Medical malpractice ... is tort reform really needed?

[porkrind]

Interesting post on Slashdot:
<quote>
http://www.medical-malpractice-lawyers-attorneys.com

The two statistics that caught my eye were:
1. From 1996 through 1999, Florida hospitals reported 19,885 incidents but only 3,177 medical malpractice claims. In other words, for every 6 medical errors only 1 claim is filed.

2. Malpractice insurance costs amount to only 3.2 percent of the average physician's revenues according to the Medicare Payment Advisory Commission (MedPAC)

or this link: http://citizen.org:
"10.6 percent of the state's doctors have paid two or more malpractice awards to patients. These repeat offender doctors are responsible for 84 percent of all payments. Even more surprising, only 4.7 percent of Pennsylvania 's doctors (1,838), each of whom has paid three or more malpractice claims, are responsible for 51.4 percent of all payments. "
</quote>

Incredible. Both the good doctors, and all of us patients, are getting screwed by the insurance industry and the bad doctors. I think some oversight is needed, not tort reform. If anything, more lawsuits are needed, as lawsuits are the only language corporations understand.
:wtf:

[Dookus]

1. Exactly...

it's like the old joke:

Q: What do you call a guy who graduates last in his class from Medical School?

A: Doctor


Get rid of the worst doctors, and the problem takes care of itself.

[porkrind]

13. You would think doctors would be all for this.

I would think doctors would be all for getting rid of the incompetents in their ranks. These bad doctors not only make the good doctors look bad, they cost them money. Also, how is the competition in the malpractice insurance industry? Are insurance companies allowed to refuse coverage to bad doctors? There must be some pretty broken dynamics going on here.

[napsi]

2. Uhhhh, No.......

Last year, 2003, my brother (Cardio-Vascular Surgeon) paid over $129,000 in malpractice insurance. He has been sued a few times by patients looking to receive $ fueled by contingency "fee based" lawyers. These lawyers take a minimum of 33%. Most lawyers know that insurance companies will pay upwards of $50,000-$100,000 just to avoid a trial.

It's a travesty and I believe reform should start at the " you lose, you pay". This would stop these people from bilking insurance companies and save all of us money in the long run.

BTW, in all cases (that went to trial) the charges where thrown out.
He was not compensated for his time, lost wages, etc....

Our system is f'ed up.

[kanrok]

5. Horse*hit

Med mal cases cost thosands upon thousands of dollars to prosecute. In my state you cannot even file a lawsuit unless a doctor, in the same speciality, reviews records and deems the case meritorious. (not a bad system, actually). Nobody, at least in my state, files a med mal lawsuit hoping that the doctor will just "settle." It just does not happen, especially since docs who settle have to report the settlement to the national data base, and this is held against them when they re-up their board certification and apply for privileges. Malpractice rates are up because of insurance companies.

[napsi]

8. Horessh*t

Happens all the time. When my mother passed away (we were sitting in the waiting area while they prepared to move her body) a man came up and handed us his card. He said "If I can be of any assistance, please call". He was a frigging ambulance chaser.

My mother died of cancer.....there was no mal-practice and he was not privy to any details. He was hunting his next Mercedes Benz.....


Give me a frigging break.....................

[kanrok]

9. Triple horseshit

Try providing identifiable data instead of horseshit anecdotal "evidence." Sorry, don't buy it. "My brother the surgeon", and "My mother the cancer patient." Try again.

[napsi]

12. It's all I can tell you

I'm not a doctor or a lawyer. I can only tell you my experience. Perhaps you have a different take......but mine is what it is....

[porkrind]

15. Wrong.

Last year, 2003, my brother (Cardio-Vascular Surgeon) paid over $129,000 in malpractice insurance.

How much did his practice gross?


He has been sued a few times by patients looking to receive $ fueled by contingency "fee based" lawyers. These lawyers take a minimum of 33%.

If these patients have a legitimate case against your brother, as decided by a court of law, they are entitled to a remedy. It's called justice. Also, why shouldn't the lawyers make a "fee"? I don't know how much is fair, but they sure as hell won't do it for free, would you?


Most lawyers know that insurance companies will pay upwards of $50,000-$100,000 just to avoid a trial.

They will only pay if they think it might cost more if they went to trial, and they think their client might be found guilty. If their client is guilty of hurting someone, they should pay. Again, it's called justice.


BTW, in all cases (that went to trial) the charges where thrown out. He was not compensated for his time, lost wages, etc....

I'm glad for your brother, that the charges were thrown out. As for the time in court, it's a cost of doing business in a democracy.


Before you vote down your rights to sue for malpractice, you might want to think about what you would want if you were injured by doctor's negligence and had a lifetime of pain or disability. I think doctors are paid very well by us for our health care. The problem here is not the patients, but the insurance companies.

[kath]

16. Well, but he still probably nets more than 250 K -- so I won't cry

any tears for him.

[kanrok]

3. You hit the nail on he head

A Harvard study that came out a couple of years ago came to the conclusion that there is 8 times more malpractice than claims made. More people die as a result of malpractice than die of AIDS or car crashes on a yearly basis. In Mass. 5% of doctors are responsible for over 90% of malpractice payouts. Tort reform is the wrong prescription.

[Ksec]

4. thousands of years of refining the law

and we want to let a couple of NeoKnuckleHeads change it for their own selfish reasons? I Dont Think So

[kevinam]

6. No, I don't think so...

Doctors make mistakes. Unfortunately, it seems the same doctors make multiple mistakes. I just can't understand tort reform, or the concept of punishing the victim of the doctors mistake. Unfortunately, a member of my family was the victim of a doctor's mistake. She will forever remember those mistakes, the doctors probably won't. By the way, suing a doctor isn't some walk in the park. It is not like a guy gets a cut on the hand, his scar is a little too visible, and the doctor's insurance company has to come up with $10 million. It just doesn't work that way. The people who win settlements are typically disabled in one way or another. Pain and suffering can last a lifetime. It would make more sense to punish the doctors who make multiple mistakes. Or, it would make more sense to do something about the rising premiums. To punish the victim is just so cruel, so Bush*-like...Kevin.


**on edit, typo

[IrishBloodEngHeart]

7. 2 quick responses

1) Is every error compensable? Shouldn't there be some standard rather than an honest mistake that takes you to court. Every doctor will admit they make mistakes, as does every other person and every other profession. The test should be whether they were negligent or malicious in the mistake.

2) Your data is through 99. Malpractive rates are up over 200% on average since then.


(I used to be a medical malpractice insurance underwriter many years ago, and still track the industry)

I don't think the tort "reform" being proposed now is any good however. I think any real reform has to address the differences between the for profit healthcare system and the not for profit healthcare system. Noone seems willing to address this.

[porkrind]

10. I agree.

<quote>
Is every error compensable? Shouldn't there be some standard rather than an honest mistake that takes you to court. Every doctor will admit they make mistakes, as does every other person and every other profession. The test should be whether they were negligent or malicious in the mistake.
</quote>

I think this is the whole point and purpose of going to court. Two sides disagree, and the court settles it fairly after reviewing the merit of the case. If the doctor was wrong, some remedy may be in order.

[kanrok]

11. No, of course not every "error" is compensible

The gravamen of any malpractice case is whether the health care provider deviated from accepted norms, and the deviation caused an injury. Bad results occur, it does not mean it's actionable malpractice. The problem with doctors making "mistakes" is that when they do it can cause grevious injury or death. BTW, if you were an underwriter for a long enough time, you'll know that malpratice rates typically go up when the stock market goes down. It has very little to do with clais made or paid.

[TreasonousBastard]

20. Then you're one of the few...

who knows of a few rarely mentioned factors:

Underwriting standards are often thrown out the window when competition rears its head, leading to the dreaded rate cycle. And, no one complains in those years the rates go down.

"Association" business tends toward adverse selection when the bad guys stay in the association as everyone else finds a better rate.

Insurance company data is private and no one outside of the company actually knows what the real claims numbers are. Even the better state regulators don't get a full breakdown.

With claims for malpractice during birth coming in when the "victim" is in late teens or twenties, calculating IBNR isn't scientific-- it's witchcraft. It always was a little bit of stir over low heat, but it's been impossible with that kind of tail.

Since 9/11, reinsurers are going nuts losing their shirts. Even before 9/11, reinsurers were rethinking their use of 3 year loss results-- looking at losing their shirts but not being able to do anything about it.

Speaking of reinsurers... treaties have been revised leaving primary insurers with much higher retentions. Cat covers, excess of loss, quota share covers-- all renegotiated to really hit the primary carriers. Many of the mutuals, pools and managing agents which essentially lived off of override commissions are being strangled.

Back when I was in the business (ocean marine, not malpractice) it was being taken over by the financial people and the insurance people were being left out of the loop. That meant that the concept of acceptance of risk was less important than playing with a huge amount of money. It also meant that many insurance companies eventually either got out of the insurance business or went bankrupt.

Now, with their investment portfolios in pretty miserable shape and not being able to profit off of London reinsurance based on the profitability of the dollar in Bermuda, it's a new game again.

A new game that costs everyone more.

[AngryAmish]

23. Malpractice rates up 200% since 99

What happened in 99 - wait for it - the tech bubble burst. Every time there is a malpractice "crisis" is when the insurance companies take it in the rear from bad investments.

They find a third party (not themselves) to blame for their mismanagement.

Edited for - hey, am I too lazy to scroll down? I guess I am. (and spulling)

[Bozita]

14. Insurance companies lost their asses in the stock bubble

They want "their" money back.

If you buy insurance, you're gonna participate in the payback.

Look at your home insurance. Mine has damn near doubled in the last few years.

Senate Majority Leader Bill Frist (R-TN) is a medical doctor and surgeon. That's not the source of his wealth. His family founded HCA, the largest chain of privately owned hospitals in America.

Yeah, Frist's baby needs a new pair of shoes.

Ante up.

[AP]

25. Some insurance companies had record profits in 2003, despite down economy

Go figure.

Your insurance doubled, but your house isn't burning down twice as often.

Do the math.

[Bozita]

26. Yep, ratepayers provided those record profits through supersized premiums

Unchanged risk plus skyrocketing premiums equals bigtime profits.

Unfuzzy math!

[pacifictiger]

17. one more benefit of

universal health care - fewer insurance suits filed just to cover spiraling health costs.

[BigBigBear]

18. My wife's an attorney

She's turned down several questionable medmal cases....the only one she ever DID take, an ER at a Level 1 Trauma hospital took in a friend of ours in a car crash, on Christmas Eve. She complained loudly that she thought her foot was broken, they did a perfunctory X-Ray, too dark, treated a head gash, didn't give her a crutch or a splint or even a referral for her foot. They didn't even give her a hand to the bathroom (she had hit a bridge abuttment at 55 mph).

She walked on the foot for three weeks, finally saw a specialist on her own nickel. He said it was broken, her having walked on it caused it to dislocate, they had to re-break it and at age 35, she inherited a permanent limp.

She sued the hospital and the treating doctors. The insurance company threw every delaying tactic, motions to dismiss etc, for years. They lost appeal after appeal, but did everything possible NOT to try the case. My wife was a sole practicioner. Eventually the hospital was bought, the doctors had moved away or retired, files became "lost", and finally the case was dismissed. They had run the clock out, and our friend is still limping.

Medmal cases are extremely expensive to litigate, and even harder to win.

I have no doubt there are ambulance chasers out there - what I also know, is that frivolous lawsuits are routinely tossed and attorneys who litigate them are routinely hit with the other side's legal expenses. Serial offenders are usually disciplined or disbarred.

The "loser pays" scenario is overwhelmingly unfair to the plaintiff, since insurance companies hire attorneys at $600/hour, who routinely overbill, have IME's on retainer to give testimony, and have other institutional advantages the average Joe just doesn't have. It provides a staggering disincentive to seek damages in cases of gross imcompetance, and in effect, provides a stagering incentive to reward and protect dangerously incompetant medicine.

[Bozita]

19. Thanks for an illuminating post

argued very well

[TreasonousBastard]

21. That's the other side of the story.

I've been involved in cases where management was questioned on whether they insisted on fighting a claim because it was a BAD one or a BIG one.

After all those years in the business, I could make a case for both amubulance chasers changing the caselaw to benefit themselves and their undeserving clients and insurance companies stonewalling to save money. There is also the problem of a major client insisting a claim be defended in certain ways. Even though the policy normally says the insurance company will handle all aspects of the claim, it doesn't have to. Everything is negotiable.

The truth, as always, is somewhere in the middle.

Malpractice is another area where the lawyers have to be specialists with deep enough pockets and the ability to hang in there before the clock runs out. Can't waste any time squashing motions and appeals, and have to know just how best to do it, with the right experts on tap. Most of the specialists do turn down the majority of claims just because they know how tough it is.

And, yeah, making the loser automatically pay everything is a rotten idea. The whole point of a lawsuit is that there are gray areas in the law and the judge and jury shed light on them. If you really have a legitimate claim that a jury just doesn't buy, those legal costs can add up.

And even if you win they might appeal, and the costs really add up then.

They tried this in Britain, and the court calendars dried up fast. Even with a good case, it was just too much of a gamble. Justice was not served.

[porkrind]

24. Wow.

Great post. Thanks!

[tishaLA]

22. Yeah. It's too hard to sue now.

My case.

When I was 27, I started to have a terrible time breathing, walking, etc. I am a graduate student in the UC system and I went to the student health center, where they asked me what I thought was wrong with me. I said that I thought I had bronchitis, although I had never had it before. They prescribed antibiotics.

I returned a couple weeks later and they prescribed more antibiotics. And again a couple weeks after that. Nada. No relief.

I called the director of the student health center, who directed me to the nurse practitioner who works with her. At this point, they determined I had asthma and that my allergies had gotten worse. This made perfect sense as I couldn't climb stairs, walk more than 100 feet, or sleep lying down. I took their medication and I still didn't get better. Instead, I threw up everything I ate, including water and soda. Nonetheless, I continued to gain weight.

Finally, six months after my initial visit to the health center, I went in for a referral for an endoscopy (they thought I might have a throat problem at this point) and I complained--again--about water retention and throwing up. But it had become worse. My water retention was not just in my abdomen--it made me look pregnant--but it had "spread" to my legs, which felt like they were going to explode. Another doctor comes in...and they send me to the emergency room.

Diagnosis? Viral onset congestive heart failure. My ejection fraction--the amount of blood pumped out of my left ventricle when it contracts--was only 15% instead of 60%, which is a normal heart's performance. All the asthma medications etc had kept me JUST healthy enough to keep walking around...and to allow my heart to get so weak the doctors thought I would have to have a heart transplant within the next 2 months.

I have been fortunate that my heart has recovered quite well, but my life expectancy is still significantly lower than it would be if I had been diagnosed within a reasonable time. The recovery zapped all my energy and the medications made pursuit of my academic career nearly impossible. Even so, I could not find a reputable firm in Los Angeles to take my case. They needed something more facile to prove and, of course, it would be hard going up against the state in a medical malpractice suit.

I'm only one of many, though. Our stories are never told, but we hear about doctors who are forced out of practice because of medical insurance and/or because of evil lawyers. It seems to me that I met a series of lawyers with an abundance of caution and a relatively easy case. What I wouldn't have given for an ambulance chaser.