My USA Today column on why medical malpractice reform is needed

in Physician | 20 responses

My latest USA Today column was published this morning: Any malpractice reforms should put patients first.

My USA Today column on why medical malpractice reform is needed I discuss how the our medical malpractice system poorly compensates injured patients and is ineffective at improving medical practice. These are the most important reasons why malpractice reform is needed. And capping awards is not the answer:

Researchers found that the impact of frivolous lawsuits was limited. More concerning was that in one in six cases, patients injured from errors received no payment. Patients who did receive compensation waited an average of five years before their case was decided, with one-third of claims requiring six years or more to resolve. To make matters worse, 54 cents of every dollar that injured patients received were then used to pay legal and administrative fees. These costs do not justify this level of inefficiency.
Furthermore, medical malpractice cases do little to promote patient safety. Although medical errors account for close to 100,000 patient deaths annually, according to the Institute of Medicine, the majority are caused by failed systems or procedures — not physician negligence. Doctors and hospitals ideally should learn from mistakes in order to improve patient care, but that’s difficult to do when liability cases are resolved in an adversarial manner.

Enjoy the piece.

Comments

http://www.cenegenics-drdaniel.com TrenchDoc
Kevin
Great article!
It is hard to argue with the need to fairly and promptly compensate injuried parties. However, the trial lawyers are not about to let this idea take root.
Don Riopel, MC
C’mon Dr. Pho: Of course its not the amount of money given out in malpractice suits that drives up healthcare dollars spent. You are right about that. It is however the mindset of the average physician making day to day, pt. to pt. decisions about ordering unnecessary tests to cover their fear of malpractice that drives up healthcare. Think about it. Every ER doc in the country ordering all those CAT scans for minor injuries. I am a pediatric cardiologist. In 38 years of practice I’ve only been sued once. But believe me that was the most anxious time of my life. i can diagnose an innocent murmur with stethoscope alone. Gradually over the years, I’m ordering more and more echocardiograms with these murmurs at $1000 a pop for fear of going through another suit. Capping malpractice suits would at least lessen the fear that me and my family would be dessimated from some frivolous suit. None of the legislators ever talk about the effect of lawsuits on the minds of physicians and how it affects their decision-making. Defensive medicine IS out there big time.
John Revelis MD
Did you really write that the poor attorneys in Texas won’t take cases because the $250,000 cap is too unprofitable to pursue? Are you kidding me? I suppose I should stop seeing medicare and medicaid patients because it is too unprofitable to my practice. Their oath to their field is to protect the injured not just those they get a bigger pay day on. Caps lower the potential for excessive payouts, so the attorneys will take the real cases that are slam dunks, and not the frivolous ones or ones they gamble on hoping for the big pay out. I also prefer to be judged by my peers who face the same day to day struggles, and not some judge removed from what really happens in the world. Sounds like you might want to get that Canadian visa in order, maybe you will be happier there, I prefer to TRY to keep our country free!
http://fertilityfile.com IVF-MD
There is another unspoken benefit of eliminating frivolous cases. It will be nice to free up the court dockets for the valid cases so that more court system manpower and resources can be allocated to expediting the VALID cases? This will allow more truly injured patients to be compensated more expeditiously. So how do we put rules in place to facilitate this? How about instituting a LOSER PAYS policy as they have in Europe?
Imagine this. LOSER PAYS will all but eliminate frivolous cases because it will make the dishonest lawyers think twice before filing. The honest ones will screen for the valid cases and only bring those to court. This not only helps lower healthcare costs by reducing defensive medicine, but it will also be helpful to the patients with legitimate malpractice claims, because their cases will rise to the top and not need to compete in the cluttered court schedule with all the bogus cases.
The last I heard was that based on the final verdict or whether plaintiff or defendent was found to be in the right, one out of seven medical malpractice cases was found to be valid while the other 6 out of 7 were found in favor of the defendent. Isn’t it a horribly inefficient system where 6 bogus cases go to trial for every valid one?!? If this statistic of 1 in 7 is inaccurate, I would welcome clarification and a reference. I’m sure someone out there knows.
Matt
“Capping malpractice suits would at least lessen the fear that me and my family would be dessimated from some frivolous suit. ”
How much less scared are you knowing that the victim may have millions in economic damages but only $250,000 in noneconomics? The only way you’ll ever know whether they have economics or not is when you’re dealing with a child.
Matt
“Their oath to their field is to protect the injured not just those they get a bigger pay day on.”
Attorneys take no such oath. Your information is incorrect.
“Did you really write that the poor attorneys in Texas won’t take cases because the $250,000 cap is too unprofitable to pursue?”
Of course they won’t. In fact, why would you if you’re a victim without economic damages, like a stay at home mom, a child, or a retired person? You’ll get your medical bills paid, but that’s just putting more money back into the system and you’re probably disability eligible or Medicare eligible anyway. So you’re going to go through the trauma of a trial on top of your injury, be poked and prodded by defense attorneys saying you’re not that hurt and it wasn’t their fault anyway, all for whatever is left out of $250,000 after you’ve paid your lawyer’s expenses and the lawyer? Why go through the headache when you can just shift the cost to the taxpayer anyway?
“I also prefer to be judged by my peers who face the same day to day struggles”
That’s fine, as long as you grant that right to every other industry. For example, when physicians sue health insurers for improper reimbursement, the health insurers ought to get a jury of their peers, other health insurance executives. If it’s good for the goose and all.
Matt
“LOSER PAYS will all but eliminate frivolous cases because it will make the dishonest lawyers think twice before filing. ”
We have loser pays in almost every state. Try again.
And simply because someone loses a case does not mean the case was frivolous. It may simply mean that the jury thought the other person’s explanation or recollection of the events was more plausible. Doesn’t make the loser a liar or a cheat.
“but it will also be helpful to the patients with legitimate malpractice claims, because their cases will rise to the top and not need to compete in the cluttered court schedule with all the bogus cases.”
Malpractice cases are a tiny fraction of the civil cases on dockets. In fact, the only real litigation explosion in the last few decades has been businesses suing businesses. Wonder why no one has proposed any caps on damages for those?
You should do some research on the legal systems you’re so enamored of in Europe. Loser pays is not universal like you think, nor does it appear to have the effect you think. But if we’re going to embrace European methods, why stop at the legal system – let’s go whole hog and apply it to everything, including doctor pay. Fair enough?
Matt
Kevin, do you have a source for this claim:
“Liability cases in Great Britain, Germany and most of Canada use judges who can decide cases more quickly and in a manner more reliable and consistent than a jury. These “health courts” would speed up payment of compensation for injured patients.”
Where is the evidence that cases are decided more quickly, or any more reliably or consistently than US juries? Is there a head to head study you can share?
Also, where is the evidence that a health court in the US would speed things up or save money?
Frankly, quoting the tobacco industry’s lead lobbyist and a partner at their lead lobbying firm, a firm that set up many of the bogus studies that the industry disseminated on the health of cigarettes not to mention funnels the money from them and the insurance industry to the “grassroots” tort reform organizations, damages your credibility with regard to healthcare matters. You can easily verify the above on any of the online repositories of tobacco documents. Search for “Covington & Burling”.
Matt
If you can’t find the docs you’re looking for to indicate Mr. Howard’s firm’s close relationship to the tobacco industry and the tort reform movement, you can start here:
http://legacy.library.ucsf.edu/tid/lao00e00
http://www.sourcewatch.org/index.php?title=Covington_and_Burling
http://legacy.library.ucsf.edu/tid/slj30d00
Again, for a physician, it seems odd to rely on the lobbyists for the tobacco industry for healthcare information. But to each his own.
Doc99
Matt … glad you posted this. I spoke with Phil Howard this weekend and raised the issues with him Number one, Howard does mergers and acquisitions for Covington. Second and more importantly, Howard joined the firm after that litigation so he has nothing to do with defending or representing Big Tobacco. You may as well then disqualify Eric Holder as Attorney General as he too was with Covington and Burley.
http://www.personalinjurylawwashington.com Seattle injury attorney
Accidents leave us overwhelmed by mounting medical bills and long-term expenses. How do you secure long term financial security in the face of accumulating debt?
Matt
“Howard joined the firm after that litigation so he has nothing to do with defending or representing Big Tobacco. You may as well then disqualify Eric Holder as Attorney General as he too was with Covington and Burley.”
Disqualify him as to what? Covington & Burling still represents these entities and has for over a decade. They’re a major Washington lobbying firm – do you think they let their partners act in ways that are antithetical to their clients’ interests? Particularly in such a public forum? Look at their client list on their website.
Look at his representative clients on his own biography page, and his description of what he does. Do you think a partner in a major law firm gets to spend as much time as he does lobbying if his clients don’t benefit? The average profits per partner there is around $600K. And that’s an average. If you’re not billing, you better be doing something for the client to justify that kind of cost.
Here’s an interesting question – who funds Common Good? For that matter, who funds the groups on the other side. If you look behind these think tanks at who’s doing the paying you’ll know before you even start what their position is.
Look, you may read his work and find it fully supported in every way. But I would expect you to apply the same level of skepticism you would if the head of ATLA were making a speech on the issue. If after doing so you find that the facts are solid and back his conclusions, great.
And really, if you’re in a bind because of someone else’s negligence, do you think Covington & Burling and Mr. Howard are going to represent you? Who do you think they’re looking out for if you’re injured? You, the individual? Or their impressive client roster, including the pharmaceutical, insurance, and tobacco industry? They want to eliminate the contingency fee – can you afford Mr. Howard’s hourly rate against, say, the insurance company of a truck driver who hit you and rendered you unable to work? I hope so if you’re backing their interests so strongly. Their goal is not to make sure the courthouse doors are open to just anyone.
IVF-MD
MATT: We have loser pays in almost every state. Try again.
Are you serious? What’s your reference?
Matt
My reference is the Rules of Civil Procedure in almost every state. Check out the term “offer of judgment”.
The fact is loser pays doesn’t exist like most people think it does, where no matter what if you lose you pay. And frankly, we probably wouldn’t want it to in this country.
Doc99
Matt … So Eric Holder therefore also is tainted by Big Tobacco? Howard is in M&A. Your bias is showing. Why not show us the fallacy in Howard’s line of argument, rather than setting up the Strawman of Big Tobacco? We await your reply with breathless anticipation.
John Revelis MD
Matt, I know lawyers don’t take actual oaths like real professions that truly serve people’s best interests. However, most take a personal oath of conduct for doing what is right. Maybe lawyers should have to take an oath, that would sure increase the numbers at the church confessionals. Why should a stay at home mom or retired person be granted a lottery judgement of millions when they never would have earned that income in several lifetimes. Judgements for negligence are deserved, but they should be to provide for future lost earning at the same earning rate. Not millions just because we feel bad for you and oh by the way the lawyer gets 40%! Malpractice is still a lawsuit against an individual not an industry. They are entitled to a jury trial by the constitution. Suing an insurance company (not an individual) is not comparable.
Matt
99, I never said he was “tainted”. Mr. Holder doesn’t work there. I said that a major international law and lobbying firm is not going to let one of its most visible partners do something antithetical to its clients’ interest, especially publicly. And especially in such a public forum against an interest promoted by its biggest, long term clients – the tobacco industry. That seems pretty obvious to me, but that’s just me.
As for Mr. Howard just being an M&A lawyer, his bio on the site says he also does litigation. Not sure how it reflects a bias to acknowledge what his own bio says.
Big Tobacco is not a strawman in tort reform. Big Tobacco is what started the “grassroots” tort reform movement. Look at the links I put above and the many others. The money was funnelled to these state “tort reform organizations” through C&B. Again, these are not my fantasies – you can read the original documents, where they cite the millions moved through there.
As to showing the fallacy in his arguments, Mr. Howard has made a number of arguments in a number of different arenas pushing the interests of his clients. So I don’t know which argument you would like me to reply to. But I will be glad to if you want to pick one.
If you’re talking about his statement in Kevin’s article: ” by using health courts, “information about each (malpractice) incident … would be compiled and disseminated so that doctors and hospitals could learn from their errors.”" I agree doing that is a worthy goal. But why do we need damage caps to do that (which is what health courts contain and the real reason they’re pushed)? The insurers track that information now – why isn’t it redacted of personal information and disseminated today? No need to curtail individual rights to do that.
Again, you may believe him wholeheartedly. I would just suggest that in all matters of politics, you follow the money, as I know you do when the other side makes a statement. Try not to fall into the trap of myside bias and really study the information underlying someone’s conclusions before you adopt them as your own, and consider any bias they may have. For example, if the AAJ (ATLA) were to put out a study showing med mal carriers made lots of money in year X, I would expect you to say “Sure, but where are the states for the years preceding and following that one? Give us the complete picture.” That’s only smart before relying on one isolated stat to reach a conclusion.
As to my bias, you’re correct, I do have one. I favor the rights of an individual over the government. It’s the libertarian in me. It’s why I wish your industry was more free and why I do not want the government doing what juries can do just to favor corporate America. So yes, my positions start with that bias at all times. The less government the better. The incestuousness between the government and corporate America, and its resulting effects on us individuals makes me ill.
Matt
“Matt, I know lawyers don’t take actual oaths like real professions that truly serve people’s best interests”
Actually, we do take an oath. But you are apparently the expert on “professions”, so you probably knew that. Although your days as a “profession” are numbered as you become federal employees and merely another cog in the wheel.
” Why should a stay at home mom or retired person be granted a lottery judgement of millions when they never would have earned that income in several lifetimes.”
Clearly you’re the expert, but you do know that most of the time someone with a million dollar judgment has a judgment that large because they will have significant ongoing medical care (money paid back to the medicine industry). Now, I’ve handled a few million dollar cases in my time, and each of them involved the death of a spouse or a catastrophic ongoing injury. Maybe you play a different lottery in your state than mine, but in mine winning the regular lottery doesn’t cost much more than a few dollars. It certainly doesn’t involve such a devastating injury. Do you know any medical malpractice “lottery” winners you would trade places with? I thought not.
“Judgements for negligence are deserved, but they should be to provide for future lost earning at the same earning rate. ”
Are you an economist as well? I typically use the same economists the defense bar uses in those kind of cases. Not long ago I represented a woman whose husband was killed. He was 45 and made approximately $25,000 a year. My economist, who the defense didn’t even depose because they trusted his figures, estimated the economic loss at over $600,000 given his expected life span, earnings power, etc. So it’s really not that hard to get to a high number. If you’re a middle aged physician, you’re probably looking at the high 7 figures were you to be run over in a crosswalk and killed today. But you know what, your family who received that money certainly wouldn’t feel like they were “lottery” winners.
“Not millions just because we feel bad for you and oh by the way the lawyer gets 40%! Malpractice is still a lawsuit against an individual not an industry. They are entitled to a jury trial by the constitution. Suing an insurance company (not an individual) is not comparable.”
How much do you believe the lawyer should get, based on your experience trying medical malpractice cases? If you want to cap what people can pay their lawyers, that’s OK I guess. Doctors let the feds set their pay, so I can see where that worldview is OK with them. However, be sure you cap the defense lawyers’ pay too. For some reason, most “reform” only wants to hamstring one side.
As for juries giving millions because they feel bad, again that’s a belief by physicians that really doesn’t have any merit. I realize you cling to it regardless of all facts to the contrary, but every defense lawyer I know requests a jury trial and doesn’t want a bench trial in a negligence case.
Not sure about your last comment. You’re right, that you do sue an individual in that situation. However, it’s typically an individual who has contracted with an insurer to provide a defense for them, and to pay any judgment. So the individual has given away a lot of their interest in the case to the insurer. Which makes the insurer a pretty big factor, wouldn’t you agree?
Doc99
Matt
Aprreciate your response. Why not begin with your issues with Health Courts rather than today’s system? From service to verdict or settlement, in NY the average suit takes about five yrs to conclude (not counting appeal.) Would not Health Courts arrive at a conclusion expeditiously, impartially, and more evidence-based than the current Hired Gun method?
Matt
99, putting aside the Constitutional law issues, my first issue with health courts are that they are simply backdoor caps. You will not see a health court proposal that doesn’t contain them. I cannot support politicians deciding the value of a dispute without seeing the evidence. It’s the libertarian in me.
Second, you say that they would be impartial, but would they? Imagine your house burns down and your homeowner’s insurance company refused to pay. To get to trial in NY it takes 5 years. If your insurer proposed an “insurance court” where the jury consisted of insurance company executives but you got to court in 2 years, would you think of that as a good idea? Would you feel they would be impartial? More impartial than a jury of people with no skin in the game? I wouldn’t. That’s how I feel about anyone judging their own.
As to expeditiously, who knows? You’re going to find this jury of physicians, presumably in the specialty involved, to sit for weeks and hear the evidence? Because they’ll still have to hear testimony, both sides will still want an opportunity to cross examine, and the plaintiff will still need their own expert since the lay victim likely doesn’t have the knowledge and may not have the capacity to testify. I don’t see how that happens any quicker. Nor do I see how it’s any cheaper for the public. As to taking 5 years now in that state, that’s going to depend on the judge and his willingness to move his docket. Not to mention, the only way insurers are going to back moving cases faster is with caps. It does them no good for people to get paid on claims faster or make it easier for people to file.

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