In his State of the Union speech in January, President Barack Obama appeared to throw a bone to congressional Republicans when he said, "I am willing to look at other ideas to bring down [health care] costs, including one that Republicans suggested last year – medical malpractice reform to rein in frivolous lawsuits." There were scattered cheers and clapping from the audience, but since then no more details have emerged from the President.
To those who need reminding, reforming medical malpractice is a cornerstone of the Republican version of health care redesign; one of the few concrete ideas they’ve put forth for reducing the nation’s $2.1 trillion health care bill. The idea, recently championed also by Gov. Andrew Cuomo’s (D-NY) Medicaid redesign team, is to cap non-economic damages (compensation for future pain, suffering and loss of function) at $250,000 in all cases. Some 30 states already have variations of medical malpractice caps and other tort reforms in place. According to the Congressional Budget Office, the effect of these caps on reducing the number of lawsuits or the practice of “defensive medicine” (unnecessary tests and procedures doctors order to avoid being sued) has been at best, equivocal. Where they have had a moderate effect is on lowering malpractice insurance premiums for certain types of physicians and increasing their supply in some geographic areas.
Obama has still not announced how he intends to reform medical malpractice. But one bill that he should definitely reject is H.R. 5, a sweeping malpractice reform bill which would cap non-economic awards at $250,000, limit the statute of limitations on these cases and place other restrictions on a plaintiff’s right to sue. The caps and other limits wouldn’t just apply to doctors and hospitals. The legislation is so broad that it stands to absolve pharmaceutical and medical device makers, nursing homes and the entire health industry from liability for their negligence. As Christine Hines, Consumer and Civil Justice Counsel at Public Citizen says, “this bill would be extremely harmful for patients,” especially the very young, elderly and poor who already have a difficult time demonstrating economic losses and receiving compensation when they are harmed.
This bill, designed to limit “frivolous lawsuits” has already passed through the House Judiciary Committee and is supported by many Congressional Republicans, the American Medical Association and a number of other health industry groups. It will now move on to either the health subcommittee of the House Energy and Commerce Committee or go straight to the House floor. Passage in the Senate (where Democrats still hold a slim majority) is far from guaranteed; legislation just like H.R. 5 that’s been enacted in five states, including Georgia and Illinois, has been declared unconstitutional by the highest courts.
Interestingly, the proposed bill has its roots in a messy malpractice case. Rep. Phil Gingrey (R-GA), the author of H.R. 5, was an obstetrician for 30 years before coming to Congress and was involved in four lawsuits, including a $500,000 settlement with a pregnant woman who charged that Gingrey and other doctors failed to diagnose an appendicitis which then burst, leading to a massive infection and the death of her 15-week-old fetus. The woman also suffered a stroke that left her partially paralyzed. At the time, Gingrey was beginning his Congressional term and said he agreed to settle the suit because it had become a “distraction.”
But the case against Gingrey seems anything but frivolous—(a look at the case reveals that Gingery was alleged to have made false entries into an official medical record)—writes Stephanie Mencimer in Mother Jones. “But it's just those sorts of serious cases that Gingrey's bill would restrict. And far from saving money, the bill would simply shift the cost of negligent medicine from the doctors and their insurance companies to the taxpayers through Medicaid and other disability programs.”
In fact, just yesterday the Congressional Budget Office released an analysis estimating that if tort reform legislation like H.R. 5 was enacted at the national level it would reduce total health care spending by a mere 0.4 percent. The CBO also estimated that this legislation would lower the federal deficit by about $10 billion over the 2011 to 2016 period, not an earth-shattering amount. To get to this figure, the agency took into account a “direct reduction in spending for medical liability premiums and an additional indirect reduction from slightly less utilization of health care services,” i.e. a bit less defensive medicine. As the centerpiece for cutting health care costs and reducing the deficit, such wide-ranging medical malpractice reform is clearly lacking.
Figuring out the best way to deal with expensive lawsuits and the high cost of malpractice insurance is complicated by the entrenched interests of the various stakeholders. It is almost impossible to separate biased opinion from fact. Doctors and the health care industry support caps and other limits on malpractice suits because they believe it will reduce litigation, lead to lower awards and a drop in malpractice insurance premiums. They also believe that high malpractice premiums drive doctors out of certain higher-risk specialties. Trial lawyers, who can reap 30% of damage awards in negligence cases, don’t want to see caps on non-economic damages, attorney fees or limits on when suits can be filed because they stand to lose a significant source of income. It’s very difficult to find research or figures that don’t carry the fingerprints of one of these powerful lobbies.
But there is a third, far less financially vested group whose voice is increasingly being heard. The patient advocacy and safety movement is working toward advancing a completely different set of policies and interventions whose primary goal is to significantly lower the amount of actual medical malpractice (errors and negligence that result in harm) that takes place in health care settings. The idea is that only by promoting safety initiatives and patient-centered care can the direct and indirect costs of malpractice lawsuits really be reduced.
First, advocates have to dispel the myth that most malpractice cases are baseless. Sen. Orrin Hatch (R-UT) has said, “We’ve got to find some way of getting rid of the frivolous cases, and most of them are.” It turns out that between legal fees, the cost of hiring expert witnesses, and undertaking significant discovery, medical malpractice cases are extremely expensive to mount and thus have become 30-40% less common over the last two decades. Evidence shows that trial lawyers actually refuse to take on many legitimate malpractice cases—especially among the elderly or poor, accepting only those where there is evidence of clear negligence and the injuries are catastrophic. “The actual risk of getting sued is low,” says Louise Marie Roth, an associate professor of sociology at the University of Arizona who is studying the relationship between malpractice litigation and obstetric practices. Practitioner’s fears of litigation are exaggerated, she says, and “an unfounded fear of malpractice litigation leads to defensive practices that are totally out of proportion to the actual risk.”
Tom Baker, a professor of law and health sciences at the University of Pennsylvania School of Law told the New York Times, “medical malpractice tort costs were $30.4 billion in 2007, the last year for which data are available. We have a more than a $2 trillion health care system. That puts litigation costs and malpractice insurance at 1 to 1.5 percent of total medical costs. That’s a rounding error. Liability isn’t even the tail on the cost dog. It’s the hair on the end of the tail.”
Meanwhile, errors and negligence continue to be a problem in health care. The Institute of Medicine estimates that between 44,000 and 98,000 Americans die each year because of preventable medical errors. In the IOM’s seminal 1999 report, “To Err Is Human,” the authors found that over the course of 30 years the rate of one serious injury per 100 hospitalizations remained consistent. And of those injured, only 4 to 7 percent brought a case. It’s doubtful that many of these were “frivolous.”
A recent post on the site Protect Consumer Justice.org, argues that instead of tort reform, “a surefire way to reduce the amount of money paid to malpractice victims is to reduce the amount of malpractice.” That may sound simplistic, but until recently, this strategy was overshadowed by the promise of tort reform: place stricter limits on awards and suits and people will stop filing malpractice cases. The price of malpractice insurance will drop and doctors will stop practicing defensive medicine and stop leaving risky specialties. We’ve heard this so often that we haven’t been able to spot a key failing: tort reform doesn’t do anything to prevent negligence and medical error in the first place—and that is really what will drive change and reduce litigation.
A good place to start is in medical education. In a commentary in a recent issue of the Journal of Academic Medicine, Robert Wachter, professor of medicine at UC San Francisco and Eric Alper, professor of medicine at UMass Memorial Medical Center question why medical malpractice is not part of the curriculum in medical schools or in resident training. Most programs never even broach the topic which brings out feelings of “shame, fear and often anger” among providers. But Wachter and Alper believe that using past malpractice cases to help teach medical residents and students about what causes errors is highly beneficial.
They write, “The patient safety movement is moving forward. In too many health care organizations, risk management continues to maintain one of the last remaining information silos. The danger of sharing information about adverse events and malpractice is likely overestimated, and keeping it secret almost certainly hampers improvement. It is high time that we tear down the wall that cloisters this critical patient safety information from our clinicians and trainees.”
A related consequence of being more open about past errors is that it can help change the culture of secrecy that seems only to make patients or families more likely to litigate. Studies have shown that in hospitals that use “disclosure and early offer” interventions—rules requiring doctors and hospitals to inform injured patients and families immediately of errors and to offer prompt and fair compensation—the move to sue actually drops significantly.
Reducing malpractice, then, ultimately requires reducing errors—something tort reform completely ignores. New York Presbyterian-Weill Cornell Medical Center in New York recently demonstrated how a comprehensive patient safety program initiated in their obstetrics department in 2002 resulted in average annual malpractice expenses (payouts plus cost of defense) dropping 90 percent in 2009.
According to a report on the safety initiative published in the February 2011 issue of the American Journal of Obstetrics & Gynecology, the number of “sentinel events,” such as avoidable maternal deaths and serious newborn injuries, went from five in 2000 to zero in both 2008 and 2009. (The authors note, “the amount of compensation payment for an infant with neurodevelopment impairments can be well in excess of $10 million in New York City”). The 2009 compensation payment total constituted a 99.1% drop from the average 2003-2006 payments (from $27,591,610 to $ 250,000).
What were the key factors in reducing malpractice suits—and clearly, malpractice itself? The hospital hired a full-time “patient safety nurse,” three more physician assistants and a “laborist” (a hospital-based physician whose sole job is to deliver babies on weekends and nights), conducted emergency training and drills, moved to better documentation using only electronic medical records, restricted the use and dosage of drugs for preventing premature labor and employed protocols for reducing medical error.
Last year, the federal Agency for Healthcare Research and Quality (AHRQ), gave out $25 million in grants to 20 groups around the country to fund medical liability reform demonstration projects. Some examples, according to Ezekiel Emanuel, who at the time was the special health care adviser in the Office of Management and Budget, included a program in Massachusetts that aims to reduce medication and referral errors in primary care physician offices, another in Minnesota institutes best practices for childbirth at 16 hospitals and tries to determine if fewer complications in childbirth reduces malpractice suits targeted at obstetricians. A third, in Oregon, “will develop and work to implement a “safe harbor” system in which physicians who prove they adhered to evidence based guidelines are protected from frivolous lawsuits.”
In New York, a new program created by New York Supreme Court Justice Douglas E. McKeon and the New York City Health and Hospitals Corporation was awarded a $3 million dollar AHRQ grant to test the efficacy of judge-directed negotiation in malpractice suits. The program, which started at Montefiore Hospital in the Bronx, involved Justice McKeon taking anatomy classes early in the morning at Albert Einstein School of Medicine. Potential litigants were offered “medically informed, judge-directed negotiations” in place of the standard legal process for dealing with malpractice cases. Justice McKeon’s initiative was used in some 25% of medically-related lawsuits and 95% of them ended in a settlement.
So far, five hospitals have signed on to participate in the initiative, and the program, which is also combined with patient safety initiatives, has saved the municipal hospitals some $50 million.
These kind of joint patient safety and cost-cutting initiatives, may be what Obama was referring to when he told the nation he would consider moving toward malpractice reform. In his latest budget, the President has designated $250 million dollars to the AHRQ to expand its funding of medical liability reform demonstration projects—a 10-fold increase over last year. This kind of effort is typical of this administration that wants to increase state and local involvement in health care innovation, instead of passing a broad law like H.R. 5 that offers a one-size-fits-all regulation to deal with a highly complex situation.
And complex it is. The rising cost of malpractice insurance cannot be explained solely by the increased risk of liability. There just hasn’t been a similar increase in the total number or average monetary award of lawsuits. As far as defensive medicine goes, it is almost impossible to separate when excess testing and unneeded procedures are being done because doctors fear being sued, from the culture of “more is better” that is rampant in medicine—especially when it comes to fee-for-service reimbursement. The truth of the matter is that medical liability insurance primarily burdens solo or small-group practitioners, especially those whose practices include a large number of poor patients. Obstetricians and certain types of “high-risk” surgeons see the steepest rates—although they vary enormously from region to region. Hospitals or large group practices usually pay all or some of the insurance premiums for their employees, and when physicians work for federally-funded health centers, liability falls on the federal government.
New York’s division of the American Congress of Obstetricians and Gynecologists issued a press release in 2009 claiming that a “crisis” exists for doctors who deliver babies in the state. According to the release, the cost of medical liability insurance had risen 63-72% between 2002 and 2007 while Medicaid was only reimbursing doctors $1,440 for each delivery. “An obstetrician in Suffolk County would have to perform 123 deliveries [on Medicaid patients] annually just to cover his/her $177,880 liability premium. This ob-gyn would be delivering a baby approximately every 3 days,” the release warns. If things continue this way, the group predicted a mass exodus of obstetricians from certain areas—especially those serving poor patients.
Meanwhile, Jean Moore, director of the Center for Health Workforce Studies at the University at Albany School of Public Health found that in reality, there has been no exodus. She told me that a recent study actually predicted a dip in demand for obstetrician services: “from 2006 to 2030 the demand for ob-gyns in New York State will increase by only 0.9 percent, the supply by 5.1 percent. As a result, by 2030 New York’s ob-gyn-to-population ratio is projected to increase from an already ample 19.9 per 100,000 population – well above 14.2 per 100,000 nationally — to 20.1 per 100,000 population."
Moore also says that the Center for Health Workforce Studies conducts exit surveys with medical residents who are leaving New York. “We ask, ‘if you’re not going to practice in New York, why are you leaving?’ One of the options is high medical malpractice insurance and that just isn’t selected that often.” This is just one state, but it’s clear that caps and other limits on malpractice awards will be little help in addressing the fundamental challenges affecting the changing practice of medicine.
In fact, the recent emphasis by Congressional Republicans on placing caps and other restrictions on malpractice awards is looking like just another way for opponents of health care reform to try and shift the emphasis from the true drivers of rising health care costs–waste, greed, an older and sicker population to name a few. The H.R. 5 bill should be viewed with the same level of skepticism as other conservative bills currently circulating through Congress, including those that would outlaw all funding for abortion and family planning clinics, recall the individual mandate and defund key initiatives like comparative effectiveness research. The malpractice reform legislation is a red herring; a disproved method for substantially cutting health care costs that really has no impact on improving patient safety.
The Mother Jones article puts it best; “Despite what Republicans want to believe, making malpractice lawsuits disappear doesn't make the health care costs of medical errors go away. It simply means that it's just not the wrongdoers who pay for them.”
I am convinced that caps on malpractice awards would not move the needle much in terms of overall health care costs. I’m also not convinced capping the awards would bring down insurance premiums for doctors. Isn’t it true that large awards are rare?
My brother is a general practitioner. I would like to see him pay less in malpractice insurance premiums. He has also expressed the desire for a resource doctors can go to when they are unsure about something without exposing themselves to liability. It stands to reason there would be fewer patient injuries under such a system.
This is a bit off-topic. I attended a conference given by the International Foundation of Employee Benefit Funds. I and other attendees represent Taft-Hartley multi-employer benefit funds. Does anyone on this blog, Naomi, Maggie or anyone else care to venture a guess as to why these funds are essentially left out of the reform act? It is completely silent on us.
Thanks, Maggie, for this great article which lays out the fallacy of the the malpractice insurance proble hype and points to the real problem with actual malpractice.
Thanks for a great article. Physicians claim they engage in defensive medicine because they’re afraid of being sued, which drives health care spending. Although there is a component of this, what is rarely recognized is that physicians are even *more* afraid of being wrong. Nobody wants to be wrong, especially doctors. We fear judgment from our colleagues for not ordering that CT scan to rule out the 1/10,000 chance of something serious if it is in fact the one time it is serious. We also judge ourselves harshly when we miss something, even if it’s something quite unusual or that’s classically difficult to diagnose (such as appendicitis in a pregnant woman).
We need to confront our lack of comfort with being wrong every once in a while. We also need protection from being sued if we follow standard guidelines of diagnosis and treatment. These kinds of changes are vital to decrease our trend of increased overutilization of services, something that is truly a driver of our health cost crisis. Tort reform, while not objectionable, is not the way to “bend the cost curve.”
An orginal investigation of Dr. Ezekiel Emanuel’s end of life boiethics counseling scheme in collaboration with Kaiser Permanente is posted on http://www.hmohardball.com.
A few comments:
1. Maggie, a survey of medical RESIDENTS asking why they are leaving New York is a joke. Medical residents DONT HAVE TO PAY FOR MALPRACTICE INSURANCE SO THEY HAVE NO CLUE HOW MUCH IT COSTS. Malpractice insurance has absolutely ZERO effect on medical residents. Only attendings have to pay it, so any surveys should be directed towards attendings, not residents.
2. You say doctors being sued is rare and it is, in most places. But there are places where it is EXTREMELY common, which begs the question are ob/gyns living in Las Vegas really more incompetent than those in, say, Los Angeles? A survey in 2003 showed there were 89 ob/gyn doctors in Las Vegas. 85 of them have been sued at least once in the last 10 years. So are 85 of 89 ob/gyns really guilty of malpractice?
3. Med mal cases should not be decided by juries. Inevitably, it comes down to plaintiff’s expert #1 vs defendants expert #2. A layperson jury is incapable of deciding who is right between them when one of them argues that variable decels on a fetal heart monitor MANDATE an emergency c-section vs a 2nd expert who says that it does not.
4. A big part of the problem is the “expert” system in general. “Experts” get paid hundreds of thousands of dollars to testify in court, which is FAR more than they make practicing medicine. It leads to collusion between “expert farms” and lawyer firms where their testimony is not scientifically based and solely depends on the huge fees they command. A better way is to have a neutral expert panel decide these cases — experts who arent being paid by one side or the other and can give a truly neutral expert medical opinion on the case.
Mark Sphor & Nancy–
Mark & Nancy–
Actually, Naomi wrote this post. (If you look a the name at the end of the post, you will see who wrote it.)
Naomi is now working with me full-times so she is writing more posts.
Mark– I agree this is an outstanding piece
Nancy00 Since this is Naomi’s post, I’ll leave it to her to address your concerns.
“…That puts litigation costs and malpractice insurance at 1 to 1.5 percent of total medical costs. That’s a rounding error. Liability isn’t even the tail on the cost dog. It’s the hair on the end of the tail.”
Therein lies the problem that permeates all discussions of health care cost. Everything is a considered a rounding error.
1% here, 1.5% there. Bundle ’em all up… and you might just get to a percentage that resembles, well… a dog.
Here’s a win-win: Cap the damages. Take the difference to pay for ‘safety nurses’ system-wide. Or, cap the trial lawyers take to 20% and apply the other 10% toward those nurses. (physician compensation caps are in place under the premise that access to their services are vital to the population, many points in this article suggest that law services are similarly vital. No reason not to apply the same remedy)
“Everything is a considered a rounding error.”
Not quite.
The $500 billion to $1 trillion a year wasted by performing ineffective or harmful care is hardly a rounding error. The $100 billion to $500 billion a year spent on management of patient injury and illness caused by medical care is not a rounding error. There are costs of individual ineffective procedures that approach $100 billion a year.
That is why it is so important to focus on where the money is and to avoid distraction about things like doctors’ incomes, malpractice, and so on that account for very small parts of health care excess.
If we want to see what malpractice tort reform of the type being proposed by congress would do, we have perfect test examples. Texas has tort reform so strict that Texas Republicans are demanding that Texas be excluded from the congressional plan because the proposed reform is less comprehensive than the state’s own program. California has had similar tort reform for years. However, the tort reform, while comforting to doctors, has not had any real impact on spending or spending growth in those states. Both are, in fact, examples of what is worst in US health care spending.
As a doctor, I would like to see some form of tort reform. In particular, I would like to see malpractice cases settled through expert panals that actually understand the issues, panals that would investigate cases and offer fair compensation to victims but would base awards on dispassionate science rather than courtroom contests. Exekial Emanuel and Tom Daschle both included ideas for this type of system in their books proposing health care reform.
In particular, it would be important to protect doctors who followed valid scientific guidelines designed to reduce waste from suits in cases in which outcomes were poor. No matter how well care is provided, there are still bad results — “everyone dies, and that’s a fact.”
However, doctors must realize that a reform that removed litigation and lawyers from the equation in most cases might well result in more, not fewer, malpractice cases. Patients could potentially bring their complaints to the malpractice board without having to pass through an attorney who would estimate the validity of the claim and whether there was a substantial profit available — believe it or not, most malpractice attorneys turn away far more cases than they accept. There might actually be more “frivolous” cases that had to be investigated and resolved, and there may be more cases with findings of poor care and some financial settlement. While doctors might be protected from the headline grabbing huge claims, they might well end up actually paying out more dollars in multiple small amounts, and even more physicians could end up with records of malpractice losses.
Nancy said, “A big part of the problem is the “expert” system in general. “Experts” get paid hundreds of thousands of dollars to testify in court, which is FAR more than they make practicing medicine.”
Thousands of dollars, yes, for one case. Hundreds of thousands, no. Bear in mind in some states, the burden is very high, and so attorneys use care before hiring an expert physician. They usually hire an expert nurse first, to review the chart and give the attorney an idea of whether or not the suit has a chance of being successful. By the time a physician gets involved in the case, the frivolous ones are usually knocked out.
I know some physicians who do this kind of work. It’s a part time gig. I’m sure some make a living off of it, but they are the exception not the rule.
That being said, I do agree that mediation is better than a jury trial, not only for the reasons you cite but because it would allow physicians to come clean about mistakes and apologize to families, which is a large part of what the families really want.
Pat said, “While doctors might be protected from the headline grabbing huge claims, they might well end up actually paying out more dollars in multiple small amounts, and even more physicians could end up with records of malpractice losses.”
I agree. And I think that is a good thing; if a doctor is making enough of those kind of mistakes, then he deserves some scrutiny of his practice. As it stands now, poor performing physicians don’t get any kind of scrutiny until they get unlucky enough to get sued.
“Instead of Tort Reform, Why Not Focus On Reducing Actual Malpractice?” What a novel idea!
The nation’s largest medical malpractice insurer, GE Medical Protective, has already admitted that medical malpractice caps on damage awards and other limitations on recoveries for injured patients will not lower physicians’ premiums.
Legislation to place limits on medical malpractice liability hurts patients by restricting their rights to hold physicians, hospitals, insurance companies, HMOs, and drug and medical-device manufacturers accountable for injuries or death resulting from negligent care.
As for the claim of ever-climbing jury awards, studies of verdicts are skewed by what study sponsors leave in or leave out. The medical associations looked only at reported jury verdicts. The trial lawyers tracked all verdicts, including nonjury verdicts, through appeals, settlements, and court-ordered reductions.
Limits on the rights of people hurt by medical malpractice will victimize them and their families further while helping neither patients nor doctors. The real beneficiaries will be insurance companies, including the doctor-owned malpractice insurers.
“Thousands of dollars, yes, for one case. Hundreds of thousands, no. Bear in mind in some states, the burden is very high, and so attorneys use care before hiring an expert physician. They usually hire an expert nurse first, to review the chart and give the attorney an idea of whether or not the suit has a chance of being successful. By the time a physician gets involved in the case, the frivolous ones are usually knocked out.
I know some physicians who do this kind of work. It’s a part time gig. I’m sure some make a living off of it, but they are the exception not the rule.”
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I disagree completely. Physician “expert” testimony is EXTREMELY lucrative. I’m a practicing pediatrician and I made about 100k per year with an average of about 60 hours per week. That breaks down to about $33 per hour.
I have been offered several times to serve as an “expert” witness that offered to pay me about $150 per hour for document review and $500 per hour for official expert affidavits and courtroom testimony. Thats far, far higher than what I get per hour practicing pediatrics. There’s something wrong with this picture.
Nancy – one of the arguments for state-level malpractice reform is that if you don’t reform, you drive doctors out of your state.
The question about the factors affecting a new doctor’s, who just completed his/her training, decision about where to practice is important to evaluate the above argument. If, indeed, these new doctors said, we’ll I’m not practicing here because malpractice insurance premiums are out of control, that would be a compelling reason to reform, don’tcha think?
This question is especially important in NY, a state that produces somewhere in the ballpark of 5000 new doctors each year and is concerned whether it’s getting a return on it’s investment in that training.
this is a peripheral conversation that ignores the real issues. all know that medmal suits have about as much relationship to malpractice as military justice has to justice. there’s the slightest of overlaps. that being the case, why not give the tort reformers what they want so as to eliminate the issue as a potential cause of the larger problem, thereby eliminating the distraction and helping folks focus on the real issues like overconsumption and the lack of evidence-based treatments.
jim jaffe said, “why not give the tort reformers what they want so as to eliminate the issue as a potential cause of the larger problem”
Simple. Because if we do that, then patients who have suffered harm lose their access to the courts and redress of their grievances.
I do believe that the key to malpractice reform is in reducing the number of lawsuits through mediation . . . but if mediation fails, then patients need a place to take their case.
A doctor (or a nurse) should not be allowed to create a life long disability through incompetence and then let the patient twist in the wind trying to pick up the pieces. They should have to pay for the consequences of that incompetence, and that is what malpractice insurance is for.
Jackie: Actually, some doctors make far more than what you cite for legal consultation. Here’s the trick though: a good attorney needs to avoid the perception of the hired gun. A physician or nurse whose primary practice is actual patient care doesn’t have that problem with juries, which is why not that many people make it their primary job, and why consultants charge the rates they do for what is actually pretty easy work.
I’m sorry your hourly wage breaks down to what it does . . . you still make more per hour than I do, however. Your hourly wage would be much higher if complex and conflicting insurance reimbursements and poor Medicare/Medicaid rates didn’t force you to practice assembly line medicine by loading your office with as many patients as possible in as short a period of time as possible. But that’s off topic 🙂
Thanks to all for the comments and adding to the discussion. Jim, rather than being a “peripheral conversation” that misses the “real issues” I think some of the ideas presented for dealing with high malpractice rates both in these comments and in some of the AHRQ’s demonstration projects will have a far more beneficial impact than caps,high financial barriers or other limits on the ability of patients to sue. As reader Greg Pawelski puts it; “Limits on the rights of people hurt by medical malpractice will victimize them and their families further while helping neither patients nor doctors. The real beneficiaries will be insurance companies, including the doctor-owned malpractice insurers.”
So, no, I absolutely do not agree that we should “give tort reformers what they want…” What they want is unfair, leads to no benefits in patient safety and stifles more innovative ways of dealing with the malpractice insurance cost problem.
Pat S. writes, “tort reform, while comforting to doctors, has not had any real impact on spending or spending growth in those states (Texas and CA). Both are, in fact, examples of what is worst in US health care spending.” He recommends expert panels to hear malpractice cases–this is worth investigating. I also agree with Sharon MD that doctors “need to confront our lack of comfort with being wrong every once in a while. We also need protection from being sued if we follow standard guidelines of diagnosis and treatment.”
Mediation, expert panels, safety initiatives, better documentation–these are all approaches worth considering.
Naomi
I’m sorry to jump in late but I wanted to offer a couple of thoughts.
First, I think it’s unfortunate that the AMA is pushing so hard for caps on non-economic damages. While the caps will likely reduce the number of cases that trial lawyers perceive as worth taking on from an economic standpoint, they do absolutely nothing to improve the objectivity and consistency of the medical dispute resolution system both within and across jurisdictions. To do that, the suits need to be taken completely out of the hands of juries who can be easily swayed by glib trial lawyers and transferred to special health courts with knowledgeable judges and the ability to hire neutral experts to sort through conflicting scientific claims. Moreover, if we want to reduce defensive medicine that is a significant issue, I think, especially in the so-called failure to diagnose cases, we need robust safe harbor protection from lawsuits for doctors who follow evidence based guidelines where they exist. Just because someone suffers a bad outcome does not mean there was malpractice.
The efforts around patient safety are laudable and should be expanded but patient safety initiatives and malpractice reform are not mutually exclusive. They can and should proceed on parallel tracks. With respect to the impressive obstetrics initiative by NY Presbyterian, it’s wonderful that they achieved such positive results both in reducing harm to patients and in shrinking their malpractice payouts so dramatically, but I wonder how much if any impact there was on actual utilization of healthcare services. If anything, they might have even spent more per case than they did before.
Taking medical dispute resolution out of the hands of juries and passing safe harbor protection from suits for doctors who follow evidence based guidelines are more than just worth considering. They’re both worth implementing notwithstanding the vehement opposition from trial lawyers who are just trying to protect their own income.
Within the Cuomo Medicaid Redesign Team Package Prop 131 is the NY Hospital Quality Assistance Program, which provides for the safety initiatives, particularly as pertains to perinatal care, that your post advocates. I thought I’d point that out.
Jackie: Actually, some doctors make far more than what you cite for legal consultation. Here’s the trick though: a good attorney needs to avoid the perception of the hired gun. A physician or nurse whose primary practice is actual patient care doesn’t have that problem with juries, which is why not that many people make it their primary job, and why consultants charge the rates they do for what is actually pretty easy work.
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I’m not complaining about my income; its totally fine for me. The only reason I mentioned it is because its outrageous and a bad setup when you can make 3-5X more money testifying in court than actually taking care of patients. Its an enormous incentive to “color” your testimony to get in good favor with the lawyers.
Next time take look at the ATLA journal (American Association of Trial Lawyers now known as the American Association of “Justice” LOL). In the back of that magazine is an ads section. Would you believe that at least 70% of the adds in that magazine are from DOCTORS advertising their services as “expert” witnesses?
The “expert” witness game is a total sham and needs to be done away with. We need neutral expert panels that make the same flat salary regardless of which side they agree with.
This question is especially important in NY, a state that produces somewhere in the ballpark of 5000 new doctors each year and is concerned whether it’s getting a return on it’s investment in that training.
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Medicare funds each resident slot at approx 150k per year to cover their salary, health insurance, malpractice, etc.
Its well known that residency spots are a HUGE moneymaker for hospitals. In fact, New York is perhaps the most aggressive state in teh country when it comes to residents, as there are scabs of low tier hospitals that gladly take any foreign medical grads they can get so that they can get their hands on tha federal Medicare residency funding.
Lets not pretend that residents are huge cost losses for hospitals. The hospital CEOs like to lie to us about that, but its not true. I am in the leadership of a residency program here and I know what kind of revenue they can generate.
Residents make healthcare a lot cheaper. They make about 50k per year, and if you did away with them you’d have to pay an attending 100k per year minimum and furthermore you would get no federal monies to pay them.
Residents are the backbone of New York’s urban hospital establishment.
This mad rush to obtain Phentermine for weight loss is stupid and dangerous, but people will believe what they see and hear in the media advertisements. Proponents of Phentermine tell us that if we use this drug in moderation and over the short term, we can achieve the goal of weight loss, with minimal side effects. But what does “moderation” and “short term” really mean? There is no such thing as a dosage that is both safe and effective because of the nature of this drug and who thinks of losing weight as a “short term goal?” Nobody wants to go back to being obese. Furthermore, aside from the dependence and addiction, with each dose of Phentermine, the consumer spends about six hours in the same physiological state as one would be in facing certain death. Accordingly, there are serious psychological and physiological consequences to subjecting oneself to this huge amount of stress. First the initial desired effects like increasing activity and vitality, reducing tiredness, raising mood, improving concentration, suppressing appetite and reducing the need for sleep become excessive. Thus the person becomes sleep-deprived, undernourished, dehydrated, incoherent and ends up babbling incessantly. The physiological effects include, narrowing of the blood vessels resulting in poor circulation of the hands and feet, hypertension, stroke, cold sweats, seizures, gastric reflux, constipation, nausea and vomiting, heart attack, loss of bone density, and kidney failure. Finally, the onset of the mental and physical destruction is insidious because of the initial euphoric response and rapid weight loss. As long as there are physicians who are willing to prescribe this poison and a company that campaigns for widespread use the medical malpractice and product liability lawyers should be very busy. Perhaps the contingency legal system is the only way to stem this nefarious “red tide”. http://legalnurseconsultanttom.com/?p=451
President’s speech was good but after that no comments from him.Proper actions should be taken.
Jackie said, “The only reason I mentioned it is because its outrageous and a bad setup when you can make 3-5X more money testifying in court than actually taking care of patients. Its an enormous incentive to “color” your testimony to get in good favor with the lawyers.”
Not at all. When I provide an expert opinion, the opinion IS neutral. It is what it is. This is to the benefit of the attorney: he needs to know the real deal as far as the patient care went if he is to know if he can prove a case. Sometimes my answer to him is, “The standard of care was met.” Sometimes not . . . and here’s how and why.
It does no one, including the plaintiff, the defendant or the attorneys any good to “color” the truth or tell someone what they want to hear.
Expert testimony is a service, and in our free market economy, you pay what the market will bear. That will continue to be true even in the “neutral” system you advocate.
To Thomas Sharon: Way off topic. Did you post in the right place? Or is this a blatant advertisement?
Hmmm:
Most insurance companies make there money from investing your premiums in equities/stocks/etc. When the Wall Street crashes, so do invetments. This would explain the disconnect between premium increases and Texas Tort Reform results.
Public Citizen also did a nice detailed piece on Tort Reform. https://healthbeatblog.com/2011/03/instead-of-tort-reform-why-not-focus-on-reducing-actual-malpractice.html “The Great Medical Malpractice Hoax”
It to is well documented and cites numerous stats worthwhile reviewing. In the end, much more could be accomplished if the AMA would cure itself.
Thank you for taking the time to write this!
That’s the ideal and seemingly the best solution there is. You can never go wrong if you solve the root of the problem, right? But I think human error is unavoidable, so it is necessary to fortify the rules to be applied when such malpractices transpire. Furnishing a fair verdict is a good start.
Nice article!
A research focuses upon the relationship, on a nationwide basis, between medical malpractice awards, insurers’ return on investments , the presence of tort reform, and the cost of medical malpractice insurance premiums. Because many insurers operate in more than a single state, it would be difficult to conclude that all of the costs associated with massive jury awards, settlements, or gains/losses accruing from insurance companies’ investments would be confined to a single state, regardless of the current legislative climate involving malpractice .
medical negligence solicitor