital workers. They continue to receive income from seeing patients in their offices and for surgeries they do in neighboring states, but lose money on surgeries that are not performed.

I do believe this walkout is principled. If the state does not resolve these issues expect few if any physicians moving to WVa.

Instapundit on malpractice

Instapundit rants on West Virginia and malpractice. Well Instapundit is the 500 pound gorilla of the blogging world. He is a law professor. His comments on malpractice do make sense.

On the other hand, subjects like medical malpractice are just a mess. It’s true that fear of malpractice suits is crippling medicine. It’s also true, though, that there’s lots of malpractice that never generates any lawsuits at all, and the medical system doesn’t regulate its own bad apples very well. Everybody knows who the bad doctors are, but they don’t lose their licenses, or their hospital privileges, very easily. That’s improved somewhat, but not nearly enough, in recent years.

On the other hand, though I’m a big fan of juries and I’ve served on a civil jury myself, I think that the trial lawyers are rather hypocritical in the way they sanctify the jury. Watch them change their tune in the face of proposals to strengthen juries in malpractice cases by, say, allowing the jury to call its own expert witnesses!

Malpractice suits don’t play a significant role in preventing bad medicine, or in compensating injured patients — given that most patients never sue, it’s essentially a lottery. Sometimes a particularly bad physician is brought to account, but just as often it’s somebody who made an honest and forgivable error of judgment, or who did nothing wrong at all. And in some truly dreadful cases, trial lawyers won’t bring suit because there’s no money in it; I can think of one in particular I know of that would curl your hair, but that a major plaintiffs’ firm turned down because they weren’t sure they could make money.

So the social value of malpractice suits is overrated: if you wanted to compensate people who were hurt by bad doctors, or if you wanted to police bad doctors, you wouldn’t have a system like this one, where profitability to plaintiffs’ lawyers — which is at best only roughly correlated with severity of harm, and even more roughly correlated, if at all, with severity of malpractice — is the major determinant of what cases get brought and what cases don’t.

Well I agree with some of what Glenn says. I believe that he underestimates the improvements in policing our own. But then I have an obvious bias in favor of physicians. Glenn’s rant leaves me as confused as I was this morning. But I do feel better that he seems confused also!

Prather on tort reform

Lawyers Vs. Doctors. Robert Prather rants about a Wall Street Journal piece on tort reform. His opinion –

I usually agree with the Wall Street Journal’s editorial page and do favor tort reform, but having Congress pass tort reform for medical malpractice would be unconstitutional in my view. Their only vehicle for doing this is the Interstate Commerce Clause and medical procedures generally don’t involve commerce in more than one state. Besides, if a state wants to run its doctors off, let it.

Robert, I hope you are wrong. I at least hope that Congress passes the reform. The court tests would attract much needed attention.

Discussions of this issue tend to obscure the real question. What are the unintended consequences of the successful law suit judgement? I do understand that some patients or customers are harmed by physicians or nurses or hospitals or insurance companies or defective products. But should I as a patient or customer have to contribute to the settlement. The loser in the lawsuit rarely pays the judgement themselves. Physicians have malpractice insurance. So if you sue one physician (and win) all physicians will pay (with increased insurance costs). Thus all patients will then pay (with increased doctor’s fees). The same concept applies to suing McDonalds or Toyota or an airline.

I do not know the way out of this quandry. We live in a country and a society which champions individual rights. I support this and revel in the attendant freedoms. However, as Oliver Wendell Holmes (probably influenced by John Locke) said “”The right to swing my fist ends where the other man’s nose begins.” So you swing at the physician (or some other defendant) and I get hit (in the wallet).

I fear that I digress and know that I am waxing philosophic. Perhaps some readers can expound on this issue and help me. I would hope that there are some reasoned legal minds who can help find a solution to this dilemma.

Pennsylvania wins a reprieve

Pa. doctors drop boycott threat

Doctors in eastern Pennsylvania who were threatening to walk off the job Wednesday because of high malpractice costs will work as usual, thanks to a $220 million bailout proposal by Gov.-elect Ed Rendell.

…

Under the proposal, Rendell said he will cut doctors’ payments to a state insurance fund by two-thirds, and have insurers pay into the fund. He said health insurance companies would finance the bailout through a one-time surcharge on their reserves, and insurers will not be allowed to make up for the expense in the form of higher insurance premiums.

Good for the patients, this proposal treats the symptoms, not the disease. I guess we can only hope that Congress takes up the mantle of nationwide tort reform.

And in Pennsylavania it only gets uglier

Doctors angered by letter from Pa.: The state warned them not to abandon patients. Many may quit their practices amid an insurance crisis. So what did this letter say?

The Dec. 20 letter from Secretary of the Commonwealth C. Michael Weaver was sent to all licensed doctors in the state as a “reminder” of their professional and legal obligations to their patients.

The letter arrived as some doctors say they will, at least temporarily, stop practicing medicine as of Wednesday in response to the state’s malpractice crisis.

“A stoppage of practice may be detrimental not only to your patients, but also to your practice, your standing amongst colleagues, as well as your license should your conduct be found to constitute abandonment,” Weaver wrote.

Weaver’s office oversees the licensing and disciplining of Pennsylvania doctors.

When a fire rages, one should not throw oil. This letter brought outrage and dispair from the physician community.

But the letter has generated a firestorm of protest from doctors.

“It is psychologically abusive to have a letter like that come to our homes during the holidays,” said Lynette B. Goodstine, a Montgomery County internist.

On Friday, the Pennsylvania Medical Society was inundated with calls and e-mail from doctors infuriated by Weaver’s letter.

“Many physicians found the tone of the letter insulting and threatening,” said Roger F. Mecum, executive vice president of the Pennsylvania Medical Society, which represents the state’s doctors.

“Physicians of this state would like the representatives of our state government to help us solve this problem as quickly as possible, and not point out the moral and ethical obligations of physicians of which they are well aware,” Mecum said.

I believe that the country’s best hope lies in the Congress. The entire country needs tort reform. This is more than just a physician issue. According to the Washington Post, we should expect progress. GOP Plans New Caps on Court Awards . This article speaks to the large issue of tort reform and includes this about malpractice.

Lott said congressional Republicans early next year will push for legislation proposed by the president that would dramatically limit the liability of physicians sued for medical malpractice. Under the plan, aggrieved patients could seek no more than $250,000 for pain and suffering, even if their state’s law permitted a much higher award. There would be no federal limits on compensation for economic damages, such as lost wages and medical costs.

When Bush announced the plan earlier this year, he said the limit was needed to keep doctors from being forced out of business by escalating malpractice insurance costs. Democrats say the $250,000 limit is much too low, particularly for patients whose lives are changed forever by a physician’s wrongdoing.

In the last two years, doctors have given the GOP $7.8 million and Democrats $3.8 million, according to the nonpartisan Center for Responsive Politics.

In the past two years how much money have trial lawyers given to each party? I would expect the Washington Post to show more balance here.

For those who want to keep up to date on the problems associated with trial lawyers, I recommend Overlawyered.com. That site does a great job of documenting the problems associated with our current tort system. Meanwhile, things just get uglier in Pennsylvania. Do not be surprised to see an ongoing exodus of physicians.

Pennsylvania malpractice crisis

It is getting ugly in Pennsylvania. Surgeons threaten walkout over insurance costs.

Claiming high premiums are forcing them out of business, at least 45 doctors in Scranton said they have stopped accepting new patients and won’t perform surgeries after January 1. The total includes 10 of the small city’s 18 general surgeons, 14 of its 15 orthopedists, and all 8 of its urologists.

“I don’t want to be irresponsible. I just want someone to put their feet in my shoes for a while,” said Scranton neurosurgeon Shripathi Holla. “We need more people to take care of these patients, and the insurance situation is driving us out of the market.”

Doctors have tried mass walkouts elsewhere in the nation.
In Las Vegas, 150 doctors at University Medical Center resigned in July to protest high insurance premiums, prompting the hospital to shut down its trauma center for 10 days.

The action prompted a special session of the Nevada Legislature, which enacted a law capping damages in trauma center malpractice cases at $50,000, except in cases of gross negligence. About half the doctors returned to work after the bill passed.

The American Medical Association, the country’s largest physicians group, said that while such mass demonstrations are rare, physician groups have also been forced to shut down in several other states because of high insurance costs.

In Scranton, some are calling the threatened walkout a protest. Others insist it is a simple business decision. Holla said his malpractice insurance costs $450 a day — a rate he says is strangling his practice and preventing his hospital from recruiting doctors.

Even physicians must make business decisions. One should not expect us to work in a situation which seems hostile. The current malpractice costs help define a hostile environment. This action is undesirable, but I do understand their problem. Please do not just think them greedy. It is much more complex than that.

The malpractice crisis

The AMAnews has an excellent summary of the issue – Double-digit liability rate hikes slam internal medicine, obstetrics, general surgery: The insurance market is not likely to improve in the near future.

More on Nevada

Recently Nevada had a major malpractice crisis. The state legislature stepped in and passed an emergency bill. Now we have an opinion that the problem may not be solved. Study for doctors calls Nevada malpractice law inadequate

“The new laws will not make a significant improvement in the problems you currently have,” said William Hamm, a California-based legislative analyst who co-authored the report.

“Down the road, you will find the same reluctance of various high-risk doctors to offer care in Nevada,” Hamm said. “You’ll find that providers will continue to relocate their practices elsewhere or take early retirement or shift into less-vulnerable specialties because they cannot afford extremely hefty premiums.”

Hamm was enlisted for the study by NM Strategies, a California-based public relations firm hired by “Keep our Doctors in Nevada,” a group circulating a petition to change the recently enacted medical malpractice liability laws.

The group says the laws passed by the Legislature during a special summer session don’t protect doctors enough and must be amended when the Legislature meets again in February.

The new law went into effect Oct. 1. It caps pain and suffering awards at $350,000, except in cases of gross malpractice or when a judge finds clear and convincing evidence to warrant a higher award.

The doctors’ group wants the exceptions to the cap eliminated, although lawmakers said the exceptions are necessary to ensure the new laws withstand legal challenges.

“After much deliberation and compromise with the Legislature, we created a balanced law that deserves an opportunity to work,” Gov. Kenny Guinn said in a statement. “I remain concerned about the cost of liability insurance premiums for our doctors and health care system. However, I am also concerned about the rights of those patients who are clearly injured.”

Trial lawyers say eliminating the exceptions would violate the rights of patients hurt by doctors’ mistakes.

Trial lawyers do not seem to care about society. They do not consider the overall welfare. They just want huge judgements. And they seem to have the Democrats in their pockets.

California thoughts on malpractice

Aid MDs and Patients Too (LA Times articles require free registration).

Trial lawyers say the $250,000 cap, imposed in California in 1975 and never raised to account for inflation, provides far too little compensation in 2002, however. They’re right. It’s also very hard to find a lawyer to take a $250,000 case. To provide the same level of compensation in today’s dollars, the cap would have to be about $800,000.

But regardless of the figure that Congress finally sets, some cap on these so-called punitive damages (compensation not for direct economic loss but for impaired quality of life) makes sense. The current lottery-style system hurts everyone, forcing physicians in some states to close their practices. One measure of the chaos: In California, insurance companies offer general surgeons malpractice coverage for $21,000 to $43,000 a year, whereas in parts of Florida annual premiums are as high as $159,000.

Chances are slim that the Senate will agree to the medical malpractice bill as it’s now worded, for Democrats rightly argue that if Congress is going to weaken patients’ ability to penalize doctors and health plans, then it must give them an alternate means of appeal and improve detection of medical errors.

Californians have enjoyed such recourse since 1999, with a law guaranteeing patients the right to an independent medical review when they believe they have been harmed by their health plan’s treatment — or denial of treatment.

Sometimes California gets it right. One can only hope that the Senate Democrats develop common sense.

Update on the Pennsylvania malpractice crisis

Somehow I am now on the Pennsylvania Medical Society Alliance mailing list. They sent me this update today which I will pass on for your interest

from the Washington, PA Observer Reporter
Tuesday, October 8, 2002
House passes medical malpractice measure

HARRISBURG (AP) – Plaintiffs in medical malpractice cases would be required
to file their lawsuits in the county where the alleged malpractice occurred
under a measure approved by the state House of Representatives Monday.

The measure, which passed 186-12, is intended to eliminate so-called “venue
shopping,” which refers to plaintiffs seeking out courts that are most likely
to favor their cases, said Rep. Thomas P. Gannon, its sponsor. In many
instances, that has meant seeking to have a case tried in Philadelphia, he
said.

“Jury verdicts in Philadelphia historically have tended to be higher, and in
some cases excessively higher, than in other jurisdictions. That was the rub
for many hospitals,” said Gannon, R-Delaware.

Gannon said the bill was another attempt to ease spiraling malpractice
insurance costs that doctors say are still driving them out of Pennsylvania,
despite legislation passed in March to try to rein in rates.

The earlier legislation, signed by Gov. Mark S. Schweiker in March, included
a provision to gradually phase out the Medical Professional Liability
Catastrophe Loss Fund in 2009 and turn it over to private insurers.

The fund, supplied by surcharges assessed to medical professionals, covers
doctors and other professionals when their own malpractice coverage is
depleted.

Democratic leaders opposed Gannon’s measure and urged the House to vote “no.”
House Minority Whip Mike Veon, D-Beaver, called the measure an
“unconstitutional legislative intrusion into the Pennsylvania Supreme Court’s
rulemaking authority.”

“If we are going to do something about these rates, about what doctors are
paying for medical malpractice insurance, what we need is a mandatory rate
rollback on medical malpractice insurance,” Veon said. “Let’s give doctors
immediate rate relief.”

Pennsylvania is one of 12 states where rising premiums, tied to awards by
state juries in malpractice cases, are creating a crisis, according to a
survey released in June by the American Medical Association.

The AMA lists six states as having their malpractice situations under
control: California, Colorado, New Mexico, Wisconsin, Indiana and Louisiana.

Gannon’s measure was amended into a Senate bill that would increase pay for
jurors who sit on multicounty investigating grand juries. It now returns to
the Senate, which must agree to the amendment.

As usual, the Democrats are against malpractice reform. I just do not understand.

Pa. Rally over malpractice costs

Wake up Democrats! We have a serious problem that affects the delivery of health care. Patients will suffer (and probably already have). Pa. Doctors Rally Over Insurance

Doctors rallied Thursday in two Pennsylvania cities, saying soaring malpractice insurance rates threaten emergency room service around the state.

Doctors and patients demonstrated in Scranton, where a medical center is trying to line up coverage for 10 emergency room doctors who were notified last week their current policy was being canceled.

At a similar rally in Philadelphia, physicians called for a state law to limit damage awards in malpractice cases as a way of reducing rates. Speakers urged tort reform modeled on a California law that caps jury awards for pain and suffering in medical cases at $250,000.

Orthopedic surgeons, neurosurgeons, obstetricians and others have said rising malpractice rates may force them to stop performing surgery or leave the region.

“It now costs me more to practice in the city of Philadelphia than I can possibly hope to get paid,” said Dr. Adrienne Cresswell, a plastic surgeon.

We need the Senate to pass the legislation that the House already passed. Physicians deserve to make money. We should not have to donate our services. Do you think patients want their insurance moneys and office payments funding trial lawyers? The madness must stop. What are the Democrats thinking?

Toren quoting Sydney

The Safety Valve has an excellent summary of the malpractice crisis today – “First, do no harm” or in Latin – Primum non nocere. Toren does a nice job lecturing the trial lawyers about the harm they are doing. He references a nicely written article by our own Medpundit – Law and Orderlies.

Toren found this article from another site – The Real Healthcare Crisis . So it has been a big day for considering the true health care crisis. For a slightly askew position, check out the Bloviator today at the bottom of his article about health care costs.

I would love to see the malpractice crisis garner major attention in the blogverse. We need many thoughts and comments. I am pleased to see non-medical blogs noticing the problem.

Unbelievable

First, thanks to Overlawyered.com: chronicling the high cost of our legal system for the kind link. I was perusing the site and found this unbelievable article Woman is suing VA doctors: Kathleen Ann McCormick says she wasn’t told to stop smoking or lose weight, factors she alleges caused her to have a heart attack.

A Wilkes-Barre woman is suing several doctors at the Department of Veterans Affairs Medical Center, saying the physicians did not do enough to assist her in making life changes – including quitting smoking and losing weight – that might have prevented a debilitating heart attack she suffered.

Kathleen Ann McCormick of North Empire Court says the physicians knew she had multiple risk factors to develop heart disease, but they failed to aggressively treat her, leading to a heart attack on Jan. 17, 2000, that left her a “cardiac invalid,” according to the suit filed Friday in the U.S. District Court for the Middle District of Pennsylvania.

A logical person would wonder which alternate universe she occupied. She needed aggressive interventions from physicians to convince her to quit smoking and lose weight. Of course, if one uses logic, we would assume that physicians know the magic words that help patients make lifestyle changes.

Physicians recommend these lifestyle changes with virtually every patient they see. I work on VA inpatient wards, and many patients fit her description. We try, we coax, we offer programs, and we rarely have success. One would suspect that she received appropriate advice which she ignored. Now she has ‘buyer’s remorse’, but would rather sue someone. I just do not understand her or her lawyer.

Malpractice – the long story

Bloviator has written a thesis on malpractice premiums. I highly recommend it to those who want the meat, potatoes, gravy and dessert. THE BIG MEDICAL MALPRACTICE INSURANCE POST.

The abridged version – awards do matter as does ‘return on investment’ of the insurance companies. Laws can keep the first under control. We cannot change the second.

The House and malpractice

Slow down; do not get excited; this only represents step one. House Panel OKs Malpractice Limits.

The legislation would limit noneconomic damages, such as pain and suffering, to $250,000. Punitive damages would be limited to twice the amount of economic damages awarded or $250,000, whichever is greater. Patients’ ability to file suit over old cases would be limited, and lawyers’ fees would be curtailed under the legislation.

Committee Democrats unsuccessfully tried to change the legislation to lift the cap limits and extend the time period during which a patient has the right to sue.

Rep. James Sensenbrenner, the committee’s chairman, described the situation as “a national insurance crisis.”

“Doctors and other health care providers are being forced to abandon patients and practices, particularly in high-risk specialties such as emergency medicine and obstetrics and gynecology,” said Sensenbrenner, R-Wis.

Dr. Yank Coble, president of the American Medical Association, said the legislation will “bring common sense back to our nation’s medical liability system and bring much-needed relief to patients throughout the country who are struggling to find physicians.”

From the other side, Rep. John Conyers of Michigan described the bill as “the most far-reaching and dangerous malpractice bill before Congress.”

“The proposed new statute of limitations takes absolutely no account of the fact that many injuries caused by malpractice or faulty drugs take years or even decades to manifest themselves,” said Conyers, the committee’s top Democrat.

I remain mystified with the Democratic position. What principle do they espouse? How much money do the trial lawyers give them?

For those who care, you can read the bill at THOMAS: Legislative information on the internet by searching bill H.R. 4600.

Ohio docs protest

Thanks to the Bloviator for this link! Docs rally at Statehouse for malpractice cap

The Ohio State Medical Association, which supports the bill, is concerned that Ohio doctors will close their practices or leave unless the law is passed.

“Doctors’ ability to provide care is contingent upon having the ability to acquire malpractice insurance,” association lobbyist Tim Maglione said after the hearing.

He cited federal studies that found the median medical malpractice judgment increased 43 percent between 1999 and 2000.

From our redundancy department – the trial lawyers oppose the bill.

Commentary on the crisis

I usually leave malpractice links to medpundit and RangelMD, but this one is so good that I wanted to share it – A plague spread by fee-bitten lawyers. I know the arguments – the patient was injured by the evil medical system. How can we value and limit the financial ‘penalty’? Juries do not care, because in their case they believe the insurers, doctors and hospitals have deep pockets. Unfortunately, we need polticians to step up like they did in California. Each suit (even the many unsuccesful suits) damages our health care system – raising costs for patients. Physicians really want to care for patients, that is why we chose medicine. The unintended consquence here is scary.

Maybe we ought to start putting labels on some lawyers, like the kind on the side of cigarette packs: “Warning: Immense jury awards can be dangerous to obstetric care and trauma centers.”

…

California’s example needs to be emulated, for health’s sake. Mississippi’s governor, Ronnie Musgrove, is expected to call a special session of that state’s legislature to do something about the out-of-sight costs of medical malpractice insurance in his state. Nobody is trying to limit awards for actual damages, but punitive damages are now damaging the public health most of all.

The Bush administration has tried to get Congress’ attention as this medical/legal crisis developed. It suggested limiting out-of-control jury awards, but was stymied by the Democrats in the Senate.

When one party has been largely captured by a special interest — in this case, the trial lawyers’ lobby — the chances for reform begin to resemble those of a poor patient in urban Philadelphia or rural Mississippi.

Let’s hope the Senate gets another chance to cap jury awards beyond actual damages — before more obstetricians take down their shingles, and more hospitals shut down vital services.

In the meantime, the prognosis for reform remains poor. Not every plague, it turns out, is the result of micro-organisms. This one is spread by lawyers.

Well said!

Nevada Tort Reform

Nevada enacts bold tort reforms

The legislation — which Nevada Gov. Kenny Guinn signed into law Aug. 7 — calls for many of the reforms that the American Medical Association has said are needed to help change states’ medical liability climates. It places a $350,000 cap on noneconomic damages in medical malpractice cases, creates a shorter statute of limitations and establishes a standard that holds physicians liable only for the damages for which they are responsible.

The law also puts a $50,000 limit on damages for hospitals and physicians who treat trauma patients, creates a medical error reporting system, requires more training for judges handling medical malpractice cases and holds lawyers responsible for costs of frivolous lawsuits.

“We have addressed the issues that brought the crisis,” said Lawrence P. Matheis, the Nevada State Medical Assn. executive director. “It takes away the unpredictability of awards.”

Nevada is one of 12 states the AMA has identified as being in the middle of a medical liability insurance crisis. Another 30 states and the District of Columbia are seeing signs of trouble, the AMA says.

This does not solve the problem. They have a bandaid placed. The plaintiff’s lawyer mindset that one can only expect good outcomes from medical care encourages plaintiffs to sue regardless of merit. Physicians make mistakes – sometimes egregious mistakes. If so, then we need a system to help the patient. But we need a jury of our peers, not the plaintiff’s peers. We need a jury that can truly understand the evidence.

Solving the malpractice crisis

I found this article at Med Journal – How to Keep Health Care From Being Sued out of Existence . The article is well researched, summarizing a complex issue. I will not try to summarize this complex and important article – please read it.

More on Bush and malpractice

In a July speech, President Bush echoed what some physicians have been saying about the medical liability climate for years. Here are excerpts:

“Sometimes the lawyers take up to 40% of the verdict — 40%. And while patients injured by a doctor’s malpractice deserve fair compensation, there are too many cases of grossly excessive jury awards.”

“People say, well, is it a federal responsibility? Should the federal government act on this problem? And the answer is yes. … The federal government uses taxpayers’ money to fund health care programs — Medicare, Medicaid, children’s health care, veterans’ health care, military health care. And any time a frivolous lawsuit drives up the cost of health care, it affects taxpayers.”

“Higher and higher insurance premiums make it nearly impossible for a lot of doctors to practice medicine. And if docs don’t practice medicine, it’s hard to have good health care.”

Bush decries “junk lawsuits,” calls for federal tort reform: Physicians praise the president’s proposal, which is similar to AMA-backed legislation aimed at easing the medical liability crisis. This well researched article from the AMAnews summarizes the issue well. The trial lawyers (and hence the Democrats) disagree.

More from Bush on malpractice

The President focussed attention on the malpractice problem (and the evil trial lawyers – oops I should not use redundant phrasing) during a campaign stop for North Carolina gubernatorial candidate Elizabeth Dole. Bush Urges a Cap on Medical Liability. Now for your daily dose of ipecac

The trip put Mr. Bush squarely on the home turf of a potential political rival in 2004, Senator John Edwards, a Democrat who became wealthy as a medical malpractice lawyer.In a telephone conference call with reporters, Mr. Edwards said today: “I spent most of my life before I came to the Senate fighting for kids and families against insurance companies, and I think that’s the right side to be on. If the president wants to be on the side of the insurance companies, we’ll let him do that.”

Slick politics, avoid the issue and blame the insurance companies!

Malpractice reform – or at least a hope

The administration may try to help the malpractice crisis. Bush Addressing Malpractice Insurance

— The Bush administration renewed its push Wednesday to rein in medical malpractice litigation and address soaring insurance costs that are causing many doctors to flee certain communities and high-risk practices.The fresh effort to restrict awards in malpractice cases was seen in a report Wednesday by Health and Human Services Department. President Bush also was making the issue a centerpiece of his visit Thursday to a hospital and university in High Point, N.C.

…

The result has been closed practices, rising health care costs overall as doctors defensively prescribe unnecessary tests and treatments, and fewer physicians entering high-risk areas.

The solution is to limit damages for pain and suffering in malpractice cases, the report suggests.

“We must put an end to the malpractice litigation lottery that favors a handful of powerful personal injury lawyers and instead create a commonsense system,” HHS Secretary Tommy Thompson said.

Legislation in Congress would limit the pain and suffering and punitive portions of malpractice awards. The bill, intended to override state laws, would curtail lawyers’ fees and allow juries to hear about the plaintiffs’ other sources of income.

I hope that this initiative focusses the debate, but I fear politics will intervene again. The trial lawyers are whining. I really do not like the trial lawyers.