Articles Posted in Malpractice Tort Reform

This is an unbelievable article on President Obama and medical malpractice reform bythe Associated Press. There is much in the article to criticize, including the premise of $250 million to help states write laws. Insane. But what really annoys me the most is this line: “The cost of defensive medicine is difficult to estimate, but conservative estimates start at around $50 billion a year.”

It is just a false analysis. The question is not how much defensive medicine costs. The question is how much defensive medicine would be eliminated by making changes in the system (not to mention the 7th Amendment).

I don’t mind the argument for malpractice reform. People smarter than me disagree with my strong position. But I just don’t like poorly reasoned evidence being presented as fact or editorials disguised as reporting.

President Obama sent ripples through the medical malpractice lawyer community when he said he supports medical malpractice reform. I do not think this is anything new, really. It was just the forum of the State of the Union address that was different. He said he wanted to decrease frivolous malpractice. Me too. How do you get there without hurting real victims in the process? This is the hard (and maybe impossible) part.

This Forbes article makes the same argument, albeit from a different perspective.


Issue #1 for the House Judiciary Committee: medical malpractice reform. The title of the hearing gives you some idea of the objectivity: “Medical Liability Reform — Cutting Costs, Spurring Investment, Creating Jobs.”

The hearing came a day after the House of Representatives voted 245-189 to repeal the Affordable Care Act (ACA). The repeal vote is seen as largely symbolic, since leaders of the Democratic-controlled Senate have vowed to block repeal. However, Republicans are now expected to begin trying to chip away at the ACA by passing bills to repeal certain provisions. Doctors are shooting for the same thing they always want: malpractice caps – preferably hard malpractice caps that include economic damages.

Ardis Hoven, M.D., chair of the American Medical Association’s Board of Trustees, told the House panel that the system we have had for hundreds of years is “an ineffective and often unfair mechanism for resolving medical liability claims.”

The Maryland General Assembly is open for business which means a lot of lobbying on both sides of the aisle on medical malpractice related issues. Lobbyists for doctors and hospitals have been forever sounding the alarm of doctor shortages, relying primarily on their own studies to support this premise. Maybe there is a small issue of bias in citing yourself for the premise that is in your financial interest.

The American Medical Association’s data suggests that the doctor/patient ratio has increased in Maryland almost every year for more than forty years. In 1963, there were 470 doctors for each patient in Maryland. That number has more than tripled. Today, there are 153 lawyers for every 300 people. The real problem we have in Maryland is that we do not have enough lawyers. (Wait, I’m getting carried away. That is definitely not a problem we have in Maryland.)

But I’m sure that some rural areas of Maryland lack some specialties. MedChi points out that vascular surgeons are in particularly short supply. But this is not just true in Maryland. It is a problem all over the country. Moreover, rural areas are great places to practice to remain insulated from medical malpractice claims. Some rural counties in Maryland have not seen a plaintiff’s verdict in a medical malpractice case in years.

This is the story of a doctor who practices as an OB/GYN for years without incident. Then, suddenly, he apparently starts getting hit with lawsuits at a rate of about once a week.

I say “apparently” because the doctor does not say how many. In fact, he/she does not even reveal who they are.

Doctors have a lot of stories about their experiences in dealing with medical malpractice cases that may be illustrative in the debate over malpractice. But anonymous articles? Not so much.

The Baltimore Sun wrote an article a few months back on hospital executive compensation that I did not see until today.

No breaking news there: these guys make a ton of money. But it is interesting snooping around looking at non-profit health care providers’ salaries. Sometimes, hospitals will create a separate nonprofit for different services, such as the emergency room services. They are nonprofits so they have to name the salaries for what I think are their ten highest paid employees. I could give you a link to a few of these but it names names and gives salaries and that is a little too intrusive for me. But it is fair to summarize my research by saying these guys don’t want to hold up their salaries when arguing that high malpractice premiums are putting them out of business.

I’ve made this point before and I’ll make it again: I think doctors should get paid a ton of money, more than any other profession because I think the medical profession is, as a class, more important than any other. If I make a mistake, someone does not get the money and justice they deserve. Doctors screw up and someone dies. So feel free to make a fortune. Just don’t plead poverty and claim you are going to quit your job and go work at McDonald’s because you can’t earn a living wage because of your malpractice premiums.

A legislator in Florida has proposed immunity for doctors who treat Florida Medicaid patients. Under this utterly warped plan, doctors would be given immunity as agents of the state which would cap their liability at $200,000 in Medicaid cases.

Tort reform advocates love the idea of immunities and heightened negligence standards. There is no question that this will do nothing for Medicaid. In fact, it kills their ability to find the culpable party and maintain its subrogation interests. But tort reform advocates just love immunities. Why? The more practice legislatures have changing fundamental negligence law, the easier the glove with fit next time around. Once immunities start getting added to the mix, we roll down the slippery slope of all sorts of other types of malpractice cases. Let’s add immunity for ER doctors or OB/GYNS.

Trying to hide this effort under the guise of protecting Medicaid is genius politically. But it is intellectually dishonest.

Medical Justice has enlisted a new public relations firm to assist with its traditional and social media, association programs, creative services and speaker bureau efforts.

The PR firm’s biggest challenge? Convincing doctors that it actually has a product of value for the $600 it charges. It is two years later. Can Medical Justice explain a single tangible member benefit for $600? If you support Medical Justice, read the last paragraph of the post and respond to the questions I’ve posted. Maybe this new PR firm can set me straight as their first big gig for Medical Justice. I’m out here Trevelino/Keller Communications Group if you want to debate the merits. If you respond, I’ll publish anything you have to say in its entirety.

During surgery to treat diverticulitis, doctors left a one foot long sponge in a Florida man. When it was finally determined that a sponge had been left behind, doctors operated again to remove part of the patient’s intestine, which allegedly had been damaged by the sponge.

The man reached a settlement and now plans to sue the doctors. Because this kind of thing happens far too frequently, it would not rise to the level of a new story. But the patient is a 67-year old Palm Beach judge.

Low and behold, the Wall Street Journal reports that the judge has a new take on medical malpractice damage caps: he does not believe in them.

This article underscores the abject failure of medical error reporting programs – and laws that require reporting – because no one is really trying to enforce the laws that exists in 27 states, including Maryland, requiring hospitals and other facilities to report serious medical malpractice.

Every once in a blue moon, a hospital does get caught. Last year, Doctors Community Hospital in Prince George’s County was fined $30,000 by Maryland health regulators after failing to notify them that a patient had died and that at least seven others suffered serious harm as a result of medical malpractice. But the practical reality is that a $30,000 fine is a drop in the bucket for a large hospital and the chances of getting caught covering up medical malpractice in Maryland are extremely low.

A I discussed yesterday, a process tort of failing to disclose or conceal would be a viable solution. But MedChi lobbyists are never going to let the Maryland legislature create a statute that creates a new tort and the “stare decisis is king” Maryland Court of Appeals is not likely to create a controversial new tort anytime soon.