New Hampshire medical malpractice reform

in Uncategorized | 13 responses

Malpractice reform hits my home state

The New Hampshire legislature has to consider 15 different malpractice reform bills. One salient point:

“There is an expectation. We have done pretty well in medicine, perhaps too well,” Woods said. “With technology we’re going to be able to do a lot more. But society’s expectation is that we’re perfect, and we’re not.”

Both the public and the lawyers have to eliminate the expectation of perfection in an imperfect science. Mistakes happen in medicine despite the best intentions. Commercial aircraft sometimes crash – why aren’t the airlines getting sued out of business? Accidents happen in life – I’m not sure everyone gets that.

Comments

Orac
Actually, they do sue airlines out of business when a crash occurs. It’s just that crashes are so uncommon that it’s not happening all the time.
Curious JD
Why do you guys continue to mislead? The standard in the courtroom for medicine is not perfection, and never has been. It’s reasonableness of action based on the locale.
What’s more, it’s clear that juries understand this, considering how often they find for the doctor. So perhaps your understanding of society’s expectation is not a correct one.
Negligence has nothing to do with intentions. It has to do with mistakes that fall below the standard of care. No one INTENDS to have a car wreck, but we still have to pay for the resulting damage. Everyone gets that accidents happen – only doctors don’t get that they have to pay for the harm when they are at fault.
Why do you continue to carry the water for insurers who have promised you nothing?
Anonymous
Maybe the system should allow trial attorneys to face the threat of suit every time they lose a case. I bet the outcome of those cases is the result of negligence about as often as a patient’s negative outcome is a result of negligence.
I’ve heard of men being found innocent and released from prison trying to sue the state but why have I never heard of them hunting down their defender and trying to get some green out of him?
Maybe then lawyers could understand the situation in medicine better. The system is sort of set up in opposition to this idea, however. So, alas…
Curious JD
Orac,
The goal of malpractice cases is not to curb malpractice, rather it’s to compensate that individual for the harm suffered.
You mention the payout to the lawyers, because you guys always mention that (while never mentioning your own salaries or the expenses and time the lawyers put into the case, of course), but how else would the victims get compensated? What other method do you propose to get them money for their medical bills and such?
That’s another thing that’s often forgotten – the health insurers have a right of subrogation. So while you like to mention great big verdicts and how it’s a “windfall”, you never acknowledge that much of that money that goes to the victim ends up in the hands of medical insurers and future medical providers. It’s not spent on Cadillacs and fur coats.
Curious JD
Anonymous,
What unbiased reports are those? They must be different from the reports from the insurers themselves saying that caps have an effect of about 1% on their losses.
You should do your homework.
By the way Orac, if you’re not qualified to determine malpractice in that case based on a newspaper article, how is that so many doctors can determine that a jury got it wrong based on a newspaper article? It seems that physicians don’t use the same critical eye to examine the claims of “frivolous” cases that they do for legitimate ones.
Anonymous
Notice the shifting, hypocritical rhetoric of the medical profession. On other medical blogs, we hear of physicians’ struggles to give each patient the best possible care and –but when they don’t, well, the response is, to paraphrase Kevin, M.D., “Sh– happens.”
Dreaming again
curious …most lawsuits ARE frivoulous, and most doctors CAN tell the difference between malpractice and neglegence and outcomes that are undesirable and human error! They are NOT all the same thing.
I’ve had malpractice ..outright … my primary care doctor sent me to a neurologist who tested me for myasthenia gravis, told me and my primary care doctor that the tests were normal and everything was fine, told my PCP that it was post partum depression, told me to ‘stop being a baby about being a new mother’
2 years later when I was diagnosed with myasthenia gravis and applied for social security disability we got all my records and found that she’d had positive results ..antibody test showed MG, EMG test showed MG and full evoked potential test showed something was wrong.
THAT was malpractice (nope, didn’t sue)
My other missed diagnoses …
lupus … for 13 years lupus was ‘missed’ until a lab tech who thought she knew more than the doctor who was trying to test me for rheumatic fever and had ordered an Anti DNAse test and the lab tech didn’t know what it was and decided the doctor meant Anti dsDNA …which came back extremely high indicating lupus. Which put a whole bunch of puzzle pieces together for my doctors.
The problem was … they didn’t miss the lupus … I’d been tested over a dozen times by over 5 doctors in 10 years for lupus, but when the ANA came back normal they, like the diagnostic protocol tells them to, did not further investigate. But the symptoms kept leading them back to it. The medications I was taking for the myasthenia, was causing my ANA to be normal. When the Anti DNA showed up, they pulled me off the other med for a few weeks to see what happened, and my ANA sky rocketed .. I didn’t get diagnosed …but it wasn’t malpractice by any stretch of the imagination … yet their are lawyers that would jump on it saying they neglected to diagnose me. NO they didn’t. A protocol set in place, which works 99% of the time failed me.
But too many Americans, thanks in large part to the media and to lawyers put good doctors at risk by taking cases that truely ARE frivolous, that truely ARE human error, truely ARE just the way things are … and letting TRUE malpractice go …
Curious JD
As a consumer, how do you know that “most lawsuits are frivolous”?
Dreaming again
You’re quite the peice of work Curious JD.
First, Doctor’s shouldn’t be deciding what’s malpractice and what isn’t, because they’re biased.
Now, the consumer doesn’t have the knowlege base to decide what’s frivolous and what’s not ..which, by the way, is rather offensive.
Just because I’m not a doctor, or a lawyer, does not mean I do not have the intelligence to tell the difference.
So, that means, Doctor’s can’t make that decisions, consumers can’t make that choice, leaving only the lawyers to make that decision … which is why we have the mess of a system that we have to begin with! Eventually, all of the good doctor’s are not going to be able to afford to practice and are going to drop out of medicine, and the jerks who could care less are going to be practicing ..they don’t care, why should they, they pay the premiums and their insurance pays the settlements not them. It’s the REAL doctor’s who DO care who pay the price. It’s the doctor’s who work hard, who care about their patients, who sweat bullets to give the best care they can with limited resources and an imperfect system and imperfect science with imperfect bodies who don’t read the medical textbooks to know how they’re supposed to react to their diagnosis’ that wind up not being able to afford to give the kind of care to their patients that they WANT to give because they’re paying too high of malpractice insurance.
And don’t give me any bull about if they’d testify against each other that would fix it … in a lot of states, if they testify against another doctor, they loose their own malpractice insurance themselves because they all share the same carrier.
The media and the lawyers keep hollaring that the doctor’s are keeping the system tied up ..but it’s not … it’s the lawyers who are making the bucks on the lawsuits …
And patients like me … are going to be loosing the good doctors.
curiousjd
Dreaming,
Either you misread or I mistyped. What I meant to say was that it is virtually impossible for one to determine if malpractice occurred based solely on a newspaper article. Unless it’s a VERY detailed article, which few are.
In fact, it appears you’ve taken what I’ve written and completely missed the point. Maybe I’m being obtuse.
The evidence of an exodus of doctors really doesn’t exist. It’s anecdotal at best, and where doctors are leaving, it’s in rural areas that have ALWAYS, tort reform or not, had trouble keeping doctors.
But you did highlight one important point when you said: “And don’t give me any bull about if they’d testify against each other that would fix it … in a lot of states, if they testify against another doctor, they loose their own malpractice insurance themselves because they all share the same carrier.”
That right there is completely correct. Perhaps instead of blaming the lawyers you should ask yourself why doctors have to choose between being honest and keeping their insurance.
And as a patient, you also ought to be asking yourself why you should support a cap on damages that values your quality of life at less than the average physician makes in two years.
Dreaming again
In Oklahoma, there is one major malpractice insurer. If you practice at a hospital, you use this insurer. Period. I don’t know how it is in other states.
So doctors don’t have a CHOICE.
Granted, Oklahoma’s salaries overall are lower here … but a few years ago, the average family physician in Oklahoma made 65,000 … I realize specialists make more, but when I had my oldest son 15 years ago, it was common for family physicians to deliver babies. It is no longer common. They simply can’t afford to pay the premiums.
Also, I again, don’t know what the medicare/medicaid reimbursments are in other states … but with the exception of dentists, podiatrists and rheumatologists (don’t ask me how rheumatologists got out of the mix, I have NO CLUE!) all the doctor’s, at least in Northeastern Oklahoma accept medicare medicaid assignment. I’ve yet, in 13 years to come across one that doesn’t. (except ..the rheumatologists …none of them do, except at the medical college)
I’m sitting here with a bill next to me for a specialist (the ONE rheumatologist at the medical school that accepts medicare/medicaid) …first time appointment for lupus diagnosis with complications of myasthenia gravis and osteo arthritis and hypermobile joints.
The charge was $209.
Medicare allowed
$111
and paid $89 leaving my portion $22. Because of my income, I qualify for medicaid that pays my 20% of medicare THEY only pay 70% of what is sent to them …so they paid 70% of the $22… $15.
So, my rheumatologist got a whole
$126 for the 90 minutes that he spent with me.
Which, sounds like a lot to most people ….
till you take off the overhead for the building
the power bill
the secretary
the nurse
the supplies
his time filling out paperwork
his portion to go towards his malpractice insurance
and he has to pay back the student loans …
I don’t believe that doctors who intentionally harm patients should be allowed to do it …
but true mistakes happen.
I guess JD what it comes down to …is no, my life isn’t worth the cap … no amount of $ is worth it.
An apology? yea ..but $ ..no. Having been a victim of intentional malpractice … I can honestly say … no amount of money could make up for it. There is no amount of money that the doctor could pay me for having lied to me and my family doctor about the test results showing a disabling disease. It meant far more to me that the doctor’s that I dealt with stopped sending her referrals.
Curious JD
Dreaming,
I can certainly respect that. As a society, we have made a public policy decision that although there are things we can’t restore, like quality of life, or the misery from back pain every day, we do believe the loss of those things have value.
Everyone in the law recognizes that money is a poor tradeoff. That’s why when I see people talking about “jackpot justice” it makes me so angry, because a million dollar case has an underlying injury that the victim would never have traded for the money.
But if you want to argue that the value shouldn’t be compensated, or capped, that’s fine. That’s what policy arguments are all about.
Now, as for Oklahoma, here are some facts I bet you didn’t know:
1. Physicians Liability Insurance Co. (PLICO), which insures more than 80 percent of the state’s doctors, reports that its average medical malpractice payout in 1996 was $318,522. When adjusted for medical services inflation, its average payout in 2002 (the most recent year for which its statistics are available) was only $267,375 – a decrease of 16.1 percent. A similar finding – a 16.4 percent decrease in payouts in Oklahoma for all insurers from 1996 to 2003 – was confirmed by the federal National Practitioner Data Bank (NPDB), which records all medical malpractice payouts made by insurance companies on behalf of doctors.
2. Just 3.6 percent of Oklahoma doctors are responsible for 43.4 percent of medical malpractice payouts, according to the NPDB.
3. Large medical malpractice payouts have been infrequent in Oklahoma. Annually, an average of only 5.4 payouts of $1 million or more have been made on behalf of Oklahoma physicians since 1996, according to NPDB data. The annual number of million-dollar payouts on behalf of doctors was seven in 1996 and eight in 2003.
4. Malpractice insurance costs comprise only 1.7 percent of Oklahoma physician expenses.
5. The number of Oklahoma doctors rose 7.4 percent from 1995 to 2003. During these years, the number of licensed practicing physicians in Oklahoma increased from 6,252 to 6,713. Additionally, the annual number of new medical licenses issued in Oklahoma increased 13 percent from 1995 to 2003.
6. Malpractice premium prices paid by Oklahoma general surgeons and Ob/Gyns have increased at rates slower – in many cases much slower – than in six bordering states.
7. In June ’03, Oklahoma enacted damage caps. In January ’04, the state’s largest insurer increased its rates 35%
The truth is, this “crisis” will abate as the stock market recovers and interest rates go up. Just as it always has.
As for your physician’s bill, I appreciate that. But that’s not a legal issue, that’s a much larger health care funding issue. Caps and such will do little to alleviate that.
Anonymous
My orthopedic surgeon actually DID intentionally harm me in order to keep me as a permanent patient……….did anyone ever hear of this before???????

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