Corp Reform - Not Tort Reform

10 Ways to Fix Health Care: Opinions from 10 Experts

Amy from the Online Nursing Degree Directory emailed me to let me know about a new post on the ONDD blog about how to fix health care.  All ten opinions are interesting, but here's the one I like the most.

6. Cut costs for med students
Like CDC head Julie Gerberding, Robert B. Goldberg, who heads the Medical Society of the State of New York, also points to medical school as the place to start change. But his argument focuses on the costs to students, not the separation of education. Large amounts of debt, he says, forces many medical students to specialize in one area instead of becoming the more needed primary care physicians.

If payment structures were changed, Goldberg says, the best and the brightest medical students might be able to afford to select primary care as their field. Giving future doctors more accessibility to electing primary care as their specialty would reduce scheduling delays, improve quality of care and allow for more efficient medical practices, Goldberg says.

Online Nursing Degree Directory » Blog Archive » 10 Ways to Fix Health Care: Opinions from 10 Experts

Personally, I think we need to have complete student loan forgiveness for most doctors.  I would imagine that physician availability would increase if it didn't cost $200k+ to get an M.D.

P.S. - None of these experts say the solution is tort reform.

Technorati Tags: ONDD, Health Care, medical school, medical malpractice

Yet another thought on defensive medicine

I saw an article today about a purported malpractice crisis in Massachusetts, and wanted to comment on this quote:

Even more expensive is the cost of “defensive medicine.” Faced with the possibility of huge malpractice judgments, physicians may feel it necessary to order tests, treatments and procedures that are of negligible medical use — knowing that, if they are not ordered, the omission is apt to figure in some future lawsuit.

Worcester Telegram & Gazette News

The omission of a test is only apt to figure into a malpractice lawsuit if there might have been a positive outcome for the patient had the test been run.  To take an extreme example: no matter what symptoms I displayed, no doctor would ever order a pregnancy test.  Doctors only order tests that the results of which might be necessary to treat the patient.  And who do these tests hurt?  Not the doctor, because they get paid for them.  Not the patient, as these "unnecessary" tests sometimes result in a life being saved. 

I've said it before, and I'll say it again: I *want* my physician to be defensive.  If there's something wrong with me, I want him to leave no stone unturned in finding and curing my illness.  I sure as hell don't want a doctor to decide that there's only a small chance I have cancer and end up having to lose a testicle because the doctor guessed wrong.  Do you?

Technorati Tags: medical malpractice, tort reform, defensive medicine

Nope, no malpractice crisis here. Unless you count this sort of thing:

Third time's a charm?

PROVIDENCE, R.I. - Rhode Island Hospital has been fined $50,000 and reprimanded by the state Department of Health after its third instance this year of a doctor performing brain surgery in the wrong side of a patient's head.

Hospital makes 3rd brain surgery mistake - Yahoo! News

Too bad doctors and insurers are more concerned with preventing malpractice lawsuits than malpractice...

Technorati Tags: medical malpractice, tort reform, brain surgery, you have got to be kidding

Why should we protect doctors like this?

Through carelessness or the desire to save a few bucks, a doctor in New York has infected at least two people with Hepatitis-C, and put 628 more at risk:

In 2005, investigators found that, in violation of widely accepted practices recommended by the C.D.C., Dr. Finkelstein, 52, who specializes in pain management, was reusing syringes when drawing doses of medicine from vials that hold more than one dose.

He would use a new syringe for each patient. But when giving one patient more than one type of drug by injection, his practice of using the same syringe to draw medicine from more than one vial led to the potential contamination of the vials. The blood of a patient who was infected with hepatitis C could, by backing up through the syringe and entering the vials, infect another patient when the same vial of medicine was used again. This is what happened in at least one case, health officials said.

State health officials said yesterday they hoped to get the C.D.C.’s support in seeking the elimination of such multidose vials.

Any fix would come too late for Raymond Bookstaver, 49, a Hicksville mechanic who was one of two patients initially identified as having been infected by Dr. Finkelstein’s improper use of syringes.

“I feel like I went to a doctor for help, and what I got instead was a death sentence,” Mr. Bookstaver said. His hepatitis is being treated, but erupts unpredictably, causing him to suffer flulike symptoms including nausea, vomiting and aching that leaves him bedridden, he said.

Patients Were Not Told of Misuse of Syringes - New York Times

I deeply feel for doctors who try their best and still have an adverse outcome - especially if the outcome wasn't certain to begin with.  But doctors like this deserve absolutely no protection from malpractice lawsuits.  Of course, one might argue that the court system isn't the best choice to discipline incompetent doctors.  Some argue that should be left to regulatory agencies.  However:

"For reasons that were unclear yesterday, his case was not referred to the State Board for Professional Medical Conduct of the State Education Department until nine months after his unsafe practices were known."

Nine months went by?  This is inexcusable.  I don't want to hear the standard complaints about a heavy workload, or inadequate funding, or any other excuses regulatory agencies often make.  (Hypocrisy alert: Ever notice how "reformers" tend to believe that private enterprise can do just about anything better than the government, but those same reformers don't want private enterprise to regulate businesses?)  Oh well.  At least they fixed the problem eventually, right?

"That agency, charged with taking disciplinary actions against doctors, found no evidence of wrongdoing, and recommended no disciplinary action.

In January 2005, the Health Department began an epidemiological investigation to determine how many of Dr. Finkelstein’s patients were infected by the vials of medicine that he had used more than once."

See why I don't trust governmental agencies to regulate doctors?  (Or other businesses, for that matter.)

But wait!  It gets even better:

"Michael Duffy, a lawyer who specializes in medical malpractice cases and vice president of the New York State Academy of Trial Lawyers, said that the long delay in notifying the 628 potential victims of Dr. Finkelstein’s practice was especially troubling because none would be able to seek damages in court."

Proof positive the system works: If you're an incompetent doctor, anyway.

Technorati Tags: Medical malpractice, Hepatitis, reusing needles, incompetence, tort reform, trial lawyers

Effects of Tort "Reform" in Texas are Mixed

The Dallas Morning News has a fairly balanced article about the effect of tort "reform" on doctors and patients.   An excerpt of the most powerful story is below:

Naydene Lambert's family was ready to sue the hospital when she died after a routine colonoscopy last June.

The Gordonville woman developed a blood clot in her lungs. She didn't get blood-thinning medicine, despite a history of the problem and obvious varicose veins signaling potential clotting problems, her daughters say.

"We're not sue-happy people at all, but they killed our mother," daughter Patsy Wertz said.

But because Ms. Lambert, 73, didn't earn any money, they couldn't ask for lost wages.

That left pain and suffering – a claim that requires lots of costly experts and, because of the $250,000 damage cap, holds zero hope of a substantial award.

After expenses and attorney fees, the family would probably end up with nothing from a lawsuit, even if they won, lawyers told the family.  (Emphasis added.)

Source: How tort reform has affected four people | Dallas Morning News | News for Dallas, Texas | Business

And that's the number-one reason tort "reform" is unfair - if you're a stay-at-home parent or a retiree, you or your family might not even be able to bring a truly legitimate lawsuit.  But, if you make six-figures (like most people in the "reform" movement do), your damages will be high enough to ensure your case will make financial sense.

The article also tells the story of two doctors who are in Texas at least in part because of the "reform" legislation passed in 2004.  While both doctors liked the damage caps, one chose to move to Brownwood because he wanted small-town life, and the other doctor chose Corpus Christi because his brother is a cardiologist there.  Another interesting tidbit from the article: Missouri has a $500k cap on noneconomic damages and Texas has a cap of $250k.  A urologist in Missouri will pay $60,000 per year in malpractice premiums, while a urologist in Texas will pay $2,000.  The damage caps in Missouri are twice as high, but the malpractice premiums are 30x higher...  So why not tie insurance premiums to damage caps?  You know, offer to institute $250k caps if malpractice insurers will cut their rates to $2,000 per year?  Somehow, I don't think they'd go for it.

Technorati tags: medical malpractice, Texas, tort reform, Brownwood, Corpus Christi, Dallas Morning News, damage caps

Are there really doctors this crooked? And do the pharmaceuticals really pay the bribes?

Another development in the Avandia story is the claim that Dr. John Buse was improperly pressured by GlaxoSmithKline to keep quiet about his concerns about the drug.  The entire article at the NY Times is worth a read, but the portion below really jumped out at me: 

"In a recent interview, Dr. Peters said that she had previously received money from Glaxo as a speaker on behalf of Avandia, but had resigned because she was worried about the drug’s risks.

About five years ago, she said, she helped change the formulary — or list of preferred drugs — for Los Angeles County so that patients in her clinic would get prescriptions for Actos rather than Avandia.

“The Avandia people, it was just so surprising, they asked me what I wanted to keep Avandia on the formulary,” Dr. Peters said, recounting events that occurred sometime in the 2000-to-2002 period. “They asked me, “What can we give you that will have you keep it on the formulary?’ ”

Dr. Peters said that she asked the company to establish a database at the clinic that would track the outcomes of patients on both drugs.

When she asked for the database, which would have cost several thousand dollars, she said, a company representative replied: “That’s all you want? Other doctors ask to go to the Caribbean.”

Dr. Peters said that Glaxo representatives first asked her to write a proposal, then asked her to go to Philadelphia to meet with company officials before the database could be approved. She decided to purchase it herself." (Emphasis added.)

Source: Doctor Says Drug Maker Tried to Quash His Criticism of Avandia - New York Times

If it's true that doctors ask for and receive "free" vacations to lie about the safety and efficacy of drugs, we need to put concerns about medical liability aside and focus on medical reliability.  If this practice is occuring, I hope it's investigated and those involved see actual jail time.  And when I say "those involved" I don't just mean the sales rep, but I mean the executives who approved the purchase orders.

Cross-posted to TortDeform 

Technorati tags: Avandia, GlaxoSmithKilne, Dr. John Buse, John Buse, bribery

Responding to Ted Frank's response to Professor Charles Silver

I do not presume to speak for Professor Silver, but I wanted to respond to the following  points raised by Ted Frank in response to Silver's article.

What we do know from Silver's dataset is that insurers do ignore insurance limits and settle for above policy limits a significant percentage of the time. Silver's hypothesis works only if one assumes the policy limits are firm; the alternative hypothesis works even if the policy limits are not firm—and Silver's dataset shows that, indeed, the policy limits are not absolute. Silver provides no explanation why insurers would settle some meritorious cases at policy limits and others above policy limits; it's not clear to me that any such explanation is possible. (Emphasis added.)

Source: PointofLaw.com | PointOfLaw Forum: Charles Silver on insurance limits

First, I don't mean to quibble, but Silver wrote, "Payments above the policy limits, which appear to the right of the spikes, were present in about 2% of the cases."  If Ted believes that 2% is a "significant percentage," that's his prerogative... but I bet that if a drug caused side effects for 2% of its users, Ted wouldn't consider that to be significant.

I've come up with a possible explanation as to why insurers would settle meritorious cases above policy limits.  Eric Turkewitz recently wrote about the high costs of bringing a medical malpractice case; buying medical records, retaining experts, taking depositions, etc.  Plaintiffs aren't the only parties that have to bear these costs.  If an insurance company believes the plaintiff has a a strong case and is likely to be awarded a sum that meets or exceeds the policy limit, the insurer will be willing to settle for an amount that is less than the policy limit plus the cost of defending the case. 

For example, if the doctor in question has a $250k policy and the insurer expects the litigation costs of going to trial will be $50k, the insurer will come out ahead if it settles the case for even $290k, which exceeds the policy limits.  The insurer will also have to take into consideration the potential cost of any appeal(s) when determining what amount to settle a case for.  Additionally, if a plaintiff is willing to accept a settlement that includes periodic payments, the insurer might be willing to settle for more than the policy limits in order to take advantage of the benefits of periodic payments.

Update: Ted is right, Professor Silver's dataset revealed that more than 2% of cases did settle for excess of policy limits.  We also shared a nice series of emails in which we discussed possible scenarios where it makes financial sense for insurers to settle cases above policy limits.  I'd share them with you, but Ted asked me not to repost his emails.  Suffice it to say, there actually are some situations where it is in the financial best interest of an insurer to settle a case above policy limits.

Cross-posted to TortDeform 

Technorati tags: Charles Silver, Ted Frank, Medical malpractice, insurance, tort reform, Tortdeform

What the deuce? Med Mal insurer lowers rates without tort reform?

More evidence that med mal insurance rates depend on a lot more than just the tort system.

Good news for all concerned.  SVMIC, the doctor-owned professional liability insurer, has announced a rate reduction.  You probably won't read about falling medical liability insurance rates in the newspaper, but you can tell your friends and neighbors that rates are dropping even though the Legislature has not placed caps on damages in medical malpractice cases.

Source: Day on Torts: SVMIC Lowers Rates

The post is also interested because it mentions actual rates charged to doctors by SVMIC. 

Technorati tags: Day on torts, medical malpractice, insurance, SVMIC, tort reform

822 Paid Claims in a Year = A Malpractice Crisis?

I was surprised to read the following statistics in an article in the Naples Daily News:

A state-by-state examination of medical malpractice claims paid in 2006 shows that Florida’s average payout was lower than the national average, resurrecting the debate about the merits and pitfalls of tort reform that is expected to change the malpractice climate in the state...

Florida’s average claim payout, whether by settlement or jury verdict, was $241,800 last year while the national average was $308,600, according to the Kaiser Family Foundation...  [So why does Florida need damage caps? - Justinian]

Insurance companies paid a total of $198.7 million arising from 822 paid claims in Florida last year, according to Kaiser. That’s 14.7 claims paid for every 1,000 physicians in the state...

The numbers for Florida come as no surprise to Orlando trial attorney Scott McMillen, who points to a $500,000 cap on noneconomic damages approved by the state Legislature in 2003 after pressure by then-Gov. Jeb Bush.

"The Legislature in Florida has been steadily chipping away the rights of Florida consumers," he said. "It is resulting in smaller settlements and more cases going to trial because the defendants have no fear. The insurance companies know the worst it will be is $500,000 — so why settle."...

Source: Fla. below national average in amount of paid medical malpractice claims

I don't see how 14 claims per 1,000 physicians, with an average payout of $241,800 can constitute a malpractice crisis.  Especially since Florida fares better in the study than many other states.  Seems to me that Florida malpractice insurers are gouging doctors and blaming lawyers.  Of course, that's old news.

Technorati tags: Florida, medical malpractice, malpractice epidemic, Naples Daily News, Insurance, insurance cartel, tort reform

Federal Preemption Cuts Both Ways - Georgia Citizens Protected By HIPPA

The "reform" movement is always pushing for a Federal tort "reform" package that will preempt state tort laws.  Such a preemption would mean that the "reform" lobby could impose their will upon the citizens of every state.

Preemption generally works against citizens in favor of corporations.  But here's an instance where preemption actually worked for citizens:

In the malpractice case, Justice George H. Carley wrote for a 6-1 majority of the justices that the underlying law, O.C.G.A. § 9-11-9.2, is preempted by the federal privacy provisions of the Health Insurance Portability and Accountability Act of 1996, or HIPAA.

“State law may provide for more stringent requirements on the disclosure of protected health information than HIPAA does, but cannot authorize disclosure based upon less stringent requirements than those mandated by the federal law,” Carley wrote...

Joe Watkins, president of the Georgia Trial Lawyers Association, which filed an amicus brief on behalf of Thomas’s client, wrote in an e-mail, “We applaud the Supreme Court for strictly interpreting the Georgia law and not trying to legislate from the bench a better law than the one the Legislature rushed into law two years ago.”

Donald J. Palmisano, general counsel of the Medical Association of Georgia, which filed an amicus brief supporting the medical providers in the case, said that the high court’s opinion goes against the state’s long-recognized provision that when a plaintiff puts his medical treatment at issue in a case, he’s also putting his medical history on trial.

Source: Supreme Court blocks part of ‘tort reform’ law - Daily Report

Presumably, there will be a flurry of press releases decrying this decision and warning that Georgia's supply of physicians is being threatened and that the sky has begun to fall in Georgia.

Cross-posted to TortDeform 

Technorati tags: Allen v. Wright, Georgia, tort reform, medical malpractice, HIPPA, George H. Carley, Donald J. Palmisano, Joe Watkins