It is time for me to dust off my blog site and to begin again to post about patient rights. The new Republican Congress has wasted no time in renewing last year’s effort to enact draconian restrictions on the rights of negligently injured patients. In fact, the first new ‘tort reform” bill was introduced on the first day after the new Congress was sworn in and seeks to emasculate patient’s claims by arbitrarily limiting recovery of human suffering damages to $250,000 in all cases. It also seeks to make it more difficult for patients to obtain representation in their cases by severely limiting the contingency fees that attorneys can receive in medical malpractice cases. If the result of the amount you can potentially recover (if you are successful) and the contingency fees you can received (if you are successful) is that you will lose money even if you win, you simply cannot afford to represent the client regardless of the validity of his medical malpractice claim. The result is that the negligently injured patient is effectively denied his day in court to seek just compensation for the harm he has suffered.
But enough about what the new Republican Congress is trying to do. Maybe the best way to pick up on where we left off last year is to remember why medical malpractice lawsuits exist. The lawsuits exist because patients continuie to be badly hurt due to poor medical care. The medical malpractice lawsuits provide the means for injured patients to seek fair compensatation for the harm they have suffered and, by compensating them, an incentive for the health care industry to do a better job by holding them accountablefor their poor medical care.
Hospital Safety Still an Issue: Better Medical Care, Not Tort Reform, Is the Answer
Whether for a check-up, injury or major surgery, we expect to leave the hospital in better shape than when we arrived. Unfortunately, a recent study in the New England Journal of Medicine, is the latest in a series of reports which clearly demonstrates that efforts to improve the safety of our hospitals are failing and poor medical care in the hospital is resulting in countless injuries and numerous deaths each year. The problem in health care costs is not unnecessary and groundless medical malpractice lawsuits. Instead, it is the poor medical care that is continuing to needlessly harm a significant number of patients each year.
The most recent study examined 10 North Carolina hospitals from 2002 to 2007. Records of over 2,300 patients were reviewed at the hospitals during this five year period and researchers uncovered 588 incidents of medical mistakes that resulted in harm to patients. The types of adverse events resulting from medical mistakes varied and included injuries such as falls, low blood pressure, excessive bleeding during surgery and, most commonly, hospital-acquired infections.
A significant portion of the errors were severe. Forty three percent of the adverse events uncovered by the researchers required an extended stay in the hospital. In just over eight percent of the cases, the adverse events were life threatening and in 2.4 percent of the cases, the mistakes caused or contributed to the patient’s death, according to an analysis of the study in The New York Times.
Also of interest was the fact that the researchers did not find a statistically significant decrease in hospital errors over the life of the five year study and instead noted “little evidence of widespread improvement.”
Though the NEJM study focused on one geographic region, the authors of the study were not expecting that other areas of the country were faring any better. In fact, the research notes that North Carolina was selected as the focus of the study because of its “high level of engagement” in efforts to improve patient safety. What this suggests is that , if anything, the extent of medical mistakes and patient harm in hospitals in other parts of our country is likely worse than what the study found.
The New York Times report notes this study is the largest attempt to quantify hospital safety improvement since the Institute of Medicine’s 1999 report. That 1999 report is the one that concluded that hospital errors were injuring one million people and causing 98,000 deaths annually.
Now is not the time to curtail the rights of injured patients. Instead, we should be using our efforts and resources to improve the quality of patient care and let improved care and reduced medical mistakes effectively lower the need for medical malpractice litigation.
Wednesday, February 2, 2011
Monday, March 29, 2010
A Final Look at Tort Reform Until the Next Battle
The health care reform bill that President Obama has now signed into law did not contain tort reform provisions such as caps on damages in medical malpractice cases. Unfortunately, this does not mean the push for tort reform legislation is over. The battlefield now will simply shift back to the State level while we await the mid-term Congressional elections.
Interestingly, the pendulum may be swinging back in favor of victim’s rights on the State level. In February, the Illinois Supreme Court held that the Illinois statute imposing caps on damages in medical malpractice cases was unconstitutional (http://www.state.il.us/court/OPINIONS/SupremeCourt/2010/February/105741.pdf). Then, in March, the Georgia Supreme Court reached the same conclusion about the Georgia medical malpractice damage cap statute (http://www.gasupreme.us/sc-op/pdf/s09a1432.pdf).
“Tort reform” statutes are continuing to be closely scrutinized by Courts because they run counter to our core beliefs of what’s fair and what works. Consider these examples:
1. People are accountable for their own conduct and, if their wrongful conduct causes harm, they should be responsible for the harm they have caused.
2. People should pay what they owe.
3. Money is a motivator that should be used to encourage good conduct and deter wrongful conduct, not the reverse.
4. The ability to enjoy life is important.
5. All human beings are entitled to be treated with dignity.
6. There is no privileged class in America
7. Our fellow citizens from our local community are better suit to make decisions on what’s fair for our local community than our politicians in Washington, D.C. or our State capitals.
Most of these fundamental beliefs are reflected in our Constitution. Statutory caps on damages in medical malpractice cases are inconsistent with each one of these beliefs.
Caps substitute an artificial amount of compensation for the fair compensation that a jury has determined a wrongdoer owes for the harms his wrongful conduct has caused. By so doing, damage caps relieve wrongdoers of accountability for at least part of the harm their wrongful conduct has caused another person. When the actual harm is horrendous, as is often true in medical malpractice cases, and the maximum damage cap is $250,000 , it is the major part of the harm wrongdoers have caused for which they are no longer responsible.
Caps on damages in medical malpractice cases dilute the motivational ability of money to improve conduct. Consider for example, a case where poor medical care in a hospital has resulted in a patient suffering $2,000,000 of harm. What will motivate the hospital more to seek ways to prevent the recurrence of that same poor medical care in the future-----being required to compensate the patient $2,000,000 for his or her entire loss, or being required to only pay $250,000?
Caps denigrate the value of being able to enjoy life. It is the determination of the amount needed to fairly compensation an injured person for his or her loss of the ability to pursue happiness and enjoy life that the statutory caps on damages undercuts and reduces to a artificial, predetermined, fixed amount.
Caps are a slap in the face to a segment of our society----the victims of medical malpractice. Having gone through a lengthy and costly court battle to right a wrong and receive compensation for the harms they have suffered, the victims of medical malpractice are told at the end of the day that their harms and losses don’t count and what they have gone through doesn’t matter. The message being sent by reducing their fair compensation to some artificial figure is nothing short of “So what! You are a loser and your loss is not important!”
Caps on damages in medical malpractice cases establish a privileged class in our country where there are not suppose to be any Kings or Queens. With caps, the members of the health care profession become special people with special entitlements that no one else has----the right to be relieved of paying what they owe; the right to be unaccountable for the harm their wrongful conduct has caused.
Finally, our Constitution guarantees us the right to a jury trial in civil and criminal cases because our Founding Fathers believed it to be the fairest way for decisions affecting our lives to be made and because they also believed it was needed to protects us from the power of our elected politicians . Yet, caps achieve the exact opposite result. Caps substitute the arbitrary decision of powerful politicians as to what’s fair for the judgment of a jury of peers drawn from our local community which has considered all the relevant evidence.
Caps aren’t fair and they have no legitimate place in our country.
Interestingly, the pendulum may be swinging back in favor of victim’s rights on the State level. In February, the Illinois Supreme Court held that the Illinois statute imposing caps on damages in medical malpractice cases was unconstitutional (http://www.state.il.us/court/OPINIONS/SupremeCourt/2010/February/105741.pdf). Then, in March, the Georgia Supreme Court reached the same conclusion about the Georgia medical malpractice damage cap statute (http://www.gasupreme.us/sc-op/pdf/s09a1432.pdf).
“Tort reform” statutes are continuing to be closely scrutinized by Courts because they run counter to our core beliefs of what’s fair and what works. Consider these examples:
1. People are accountable for their own conduct and, if their wrongful conduct causes harm, they should be responsible for the harm they have caused.
2. People should pay what they owe.
3. Money is a motivator that should be used to encourage good conduct and deter wrongful conduct, not the reverse.
4. The ability to enjoy life is important.
5. All human beings are entitled to be treated with dignity.
6. There is no privileged class in America
7. Our fellow citizens from our local community are better suit to make decisions on what’s fair for our local community than our politicians in Washington, D.C. or our State capitals.
Most of these fundamental beliefs are reflected in our Constitution. Statutory caps on damages in medical malpractice cases are inconsistent with each one of these beliefs.
Caps substitute an artificial amount of compensation for the fair compensation that a jury has determined a wrongdoer owes for the harms his wrongful conduct has caused. By so doing, damage caps relieve wrongdoers of accountability for at least part of the harm their wrongful conduct has caused another person. When the actual harm is horrendous, as is often true in medical malpractice cases, and the maximum damage cap is $250,000 , it is the major part of the harm wrongdoers have caused for which they are no longer responsible.
Caps on damages in medical malpractice cases dilute the motivational ability of money to improve conduct. Consider for example, a case where poor medical care in a hospital has resulted in a patient suffering $2,000,000 of harm. What will motivate the hospital more to seek ways to prevent the recurrence of that same poor medical care in the future-----being required to compensate the patient $2,000,000 for his or her entire loss, or being required to only pay $250,000?
Caps denigrate the value of being able to enjoy life. It is the determination of the amount needed to fairly compensation an injured person for his or her loss of the ability to pursue happiness and enjoy life that the statutory caps on damages undercuts and reduces to a artificial, predetermined, fixed amount.
Caps are a slap in the face to a segment of our society----the victims of medical malpractice. Having gone through a lengthy and costly court battle to right a wrong and receive compensation for the harms they have suffered, the victims of medical malpractice are told at the end of the day that their harms and losses don’t count and what they have gone through doesn’t matter. The message being sent by reducing their fair compensation to some artificial figure is nothing short of “So what! You are a loser and your loss is not important!”
Caps on damages in medical malpractice cases establish a privileged class in our country where there are not suppose to be any Kings or Queens. With caps, the members of the health care profession become special people with special entitlements that no one else has----the right to be relieved of paying what they owe; the right to be unaccountable for the harm their wrongful conduct has caused.
Finally, our Constitution guarantees us the right to a jury trial in civil and criminal cases because our Founding Fathers believed it to be the fairest way for decisions affecting our lives to be made and because they also believed it was needed to protects us from the power of our elected politicians . Yet, caps achieve the exact opposite result. Caps substitute the arbitrary decision of powerful politicians as to what’s fair for the judgment of a jury of peers drawn from our local community which has considered all the relevant evidence.
Caps aren’t fair and they have no legitimate place in our country.
Sunday, January 31, 2010
Doctors and Attorneys Can Be Friends—Part II
For those of you who have not read the comments of Dr. Kaufman to my last post, “Doctors and Attorneys Can Be Friends”, I recommend that you take a moment to do so. It is a thoughtful comment spoken from the heart by someone who clearly seems to be a caring physician. We don’t see things quite the same way but I may have found a friend! Dr. Kaufman’s comments are at least an opportunity to further identify some of what our two professions have in common.
Dr. Kaufman writes that he is a physician because: “Helping people is priceless and is the only reason left for choosing a career in medicine.” As it turns out, I chose medical malpractice plaintiff’s work as the focus of my practice for the same reason.--the opportunity to help people who are really in need of assistance and can’t otherwise afford it.” And neither Dr. Kaufman nor I are alone or exceptions in our respective practices. Yet both of us have colleagues who portray each other’s profession as an unholy group of uncaring cads who are more interested in their stock portfolios, golf games, and fancy automobiles than their patients or their clients. This decade should be more about civility and understanding between our two professions and less about malicious characterizations.
Dr. Kaufman wants me to concede that: “Frivolous lawsuits against physicians are real and they are a real problem, hiking up our med malpractice insurance and eroding our income.” I concede the first part--that frivolous lawsuits are real. Not only are they real but the medical malpractice plaintiffs’ bar dislikes them just as does the medical profession. Frivolous medical malpractice law suits give my profession a bad name. They serve to alienate the medical profession, the judges who hear them, and the general public when a frivolous law suit receives publicity. I’m sure it’s the same for the medical profession and that good physicians shudder when they read a news report of a surgeon who has cut off the wrong leg or an internal medicine physician who has used his office as a source of narcotics for users and dealers. In each instance our respective professions are being done a disservice and we each might do better policing our own if our two professions were more collaborative and shared thinking about such subjects instead of crowing over each other’s embarrassments.
But I don’t subscribe to the second part of Dr. Kaufmans’s statement that frivolous law suits are the “real problem” behind high malpractice insurance rates and the erosion of physicians’ income. I believe frivolous lawsuits are the exception, not the rule, and I do not believe there is any solid data to support Dr. Kaufman’s conclusion. So I would ask Dr. Kaufman to come half way and meet me in the middle on this. Join me in advocating for the creation of an impartial panel to investigate and provide an objective, unbiased assessment of these issues.
Finally, when you read what Dr. Kaufman wrote about “defensive medicine’, you don’t get the impression he is a doctor who is ordering unnecessary tests on patients he sees in his emergency room, particularly ones that expose the patient to risks over the long haul, because he is thinking about his own skin and protecting himself against a future law suit. Do Dr. Kaufman and other ER physician end up ordering tests that are ‘unnecessary”? Of course, but at least for the good and caring physicians it’s not because of a calculated decision about what will best serve their own personal well being. They don’t have the time to engage in that type of extraneous thinking as they deal with the needs of their patients. And I simply have too much respect for the medical profession to believe that there are any more than a handful of physicians who are regularly placing the welfare of their patient second to their own well being as they practice their profession.
Dr. Kaufman writes that he is a physician because: “Helping people is priceless and is the only reason left for choosing a career in medicine.” As it turns out, I chose medical malpractice plaintiff’s work as the focus of my practice for the same reason.--the opportunity to help people who are really in need of assistance and can’t otherwise afford it.” And neither Dr. Kaufman nor I are alone or exceptions in our respective practices. Yet both of us have colleagues who portray each other’s profession as an unholy group of uncaring cads who are more interested in their stock portfolios, golf games, and fancy automobiles than their patients or their clients. This decade should be more about civility and understanding between our two professions and less about malicious characterizations.
Dr. Kaufman wants me to concede that: “Frivolous lawsuits against physicians are real and they are a real problem, hiking up our med malpractice insurance and eroding our income.” I concede the first part--that frivolous lawsuits are real. Not only are they real but the medical malpractice plaintiffs’ bar dislikes them just as does the medical profession. Frivolous medical malpractice law suits give my profession a bad name. They serve to alienate the medical profession, the judges who hear them, and the general public when a frivolous law suit receives publicity. I’m sure it’s the same for the medical profession and that good physicians shudder when they read a news report of a surgeon who has cut off the wrong leg or an internal medicine physician who has used his office as a source of narcotics for users and dealers. In each instance our respective professions are being done a disservice and we each might do better policing our own if our two professions were more collaborative and shared thinking about such subjects instead of crowing over each other’s embarrassments.
But I don’t subscribe to the second part of Dr. Kaufmans’s statement that frivolous law suits are the “real problem” behind high malpractice insurance rates and the erosion of physicians’ income. I believe frivolous lawsuits are the exception, not the rule, and I do not believe there is any solid data to support Dr. Kaufman’s conclusion. So I would ask Dr. Kaufman to come half way and meet me in the middle on this. Join me in advocating for the creation of an impartial panel to investigate and provide an objective, unbiased assessment of these issues.
Finally, when you read what Dr. Kaufman wrote about “defensive medicine’, you don’t get the impression he is a doctor who is ordering unnecessary tests on patients he sees in his emergency room, particularly ones that expose the patient to risks over the long haul, because he is thinking about his own skin and protecting himself against a future law suit. Do Dr. Kaufman and other ER physician end up ordering tests that are ‘unnecessary”? Of course, but at least for the good and caring physicians it’s not because of a calculated decision about what will best serve their own personal well being. They don’t have the time to engage in that type of extraneous thinking as they deal with the needs of their patients. And I simply have too much respect for the medical profession to believe that there are any more than a handful of physicians who are regularly placing the welfare of their patient second to their own well being as they practice their profession.
Sunday, January 10, 2010
Doctors and Attorneys Can Be Friends
If farmers and cowboys can be friends, why can’t doctors and attorneys? If both sides would take a step back, they might realize they have a lot in common. It would be refreshing if we declare posturing out for 2010 and working to find common solutions in as we start a new decade.
For example, Plaintiff’s attorneys are interested in finding more economical and efficient means of resolving medical malpractice claims. Sound familiar? It’s one of the leading arguments advanced by doctors for “tort reform”. Why don’t both sides stop huffing and puffing about the value or evils of tort reform and spend time together trying to identify ways that both sides can support that will help reduce the costs and time involved in resolving medical malpractice claims.
Doctors hate the fact that all settlements of medical malpractice claims must be reported to a federal agency and become part of a national data bank. It may surprise the medical profession but many plaintiff’s attorneys feel the same way, including me. I will discuss why this reporting requirement should be abolished in a later blog. For now, it serves as an example of where the interests of doctors and plaintiff’s attorneys overlap and where a combined effort to achieve a common goal could make a difference.
Are doctors prematurely leaving their practices because of the high cost of medical malpractice insurance? Many doctors claim this is so. Plaintiff’s attorneys do not agree or are at least not sure. But, if it is so, it is not something that plaintiff’s attorneys either seek or desire. Plaintiff’s attorneys have the same medical problems as everyone else and need doctors to deliver our babies, to see our loved ones in the emergency room, and to monitor our health through annual physical exams.
Instead of arguing, why can’t doctors and attorneys join forces to insist that a thorough and objective investigation be undertaken to definitively determine the reason for the exorbitant costs of medical malpractice insurance? Is it due to price gouging by a very unregulated industry? Is it the result of poor management and investment decisions within the insurance industry? Or is it a reflection of the cost of defending and resolving malpractice claims as the nsurance industry claims?
Having found the answer to that question, doctors and attorneys can then work together to solve the underlying problem, whatever it may be, and bring doctors'insurance premiums down to reasonable levels.
Doctors and attorneys can be friends. If they would, they could accomplish a great deal in the next decade, unlike the decade past.
Happy New Year.
For example, Plaintiff’s attorneys are interested in finding more economical and efficient means of resolving medical malpractice claims. Sound familiar? It’s one of the leading arguments advanced by doctors for “tort reform”. Why don’t both sides stop huffing and puffing about the value or evils of tort reform and spend time together trying to identify ways that both sides can support that will help reduce the costs and time involved in resolving medical malpractice claims.
Doctors hate the fact that all settlements of medical malpractice claims must be reported to a federal agency and become part of a national data bank. It may surprise the medical profession but many plaintiff’s attorneys feel the same way, including me. I will discuss why this reporting requirement should be abolished in a later blog. For now, it serves as an example of where the interests of doctors and plaintiff’s attorneys overlap and where a combined effort to achieve a common goal could make a difference.
Are doctors prematurely leaving their practices because of the high cost of medical malpractice insurance? Many doctors claim this is so. Plaintiff’s attorneys do not agree or are at least not sure. But, if it is so, it is not something that plaintiff’s attorneys either seek or desire. Plaintiff’s attorneys have the same medical problems as everyone else and need doctors to deliver our babies, to see our loved ones in the emergency room, and to monitor our health through annual physical exams.
Instead of arguing, why can’t doctors and attorneys join forces to insist that a thorough and objective investigation be undertaken to definitively determine the reason for the exorbitant costs of medical malpractice insurance? Is it due to price gouging by a very unregulated industry? Is it the result of poor management and investment decisions within the insurance industry? Or is it a reflection of the cost of defending and resolving malpractice claims as the nsurance industry claims?
Having found the answer to that question, doctors and attorneys can then work together to solve the underlying problem, whatever it may be, and bring doctors'insurance premiums down to reasonable levels.
Doctors and attorneys can be friends. If they would, they could accomplish a great deal in the next decade, unlike the decade past.
Happy New Year.
Monday, December 14, 2009
The Right to the Pursuit of Happiness
“Pain" and "suffering” have become dirty words in America. Through an artfully constructed, decades-old, public relations campaign lead by the insurance industry and its allies, "pain and suffering" has become a phrase that the American public now subconsciously associates with "malingering,” and “exaggeration.” As a result, many people have no problem with the Republican proposal to place a $250,000 cap on non-economic damages in medical malpractice cases since it would only compromise damages for harms that fall within the category of “pain and suffering” while allowing economic damages to remain intact. The current effort for a federal cap on damages will apparently fail but the issue is not dead as caps on damages remains a primary goal of the insurance and medical profession tort reformists.
Is severely restricting compensation for non-economic harms consistent with the core values of our society? To consider this question, we have to move beyond thinking about non-economic damages in terms of “pain and suffering”, both because of the bias the term triggers and the fact that it does not fairly represent the category of harm that the insurance industry and the Republican Party seek to marginalize.
So let’s use "the pursuit of happiness". It’s a more comprehensive and accurate term for the important intangible things patients lose in medical malpractice cases , in addition to losing the ability to earn money. For example, if due to medical negligence you are left with severe pain in your fingers that prohibits you from earning a living with your hands it is a terrible economic loss. But if the severe pain in your fingers also prevents you from playing the piano or the guitar - something you have done on a daily basis your whole life - and you can no longer play catch with your children, play golf or tennis or football or baseball with your friends and you cannot squeeze the hand of your loved one, the pain itself is really just a small part of the picture. The more important loss is how the pain that should never have been interferes not only with your ability to earn a living but also with your ability to engage in those activities that bring you peace, pleasure and happiness in your life.
Are not the workplace loss and the pursuit of happiness loss of equal importance? Do we not in our country value the freedom to pursue happiness as much as we value the freedom to make money? And what is the ultimate goal of work? To provide for our basic needs, of course, but is it not also to provide us with the means to enjoy life. What do we cherish the most? Is it our Mondays through Fridays or our weekends, when we can chose to do what we want to do that is of interest to us and provides us with personal happiness?
The importance in our social values of our right to pursue happiness is demonstrated by its specific reference in our Constitution---the right to “life, liberty and the pursuit of happiness”.
How is it that a value our Founding Fathers felt was important enough to recognize in our Constitution could become so cheapened that today it only warrants a $250,000 price tag if it is completely and wrongfully taken away from us?
As Fagan said in Oliver, “I think I better think this out again.”
Is severely restricting compensation for non-economic harms consistent with the core values of our society? To consider this question, we have to move beyond thinking about non-economic damages in terms of “pain and suffering”, both because of the bias the term triggers and the fact that it does not fairly represent the category of harm that the insurance industry and the Republican Party seek to marginalize.
So let’s use "the pursuit of happiness". It’s a more comprehensive and accurate term for the important intangible things patients lose in medical malpractice cases , in addition to losing the ability to earn money. For example, if due to medical negligence you are left with severe pain in your fingers that prohibits you from earning a living with your hands it is a terrible economic loss. But if the severe pain in your fingers also prevents you from playing the piano or the guitar - something you have done on a daily basis your whole life - and you can no longer play catch with your children, play golf or tennis or football or baseball with your friends and you cannot squeeze the hand of your loved one, the pain itself is really just a small part of the picture. The more important loss is how the pain that should never have been interferes not only with your ability to earn a living but also with your ability to engage in those activities that bring you peace, pleasure and happiness in your life.
Are not the workplace loss and the pursuit of happiness loss of equal importance? Do we not in our country value the freedom to pursue happiness as much as we value the freedom to make money? And what is the ultimate goal of work? To provide for our basic needs, of course, but is it not also to provide us with the means to enjoy life. What do we cherish the most? Is it our Mondays through Fridays or our weekends, when we can chose to do what we want to do that is of interest to us and provides us with personal happiness?
The importance in our social values of our right to pursue happiness is demonstrated by its specific reference in our Constitution---the right to “life, liberty and the pursuit of happiness”.
How is it that a value our Founding Fathers felt was important enough to recognize in our Constitution could become so cheapened that today it only warrants a $250,000 price tag if it is completely and wrongfully taken away from us?
As Fagan said in Oliver, “I think I better think this out again.”
Monday, November 30, 2009
Reducing Health Care Costs Through Tort Reform—A Myth Not A Reality.
The idea that tort reform, specifically caps on the amount of money paid to satisfy medical malpractice claims, would reduce health care costs is a myth. Instead of saving the average American money, these caps will simply increase the profits of the already wealthy medical malpractice insurance industry.
Reducing the amount that has to be paid to satisfy medical malpractice claims does not reduce the cost of health care in our country. It does not even reduce the costs health care providers incur in providing health care. Defending and resolving medical malpractice claims is not part of the business of health care—instead, it is part and parcel of the medical malpractice insurance business. Reducing the amount spent to pay judgments and settle claims by putting a cap on what a medical malpractice victim can recover simply reduces the medical malpractice insurance industry’s cost of doing business and increases its profit. The cost doctors and hospitals incur relating to medical malpractice claims is not the actual cost involved in doing so, but the premium doctors and hospitals pay the medical malpractice insurance companies for shielding them from those claims.
Take, for example, a patient who would normally be entitled to receive $2,000,000 as compensation for the harm he has suffered due to a hospital’s medical negligence. If there is a $250,000 cap on medical malpractice damages, the cost of resolving that patient’s claim has just been reduced by $1,750,000. That’s a pretty significant savings but it is just a savings to the medical malpractice insurance company who insures the hospital. It only indirectly impacts the hospital’s cost of doing business if the medical malpractice insurance industry decides to share the windfall profit by a reducing its premiums and thereby allow some of its profits to trickle down to its insured doctors and hospitals.
But with enactment of a cap on damages, the medical malpractice insurance industry most likely would keep all or at least the bulk of its windfall savings rather than let them trickle down. Medical malpractice insurance, after all, is a business and the goal of any business is to make as much profit as it can. There is also nothing to stop the insurance companies from pocketing 100% of the savings. The legislation to cap damages offered by the advocates of tort reform does not contain any requirement that the medical malpractice insurance industry identify the amount of savings it receives from those caps and pass that savings on to the medical profession via a reduction in insurance premiums. There also is no “market” pressure on the insurancde companies to pass along savings since there is so little competition in the medical malpractice insurance industry. The industry is exempt from federal anti-trust and price fixing laws that apply to almost all other businesses in our country.
Imagine the discussion in the corporate boardroom of a medical malpractice insurance company after enactment of federal tort reform legislation that placed a $250,000 cap on damages. The discussion would come down to something along the lines of “Shall we keep the money we are going to save or shall we reduce our premiums? Let’s see, keep the money, reduce the premiums, keep the money, reduce the premiums…..” Tough decision but the common sense guess is that the vote will be to keep the money.
Even in the unlikely event that the medical malpractice insurance industry decided to reduce its premiums a tad and allow some of its new found profit to trickle down to the medical profession, you and I as the ultimate consumers of health care are not going to benefit from it. All that would happen is that the insured hospital's and physician's cost of doing business would decrease by the amount of the decrease in the premiums they had to pay and in turn result in an increase in the profits of the hospital and physician.
We would need a second trickle down before any real difference to national cost of health care could happen. The hospitals and doctors would in turn have to voluntarily decide to reduce their medical fees and thereby pass their cost of doing business savings on to their patients. It is easy to imagine a corporate boardroom scene similar to the one described above except this time it is the boardroom of a large hospital whose medical malpractice insurance premiums have just been reduced. “Shall we keep the money we are going to save or shall we reduce our fees? Let’s see, keep the money, reduce our fees, keep the money, reduce our fees…..” Tough decision but the common sense guess is that the vote again will be to keep the money.
A cap on damages in a medical malpractice case is legislation that directly benefits only the insurance industry. It has nothing to do with the cost of health care unless you assume that two major for profit businesses (medical malpractice insurance and the medical health industry) will both voluntarily chose to decline the windfall profit they would realize from a federal cap on damages and pass the savings on for the common good. You don’t have to be a cynic, only a realist, to conclude that any cost savings realized from a cap on damages is only going to line the pockets of the medical malpractice insurance industry.
Reducing the amount that has to be paid to satisfy medical malpractice claims does not reduce the cost of health care in our country. It does not even reduce the costs health care providers incur in providing health care. Defending and resolving medical malpractice claims is not part of the business of health care—instead, it is part and parcel of the medical malpractice insurance business. Reducing the amount spent to pay judgments and settle claims by putting a cap on what a medical malpractice victim can recover simply reduces the medical malpractice insurance industry’s cost of doing business and increases its profit. The cost doctors and hospitals incur relating to medical malpractice claims is not the actual cost involved in doing so, but the premium doctors and hospitals pay the medical malpractice insurance companies for shielding them from those claims.
Take, for example, a patient who would normally be entitled to receive $2,000,000 as compensation for the harm he has suffered due to a hospital’s medical negligence. If there is a $250,000 cap on medical malpractice damages, the cost of resolving that patient’s claim has just been reduced by $1,750,000. That’s a pretty significant savings but it is just a savings to the medical malpractice insurance company who insures the hospital. It only indirectly impacts the hospital’s cost of doing business if the medical malpractice insurance industry decides to share the windfall profit by a reducing its premiums and thereby allow some of its profits to trickle down to its insured doctors and hospitals.
But with enactment of a cap on damages, the medical malpractice insurance industry most likely would keep all or at least the bulk of its windfall savings rather than let them trickle down. Medical malpractice insurance, after all, is a business and the goal of any business is to make as much profit as it can. There is also nothing to stop the insurance companies from pocketing 100% of the savings. The legislation to cap damages offered by the advocates of tort reform does not contain any requirement that the medical malpractice insurance industry identify the amount of savings it receives from those caps and pass that savings on to the medical profession via a reduction in insurance premiums. There also is no “market” pressure on the insurancde companies to pass along savings since there is so little competition in the medical malpractice insurance industry. The industry is exempt from federal anti-trust and price fixing laws that apply to almost all other businesses in our country.
Imagine the discussion in the corporate boardroom of a medical malpractice insurance company after enactment of federal tort reform legislation that placed a $250,000 cap on damages. The discussion would come down to something along the lines of “Shall we keep the money we are going to save or shall we reduce our premiums? Let’s see, keep the money, reduce the premiums, keep the money, reduce the premiums…..” Tough decision but the common sense guess is that the vote will be to keep the money.
Even in the unlikely event that the medical malpractice insurance industry decided to reduce its premiums a tad and allow some of its new found profit to trickle down to the medical profession, you and I as the ultimate consumers of health care are not going to benefit from it. All that would happen is that the insured hospital's and physician's cost of doing business would decrease by the amount of the decrease in the premiums they had to pay and in turn result in an increase in the profits of the hospital and physician.
We would need a second trickle down before any real difference to national cost of health care could happen. The hospitals and doctors would in turn have to voluntarily decide to reduce their medical fees and thereby pass their cost of doing business savings on to their patients. It is easy to imagine a corporate boardroom scene similar to the one described above except this time it is the boardroom of a large hospital whose medical malpractice insurance premiums have just been reduced. “Shall we keep the money we are going to save or shall we reduce our fees? Let’s see, keep the money, reduce our fees, keep the money, reduce our fees…..” Tough decision but the common sense guess is that the vote again will be to keep the money.
A cap on damages in a medical malpractice case is legislation that directly benefits only the insurance industry. It has nothing to do with the cost of health care unless you assume that two major for profit businesses (medical malpractice insurance and the medical health industry) will both voluntarily chose to decline the windfall profit they would realize from a federal cap on damages and pass the savings on for the common good. You don’t have to be a cynic, only a realist, to conclude that any cost savings realized from a cap on damages is only going to line the pockets of the medical malpractice insurance industry.
Saturday, November 21, 2009
Mammogram Preventive Service Task Force: Can’t See The Trees For The Forest
I intended to stay focused on issues related to tort reform until we got past the latest effort to pass federal tort reform legislation. But the pronouncements this week by the Task Force on screening for breast cancer changed my mind.
I have not had breast cancer although men do suffer from this disease. But I know breast cancer as a husband, a brother, a friend, and an attorney for breast cancer clients in my medical malpractice law practice. So I have known women who have died from breast cancer and I know both women who are living with metastatic spread of breast cancer with the likelihood of dying from it and women who are breast cancer survivors without evidence of recurrence. From my vantage point the Task Force recommendations are simply outrageous.
The Task Force report has a number of serious flaws. The most glaring is in its central recommendation which is to cut back on mammogram screening for women over 50 from once a year to every other year. The Task Force tries to portray its recommended 50% reduction in mammogram screening as being innocuous by pointing out that the screening every two years would still produce 81% of the benefits in mortality reduction that annual screening produces. At first blush, the Task Force Recommendation almost sounds reasonable. However, as always the devil is in the details.
The flip side of 81% is 19%. What does a loss of 19% of the benefit of annual mammogram screening mean in human terms? The Task Force acknowledges that annual mammogram screening results in a 15% reduction in breast cancer mortality. Based on the most recent information available, approximately 40,480 women are dying each year in our country from breast cancer. That means that annual screening saves the lives of approximately 6,000 women each year. Losing 19% of the benefit of annual screening by reducing screening to every two years would mean approximately 1,150 women will die from breast cancer annually who would otherwise have survived.
That’s a lot of women.
What was going on with the Task Force that losing the lives of 1,150 women does not give them pause? Part of the answer lies in the composition of the Task Force’s 15 member Panel. There was not a single board certified oncologist and only one board certified gynecologist on the Task Force Panel which, of course, was considering important oncology and gynecology issues. There were even more pediatricians on this breast cancer screening Task Force (2) than the combined total number of oncologists and gynecologists (1). Go figure.
This Task Force was overwhelmingly dominated by Public Health and Epidemiologist experts who are great at crunching numbers, doing statistical regression analyses, and preparing fancy charts. But in the process of looking at the “big picture”, they lost sight of the trees because of the forest. The Task Force needed clinicians to provide a broader perspective, physicians who are in the trenches treating women with cancer on a daily basis and who care about the tress, not just the forest. Unfortunately, whoever appointed this Panel failed to appoint clinicians from the appropriate fields of medicine to provide the balance the Task Force needed.
Is it important to reduce the overall amount of money being spent for screening mammograms in our country by 50% in order to achieve a better cost- benefit for saving lives from breast cancer? Maybe, but if so, why didn’t the Task Force focus on reducing the prices being charged for mammogram screening instead of reducing screenings by 50%? Do mammograms have to be so expensive? Are mammograms one of the cash cows of the hospitals’ radiology departments? Are the profit margins for mammograms so out of line that what is being charged for them represents price gouging? And why do mammograms in the United States cost so much more than they do, say, in Japan?
And, finally, the Task Force’s suggestion that saving women from the anxiety of waiting for the results of a breast biopsy is on the same plane as saving women’s lives is an insult. Aren’t we way past the paternalistic attitude that we need to protect ‘the little woman” from anxiety” least she wither and faint?
Women handle the stress that comes from demanding careers in industries and professions that still discriminate against them and from being advocates for their children in school and health care systems that fight them every step of the way. Worrying for a few weeks over whether you may have breast cancer while you wait for your biopsy results is not what any woman wants to do. But most women I believe would rather worry for a few weeks over a biopsy than stick their heads in the sand and pretend that life is free of worry when it is not.
I have not had breast cancer although men do suffer from this disease. But I know breast cancer as a husband, a brother, a friend, and an attorney for breast cancer clients in my medical malpractice law practice. So I have known women who have died from breast cancer and I know both women who are living with metastatic spread of breast cancer with the likelihood of dying from it and women who are breast cancer survivors without evidence of recurrence. From my vantage point the Task Force recommendations are simply outrageous.
The Task Force report has a number of serious flaws. The most glaring is in its central recommendation which is to cut back on mammogram screening for women over 50 from once a year to every other year. The Task Force tries to portray its recommended 50% reduction in mammogram screening as being innocuous by pointing out that the screening every two years would still produce 81% of the benefits in mortality reduction that annual screening produces. At first blush, the Task Force Recommendation almost sounds reasonable. However, as always the devil is in the details.
The flip side of 81% is 19%. What does a loss of 19% of the benefit of annual mammogram screening mean in human terms? The Task Force acknowledges that annual mammogram screening results in a 15% reduction in breast cancer mortality. Based on the most recent information available, approximately 40,480 women are dying each year in our country from breast cancer. That means that annual screening saves the lives of approximately 6,000 women each year. Losing 19% of the benefit of annual screening by reducing screening to every two years would mean approximately 1,150 women will die from breast cancer annually who would otherwise have survived.
That’s a lot of women.
What was going on with the Task Force that losing the lives of 1,150 women does not give them pause? Part of the answer lies in the composition of the Task Force’s 15 member Panel. There was not a single board certified oncologist and only one board certified gynecologist on the Task Force Panel which, of course, was considering important oncology and gynecology issues. There were even more pediatricians on this breast cancer screening Task Force (2) than the combined total number of oncologists and gynecologists (1). Go figure.
This Task Force was overwhelmingly dominated by Public Health and Epidemiologist experts who are great at crunching numbers, doing statistical regression analyses, and preparing fancy charts. But in the process of looking at the “big picture”, they lost sight of the trees because of the forest. The Task Force needed clinicians to provide a broader perspective, physicians who are in the trenches treating women with cancer on a daily basis and who care about the tress, not just the forest. Unfortunately, whoever appointed this Panel failed to appoint clinicians from the appropriate fields of medicine to provide the balance the Task Force needed.
Is it important to reduce the overall amount of money being spent for screening mammograms in our country by 50% in order to achieve a better cost- benefit for saving lives from breast cancer? Maybe, but if so, why didn’t the Task Force focus on reducing the prices being charged for mammogram screening instead of reducing screenings by 50%? Do mammograms have to be so expensive? Are mammograms one of the cash cows of the hospitals’ radiology departments? Are the profit margins for mammograms so out of line that what is being charged for them represents price gouging? And why do mammograms in the United States cost so much more than they do, say, in Japan?
And, finally, the Task Force’s suggestion that saving women from the anxiety of waiting for the results of a breast biopsy is on the same plane as saving women’s lives is an insult. Aren’t we way past the paternalistic attitude that we need to protect ‘the little woman” from anxiety” least she wither and faint?
Women handle the stress that comes from demanding careers in industries and professions that still discriminate against them and from being advocates for their children in school and health care systems that fight them every step of the way. Worrying for a few weeks over whether you may have breast cancer while you wait for your biopsy results is not what any woman wants to do. But most women I believe would rather worry for a few weeks over a biopsy than stick their heads in the sand and pretend that life is free of worry when it is not.
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