Caps on malpractice

[whitecobra]

A bit of follow up
A good friend of mine is the head of Radiology at a central Florida hospital. He writes off 40% of the procedures he does since the people as was pointed out using the ER since they have no insurance have NO money

He MUST read the studies AND is open to suit if he reads them wrong. (Good deal huh you are forced by LAW to work for free and yet you can be the point of income to the patient if you do not do a simply perfect job)

He then has to write off approximately 30% of the actual billable services he DOES get paid on due to contractual agreements he must sign to stay in business with insurance companies. Interesting huh? NOT REALLY since lay people assume that docs are so rich who cares

As to jury of my peers I would NEVER have that opportunity since not only are juries made up of "less then my peers" but only foolish peers would ever get stuck in jury duty. Getting out of jury duty is tantamount to buttering bread. If you can't get out I SURELY don't' want you on a jury that determines a case of mine.

In MANY areas the sheer fact of being a doc is enough to get you out and if not then having a business that if you were out would affect the health or well-being of people is a reason

Lastly the caps are NOT to affect the actual costs of treatment. If it takes $1M to fix an issue that is not at issue but its the cases that involve added funds for pain and suffering that the caps are for. I had a case where the wife was the patient. Part of the suit was from her husband since he wasn't able to have sex or "physical relations" he wanted 250K added to the pie

**** I want that deal. I will refrain from sex for 3 years and someone pay ME a quarter of a million for the effort

Who do I blame? NOT the judges their hands are tied. I don't blame the lawyers they do what they are allowed to do. I blame the system for giving them the opening to do it. SIMPLE close the loopholes

Actually if you want to see this ALL stop then remove contingent fees and leave the caps off

If a lawyer has to be paid win or lose then the cases would be cut by 99%. ONLY the winning cases would be taken and then the looking for issues and loop holes would stop

Right now cases are filed simply because they CAN BE

I had a head and neck surgeon in PA sued since after the surgery the patient was able to hear radio signals. YUP YOU HEARD ME! Guess what it was cheaper to make it go away then defend it so she got 40K to get lost the lawyer got his 35% for some paperwork and done

Now that is a case of nonsense and I have 400 others just like it (did a LOT of legal work in mal-P cases)

Dr D

[Tom J]

There is another issue with regard to the raising cost of malpractice insurance that should be raised. Everyone assumes the main reason, if not the only reason for the rise in malpractice insurance is the increase in awards for malpractice. I have not read the study, but a Duke law professor did a study on malpractice awards in Madison and St. Clair County in Illinois, one of the areas of the country known for high jury awards. I listened to her on a radio talk show and some of her findings were surprising.

She looked at the jury awards in these two counties for the past 20 years, after factoring in inflation she found the average awards had not increased significantly over that period of time. Now I should point out this has been a snake pit for for well over 20 years, so it may be a case of awards having topped out. Regardless of whether this is true, the malpractice premiums had gone up many times over in the same 20 year period. This begs the question of why.

The law professor pointed out insurance companies make their profit by investing the premiums. Ideally, the investment return on the premiums will outdistance the amount paid out in claims, if it does not then the premiums have to go up. These investments are made in high rated bonds for the most part because of relative certain of return. The law professor pointed out during the beginning of the 20 year period these investments were routinely returning a higher yield than at the conclusion of the period. She attributed most of the increase in premiums not to the rise in awards but to the lesser return earned by the insurance company.

As I said, I have not read the study. I also do not know who financed the study, it may be one of the trial lawyer groups. I also know there are some members who are knowledgeable about insurance that may be able to poke some holes in my simplistic summary of this study. But the point I do want to make is one should not assume the increase in jury awards are the sole reason for the increase in premiums.

[Jeffrey Schronce]

The law professor pointed out insurance companies make their profit by investing the premiums. Ideally, the investment return on the premiums will outdistance the amount paid out in claims, if it does not then the premiums have to go up. These investments are made in high rated bonds for the most part because of relative certain of return. The law professor pointed out during the beginning of the 20 year period these investments were routinely returning a higher yield than at the conclusion of the period. She attributed most of the increase in premiums not to the rise in awards but to the lesser return earned by the insurance company.

She is absolutely correct in the operations of an insurance company. However, ALL insurance companies and ALL lines of insurance are governed by the exact same investment principles and you do not see the multiplicative rate increases in allied lines of insurance. Yes, all premiums were artificially deflated when insurance companies were able to get 14% interest rates on their money in the late 70s, however there has not been such substantial increases as a percentage of premium as professional liability.
In fact all professional liability rates have dramatically increase. E&O coverage for all professions, as well as Directors and Officers coverages, have far outpaced a few percentage points in the bond market. Any of you engineers out there paying your own E&O coverage can certainly attest to rate increases in your fields.
The flaw in many of the studies is that they look only at public information, ie court reports. They do not study the impact of the 90% of suits that do not make it to court. As those jury awards rise, so does the risk of rolling the dice in litigation for a questionable malpractice suit. Out of court settlements are tremendously more expensive than there were even 10 years ago. Increases in mediation technology have lowered litigation costs, but significantly raised the out of court settlements AND the ease of getting a case to mediation or arbitration.
IMHO punitive damages (pain and suffering, loss of consortium, etc) should be considered only in gross negligence cases. I think that everyone would agree that punitive damages are reasonable in gross negligence cases.

[Warren]

The study would be suspect simply based on the fact that is was done by a person who makes a living training lawyers. That said, the problem is certainly multifaceted. There are many factors which cause increases in insurance. Probably just about every facet has been mentioned in this thread. So, the complexity should be obvious.

Many of the facets are, or could be readily addressed and fixed. Caps, in some form, are surely required. This is particularly true in cases where malpractice is not found or even alledged. The regulators (medical boards) need to be more objective and less protective in the investigations of their peers. Findings, particularly where malpractice is found, need to be public record. A central repository needs to be created where patients can check the status of doctors. (note: these could also apply to lawers and state bar reviews.)

There was a time when people became doctors for altruisic reasons. The vast percentage of current doctors are probably driven by the same motives. There are some, who are in it for the money, scored abysmally low on tests, and shouldn't be allowed to practice. These practitioners contribute more to higher insurance than their more competent peers.

Unfortunately, big bucks means attracting people to a profession for the wrong reasons. This readily applies to law, cops, MBAs and other professions where incompetence can be supressed and camouflaged.

Abuses of emergency rooms has to stop. And, for this problem I have now simple solution in mind. I certainly would not be the person in charge of triage at an emergency room. Imagine having to make a cursory exam of a baby in pain, accompanied by a distraught mother with limited parenting skills, the injury obviously needs only a little TLC and a bandaid . . . or does it? Is there an undiagosed injury or problem? Give me a problem I can handle with handcuffs, a baton or a gun. I used to be able to sort that stuff out. But, kids with pain? Way beyond my expertise.

I, obviously, have had too much time on my hands lately, judging from the number of posts lately. So, I'm off to the shop to make boards shorter and create sawdust.

To the rest of you . . . good luck in solving the problems of the world. Keep trying! It's worth it, but I need a respite.

[MilDoc]

Abuses of emergency rooms has to stop.

I agree with that, but with 40 million in this wonderful country with no health insurance coverage, they have no where else to go. Unfortunately, many hospitals are closing their ER's thanks to federal requirements, "free" care, lack of adequate reimbursement, and rising costs. So the ERs that are left will be ecev more overcrowded.

[Warren]

Remember Paul, not all of those 40 million need insurance. Gates and his family don't. My older brother and his family don't. The guy that just retired from HD and his family do not. The indiginous American's do not, they have free federal medical care. I'm betting that active duty military and their families are included in that figure, wouldn't surprise me. I suspect that the number of people that need health insurance and cannot afford it, is somewhat lower than that figure. Probably substantially lower. I suspect we'll never know the true methodology that was used to arrive at it either. I would expect that they guess at the number of illegal aliens in the country and include them in the count. The vet doesn't need health insurance, he/she just needs the proper medical care they contracted for when they signed up.

The people that use that number for their federal funding and proposed federally funded or subsidized programs and proposals have vastly inflated it. I'm not belittling the need for taking care of the truely needy, just the figures which are used to create the herd mentality and then drive the herd into a panic.

I would dearly like to see those figures, broken down into economic strata, citizenship, employment, military service, etc. The media tend to take all numbers they want to believe, accept them with no questions asked, and then pass them on as facts to listeners, viewers and readers. I would love to see the methodology used to arrive at the figure.

Just once I would like to hear a reporter say, "Prove it!" instead of just blindly accepting the poll, study or what have you.

Now, I really am going to go down to the shop.

[MilDoc]

Warren:
Those figures come from the Center for Disease Control. Active duty and retired military that are eligible for TriCare are not included in that figure. And I doubt that Gates, corporate CEOs, etc are either since they undoubtedly have health insurance thru their companies even if they could afford to "do without."

FYI: Here's the definition of "uninsured" used by the CDC in their surveys:

"NOTES: A person was defined as uninsured if he or she did not have any private health insurance, Medicare, Medicaid, State Children’s Health Insurance Program (SCHIP), State -sponsored or other government-sponsored health plan, or military plan at the time of the interview."

"In early 2004, the percent of uninsured persons persons was 14.6%." The CDC estimate for 2004 was 42,000,000.

Just ask any ER administrator how many folks they have to see who have no insurance of any kind. Thus ERs are closing.

[leehljp]

The personality of the patient

One item, not mentioned so far, that does have an effect is - the personality of the patient. A few (including Ed) mentioned that he had grounds for a lawsuit, but did not on the grounds that the Doctor was trying to help.

I have been in similar situations with my wife and one of my kids. But the Doctor was doing all that they could do, or the best that they knew at the time. Not even the thought of a lawsuit from us.

Then there are the personalities that think:
"Nothing bad should ever happen to me."
"I am out to get all that I can."
"I am number 1."
"I am never wrong." (a person who has never been married )

In numerous counseling situations I have seen this personality that only think in these terms, and it is very strong. It drives them. I don't know how much of this personality type is involved in lawsuits but I would say it is significant.

[Warren]

Paul, I don't doubt that there are a high humber of people without insurance availing themselves of mandated, free services in emergency rooms. That is not a problem caused by people being uninsured. That is a problem of unfunded, or underfunded government mandates. You will get no arguement from me as to the scope of the problem with emergency rooms.

However, I stand corrected as to CDC's definition. It seems reasonable on its face. I would like to have seen it include a section of; uninsured by choice, or insurance not required. I still have to question their aggregate numbers when the government can't even conduct a comprehensive census, much less do more than offer widely varying estimates as to the number of undocumented aliens residing in this country. If anything, the percentage of uninsured is probably lower than the their estimate, while the actual number of uninsured may very likely be higher than their published figures. I would like to see the number broken down to show how many of the 40 million are children of people who can, but will not buy insurance. People make choices and there are consequences for those choices. Unfortunately, many of use pay those consequences and we were not involved in the decision making process.

Hank: I agree that certain personality types contribute to the problem. Probably to a great extent. Since we can't legislate them out of exsistance, how do we control them?

I, personally, do not believe that everyone is entitled to free, routine medical care. There has to be some personal responsibility somewhere. If you want health insurance, get a job at a company provides it. If you don't qualify for such a job, get qualified. Or, start a co-op and purchase it. Or, join the military. I simply do not believe that health insurance is out of reach for a large share of the purported 40,000,000 uninsured.

[leehljp]

Being in Japan, I get delayed and two to three year old "first runs" of some US TV shows. "House" is one of them.

One thing House said on a recent one is absolutely true. "It is the nature of medicine that someone is going to die because of a misdiagnosis." House was in the face of students telling them what to expect.

I never will forget my feelings when the first doctor that I can remember died. I was about 5 years old and I had the idea at that time that Doctors never died. The lesson that I learned was that they were human too and didn't have all the answers.

Far TOO many lawsuits are for the patient expecting the doctor to be superhuman. Yes, some is pure and simple malpractice but it is my opinion the most of it is "let me get rich off of this Doctor's human-ness."

I can see a form being required in the future stating that the Doctor is human and will do the best of his ability, but if you want to go to another doctor or promise not to sue in the case of a misdiagnosis for a hard to find cause . . . sign here. Only then will the doctor see you.

"No cap limits" will eventually make some lawyer, on behalf of medical clinics and hospitals, come up with this kind of form that is legally enforcable.

[germdoc]

How did I miss this thread before?

Lots of issues here. I'm gonna skip the issues of uninsured and cost of care, as any explanation would be too lengthy--not enough hours in the day.

Re' med mal: I am a doc. I have never been sued but many of my fine colleagues have. The cost of malpractice insurance in many parts of the country is skyhigh and inhibits doctor recruiting and retention, ergo, access to care.

There is really no direct correlation between quality of care and risk of being sued. How do I know this? I have been an expert witness in dozens of med mal lawsuits for both sides. I have seen patients with clearcut cases re' malpractice lose lawsuits, and I have seen excellent doctors who provided high-quality care lose their cases or be forced to settle out of court.

Studies confirm what I said--little correlation between quality and risk of lawsuit. It's sort of an adage in our profession that 90% of med mal cases are inappropriate and should never even enter the legal system, while more than 90% of cases of true malpractice are never litigated. It's very clearly a broken system.

I will defend to the death the rights of any person to receive justice and compensation if they've been wronged by anyone, including a physician, HMO or hospital. Some doctors--clearly a minority--are serially incompetent and should have their licenses yanked. That doesn't happen in the med mal system, which is more like a lottery than an arbiter of justice.

Re' caps: I'm for caps on damages especially in states where there clearly is a crisis. Remember: costs of care are not affected, and damages can be meted out, just not arbitrarily and astronomically. I would also be in favor of a mediation system, like I understand the British have, which would review cases beforehand and decide on worth before allowing them to proceed. This should be an element of malpractice reform IMO.

One other point: I'm actually not in favor of federal action on this, as tort law is typically a state concern. In this case, I feel states' rights trump need for federal intervention and there's no reason to federalize med mal. That's a bad trend that has accelerated in recent years--make everything the federal govt's responsibility.

If you can't find a doc because the malpractice rates for your neurosurgeon or OB are over $100,000 (see page 17 of this reference: www.gao.gov/new.items/d03702.pdf) lobby your legislators or move to a different state. Minnesota is waiting for you!

[MilDoc]

Correct me if I'm wrong, but I've been told that no other country allows outrageous awards for "pain and suffering" (some forbid it completely), or for such BS as "loss of consortium." What most do allow is compensation for lost income, full payment of medical expenses, etc. To me that's very reasonable if there has been gross negligence, not if you are the 1 in 1000 that suffers a known bad outcome that you were duly informed of beforehand.

Pediatricians were about to give up providing immunizations because any "untoward event" would lead to a lawsuit. You would have seen polio, deaths from meningitis, and every other public health nightmare. Until the Fed stepped in with the vaccine compensation act.

[Warren]

Ahhh . . . Paul here we have a slight disagreement. I believe loss of consortium is valid. Particularly in case of a wife, not working outside of the home, taking care of children. Now the surviving spouse is facing the lose of his partner, no partner's insurance in these cases, and having to pay for child care. I doubt that lose is worth millions, but it is worth something when caused by malpractice. It's a genuine loss of something of value.

[MilDoc]

Uh, Warren. "loss of consortium" means "We can't do it now," nothing more. Has nothing to do with taking care of children etc. Which, just like "disability" claims in this country, probably is not true in many cases. Just a lawyer tactic for more $$$$$$$$$$$$ (so the lawyer gets more $$$$$$$).

[Warren]

Thanks Paul. I was going to ask if that was the reference. Just forgot it on the last post.

Of course this begs the question: "You mean I have to pay for the hooker/gigolo out of my own pocket/purse? And for HOW long?"

I'm with you on this one Paul.