Representative Phil Gingrey has introduced legislation "to limit medical malpractice awards, arguing that such cases are often frivolous." There is considerable debate as to whether or not medical malpractice awards have any appreciable effect upon national health care costs and the extent to which "frivolous" claims contribute to that cost. But for the purpose of this discussion I am prepared to accept that there are frivolous suits and that they add to the overall cost. Under what other circumstances would we punish persons who have legitimate claims because others have filed frivolous ones? Do we reduce Medicare payments to honest doctors because others have made fraudulent claims? I suspect that Medicare fraud claims both in number and amount exceed frivolous malpractice claims a thousand fold.
The medical profession should be reminded that no medical malpractice case is begun or survives without one of its own members confirming that the defendant doctor or hospital is guilty of malpractice. Lawyers do not make those decisions; doctors do.
As to lawyers, Dr. Gingrey also argues that the system "allows law firms to reap huge percentages of rewards instead of the injured parties who need them the most." If that is truly a concern of the legislation, here is an easy answer to that: Require that the carrier (the doctor) pay the victim's legal fees! Then the victim will receive full recovery. It is difficult to understand how reducing the lawyers fees will, in turn, reduce the amount of awards, since the fee is predicated upon the amount of the award. It likewise merely seems to be a way to punish and discourage lawyers from bringing such suits. (Incidentally, who pays the lawyers for all of those suits that result in judgments for the defendant-doctor? They cannot all be frivolous.)
I recognize that it is an undisputed fact that doctors are giving up or changing the nature of their practice due to rising malpractice insurance premiums. But to me the idea of punishing those with legitimate claims and reducing the awards they would otherwise receive hardly seems a fair way to address the problem. The courts have a mechanism for dealing with excessive verdicts that has the merit of deciding them on a case-by-case basis predicated upon the evidence rather than some arbitrary cap. Better to place a cap on malpractice premiums and require the carriers to justify increases rather than reduce the compensation of those who have been injured. Of the three involved, the victim of malpractice, the doctor or hospital guilty of malpractice and the carrier insuring that guilty doctor or hospital, the victim should not be the first, but rather the last, to be punished.
Question is: Can that format be enacted at Federal level; or this reform can only be done at the state?
Thanks for your response and your insights.
There is no question that some method is needed to address this issue. I think one item that might help is not allowing attorneys to charge more than expenses and a fixed profit. Insurance companies should be fixed to a defined profit and doctors who commit negligent malpractice should be disciplined or have their license removed. Medical is unlike any other service industry so comparisons are useless. Judges can decide law not what is appropriate amount unless they get training in survival care of the patient. Another way is take the big paydays from everyone beyond the necessary expenses. This shouldn't be a way to make big money. If insurance balks at this, provide paid Gov;t insurance, If lawyers balk hand it to legal aide's, The doctors and patients would get what they deserve.
I generally agree with your thesis, with one clarification. I believe that an award of punative damages should be used solely to pay the total lawyers contigency fee (which would be based upon a percentage of the entire award and not merely the punative damages portion), with the balance of any punative damages being given to the state or federal government (depending upon which court they are in). Punative damages do not compensate victims for any harm done, but merely act as a penalty for wrongdoing on the part of the defendant.
However, I must admit to being a biased commentator with a financial stake in the subject matter of this issue. LOL
I fought against Tort Reform in Texas in 2003.
I lead a non-profit that provides support/resources to victims of Professional Se.xual Misconduct. I teach professional boundaries and ethics to offending professionals. I see the damage a professional can do to their patient.
This damage is almost secondary when the victim files a complaint at the medical board and files a medical malpractice lawsuit. The re-victimization by the system is outrageous. MEDICAL MALPRACTICE INSURANCE CARRIERS EXCLUDE SE.XUAL MISCONDUCT FROM COVERAGE, however, provides the finest of defense attorneys.
In Texas, there is no way a victim will prevail in a malpractice lawsuit. If they can even find an attorney to take their case, they do not prevail because of the malpractice insurance exclusion. The professional oftentimes hides assets and attempts to settle cases that once received verdicts and settlements of 1.2MM down to $25 to $70k.
From September to December, 2003 there were 18 malpractice cases filed in Texas. The medical board protects the doctor - not the patient.
After tort reform, Texas saw an increase of doctors moving here in the thousands because Texas offers freedom to harm patients with no consequences. It's quite another story for the damaged patient.
Civil court judges are hearing divorces because their dockets are bare. Defense attorneys that promoted tort reform shot themselves in the foot. Many attorneys changed their practices just to make a living.
You have hit the nail on the head with this article.
In your universe, predatory medical malpractice lawyers should be given a free hand to drive doctors out of the state. I have good news for you--there are quite a few states like that; you should move to them and attempt to get healthcare there. And then sue a doctor--after all, they are out there only to harm the patients, right?
Try finding an Ob-Gyn in rural Pennsylvania.
Texas has restored some sanity into the system.
You sound like you could use a Professional Boundaries and Ethics course yourself, doc.
Monstrous fraud; thousands of unwarranted procedures; drug pushing beyond reason, our H.C. system provides a fertile ground for excess & abuse. Chew on these points for a minute:
1. U.S. DOJ: “the estimated law enforcement cost to police & try criminal doctors & medical fraud, is 1/2 TRILLION dollars/year.” Let's all stop & stare at the zeros: $500,000,000,000
2. 11,000 physicians were found criminally guilty of serious misbehavior in the last decade; Five times as many culpable in civil or ethics hearings
3. 2010 - 2,389 doctors convicted of egregious acts
4. 2009 – 2,490 guilty verdicts, 5,000+ more sanctioned in civil proceedings
When a single New York surgeon can perform & bill for 10,000 unwarranted eye operations; when a pair of heart surgeons can cut open 900+ healthy chests to pad their own bank accounts; when the Michigan medical board chairman utters the words, "Yes, it can take five years to remove a child molester MD," then the only line that comes to mind was spoken on Apollo 13:
"Houston, we have a problem."
This systemic lunacy - and the silence by otherwise ethical peers - continues unabated. So until we weed out the astonishing volume of lab coat idiocy, any talk of “reform” is little more than whistling past the ethical graveyard.
We really need a paramedic mischief investigator here, BTW.
I'd also love to see a paralegal lawyer mischief investigator too.
I am posting, fanning and faving you because what you speak is the truth. I am a victim advocate and lead a national organization for victims of se.xual exploitation/misconduct/abuse by trusted helping professionals. I also teach professional boundaries and ethics to offending professionals (primarily medical professionals). Professional Se.xual Misconduct is one of the most egregious of human offenses and long term emotional damage is done to the patient, client, student, staffer or congregant.
There is one major solution to reducing the number of ethical violations by medical professionals: INCLUDE ETHICS AND PROFESSIONAL BOUNDARIES EDUCATION IN THEIR TRAINING.
We ask for a show of hands at all of our remedial multi-day conferences - in which medical boards, physician health programs, and large hospital and medical practices send the offerenders - of those that have had ethics and professional boundaries education in their training. ZERO HANDS GO UP.
In nearly all states it is a requirement under the medical board rules that a medical professional is considered in violation and can be disciplined if they do not report a colleague for ethical and/or boundary violations. Yet, it rarely occurs. It is only when the patient/victim reports to the board that they confided in a medical professional that the professional will report.
I agree wholeheartedly with you... "Houston, we have a problem."
Thank you for your post!
No need for shame - it isn't your doing, although I certainly feel your exasperation and truly appreciate your comments. The fact is, once this subject hits home & gets personal, people like yourself do indeed, "get it."
I can say that over the last several years I've given about 40 talks on this subject, usually at libraries and bookstores. And when I start, it's easy to see the disbelief on the faces of some in the audience. Most folks just don't want to face the fact that errant physicians - as a sub-group - very likely do more societal damage than any other profession. So they close their minds as tight as they can. Understandable.
And then it's time for facts: the Nat'l Practitioner Data Bank holds files on well over 237,000 doctors. Now, are all of them criminals or incompetent? Of course not. Many ought not be there at all.
But thousands of them are embarrassments to a profession that handles criminals among them, about the same way the Catholic church "disciplines" molester priests.
Take a peak at this ridiculous fact:
http://www.time.com/time/health/article/0,8599,1578074,00.html
Or this one:
http://www.commercialappeal.com/news/2009/feb/05/doctor-convicted-1980s-germantown-murders-arrested/
Or this idiocy:
http://www.pittsburghpamedicalmalpracticeattorney.com/2010/10/doctor-sued-for-malpractice-over-100s-of-unneeded-stents.shtml
So when it comes to our H.C. reform debacle, what on earth did physicians THINK was going to happen?
In Canada, the approach taken is twofold:
1) the general rule in civil litigation is that the losing party is ordered to pay a significant portion of the winning party's reasonable legal fees and disbursements incurred in the litigation; and,
2) the Supreme Court of Canada (SCC) capped the amount of damages for non-pecuniary loss (which are adjusted for inflation).
Through these two mechanisms the legal system has avoided many of the excesses found in the US. Item 1, above, reduces the incentives to file frivolous suites that defendants may settle because the costs of defending those suites are not recoverable and provides a disincentive against one party attempting to "deep pocket" the other party with frivolous motions.
Perhaps you can comment on why the approach you propose is preferred to that taken by the SCC.
The relevant SCC cases are available here:
Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229 http://www.canlii.org/en/ca/scc/doc/1978/1978canlii1/1978canlii1.html
Arnold v. Teno, [1978] 2 S.C.R. 287 http://www.canlii.org/en/ca/scc/doc/1978/1978canlii2/1978canlii2.html
Thornton v. School Dist. No. 57 (Prince George) et al., [1978] 2 S.C.R. 267 http://www.canlii.org/en/ca/scc/doc/1978/1978canlii12/1978canlii12.html
Exactly what we need here in the US.
The reason it does not award 100 percent of legal fees is because it is concerned that it would discourage marginal claims or claims based on unsettled areas of the law from being raised. Note that costs awards are ineffective as a disincentive against frivolous claims made by a judgment proof or irrational party.
When I asked what about pain and sufferring the lawyer told me perhaps 25,000.00 at this point I was going to be owing him instead of gaining something for being damaged by a drug and the doctor that saved my life was willing to testify on my behalf.
I know many people that were damaged by this drug and of course it always comes down to standard of care. In my care it was not there yet my piddly little pension prevented me from suing.
A woman I know in the same province as me had her own business because she could not work anymore she was awarded millions.
Which is why my lawyer said if I lived in the US it would have been much easier. In a sense in Canada it is much harder to sue for medical malpractice our doctors are paid by the govt.
I am sorry to hear about your injury and the experience you had. However, you may have misunderstood what your lawyer told you. In Canada the Supreme Court capped non-pecuniary (pain and suffering) damages in 1978.
As well, the courts in Canada are disinclined to award punitive damages because the policy of the court is that awards of damages are to compensate a loss rather than to punish. Punitive damages can be awarded but the court requires the plaintiff to show that defendant's conduct was "high-handed, malicious, arbitrary or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behaviour."
Although the single-payer health care system in Canada results in lower damage awards that, at least in theory, should have no net effect on the compensation received by the plaintiff because although the damages awarded are lower so too are the medical and rehabilitation costs incurred by the plaintiff.
I assume that your injury occurred many years ago because today, in Ontario, lawyers may accept contingency fees cases except for family and criminal matters provided that the agreement complies with the Solicitors Act.
The Solicitors Act: http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90s15_e.htm
The leading case on punitive damages in Canada, Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595, is available here: http://www.canlii.org/en/ca/scc/doc/2002/2002scc18/2002scc18.html
I wish the lawyer I had hired was as open as you are being in explaining it. I paid $10,0000
just to get him to take the case and 2 weeks before the time was up for me to file a suit he told me that because I had no loss of income it was not worth it. Life is a learning experience if I can tell anyone do not take that drug unless your life depends upoon it I will.
I do apologise if I read the content of the blog the wrong way.
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There is a reference list of physicians who occupation has become "expert witness" and whose skills are in the witness box to manipulate the jury rather than caring for patients. Compensation of these lawyer-appointed "expert witness" is tied to the judgement awarded.
While plaintiff lawyers insist their cause is to go after bad doctors, it is very rare that patients' lawyers seek revocation of medical license of the physician. While other / future patients may be protected, where is the money in that cause?
In addition, a lawyer's duty is to her particular client and not to the public at large. It is the licensing/regulatory body that is responsible for policing those its licenses. In Ontario, where I live, recent amendments to the Rules of Civil Procedure have occurred to address the issue of unduly adversarial experts:
DUTY OF EXPERT
4.1.01 (1) It is the duty of every expert engaged by or on behalf of a party to provide evidence in relation to a proceeding under these rules,
(a) to provide opinion evidence that is fair, objective and non-partisan;
(b) to provide opinion evidence that is related only to matters that are within the expert’s area of expertise; and
(c) to provide such additional assistance as the court may reasonably require to determine a matter in issue. O. Reg. 438/08, s. 8.
Duty Prevails
(2) The duty in subrule (1) prevails over any obligation owed by the expert to the party by whom or on whose behalf he or she is engaged. O. Reg. 438/08, s. 8.
Source: http://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_900194_e.htm
From ASCO (American Society of Clinical Oncology) Post publication.
The way to eliminate frivolous lawsuits and other abuses without limiting patient's and lawyer's right to sue, is a system similar to that in Kansas.
After the lawsuit is filed, under court monitoring, the plaintiff and defendant appoint their own expert witness. The two then select a mutually acceptable expert witness. The three specialists in the field, review the patient's records and determine the basis for malpractice. The three experts receive a state-defined flat reimbursement.
An official report is submitted to the judge and all parties within a month. This ends the years of delay (with its physical and emotional toll), costs of discovery, depositions, and expert witnesses.
The patient has a right to sue. But by this process, all parties-including both lawyers, patient, defendant, and malpractice carriers-officially know the merits of the case. Lawyers will not be going after irrelevant side issues that surface during the discovery process or sue third parties as part of their initial lawsuit to snare all who touched the patient/plaintiff.
The real beneficiaries of medical malpractice are the defense lawyers, who drag the case out ad infinitum, and always come out the winners.
http://asc opost.com/ articles/n ovember-20 10/letter- to-the-edi tor-fixing -medical-m alpractice
First, majority of medical malpractice lawsuits are decided in favor of the defendant (the doctor). Are those the the ‘frivolous’ lawsuits? If not, what lawsuits are ‘frivolous’?
Second, many of the settled lawsuits were settled NOT BECAUSE OF THE MERIT, but only because lawyers are able to drag doctors through the courts for years, and thus force settlement. YOU KNOW THAT, but may not want to admit this. Cases like that result in lost time and immense aggravation for docs. Lawyers know this, and they use this as leverage to force doctors to settle, even though both parties know that the doc did nothing wrong.
Third, sued doctor is in a loose-loose situation. Even if he is found not guilty, he looses time and money in the court, and he has to report this to every medical board in every state he is licensed.
Fourth, by placing the cap on malpractice premium the doctors have to pay to the insurance companies, and by keeping the payments and the number of lawsuits at the same level, you would drive the companies out of business.
Fifth, the ‘pain and suffering’ payments are completely arbitrary. A lawyer may demand an astronomical number, knowing that even if it gets reduced, he will still make a killing. This has to stop.
My credentials:
I’m MD in private practice.
The problem with our legal system is that it is far too easy for lawyers to pursue the routes #2 and #3. In other words, even if doctor did nothing wrong, he/she can still be sued, and loose or be forced to settle. Here are the reasons:
1. Jury is composed of laymen. It is ridiculous to assume that layman without basic medical knowledge can understand the case and draw meaningful conclusions. Jurymen are easily swayed by emotions. A wheelchair with a child with cerebral palsy counts more in court than the most rational medical evidence.
Jurymen often automatically equate bad income with substandard care, because they do not understand medical science.
I spent 12 years studying medicine, yet my malpractice case may be decided by a housewife with zero years of medical education. This has to stop.
2. Laywers abuse the system by filing in courts which are known to be sympathetic to the claimants. They have the power to drag on cases for decades, which gives them tremendous leverage as discussed before. This has to stop.