Michael Townes Watson


North Carolina patients are the latest victims in the propaganda war that the insurance industry continues to wage. Last week, state lawmakers there approved a bill limiting damage recoveries in health care negligence cases. The bill caps damages in negligence cases involving a health care provider at one million dollars for those cases in which the healthcare providers agree to go to binding arbitration. In other words, the insurance industry was able to convince the legislators that victims of medical malpractice would be better off without a jury hearing their case. Few appeals would be allowed for anyone aggrieved by the arbitration process, making the court system a rare luxury, not a right, as envisioned by the Seventh Amendment to the United States Constitution.

North Carolina was one of the states targeted this year by the medical malpractice insurance industry—they considered the political climate favorable for changing the laws there, so they poured millions of dollars into a campaign to convince consumers and their lawmakers that there was a “crisis,” despite all evidence to the contrary. Public Citizen recently published an exhaustive study demonstrating that the claim of a “Medical Malpractice Crisis” in this country is a “HOAX.” The report was based upon actual data from the insurance company reports, and found that malpractice payments have been going down, not up, and that payments in excess of one million dollars are extremely rare.

So, what is the reason that the legislators in North Carolina found it necessary to require malpractice victims to submit to mandatory, binding arbitration? It is because of the success of the propaganda propounded by the insurance industry—the average person on the street believes that juries are bad for society, and that access to the court system is costly for society. Yet, the major cost of the malpractice system (over 50%) results from those few doctors (5%) who are repeatedly found responsible for malpractice. The vast majority of doctors – 82 percent – have never had a medical malpractice payment since the National Databank was created in 1990 to report on the malpractice payments made by physicians. The real crisis is not one of “lottery-style” payments to victims of malpractice. The crisis is one of bad physicians being allowed to continue to inflict harm without any significant oversight.

The medical insurance companies and large healthcare groups are spending millions of dollars annually on their misinformation campaign rather than spending on measures that could dramatically improve patients’ safety, such as electronic medical records. A report from the Washington Post on Friday, July 27, states that many unnecessarily repeated tests, life-threatening care delays and medical errors, result from the lack of a comprehensive system of electronic patient records. This data is not from lawyers or patient advocates, but from the likes of research company Rand Corp. as well as physicians and patients on the ground. According to statistics from the Centers for Disease Control and Prevention, only one in ten U.S. physicians in 2005 were using systems that included prescription and diagnostic test orders, test results and physician notes, which are vital to a complete health information network. As a result, the United States -- which had a key role in the creation of personal computers, the rise of the consumer Internet, the mapping of the human genome and using technology to cut costs -- lags Denmark, the Netherlands and some other industrialized nations when it comes to moving medical records into the digital age, according to the Commonwealth Fund, a healthcare-focused private foundation in New York.

If we are to reverse the trend of malpractice tort reform (now 28 states have limited damages in malpractice cases), we must continue to spread the word that there is no malpractice crisis, that juries are a necessary part of our justice system, and that healthcare quality improvement is the best defense against the soaring cost of medical care.

Michael Townes Watson, author of America’s Tunnel Vision—How Insurance Companies’ Propaganda Is Corrupting Medicine and Law.

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Posted at 10:39 AM, Jul 27, 2007 in
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To say that we do not have a malpractice crisis is a bit like putting your head in the sand. Unfortunately, it does exist, but it exists differently for different people. Physicians are facing decreasing re-embursement for services and higher overhead, a signigicant part is malpractice insurance. Patients are finding it harder and harder to find specialists and even primary care physicians who are willing to take them on as patients due to increased risk exposure. Attorneys are faced with increasing competition as more and more attorneys enter the personal injury industry. Insurance companies are fighting hard to maintain their profit margin.

There is a crisis and it is being fought by many at many different levels. Your article is an example. Like many battles, it is important to look at each. You mention electronic medical records as a solution. Presently I work at three hospitals with EMR systems. Has is saved any lives? No. In fact, nurses are so busy trying to enter the data into the systems that they are not with the patients. Patient care is now regulated to nurse assistants. In fact, when a patient is having an emergency you have to first log nto the computer to pull up their data. This takes precious time. Studies on EMR are base on JACHO recomendations and studies. JACHO is a paperwork inspection agency who is self supporting. Their physicians are the ones that reported the studies that you mentioned and who provided the data for the RAND study. Are their parts of an EMR system that may help, absolutely but it is not the answer to the crisis.

Is arbitration the answer. It is favored by insurance companies as legal costs for settled cases affect their bottom line and this is way to expidite the process and help their proffit margin. Do physicians like them? Not really but they like them about as much as attorneys who have their clients sign them. Why are they there, to avoid the high costs of litigation. Why are attorneys against them? They are intended to decrease the overall cost and time of litigation which affects attorneys bottom line. (Remember, attorneys often have their own clients sign arbitration agreements)

The long and short of it is: There is a crisis. It is about everyones bottom line. Doctors, attorneys, patients and insurance providers. We can blame each other for trying to affect our bottom line but the truth of it is that we have to reform the economics. The alternative if the economics are not reformed will be socialized healthcare of which a great example is the military medical system. There you cant sue for malpractice, access is limited and you get what you can get.

Posted by: throckmorton | July 27, 2007 1:46 PM

I have served on six juries , four criminal and two civil over the last 30 years (I've been chosen foreman on one of the civil and two of the criminal trials). From that experience I've come to the following conclusions

1) Juries honestly try to do the right thing
2) In civil matters, juries always "know" that insurance is involved even though it is never mentioned in court proceedings
3) Juries often let their emotions overrule their common sense - the impulse to give a badly injured plaintiff a lot of money is overwhelming to many people, regardless of fault. Because of that I firmly believe that ALL cases involving serious injuries should be bifurcated with a trial on liability occurring first - otherwise it is nearly impossible for a civil defendant to get a fair trial. A badly injured plaintiff who is 90% at fault for his injuries will often get hit with only 25-33% comparative when the trial is not bifurcated.

4)The voir dire process really needs to be reformed as civil plaintiffs and criminal defense attorneys really aren't interested in finding an objective jurors. There should be no preemptory strikes, only removal for cause. Juror pay should be higher so that self-employed jurors aren't in a hurry to reach a verdict because they are losing money by being missing from work.

Also we need to give meaning to a "jury of one's peers" - a jury of 12 honest men and women with (at most) tenth grade education is NOT a jury of one's peers in a medical malpractice case (I actually saw such a jury empaneled). While we may not want any physicians on the jury I think it is a complete abomination that anyone with higher education would find themself preemptively removed by plaintiff counsel in such a case - but it happens

Posted by: Paul W Dennis | July 28, 2007 1:21 PM