Most lawsuits against doctors are over bad outcomes, not malpractice

From South Carolina:

Many physicians acknowledge that their profession has not done enough to reduce medical errors. They argue, correctly, that lawsuits are not the best way to solve the problem: Most lawsuits against doctors are over bad outcomes, not malpractice; and most cases of actual malpractice don’t result in lawsuits, or in any other punitive action. But simply supporting new procedures aimed at systemic errors or wishing the lawsuits would go away isn’t a sufficient answer to the problem. As long as the state operates a self-policing system for physicians, its primary goal should be to discipline that tiny minority of doctors whose carelessness or incompetence truly poses a risk to patients.

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"The best thing I have ever done"

Anecdotal evidence about malpractice driving physician movement from the Yale alumni mag (via pointoflaw.com):

If people tell you tort reform isn't important, don't believe them. The
contrast between practicing in a highly litigious area versus a low one is
incredible. While I knew it was taking a toll on my life and affecting my
practice style, I had no idea how much until I got out here. Using my clinical
judgment without the threat of second-guessing and Monday-morning quarterbacking
not only improves care, but also drastically cuts down on CYA testing. It's
great to be a doctor rather than a fearful technician wondering from where the
next hit is coming. ...

There are 2 other similar stories

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Medical Courts

I'm a little late in getting to this, but an interesting debate is taking place at Legal Affairs magazine:

George W. Bush is pushing an aggressive agenda for reforming medical malpractice law, with a focus on capping the amount of damages patients can be awarded if their doctors harm them. But some advocates suggest a completely different reform: "health courts." These jury-less courts would deal only with medical claims and be administered by trained healthcare professionals. This, supporters argue, might improve healthcare by providing quicker resolution to malpractice suits and limiting frivolous claims.

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Malpractice case payouts jump in Pennsylvania

The beat goes on in Pennsylvania...

Insurance companies and other underwriters in Pennsylvania reported a steep jump last year in payments for malpractice claims against physicians, according to a federal agency.

In 2004, insurers reported paying out $448 million, a 13.5 percent jump from $394.5 million reported in 2003, according to the U.S. Health Resources & Services Administration. The 2004 figure broke the previous record, which had been set in 2001.

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Medical review panel

From Wyoming, where voters recently authorized the creation of a review panel to try and keep frivolous malpractice lawsuits out of the courts in the first place:

The medical review panel legislation was introduced to screen
medical malpractice lawsuits in the hopes of eliminating frivolous suits before
they rack up costs that contribute to high medical malpractice insurance
premiums. Some say these premiums are driving doctors out of practice in
Wyoming.

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Watch out Vets...

...you're next. From the USA Today:

It's a typical medical malpractice case - except in this 3-year-old dispute, the patient was a sheepdog named Lucky.

Barry Silver, the attorney for Lucky's owners, says that when the case goes to trial this year in Broward County, Fla., he intends to ask jurors to award hundreds of thousands of dollars to the dog's owners, Adam Riff and his mother, Ellen.

...

The largest judgment in favor of a pet owner has been $39,000, which a jury in Orange County, Calif., awarded last year to Marc Bluestone.

His mutt, Shane, died of liver failure after a misdiagnosis. In a verdict that is being appealed by the vet, the jury awarded Bluestone $30,000 for the dog's "unique value" to his owner, and $9,000 for vet bills.

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Fighting back against frivolous lawsuits

From Ohio:

Dr. Zev Maycon has found his name attached to four malpractice lawsuits in the
past three years.

In each case, he was dropped from the suits before they went to trial. But with the last one, he'd had enough. He asked the judge to sanction the plaintiff's attorney for filing a frivolous lawsuit against him in Stark County Common Pleas Court.
Visiting Judge Roger G. Lile agreed with Maycon, finding ``frivolous conduct'' by the attorney, Catherine Little, and ordering her to pay him $6,000.

``Basically, they had no real case against me,'' said Maycon, a Canton gastroenterologist. ``The expert witness they had had no criticism of me.... When I couldn't get dropped from the lawsuit and was essentially extorted, I said, `This has to stop. This is wrong.' ''

An interesting statistic buried in the article:

Nationwide, slightly more than six out of every 10 malpractice suits filed are
either dropped or dismissed, according to the Physician Insurers Association of
America. More than three in 10 are settled before trial. Fewer than one in 10
makes it to trial, and, of those, patients prevail in only one in five cases.

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Should doctors and lawyers be on the same side?

Sherry, a reader, brings up an interesting point:

Ca was the first to institute cap laws in the 70's. ( *250k ) However, the med mal insurance rates continued (a proved cycle) until they passed Prop. 103.

Insurance reform.It is insurance reform that works, not tort reform.

Are the insurance companies getting a free ride here?

Malpractice Insurance Companies: Stop Gouging

Washington (state) orders insurance companies to refund premiums to doctors:

After years of their lobbyists calling for caps on plaintiff's damage awards, squeezing lawyers' contingency fees and trying to throw litigation roadblocks in
the way of injured patients and their families, the state's doctors may have
found a legitimate way to cut medical malpractice premiums: Get their
malpractice insurance company to quit gouging them.

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NY Times: Malpractice Lawyers are Resourceful

The New York Times published a piece on malpractice this weekend.

In states that already cap some damages - the ones labeled "pain and suffering" - the study finds that total awards have remained pretty much the same. This suggests that plaintiffs' lawyers have simply recast their cases to encourage juries to award the same amounts under different names - for, say, "lost wages."

However the study ignores cases that are settles out of court:

The new study, by Catherine M. Sharkey, a law professor at Columbia, may change
that. The study, to be published in the New York University Law Review in May,
analyzed jury verdicts in 22 states in 1992, 1996 and 2001. It did not consider
cases settled out of court. It found that the median compensatory award in
states with caps on damages was $324,000, compared with $387,000 elsewhere -
figures that Professor Sharkey found were roughly equivalent after the data was
adjusted for variables like the kind and number of plaintiffs and defendants,
the percentages of local doctors and lawyers, and jurors' wealth and ages.

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Discussion of Tort Reform Proposals

From DDL, who has posted here several times. DDL's blog debates the pro's and con's of many of the tort reform proposals that have been discussed here, and elsewhere. Definitely worth a read (or a bookmark).

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Taxing lawyers and doctors

This note, from RiskProf is about tacing lawyers and doctors to help pay for insurance. Seems as if the insurance companies are the only winners here, doesn't it? The costs are just being spread across a wider group of people. Doesn't stop the progress of frivolus malpractice lawsuits or reduce the systemic costs:

NJ is taxing lawyers $75 per capita to contribute to a med mal insurance
assistance funds which will be used to subsidize med mal premiums.
Employers are also paying $3 per employee and medical professionals are
also being subject to a $75 per capita tax.

AM Best is reporting that a NJ trial court has denied a temporary
injunction requested by the NJ bar association.

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Chipping away at the malpractice problem...

In Virginia, they are looking at excluding premature babies from the litigation process. The argument is that prematurity causes many of the bad outcomes rather than medical error:

"Proponents of the weight limit said that such injuries are a consequence of prematurity, not the birth process. Because bad outcomes in premature infants are frequently unavoidable, they should be ineligible for a program that focuses on birth-related events that can produce malpractice actions, they said.

Studies of the program, however, have warned since its earliest days that as many as a third of malpractice actions against doctors and hospitals involve premature infants."

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Meanwhile, in Arizona, they are looking at asking patients to waive their right to sue before receiving medical care. There are similar plans in many states for buying "limited tort" options for car insurance:

"The notion of shifting to a contract-law system where patients waive their litigation rights was among a handful of ideas mentioned at the Arizona Litigation Reform Summit on Friday. Other included getting doctors to lobby their patients for reform and paying injured patients over time rather than in one lump sum. "

The same article describes attempts to cap the hourly fees that lawyers can earn. Not sure if that is the right answer, but I do tend to think that $20K per hour is a bit excessive:

"Jon Kyl, R-Ariz., in explaining that he tried to pass federal legislation to limit lawyer fees to $2,000 per hour, then $10,000 per hour and finally $20,000 per hour. The bill failed after winning just 37 votes in the Senate. "

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Debate arrives here

Good to see debate on both sides of the argument:

DDL talks about how the three strikes law benefits lawyers:

"Plaintiff Trial lawyers don't like trials. That's right. Why? because they lose most of them. What they do like is the unpredictibility of a trial. Sure they will lose most of them but they could win and win big. That makes defendants want to settle. Settlements are good. A lawyer is sure to get his paycheck in a settlement, but in a trial they will most likely have to eat their court costs.Three strikes law will encourage settlements. If you are a doctor getting sued do you want to risk losing your license? of course not. you settle. This will increase the numbers of malpractice suits filed in Florida. "


An anonymous user rebuts :

"Of course, the big difference between ddl's argument and mine is that if malpractice goes away, lawyers can always make money sueing tobacco companies. What are doctors going to do if lung disease, heart disease and obesity go away? Golf all the time?

The fact is that if you believe the insurance industry argument that medical malpractice claims are driving up medical malpractice insurance rates (a questionable argument), than it makes good sense to get the handful of doctors who are responsible for the vast majority of malpractice out of the risk pool. Here in Illinois, 3.6% of docs are responsible for 47% of malpractice cases, according to federal records."

Something that we lose sight of

I recently rewatched the PBS special on what it takes to become a physcian. Surely there are easier ways to feed the kids and payback loans (or avoid them in the first place!).

Here is a note from the producer of the series:
"Years ago, when I was trying to decide what to do with my life, two passions surfaced almost simultaneously: moviemaking and medicine. In my 20s and 30s, when things were not going well in the film business, I applied several times to medical school.

Making this series of films about medical training has made me realize how fortunate I was to be turned down! I now know that I would never have survived the course. Also, I've seen firsthand how potentially all-consuming of one's time medicine can be, and I'm sure I would never have been able to achieve a healthy balance between my work and non-work lives.

It is an extraordinary privilege to be a doctor, but that privilege comes at an extraordinary price. As Luanda Grazette, one of our seven students, puts it, "Medicine is only for those people who cannot contemplate doing anything else with their lives." "


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Florida Malpractice Update

More debate onthe "three strikes" ammendment in Florida:

"The new amendment and another one - both pushed by trial lawyers - would force doctors and hospitals to release records of medical mistakes and would revoke the license of any doctor hit with three malpractice judgments. Doctors, hospitals and the state agencies say they are ambiguous and can create confusion.

The amendments are the latest twist in the medical malpractice fight in Florida. The Legislature, which approved a half million dollar cap on some types of malpractice awards two years ago to stem skyrocketing premiums and bring down medical costs, again will find itself thrust in the middle when lawmakers return to work March 8.

Doctors and hospitals are hoping the Legislature will pass bills to resolve questions they have about the amendments. But trial lawyers see the concerns raised by medical professionals as a smoke screen to get lawmakers to water down the new rules."

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Story out of Washington (state) detailing a potential medical malpractice reform bill:

Baird, D-Wash., conducted forums with medical leaders in Longview on Monday and at the Southwest Washington Medical Center in Vancouver on Tuesday. The congressman told doctors and hospital administrators that his package will target bad doctors, discourage frivolous malpractice lawsuits, establish mediation for medical disputes, lower insurance rates and cap "pain and suffering" settlements, but at a level more than triple the damage limit suggested by President Bush.

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Vicious Cycle

Here's a new angle. That the specter of malpractice litigation actually causes harm to patients becuase mistakes go unreported due to fear:

"An administration study showed that about $28 billion is spent each year on the combination of malpractice litigation and the "defensive medicine" that doctors and hospitals perform, including extra tests and unnecessary procedures, to protect themselves against lawsuits.

Opponents point out that while this is a huge sum, it still represents only a sliver of the nation's $2 trillion annual health bill.

But a new study by the Joint Commission on the Accreditation of Healthcare Organizations (JCAHO) suggests there are other downsides to the current malpractice system. Among other things, the commission says, "the stifling specter of litigation results in the under-reporting of adverse events by physicians and avoidance of open communications with patients about error."

In a landmark 1999 study, the National Academy of Science's Institute of Medicine (IOM) reported that 44,000 to 98,000 Americans die every year because of preventable medical errors."

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Beyond caps in Florida

Interesting angles from both physicians and trial attorneys in Florida.

Limiting the percentage that attorneys can take in contingency, "three strikes and you're out" for physicians hit with three malpractice judgements:

"The new amendment and another one - both pushed by trial lawyers - would force doctors and hospitals to release records of medical mistakes and would revoke the license of any doctor hit with three malpractice judgments. Doctors, hospitals and the state agencies say they are ambiguous and can create confusion.

The amendments are the latest twist in the medical malpractice fight in Florida. The Legislature, which approved a half million dollar cap on some types of malpractice awards two years ago to stem skyrocketing premiums and bring down medical costs, again will find itself thrust in the middle when lawmakers return to work March 8."

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Kentucky Malpractice Reform

A bill to change Kentucky's malpractice regulations passed committee. In case you're not keeping score, since this blog started, we've chronicled the battle between physicians and malpractice trial lawyers in Kentucky, Arizona, Georgia, Hawaii, Georgia, Montana, Washington, New Hampshire, Connecticut, and North Carolina. Looks like a national solution could free up a lot of time for other matters in state legislatures:


"MALPRACTICE AMENDMENT
A proposed constitutional amendment aimed at curbing the inflation of Kentucky doctors' medical malpractice insurance rates cleared a Senate committee yesterday. The measure, endorsed by the Kentucky Medical Association, is essentially the same proposal that has been backed by Senate Republicans in past sessions. The proposal requires a three-fifths majority, or 23 votes, by the Senate to advance to the House."

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Senate approves malpractice changes

The Senate approved Arizona's apology law, plus other measures favored by doctors:

"The measure would provide a legal shield for doctors' apologies, tighten requirements for the credentials of expert witnesses testifying in court and make it easier for insurance defense lawyers to question health-care providers.
It also makes it easier for lawyers to seek medical records.
Trial attorneys oppose the bill. They argue lawmakers shouldn't make it harder for patients to recover damages for medical mistakes."

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Summary of malpractice effects

This intelligent letter, from the University of Arizona Daily Wildcat, neatly summarizes some of the costs of the current malpractice litigation system:

"Dillon Fishman's defense of the current tort system is misleading. Our tort system drains $200 billion from the U.S. economy each year. The median jury award in malpractice cases exceeds $1 million, which is more than adequate for the starving litigator. Meanwhile, skyrocketing insurance premiums have forced many obstetricians and specialists out of business. Furthermore, the hidden costs of fraudulent malpractice claims may be much greater than the insurance premiums. More than 70 percent of doctors order unnecessary tests and treatments simply to avoid being sued. "

Link (2nd letter down)...

Trouble in paradise...

Even Hawaii can't escape the issue of malpractice lawsuits and rising malpractice insurance rates:

"Maui doctors warn that some specialists could quit practicing in Hawaii if the state fails to act on the increasing threat of high-cost claims in lawsuits against physicians.
The physicians are appealing to the state Senate Health Committee, which will meet today on a bill that would place a cap on damages awarded in medical malpractice lawsuits. The meeting on Senate Bill 757 is scheduled for 2:45 p.m. at the State Capitol. The committee deferred action on the bill Friday. "

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Apology without malpractice suit?

Arizona lawmakers want to make it legal for doctors to apologize to their patients without the apology being included in lawsuits. Trial attorneys are against it:

Senate Bill 1036 would allow doctors and other medical providers to say "I'm sorry" without their apologies being admitted in court as evidence of liability or as an admission of guilt.At least six states have passed a similar bill, and there is anecdotal evidence that it's resulted in fewer lawsuits being filed.

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Malpractice Reform Compromise Passes in Atlanta

Now just waiting for the governor to sign...

"Georgia lawmakers settled three years of arguing over medical malpractice laws Monday when the Senate agreed to place a $350,000 cap on pain-and-suffering awards for people hurt by negligent doctors.

The bill makes sweeping changes to the rules for people suing doctors for malpractice, changes aimed at shielding doctors from expensive or frivolous lawsuits. Doctors have long argued that they're being run out of business by high malpractice insurance rates.

The Senate originally voted to cap pain-and-suffering awards at $250,000, a limit the doctors and their insurers wanted. But the House raised that cap to $350,000, and after a failed attempt last week, the Senate agreed to that change Monday. The agreement means the bill awaits only the governor's signature to become law. "

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Georgia Tort Debate

This article from Georgia frames the debate from both sides:

"It comes down to who can hire the sharpest lawyers and what kind of jury you have. Do you have a jury that can evaluate data and reach a rational decision? Or do you have a jury that wants to give money away?

...Larry Sanders, chairman of Columbus Regional Healthcare System, points to the cost of malpractice insurance for his company.

Four years ago, Columbus Regional was self-insured up to $2 million. For any judgment over that, the company was covered by a policy that cost about $170,000. This year, Columbus Regional has increased its self-insurance exposure to $3 million. The policy to cover any damages in excess of that now costs the company about $1 million. Had Columbus Regional maintained its self-insurance level at $2 million, the policy would have cost the company more than $1.6 million.

Healthcare providers say the high cost of insurance coverage translates into high prices for healthcare."


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Trial Lawyers promise uphill battle for malpractice reform

In this New York Sun article, attorneys promise uphill battle for president Bush's tort reform agenda:

"It's certainly much easier to see the human impact of malpractice when you have kids who are killed and grandparents who are abused in nursing homes and people who are killed by dangerous drugs like Vioxx," he said. "Those are very different issues people can see much more clearly."


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Meanwhile, in Montana...

You don't have to be in New York, Pennsylvania or Atlanta to run into the malpractice crisis. Patients in Montana are losing the services of doctors thanks to malptractice lawsuits:

"In 2002, Montana's medical liability premium rates increased 118 percent for family physicians, 196 percent for obstetricians and 211 percent for neurologists. The same year, St. Vincent Healthcare, one of two major hospitals in Billings, saw its premium costs soar from $300,000 to $3 million."

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Malpractice Reform fails in Georgia...

... by 1 vote. The bill now goes to committee:

"The original bill, passed by the Senate on Feb. 1, also capped non-economic damages -- commonly referred to as pain and suffering -- on medical malpractice lawsuits at $250,000 per party. The House raised those limits to $350,000 on Thursday.

The bill was authored by Sen. Preston Smith, R-Rome. Harp, an attorney who practices family law, had backed the bill until Thursday. He is vice-chairman of the Judiciary Committee and voted to get the bill out of committee. When it came before the Senate last week, he voted to keep the bill from being amended. He later voted for passage of the bill.

Thursday he did not support it."

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Malpractice Reform fails in GA...

... by 1 vote. The bill now goes to committee:

"The original bill, passed by the Senate on Feb. 1, also capped non-economic damages -- commonly referred to as pain and suffering -- on medical malpractice lawsuits at $250,000 per party. The House raised those limits to $350,000 on Thursday.

The bill was authored by Sen. Preston Smith, R-Rome. Harp, an attorney who practices family law, had backed the bill until Thursday. He is vice-chairman of the Judiciary Committee and voted to get the bill out of committee. When it came before the Senate last week, he voted to keep the bill from being amended. He later voted for passage of the bill.

Thursday he did not support it."


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Seeing the light?

Former malpractice trial lawyer who spearheaded Florida's opposition to to lawsuit caps now decides to back his party's agenda:

Martinez says it's not a matter of party loyalty, and that he now understands the need for litigation reform to ensure doctors can get affordable insurance and stay in practice. The restrictions limit access to the court system, he said, but need to be done for the 'greater good.' ...

He favors a cap [on malpractice pain and suffering claims] of at least $500,000 - a rare case of how he disagrees with Bush, who supports $250,000 caps. But both agree there need to be caps."

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Patient Safety Fund in Washington State

An interesting approach to improve patient safety that is suprisingly supported by both health care providers, and malpractice lawyers.

"The plan would create a patient safety account for grants and loans to support efforts to reduce errors in medical treatment, emphasizing evidence-based practices recommended by a variety of government and private medical groups... [The account] would be funded by a $2-per-bed annual fee paid by hospitals, a $2-per-license fee charged to health care professionals and a fee of 1 percent of any attorney contingency fee for malpractice lawsuits. "

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Federal Answer to Malpractice Crisis

The House is working on a bill to limit malpractice awards and curb attorney fees. This article comments about the plight of Lancaster county doctors due to the high costs of dealing with malpractice litigation and insurance...

"The bill, which is still being crafted, would limit pain and suffering payments to $250,000. It also could limit attorney fees and include other reforms... The House previously passed a malpractice reform bill but it was blocked by the Senate, Pitts said. This time, he thinks it will be successful."

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Better in Pennsylvania?

Governer Rendell claims victory in malpractice crisis. But somehow it still takes women 6 months to get an ob/gyn appointment in Philadelphia due to the exodus of doctors that continues...

"In response to employer concerns that malpractice awards were driving up health insurance costs, this body passed medical malpractice reforms in 2002 and 2003, which are beginning to bring down the cost of malpractice awards and settlements. Together we stopped the exodus of doctors who considered fleeing Pennsylvania to find relief from rising malpractice insurance costs by passing the MCARE abatement. The State Courts, under the leadership of Chief Justice Cappy and the members of the Supreme Court, changed venue rules, required certificates of merit, and imposed guidelines to review jury awards, all of which will reduce malpractice costs even further. The good news is that for the first time in recent years new companies are offering malpractice insurance policies in Pennsylvania and we have witnessed a 28 percent decline in the number of malpractice suits filed. "

Full link...

Where will the doctors go?

A group of New Hampshire doctors says that malpractice reform is needed before doctors are forced to leave the state:

"There is a line drawn in the sand over the issue, with doctors on one side and trial lawyers on the other. The medical society wants a screening panel system identical to the one that has been operating in Maine since 1986. Sen. John Gallus, R-Berlin, has sponsored Senate Bill 214, which would do just that. However, the New Hampshire Trial Lawyers Association says it will agree to a screening panel, but is opposed to the Maine system"

2.2% of GDP on litigation!

GM expects to save $5.3 billion per year on healthcare costs thanks to litigation changes.:

"`This is the best opportunity we've had in recent history,' says Kevin McMahon, chairman of the American Tort Reform Association, a business coalition that includes Detroit- based GM and New York-based Pfizer. "

The cost of litigation is high:

"Lawsuits over torts, which are wrongful acts that can be compensated with damages, cost businesses $162 billion in 2003, up from $153 billion in 2002, according to a study by Tillinghast, a division of the Philadelphia-based consulting firm Towers Perrin. Individuals accounted for another $84 billion in tort costs, primarily from automobile accidents. The total of $246 billion was 2.2 percent of the Gross Domestic Product; in 1960, total tort costs of $5.4 billion accounted for 1 percent of GDP. "

No Caps in Connecticut

Connecticut governor Rell's plan to solve the malpractice crisis involves certain legal reforms to control the trial lawyers while attempting to hold physicians responsible for the wellbeing of their patients. The proposal would:

• "Amend the Certificate of Good Faith procedures to require that a doctor from the same area of expertise as the defendant file a detailed opinion of the case with the court
• Require that a jury consider all additional payments received by a plaintiff for the same injury when assessing damages
• Require that any payment over $200,000 be paid over time
• Reduce the “Offer of Judgment” penalty assessed on defendants for failing to settle certain lawsuits from 12 percent of damages to the prime rate"

California State Cap Appealing

President Bush favors the cap on malpractice damages implemented by California:

"The Medical Injury Compensation Reform Act, or MICRA, supposedly has kept California malpractice premiums low in comparison with other states, without limiting access to the courthouse for deserving patients one bit. It also has purportedly put a leash on all those greedy and unscrupulous lawyers who pocketed the money that should have gone to patient care."

Though the caps have kept malpracitce premiums down, the author seems to think that they are not effective - maybe he's related to a malpractice attorney?

Battle over malpractice

With the battle between doctors and attorneys raging at the state level for years, the malpractice crisis is reaching a critical stage.

Trial lawyers, who earn a living from malpractice lawsuits are lined up against physicians. This MSNBC article talks about the battle in North Carolina, though northeastern states such as Pennsylvania, New Jersey, and New York are the critical crisis states. Maybe the problem has a better chance of resopution at the national level, where President Bush has made it one of his top priorities.

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