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Many physicians are holding out for federal tort reform, which they believe is key to lowering their malpractice insurance costs. The doctors' perspective was expressed this weekend in the Washington Post by Dr. Arthur Feldman, who wrote in "10 Things I Hate About Health-Care Reform":

Malpractice costs rise each year, as do the number of frivolous lawsuits. Our practice has seen a 10 percent increase in malpractice expenses this year. Sure, doctors make mistakes, and patients deserve fair compensation for their injuries and lost wages, but in this area of the law, physicians and hospitals are too often at the mercy of capricious juries.

I've got a message for you doctors: You're being snookered.

The costs of malpractice suits and awards are not the only driver of the cost of malpractice insurance. They may not even be the primary driver of malpractice insurance costs. Insurance companies don't just take in premiums and pay out damages. Insurers rely heavily on return from investments for profits, and during times of economic downturn insurers tend to crank up premiums to cover investment losses.

And when an insurance company has a really disastrous quarter because of bad investments, they make excuses to stockholders by blaming out-of-control litigation.

Americans for Insurance Reform (AIR) documented a long-standing pattern of physician malpractice insurance premiums going up during times when the actual amount of awards payouts were stable or even going down. I say again, you doctors are getting snookered.

The insurance lobby has done a bang-up job persuading doctors that the only way to reduce malpractice premiums is to stop greedy litigants from filing frivolous suits. The truth is, the insurance companies charge what traffic will bear, or as much as state insurance boards will let them get away with, no matter what happens in courts.

About Those Out-of-Control Juries

As I've also written in the past, tort is mostly a state issue. Most personal injury lawsuits, including malpractice suits, are filed under state laws. And state laws are all over the map. In the past several years more than half of the states have enacted rigorous tort reform laws that include caps on non-economic and "pain and suffering" damages, raising the burden of proof to bring suit, regulating lawyers' compensation practices, etc. etc. In other words, there's a better than even chance the tort laws of the state you live in already have been "reformed."

Medical malpractice claims, inflation-adjusted, have dropped 45 percent since 2000, according to AIM. A great many individual states, such as Pennsylvania, have had dramatic reductions in the number of medical malpractice cases in the past several years.

As to the "frivolous" nature of medical malpractice cases being filed -- there are all kinds of reports with all kinds of numbers. The Harvard School of Public Health did a study in 2006 that showed "frivolous lawsuits" were not the chief cause of expenses.

[T]he authors found that the claims that did not involve errors absorbed a relatively small piece of the costs of compensation. Eliminating those claims would decrease the system’s compensation and administrative costs by no more than 13% to 16%. "Many of the current tort reform initiatives, such as caps on noneconomic damages, are motivated by a perception that ‘jackpot’ awards in frivolous suits are draining the system," explained Michelle Mello, an associate professor of health policy and law at HSPH and a co-author of the study. "But nearly 80% of the administrative costs of the malpractice system are tied to resolving claims that have merit. Finding ways to streamline the lengthy and costly processing of meritorious claims should be in the bullseye of reform efforts."

Let me repeat that -- Tort reformers have been telling us for years that costs are too high because so many juries are giving away jackpots to plainiffs with frivolous suits. Therefore, they say, getting malpractice costs under control requires finding ways to prevent so many people from filing lawsuits. But the alleged frivolous lawsuits aren't the real problem. Many physicians, like Dr. Feldman, have been sold the bill of goods that it is the problem, however. So they stand with  the insurance industry to block reform. Snookered, I tell you.

No Tort Reform Without Health Care Reform!

The cry from many physicians is "no health care reform without tort reform!" They should turn that around -- no tort reform without health care reform!

Since so many states have capped noneconomic and pain-and-suffering damages, the big bucks are being paid for economic damages. "Economic damages" are costs the plaintiff can document at time of trial, including actual medical bills and written estimates for treatment that the plaintiff must pay. If we had real national health care reform, in particular single payer, plaintiffs wouldn't be able to claim those costs.

According to Tom Baker, a professor of law and health sciences at the University of Pennsylvania School of Law and author of The Medical Malpractice Myth, obstetrician-gynecologists pay huge premiums because injury to a newborn can mean a lifetime of medical bills. In comparison, gerontologists’ premiums are exceedingly low.

And you doctors are holding out for tort reform ... why, exactly?

Personal note: Often when I write about tort reform I get razzed because I also blog for a mesothelioma litigation site. But, full disclosure, I'm not contracted by the law firm but by the technology company that runs the site, and nobody tells me what to write or what opinions I'm supposed to express. And I was hired because I already was writing about tort reform and health care reform on my politics site. However, if you are in favor of tort reform because you want to hurt trial lawyers, eliminating health care costs from awards would do it. Just saying.

The Bigger Picture

I hate to break it to you doctors, but your issues with malpractice premiums don't even amount to a drop in the bucket of the overall problem. If all American doctors woke up tomorrow and found that the Good Actuarial Fairy was cutting their malpractice premiums to zero from now on, physicians would be very, very happy. But it would have no noticeable impact on the nation's health care crisis, because the cost of your malpractice insurance is less than one half of one percent of the nation's total health care expenditure, according to AIM.

Regarding "defensive medicine," I've covered this before, but here it goes again. Yes, physicians self-report that X amount of the tests and procedures they order are done "defensively," in case they are sued. But much empirical evidence suggests that physicians are kidding themselves. In the several states in which malpractice suits are drastically reduced, there has been no noticeable difference in the cost of practicing medicine. Costs continue to rise as much -- and more in some cases -- as in states that haven't been "reformed."

Tort reform advocates like to cite a 1996 study by Kessler and McClellan that in certain heart disease cases, there was a 5 to 7 percent increase in treatment costs in a high-litigation state compared to a low-litigation state. This is about the only independent study that shows an actual defensive medicine effect, as opposed to self-reported numbers. However, according to Tom Baker, (1) the data for this study dates from the 1980s; and (2) a second study published in 2002 showed that managed care erased most of the difference.

On Jan. 8, 2004 , the Congressional Budget Office also said the Kessler-McClellan study wasn’t a valid basis for projecting total costs of defensive medicine.

CBO: When CBO applied the methods used in the study of Medicare patients hospitalized for two types of heart disease to a broader set of ailments, it found no evidence that restrictions on tort liability reduce medical spending. Moreover, using a different set of data, CBO found no statistically significant difference in per capita health care spending between states with and without limits on malpractice torts.

At the time of this report, the nonpartisan CBO was headed by Douglas Holtz-Eakin, who previously was chief economist for President Bush's Council of Economic Advisers.

So, doctors, what say you? Are you still so certain you have to have tort reform?

Originally posted to maha on Tue Sep 08, 2009 at 01:34 PM PDT.

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Comment Preferences

    •  Excellent Diary. Thanks for the facts. (4+ / 0-)
      Recommended by:
      rapala, blue armadillo, jlms qkw, AguyinMI
    •  You don't get it Calling MDs dummies is obnoxious (6+ / 0-)

      Most doctors know that insurance companies raise rates to cover bad investments.

      How would you feel about being blamed for a bad outcome which wasn't your fault? Most Americans are scientifically illiterate. How would you feel about being attacked by a legal shark in front of an uninformed jury and a judge who wouldn't know the gravity of the situation if a coconut fell on his head?

      Doctors hate malpractice cases because they are, in effect, a personal attack.

      The tort system fails to help most injured patients. It's a lottery where lawyers take a huge cut.

      The only viable solution to the problem Ob/Gyns have with potential future health costs in law suits is single payer.

      As for dealing with harm to patients , states need to implement systemic approaches to improve hospital safety. Most medical errors are systemic problems. Systems need to be improved also to deal effectively with incompetent and impaired doctors. However, data show that there are bad hospitals that have bad systemic results so generally blaming doctors misses the bigger systemic problem.

      look for my DK Greenroots diary series Wednesday evening. "It's the planet, stupid."

      by FishOutofWater on Tue Sep 08, 2009 at 08:40:44 PM PDT

      [ Parent ]

      •  fuck you. (5+ / 0-)

        lawyers take a percentage if we win. We get nothing if we lose. And we invest tens of thousands for each malpractice case. Yes, there is an economic decision tree that is forced upon us, but that is caused by the system, and mostly, by "tort reform." It also means that smaller cases are routinely ignored, and the docs skate for free, even though they ruined the life of their patient.

        If docs want to avoid malpractice claims, they should stop committing malpractice.

        Legal shark? I repeat, FUCK YOU. I do this to help people, not for some ego-based chase of the almighty dollar. If you did not get the message,

        FUCK YOU.

        What we call god is merely a living creature with superior technology & understanding. If their fragile egos demand prayer, they lose that superiority.

        by agnostic on Wed Sep 09, 2009 at 04:29:40 AM PDT

        [ Parent ]

        •  Good thing you're agnostic (1+ / 0-)
          Recommended by:

          if you were a militant atheist, that comment would get hidden. {JOKE!}

          There are more productive methods of reply, but I can't disagree with your comment or your position.

          No KennedyCare = No Health Care Reform

          by the tmax on Wed Sep 09, 2009 at 06:00:50 AM PDT

          [ Parent ]

          •  the caricature of greedy lawyers (1+ / 0-)
            Recommended by:

            grates on my nerves, especially when people with an agenda use it as a distraction, a foil, an excuse for logic and rational discussion.

            The majority of lawyers take their profession seriously and work to benefit their clients, first and foremost. When two opponents, coming from the same ethical position meet, it becomes a joy to work on a case, because we both know that our clients will get the best result possible.

            What we call god is merely a living creature with superior technology & understanding. If their fragile egos demand prayer, they lose that superiority.

            by agnostic on Wed Sep 09, 2009 at 06:06:33 AM PDT

            [ Parent ]

            •  You see the same thing (0+ / 0-)

              when you notice how easy it is to paint all doctors as either holy saints of compassion OR greedy cheating bastards, depending on what political point is being made.

              No KennedyCare = No Health Care Reform

              by the tmax on Sat Sep 12, 2009 at 09:27:05 AM PDT

              [ Parent ]

        •  with all due respect... (0+ / 0-)

          this contributes very little to the discourse. Go forth procreating.

      •  And you don't think (0+ / 0-)

        lawyers are gouged by malpractice insurance?

        Year after year the rates go up, even if no viable claims have ever been brought.

        And lawyers face frivolous charges, too.  We had a client who filed a legal malpractice suit because the lawyer wouldn't allow him to go on the stand and permit perjury!  He claimed he lost the case because of poor representation at trial.  The lawsuit was dismissed -- but not until tens of thousands of dollars had been spent on legal fees.  And for years after we had to report the claim on our yearly renewal forms.

        Those "sharks" are your last, best, and often only defense against business gone wild.  Be grateful if you never need one; and if you do, then pucker up and kiss his or her ass in gratitude.

        Evil is making the premedicated choice to be a dick -- Jason Stackhouse

        by Frankenoid on Wed Sep 09, 2009 at 06:07:18 AM PDT

        [ Parent ]

  •  I'd say yes and no. (4+ / 0-)
    Recommended by:
    penguinsong, greenmama, yaque, Gravis

    I'd say might as well go for tort reform too - if it's real reform - ie, get insurance companies out of the loop entirely.

    Gov't agency to deal with the issue, and panels of honest to god doctors who know what the hell they're talking about deciding if malpractice occurred.

    Then let them set fines and sanctions as appropriate, within some guidelines, so that 2 people with similar injuries get similar payouts, not simply all over the map depending on who had a better lawyer.

    There still should be malpractice payouts, but the payout should not be dependent on feeding lawyers.

    Those who labour in the earth are the chosen people of God. - Thomas Jefferson

    by Ezekial 23 20 on Tue Sep 08, 2009 at 01:39:21 PM PDT

    •  Then who should represent victims? Non-lawyers? (1+ / 0-)
      Recommended by:
      •  Victims don't need representation (3+ / 0-)
        Recommended by:
        penguinsong, marleycat, Gravis

        if the goal is not to deny claims in the first place.

        The guys on the panel to determine whether a screwup occurred, and if so, how bad it was don't have any skin in the game.  They don't get any more money for denying anyone, they have no reason to deny frivolously.

        Those who labour in the earth are the chosen people of God. - Thomas Jefferson

        by Ezekial 23 20 on Tue Sep 08, 2009 at 04:04:07 PM PDT

        [ Parent ]

      •  Actually, depending on how you mean (2+ / 0-)
        Recommended by:
        penguinsong, marleycat

        represent, come to think of it, the 'representatives' for the victims are the doctors on the panel.

        They're there to collect and assess the facts, and assign payment if malpractice occurred.

        Those who labour in the earth are the chosen people of God. - Thomas Jefferson

        by Ezekial 23 20 on Tue Sep 08, 2009 at 04:12:10 PM PDT

        [ Parent ]

    •  I think you are (0+ / 0-)

      misunderstanding the term 'tort'.  Whether any insurance company is involved doesn't have anything to do with tort.

      I say we just start ignoring corporate voices and stick to real human beings, and then we don't need tort reform, malpractice reform, or vague and unjustified scapegoating of lawyers.  It's all right there in the diary; if you think the problem is anything but insurance companies lying to maximize profits, then you're not paying attention.

      No KennedyCare = No Health Care Reform

      by the tmax on Wed Sep 09, 2009 at 06:05:35 AM PDT

      [ Parent ]

  •  Why are Dr's special? (8+ / 0-)

    We don't have special panels for people injured in airplane crashes, even tho airplanes are highly techical things to understand. We don't have special engineering panels and guidelines for people injured in construction cases.
    If jurors are smart enough to be entrusted with a vote, they're smart enough to decide if a Dr screwed up, and what a plaintiff's loss is worth.

    60 for the Senate. Obama 08.

    by bornadem on Tue Sep 08, 2009 at 02:07:41 PM PDT

    •  Why should there be lawsuits after a plane (0+ / 0-)


      Why should one person's life be worth more than another?

      It would be best to just have a statute that if you get killed in an airplane crash, you get X amount of money.

    •  Doctors aren't special (2+ / 0-)
      Recommended by:
      penguinsong, Eirene

      but medicine is extremely technical and most jurors don't understand the complex problems that can arise, and are instead swayed by emotions.

      •  Most voters don't understand the (0+ / 0-)

        complex issues that surround health care, climate change, ..., and are instead swayed by emotions.

      •  Every lawsuit (0+ / 0-)

        out of small claims and county courts involve technical issues.

        During my tenure in litigation support (office goddess for the past 24 years for a notorious Denver litigator) I've learned about the technicalities of banking, investments, medical coding, zoning, billboard contracts, defamation, wiretapping, tax law, and, currently, coal mine engineering.

        It's all very, very technical.  The successful lawyer is one who can take those technicalities and break them down into bite-sized pieces, understandable within a narrative.

        Evil is making the premedicated choice to be a dick -- Jason Stackhouse

        by Frankenoid on Wed Sep 09, 2009 at 06:11:01 AM PDT

        [ Parent ]

    •  Because doctors are special. They tell us so (0+ / 0-)

      each and every time.

      Therefore it must be true.

      What we call god is merely a living creature with superior technology & understanding. If their fragile egos demand prayer, they lose that superiority.

      by agnostic on Wed Sep 09, 2009 at 04:30:53 AM PDT

      [ Parent ]

  •  Lets not reform torts, (1+ / 0-)
    Recommended by:

    lets just get rid of torts altogether.

    •  Great idea! (3+ / 0-)
      Recommended by:
      ChurchofBruce, KingCranky, cai

      I will trespass on your property tomorrow, and bring all my friends.

      Tonight I'm going to party like it's 1929.

      by Bensdad on Tue Sep 08, 2009 at 08:37:39 PM PDT

      [ Parent ]

    •  I heard a great interview on npr (4+ / 0-)
      Recommended by:
      betterdonkeys, DrFood, Eloise, penguinsong

      they said that we're the only country that resolves malpractice this way.  In Germany, if there is a complaint against a doctor, another doctor in a different area comes and spends a week going through the doctors records, interviewing patients, etc. and then they decide what the punishment for the doctor will be.

      Kaiser, I've been told, has all their patients agree to arbitration should there be a malpractice claim.  

      Just like we say the republicans are in bed with the insurance companies, many claim that  we're in bed with the trial lawyers, which clouds our judgment on this issue.  

  •  Doctor mistakes kill more than auto accidents (10+ / 0-)

    More people die in a given year as a result of medical errors than from motor vehicle accidents, breast cancer or AIDS - so says the National Academy of Sciences.

    Tort reformers want the patient and his family to pay for these mistakes.

  •  I often ask (6+ / 0-)

    why the AMA doesn't police it's own?  They seem more interested in protecting their members than weeding out bad doctors.  We wouldn't need malpractice lawsuits if the national organization yanked a few licenses for malpractice once in a while...

    No politician ever lost an election by underestimating the intelligence of the American public. PT Barnum, paraphrased...

    by jarhead5536 on Tue Sep 08, 2009 at 02:30:29 PM PDT

    •  Two things. (0+ / 0-)
      1. The AMA is not a regulatory body, so it has no say in "weeding out bad doctors." It has absolutely no power in taking away anyone's license.
      1. Only 20-25% of American physicians belong to the AMA, anyway, so they don't speak for all of us.
  •  Yes tort reform is important (1+ / 0-)
    Recommended by:

    Yes, I still say tort reform is essential. Everybody knows the insurance companies are ripping off all parties involved, but that doesn't mean juries should be giving out triple-digit million dollar awards. There is nothing that 100 million is going to do to correct an error that 10 million or even one million cannot.

    I think it was Barbara Boxer who had a great proposal: cap it at either $55,000 for life or the patient's previous salary, whichever was greater.

    •  You've Been Misinformed (9+ / 0-)

      Once again, most states have capped damages except for actual medical expenses and lost income. The story that there's an epidemic of greedy litigants getting multi-million dollar "pain and suffering" awards is a myth.

      •  Yeah but what about pain and suffering? (0+ / 0-)

        Don't try to bullshit me by excluding a major culprit in the massive verdicts. Doctors are NOT the enemies, insurance companies are, and I resent your disdain for the medical profession.

        •  What Planet Are You From (8+ / 0-)

          OK, so I write a diary about how the insurance companies are ripping off doctors, and you say "Doctors are NOT the enemies, insurance companies are, and I resent your disdain for the medical profession"? I ask again, what planet are you from, and do they teach reading there?

          Once again: The insurance companies are lying to doctors about why their malpractice insurance is so high. Big verdicts are not the cause; it's the insurance companies that are the problem.

          Why don't you actually read the diary (if you can) and find out what it actually says?

        •  Oh really? (7+ / 0-)

          Well, you're partially right: most doctors aren't the enemies. However, Public Citizen has a nice publication on the myths of medical malpractice:

          The stats I'm about to talk about are on page 41, and refer to stats from the National Practitioner Data Bank, from 1990 (when the NPDB was set up) to 2003:

          56.2 percent of all malpractice payments have been paid out by 5.4% of doctors. Each of those have had at least 2 judgments against them.

          31.1% of payouts are from 2 percent of doctors. All of those have had at least 3 payouts against them.

          18.8% of payouts come form 0.9% of doctors, all of whom have at least 4 payouts against them.

          The kicker: 83 percent of doctors have NEVER had a malpractice payout (during that 1990 to 2003 time period, anyway).

          Those 5.4%? They are the enemy...and, they're not just the enemy of patients, they're the enemy of the 83%.

          Tort reform will protect the few bad doctors that need their licenses revoked. That's what it will do.

          DKos: The left's home for sanctimonious defeatism since 2008.
          "The last time we broke a president, we got Reagan"--Bush Bites

          by ChurchofBruce on Tue Sep 08, 2009 at 08:58:55 PM PDT

          [ Parent ]

  •  Tort Reform is needed are many changes. (2+ / 0-)
    Recommended by:
    penguinsong, Gravis

    Our healthcare system needs alot of changes. The republicans tried to push Tort Reform through but was shot down. Most all politicians are lawyers and they get 30%+ of the lawsuits. They would like to continue getting that money. So I would not expect Tort Reform. You can thank Congress for that.

  •  More Facts: (5+ / 0-)

    Numerous studies show that malpractice costs add only a small percentage to what we spend on health care.

    According to the 2004 study, "Limiting Tort Liability for Medical Malpractice" by the Congressional Budget Office, it's less than 2%:

    According to page 5 of this 2009 study by the Center for Justice and Democracy
    it's less than 1%.

    And according to this article, malpractice reform has already happened in Texas, but didn't really do any good:

    So, "tort reform" is a red herring.  It seems that Republicans are always wanting to limit the right of people to seek redress in the courts.

  •  Stop saying stuff like this! (2+ / 0-)
    Recommended by:
    Bensdad, Calamity Jean

    Learning things makes my brain hurt! (In other words, THANKS for the informative diary!)

    In the first place, God made idiots. That was for practice. Then he made Rush Limbaugh and Glenn Beck.

    by SciMathGuy on Tue Sep 08, 2009 at 05:12:44 PM PDT

  •  You've Been Rescued (5+ / 0-)

    "What the cynics fail to understand is that the ground has shifted beneath them"

    by ItsJessMe on Tue Sep 08, 2009 at 08:21:20 PM PDT

  •  Great Diary! (1+ / 0-)
    Recommended by:

    And what's this about "capricious juries" my state, these are just called "juries" --12 citizens that we pay practically nothing to decide these things. If you can't live with the verdict, you might prefer a country that does not use the jury system. Most of the time, they get it right. But all of the time we must respect the institution. If you erode respect for the institutions, you get, well, you get America 2009.

    Tonight I'm going to party like it's 1929.

    by Bensdad on Tue Sep 08, 2009 at 08:36:37 PM PDT

  •  I dunno.... (1+ / 0-)
    Recommended by:

    I have a personal experience with all this that makes me not so sure that either side is entirely correct.  

    After my daughter was born, a mistake was made at the hospital and my records were switched with another patient's.  As a result,  I was given medicine intended for that patient, which was injected into me in the middle of the night.  

    I ended up suffering serious complications from this unintended medication, which kept me sick for quite awhile.  When the doctor informed me weeks after what had happened, my first question was:  well, what about the other patient?  We know what happened to me, but if she really needed this medicine, what happened to her?  My doctor's response:  oh, she was fine.  we give this prophalactically (sp?) and most patients don't ever need it.  

    I saw an interesting article that said that tort reform alone doesn't make much of a difference in driving down costs but coupled with best practices reform (don't remember the term but it's the idea of creating a board to advise doctors on most effective practices/treatments) it could make a huge difference.  Doctors wouldn't fear huge lawsuits and they would have the data backing them to do less aggressive treatment/prescription of drugs.  

    •  welllll, no side is ever ENTIRELY correct (1+ / 0-)
      Recommended by:

      How old is your daughter?  Because everyone but the insurance companies have been fighting for better recordskeeping and control since well before HillaryCare, IIRC.

      The term for the board you described is "government rationing", by the way, where Obama has ACORN stormtroopers forcing your doctor to use only socialist-approved practices. {JOKE!}

      No KennedyCare = No Health Care Reform

      by the tmax on Wed Sep 09, 2009 at 06:09:36 AM PDT

      [ Parent ]

      •  my daughter is almost 6 (1+ / 0-)
        Recommended by:

        and I gave birth at one of the top maternity care hospitals in the country.  What surprised me the most when I've told people, including many doctors and nurses, my story, they all say "this happens so much more than people even know about."  Scary.  

        So, I don't buy the whole meme on our side that tort reform is unnecessary and that doctors don't practice defensive medicine and that this doesn't impact our well being and costs.  It cost a whole lot of money to prescribe those unnecessary drugs and a fortune in hospital stays to get me healthy again - and all was completely unnecessary.  

        •  We need to address medical errors in a systematic (2+ / 0-)
          Recommended by:
          kurt, greenmama

          way.  I think of the simple checklists that radically decrease central line infections in ICU's.  They've been proven to work, but the doctors don't like them, because they're stuck with this "I'm the hero, I'm a godlike creature, I don't need the NURSE reminding me to wash my hands" attitude.

          I'm a doctor.  I'm not a hero.  I've been told by colleagues that I need to project more infallibility, in order to have my patients trust me, but I don't think its necessary.  I look things up if I'm not 100% sure of the dose, or the correct term, or whatever.  Most of my patients appreciate this, but I do get feedback from time to time ("why was my doctor looking something up?  Doesn't she know this?") from patients that are still looking for that heroic stereotype.

          It's a cultural thing, but we can change it.

          Universal Health Care - it's coming, but not soon enough!

          by DrFood on Wed Sep 09, 2009 at 12:42:35 PM PDT

          [ Parent ]

  •  I attended a town hall here in Texas (4+ / 0-)

    that was put on by the Texas Medical Association - they are holding these throughout the state to get input from patients, doctors, health care professionals....any citizen that is interested in health care reform.

    It was easily the best of the town halls I went to this month (three others were Congressional teabagger shout n howl fests...)

    What was interesting was that everyone in the room seemed to agree that reform of some sort was necessary - the TMA's line in the sand was NO SOCIALIZED MEDICINE in the form of single payer - but overall the feeling that treating the uninsured or having people become uninsured once they need health care was unsupportable and something HAS to be done to reform the entire system.  Tort reform, of course, came up as necessary - but here in Texas, we've HAD tort reform for years and our state has some of the worst health care statistics of all, particularly for the numbers of uninsured - and McAllen of course is now infamous for having the most expensive care with the worst outcomes!

    The overriding feeling though was that the insurance companies have no fans among the medical folks - they are tired of having to fight the bean counters to get care to their patient, they are tired of some unknown voice on the other end of a phone call making decisions about what care is "approved" (talk about "death panels", eh?), they are tired of the expense, of having payments cut, of not being able to actually practice medicine!

    They were a bit silly with their reverential treatment of the sacrosanct "doctor-patient relationship" as though Marcus Welby was a real, practicing doctor (and they are all Dr. Welby!) but overall, I think there is so much desire for real substantial reform, even from the teabaggers, when you get them out of the mob scenarios.

    I have to laugh though - the teabaggers (and I've talked to lots of them this month!) are all in love with TORT REFORM (they even talk in ALL CAPS).  But when you point out that this is something the states handle on their own, and ask innocently if they are now advocating for the FEDERAL government to make the rules about that, then hmmmm, suddenly a disconnect!

    I try to tell them - tort reform is no silver bullet. And many states already have it and we still face spiralling health care costs.

    Moslty, people are afraid of rationing of care - but that already exists! They have been fortunate enough to not have had to experience it (yet).

  •  Thanks you for this diary (1+ / 0-)
    Recommended by:
    the tmax

    Most of things, taken for granted as facts, in this country are infact myths build on modicum of truth at best.
    They are usually falsehood created by manupulating few for their personal gains.

    American dream is a myth!

    by brown american on Tue Sep 08, 2009 at 09:01:43 PM PDT

  •  Great diary (3+ / 0-)
    Recommended by:
    NoMoreLies, cai, the tmax

    I'm copying and sending to the docs on my email list.

    Private health insurers always manage to stay one step ahead of the sheriff - Sen. Sherrod Brown

    by Betty Pinson on Tue Sep 08, 2009 at 09:05:59 PM PDT

  •  Sen. Gregg (R-NH) had an amendment in HELP markup (0+ / 0-)

    guess what it was called?

    Healthy Mothers, Healthy Babies

    sounds pretty good, right?

    It was tort reform, which set off Sen. Whitehouse (D-RI) into a righteous rant about bad doctors, disabled children, Tocqueville, etc.


    Anyone who has the power to make you believe absurdities has the power to make you commit injustices--Fran├žois-Marie Arouet

    by CA Berkeley WV on Tue Sep 08, 2009 at 09:32:40 PM PDT

  •  Making policy based on outliers.... (3+ / 0-)
    Recommended by:
    kurt, Calamity Jean, the tmax

    Tort reform.  What a crock of shit.  

    of all the lawsuits filed in the US, only about 5% ever see the inside of a courtroom.   Of those 5%, the doctors win about 80% of the time.  Of the 20% that the plaintiffs win, the average amount won is about $50,000.

    Just another way for the refucklicans to convince us we need to give up our rights to sue.   Companies are not regulated by the government, and you lose every right to sue them when they don't self-police, as the libertarian fairy-tale tells us they will.

    Why don't they all just move to Somalia?   Libertarian heaven on earth already exists there!  Everyone is accountable to only themselves, and the government stands in the way of no one!          

  •  Mostly agree...except for insulting title. (3+ / 0-)
    Recommended by:
    DrFood, kurt, greenmama

    Perhaps it should be understandable that physicians viscerally loathe our current malpractice "system". As you point out, we have an inconsistent, largely ineffective state-by-state patchwork of law and precedent. It causes immense grief and anquish for physicians, yet it utterly fails to effectively compensate most patients injured by negligent care. And it provides exactly zero compensation to patients injured or killed by care that isn't negligent, but merely incorrect or ineffective.

    But you grossly oversimplify when you lay the blame at the feet of those evil malpractice insurers, and us gullible doctors for falling for it. There are many beneficiaries of the current "system" who don't want things to change. Attorneys, for instance. A competent malpractice attorney can become very rich suing doctors. That's how John Edwards got that huge mansion, private plane, etc etc. Yes, most cases are decided for the defendent, many don't involve large verdicts, yadda yadda yadda. It only takes a couple of $10 million verdicts to make a very nice career. And seeing as how lawyers write our laws, what are the odds of any "reform" doing away with this gold mine? Just sayin.

    As a physician, I want something a lot better for my patients. I want a system that compensates them for injuries even when nobody screwed up; a system that quickly identifies and rectifies recurrent or systematic errors. I want a system that quickly, ruthlessly and effectively identifies inept physicians, and rapidly re-educates or removes them. Most competent and compassionate physicians I know want the same thing.

    Our current system seems almost designed to sabotage these goals. The capricious yet merciless nature of the malpractice system drives errors underground, making it far more difficult to identify and correct patterns of failure.

    Professionally I am very active in the process improvement/quality assurance aspect of care. I know a lot about this subject. Trust me on this; the current malpractice "system" makes genuine reform much more difficult than it should be. Case in point: legal groups continue to relentlessly chip away at confidentiality/disclosure rules for hospital peer review. The elimination of confidentiality for hospital peer review would further eviscerate our ability to enforce good quality of care standards. But of course, that 'collateral damage' is irrelevant to the goal of the exercise; malpractice attorneys just want to pry open the peer review process to get more ammunition they can take to trial. They're just doing their jobs; but it's making mine much harder.

    •  WATB (0+ / 0-)

      I am so sick to death of whiny ass titty babies taking offense on Dialy Kos.

      Remove the corporate voice of lying insurance companies jacking rates, smoking fat cigars, and lying to their customers, and all your problems with the "system" pretty much go away. They're the ones driving the system; whether anyone else 'wants' to change it is irrelevant. I would call our malpractice system chaotic and imperfect; what makes it capricious and merciless is the malpractice insurance companies lying to their customers.  Everything else is just tragic.

      If nobody ever used 'confidentiality' to try to hide malfeasance, lawyers wouldn't have any need to make your job harder. Either way, I'm as glad they are there as I am that you are.

      But I think that by envisioning a system in which patients are 'compensated even when no error occurred', you are inventing fluffy fever dreams, not providing any realistic alternative to malpractice litigation.

      No KennedyCare = No Health Care Reform

      by the tmax on Wed Sep 09, 2009 at 06:22:25 AM PDT

      [ Parent ]

      •  This already works very well in Scandanavia. (4+ / 0-)

        I wish I could shoot you a reference, but I haveto leave for work in a few minutes. This type of system already works just fine, I believe in the Netherlands.

        Patients who suffer a medical injury, regardless of negligence or lack thereof, receive coverage of all related medical costs plus lost income. No court, no lawyers, no delays. The checks just show up in the mail like a salary check.

        Meanwhile, medical quality is separately addressed by a federal system that obviously has a very powerful incentive to make sure such quality is very high, since it may cost a bundle if it's not. So they're appropriately ruthless in policing physicians. Again, as a physician I have absolutely no problem with that. We have peoples' lives in our hands, so we should be held to very high standards.

        •  This just in: US Not Scandinavia (0+ / 0-)

          And those are ALL NON-PROFIT corporations, heavily regulated.  IOW, little more than quasi-governmental  agencies. And, yes, no court, no lawyer, no delay, and substantially higher taxes. And, finally, being ruthless with doctors is exactly the thing that WATB who support "tort reform" are trying to avoid.

          So, what was your point again?

          No KennedyCare = No Health Care Reform

          by the tmax on Sat Sep 12, 2009 at 09:24:53 AM PDT

          [ Parent ]

    •  When doctors are malpractice plaintiffs... (1+ / 0-)
      Recommended by:
      the tmax

      Years ago, we were representing a prominent heart surgeon in a wrongful discharge/due process case.  He had been peremptorily dismissed from his position as the department head at a medical school.

      As we approached trial, the doctor and his wife took a trip to Philadelphia.  He began feeling ill on the plane, and, as his condition (fever, headache, confusion) deteriorated, he went to an emergency room.  The refused to admit him, saying it was just the flu.

      Actually, it was meningitis, and he sustained major brain damage.  His medical career was over, and he faced years of therapy just to re-learn how to talk and manage day to day activities.

      The suit we were repping him on was gone: there were no future lost wages.  And so he became a malpractice patient.

      Although we didn't represent him in that suit, we did assist his malpractice lawyer.  As his cognitive function returned, he had a new understanding of what medical malpractice was all about.

      Just saying.

      Evil is making the premedicated choice to be a dick -- Jason Stackhouse

      by Frankenoid on Wed Sep 09, 2009 at 06:26:10 AM PDT

      [ Parent ]

      •  I'm all too familiar with the malpractice system. (3+ / 0-)
        Recommended by:
        DrFood, kurt, greenmama

        Like every practicing physician I personally know, I've been sued. My dad's an attorney, as are a number of friends. I know the system very well. It does have its virtues, however limited. The biggest one is simply that it's in existence, rather than theoretical. But it's an impossibly blunt instrument being applied to a complex problem.

        As you undoubtedly know, the current medical malpractice system is about the most inefficient and ineffective method of insuring quality imaginable. Plaintiffs with limited capacity to recover damages because of minimal earnings potential may be unable to find competent representation, no matter how egregious the negligence involved, due to the lack of financial incentive for attorneys. Patients terribly damaged by medical events involving no negligence on anyone's part are screwed, no matter how bad their suffering.

        There are a number of studies showing that only a small minority of patients (roughly one in seven) injured by medical negligence ever bring legal action. On the other hand, only a minority of patients bringing legal action were actually injured by negligent practice. This goes a long way toward explaining why 80% of defendants prevail. The whole system is a train wreck in terms of effectiveness for its claimed goals.

        We could do so much better starting from scratch to design a medical system far less error-prone, with better decision support and quality assurance built-in, coupled with compensation for injured patients that wouldn't require years of litigation and crap-shoot uncertainty for all concerned. And there are far better methods for enforcing professional quality and discipline among physicians than the capricious lightning bolts of litigation. I'm all for much stronger surveillance and enforcement action by State licensing boards. I have twice been involved with removing unethical or abusive physicians from employment. Both occasions were excruciating, largely due to the aggressive defence of these execrable physicians by their attorneys.

        Just sayin.

        •  I agree (2+ / 0-)
          Recommended by:
          kurt, Ralphdog

          was the victim myself of egregious medical malpractice - switching of my records with another patient and giving me that patient's medication to which I had a very serious reaction.  I was sick for many months and required hospitalization too.  We spent quite a bit of money and time to get me better.  And, because this happened when I gave birth, I was toting my baby around to doctors visits, lab tests, etc.  Not fun at all.  

          We spoke with several attorney friends about our options and all said that the laws in our state were such that it would be more hassle than was worth it to sue and that we probably wouldn't get anything back.  I never wanted to make money off of my misfortune, but I would have liked to have been compensated for our expenses and time and also to know that somehow the hospital staff responsible had received some sort of rebuke/punishment.  

          We clearly can come up with a better system that meets the needs of patients and doctors in a more fair and compassionate way.  

          •  Check your state's professional discipline body. (2+ / 0-)
            Recommended by:
            kurt, greenmama

            In my state there's the Office of Professional Medical Conduct (OPMC). They are justifiably feared by physicians because they are empowered to investigate complaints against doctors filed by patients, by fellow physicians, by nurses...anyone. OPMC has complete subpoena power to seize any records any time. They have the capacity to instantly suspend the license of any physician whose further practice is deemed a threat to patient welfare. This can be a real two-edged sword, of course. OPMC has been used as an instrument of vindictive harrassment by genuinely crazy patients who lodged repeated complaints against their poor doc, until after multiple negative investigations the Office finally recognized what was going on. One of my partners was repeatedly investigated by OPMC based on anonymous complaints...until they were traced to a dishonest, dangerously incompetent surgeon he had forced off the hospital staff two years earlier. No good deed goes unpunished, as they say.

            Not every state has such a powerful and aggressive regulatory body supervising physicians, but most have something at least remotely similar. If you feel that your physicians were unethical and/or negligent, and malpractice attorneys were unwilling to consider the case for lack of financial incentive, your state's equivalent disciplinary body is the place to go. They're obligated to investigate, and often empowered to take drastic measures if they're indicated.

            •  thank you for all this information (1+ / 0-)
              Recommended by:

              it's been almost 6 years now, so we've moved on.  It was probably the most painful experience I ever went through - physically and emotionally.  I've always taken such good care of my body, and I felt like I had been so violated.  I wish I had known that information years ago because I would have contacted them.   But, always good to know to pass on to others.  Thanks - I really appreciate it.

        •  You are mistaken (0+ / 0-)

          "On the other hand, only a minority of patients bringing legal action were actually injured by negligent practice."

          The Harvard study (cited and linked to in the diary) and other independent studies show that the large majority of cases that go to trial and which result in an award to the plaintiff have proved real injury by malpractice. Suits without merit generally don't make it to the trial phase.

          •  Read that through again. (1+ / 0-)
            Recommended by:

            If you artificially restrict your denominator to cases which went to trial and resulted in an award to the plaintiff, then it's likely the majority involve real negligence. But that's not what I wrote.

            To repeat: 80% of trials are decided in favor of the defendant. A similar fraction of cases are dismissed or dropped before trial.

            By phrasing the question the way you did, you're throwing out all the votes you don't like. That's intellectually dishonest.

            To repeat what I wrote:
            "only a minority of patients bringing legal action were actually injured by negligent practice".

            This statement remains absolutely correct.

  •  If MDs really want to solve the crisis, they (1+ / 0-)
    Recommended by:
    Calamity Jean

    should commit less malpractice.

    Instead the good ole boy's club remains intact, with many docs refusing to testify against each other, because "it simply isn't done."

    Finding an expert is often a daunting task, not because the target did not cut off the wrong leg, or irradiated a treatable cancer so much that he burned the patient to death, or that she misdiagnosed a common treatable illness, causing it to become fatal, but because doctors maintain a conspiracy of silence.

    It gets worse. The actual quality of care is pretty damned good. But there are a few docs who have the vast majority of claims, and for good reason. These hacks are permitted to continue to practice, despite the fact that they routinely make huge mistakes. Whether it is substance abuse (a growing problem), inattention, or simply because they are bad docs, they get a pass from their brothers and sisters, routinely, inexplicably, and all too often their next  patients suffer the consequences.

    What we call god is merely a living creature with superior technology & understanding. If their fragile egos demand prayer, they lose that superiority.

    by agnostic on Wed Sep 09, 2009 at 04:26:10 AM PDT

    •  If a doctor does a procedure 1,000 (0+ / 0-)

      times, do you think, given that they are human, that they will make errors, just like the rest of us? Are each of those errors malpractice? The problem today is that so many procedures are ordered just to defend against lawsuits, when in fact the patient does not truly benefit. Those costs IMO are much more important than actual malpractice losses or the costs of insurance. Our whole system is too heavily reliant on lawyers.

      I'm in the pro-Obama wing of the Democratic Party.

      by doc2 on Wed Sep 09, 2009 at 07:47:00 AM PDT

      [ Parent ]

      •  most state differentiate between a mistake (0+ / 0-)

        and malpractice.
        Mistakes happen, and are not actionable.

        Malpractice  means that the actions, decisions and treatment did not reach an acceptable level of care.

        Two different concepts, somewhat confusing, but critical.

        What we call god is merely a living creature with superior technology & understanding. If their fragile egos demand prayer, they lose that superiority.

        by agnostic on Wed Sep 09, 2009 at 08:52:36 AM PDT

        [ Parent ]

        •  If only it were the case that mistakes aren't (0+ / 0-)

          actionable. Mistakes ruin careers and drive up costs. There are tons of lawyers whose job it is to advertise looking for people who were victims of mistakes. It shouldn't be that way, it's not helpful to the people of this country.

          I'm in the pro-Obama wing of the Democratic Party.

          by doc2 on Wed Sep 09, 2009 at 01:33:07 PM PDT

          [ Parent ]

  •  Tort reform is not just about lowering (0+ / 0-)

    malpractice insurance costs. We'd all benefit from a more rational system. Ask any doctor what percentage of medical costs are spent not to promote better care for the patient, but rather to appease the lawyers. Estimates range from 40-60%. It is a highly unusual, and very damaging system.

    I'm in the pro-Obama wing of the Democratic Party.

    by doc2 on Wed Sep 09, 2009 at 06:09:06 AM PDT

  •  I'm confused.. (1+ / 0-)
    Recommended by:

    about all the talk of tort reform. I thought we already have it under Bush? I'm in TX, and my 29 yr old Nephew has a growth in his neck that had to be removed-long story short, the doctor cut the trunk of the nerve accidentally, it has caused permanent nerve damage to my nephews face and the doctor even admits his mistake. But a lawyer my nephew talked to told him there was no point in a lawsuit because of tort reform-at the most he could get 150,000, but then he said by the time he took his cut it MIGHT be half that. Is that true in Texas?

    A Southern blue in a big sea of red.

    by retroredux on Wed Sep 09, 2009 at 06:10:23 AM PDT

    •  "it"? (1+ / 0-)
      Recommended by:

      Tort reform, otherwise known as "lying rich people screwing the rest of us again", is something that can be done over and over and over, each time ratcheting the collar around our neck tighter and tighter...

      No KennedyCare = No Health Care Reform

      by the tmax on Wed Sep 09, 2009 at 06:29:36 AM PDT

      [ Parent ]

    •  In contingent fee cases (1+ / 0-)
      Recommended by:

      the standard cut for an award is 33% (one third) for the lawyer... after costs are deducted.

      "Costs" can be very high -- an all-day deposition can be well over $1,000.  Copying costs also can run into thousands of dollars.  And expert witness fees are charged by the hour -- and malpractice suits require experts.

      So yeah, after all the costs, on top of the lawyer's 33% cut, getting half the payout wouldn't be atypical.

      Evil is making the premedicated choice to be a dick -- Jason Stackhouse

      by Frankenoid on Wed Sep 09, 2009 at 06:43:04 AM PDT

      [ Parent ]

      •  thank you for this (0+ / 0-)

        info Frankennoid-that explains it in a better way than the lawyer did.

        This has really messed my nephew up, he's become depressed and stays to himself (which is unusual for him he's a very gregarious guy)his is very embarrased as he now slurs and one eye was also affected. and on top of everything else-it looks like another growth may be forming:(

        A Southern blue in a big sea of red.

        by retroredux on Wed Sep 09, 2009 at 07:08:33 AM PDT

        [ Parent ]

    •  Yes, Texas "tort" already is "reformed" (1+ / 0-)
      Recommended by:

      More than half of the states already have enacted most or all of the tort "reforms" the Right wants in a federal law. But since most personal injury suits are brought under state law, exactly what a federal law would accomplish that state laws haven't is a little unclear. No, it's way unclear.

  •  Interesting post (0+ / 0-)

    I've linked it in Face Book to share with many more people.

    "Nothing in all the world is more dangerous than sincere ignorance and conscientious stupidity." MLK

    by momoaizo on Wed Sep 09, 2009 at 07:12:22 AM PDT

  •  Maybe Lawyers need a different target (1+ / 0-)
    Recommended by:
    Like suing insurance companies for denial of care.
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