Tortdeform

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

2010-03-16T17:59:58Z

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…

More evidence that there isn’t a medical malpractice crisis

2010-03-15T22:35:49Z

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

Will The Georgia Supreme Court Overturn Medical Malpractice Damage Caps?

2010-03-15T22:13:09Z

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

The One Group That Was Not Made Whole: INJURED PATIENTS

2010-03-15T22:07:13Z

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.

Defensive Medicine Doesn’t Lead To Unnecessary Medical Treatment

2010-03-15T00:10:05Z

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?

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

2010-03-14T21:09:33Z

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?

The Healthcare Insurer Antitrust Exemption

2010-03-13T02:51:13Z

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

Bruce Braley Discusses the Toyota Recall

2010-03-04T17:54:30Z

No surprise that I think we need more men like Braley in Congress.

A real example of medical malpractice damage caps

2010-03-04T17:45:15Z

A common suggestion on how to “reform” the malpractice system is to institute a $250,000 damage cap. Here’s a real life example of how those caps work. I’ll leave it to you to decide if this seems fair:

Bashar Ashkar should be at work running the seven-figure engineering firm that bears his name, or helping his wife, Shari, plan his daughter Lauren's fall wedding.

Instead, the 63-year-old spends most days lying down or sitting up in his Houston nursing home room, staring straight ahead at a wall of family pictures.

They're a daily reminder of his life before July 14, 2005, when a steroid injection into his spine for arm and back pain resulted in a cerebral hemorrhage that locked him forever inside a useless body.

To communicate, he relies on what he has left, his ability to nod “yes” or shake his head “no” in response to visitors' questions or to spell out his answers from a letter board Lauren or her twin sister, Nora, hold up.

. . . .

For his pain and suffering, Bashar Ashkar received $60,307.60. His wife's ordeal was worth $101,145.28.

Source: Paralyzed in body - and by law | Dead by mistake

Will tort “reform” get doctors to wash their hands?

2010-03-04T00:59:41Z

I haven’t seen evidence that it will, but I have seen ample evidence that doctors are failing to do that and other basic measures:

About a week after my father’s death, The New Yorker ran an article by Atul Gawande profiling the efforts of Dr. Peter Pronovost to reduce the incidence of fatal hospital-borne infections. Pronovost’s solution? A simple checklist of ICU protocols governing physician hand-washing and other basic sterilization procedures. Hospitals implementing Pronovost’s checklist had enjoyed almost instantaneous success, reducing hospital-infection rates by two-thirds within the first three months of its adoption. But many physicians rejected the checklist as an unnecessary and belittling bureaucratic intrusion, and many hospital executives were reluctant to push it on them. The story chronicled Pronovost’s travels around the country as he struggled to persuade hospitals to embrace his reform.

Source: How American Health Care Killed My Father - Magazine - The Atlantic

And this is another reason I don’t buy into the “defensive medicine” argument. How can the fear of lawsuits drive doctors to spend billions on unnecessary tests, but not drive them to wash their hands? If a doctor doesn’t order an MRI, the odds are he or she can find a doctor to say it wasn’t malpractice to fail to do so. But no doctor will testify that it’s OK not to wash your hands before you operate on a patient. As long as doctors keep making basic and preventable errors, you have ample evidence that doctors are not paralyzed by the fear of malpractice suits.

P.S. – This article was brought to my attention by a soon-to-be new contributor to the site. If you’ve got something you think I should see, or if you’d like to contribute to the site, drop me a line at justinian at justinian dot us.

What effect will tort “reform” have on healthcare spending?

2010-02-16T17:41:15Z

This is a rather colorful analogy.

To think that [tort “reform”] would significantly change health care costs is like believing that a Mack truck can be diverted by a June bug — even a moderately large June bug — hitting its windshield.

There are reasons to suspect even that analogy overstates the result.

Source: Tort reform won't control health spending. - STLtoday.com

I would also point out that fear-of-being-sued is not the only reason that doctors order unnecessary procedures. Remember, doctors charge money for and get paid for even unnecessary procedures. Even if we completely eliminate all medical malpractice lawsuits, there will still be doctors who order unnecessary procedures just because it puts money in their pockets. Let’s not pretend otherwise.

Medical Malpractice Reform May Cost More Than It Saves

2010-02-12T22:23:41Z

Now that the Democrats don’t have a filibuster-proof majority, medical malpractice reform is back on the table. Many argue that if we enact some sort of malpractice reform, we’ll save money because doctors will be less likely to practice defensive medicine. Defensive medicine means different things to different people, but in essence, it occurs when a doctor runs a test or performs a medical procedure out of fear of a malpractice lawsuit. The most-often used example is that of a doctor who orders an MRI to rule out some rare injury. The doctor doesn’t order the test because he or she really believes the patient has the injury, but instead because if the patient does have the injury and the test wasn’t run, the doctor could be sued for medical malpractice. The argument goes something like this: If the doctor isn’t afraid of being sued, he or she won’t run that test. The taxpayers (through Medicare/Medicaid) won’t pay for that test, so we all save money by enacting malpractice reform.

But there’s a serious flaw in that argument, and it’s called subrogation. Assume that a doctor makes a medical error during a surgery, and that error necessitates a second surgery. If the patient files a medical malpractice lawsuit and recovers any money, the insurer who paid for that second surgery will get reimbursed for its expenses. That right of the insurer to be reimbursed is referred to as the right of subrogation. If the patient doesn’t file a malpractice lawsuit, the insurer ends up footing the bill for the second surgery. And if the insurer is Medicare or Medicaid, “the insurer” is actually the taxpayers.

The problem with the current debate over how much money malpractice reform may save is that it doesn’t take into account how much money the government recovers every year through malpractice lawsuits. Considering that the cost of a second (or third) surgery is generally far more expensive than running an unnecessary test, it’s entirely possible that we’ll lose more money than we save. If we’re going to justify medical malpractice reform on the ground that it will save us money, we cannot seriously evaluate that justification until we know exactly how much money we’re taking in through subrogation, and until we figure out how much of that money we’ll lose through enacting malpractice reform.

Is it too much to ask that if we’re going to make decisions based on numbers, we base the decision on all of the numbers?

Illinois Supreme Court Strikes Down Damage Caps

2010-02-04T19:47:35Z

Just saw this and thought it was worth posting.

The Illinois Supreme Court says limiting damage amounts in medical malpractice cases violates the state's Constitution.

In an opinion filed Thursday, the court says such caps violate the principle of separation of powers. The court says the limits the Illinois General Assembly adopted in 2005 would infringe on the judicial branch's power.

Medical providers quickly warned that the ruling could hurt patients' access to doctors and hospitals because of increased costs.

Source: Illinois Supreme Court strikes down limits on damages in medical malpractice cases - Breaking news - bnd.com

Got questions about tort reform terms?

2009-12-12T02:17:53Z

One of the projects I have planned for my winter break is to revamp my tort reform blog, www.whatistortreform.com. At that blog, I give simple explanations of common terms in the tort reform movement. For example:

If there’s a term you think I should add, or think I should expand on an existing term more, please either email me or comment here and I’ll do so.

Congratulations to the Center for Justice & Democracy

2009-12-01T23:43:18Z

Today I got a wonderful e-mail from Joanne Doroshow, the founder and Executive Director of the Center for Justice & Democracy. Joanne is on my short-list of heroes, so I’m extremely pleased to share the following news with you:

CJ&D’s blog, ThePopTort, has for the second year in a row been selected as one of the 100 best legal blawgs by the American Bar Association. You can help turn that good news to great news by voting for The PopTort in its individual category. First, register here (it’s quick and free.) Second, simply click here and vote for it. I’ll wait patiently while you go register and vote for it. This is a big honor for the CJ&D, as there is a lot of competition to be in the top 100 legal blawgs by the ABA.
The CJ&D has also launched its own Facebook page, with lots of great photos including some hilarious scenes outside its window in Lower Manhattan. You may already be a Facebook fan of ThePopTort, but now CJ&D has a page, too. Why not become a Facebook fan of both ThePopTort and the CJ&D today?
You can also start following Joanne’s excellent blog posts at the Huffington Post.

Again, hearty congratulations are in order to Joanne and the fine crew at the Center for Justice & Democracy. They’re one of the finest organizations fighting to protect the civil justice system from the millionaires & billionaires behind the tort “reform” movement.