What if baseball players had to buy the equivalent of medical malpractice insurance?

in Uncategorized | 14 responses

“Imagine what it would be like if the best players in baseball couldn’t play because it cost too much to insure them against professional liability. That’s what’s happening here.”

An OB/GYN in Illinois writes about the dire situation regarding doctor shortages due to increasing medical malpractice rates. While we continue to point fingers as to who’s to blame, consider the patient who is forced to ask four separate doctors to deliver her baby.

Comments

Anonymous
Or, consider the parent who has to ask 5 or more attorneys to take their case when their child dies due to obvious negligence. The pecuniary loss rule and the malpractice caps have more bearing on the attorney’s decision than the obvious negligence.
I understand that plaintiffs are now being advised to offer 1/2 to 2/3 of the settlement (instead of 1/3) to attorneys that have caps in place for them to accept the case, complete an extensive investigation and cover their costs. The parents are getting the answers they need and the attorneys are being paid but there is something wrong with this picture.
No errors…no lawsuits. We are back to the solution of overhauling the “system” and putting patient safety at the forefront of everyone’s mind. When errors occur (which they will) medical courts, mandated full disclosure and no fault compensation would work.
There are too many players in this “game.” No one is winning and the rules aren’t fair…or is someone winning? Could it be the insurance companies and are they the ones making the rules?
–dag–
Dr. Charles
DAG – I agree that caps are not a panacea, but they are a necessary measure before the longer process of tort reform can happen. Please reference this comprehensive report: http://www.ama-assn.org/go/mlrnow
Here is a sample in response to your question:
1. Myth: Capping non-economic damages prevents patients from adequately recovering for their injuries. Fact: The HEALTH Act does not limit the amount a patient can receive for economic injuries. An injured patient can recover all of her medical costs, lost wages, future lost wages, rehabilitation costs, and any other economic out–of-pocket loss suffered as a result of a health injury.
2. Myth: Caps on non-economic damages will not address the problem of affordability and availability of coverage. Fact: The HEALTH Act is modeled after California’s 1975 Medical Injury Compensation Reform Act, which has enabled health care professionals to focus on providing high-quality care. Research has demonstrated that direct medical care litigation reforms—like the HEALTH Act which includes limitations on non-economic damage awards—reduce medical liability claims rates and insurance premiums. California now has some of the lowest liability premiums in the country.
3. Myth: Adjusting the statute of limitations means patients will not have enough time to seek redress. Fact: The HEALTH Act limits the number of years a plaintiff has to file a health care liability action, ensuring that claims are brought before evidence is destroyed, while witnesses are available and memories are fresh. It guarantees that health care lawsuits will be filed no later than 3 years after the date of injury. In some circumstances, however, it is important to guarantee patients additional time to file a claim. Accordingly, the Act extends the statute of limitations for minors injured before age 6.
4. Myth: MICRA-style reforms, including a $250,000 hard cap on non-economic damages unfairly target children, who would not be able to collect any economic damages.
Fact: Children in California, a state which has had the benefits of MICRA since 1975, have been able to receive multi-million dollar verdicts and settlements precisely because economic damages include measurement of future wages. If an injury prevents a child from pursuing a livelihood, the wages and benefits of unrealized work can be calculated. In states without MICRA-style reforms, physicians are growing more reluctant to perform complex procedures, such as pediatric neurosurgery, for fear of being sued. This has resulted in children being forced to travel long distances for care—putting their lives at potential risk.
5. Myth: MICRA-style reforms, including a $250,000 hard cap on non-economic damages, unfairly target non-working spouses—especially women—who would not be able to collect any economic damages. Fact: States without proven reforms are losing physicians willing to read mammograms—putting women at increased risk for delaying detection of preventable breast cancers. Furthermore, women in underserved and rural areas will be particularly hard hit by any further loss of obstetric providers. With the economic viability of practicing obstetrics already marginal due to sparse population and low insurance reimbursement for pregnancy services, an increase in medical liability insurance costs will force many rural physicians to stop delivering babies, providing prenatal care and preventive care services. In California, MICRA has enabled the critical “safety net” of community clinics to maintain services for California’s rapidly growing uninsured and underinsured population. Should the current cap be raised, serious public health consequences for women are inevitable. MICRA-style reforms also enable non-working spouses to collect money for child care costs or any other economic cost needed to provide care if an injury has taken place. In addition, juries often set a “salary” for non-working spouses for purposes of determining economic damages.
6. Myth: MICRA-style reforms, including a $250,000 hard cap on non-economic damages, unfairly target the elderly, who would not be able to collect any economic damages. Fact: MICRA-style reforms would enable the elderly to collect any/all money needed to continue providing care. Without reforms, the elderly will likely see their access to care diminish when they can least afford it. MICRA-style reforms preserve the elderly’s access to specialists, such as orthopedic surgeons. In states without proven reforms, reports of physicians who say they no longer provide home-health care visits to the elderly are increasing. These visits are stopping due to rising liability insurance premiums and other factors, and it forces the elderly to
potentially delay receiving preventive care, as well as incurring increased costs and difficulty associated with travel.
7. Myth: It is unfair to restrict attorneys’ fees. Contingency fees are a built-in incentive which encourage plaintiffs’ attorneys to take only meritorious cases. Fact: The HEALTH Act empowers courts to maximize patients’ awards by ensuring that an unjust portion of the patient’s recovery is not misdirected to her attorney. Trial lawyers that link their payment to awards have an inherent incentive to generate as much litigation as possible and drag out proceedings as long as possible. Legislation like this will help expedite medical liability claims and discourage baseless lawsuits by limiting the incentive to pursue meritless claims. Without this limitation, attorneys could continue to routinely pocket large percentages of an injured patient’s award, leaving patients without the money they need for their medical care.
Curious JD
Speaking of myths and such, Dr. Charles is repeating a few. Let’s examine them. But lets first ask the question of what business of the federal government is it to impose caps on state courts?
Perhaps the biggest myth of all though, is that caps will affect insurance rates. Since the insurers themselves say they won’t, why does anyone believe they will?
But as to his specific info:
1. Capping non-economic damages means that those who work for minimum wages, children, the retired, and stay at home mothers are essentially shunted to the side. Given that they have no economic loss, they are capped at $250,000. But hey, how bad can their plight really be. They didn’t need their health anyway – they weren’t working.
2. MICRA did nothing to reduce insurance premiums. In the first 13 years of MICRA, med mal rates increased 450%. Only when California enacted Prop 103, mandating an immediate freeze and the refund of millions to policyholders, did California stabilize.
3. The statute of limitations. Of course, if one doesn’t discover the surgical instrument for several years when it starts to move around, they are just out of luck. Regardless, most states have 2 year statutes of limitations for adults on med mal anyway. I do like the arbitrary number of 6 years old for minors though. Those 7 year olds shouldn’t be so lazy and should get off their butts and file suit.
4. I wonder how a child’s economic damages are determined? Do we assume he would have made $250,000 a year and extrapolate from their? What do you bet that the physician would object to that? After all, this kid wasn’t going to become a doctor. How can anyone argue that a jury isn’t smart enough to decide med mal, yet can somehow guess how much a 1 year old would have earned if he wasn’t handicapped as a result of negligence. This is the most ridiculous thing yet.
5. Note how the original proposition isn’t even responded to. Juries cannot set a “salary” without something to base it on. Any appellate court would strike that down as pure speculation.
6. Same as above. Of course, we throw in that they won’t get any care at ALL. As if the largest growing segment of the population won’t be able to find a physician to treat them.
7. Here’s where Dr. Charles’ grasp of economics goes really astray. Since Plaintiff’s attorney’s only get paid if they win, why would they have any incentive to drag a case out? That’s the most ignorant statement yet.
The incentive is on the defense attorney to drag it out, knowing that the victim probably need money to pay their bills, their lawyer is only spending money at that point, and the defense attorney gets paid hourly.
Note however, that no one is suggesting capping how much the insurer can pay its attorneys. I wonder why they would only want to hamstring one side? Isn’t this about fairness.
Perhaps the biggest laugh of all though, is that not one insurer has promised to drop rates a single dime if this is enacted. Yet some physicians actually believe that they will. How can such intelligent people be so naive?
Dr. Charles
I already answered your naieve question in the comment section of your blog, remember?
http://adversarialprocess.blogspot.com/2005/01/jumping-right-in.html#comments
It seems that you find sport in all of this, when really your tenacity in promoting the status quo and your outrageously unjust legal system is what strengthens public distrust of lawyers… keep it up!
Curious JD
Which is more naive? To believe that an insurer will lower rates when they’ve already told you they won’t? Or to ask for a guarantee when you cap their exposure?
Hmmm.
No one likes lawyers until they need one. I’m comfortable with that. It’s part of the deal, I understand.
jb
Nobody likes lawyers even when they need one. Most often they need a lawyer because another lawyer is trying to shake them down.
Anonymous
Liability – ahhh – that is one of the main reasons I got out of Athletic Therapy.
CosmoGRRL
Anonymous
Dr. Charles doesn’t like facts or arguments. Curious JD does an excellent job of demolishing his points and all Dr Charles can do is point to a site that is not responsive. To save any reader the time, Dr. Charles links to his posting listing a bunch of studies showing the relationship between higher premia and damage awards. Well, duh. But, as the recent issue of MEdical Economics argues (cited by Kevin, MD), it’s not that simple; investment return and certain approaches to risk assessment play a significant role as well.
The point is non-econ caps essentially leave the poor, children, the elderly, women (who are not bread winners) with limited against medical negligence–which, as the Institute of Medicine shows, kills 70 to 100 thousand people every year.
Doctors know this and no doubt respond as all rational actors would with lower levels of care for the poor, elderly, and women. After all, why should a doctor order that extra test on that poor 10 year old housewife if he knows she can’t win a huge judgment against me and thus can’t affect my insurance premia all that much.
I know that sounds harsh, but to argue otherwise would place doctors in a godlike status immune from economic incentive, which as good capitalists, we all agree motivates all.
So, congrats Dr. Charles–you’re advocating substandard care for children, the poor, elderly, and women. You’re a regular Albert Schweitzer!
Anonymous
Forget the caps. The entire system needs to be revamped in a way that will eliminate trial lawyers from the equation. To assume that all docs taylor their care based on the possible liability exposure is ridiculous and attests to your ignorance. The overwhelming majority of us try to deliver the best most appropriate care we can no matter who we are treating. The real tragedy is that docs are successfully sued all the time when they have not been negligent. Trial lawyers have way to much control of the system with their carefully chosen juries and their “expert” witnesses. If the present system continues medical schools will see a deterioration in the quality of their applicant pool. Of course that’s not a big deal to trial lawyers.
Anonymous
The anonymous doctor makes no sense. “To assume that all docs taylor their care based on the possible liability exposure is ridiculous and attests to your ignorance.” Well, then whatabout “defensive treatment” and all the claims the med mal makes doctors overuse testing? Of course, docs base their care on possibile liability–and caps may create a Jim Crow regime where the poor, people of color, women, children and the elderly will have to get to the back of the bus.
Further that tired claim “If the present system continues medical schools will see a deterioration in the quality of their applicant pool.” Why is that? Is it because medicine is less lucrative due to med mal insurance? Well, I thought you said doctors are immune to economic incentive.
Medical school is long, but logic doesn’t seem to be in the curriculum. Ignorance, indeed!
Anonymous
The enjoyment of medical practice is fading fast as we are foced to look at each patient as a potential litigant. Doctors incomes are no longer a real issue in attracting applicants. The idea of having to work in a hostile environment in which one is subject to ridiculous lawsuits will surely dissuade right minded individuals from applying. It is nice to know that I work in a profession which is highly trusted by 68% of our citizens. The same survey showed that only 18% percent of lawyers are highly trusted. That number will only change if the plaintiffs bar cleans up its act and stops digging in their heels. I guess you are going to stay in the sewer.
Curious JD
Considering that the vast majority of physicians has never been sued, perhaps the AMA should quit scaring its members so much.
But I have to ask, who do you think represents you, the individual, if something shitty happens to you? If that beam on the construction site falls on your head? Or if that drunk driver slams into you? Or if that tractor trailer you’re following loses its load? Or if that Pinto you’re driving explodes and you’re horribly burned? Or if that drug that the FDA got 1/2 the info on gets to your wife and causes her death?
Do you think those tall buildings filled with lawyers in 400 man firms at $300/hour and offices around the world work for you or are itching to take your case? That they will drop their corporate clients that pay them millions each year just to take your one case? Or do you just believe your greatness will keep you immune from all harm?
Understand one thing about Plaintiff’s lawyers – if you get screwed, we’re the only friends you’ve got. Those tall building lawyers get paid by the hour, and if you’ve had a devastating injury which renders you unable to work, who is going to pay them?
Do you think that by making it harder for you to recover, and by making it so your lawyer gets paid less than the insurers or the Fortune 500 company’s lawyer that you win somehow?
Anonymous
Since I started this, I should be the one to finish it.
As stated in the recent Medical Economics article on the med/mal crisis: “if someone has to suffer, don’t make it people who are worse off at the start.”
We never think bad things will happen to us. We are in the healthcare business and we expect perfection but in the end, we are all patients and bad things happen sometimes that need to be explained. At the present time, your colleagues will not stick by you because they are afraid. Your attorney will be your friend, if you like it or not.
I have learned that there is good and bad in both….physicians and attorneys…oh yes…and patients too. Working together with the good ones is the key to progress.
–dag–
Anonymous
Stop this nonsense, physicians are not to blame. The fact of the matter is that litigation is leading to high insurance costs and making it harder for people to get medical care they need.

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