Articles Posted in Malpractice Tort Reform

The widely read blog KevinMD, written by Dr. Kevin Pho who is an opinion leader on issues related to the medical point-of-view on medical malpractice issues, makes what I think is a startling admission:

Politically, malpractice caps are dead — tort reformers should abandon that option. Furthermore, arguing that tort reform will save significant sums of money is growing less viable.

It’s more important to re-frame the malpractice debate to focus on patients. That’s where the malpractice reform crowd will have more solid evidence to stand on.

New York has received a federal grant to study alternative ways to resolve medical malpractice lawsuits. The grant follows the plan of New York Judge Douglas McKeon who puts an emphasis on listening to the parties and understanding the motivations in bringing and defending malpractice lawsuits.

The idea is that we should be spending money and effort to think of new ways to resolve medical malpractice claims. I’ll be interested to learn if from these efforts any really “new” ways are uncovered. Instead, it seems to me millions and even billions of dollars have already been “spent” trying to solve this problem organically. I can’t imagine a few pilot programs making a big difference. Not saying the effort is a bad idea but I’m skeptical as to whether it will yield any real result.

Looking to build on the momentum in Illinois, Kansas malpractice lawyers look to strike down Kansas’ draconian $250,000 noneconomic damages malpractice cap.

The case is a classic wrong part surgery lawsuit:, a woman went in for right ovary surgery and had her left ovary removed. This is one of those cases malpractice lawsuit reform advocates do not have an answer for: the doctor may a surgical error that even a modicum of due care would have avoided.

Not surprisingly under these facts, the woman filed a medical malpractice lawsuit against the surgeon who operated on the wrong part of her ovaries and was awarded $760,000 in damages. But, consistent with the cap, the trial judge reduced relating to noneconomic damages.

In the GOP response to President Obama’s state of the union address, Republicans went with Virginia Governor Bob McDonnell. I think he was a good choice, a blue collar Republican with a strong appeal to conservative Democrats. We all remember Bobby Jindal’s creepy speech after President Obama join session address last year (and this is coming for someone who has some admiration for Jindal).

Governor McDonnell made four points that got my attention: (1) Republicans will fight health care reform, (2) there should be limits on jury awards in medical malpractice lawsuits, (3) we are spending too much, and (4) insurance companies should be able sell insurance coverage across state lines.

He was 2 for 4 with me. I do think our deficit/debt is completely out of control. I also think it might help control costs if we could expand health insurance coverage beyond state lines. The lack of quality competition in Maryland with Care First must increase costs and I have to think there are economies of scale to bigger. I’d like to hear more informed debate about some blind alleys I’m not considering but this issue should be fully aired.

Malpractice lawyers often contend that malpractice tort reform would actually increase malpractice insurance rates. Coming from trial lawyers, this claim has been readily discounted by many, including me because it would seem to defy fundamental principles of economics. But when this same argument gets raised by the American Academy of Actuaries and is published in Modern Physician, it definitely lends more credence to the argument.

The legal system in general does not fall into step with general principles of economics. Nor should it. Very often, lawmakers try to tip events and end up tipping other points that send the car down the opposite path of the one that was intended.

This is not the reason why malpractice reform is a bad idea. It is a bad idea for the 1,000 reasons I have set forth on this blog and elsewhere. But if you are on the fence on this issue, this is the type of stuff you should keep in mind.

The Pop Tort underscores why a loser pay system is going to weed out a lot more than just frivolous malpractice lawsuits:

The underlying presumption is without basis and grossly unfair (i.e., because a patient loses in court, the case was somehow “frivolous.”) As the Harvard School of Public Health found in 2006, such losses merely “underscore how difficult it may be for plaintiffs and their attorneys to discern what has happened before the initiation of a claim and the acquisition of knowledge that comes from the investigations, consultation with experts, and sharing of information that litigation triggers.”

Medical malpractice lawyers in Maryland appreciate this commentary because anyone how has handled medical malpractice or any other complex tort claim knows that the relative merits of a lawsuit can rise and fall over the course of litigation. The lawsuit process assists in flushing out the merits of any case. Lawsuits – for better or worse for plaintiffs – are a path to the truth. Which is pretty much the idea in the first place.

Interesting statistics from the Green Bay Press Gazette (and here we thought Green Bay was just a football team, not a town) today:

    • Over the last 30 years, the number of health insurance bureaucrats has grown 25 times faster than the number of doctors — people involved in such non-health-related tasks as marketing, processing bills and denying benefits
    • In 2006, the six largest insurance companies pulled in $11 billion in profits. New medical treatments, such as coronary bypass surgery and neonatal intensive care that is saving extremely premature babies; increased use of medical services — some of it unnecessary; new technology such as echocardiograms and CT scans; and expensive drugs that often are no better than older generic drugs are significant causes of escalating health-care costs

This from the Kansas City Star on the illusory relationship between health care costs and medical malpractice lawsuits:

Yet the push for tort reform rests largely on anecdotal evidence of the occasional large jury verdict or outrageous lawsuit. Despite the perception that “jackpot justice” has fueled soaring costs, hard data yield a much different picture.