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The Right Prescription
Free-Riding Lawyers on the Obamacare Bus
This month, President Obama ventured into the lion's den of healthcare reform. He tried to cajole a reluctant American Medical Association -- and the physicians they represent -- to accept his push for more government-provided medical service. What he did not do, though, was offer to remove the largest thorn in physicians' paw: run-amok malpractice lawsuits.
The President's stated goal is to get more Americans more healthcare at less cost -- which means getting multiple healthcare interest groups to pitch in and give up some of their traditional perks. Unfortunately, his pitch to the AMA offered only a pretense of concern for doctors' needs. Obama merely dangled a tort-reform carrot before the doctors -- and exempted the plaintiffs' bar from his general call for team play and mutual sacrifice.
He specifically rejected capping damage awards for non-economic issues (i.e., "pain and suffering"). Such caps are the only medical malpractice remedy that reduces liability insurance premiums and decreases the need for the wasteful and inefficient practice known "defensive medicine."
No one really knows how much time is wasted by doctors (and money by patients) on tests and procedures that do not actually help diagnose or treat any condition but do help protect doctors from the appearance of sub-standard care in malpractice lawsuits. This practice is sometimes called "treating the chart rather than the patient" -- making sure all hypothetical diagnostic bases are covered. Some reliably estimate the cost to our healthcare system at $100 billion, which does not take into consideration the (real) pain and suffering of patients needlessly subjected to tests and procedures to no good purpose nor that of doctors subjected to multi-million-dollar damage awards for such unquantifiable harms as "loss of consortium."
Over thirty states currently cap this type of award. Six-figure malpractice premiums in high-risk specialties drive obstetricians and orthopedists (among other specialists) out of states without caps, reducing patient access. The institution of caps reverses this flight by reducing frivolous lawsuits.
OUR MALPRACTICE TORT SYSTEM is seriously flawed, to say the least. Most patients injured by medical negligence never sue, while most lawsuits filed are dismissed or rejected by juries. Many of those are frivolous -- crapshoots by greedy attorneys trying to win the "lottery by jury." There must be a better way to make injured patients and their families whole, at least financially.
One way might be medical tribunals, in which a panel of objective experts would contemplate the evidence and issue a ruling on fault. To avoid concerns about the tribunals' constitutionality, these decisions can be non-binding -- but would be available to the jury if the parties felt the need to go that far. Another method would be a no-fault system, with damage awards determined by a board of laymen and experts, without assignment of blame or fault. That determination can be a separate matter, handled by medical boards.
One way or another, the new healthcare utopia should offer relief from tort lawyer extortion for doctors who adhere to approved practice guidelines and still find themselves under the litigation gun.
This administration is going to ask for cooperation and sacrifice from a wide spectrum of the healthcare industry and the public:
• Big pharma (in the form of drug discounts and possibly price controls, whether imported along with price-controlled foreign drugs or mandated via Medicare Part D "negotiations").
• Insurers (who will have to compete with some form of "public plan").
• Doctors (who will get reduced compensation from government-financed insurance plans).
• Patients (who will likely see the newly-empanelled "Federal Coordinating Council for Comparative Effectiveness Research" ration care to prevent "overly" expensive treatments and limit the use of innovative but expensive new drugs, as has happened in the UK).
Why are malpractice litigators exempt from pitching in? Given the recent re-estimate of the massive cost of the President's program, wouldn't a plan that included a simple, proven method to reduce costs by $100 billion be worth more than a perfunctory "We will explore a range of options" soundbite on tort reform, tossed out to the assembled AMA doctors?
A federally mandated cap on non-economic damages would be cost-saving and would demonstrate that we all will be asked to do our part to improve American healthcare, even lawyers.
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Melvin| 6.26.09 @ 7:25AM
Come on let us be honest here. Trial lawyers are carrion bottom feeders, do we actually think for one moment that they will volunteer to do their part to lower health care costs.
The only way that there will be Tort reform is when the Trial Lawyer's Association is dragged kicking and screaming and having this reform passed.
The chances of that happening is like stamping out corruption on Capitol Hill, it isn't going to happen period. Litigators hold too much power and sway in this Country for that to happen.
SC Mike| 6.26.09 @ 7:53AM
Melvin has it exactly right.
There’s one more test of the “fairness” of what the Congress is doing, and that is whether Congress exempts itself and federal employees, which is what the bill in the Senate does.
See this: http://online.wsj.com/article/SB124536864955329439.html
(The exemption for federal employees and the Congress starts on line 22 of page of 115) of the 615 page bill.)
Becky| 6.26.09 @ 8:21AM
Not hard to notice we are being "ruled" by lawyers, who's trade is words. Of course they'll protect their own livelihood. Didn't John Edwards make his millions off of the argument that babies born with cerebral palsay is the fault of doctors that don't do a C-section? And now where is that argument? Lawyers don't have to be right, they just have to win.
Doctors and nurses now have to be the priests and nuns of health care, taking their vows of poverty to minister to the fallen.
Pingback| 6.26.09 @ 9:14AM
COACHEP » Blog Archive » Posts about Obama Health Care Failure as of June 26, 2009 links to this page. Here’s an excerpt:
Peter E Balsam MD FACG| 6.26.09 @ 9:20AM
It should boggle my mind that the AMA even invited Obama to speak but then I left the AMA years ago believing that that they were more harmful to medicine than helpful. Like a disease, just how many clues do you need to understand who Obama is and what he is trying - successfully - to do?
Galen| 6.26.09 @ 9:38AM
You're being unkind. It's only 90% of the lawyers who give the others a bad name.
Michael Tomlinson| 6.26.09 @ 10:31AM
Without tort reform there will be no lowering of the costs of medical care in the US under any system.
Dick in Henry the Sixth expressed a sentiment many Americans find appealing, "The first thing we do, let's kill all the lawyers." While I'm not totally in agreement with Dick (I'd get the journalists first) unless Obama is willing to reign in the Democrat trial lawyers it won't matter if we get a single payer socialist health care system or not -- the Democrat trial lawyers will continue to bleed the patient dry and thus the American tax payers.
Tony in Central PA| 6.26.09 @ 10:50AM
Interestingly, health care providers at most federally funded Community Health Centers are exempted from the usually malpractice system and are covered under Federal Tort Claims. This legislation does not result in the huge payouts for trial attorneys. If it is the intention of our current government to take over health care and essentially make all health care providers federal employees, I'm sure some kind of clever legislation will have to be passed to avoid Federal Tort Claims protections for all health care providers. We all know lawyers come first because they comprise the bulk of our elected officials.
Walter Cox| 6.26.09 @ 1:03PM
I am a medical malpractice defense attorney and have been for over 30 years. Virtually every complaint I have read includes allegations that more testing, usually the very expensive kind, should have been done to make a diagnosis even though many tests were done which were negative. Doctors are afraid not to order tests even though they do not believe the tests are indicated. Any lawyer willing to buy a lottery ticket (pay a filing fee) can sue a doctor with virtual impunity. The vast majority of these cases are eventually dropped or dismissed, but only after taking hundreds of hours of the doctor's time and costing the health care profession thousands of dollars just to defend these frivolous cases. It is a mystery to me why good people even want to become doctors, but it is not surprising that doctors are leaving the practice of medicine over the sheer frustration with this system.
Oldefarte| 6.26.09 @ 1:23PM
Asking lawyers to contribute via tort reform will never happen, since 90% of the governmental legislators [Democrats] are lawyers, and 100% want to protect the entire legal/malpractice/suit system of JUSTICE that we now have!!!!!
2 Guns AZ| 6.26.09 @ 2:26PM
While were talking, how adding about loser pays?
That will get rid of the "let's give it a shot" lawsuits.
Marc Jeric| 6.26.09 @ 4:23PM
Here in America we have about 1,100,000 lawyers. Japan, Germany, and Great Britain together have some 35,000 lawyers. How come? In the rest of the civilized world when you sue somebody and lose, automatically you must pay all the costs of the defendant and the court, both direct and indirect; here you just walk away. Health care costs here approach $3 trillion/year; tort reform would immediately cut $1 trillion from that cost. We all have seen those hyena lawyers trolling on TV adds for imaginary victims of doctors and drug companies; according to trial lawyers, these are engaged in mass murder of their patients. "2 Guns AZ" is so right!
Small Town Surgeon| 6.26.09 @ 9:01PM
Besides capping no-economic damages, put a cap on the percentage of the awards as well. All over the economy the government is setting limits on salaries and bonuses of executives, why not on the attorneys? If 10% is good enough for talent agents, maybe 20% after expenses as a cap for attorneys. One other thing driving up awards and settlements is those %ages of the attorneys. In my state it is 40-50%.
So tell me, which group is really looking out for their patient/client's best interest, and which is looking at them as a way to make money?
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Polly| 6.27.09 @ 10:48PM
It's not so much that most legislators are lawyers. It's more that really really RICH trial lawyers contribute really really LARGE amounts of dollars to politicians.
Old Trent Lott couldn't consider tort reform, not with his brother-in-law being a really really REALLY rich trial lawyer. It's no wonder that even the Republicans never gave tort reform a run.
Between Big Trial Lawyers and Big Union, doctors and businesses don't stand a chance. I think our corrupt legislators view America as one big honeypot, and they're too busy dipping in to consider doing anything to help the country continue to flourish.
Osamas Pajamas| 6.27.09 @ 11:10PM
My favorite prez was Ronnie RayGun ---- and when Nancy laid her cheek and her hand upon his coffin in the funeral ceremony, my heart broke into a million pieces. These folks were easy to love.
Now look at this smooth-lying son of a bitch, Barack Hushpuppy OhBummer, "The Mistake of '08." I don't want my neighbor's money ---- but he is willing to hijack it and give it to me in exchange for my vote and campaign money support ---- a kickback, in other words.
I don't want him or Uncle Sham to control my healthcare in any sense of the word "control." I don't want him to "speak for me" when he speaks publicly here or overseas. I don't want to see his face all over the place, nor hear his voice lecturing me, "Reality According to The Prophet OhBummer."
I don't want anything from him. The only good thing about him is his color ---- it's about time ---- given some very bad history. More important are his ideas, however ---- and they suck.
Bob M| 6.28.09 @ 8:50PM
I am alwasy amazed that suing attorneys , who lose at least 50% of the cases, NEVER get sued for screwing up!! Seems to me that if a scar is the docs fault, then a loss in court should be a tort as well. NO??A sympathetic MD
john Morton| 6.29.09 @ 6:34AM
though i've voted republican in every prez election since 1974, i'm glad obama didn't succumb to scapegoating lawyers who take on the toughest, best financed cartel - the healthcare industry. wasteful spending/billing by this industry has a lot more to do with paying for life's luxuries than defensive medicine. ask any dr, he's more worried about his spouse's divorce lawyer than a medmal attorney. when oncologist's charge medicare $10k for a routine post-chemo office visit - lasting less than 40 min - that's wasteful by anyone's definition
Michael End| 6.29.09 @ 12:47PM
How did the notion that restricting the rights of people to recover compensation from those whose negligence injured them come into favor? The comments seem to favor this view, perhaps because of years of hype the tort "reform" is good. Do the people who posted comments really think there are many medical malpractice lawsuits? I am a lawyer representing patients in medical malpractice cases in Wisconsin, a state of 5.6 million people. Last year there were 139 medical malpractice lawsuits filed in Wisconsin. There were 59 payments made to people injured by doctor negligence in Wisconsin last year. That is four payments for every 1,000 doctors practicing in the state. This is a problem? I think it is. The problem is that medical malpractice work is so difficult for lawyers that people with meritorious claims cannot find lawyers to take their cases. Justice is not being served for those people. Dr. Gilbert Ross, the writer of this article, mistakenly claims that the institution of caps will stem the flow of doctors leaving states without caps on damages to states with caps. Actually, the 2006 U.S. Census Bureau shows that the medical liability situation in states does not correlate to the number of doctors practicing in a state. In fact, four of the best states in the country for the number of doctors per 100,000 people are states that were called "crisis states" by the AMA, namely, Massachusetts (1), New York (3), Connecticut (4), and Rhode Island (5). The notion of "frivolous" lawsuits is crazy. Why would any lawyer file a case without merit? So that he or she can spend hundreds of hours of time and tens of thousands of dollars only to inevitably lose the case at trial? The chances of winning a case at trial are remote, probably because most jurors have the same misperceptions that most of the people who wrote comments to this article have. Would any of you ever find that a doctor acted negligently? If you want to know the truth about the difficulty for a patient in winning a lawsuit, read "Doctors & Juries", Michigan Law Review, vol. 106, pp 1-42 (2007) which may be downloaded from the web. The article analyzes seven studies found in medical journals that compared the results of jury trials to the medical malpractice insurance companies' internal analyses of the cases. Of the cases the insurance companies determined to be "indefensible", the plaintiffs could win only about 50%. Of cases with uncertain liability, the plaintiffs won only 30%. Going to another topic, the notion of defensive medicine is another propaganda item. Do any of you really think that a doctor will practice differently if there is a cap on damages than he or she would without a cap? In a report published in December 2008, the Congressional Budget Office stated that it had examined the issue of caps and defensive medicine by looking at the experience of states that implemented limits on torts and had not found sufficient evidence to conclude that practicing defensive medicine has a significant effect on health care spending. I wish doctors were more willing to perform diagnostic tests. I have represented the parents of a 5-year-old girl who died from acute diabetic acidosis when a doctor did not perform a blood sugar test that would have cost the hospital 53 cents; the wife of a 32-year-old man who died of a pulmonary embolism after three visits to a clinic complaining of calf pain and difficulty breathing, yet no test was performed to see whether he had deep vein thrombosis or PE; and a man who broke his hip in a fall in the hospital that was not diagnosed for a week because the doctor refused to get an x-ray, despite the patient's documented requests for an x-ray, etc. Another finding of the CBO report was that placing caps on damages would have a small effect, "less than 0.5 percent of total health care spending." Another CBO report published the same day found that caps on damages would reduce total health care spending by less than 0.2 percent. "After carefully considering the economic literature and conducting its own statistical analysis of the data, CBO has not found consistent evidence that changes in the medical malpractice environment would have a measurable impact on health care spending." The writers of the comments should stop and consider what they would think if they or a family member were rendered quadriplegic because of some clearly negligent medical care and the compensation for that quadriplegia was limited to $250,000 plus the economic costs.
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Joseph Barrie| 7.14.09 @ 7:44AM
Michael End hits all the nails on the head. The major cause of the malpractice "crisis" is malpractice. You would do well to investigate Dr. Ross' past history, by the way.
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