Malpractice Rant #XXXXX
June 28, 2004
Brace yourselves for a long one. I have several links to include, plus the usual commentary.
When professions collide. A great rant from Dr. Rangel. Here is an important excerpt.
What few options physicians have is to educate the public and law makers. The tort system as it is does not protect the public from bad physicians. It exists only as a very imperfect “lottery system” to siphon money from insurance companies into the pockets of trial lawyers and to make a few plaintiffs rich. What is needed is an independent review system set up and controlled by the courts to examine cases where malpractice is suspected and to hand down compensation and punishment (including restrictions and revocation of the licenses of “bad apple” physicians) in cases where independent and non-biased “expert witnesses” (selected by the court) determine that malpractice did in fact occur. Such a system would contrast sharply with our current tort system where the objective is to win at all cost and to obtain as big an award for the plaintiff as possible.
Please go read the entire post, as it does a nice job of summarizing the problem. We now go to the ridiculous – our old buddy Bob Herbert, who apparently does not know the difference between fecal matter and shinola. Cooking Up a Crisis. He says the most preposterous things.
There is no question that malpractice insurance premiums have increased sharply over the past few years. In some instances they have skyrocketed. But, as the Congressional Budget Office has noted, there are a variety of reasons for that, including the cost of malpractice awards, decreases in the investment income of insurance companies and cyclical factors in the insurance market.
“Insurance companies’ investment yields have been lower for the past few years,” the budget office said in a report in January, “putting pressure on premiums to make up the difference.”
The disinformation campaign of the tort reform zealots, and their sustained attacks on the rights of patients who have been harmed by doctors, have been disgraceful. The proper prescription for this apparently chronic disorder is a strong dose of the truth.
Why have so many insurers retreated from the malpractice business? They would not leave the business if they were making money. Malpractice insurers are losing money.
I work at an academic medical center. We have a large enough group for self-insurance. We are not in a crisis state. Our malpractice insurance has increased 15% each of the past two years. The only reason it has not risen faster is that our malpractice committee made a decision to hold the increases to 15%.
Herbert’s arguments are ludicrous. Medpundit does a nice job on this one – Herbert Strikes Again
The definition of “frivolous” is one that is difficult to agree on, so Ms. Mortham was understandbly reluctant to make a statement. A lawyer may say that any outcome which is less than the outcome the patient expected is a justifiable reason for a suit. But a doctor may say that if an outcome is a complication that is known to happen as a result of the disease or a procedure, even if it isn’t the perfect outcome the patient expected, is not a justifiable reason to sue.
Bob Herbert has selectively presented one side of the issue, as he so often does.
The AMA also is addressing malpractice today. AMA studies liability surcharges
The hottest topic of discussion: liability surcharges. The idea is that physicians would tack a charge onto patients’ bills to help offset their insurance payment. Low Medicare and even lower Medicaid reimbursement rates combined with managed care contracts that lock in fees have left them no way to recoup increased overhead, physicians said.
“People are trying to be creative so they can do what they were trained to do,” said outgoing AMA President Donald J. Palmisano, MD.
Physicians have experienced double-digit increases in medical liability insurance rates in the past several years, with some high-risk specialists such as obstetricians, neurosurgeons and orthopedic surgeons facing increases of 100% or more. Doctors have pushed for what they see as the solution to the problem — federal tort reform that would cap noneconomic damages awarded in medical malpractice lawsuits at $250,000. But senators who support the reform don’t have enough votes to stop a filibuster. Attempts to pass legislation failed twice this year.
“Tort reform sounds great, but it’s not going anywhere,” said Washington, D.C., orthopedic surgeon Peter E. Lavine, MD. “It [a fee] gets patients’ attention and plugs them into the issue. … Patients may say, ‘I don’t want to pay this,’ and get more involved in tort reform.”
Perhaps we physicians should take dramatic actions like this one to educate the public. We want to achieve “best practices”. Our current tort system actually discourages this. We too often order unnecessary tests just to cover our posteriors. That is not good medicine.
The current system does not protect the public. Doctors and lawyers could work together to create a productive system, but the trial lawyers would not have the prospect of huge settlements. They, the trial lawyers, represent the fly in the ointment. They really do not seem to care about best practice, rather they focus on big settlements. After all, they are having great financial success with the current system. They have no incentive to change.
This ends my long malpractice rant. I suspect that I will return to this subject in the very near future, as it really is the biggest threat to our health care system.
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January 1st, 2005 at 6:28 pm
[...] and value of generalism. Transitions My homage to graduating residents and new interns. Malpractice Rant #XXXXX One of my longer malpractice rants. Picking this partic [...]
June 28th, 2004 at 10:00 am
(1) Rangel, as usual, is razor-sharp in his analysis of the malpractice problem, and his call for an independent body of experts to adjudicate malpractice suits, in place of an irrational jury system that has only abetted the problem, is long overdue. The creation of that independent system alone would solve a lot of the injustices that now clog the courts, all tilted against physicians.
(2) Bob Herbert, as usual, is playing his role as a hack advocate for the trial lawyers. If he believes his own statistics, which were furnished to him by the Center for Justice and Democracy (which is linked to the trial lawyers), it is obvious he knows very little of what is happening. A decade ago, there were more than 60 malpractice carriers in Florida. As the professional liability problem got worse, only six remained last year, and with only four of these six issuing new policies. ( A website, Pointoflaw.com, provides more telling arguments against Herbert’s
prejudiced thinking.)
(3) The idea of liability subcharges has been bruited about in the face of escalating premiums, and apparently has been welcomed by patients in cases where this has been done. I see nothing wrong with this for the high-risk specialists. There is no other way for patients to maintain access to the services of these specialists if they are left with no choice except to retire, leave for more friendly areas, or cut off certain high-risk services.
Malpractice battles are raging in at least 20 states, most of them linked to exorbitant insurance premiums, usually passed on jto physicians due to the huge number of lawsuits and irrational multi-million dollar judgments benefitting mainly trial lawyers — and that should tell us a crisis is brewing that may destroy our health system beyond repair.
June 28th, 2004 at 1:38 pm
How would you calculate a malpractice “surcharge”?
In a way, it implies that a certain premium for insurance is “fair” and does not merit a surcharge, and another rate is not “fair” and does merit a surcharge.
How about simply taking the premium and dividing it by the estimated number of patient visits annually? Or doing the same with some percentage of the premium, say, 50% or 75%?
The idea is to take that cost and transfer it to those who supposedly “benefit” from the status quo. Problem will be, government entitlement programs.
The surcharge idea sounds good, but how to do it as a practical matter?
June 29th, 2004 at 6:39 pm
When patients pay the vast sums of money they do for healthcare, they are bombarded that healthcare is a business. When the business messes up – they feel they need to return the product (? the misdiagnosis).
Canadians and UK docs, very rarely get sued. Why? There is less of a “business” feel to healthcare. You know your doctor isn’t perfect, mistakes will be made. And there is a community feel to the care, not a business feel. You are a patient, not a commodity.
Wisen Up USA, healthcare for everyone = less lawsuits. Put the Lawyers outta business.
June 29th, 2004 at 10:13 pm
>>Canadians and UK docs, very rarely get sued. Why? There is less of a “business” feel to healthcare. You know your doctor isn’t perfect, mistakes will be made. And there is a community feel to the care, not a business feel. You are a patient, not a commodity.
This gets tiring.
There is less malpractice litigation in the UK because the government limits access to jury trial, contingency fees are prohibited, and the loser pays court costs and legal fees for the prevailing side.
June 30th, 2004 at 6:43 pm
So much of the content on your blog is well reasoned that I am mystified and troubled by your thoughts on medical-legal issues. I am an attorney interested in reform that will improve the legal system and the medical system, and I think that the ideas you embrace do not seem to be the best route to achieve those goals.
The article “Making a Case for Overhauling the Malpractice System” (published on the American College of Physicians website at http://www.acponline.org/journals/news/jun04/malpractice.htm) reports Dr. Robert Berenson’s conclusion that the current “tort reform” agenda “will keep physicians paying high premiums, stop injured patients from being adequately compensated and hinder efforts to improve patient safety.” I agree.
You have advocated in favor of a $250,000 cap on non-economic damages. Yet the vast majority of doctors carry less than $250,000 in coverage. How will a $250,000 cap on non-economic damages affect premiums on policies that provide less than $250,000 in coverage? Either such a cap would not affect premiums at all or it would affect premiums only in a very indirect and inefficient manner. Moreover, a cap that would apply across the board would have the greatest effect on those patients who suffer the most grievous harms and the least effect (likely no effect) on the patients who suffer minor or disputable harms. If there is a brisk trade in frivolous lawsuits, which some doctors believe, then such meritless claims are not being resolved for amounts approaching amounts anywhere near $250,000 and any law practice based on such claims will be completely unaffected by a $250,000 cap on damages.
You have advocated for reforms in connection with the collateral source rule as a means of preventing double recovery. Surely, in your experience with insurance companies, you must have noticed that the insurance industry will not allow an insured (whether a patient, an auto policy holder, or a doctor with malpractice coverage) to retain funds where two policies have paid twice for the same loss. Invariable, if the patient’s medical insurance has initially paid some of the same costs which overlap with elements for a subsequent award based on malpractice, then the patient’s medical insurer will have a right to subrogation (or reimbursement) out of any recovery for those funds it initially paid out. The recovery of such as costs as medical expenses is generally a fight between the patient’s medical insurance and the doctor’s malpractice insurance; there is no double recovery or windfall.
You have also advocated for changes in the contingency fee system. Yet this very system is the surest form of free market protection against so-called “frivolous” lawsuits. You have commented in the past about the high fees paid to testifying medical experts and other costs of litigation. If a lawyer paid on contingency is incurring these costs, then isn’t he or she financially interested in pursuing only those cases which are the most meritorious and least “frivolous”? If the lawyer is paid by the patient on an hourly basis, then the lawyer has no financial interest in limiting his or her practice to only the most meritorious cases (and, of course, access to justice would be denied those who couldn’t afford to pay a lawyer hourly).
Medical malpractice insurance premiums have increased at a pace comparable to the increase in legal malpractice insurance premiums. There is no “legal malpractice lawsuit crisis” to explain these legal malpractice premium increases. Likewise, there is only conflicting (and arguably biased) evidence with respect to the publicized effort connect increases in medical malpractice insurance premiums with a supposed increase in either the number of suits filed or the amount of payments on claims. I regret that so many doctors have come to see lawyers as the cause of this problem. Of course I am disappointed that these doctors have such an unfavorable impression of the legal system, but I am most distressed that many of those doctors see cutting off their patients’ rights as a way to regulate the lawyers they blame for their insurance premiums.
June 30th, 2004 at 10:53 pm
>>Yet the vast majority of doctors carry less than $250,000 in coverage.
Do you have ANY reference for this little factoid?????
July 1st, 2004 at 2:05 pm
“There is less malpractice litigation in the UK because the government limits access to jury trial, contingency fees are prohibited, and the loser pays court costs and legal fees for the prevailing side. ”
Well then I guess Canadians and the Brits just have/elect better governments and lawmakers !
July 1st, 2004 at 4:17 pm
Whatever.
The point is, they do not have less litigation in the UK because of a single-payer system, it is because the UK has “tort reform” far harsher than ANYTHING ever proposed in the USA.
And, not surprising, the person who calls himself a lawyer “researching” medical/legal reform has nothing to back up his statements.
Typical.
Mapractice limits of less than a quarter mil…….I think the worst I ever had was $300K and I thought that was unacceptable. Every other practice, in several states, over about 20 years, has been one million/three million. Of course, some docs go bare. I don’t think that constitutes “malpractice coverage” though.
July 2nd, 2004 at 8:38 pm
Sepsis kills 200,000 Americans a year. Those deaths are not acts of God, they are basically legal homicides. Maybe we should try reducing the amount of medical malpractice in this country.
July 3rd, 2004 at 8:44 pm
why don’t you sue the bacteria?
July 4th, 2004 at 5:18 pm
I would rather sue doctors who make 100x the money than I make. if you wouldn’t charge so much maybe people would not wan’t to sue you.
my cable tv costs 60 dollars in a month. my phone costs 60, my electric bill costs 150. my medical insurance bills are 600 per month. that’s why I wan’t to sue you becuase you charge so much.
July 5th, 2004 at 1:51 pm
You should sue the school system that left you so ignorant.
July 6th, 2004 at 9:46 pm
sure I might be “ignorant” but I know now how I can get some payback for my thousands of dollars that my family must pay to have medical care.
don’t take it personally but I need the money more thsn you. it’s not pretty… but it’s reality. not bad for being an ignorant customer. Amen to JOHN EDWARDS and KERRY
July 9th, 2004 at 9:32 am
arf and others should look at these two excellent letters inthe Wash Post: http://www.washingtonpost.com/wp-dyn/articles/A37926-2004Jul8.html
excerpts:
” California provides another cautionary tale. In 1975 California enacted the Medical Injury Compensation Reform Act, yet premiums for medical malpractice in California grew more quickly from 1991 to 2000 than in the nation — 3.5 percent vs. 1.9 percent. Between 1975 and 1993, California’s health care costs rose 343 percent.
Only after insurance reform was enacted did malpractice insurance rates drop. Whatever improvements have been made in California regarding malpractice insurance are the result of insurance reform, not tort reform. ”
The insurance companies rip us off and arf wants to blame the patients and their advocates.
I know – don’t say it again – “I’m ignorant”
July 9th, 2004 at 12:26 pm
yawn.
Same old, machi.
A couple of people write letters to the Wash Post, therefore it’s true.
People in California sue more…..for smaller amounts. That puts the lie to the claim that tort reform limits the “right to sue”. Their (California) overall malpractice premium run higher than my state.
If there were no tort reform in their state, the premiums would be orders of magnitude higher……if you could get insurance at all.
July 10th, 2004 at 4:23 am
First, I guess I’d like to know how doctors make (100s of times) what you make. Since the average physician salary is $140,000 are you making less than $1400? If so, maybe getting a job would help.
———————-
I know no physicians with less than a million in coverage, that’s pretty much a standard minimum these days.
—————————-
Again, if insurance cos were ripping everyone off why have 75% of them stopped providing malpractice insurance in the last 5 yrs? Why are physicians in some areas completely unable to obtain coverage? That makes no sense. The Prop 103 issue is far more complex than that, BTW. Rates dropped when all legal hurdles to MICRA were passed, two years prior to Prop 103.