Articles Posted in Malpractice Tort Reform

I always like to read what medical malpractice defense lawyers are telling each other about how to defend a medical malpractice case. I found this paragraph today in an article discussing defending medical doctors:

This changed image probably explains why defendant physician usually views the prospect of a jury trial with a real fear that some or all of the jurors will be prejudiced against him. Doctors frequently ask if it wouldn’t be better to have the case tried by a judge; their reading of popular articles has convinced them that when they go to court the atmosphere will be unfavorable…. It is important, however, that neither the defendant physician nor his lawyer be deceived by the more extreme views of emotional writers who suggest that the medical profession has become a sort of litigation target, and that doctors and hospitals have been made the villains in these modern day courtroom dramas. Both doctor and lawyer must dispel from their minds any notion that the defendant physician has initial hurdles to clear somehow before he has any chance of winning his case. The reverse is true. On balance, the jury will start the case with some sympathy for the defendant physician, and this will be maintained right into the jury room, unless it is somehow lost or dispelled by the evidence and the witnesses.

The Malpractice Tort Reform Argument is Gutted

Honestly, I have always figured they did. My thinking was that it is basic economics. Decrease the upside risk and premiums will come down.

Now, I’m not so sure. Certainly, at a glance, a cap on noneconomic damages appears to be correlated with keeping health care malpractice premiums down. But the data just does not back that up. Take a look at the analysis in Ferdon v. Wisconsin Patients Comp. Fund 701 N.W.2d 440 (Wis. 2005) where the court breaks down the “caps equal higher premiums” argument.

Even more to the macro picture is whether a cap decreases medical costs. That is the endgame, right? Malpractice caps can’t be about just lining the pockets of our highest paid professionals. (How would that look on a bumper sticker?)

A few facts from Ezra Klein’s Washington Post article today:

• Congressional Budget Office (CBO) took a careful look at the evidence on defensive medicine and concluded that aggressive reforms to the medical malpractice system “would reduce total national health care spending by about 0.5 percent.” (No one argues – at least not that I have ever heard – that the CBO is not an honest broker.)
• I specify “direct costs” because there’s a separate question related to “defensive medicine” — tests and treatments doctors prescribe to protect themselves from lawsuits. The problem is that it’s very difficult to figure out what is and isn’t defensive medicine. In a world where patients and their families want every treatment that might help and where doctors and hospitals are paid more for every additional treatment they try, there are plenty of incentives pushing doctors to do more. Fear of lawsuits is simply one of many. (I’ve made this point a 1,000 times, but this is nice to great way to say it.

A large group of Warren (Ohio) area physicians donned their white lab coats Wednesday while lashing out at excessive malpractice insurance premiums that they say are caused by a larger-than-normal number of malpractice claims.

Without being specific in terms [naturally] of the actual number of malpractice suits in court, Dr. Morris Pulliam said the situation is causing doctors to close down practices and take early retirement.

”Health care in Trumbull County is on life support,” said Pulliam, president of the medical staff at Valley Care Trumbull Memorial Hospital.

…Because even Texas Governor and presidential candidate Rick Perry thinks so. In his quest to win the Republican presidential nomination, Perry giddily brags about the putative benefits of malpractice and other tort reforms that have effectively choked serious malpractice victims in Texas. But even Governor Perry agrees that tort reform at the federal level is a bad idea that violates the 10th Amendment to the Constitution, which limits the role of the federal government. If Governor Perry is not in a scheme to vacate malpractice victims’ rights to recover what a jury believes they should, it is just not going to happen.

Issue #1 for the House Judiciary Committee: medical malpractice reform. The title of the hearing gives you some idea of the objectivity: “Medical Liability Reform — Cutting Costs, Spurring Investment, Creating Jobs.”

The hearing came a day after the House of Representatives voted 245-189 to repeal the Affordable Care Act (ACA). The repeal vote is seen as largely symbolic, since leaders of the Democratic-controlled Senate have vowed to block repeal. However, Republicans are now expected to begin trying to chip away at the ACA by passing bills to repeal certain provisions. Doctors are shooting for the same thing they always want: malpractice caps – preferably hard malpractice caps that include economic damages.

Ardis Hoven, M.D., chair of the American Medical Association’s Board of Trustees, told the House panel that the system we have had for hundreds of years is “an ineffective and often unfair mechanism for resolving medical liability claims.”

The Maryland General Assembly is open for business, which means a lot of lobbying on both sides of the aisle on medical malpractice related issues. Lobbyists for doctors and hospitals have been forever sounding the alarm of doctor shortages, relying primarily on their own studies to support this premise. Maybe there is a small issue of bias in citing yourself for the premise that is in your financial interest.

The American Medical Association’s data suggests that the doctor/patient ratio has increased in Maryland almost every year for more than forty years. In 1963, there were 470 doctors for each patient in Maryland. That number has more than tripled. Today, there are 153 lawyers for every 300 people. The real problem we have in Maryland is that we do not have enough lawyers. (Wait, I’m getting carried away. That is definitely not a problem we have in Maryland.)

But I’m sure that some rural areas of Maryland lack some specialties. MedChi points out that vascular surgeons are in particularly short supply. But this is not just true in Maryland. It is a problem all over the country. Moreover, rural areas are great places to practice to remain insulated from medical malpractice claims. Some rural counties in Maryland have not seen a plaintiff’s verdict in a medical malpractice case in years.

The Baltimore Sun wrote an article a few months back on hospital executive compensation that I did not see until today.

No breaking news there: these guys make a ton of money. But it is interesting snooping around looking at non-profit health care providers’ salaries. Sometimes, hospitals will create a separate nonprofit for different services, such as emergency room services. They are nonprofits so they have to name the salaries for what I think are their ten highest-paid employees. I could give you a link to a few of these but it names names and gives salaries and that is a little too intrusive for me. But it is fair to summarize my research by saying these guys don’t want to hold up their salaries when arguing that high malpractice premiums are putting them out of business.

I’ve made this point before and I’ll make it again: I think doctors should get paid a ton of money, more than any other profession because I think the medical profession is, as a class, more important than any other. If I make a mistake, someone does not get the money and justice they deserve. Doctors screw up and someone dies. So feel free to make a fortune. Just don’t plead poverty and claim you will quit your job and go work at McDonald’s because you can’t earn a living wage because of your malpractice premiums.

The widely read blog KevinMD, written by Dr. Kevin Pho who is an opinion leader on issues related to the medical point-of-view on medical malpractice issues, makes what I think is a startling admission:

Politically, malpractice caps are dead — tort reformers should abandon that option. Furthermore, arguing that tort reform will save significant sums of money is growing less viable.

It’s more important to re-frame the malpractice debate to focus on patients. That’s where the malpractice reform crowd will have more solid evidence to stand on.