Justinian Lane

Health Insurance Company Routinely Dropped Coverage For Individuals With HIV For Bogus Reasons

Note that this only came to light because of a civil lawsuit.

Previously undisclosed records from Mitchell’s case reveal that Fortis had a company policy of targeting policyholders with HIV. A computer program and algorithm targeted every policyholder recently diagnosed with HIV for an automatic fraud investigation, as the company searched for any pretext to revoke their policy. As was the case with Mitchell, their insurance policies often were canceled on erroneous information, the flimsiest of evidence, or for no good reason at all, according to the court documents and interviews with state and federal investigators.

Source: Insurer targeted HIV patients to drop coverage | Reuters

Posted at 12:52 PM, Mar 18, 2010 in Health Care | Health Insurance | Permalink | Comments (0) | TrackBack (0)

Justinian Lane

Guest Post About Medical Malpractice

Jeffrey Adams, an attorney in New York submitted the following as a guest post to this blog.  It was written earlier this year, so time references like “this week” might be a little off, but the rest of the data is sound. 

“First thing we do, let’s kill all the (personal injury) lawyers”, or something like that, William Shakespeare’s oft quoted and frequently misinterpreted line from Henry VI, was meant as a complement to judges and lawyers who champion justice, not as an attack on them.

Last month I discussed insurance company profits, and presented some examples of how consumers are safer and society is improved as a direct consequence of lawsuits. Yet many special interest groups maintain that the Country would be for the better without personal injury lawyers. As the health care debate escalates, as costs continue to spiral upward, and as society consumes more health care would tort “reform” lower health care costs? Topical question and, I submit, when the facts are presented, very easy to answer.

Recently on “This Week with George Stephanopoulos”, Senator Orrin Hatch, R. Utah, stated that “We’ve got to find some way of getting rid of the frivolous cases, and most of them are.” Without pause, Senator John Kerry, D. Massachusetts, chimed “And that’s doable, most definitely.” The actuarial consulting firm Towers Perrin has determined that malpractice costs (litigation, insurance, etc.) account for 1 to 1.5 percent of total medical costs ($1 – 1.50 of every $100). This has been adopted by the nonpartisan Congressional Budget Office (“CBO”). The CBO finds the argument that doctors practice “defensive medicine” or conduct extensive procedures as a consequence of malpractice litigation, at best, inconclusive.

A common argument of tort reformers is that doctors have to practice “defensive medicine”, physicians shunning certain specialties, and damage awards. The credible evidence strongly suggests that these arguments are all straw men. Defensive medicine is no different than defense driving. Applications to medical schools continue to rise. Damage awards increase as the economies of scale raise the threshold of baseline cases, but overall remain constant.

As many as 98,000 people die each year due to preventable medical errors. By comparison, each year approximately 44,000 women die due to breast cancer, 42,000 due to motor vehicle collisions, and 18,000 due to homicides. Lawsuits although arduous, are a necessary reality.

A frequently referenced study conducted by The Harvard Medical Practice had practicing physicians and nurses review 31,000 medical records. They concluded that 1 in 25 was injured by their doctor, and that 4 percent (1 in 25) sued. In another study, researchers from Harvard School of Public Health, Brigham and Women’s Hospital, and the Harvard Risk Management Foundation examined 1,452 medical malpractice lawsuits. They found that over 90 percent of the claims showed evidence of medical injury and in 60 percent of these cases the injury resulted from physician wrongdoing.

Tort reformers claim that caps on pain and suffering awards will lower malpractice insurance rates, thereby reducing medical costs. The evidence strongly suggests otherwise. Many States that have caps have higher rates than States that do not; five States that recently passed caps had double digit rate increases; reductions in litigation in States with caps is negligible, because practically speaking most claims are never pursued; and is States with caps patient care is not has not been shown to have improved and some studies suggest the converse.

For a more comprehensive analysis please read Medical Liability, Malpractice Insurance and Health Care. (http://insurance-reform.org/TrueRiskF.pdf ).

I think it fair to concede that the system must be improved upon. Denying access to Court, limiting recovery, and treating victims as pariah’s is not the answer. Tort reformers should not be allowed to harm the true victim a second time; this is antithetical to the American Civil Justice System, and an affront to fairness and decency.

Next month I look forward to discussing the more mundane subject of motor vehicle collisions.

The fact is that in New York malpractice lawsuits have not gone up over the last 12 years and payouts have gone down dramatically over the last three years according to the comprehensive study by the non-profit New York Public Interest Research Group. Yet malpractice premiums go up. Why? Don’t ask the lawyers - ask the insurance industry.

Jeffrey M. Adams

Posted at 11:19 PM, Mar 16, 2010 in Medical Malpractice | Permalink | Comments (2) | TrackBack (0)

Justinian Lane

Join The TortDeform.Com Group At Facebook

Guess what?  Facebook just surpassed Google as the most visited site on the Internet.  Guess what else?  TortDeform has a Facebook group.  Check it out, join, and become a contributor to the group.  Those interested in becoming contributors here can do that through the Facebook group, too. 

Posted at 7:08 PM, Mar 16, 2010 in Civil Justice | Permalink | Comments (3) | TrackBack (0)

Justinian Lane

Emergency Room Doctors In Georgia Can Now Make Medical Mistakes With Impunity

If you, or I, or anyone else who isn’t a doctor injures someone in Georgia, we’ll be found liable if the jury finds us negligent.  But if an emergency room doctor in Georgia injures a patient, he or she will not be liable unless he or she was grossly negligent, which is a much higher standard:

The Supreme Court of Georgia on Monday dealt a two-pronged blow to plaintiffs lawyers, rejecting challenges to two parts of the 2005 tort reform package.

The court split 4-3 to uphold a rule that demanded evidence of "gross negligence" on the part of emergency room doctors in order to sustain a medical malpractice claim. The court also divided 5-2 to uphold a fee shifting rule that is supposed to deter the filing of frivolous suits and encourage settlements.

The state high court did not issue a ruling Monday in the most closely watched case over the legislation — a challenge to the caps on noneconomic damages in medical malpractice cases. That case is expected to be decided by the end of this month.

Source: Law.com - In Win for Tort Reform Advocates, Ga. Supreme Court Upholds ER Med-Mal Standard

I can’t come up with any good reason why a primary care physician should be liable if he or she makes a “regular” mistake in treating a patient, but an emergency room doctor who makes the same mistake won’t be held liable.  Does it matter to the patient whether the injury took place in an emergency room or in a planned surgery?  It wouldn’t to me.

I suppose this law was enacted because of a purported inability for emergency room doctors to afford medical malpractice insurance.  But does that really justify letting them make medical mistakes with impunity?  And that’s the basic result of this decision, because the gross negligence standard is so high that only blatant medical errors will subject an E.R. doc to liability.

Now that the law has been upheld by the court, should I expect that medical malpractice insurers will be drastically lowering rates for E.R. docs?  I wont hold my breath on that one…

Posted at 12:59 PM, Mar 16, 2010 in Medical Malpractice | Permalink | Comments (4) | TrackBack (0)

Justinian Lane

More evidence that there isn’t a medical malpractice crisis

Medical malpractice payments totaled .14 of 1 percent of healthcare spending.  Just how much lower do we need to go before the “crisis” is over?  Is it like drunk driving and we need to get below .10 or .08? 

WASHINGTON – Fewer medical malpractice payments were made on behalf of doctors in 2009 than any year on record, according to the National Practitioner Data Bank.

This finding contradicts claims that medical malpractice litigation is to blame for rising healthcare costs and that changing the liability system to the detriment of patients will not curb costs.

The value of malpractice payments was also the lowest since 1999. Adjusted for inflation, payments were at their lowest since 1992, a Public Citizen analysis of the NPDB shows.

According to the analysis, healthcare spending rose 83 percent from 2000-09, while medical malpractice payments fell 8 percent (both figures are in unadjusted dollars.)

A total of 10,772 payments were made on behalf of doctors in 2009, totaling $3.49 billion. That figure equals 0.14 of 1 percent of the Centers for Medicare and Medicaid Services’ estimated $2.5 trillion in overall U.S. healthcare spending for 2009.

Analysis: Medical malpractice payments continue to fall | Healthcare Finance News

Posted at 5:35 PM, Mar 15, 2010 in Medical Malpractice | Permalink | Comments (0) | TrackBack (0)

Justinian Lane

Will The Georgia Supreme Court Overturn Medical Malpractice Damage Caps?

They’re going to have the chance to do just that thanks to this trial court decision:

A Fulton County judge has struck down the cap on monetary awards in a medical malpractice case, a decision that if upheld on appeal could undercut a major component of Georgia’s tort reform laws.

Superior Court Judge Marvin Arrington wrote in an order released Wednesday that the legislative cap of $350,000 for noneconomic damages such as pain and suffering was unconstitutional because it gave special protections to the medical profession. This meant people injured by doctors had less protection than those injured by, say, a manufacturer’s product.

Source: Judge strikes down cap on malpractice suit awards | ajc.com

Posted at 5:13 PM, Mar 15, 2010 in Damage Caps | Medical Malpractice | Permalink | Comments (0) | TrackBack (0)

Justinian Lane

The One Group That Was Not Made Whole: INJURED PATIENTS

The following email was sent to me by an attorney who monitors the civil justice system in Maryland.  I thought it was worth reposting here:

by Wayne M. Willoughby

Past President, Maryland Association for Justice

In 2004, hysteria struck Annapolis. Hordes of physicians in white coats descended upon the State House demanding so-called “tort reform” as the fix to their rising malpractice premiums. The Maryland Association for Justice (then known as the Maryland Trial Lawyers Association) stood virtually alone in opposing the fear-driven throng.
MAJ retained a highly respected insurance analyst, Jay Angoff, to examine the recent malpractice premium hikes. Mr. Angoff was the third-longest serving insurance commissioner for the State of Missouri and previously had served the State of Maryland as the State’s insurance expert in other matters. His conclusion: the malpractice premium increases that caused the panic were totally unjustified; the doctors were being gouged by their insurance carrier.

So, MAJ advised the members of the General Assembly that they were being hoodwinked. What was needed was aggressive insurance regulation to prevent carriers from gouging doctors, not new laws depriving injured patients of full and fair justice in our courts.

Nevertheless, swept up in the frenzy, the General Assembly enacted House Bill 2 containing a premium subsidy for physicians and some measures that severely punished injured patients. One such measure lowered the damage cap on wrongful death and survival claims to the point that the life of a malpractice victim in Maryland is now worth at law only 50% of the life of a victim of other forms of negligence.

Time proved MAJ was correct, the malpractice “crisis” of 2004 had been a cruel hoax on the public and the General Assembly. Within seven months after passage of HB 2 – years before HB 2’s tort “reforms” could affect claims payouts and premiums – Maryland largest malpractice carrier, Medical Mutual, announced it would not increase premiums for 2006.

For 2007 the carrier lowered its base premiums by 8% and announced a $68.6 Million dividend for its insured physicians. With a new consumer friendly Governor in office, and his new insurance commissioner at the helm, Medical Mutual’s move was greeted by the Maryland Insurance Administration with a cease and desist order.
As a result, the taxpayers of Maryland were able to recoup from Medical Mutual the approximately $84.Million that had been paid to the company for rate stabilization under HB 2. Medical Mutual’s finances were so superb that it still issued a $13.8 Million dividend to physicians and lowered its premiums 8% for 2008 despite paying $84 Million back to the State.

Then, in 2009 Medical Mutual lowered its premiums by 31% (an 11% base premium reduction and a 20% dividend for renewing physicians). Again, in 2010, Medical Mutual announced another 31% premium reduction (11% plus 20%).

Consequently, the events after the 2004 Special Session demonstrate the truth of what MAJ has said all along: The “crisis” of 2004 was no crisis at all. It was little more than a raid on the public treasury and the legal rights of injured patients accomplished though the use of fear to manipulate public opinion and the legislature.
Although the taxpayers of Maryland have been made whole because of the decisive actions of Governor O’Malley’s insurance commissioner, and doctors have access to “available and affordable” insurance (per the official Maryland Insurance Administration’s report), there is one group that has not been made whole from the damaging effects of the contrived crisis of 2004: injured patients.

Now pending before committees of the General Assembly is a cross-filed bill to rectify this situation. House Bill 622/ Senate Bill 769 will return the damage cap on medical malpractice claims to their pre-hoax levels. If this bill is enacted, injured Marylanders once again would be treated the same under the law irrespective of whether their injury resulted from negligent medical practice, negligent driving, or a defective product.

All people who believe in civil justice should contact the members of the House Judiciary Committee and the Senate Judicial Proceedings Committee and demand that they vote in favor of HB 622/SB769.

Posted at 5:07 PM, Mar 15, 2010 in Damage Caps | Medical Malpractice | Permalink | Comments (0) | TrackBack (0)

Justinian Lane

Defensive Medicine Doesn’t Lead To Unnecessary Medical Treatment

One of the complaints about President Obama’s healthcare package is that it doesn’t include enough tort “reform” in it.  Many argue that making it harder to sue doctors and making it impossible to recover large noneconomic damage verdicts will decrease the cost of healthcare by reducing defensive medicine.  This is flat wrong, and here’s why.

There is no scientific or legal definition of what “defensive medicine” is, so we can’t look there.  All we have is the colloquial definition of defensive medicine as when a doctor orders a procedure because he or she is afraid of being sued, not because the treatment is medically necessary.  Some argue that if we make it harder for doctors to be sued, defensive medicine will decrease, and the concomitant decrease in unnecessary procedures will lower healthcare costs.  One problem with this argument is that there are already checks in the system that prevent doctors from ordering unnecessary procedures.  Insurers (including Medicare & Medicaid) have guidelines as to when they will pay for a specific procedure. 

For every injury or illness, there are a range of possible treatments.  The (very crude) drawing below represents that range.  At the left end of the scale is to “do nothing” and see if the injury gets better on its own.  At the far right end of the scale is immediate surgery to try and correct the problem.  The bracket in the middle represents treatment within the permissible standard of care for a hypothetical injury.  For this hypothetical injury, it would be inappropriate to do nothing, and it would also be inappropriate to take the patient to surgery immediately.  Medically appropriate treatments might include administering drugs, ordering an inexpensive diagnostic test, and ordering an expensive diagnostic test.    Doctor Smith may be conservative with his treatment and decide to order an inexpensive diagnostic test, while Doctor Jones may be aggressive and order the administration of drugs and the expensive diagnostic test.  While both doctors treated the same injury in different ways, neither doctor committed malpractice.  More importantly, if Doctor Smith is afraid of being sued and orders the expensive test, we cannot say that his fear of being sued led him to order a medically unnecessary test.  The worst we can say is that the tort system nudged the doctor towards being more cautious. 

Let’s tweak the hypothetical and make it a little more interesting.  Assume that Doctor Smith buys the machine that does the expensive diagnostic tests.  When he bought the machine, he had to finance it, and has a monthly payment for the machine.  Now, when he orders that expensive test, he is paid for doing so.  Do you think he is more likely to order the expensive test because he’s afraid of being sued, or because the profit from running the expensive test helps him pay that monthly payment?If we really want to minimize the incentives for doctors to err on the side of caution (does that really sound like a good idea?) then perhaps we should be more concerned about the financial incentives doctors have to err on the side of caution. 

The “reform” crowd often argues that lawyers practice law in accordance to what’s best for themselves, and not for their clients.  Is it really so hard to believe there are some doctors who practice medicine the same way? And is it really so hard to believe that those same doctors invented the concept of “defensive medicine” so they can blame lawyers for their pursuit of their own self-interest? 

Posted at 7:10 PM, Mar 14, 2010 in Health Care | Medical Malpractice | Permalink | Comments (0) | TrackBack (0)

Justinian Lane

Another McDonald’s Lawsuit – Will We Get The Facts Straight This Time?

Civil justice advocates cringe every time we hear someone mention “the McDonald’s coffee case” because the facts of the case have become so distorted.  I’m not going to rehash the whole thing here (for the umpteenth time) but will say that the woman who was burned (a) was in a parked car, and (b) suffered third degree burns to her crotch because (c) the coffee was as hot as the water in your car’s radiator after you go for a drive, and (d) she was about the 700th person to suffer serious burns from that undrinkably-hot coffee. 

So part of me is cringing a bit because there’s another McDonald’s burn lawsuit moving forward through the courts: 

When Frank Sutton bit into his sandwich, scalding grease “flew all over his mouth,” a fellow diner recalled. Mr. Sutton’s wife took ice from her drink and applied it to his face, but his lips blistered. When he told one of the employees, he testified that she said “this is what happens” to the sandwiches “when they aren’t drained completely.” The next morning, he found that his lips had bled on the pillow.

Seven months later, his injuries still had not completely healed. He says he avoided certain work assignments at his job of refurbishing and assembling outdoor amusement rides if he thought they would make his lip condition worse. Mr. Sutton sued McDonald’s and the local franchisee, alleging that he had suffered $2 million in medical bills, lost wages, and pain and suffering.

Source: Editorial - A Nonfrivolous Suit - NYTimes.com

It is my sincere hope that those of us who value a robust civil justice system don’t let Frank Sutton become a victim of the “tort wars.”  How about getting in front of this one and making sure that the media (with the help of the “reform” crowd) doesn’t distort these facts?

Posted at 4:09 PM, Mar 14, 2010 in Product Liability | Permalink | Comments (2) | TrackBack (0)

Justinian Lane

The Healthcare Insurer Antitrust Exemption

Here’s one perspective on whether it helps or hurts consumers.

With comprehensive health care legislation foundering in Congress, the House Wednesday passed a narrower piece of legislation that lawmakers hope has widespread, populist appeal: repealing the antitrust exemption for health insurers. The measure now goes for consideration to the Senate, where it’s prospects are not clear.

Proponents say that the legislation would spur competition among insurers and bring down costs for consumers. Reps. Tom Perriello, D-Va., and Betsy Markey, D-Colo., who are sponsoring the bill, said in a press release it would “end special treatment for the insurance industry that allows them to fix prices, collude with each other, and set their own markets without fear of being investigated.”
But many antitrust experts say that ending the exemption — by repealing the 1945 McCarran-Ferguson Act — wouldn’t significantly increase competition or reduce premiums.

Source: The Antitrust Exemption For Health Insurers: Meaningful Or Not? - Kaiser Health News

Posted at 9:51 PM, Mar 12, 2010 in Health Care | Health Insurance | Permalink | Comments (2) | TrackBack (0)