Aaron comments once again

Actually, in addressing the standard of care, I was specifically responding to your comments:

Caps will not change health care costs at the state level because “standards of care” diffuse across the entire country. Alabama is not insulated, nor is California, Minnesota or Arizona. Physicians train across the country and move. Continuing medical education is not state specific.

You were the one who was suggesting that it was desirable to establish a national standard of care. While I agree with your point, I responded by nothing the fact that it is your insurance and medical lobbies which work overtime to prevent such standards from developing. I don’t recall that either of us said that it would be “easy” to develop objective, national standards of care.

As for your notion of medicine as more of an art than a science, that relates back to your earlier call for evidence-based medicine. To the extent that you are putting the art ahead of the science, you weaken all of your arguments against the jury system. If doctors cannot formulate a reasonably scientific or evidence-based methodology to determine standard of care, even on the most basic of medical procedures, what makes their judgment superior to that of a lay jury? And if they can, why are you arguing?

Your last paragraph on standard of care appears to be a significant contradiction of your prior argument. Do you want to work toward a more consistent, more national standard of care, which can provide doctors with at least some assurance that their practice won’t be deemed substandard, assuming they keep up with new developments such as the Vioxx recall? Or are you back to stumping for the insurance lobby, and repudiating your earlier comments in favor of a more uniform standard of care?

(Besides, who said a standard of care has to capture every nuance of a situation in order to be useful? Standards and protocols already exist – you find them all worthless, because they don’t cover every possible nuance? I doubt it.)

Your comments on “subsidizing” insurance put me in mind of the sleight of hand you are using to place the burden of malpractice costs on the doctor. Your earlier comments suggest that you don’t pay your own malpractice insurance – your comments suggest that it is borne by your institution – but you still recount a dollar figure and speak of it as a percentage of salary. So a physician with a private practice should presumably deduct all office expenses and overhead *except* for malpractice insurance, determine a salary, and only *then* deduct the insurance as a “percentage” of salary? That’s not the way business accounting typically works. And if an institution pays a salary to an individual who then obtains his or her own malpractice policy out of the salary, are we to assume that the salary is set without taking into consideration the cost of malpractice insurance? Of course it would, so is the insurance thereby “subsidized”?

Further, it is you who then argues that your alternative system of liability would be “subsidized by hospitals, pharmaceutical companies or the government” – If you are in fact suggesting that it is inappropriate for these institutions to “subsidize” the cost of your malpractice insurance, why should they subsidize your alternative system>

Your argument about “deep pockets” is interesting, but really – hospitals are usually the party with the deep pockets. Also, complaining about “deep pockets” misses the fundamental point – which is that somebody has to bear the cost of the injury imposed on the victim of malpractice. You apparently prefer that it be the victim? And you complain that lawyers want it to be the culpable party? Which is the moral position?

In terms of what lawyers “typically” do in naming every party that is potentially liable, they’re just practicing “defensive lawyering” – you would have them accidentally neglect to name the culpable party and commit malpractice? (Do you find it ironic that malpractice lawyers worry about being sued for malpractice, in no small part as a result of the byzantine laws and rules the medical lobby has successfully imposed on their practice?)

As I am sure you know, one of the reasons lawyers screen cases for the potential for recovery – and turn away many bona fide malpractice cases when the potential recovery is deemed “too low” (with that figure, in many states, now typically translating into “anything less than a six figure recovery) is because your insurance lobbies have been so successful at raising the cost of litigation to the point where “small” cases are not economically viable. I would not expect your lobbies to favor a system which allowed the victims of “lesser” malpractice to obtain recovery, after investing so many years and dollars working lobbying for laws and policies which effectively exclude them from the system.

I’m not sure what you think you mean when you declare, “Expert panels would work like all expert panels”. There is no uniform approach to the “expert panel”. What “expert panels” presently exist which follow the model you propose?

I am also not sure how the “expert panels” would actually work – it is pretty common in my experience to encounter a doctor who will honestly answer, “that is outside of my expertise”, when asked a question which would seem remedial to a doctor in a different specialty. I don’t think this would change within six months of service – even full-time service – and would estimate that the likelihood would be further reduced by your throwing laypersons and judges into the mix. I think you would continue to need experts, just as experts presently testify at coroner’s inquests (even where the coroner is a duly licensed and qualified medical expert). I’ll admit that I haven’t been a party to any peer review proceedings, but even there don’t you rely upon the knowledge of peers who have expertise in the particular type of situation under review, as opposed to taking the position that “We’re all doctors – so one opinion is as good as another”? (And why isn’t peer review working to detect patterns of complaints and errors? Or do you believe such a system must be public to be effective?)

Also, as anybody who has attended an arbitration can tell you, the mere fact that the parties can agree on a panel of bona fide experts to decide their case does not mean that the proceedings will necessarily be any less adversarial than a standard trial proceeding.

Would these panels apply some sort of “table of damages” to the cases they review, for the “objectivity” you previously suggested could be derived from such tables? If so, I again ask that you give us some sort of example of this table – what type of “pain and suffering” awards might be objectively appropriate for various injuries.

Also, if I may return to other unanswered questions, what of the studies which indicate that only 12% of medical malpractice victims even seek compensation? (Figures which I have never heard challenged by the malpractice insurance industry or medical lobbies.) As it seems, the medical lobby has no interest in advancing the limited experiments with liability pools for certain birth injuries on a national basis – whatever the merits of those pools, and despite the benefits they offer to injured babies and to obstetricians. Why not?

Aaron:

You are correct about the malpractice insurance costs being treated as an expense–it is in fact that as much as any other professional expense is treated as such. There are instances where it is treated as a personal benefit–sometimes this is done by HR people who “calculate” valuation of compensation packages when presenting employment offers. But it is a requirement to practice, no less than a licensing fee, and under the typical reimbursement patterns in US private practice, is exceedingly hard to offset when Medicare and private-contract insurers effectively fix prices–which they do–and also set limits on the maximum charges that can be levied even by those who do not accept payments directly from Medicare. So increases in insurance, absent increases in revenue, cut against the remainder of the receipts not claimed by other business expenses, and that is the fund used to pay the doctor, in most situations. (In another “sleight of hand” exercise, some have called this the “profit” of the practice, as if somehow the compensation to the doctor had no market value itself. In fact it should be treated as a business expense, too, but is often regarded as fungible, subject to rises in other practice expenses, which are not regarded as such.) So big jumps in premiums charge directly against physician income. That isn’t an illusion. And it isn’t different from any other business, except medical care lacks pricing freedom, and unlike retail, or farming, or even law work, we can’t raise the price of our services when our costs go up. So it isn’t dishonest to count malpractice insurance right against physician net practice income, because that is exactly where it is charged.

Just read in my newspaper, The Courier-Journal in Louisville KY. that the number of OB’s in KY in 1999 was 671 and in 2003 it was 459. Malrpractice premiums here have increased from about $25,000 in 2000 to about $88,000 this year. Yep no malpractice crisis in KY.. no sir… none at all……

Why do we all (Kevin, DB, Kerry, Bush, NEJM, etc) insist on talking about medical costs driving insurance premiums and never point to the possibility of insurance company greed driving medical costs? Do we really think they are so innocent? Read this:
http://www.nytimes.com/2004/10/18/business/18insure.html
QUOTE:
“The Marsh executive asked the insurance company in an e-mail message to send someone to a meeting to pretend to make a bid for an insurance policy being sought by a customer – even though Marsh had already decided to steer the business to another insurer that agreed to pay a kickback to Marsh.”

[Not a health insurance deal but still - same greedy industry]

Machi

Re: Comment 9:

“The problem is that currently trial lawyers see the physicians as having the “deep pockets”. They generally name every physician who saw the patient, regardless of that physician’s involvement in the alleged malpractice.”

This is not factual in the least. Again refer to the legality of standard of care, in even being able to file a suit.

Well, someone needs to tell the judges and lawyers in Ohio that, because malpractice attorneys file suits like this all the time. Not only do they name every single doctor involved in the care, they even name those whose signatures they can’t read, calling them “John Does.”

Aaron,

Did you get up on the wrong side of the bed this morning. You seem somewhat caustic today.

I’m no computer genius so I didn’t include a link, but the Courier Journal has a web site, so maybe you can read the story there.

All the doctors interviewed gave up obstetrics because of the significant increase in malpractice premiums…so I was paraphrasing the article in very short post. Maybe my knee twitched a little bit, but at least I kept my sarcasm in check.

Aaron and others,
If you lost a loved one would you consider that junk and frivilous?
Malpractice cap the target
_______________________

MAN ON A MISSION: He’ll protest at convention
by Ann Trafton
The Patriot Ledger

A Pembroke man with a lonely mission will be among the hundreds of thousands of protesters expected to descend on the GOP convention in New York City next week.
John McCormack, whose baby daughter Taylor died in 2000 after doctors delayed emergency surgery, wants some answers from President Bush regarding the president’s proposed $250,000 cap on awards for pain and suffering due to medical malpractice.
“I want to ask him the really hard question- if this happened to his wife and his children, are they worth $250,000?” said McCormack, who will wear a sandwich sign bearing photos of Taylor and statistics about medical malpractice.
Although McCormack plans to travel and protest alone, he says that Taylor, who would have turned 5 last Monday, will be with him in spirit.
“I think that’s my daughter’s legacy, to make society a better place, and I’m her voice to do that,” he said.
McCormack is suing three Children’s Hospital physicians because 13- month old Taylor died after surgeons there postponed surgery to relieved pressure on her brain.
He says the lawsuit and his opposition to award caps are not about money.
“There’s not enough money in the world that’s going to make me whole again, I’m always going to have that loss,” he said. “ I’m living every parent’s nightmare and I don’t want other families to have to go though it.”
After they were barred from disciplinary hearings for their daughter’s doctors, McCormack and his wife, Catherine, fought for Taylor’s Law, which gives patients and their families the right to be present with an attorney and confront doctors at such hearings.
Gov. Mitt Romney signed the legislation into law in May, and McCormack now hopes to take the measure nationwide
By taking his message to the Republican convention, McCormack hopes to draw more attention to the plight of families who have lost loved ones through medical malpractice.
He is heading for New York on Monday night and will spend all day Tuesday wearing his sign and handing out copies of a book called “ Wall of Silence: The Untold. Story of the Medical Mistakes That Kill and Injure Millions of Americans.”
McCormack plans to be at several areas in the city, including Rockefeller Plaza, Times Square and Madison Square Garden, the site of the convention.
He said he’s frustrated that the president, who characterized malpractice lawsuits as “ junk” and “frivolous” has refused invitations to meet with the Center for Justice and Democracy, which advocates for the rights of malpractice victims.
McCormack said he voted for Bush in 2000, but now says, “That was a great mistake. I thought he was a stand-up guy but evidently he’s not.”
His response to Bush’s assessment of malpractice lawsuits is written boldly across his sign, above a photo of Taylor: “ My child is not frivolous or junk, She’s a human being.”
McCormack, a state trooper, said he plans to protest peacefully and is not fazed by the tight security that will be in place around the city.
“I’m not breaking any laws,”he said, “I’m just exercising my First Amendment rights of freedom of speech.”
Anne Trafton may be reached at atrafton@ledger.com. Malpractice cap the target
_______________________

MAN ON A MISSION: He’ll protest at convention
by Ann Trafton
The Patriot Ledger

A Pembroke man with a lonely mission will be among the hundreds of thousands of protesters expected to descend on the GOP convention in New York City next week.
John McCormack, whose baby daughter Taylor died in 2000 after doctors delayed emergency surgery, wants some answers from President Bush regarding the president’s proposed $250,000 cap on awards for pain and suffering due to medical malpractice.
“I want to ask him the really hard question- if this happened to his wife and his children, are they worth $250,000?” said McCormack, who will wear a sandwich sign bearing photos of Taylor and statistics about medical malpractice.
Although McCormack plans to travel and protest alone, he says that Taylor, who would have turned 5 last Monday, will be with him in spirit.
“I think that’s my daughter’s legacy, to make society a better place, and I’m her voice to do that,” he said.
McCormack is suing three Children’s Hospital physicians because 13- month old Taylor died after surgeons there postponed surgery to relieved pressure on her brain.
He says the lawsuit and his opposition to award caps are not about money.
“There’s not enough money in the world that’s going to make me whole again, I’m always going to have that loss,” he said. “ I’m living every parent’s nightmare and I don’t want other families to have to go though it.”
After they were barred from disciplinary hearings for their daughter’s doctors, McCormack and his wife, Catherine, fought for Taylor’s Law, which gives patients and their families the right to be present with an attorney and confront doctors at such hearings.
Gov. Mitt Romney signed the legislation into law in May, and McCormack now hopes to take the measure nationwide
By taking his message to the Republican convention, McCormack hopes to draw more attention to the plight of families who have lost loved ones through medical malpractice.
He is heading for New York on Monday night and will spend all day Tuesday wearing his sign and handing out copies of a book called “ Wall of Silence: The Untold. Story of the Medical Mistakes That Kill and Injure Millions of Americans.”
McCormack plans to be at several areas in the city, including Rockefeller Plaza, Times Square and Madison Square Garden, the site of the convention.
He said he’s frustrated that the president, who characterized malpractice lawsuits as “ junk” and “frivolous” has refused invitations to meet with the Center for Justice and Democracy, which advocates for the rights of malpractice victims.
McCormack said he voted for Bush in 2000, but now says, “That was a great mistake. I thought he was a stand-up guy but evidently he’s not.”
His response to Bush’s assessment of malpractice lawsuits is written boldly across his sign, above a photo of Taylor: “ My child is not frivolous or junk, She’s a human being.”
McCormack, a state trooper, said he plans to protest peacefully and is not fazed by the tight security that will be in place around the city.
“I’m not breaking any laws,”he said, “I’m just exercising my First Amendment rights of freedom of speech.”
Anne Trafton may be reached at atrafton@ledger.com.

John, I have been pretty consistent in pointing out the fact that damages caps are directed at the most clear-cut malpractice cases with the most seriously injured victims. Don’t confuse me with those who would put the rights of the offender ahead of those of the innocent victim.