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I don't know if the national Democratic party gets it but the Maryland Democrats definitely do. The Republicans and their insurance company cronies have spent the past 50 years trying to convince people that there is a "crisis" in malpractice insurance premiums and, more importantly from their point of view, that injured patients and their greedy lawyers are to blame. Their prescription for this "crisis" is so called "tort reform", which contains a host of limitations on the legal system, many of which have no conceivable relationship to malpractice premiums, and not one direct restriction on what malpractice insurers can and cannot do.  The Maryland Democrats have effectively fought back by coming up with some real, populist reforms designed to really fix any medical malpractice crisis that may exist and make the Democrats the real party of reform on this issue.  To find out more, look below the fold.

For many years, Democrats have played into Republican hands on issues like "tort reform" by simply killing Republican "reform" packages without any meaningful consideration of whether a crisis truly existed, and without proposing our own programs if there really is a crisis.   This leaves the Republicans with an issue for the election trail, and it leaves the phony impression that Republicans are the party of reform.  But the Maryland Democrats knew better. They tried to study the problem to determine whether a crisis existed at all, and whether trial lawyers were really at fault. When insurance companies resisted these attempts, and when it became clear that any crisis was at least as much the fault of the insurance companies, the Democrats came up with their own "reform package" which taxed HMOs and used the proceeds of the tax to reimburse doctors for their malpractice premiums. This true reform also creates a "people's counsel" with the power to advocate for people against insurance companies and to intervene to determine whether particular malpractice rate increases are necessary. The Democrats' bill also places reasonable limits on lawsuits. In short, this reform package was designed to address a real problem in a real way, and has the added benefit of making the Democrats the reformers and the Republicans the resisters.

Note today's headline in the Washington Post: "Ehrlich Vetoes Malpractice Reform Bill" This headline says it all, since the Republicans are now resisting malpratice reforms even though, as the story notes, "The Maryland State Medical Society, which represents more than 7,000 doctors, and the Maryland Hospital Association, which represents about 50 facilities, had urged Ehrlich to allow the bill to become law." In other words, we're the party trying to help doctors, and they're the party stubbornly sticking to their stupid proposal, which punishes only the most deserving cases, and which at best indirectly addresses the problem of malpractice premiums while allowing insurance companies to keep premiums high and pocket the lawsuit savings if that's what they choose to do. Even worse, many Republican proposals are designed to funnel cases into federal courts, even though these same Republicans have spent years and years trying to convince people that the federal courts ought to butt out of the states' business. In other words, their marching principle on "tort reform" is: State courts, good enough for the death penalty, but not good enough for tort cases. It really is the height of hypocrisy.

Democrats need to steal back the mantle of reform on a host of issues like this, since we are the natural reform party anyway. Republican "reform" proposals like "tort reform" are generally born from manufactured crises, which never include a study of the actual problem and its causes, and the solutions are generally cynical, lousy policy ideas, designed to throw bones to their corporate cronies. We can do better and the Maryland Democrats have. As they showed, we're the only party that actually gives a damn about whether family doctors can stay in business. And, unlike the Republicans, we don't give a damn whether the insurance companies like our policies. Not that we should be anti-insurance companies, but a little public oversight is always a good thing for any industry, as Teddy Roosevelt showed us long ago. The good companies will welcome the scrutiny and prosper anyway, the bad ones will be rightly burned by the sunlight, and doctors and patients will be the big winners. The Maryland Dems are apparently going to override the veto and make this bill law. We should follow their lead nationally.

Originally posted to Tim from VA on Mon Jan 10, 2005 at 07:45 PM PST.

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Comment Preferences

  •  Great move (none)
    Don't know anything about the Maryland bill, but the idea is solid.  The best defense is a good offense.  Malpractice insurance rate increases is an area where doctors, lawyers, and patients should be allies against the axis of evil -- GOP + insurance.
  •  This is much better news (none)
    than I thought it was going to be when I clicked on it. Imagine, something actually going right for a change!

    Especially your second last sentence. That really made me smile.


    Because people need to see this sort of thing.

    Massacre is not a family value.

    by Canadian Reader on Mon Jan 10, 2005 at 07:47:41 PM PST

  •  I agree (none)
    I like this approach because it is an example where the Dems examined the problem and came up with a solution, instead of just opposing tort reform or whatever the reps come up with. The part about reimbursing the docs for their liabililty insurance helps to partner the health care providers with patients, against insurance companies.

    Having a people's court to decide whether malpractice increases are needed are a big plus.

    (My insurance tripled this year, I had to cancel because I couldn't afford it. Have never had a suit or been named in one.)

    A big problem with the current system of malpractice litigation is the lack of fair and uniform judgments; often those who have been harmed don't get compensation because of the defendant having a better lawyer, and often judgments are based on how piteous or tragic the situation, not whether malpractice or negligence was involve. Of course, that problem would be solved by having universal health insurance. If someone is paralyzed,  the jury will feel sorry for them and give a judgment so they will have money for the health care they will need for the rest of their lives.

    I also like the proposals that include a health court, because it addresses some of the inequities in current malpractice litigation:
    Here are some of the elements of the  special health court:

    1.    Judgment would be made consistently by court appointed experts using standards of care.
    2.    The aim would be truth seeking rather than adversarial opposition. Data would be gathered by the experts, not by attorneys for defense or plaintiff.
    3.    The judgments would be rational, with uniform, fair and codified compensation
    4.    There would be accountability for negligent providers.
    5.    There would be powerful incentives for quality improvement in medical systems. Practitioners and hospitals could focus on identifying and reporting errors to reduce mistakes and make improvements and set standards of care.
    6.    Administrative efficiency and cost reductions
    •  I don't buy the health court reform. (3.00)
      Here are some of the elements of the  special health court:

         Judgment would be made consistently by court appointed experts using standards of care.

      A single expert isn't going to bring out the truth reliably.  The sad truth is that most doctors care more about covering each other's butts than being truthful.  I don't know how many doctors I've had tell me in private that there was malpractice and then refuse to testify.

      The aim would be truth seeking rather than adversarial opposition. Data would be gathered by the experts, not by attorneys for defense or plaintiff.

      Bull.  I can assure you that the doctors will be adversarial in their defense, and their due process rights under the constitution entitles them to have that kind of protection.  Plaintiff's hands shouldn't be tied.

      The judgments would be rational, with uniform, fair and codified compensation

      Worker's compensation has "uniform" and "codified compensation" too.  You get $4,000 for a wrongful death caused by an on the job injury to someone with no spouse or dependents.

      There would be accountability for negligent providers.

      Just like those neutral, fact based disciplinary bodies for doctors that don't do anything even when the doctor has butchered dozens of patients.

      There would be powerful incentives for quality improvement in medical systems. Practitioners and hospitals could focus on identifying and reporting errors to reduce mistakes and make improvements and set standards of care.

      If you want incentives to improve medical systems you need to hold hospitals responsible for the bad conduct of doctors in their hospitals, and hold lead doctors responsible for the actions of everyone on their team.  Neither of these responsiblity standards are present in current malpractice law.

      •  It works in Germany, Sweden, NZ (none)
        I can't get my links to work, will try again.
        The American system is often unjust in its complexity and unpredictability of decisions. It should not take four or five years for someone to receive compensation for injuries.

        Experts: There are several ways this could be structured, but all would involve a panel of some kind. There could be a special medical court or an administative panel.

        Truth seeking: I respectfully disagree here. I believe that health care providers (of which I am one, and would I be wrong to guess you are a lawyer?) sincerely want to see just and fair restitution and compensation for someone if they have caused harm or injury. The current system is set up so they really have no choice in it, the insurance company makes the decisions. Kinda like divorce before we had no fault.

        There is a tremendous amount of unfairness in the system with 8 out of 10 people who have been harmed by medical malpractice not receiving any compensation. And at the same time, many suits against doctors and nurses are not based on negligence. Having a consistent standard and having someone who understands the medical facts of the case would be useful in achieving medical justice.

        Doctors and nurses are human and have made mistakes and will make mistakes. We need to bring more transparancy to the process because, often systemic changes can be made that improve the process. It won't happen if everyone is trying to  cover their ass.  

        •  I trust juries. (none)
          It isn't as if juries are terribly eager to find good doctors liable either.  But, juries are far more sophisticated than they are given credit for being, and don't introduce the kinds of systemmic bias into the system that repeate decision makers do.

          Health care providers think that they should only have to pay if they make the kind of mistake that a good doctor never makes in a lifetime.  My inlaws (both of whom are doctors) and other doctors I've discussed the issue with have repeatedly expressed this view.  But, this isn't the law and it should be.  When someone is hurt by a careless act of a doctor the patient is entitled to compensation.  Period.  Doctors tend to take the position that all medical malpractice suits are frivilous.

          The current system is slow -- largely because the doctors are fighting tooth and claw and refuse to settle under any circumstances.  They are eager to roll the dice and hope a jury sides with them even when they are in the wrong.  But, there is simply no evidence that an administrative panel would be an improvement.

          And, the stakes need to be high.  Most of the 8 out of 10 cases that don't go to suit are relatively minor injuries.  The ones that turn into lawsuits are grievious injuries and call for high compensation.

      •  Due Respect, But... (none)
        It doesn't sound like you know what you're talking about.  Nobody wants to see incompetent doctors out of practice more than other doctors.  Most doctors are reluctant to throw their incompetent colleagues to the legal wolves, it's true.  But there is an active, strict, effective system of peer review in any medical community (including local hospitals where almost all private practice doctors have admitting privileges) which looks for suspicious cases and investigates them thoroughly.  Doctors are pretty good at policing their own community.  If only lawyers and the justice systems did the same....

        An administrative law system replacing a tort system is still subject to political abuses.  But more injured patients are given compensation by such systems, and because the stakes aren't as high for providers, they're typically better at disciplining incompetent providers than our tort system is.

        Please don't resort to blanket characterizations of all members of a profession, or give in to cynical simplifications of a process.  It's unseemly.

        Don't ask a question unless you want to hear the answer.

        by Dallasdoc on Mon Jan 10, 2005 at 10:33:10 PM PST

        [ Parent ]

        •  Are you open to a public system for reporting (none)
          claims of violations of medical standards / ethics?  The securities industry does it and it works.

          Do you know the status of statewide non-profit insurance pools run by docs?  I've heard PA had such a plan but they were bought out, now PA docs are apparently being driven out by insurance companies (stats are clear there is no PA verdict driven med mal crisis -- its better than it was 10 years ago).

          What about protecting docs, particularly docs who aren't rich, but allowing hospitals labs and others in the liability chain to weight their standards / risk tolerance according to the same market principals as other industries?

          In my profession the saying is, "don't ask a question you don't know the answer to!"


          •  Most States Have Public Reporting (none)
            Most state medical boards have public information on malpractice and disciplinary filings on each licensee.  Hardly anybody (except maybe malpractice attorneys) looks at them.

            A public reporting system would be much more effective in an administrative law framework.  Malpractice (tort) cases usually have only a coincidental relationship to quality of care.  Medical specialty, a practitioner's communication style and personality, a community's jury sympathies, and lots of bad outcome/bad patient or relative stuff is at least as deterministic.  I think that a rationalized system would provide much more accurate data about a practitioner's quality of care than the current malpractice data, and thus would be more useful to the public.

            Not sure of the point of your question about market standards, but as a former medical administrator and ongoing practitioner, I would advocate the same high standards for all health care facilities.

            Don't ask a question unless you want to hear the answer.

            by Dallasdoc on Mon Jan 10, 2005 at 11:14:54 PM PST

            [ Parent ]

        •  I know perfectly well what I'm talking about. (none)
          Peer review does not work.  I've seen it not work.  I've encountered this situations face to face, and I've followed this issue for years.  It is not at all uncommon to see doctors with numerous serious medical mistakes of a type that would raise real concerns about their abilities go undisciplined even when their colleagues raise red flag.  We had one in Denver just recently, a neurosurgeon who was out of control.  There was a psychiatrist in DC with the same profile.  Almost every state has seen this and the privilege granting institutions almost never deny or revoke privileges, although sometimes they quitely suggest a relocation with no formal action so that no paper trial is create when a doctor gets truly out of hand. Investigations are anything but thorough. Doctors are absolutely pathetic at policing themselves.

          I've also seen no category of witness lie in depositions more often than doctors.

  •  Good stuff - added to dkosopedia... (none)
    ..under Tort Reform.

    s/b added to Health Care but I am out of steam for tonight.

    Do you have a link to the bill text (like they post in Thomas for US Congress) ?  Or a summary of the specific proposals? see America turn, and to know that we helped it in the turning. - John Kerry, 1971

    by MH in PA on Mon Jan 10, 2005 at 08:55:26 PM PST

  •  non-adversarial process (none)
    is a good idea for the following reason: one of the defences of the hospital is to gather as little medical data as possible, e.g. by avoiding autopsies.  Another example are medical data hidden when the cases are settled with conditions of non-disclosure.

    In some other profession, the extend of trade secrets may matter less, but in medicine the price for secrecy is lives.

  •  let's see... (none) this plays out.  Ehrlich's style of governing is to look, not for solutions, but for issues to hang the next campaign on.  I doubt he even wanted a bill he could sign.

    Whether the Dems are seen as the party of reform, or one of obstruction depends on how Gov. Fratboy spins it.  

    In the Baltimore area, at least, all the radio and TV stations will report it the way he spins it.  They always do.

  •  Basic question (none)
    should we be anti-insurance companies?

    You say not, but almost reflexively.  Is there reason for a profit motive in the quest for societal burden sharing?  Good arguments exist on either side for this one, but it is not a question to be ignored.

    •  One Crisis that Doesn't Exist... (none)
      Is the crisis in malpractice insurance company profits.

      Almost any health care professional holds an opinion of insurance companies roughly analogous to Kossacks opinions of Abu Gonzales.  And for similar reasons....

      Don't ask a question unless you want to hear the answer.

      by Dallasdoc on Mon Jan 10, 2005 at 10:35:08 PM PST

      [ Parent ]

    •  I like insurance (none)
      But I think there are a lot of bad insurance companies.  So I hope I'm not reflexively opposed to saying bad things about insurance companies, but on the other hand I would like to live in a world where good ones exist.  

      Bringing the country together by turning every state Blue. Bluest State

      by Tim from VA on Tue Jan 11, 2005 at 10:07:41 AM PST

      [ Parent ]

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