We were certainly happy to see some great pieces this week attacking the truly nasty efforts by Republicans who want to use injured patients as their health insurance reform "bargaining chip." There's a great blog from Andrew Cohen (Murrow Award-winning journalist and one of the nation's leading legal analysts and commentators) in The Atlantic Online and - pinch me now - The Economist, which particularly objects to so-called "tort reform" when there's no safety net for people like here in the U.S., to wit, "A system where doctors are rich, patients have no guarantees, and only patients have to make sacrifices is unacceptable."
But who can deliver a more poignant message than those who are among the hundreds of thousands actually killed or injured each year due to medical negligence, those who have been through the legal system and some of whom were victimized twice due to "tort reform" in their state. (Yes, most states already have already enacted some type of "tort reform" cruelty.)
They sent a letter to President Obama today, as well as to the Congressional leadership. Here's some of what they said:
As survivors of medical negligence and as patient safety advocates, we are writing to you again about the issue of medical malpractice and so-called "tort reform." Many of us have family members who were lost or severely injured as a result of medical negligence. While the insurance and medical lobbies continue to attack us, it has been extremely heartening to know that, so far, you have stood strongly on our behalf, and on behalf of all patients.
However, we are extremely concerned that this issue will again be raised as part of the bipartisan health care summit that you announced for February 25. We urge you to please keep additional "tort reforms" out of the health insurance reform bill, beyond what the House and Senate have already agreed to. This would include proposals like "caps" on compensation for families who need these funds to survive; one-sided use of clinical guidelines as a means of removing accountability for providers (we believe patient safety will suffer from such a "one size fits all" approach especially given conflicts of interest by those who would develop these guidelines); systems that involuntarily remove cases from the jury system; and any other proposal that is onerous, unfair to patients and prevents legitimate cases from going forward.Many of us have the misfortune of living in states with "caps" and other laws that make it difficult or impossible to have cases heard before judges and juries. We have heard some commentators say lately that there is "no downside" to tort reform. They need to spend a day in our shoes.
These laws have had terrible consequences for us, for injured patients who have been shut out of courts altogether, and for patient safety, in general. They have also burdened taxpayers since some of us have had to turn to taxpayer-funded health and disability programs to provide for our injured family-member. It would be a tragic mistake to impose such "tort reform" laws on the rest of the country. Please remember:
- The extent of medical errors is a real crisis; hospitals are unsafe and the doctor discipline system is a national disgrace.
- Proposals that reduce the accountability of unsafe hospitals and incompetent doctors will lead to more errors and system costs.
- Liability limits shift costs of caring for malpractice victims from perpetrators of malpractice to state Medicaid systems and taxpayers.
- Even if you imposed the most severe limits on patients' rights, savings would total at most only one-half of one percent of total health care costs.
Provision of medical care should never be accomplished by taking away the right to trial by jury for someone who was injured through no fault of their own, or reducing the accountability of anyone who commits wrongdoing. Medical malpractice has taken a huge toll on all of our lives, as it has on the hundreds of thousands killed or injured each year due to preventable medical errors. Please continue to explore ways to improve patient safety and reduce unnecessary deaths, not diminish accountability for wrongdoers, limit our right to have cases heard before judges and juries, and burden taxpayers with the bill.
Go to the letter for a full description of the signers and their stories.
Follow Joanne Doroshow on Twitter: www.twitter.com/centerjd
Where can we learn more about the specific funding of your organization? As a disciple of Ralph Nader, I am sure that you would like this information to be publicly available.
Thanks in advance.
Oh yes, JD Doroshow, not a lottery system at all. 60 million for a damaged labia. Yes, this may be reduced, but that doesn't make it right in the first place. Exhibit A for caps on pain and suffering.
Healthcare dollars should be used for patient-care. And not to support a whole medico-legal industry NOR serve as a system where a disabled person is supported (for a life-time) by public funds, regardless of cause - as in a case of birth-defects or other mishap beyond reasonable control of the physician. The fact that 85% of medical lawsuits are thrown out after going over them (with the benefit of hindsight) by a fine tooth-comb by multiple experts. This suggest that vast majority of medical care, even in suspected cases of malpractice, met high standards.
To put it bluntly, the philosophical issue is: "Shit happens - Does society have to pay?" America is no longer a rich country that can pay for the same disability multiple times.
Your organization has a honorable role to play in overhauling the malpractice (litigious) system. You can make it efficient, just and fair to all; or work to continue the present path of waste and inefficiency, which impacts the economic viability of the country as a whole.
The U.S. Constitution enshrines the rights of citizens to seek redress of grievances in a court of law. It is the backbone of a civil society. With a legislature alternately incompetent, unresponsive and/or simply unconcerned, the courts also increasingly become Americans' last refuge of justice and accountability. The more that right is whittled away with "tort reform," the more Americans are disenfranchised from justice. And when that happens, the likelihood increases that people will seek out other, less "civil" means of satisfaction. And that is when societies crumble into chaos.
- a jury of peers for docs, they dont get'em. Caps for pain and suffering only, you pick the upper limit. Awarding money - pain a subjective compensated with objective mean$ cant be done fairly.
- Get more money to the injured party.
- use arbitration, you get your day in court, just a different forum, recent Florida case awarded 11 mil to a patient, so skip docs protecting docs nonsense. In court 2 month limit to get it all done soup2nutz
- The problem with the cost of healthcare is the cost of healthcare.- period! A license to steal.
- Repeal McCarron ferguson so the blue chips are affected by competition nationwide
- loser pays the costs .
I could go on and on. The truth is nobody really wants to fix this, too much money involved. Most of the thousand cases that I have settled since 1985 have some element of fatigue, poor communication, especially at shift changes, and /or poor staffing. Pay the money to nurses and get more of them
One last thing med mal has nothing to do with the cost of Healthcare. They do not provide care , they are just brokers. Defensive medicine yields just an expensive diagnosis. See the mandated HC of Hawaii, tested 40 years and applauded by all.
Lets see- you pay a large premium, you have a large deductible to meet before they pay and then a co-pay. So what do
I'm sick of people acting like doctors deserve even more special treatment than they already get. They want more tort reform? Doctors malpractice suits already have a shorter statute of limitations than other civil suits. Doctors are already a protected class. But they've convinced the very people that they think they are better than to fight for doctors rights to be basically untouchable and unaccountable for their mistakes. And trust me, most of my friends are doctors, and they do think they are better than you.
Whatever happens to the case, the defense lawyer always goes away filled.
So the idea that our congress is going to listen to people who SURVIVED our "health care system" is laughable.
Sorry folks. The pattern of our future is clear. Plenty of cheap guns but no access to courts or politicians for the rabble. So stock up, load up, and start speaking the preferred language of our "system".
It 's been estimated that 196,000 Americans died each year from medical errors in 2000-2002, up from 98,000 in 1999.
Just last week U.S. Representative John Murtha died from a complication due to surgical error.
I've had, and seen, my share of surgeries. Not all of them successful. Yet I support tort reform, it is needed.
Not to protect bad doctors, or more charitably bad outcomes, but to reign in legal costs. Those million dollar settlements that many are so upset about when they read them. fail to take into consideration that in most cases a vast majority of the award goes to attorney fees. I understand the reasoning behind the contingency fee system. Supposedly it provides access to the courts that most would otherwise be unable to afford. The problem is, it simply doesn't work. How do you justify a system where the injured party can (and sometimes does) receive 10% of an award while the lawyers get 90%. There has to be a better way.
While we're at it, we NEED to reform a medical system that allows so many bad outcomes. Doctors in my younger days seemed to care more about their patients then they do now. Now it seems the practice of medicine is all about money. at least from my perspective.
My complaint with the contingency fee structure is that there is no direct connection between the effort put into a case, and the financial reward to the individual attorney presenting it. An ethical lawyer could spend hundreds of hrs on a case where their final payment might be 20-30,000 dollars. On the other end of the spectrum is the lawyer that chooses to propose a settlement in his OWN best interest. In essence, recommend the maximum amount that his experience has taught him the opposing party will settle for "out of court", thereby limiting his case load exponentially. A two hour conversation, a couple of letters, and $5-15,000 in virtually instant pocket change. These lawyers have incomes in the hundreds of thousands. Lack of ethics is financially rewarded. There is more than one side to any issue.
Kudo's to those attorneys who practice ethical law.
It would have been better had you indicated in your tagline that you represented a legal association rather than the "Center for Justice & Democracy" Had I been more aware of your status, I would not have left comment.
This is a cultural problem, and the fact that anyone actually believes further "tort reform" is necessary, is a reflection primarily of how many of us are lucky enough to have never been seriously ill.
I am so glad that I have some medical background. Without my self-diagnosis and dogged determination to find a physician who actually knew what he was doing, I would still be really sick today. I feel very sorry for people that are at the mercy of many of these physicians who should never have graduated from medical school in the first place.
I've had a severe back problem for many years; it finally blossomed into something painful and crippling in 2001... I had no insurance, so I paid cash as long as I could, but couldn't find a primary care physician or rheumatologist willing to take a real shot at diagnosing me - they just tried different drugs, one after another, for a year or two... then I couldn't work anymore, so I had to sign up for Mass Health... and that's when doctors started lying to me, systematically, enough doctors to comprise a really firghtening sample... I started ordering all the medications I needed from overseas, because no one would prescribe painkillers, or muscle relaxants, or steroids... I had to try eight or nine primary care physicians, before I found one willing to refer me to a back specialist... in fact, he wouldn't - he insisted I see a psychiatrist, and the psychiatrist was taken aback that I hadn't been sent to the appropriate specialist... so the psychiatrist sent me to a rheumatologist, who took x-rays, and diagnosed ankylosing spondylitis, a condition that, among other things, is pretty easy to diagnose with just x-rays...
Anyway, now that I'm starting to find the doctors I need, useful, dedicated doctors, I often think about how much worse it is for patients who aren't educated, who don't have extensive personal "networking" resources, or even fluent English... it breaks my heart.
I don't defend either incompetent doctors or bad medical discipline systems, but since most of the doctors sued have not committed malpractice and the experience of being a litigant is so costly and draining, there is a reality that can't be avoided. ANY doctor who wants to avoid being sued - particularly by someone as hostile to professionals and biased as this blogger - will order that extra test, suggest the extra biopsy for an uncertain mammogram, order the most expensive drug for the demanding patient when science suggests that less costly measures would be at least as good or better for the patient. As long as people like this blogger demand open season even on ethical doctors, just based on the ALLEGATION of a mistake, smart doctors will practice defensively. Perhaps the Huffington post could offer equal time to a practicing physician.
Doctors including negligent doctors do not pay for the medical malpractice judgement. Malpractice insurance companies pay and pass the cost on to all doctors; who then pass it on to all patients / public.
So it is the patients and the public that is left homeless and destitute due to:
1. Increased healthcare costs.
2. Physicians who will not accept patients who do not have good insurance.
3. Patients who refuse to follow their doctors advice and care for themselves.
In addition approximately 85% regardless of proof lose their malpractice suits. You only hear about outrageouos settlements because the news media reports the unusual not the common.
My case was in the courts for 14 years (not a typo) The doctor who committed malpractice on me, Dr. Peter Jannetta, was called a perjuror by the Pa Superior Court ("We have little difficulty in concluding that Dr. Jannetta's testimony at deposition was different than, or inconsistent with, the testimony at trial." Levy v Jannetta, CCP Allegheny County, GD 81-7689; appeal -J. A370017/92 Levy v Jannetta et al, No. 00150 Pittsburgh, 1992. settled, 1995") Nevertheless my lawyer, Michael Fishbein, of Levin, Fishbein, Sedran and Berman of Phila. forced me to settle for such a small amount that you the taxpayer are paying for my lifetime medical expenses (via medicare) resulting from the malpractice.
(The doctor was named secretary of health nominee by Governor Ridge 3 weeks after the forced settlement, Peter J. Jannetta 1995 - 1996.)
The "crisis" does not exist. If medical societies and the state sanctioned these recidivist doctors there would be no 'crisis'.
(Also there is a limit legally on how much the lawyer, by contract, can charge via contingency arrangement,)
Carol Jay Levy
author A PAINED LIFE, a chronic pain journey
member, cofounder with Linda Misek-Falkoff, PWPI, Persons With Pain International
member U.N. NGO group, Persons With Disabilities
85% of malpractices suits by patients are lost. Yet untill these suits are withdrawn or thrown out of courts, (after 14 years in your case) the legal system and the defense attorneys make money. Then the defense attorney pay-backs the plaintiff's attorney; without whose intital law suit) the defense attorney would not make a big living. During this whole process, there is an attempt to scare one of more of the defense doctors to settle.
The 'pay-back' to the plaintiff / patients attorney is in the form of a settlement. Now both attornies make money. The patient hardly gets any after all the costs are paid. And the system (patients) pays to keep the legal system flourishing.
Many states have good legal systems. Kansas allows both parties (plaintiff and defendant) through their attorneys, to appoint an expert. The two experts mutually select a third expert. The three prefessionals review the patient's management to see if there was any malpractice and make a written report to the judge. Right here, 85% of law suits can be elimintated with minimal cost (no depositions, expert testimony, appeals) and no agonizing delay to either party. The attorney's in this set up are not looking to win a lottery.