Massachusetts gets a D-minus for its medical liability environment. “‘If ACEP gives Massachusetts a D-minus that is a reflection of the failing grade the insurance companies deserve for price gouging their own physicians,’ said malpractice lawyer Marc Breakstone.”

Of course.

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  • Anonymous

    Every state without caps gets a low grade from physicians and the AMA. Why is this news?

  • Matthew

    Because some people still buy into the trial lawyers’ claims that their pursuit of multimillion dollar awards has no impact on physicians, insurance companies or the cost of health care. It defies common sense, logic and reality, but there are still folks out there. And it’s not so much the low grade that makes it news as the fact that a horrible liability system and greedy, self-interested and plentiful personal injury lawyers are driving doctors away that’s the newsworthy part.

  • Anonymous

    Kind of like some people who have no knowledge of claimed reserves/actual losses, administrative costs, investment income, or any of the other things that factor into insurance rates like to claim that high awards are the sole reason for premium increases despite the fact that they don’t know exactly how many high awards there are or whether they were justified or not.

    Or the fact that doctors aren’t being “driven away”, retiring in droves, or any of the other unsupported claims made by so many who endeavor to make more money by keeping legitimate claims from being paid. Or the fact that if it weren’t for plaintiff’s lawyers doing their jobs, even the few who do get compensated wouldn’t get compensated because even in cases of clear malpractice, physicians aren’t rushing out to help the victims pay their bills no matter how egregious the injury, eh, Matthew?

    But really, none of that is news either.


  • Anonymous

    Mark Breakstone is like the “Donald Trump” of Massachusetts
    malpractice attornies, he tries to get his name next to all the high profile cases.

    To the comment that Massachussetts physicians aren’t being “driven away in droves” that’s not what I see. In my emergency medicine residency program, only 5-10% of residents stay in Massachusetts; the same is true in other “high risk” specialties. I know I’m using the malpractice environment as a factor in deciding where I move to.

  • Anonymous

    So where are they going? Given that apparently physicians are leaving every state, what state are they all ending up in?

    And how come if all these claims of disappearing physicians are true, no one can come up with a definitive number per specialty and per state? In fact, in most of these states, all we get is the total physician number, and it always seems to be INCREASING.

    You say you’re using it as a factor. How so? Are you weighing the actual cost of liability insurance in each state? Are you reviewing how many suits per capita are filed in your specialty in each state? Are you reviewing the factors the various insurers use to raise your rates to see which one is fairest? Are you determining which insurer has the best financial performance over the last decade and then going to the state they have policies in?

    And how much of a factor is it? Bigger than salary? Bigger than housing costs in the areas you’re looking at? Entertainment options? Age of the facility (if you’re going to a hospital)?


  • Anonymous

    “And how much of a factor is it? Bigger than salary? Bigger than housing costs in the areas you’re looking at?”

    To me, it’s the ONLY factor.

    I have an inheritance to worry about. If I can’t find a state where my inheritance is 100% safe (and yes, moron, I know it’s very unlikely i’ll get sued for my personal assets)I see no reason to continue practicing medicine. Why should I risk several million dollars so I end up in court having some asshole tell a jury how I “injured and maimed” some poor shmuck who had a natural bad outcome.

  • Anonymous

    Then you’re not thinking rationally.

    The only way your inheritance can be 100% safe in any situation is if you put it in an irrevocable trust which you have no control over and only gives you money for necessities. That’s pretty much it.

    Are you going to stop driving because you might lose your inheritance if you’re at fault in a bad wreck? Are you not going to enter into any contracts involving substantial amounts of money? Do you not think that a case in which the caps would even be touched won’t have a significant amount of non-economic damages?

    Your willingness to make such major decisions with such a complete lack of information behind them is frightening for us patients. I think it’s pretty clear who the moron is. I would suggest you not open your own practice wherever you go, because you’re understanding of business is severely lacking.

  • Anonymous

    Oops “YOUR understanding of business. . . “

  • Matthew


    I know that you’re not open to any information contrary to the opinion you’ve already formed, that’s been clear for ages, and we could do “dueling studies” all day until our eyes glaze over. You know as well as I do that no one’s claiming that abuse of the legal system is the only cause for doctors’ woes. The bottom line is that in states where caps on arbitrary damages exist, the climate has gotten better for doctors, and by extension, patients. I know you HATE knowing that, but it doesn’t magically become untrue. I’d quote the studies and stats, but I’m sure you’ve already seen and chosen to ingore them.

    Just use common sense. When the rules favor personal injury lawyers (not their clients, this is about the lawyers, make no mistake), and doctors and insurance companies are placed at the whim of juries who are swayed by theatrics and not medical knowledge, the risk of financial ruin drives doctors away. Think it through. Nothing else makes sense.

    Reality hurts, I know. But make an effort.

  • Anonymous

    “The bottom line is that in states where caps on arbitrary damages exist, the climate has gotten better for doctors, and by extension, patients.”

    Matthew, if this were even remotely true, you’d have a point. But the fact is it’s not. Every state, caps or not, lost insurers during the economic downturn. Every state, caps or not, is gaining insurers and rates are dropping regardless of tort reform.

    And as I read in a recent insurance magazine, insurers are currently pricing their product appropriately, but sooner or later someone will loosen their standards in an effort to gain market share, then someone else will follow, and the cycle will begin again. They’ll do well on the float until the economy tanks and we’ll be right back where we were in 2001.

    Even a cursory review of the history of this issue will prove you wrong.

    Your understanding of the risk of financial ruin is simply overblown. How many doctors have literally been financially ruined by a lawsuit? Did they have insurance when they did and if not why not?

    What’s more, how do you figure it’s better than patients? Even the most Pollyanna of you guys can’t begin to argue that they are saving money as a result of this. And before you trot out the “access problems” cry, I hope you read the GAO study (unaffiliated with either side) that found every one of those claims false or in areas which have ALWAYS had access problems. In states with and without caps.

    It’s funny that you think it’s only about the lawyers. Do you think med mal insurers willing pay legitimate claims for millions of dollars in future care? Do you think the injured party just calls up the home office and a few days later a check arrives? Your naivete is sweet.

    Seriously, do some research before you try and lecture me.


  • Matthew

    I’ll avoid dueling studies and go back to something simple to illustrate the absurdity of your arguments. Let’s take it in terms of the three little pigs.

    We have pigs being chased away from their homes by a predatory wolf. We ask the pigs themselves why they’re running, since they obviously would have firsthand knowledge of the problem. They might say something like:

    “Well Bob, there’s a wolf chasing us. We’re unsafe here and we’re going to go somewhere that we’re safer and more welcome. As long as he’s after us and no one’s willing to help, we can’t stay here”.

    And CJD comes back with something like this:

    “Clearly, the pigs have no idea what they’re talking about. Can they prove that they wouldn’t have moved otherwise? The studies I’ve seen have shown that overall, not that many pigs are killed. After all, the wolf is only trying to feed himself and his family. The pigs had it coming anyway, what with being so tasty and all. Can they prove statistically that they’re leaving because of that?”

    Just step back and listen to yourself. Please. The ones doing the running are doing so for specific reasons, and they’re stating those reasons clearly. They know what they’re talking about. Even if you had stats that showed what you’re convinced of, the perception that the doctors have is what counts.

    Think it through.

  • Anonymous

    Matthew, you make it too easy.

    The problem with your juvenile analogy is simple. The pigs don’t have firsthand knowledge of anything other than high insurance premiums. They don’t know what causes them, because they know literally nothing about how their insurers do financially. They don’t know how much they take in in premiums, what their overhead is, what investment decisions they make, what their historical profitability is, nothing. Zip.

    What’s more, these pigs have no knowledge of history, or they are willfully ignorant. They don’t see that this is the third time in 30 years this has happened, in both states with and without tort reform, and that even the insurers themselves state that it’s a self inflicted problem.

    What we have, though, are some very silly pigs who, rather than use their diagnostic skills to assess the problem, hop on a bandwagon because actually learning the finances of their insurer is far too difficult a task for them.

    And really, where do they run? Where is this magical state all the pigs are going to?

    The pigs state over and over they are running. But where are they going? And what are they getting when they get there? How much do they save? Why do they save more?

    Seriously Matthew, think about this just a little, and you’ll see how ridiculous you sound with your sky is falling cries, none of which are borne out by the facts. In keeping with your theme, you’re a regular Chicken Little!

  • Matthew

    Where to begin…

    The (obviously arrogant) assertion that medical professionals have no understanding of the composition of their insurance premiums but trial lawyers do is silly enough that I can just leave you to stew on it.

    And we also have the false dichotomy that both sides use but is more frequently used by the plaintiffs bar, that being that either lawsuit abuse OR other factors like poor investments are to blame. Clearly, both are factors. But the fact that both are factors doesn’t mean that ignoring lawsuit abuse is all right.

    It still amazes me that people can honestly believe that unpredictable and uncapped jury awards has minimal or no impact on insurance premiums, doctors’ decisions or the overall cost of medicine and defending cases. It simply makes no sense.

    I tried to simplify for your sake, since you seem to get caught up in fallacies like the false dichotomy you were just involved in. I’ll refrain from doing so in the future. It didn’t help.

  • Anonymous

    “The (obviously arrogant) assertion that medical professionals have no understanding of the composition of their insurance premiums but trial lawyers do is silly enough that I can just leave you to stew on it.”

    Prove me wrong. Who is your insurer? What do they pay their CEO? What percentage of their revenue is dedicated to overhead? What are their loss reserves? What’s their profit/loss over the last decade? It’s not arrogant at all. I’ve asked those questions multiple times and not one physician has ever given me an answer.

    “But the fact that both are factors doesn’t mean that ignoring lawsuit abuse is all right.”

    What percentage of lawsuits are “abusive”? Obviously, no system is perfect, because we’re all humans, but don’t you think you ought to have an idea on how many claims are truly frivolous before you make the abusive claim?

    “It still amazes me that people can honestly believe that unpredictable and uncapped jury awards has minimal or no impact on insurance premiums”

    Why do you say jury awards are unpredictable? The fact that you do indicates that you really don’t understand insurance. Most studies of jury awards find that similar injuries receive similar awards nationwide. Admittedly, though, there is a dearth of comprehensive studies, which renders your claim uninformed. The group with the most information regarding lawsuits – the insurers themselves, don’t release their raw numbers. Do you wonder why that is?

    What’s more, why do you believe that a legitimately injured person shouldn’t recover to the fullest extent just so an insurer can be profitable? Is there some constitutional right to insurer profitability I’m unaware of?

    You did try and simplify, which I understand because you don’t really understand the complexities. But you left someone out of your simplification – someone you don’t like to talk about. The victim of malpractice. If we have less wolves, are the pigs going to start paying them more? Sooner? If you make it harder for them to get lawyers, how does that benefit them? Or does it just matter that you get to make a few more dollars (if the insurers agree to give the money to you that is).

    Facts, man. Facts. Try using them.


  • Anonymous

    I’m still looking forward to you giving me the name of a physician who was driven to financial ruin by a lawsuit.


  • Matthew

    You try to refute the assertion that uncapped jury awards are unpredictable, and again, you look at the wrong side of the problem. The median award isn’t the problem, and neither is the average. It’s the outlier that affects everything, and that’s what needs to be capped. If doctors win 10 similar cases, lose 3 others for, say $1MM each, and have one where a jury awards $40MM in damages, the median looks great, but that one award affects the defendant and his insurance company in that case, but makes every subsequent case more expensive and risky.

    But, of course, you know this and choose to ignore it.

    I’m going to bow out, we’ve both got our minds made up, and could cite figures to each other all day. I’ve avoided it because it’s pointless, and I’m going to ignore the fact that you take that as a sign of “ha! he doesn’t know, so i’m right!”. There’s just no point. The figures are there to be found, and I’m sure you’ve seen them too. But you don’t want to. That’s what it comes down to.

    Best of luck, chief, I hope your understanding of the damage these lawsuits cause expands as you look further into the problem.



  • Matthew

    OK, I can’t resist.

    Here’s one.

    Yes, he still has a house. No, he can no longer practice medicine because of insurance costs. But it’s clearly not the fault of lawyers, right?

  • Anonymous

    “It’s the outlier that affects everything, and that’s what needs to be capped.”

    Why? What effect does that award have on insurance rates exactly? And if that person has been legitimately injured, why is their right to be compensated trumped by an alleged insurers right to always be profitable regardless of what decisions they make?

    I would bow out too, if I were you. Come back when you’ve taken the time to understand what you’re talking about. Or even know the most basic information about your insurer. I will recommend you, as I have others, start with Warren Buffett’s February ’05 letter to Berkshire Hathaway shareholders. It’s a good primer on how insurance works.

    PS: Your link is no good.


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