Apparently even Republicans stand and cheer at the President's mention of malpractice reform. Is there really a problem and is there any merit to the solutions being offered? Let's face it, while it is popular to blame lawyers for what is occurring in the medical malpractice area, it is important to recognize that no malpractice suit can survive dismissal without one or more doctors supporting the malpractice allegations.
The first assertion is that doctors practice defensive medicine for fear of law suits and that increases the costs. That would mean that doctors are ordering tests and treatments for patients that they do not believe are truly necessary. Is that true? I personally have never had that experience. But even if true, defensive medicine may not be such a bad thing. In addition to compensating persons wrongfully injured, one of the primary purposes of tort law is to set standards of conduct and deter future misconduct. When a person is injured by a defective product, a verdict for the plaintiff not only compensates that person for the injuries sustained, but hopefully causes the losing defendant and others to take corrective action so that it does not happen again. Although it may indeed increase costs, fear of lawsuits may have made doctors and hospitals more cautious, which, in turn, may have inured to the benefit and safety of patients.
It has been suggested that caps be placed on jury verdicts. The purpose of a jury verdict is to compensate the person who has been injured by malpractice. The judge who presides over the case is in the best position to decide whether or not the verdict is excessive. Arbitrary caps merely diminish an award to which the claimant is otherwise entitled. $250,000 may not come close to paying the expenses someone may face for a life-long incapacitating injury resulting from malpractice. I do agree that better standards for the imposition of punitive damages should exist, but insurance policies most often do not cover punitive damage awards, so they should have no impact upon the premiums charged.
It is claimed, particularly by doctors, that many such suits are frivolous and without basis. I know none of the statistics, but as I said at the outset, these suits cannot proceed without expert testimony from other doctors. So the fault dear doctors may lie not in our lawyers but in ourselves. But it must be recognized that frivolous law suits do require some transactional costs, but if truly frivolous, they should not result in financial awards.
Along the same lines of blaming the lawyers, it has been suggested that contingency fees be reduced in malpractice cases so as to reduce the incentives of lawyers to bring such actions. The justification for contingency fees is to provide persons with valid claims the opportunity to bring actions without fear of paying huge sums if they should lose. Punishing the lawyers by reducing their contingency can have no effect upon insurance rates or health care costs, but it could reduce the number of persons able to pursue legitimate claims. That should not be the goal of any legislation.
Suggestions have been made for some type of pre-screening, such as medical panels or mediation. Any system that works to eliminate the baseless claim is to be applauded. But frequently, setting up thresholds for the institution of suits, creates more rather than less expense. Suggestions regarding the establishment of specialty courts seem to make a great deal of sense, but they likewise do not come without substantial costs. Proposals to limit statutes of limitations, alter the burden of proof or otherwise affect how these matters are tried may not be the proper subject for federal legislation, but rather may be the exclusive province of the states.
There can be no dispute as to the ever-increasing premiums doctors must pay for malpractice insurance. Are they justified? I have no idea. But it has always mystified me that I can pay for auto insurance for 30 years, have an accident, make a claim, and then my policy is either canceled or premiums raised to recover the loss. And I ask to no one in particular: What about the premiums that I have paid for the last 30 years! Before we reduce the amounts to which the victims are entitled, or discourage lawyers from bringing such suits, or impose hurdles for bringing such suits, or tell doctors to order fewer treatments and tests, maybe the carriers who provide this coverage should be required to demonstrate that these enormous premiums are justified. Are they losing money or just not making as much profit as they would like? And finally, would any or all of these proposals in concert, make any significant impact on health care costs?
Brian Ross: Apparently, You CAN Fool All of the People All of the Time
We are a fear-driven culture. There is a large segment of the population that, no matter how well you document it, will not let a good fact get in the way of their fears about health care reform.
The problem isn't that we won't come to our senses eventually; it's the vast misery and injustice that will take place in the meantime.
Funny thing, though. I live in Texas, and since 2004 both the billings from my medical providers and my health insurance premiums have both gone up, not down. So where is all of this supposed 17% savings going, if it exists at all?
I would trust what the moneyed interests say about tort reform about as much as--well, not at all.
Part I
Thank you, Judge, for your article. As is evident, I am in Texas. I work in the non-profit sector for victims of those in positions of power, authority and trust who violated boundaries and ethics with their patients, clients, students, staffers and congregants. Victims in tort reform states (especially Texas) have zero chance of recovery from these offending professionals in malpractice suits. 1) attorneys cannot afford to take malpractice cases any longer - they simply are not equitable or successful in this state, and the attorney must be willing to invest mega-bucks to retain an expert, chase and seize hidden assets if success is reached; 2) sex.ual misconduct (albeit malpractice) is excluded from malpractice coverage. But, the malpractice carrier provides the professional with a high-powered, high-priced defense.
As far as frivolous claims in my area of work, the statistics are 0 to 4%. Experts say that it is so miniscule that it is not even on the radar for study.
A professional that violates boundaries and ethics can receive the highest quality of assessment and treatment and return to their lives and practice. Their victims? The ones that are emotionally affected by one of the most egregious of human offenses? Well, they can't afford treatment, and even if they could, many are re-victimized by the lack of understanding, education, and awareness by a subsequent provider. Many cannot locate a subsequent provider that will accept them as a patient or client because the offender has disparaged and gotten then blackballed by his peers.
Those that voted for tort reform in Texas shot themselves in the foot. Law firms are dissolving their PI and Malpractice sections; they have laid-off lawyers and support staff, and the civil court judges are twiddling their thumbs and assisting the family court judges with resolving divorce cases.
Texas was the model state for tort reform. It does not work. We now have 11,000 physicians that have relocated to Texas so they cannot be sued for their mistakes. There were 18 malpractice suits filed in Texas from Sept. 2003 when tort reform passed to December 31 2003. The only recourse is the medical board and they operate under the rule of special interest - the Texas Medical Association.
Same white-coat club; same out of luck public.
I lost my daughter to a bad doctor, so I have a hard time telling someone how much they can sue for.
When your anesthesiologist asphyxiates you and your baby in the delivery room because he didn't confirm the nitrous oxide pipe and the oxygen pipe weren't crossed, your family will WANT a lawyer. http://www.apsf.org/resource_center/newsletter/1994/summer/
When your doctor amputates the wrong leg, you won't be getting support or even sympathy from your hospital or the doctor's colleagues. You need a lawyer. http://www.nytimes.com/1995/09/17/us/doctor-who-cut-off-wrong-leg-is-defended-by-colleagues.html
Regarding those physicians practicing defensive medicine to avoid being sued, here are some interesting facts.
In July of 2000, in the Journal of the American Medical Association (JAMA), Dr. Starfield described some shocking statistics for the US health care system:
12,000 - unnecessary surgeries
7,000 - medication errors in hospitals
20,000 - other errors in hospitals
80,000 - infections in hospitals
106,000 - non-error, negative effects of drugs
This total of 225,000 deaths per year (10% of all deaths in 2000) constitutes the 3rd leading cause of death in the United States, after deaths from heart disease and cancer.
Another analysis concluded that between 4% and 18% of patients experience negative effects from medical treatment in outpatient settings, causing:
116 million extra physician visits
77 million extra prescriptions
17 million emergency department visits
8 million hospitalizations
3 million long-term admissions
199,000 additional deaths
From these numbers, it would seem that limiting malpractice awards might be very dangerous to your health. One can only guess that insulating the medical community from punitive lawsuits might drive the number of deaths from medical error even higher.
My approach is to avoid the need for medical care as much as possible. In "The Wellness Project", I describe an experimental program to accomplish that goal, using nature as a template for illness prevention.
Roy Mankovitz, Esq., Director
http://www.MontecitoWellness.com
One way to reduce malpractice lawsuits without giving doctors a free pass to act negligently would be to require hospitals and/or medical licensing boards to take action against the doctor every time it has been determined that he/she acted below the standard of care in a given instance. Although a hospital may revoke a doctor's hospital privileges, that usually requires either gross negligence or multiple instances of acting below the standard of care, and licensing boards seldom revoke a doctor's license for anything other than immoral or criminal acts.
The latest report in July says malpractice cases are down, so are payouts. Insurance companies exist-only to spread the risk. They do not fix your house, your car or your heart. Why do they need 28-30% off the top?
Another question--why do so many people die from medical errors and infections. Seems to me that patients do need some protection. One wonders why, with the influence that physicians have, they have not taken on this issue. A government report on medical errors and infections written in 2000, reads pretty much the same in 2007.
Thirty years in medicine has taught me one thing, most patients that do have a case-- do not sue. People sue when the physician does not admit an error, really damages a patient, or his/her attitude pisses someone off.
So for physicians to continue to practice defensive medicine, for me, speaks to short commings in their training, efforts, or attitudes. If their MALPRACTICE INSURANCE rates are too high, perhaps they should take it up with their FRIENDLY INSURANCE COMPANIES.
And really, there should probably be a sliding scale here. If the doctor could be shown to be drunk while performing surgery, he should have his license revoked immediately.
If it was something that maybe he should have checked, but didn't think it was necessary, then maybe that's 1 strike against him. If it becomes a pattern, then revoke his license.
I'm still in favor of awarding actual damages. I think that a negligent doctor should pay for whatever it takes to fix the problem, or provide a workable solution for the rest of the person's life. So if the person is permanently disabled, the doctor should provide a comfortable living for that person for the remainder of their life (firmly middle class). I do not believe that someone should become independently wealthy because of a medical mistake though.
I agree that the compensation for malpractice should adequately compensate the person for the injury sustained. I suppose that whether the person ends up being "wealthy" depends on the nature and length of the injuries. I guarantee most people would forgo the money rather than incur the injury.
To argue that defensive medicine is not a bad thing is ludicrous. It contributes immensely to increasing and often unnecessary testing, whether it be scans or laboratory tests and malpractice reform would do much to stem this tide.
In contrast, we have approximately 14,000 deaths a year from drunk driving.
And we want to take away the sanctions against medical errors?
Doctors do a fine service, but they are well-compensated for their efforts. It is unconscionable to protect the doctor's car collection at the expense of a paraplegic injured by his or her error. That is what insurance is for.
I have often heard physicians complain that they spend tens of thousands of dollars a year for malpractice coverage. But that is only half the equation. What is their gross income? You can't poormouth unless you are willing to give us all the numbers. And they never do.
I also love the statement that frivolous law suits do not cause substantial court costs. Some studies show that up to 75% of malpractice lawsuits are frivolous, but they can often stretch on for months before finally dismissed. Tell you what. Just give us the English rule (loser pays) and most doctors would be a lot happier!
Believe me, I would have filed had I known all the limitations that would be put on my ability to file! When your suffering and receiving extensive treatments the clock is ticking; if you are struck a second time, the clock is still ticking--it ticks from the time of diagnosis. You know that you might not be in this situation had you been diagnosed earlier when your symptoms were severe enough to seek treatment only to be sent away.
During treatment after treatment, you are in no condition to file for anything--you care only about surviving! Yes, I believe that I was wronged and no I did not get my case heard. I could find NO attorney to take my case because of "statute of limitations." I am very sorry to not have pursued it earlier--had I only understood the consequences of my inaction (pardon me for nearly dying). I believe that I could possibly have saved other lives had my case been heard. When my symtoms began I sought help and I was simply sent away.
This limit on my ability tells me that there are all ready too many limits on an individual to pursue justice and compensation for the financial devastation of loosing my career and nearly my life.
Joy Sayler
4) Finally, most tort reform is a smokescreen that it is hoped will eventuually lead to limits on consumer protections in all economic activities. This must be avoided or else the corporation swill truly own us all!
1) this article is correct that much of "defensive" medicine is actually cautious medicine that should be done to ensure proper care. While it is true that on occasion someone orders a test to prove that something doesn't exist, there is usually either a way for the physician to document why it can't exist, OR the phsyician NEEDS to prove the dangerous condition doesn't exist. The rest of "defensive " medicine is really lazy medicine, doctors using tests and imaging to document what logic and exams could show. The one true cause of defensive medicine is when docs would rather wait for more symptoms to order a test, but are afraid that a lawyer might use that delay against them.
2)The problem for many doctors is that it is difficult to do the job worrying about someone eventually looking over your shoulder and questioning your decisions. But, that is the nature of medicine, and doctors are going to have to learn to live with that. We are spoiled if we think we shouldn't be allowed to judged or critiqued.
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