Comments on: Medical malpractice reform by President Obama and the White House

By: William Nuesslein

William Nuesslein — Sat, 26 Sep 2009 13:33:14 +0000

The premise for Obama style tort reform is that law suits can be avoided if doctors were more careful at their craft. Holding doctors accountable is dear to the advisers to the Presidents.If holding accountable were efficacious, then why does New York State have no-fault auto insurance? No matter the care taken, medical procedures will always have some residual rate of adverse outcomes.

The second problem with “holding accountable” is that litigation poorly sifts valid clams from invalid clams. Junk science was so rampant that the Supreme Court issued Daubert.

Another problem with our system extant is that the wrong people buy malpractice insurance. In buying most insurance, life, auto, homeowner… the consumer can trade coverage for premiums. Now a gifted lawyer sets coverage at high levels after an insured event. That is why caps make some sense. I would rather have patients buy adverse outcome insurance and have settlements through administrative proceedings.

By: Matt

Matt — Tue, 22 Sep 2009 16:41:20 +0000

Actually most studies show tort filings are down. The majority of lawsuits are businesses filing suit. Strangely, no one wants to limit corporate America’s ability to file suit, just us little people.

Incidentally, those release forms don’t do anything legally.

By: Rezmed09

Rezmed09 — Tue, 22 Sep 2009 16:01:57 +0000

“But whatever steps we pursue, medical liability reform must be just one part of broader health insurance reform”

Why? Liability reform is needed throughout our society. It really should be a separate bill. Tort is becoming such a large part of our society we tend not to see it anymore. All the release forms we have to sign – when renting skates or parking in parking lot, etc. We are a people who lare led around in circles by attorneys and corporations pushing our fear buttons with advertisements and legalese.

By: Matt

Matt — Mon, 21 Sep 2009 16:32:35 +0000

Susan, we already do have that in the discovery phase – depositions.

What I was referring to was getting physicians willing to give those statements prior to filing suit, since they claim to hate it that they’re named in a lawsuit.

By: Susan H

Susan H — Mon, 21 Sep 2009 15:50:54 +0000

It is a wonderful idea to have statements under oath, with specific, pre-agreed consequences for any party committing perjury.
Parties subject to this requirement must include not only accused medical personnel but plaintiffs, plaintiff attorneys, and plaintiff expert witnesses.
Consequences for deceit must be as severe on plaintiffs and their business partners on the predatory litigation as on medical providers (defendants).

By: Matt

Matt — Mon, 21 Sep 2009 15:37:58 +0000

Since no one knows how many malpractice cases are actually filed, how can you say the number is “excessive”? It may well be that there aren’t enough claims made given the number of negligent acts resulting in damage. We simply don’t know.

If physicians don’t want to get caught up in a case where they are ultimately dropped, they should support proposals extending the statute of limitations and be willing to give statements under oath prior to suit being filed. Often it’s hard to tell who is responsible prior to the discovery phase, yet if you leave one out and the statute of limitations runs, you’re out of luck if they’re responsible.

By: Michael Kirsch, M.D.

Michael Kirsch, M.D. — Mon, 21 Sep 2009 14:52:37 +0000

Patient safety is a laudable goal, of course, but it will not significantly impact on excessive litigation against physicians. In my view, we need a filter up front that will screen out cases without merit or defendants that are innocent, rather then have them wait months or years until they are released. Unlike caps, this would target the primary defect that exists now of using a legal net that ensnares too many innocents. Lawyers shouldn’t object since these innocent parties are ultimately dropped from the case anyway.

By: MillCreek

MillCreek — Mon, 21 Sep 2009 14:37:42 +0000

As a healthcare risk manager, I will be interested to see the specific details of any projects devoted to patient safety. As I like to say, if we do a better job of patient care, the claims tend to take care of themselves.

I hope also that many of the demonstration projects are set in the ambulatory setting, where most of the care occurs these days. Historically, most patient safety efforts occur in the hospital.

By: Matt

Matt — Mon, 21 Sep 2009 13:54:31 +0000

That’s because for the primary backers of tort reform, insurers, caps are all that matter. They’re not really interested in paying more victims faster. Physicians have just been scared into being the face for the industry. Why do you think issues that really affect physician pay get so little play compared to tort reform? Because there’s no real big money behind it.

By: Susan H

Susan H — Mon, 21 Sep 2009 12:32:34 +0000

Aren’t there some precise suggested solutions that might be advanced?

Single-payer (government funded), reasonably priced med-malpractice insurance coverage?

Removal of damage award restrictions on abuse of process, or malicious prosecution lawsuits, against predatory frivolous litigants and their business partner/legal representatives?(That is, allow victimized medical professionals to recover their defense costs, lost wages, and be compensated for their emotional anguish).

There are many clever, specific ways tort reform could get started.
It might be more difficult for those in power to deflect questions about why they oppose particular common-sense solutions; the current speechifying mantra holds that tort reform is only about damage award caps.