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Danny Feldman
Danny Feldman
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Medical malpractice reform again

6 comments

I do not hande medical malpractice cases for a variety of reasons, not the least of which is that they are almost impossible to win, at least in Alabama, and that they are ridiculously expensive to pursue. However, I recently read an article, see http://thehill.com/blogs/healthwatch/other/138073-ama-builds-support-for-yet-to-be-introduced-medical-tort-reform-bill where the newly elected Republican House is set yet again on passing federal med-mal "tort reform." One of the fixes will limit non-economic damages to $250,000. Really, someone’s negligence could cost you a limb or leave you paralyzed or on a feeding tube and the most "compensation" you can receive for that is $250,000. On its face, this proposed "reform" is nothing more than an effort to shield doctors and hospitals from fairly paying for the consequences of their negligent acts. Why should these type of claims receive special treatment limiting recovery to an amount less than provable damages?

Althougn the article did not detail the other "reforms," it did mention a limit on attorney fees. I am sure that this is just another effort to make these cases less attractive to take than they already are.

Real reform ought to be concerned primarily with patient safety and, of course, to the extent that there really is a problem with shielding innocent doctors and hospitals from being sued, that ought to be a focus as well. Placing an arbitrary and low $250,000 cap on non-economic damages serves only to shield NEGLIGENT doctors and hospitals from bearing the full responsibilty of their negligence. Unfortunately, its just more of the same from our newly elected House.

6 Comments

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  1. james O'Hare RPLU AIC AIS says:
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    Happy new year:

    250k is light for non economic cap; but there needs to be a cap, as pain has no measurement, not objective like cash is. The poor guy that lost his arm should have an economic claim as well. Injured patients should get compensated and bad docs should go away.

    It sounds nice but reform has nothing to do with patient safety as you cant legislate against mistakes. Want good reform – how about shorter nursing shifts, more nurses, better pay and more schools for them. My 25 years of med mal claims points to fatigue and its offspring ( like bad communication) as the cause of most med mal.

    The reason you cant win a case in Alabama or anyplace else is that carriers only try what they believe to be slam dunk winners. The rest settle.

    Regards
    Jim O’Hare RPLU AIC AIS
    VP claims
    Physicians Ins Co Fl

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    Once again, I’ll defer to people that practice in this area to correct me, but in my limited experience with med-mal cases in Alabama, carriers as a general rule settle very, very few med-mal cases. They routinely try cases where physicians operate on the wrong limb or leave a sponge in. The reason, of course, is to discourage future claims if injuries are not catastrophic, even if the doctor clearly was negligent.

    It certainly makes sense to me that many mistakes are caused by fatigue, lack of communication etc. (which, by the way, is why I find it so remarkable that newly minted doctors often are required to put in ridiculously long hours operating on very little sleep, so you combine fatigue with inexperience and are surprised when a mistake is made – but that’s another story). If mistakes cost money, and that cost is not limited by an arbitrary cap, then it would seem that the hospital would have a financial incentive to cut down on those mistakes by making the good reforms you suggest – shorter shifts, better pay etc. Seemingly, it’d be a win-win – better care, less injuries to innocent people, and in the long run, less cost.

    Finally, although I suspect that most people would agree with you that a cap is needed, any cap simply shifts the cost of the negligence from the negligent doctor/hospital to the innocent patient. Although non-economic damage surely is hard to quantify, it absolutely is real. While the person that loses a limb does have an economic claim, depending on what they do, that economic claim may be worth a lot or may be worth nothing. What about the guy that earns very little money, but spends all his time painting or mountain climbing and then can’t do what he always did because of the loss of limb? 250k seems like an awfully low arbitrary cap on non-economic damage that simply shifts the cost of negligence from where it belongs onto innocent victims of that negligence.

  3. Mark says:
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    Many would say that frivilous lawsuits are a big reason for this cap. I think we can agree that some cases do hold merit and should be heard… but isn’t it fair to say that some cases are frivilous in nature? It’s hard to ignore that studies show 1 out of 5 tests ordered by doctors are for defensive reasons? What is your take on the reasoning behind “defensive medicine”? http://www.equotemd.com

  4. Jon Lewis says:
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    I believe it is an irrational fear. Doctors are scared based on what they hear in the media and from their insurance carriers. If they have little to fear, and they do if they are competent, they will buy the least expensive coverage.

    No one ever wants to analyze the insurance companies. I had a defense attorney who represented physicians (hired by the malpractice insurance company) tell me that the insurance representative said to him, “y’all need to lose some of these cases so the doctors will think they need us.” if that doesn’t say it all, I don’t know what does.

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    I have a couple of thoughts – first, our system of payment for medical services is “fee for service;” that is, a doctor is paid for each service or test that he orders. Accordingly, a doctor has a financial incentive to order more tests or provide more services. Second, patients often want every test they can get. Patients often demand testing or services because they feel that they are thus being treated better. When you combine the doctor’s financial incentive to provide services with the patients desire (sometimes rational, sometimes not) to obtain service, its no wonder that doctors order a lot of tests, necessary or not. Finally, and although I generally understand that there may be some laws to curtail these practices, it is my understanding that physicians often are investors or owners in the facility where tests and medical services are provided – thus, providing even greater financial incentive for a physician to order a test.

    In the studies I have seen regarding “defensive medicine,” the study was performed by allowing the doctor to check the “defensive medicine” column as regards the reason for a particular medical order. I do not find it the least bit surprising that a doctor would choose to characterize treatment as “defensive medicine” as opposed to checking a column that says I ordered the treatment to make more money. This is especially true in the environment that has existed for the last 30 years or so where insurance companies have made the sale to the public and to doctors that the system is clogged with so-called frivolous lawsuits.

    So, to sum up – I think that the “studies” which purport to show the high incidence of “defensive medicine” are flawed; overblown and highly misleading. Instead, I believe that most of what doctors self report as defensive medicine really is – is a result of the way we pay doctors – “fee for service” – and also a result of giving patients what they ask for – namely, more treatment.

    One final thought and that is this – given that doctors and hospitals routinely win over 90% of the cases that go to trial in Alabama (and this is a topic for another day – I would say because the rules and law that apply to med-mal cases are incredibly one sided, and for other reasons as opposed to the argument which is that this statistic shows only “weak” cases are brought to trial) how exactly does the 250k cap discourage frivolous suits? On the contrary, the lawsuit that resulted in a substantial verdict would be by definition, not a frivolous suit, but rather a meritorious suit with a very significant injury. So why should the people that are wrongfully injured the most be the ones that are penalized?

  6. james O'Hare RPLU AIC AIS says:
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    During the Nixon administration the idea of HMO’s came up. It turned out to be a ponzi scheme.Lets see?? High monthly premiums for the privledge of meeting an enormous deductible, plus we can add a co-paymnet, which is a tip for all our hard work. Lets only insure the healthy people to boot. If this isn’t a scam – what is? When do they get to pay?. It is not health care, it is catastrophe coverage. It is anything but health care. We measure health in this country by full hospitals, not empty ones. Think about that for a second.

    Doctors have a financial incentive to feed their family. Reimbursement rates are fixed and not much. One doc buddy told me that he gets $25 bucks for each colonoscopy. If you became a doctor for the money, you made a bad choice. yes the cardiac and neuro surgeons do very well, but not all docs.

    Collusion and price fixing are rewards of the McCarron ferguson act, exempting health care companies from antitrust. WHY? Get rid of that and watch what happens. Just try to threaten the HC companies protected borders. Good luck with that lobby busting.

    These are the problems. The big gorillas in the room. Fair competition would bring HC prices down, and nobody would care what was ordered. As a matter of fact, test me for everything just in case you find something that could kill me, but is not symptomatic as yet.

    Aren’t all tests defensive. Ask yourself this: ” Why do I only have a few choices for HC companies when there are 1500 in the country?. We’d all still be listening to 78 records but for the competition. The current HC system is that 78 record
    Regards
    Jim O’Hare
    VP med mal claims
    Physicians Ins CO Pompano Fl