March 2, 2015
Most of us who practice tort law on the victim’s side have been saying this for years only to be faced with deaf politician ears who, on behalf of their deep pocketed masters, continued to spew the myth of Tort Reform. It is time to face reality and stop actively hurting the victims of medical negligence and instead focus on ways by which to reduce the numbers of medical malpractice cases by providing incentives to medical providers to engage in safe and negligent free medical treatment.
The second greatest trick may be the insurance industry’s success in getting more than half the states to implement “tort reform.” That achievement was based on the promise that restricting victims’ ability to bring medical malpractice suits would improve healthcare and reduce its cost. Those myths have now been completely dispelled.
The last bubble to burst was that because doctors are fearful of getting sued, they practice “defensive medicine,” prescribing unnecessary and costly tests and procedures. That myth was dispatched by the recent publication of a major study in the New England Journal of Medicine. A team of five doctors and public health experts found that tort reform measures passed in three states – specifically designed to insulate emergency room doctors from lawsuits — did nothing to reduce the number of expensive tests and procedures those ER doctors prescribed.
This latest study follows numerous others that deflated other tort reform myths: that making it harder for victims to file medical malpractice lawsuits would reduce the number of “frivolous” suits that “clog the courts;” that imposing caps on the damages victims could receive would reign in “out of control” juries that were awarding lottery-size sums to plaintiffs; and that malpractice insurance premiums would fall, thereby reversing a doctor shortage caused by specialists “fleeing the profession.”
September 22, 2014
The idea that Tort Reform was going to have any effect on the cost of American Health Care system has been shown time and time again to be nothing but a myth. Tort Reform has been, and continues to be an effort to prevent victims of medical negligence to seek reasonable compensation for their injuries and the cost of dealing with those injuries in the past, present and more importantly the future. It stands to reason that the Insurance Industry gains but limiting recoveries and even reducing verdicts–never mind that a verdict in favor of a plaintiff is by definition evidence that the case just tried was not frivolous!–after a jury has deliberated on the evidence presented.
Tort reform,” which is usually billed as the answer to “frivolous malpractice lawsuits,” has been a central plank in the Republican program for healthcare reform for decades.
The notion has lived on despite copious evidence that that the so-called defensive medicine practiced by doctors merely to stave off lawsuits accounts for, at best, 2% to 3% of U.S. healthcare costs. As for “frivolous lawsuits,” they’re a problem that exists mostly in the minds of conservatives and the medical establishment.
A new study led by Michael B. Rothberg of the Cleveland Clinic and published in the Journal of the American Medical Association aimed to measure how much defensive medicine there is, really, and how much it costs. The researchers’ conclusion is that defensive medicine accounts for about 2.9% of healthcare spending. In other words, out of the estimated $2.7-trillion U.S. healthcare bill, defensive medicine accounts for $78 billion.
As Aaron Carroll observes at the AcademyHealth blog, $78 billion is “not chump change … but it’s still a very small component of overall health care spending.” Any “tort reform” stringent enough to make that go away would likely create other costs, such as a rise in medical mistakes generated by the elimination of the oversight exercised by the court system.
Since it doesn’t appear that “tort reform” would have any effect on this spending, Carroll says, “there seems little reason to pursue it as a means to dramatically reduce health care spending in the United States.”
March 14, 2014
In yesterday’s 5-2 decision striking down Florida’s cap on non-economic damages in wrongful death cases, the Supreme Court of Florida criticized in withering detail the arguments used by medical malpractice insurance lobbyists and organized medicine to push for caps and other “tort reforms.”
For all the physicians out there, please know that according to the Court, you have been lied to most of all.
Since the industry uses these same arguments to push for laws that limit compensation to sick and injured patients in every state – as well as in Congress – we thought we would take some time to list some highlights from this brutally honest Florida Supreme Court decision.
January 3, 2012
We have heard so many tales of woes about how medical malpractice lawsuits are ruining the medical health of this country by making healthcare expensive for all and by causing the exodus of doctors from the so-called “judicial hellholes” (of which Illinois is supposedly one) toward States where there are limits on justice that a victim of a doctor’s carelessness can hope to obtain.
The problem with that proposition is that it is simply not true. What causes medical malpractice lawsuits are not patients and/or juries and their verdicts or lack of caps on those verdicts, but medical malpractice. The best way to prevent a lawsuit based on medical malpractice is to not commit carelessness.
Note that here, we are not talking about things that may go wrong in the natural progression of a treatment: there are times when a treatment goes wrong through no fault of the medical provider and/or the attending physician. Things may go wrong because Medicine is an art. What we are talking about here are actual damages caused to individuals that are the direct result of carelessness–that is different from simply not getting the intended result. For example, damages that could cause for failure of a doctor to simply read objective tests that are performed and that are ready to be reviewed but the doctor simply decides not to avail himself f the useful information those tests provides him. That is when medical malpractice lawsuits may be expected.
Nearly 4,000 tests for heart disease performed over the last three years at Harlem Hospital Center – more than half of all such tests performed – were never read by doctors charged with making a diagnosis, hospital officials acknowledged Tuesday.
The echocardiogram tests, a type of ultrasound used to evaluate heart muscle and valve functions, were ordered by doctors at the hospital. The tests were stored on a computer and basically forgotten, officials said. The lapse occurred because the cardiology service at the hospital had developed a system by which technicians were given the responsibility to scan all tests and flag any that looked abnormal, so that they would be given priority when doctors read them.
It appears, officials said, that the tests that were not flagged were put aside and forgotten.
The city’s Health and Hospitals Corporation, which runs the public hospital system, including Harlem Hospital, and Columbia University, whose medical school supplies the cardiologists who work at Harlem Hospital Center, acknowledged the problem in a joint statement on Tuesday, after being asked about it by The New York Times.
“While the process the doctors followed may have alerted cardiologists to those echocardiograms that were most likely to be abnormal, the failure to read the echocardiograms in a timely manner is inexcusable and may have placed patients at risk,” Alan D. Aviles, hospitals corporation president, said in the statement. It was unclear who developed the screening system, hospital officials said.
June 15, 2010
“Our nation’s 46 million uninsured often delay or forgo needed healthcare because the cost is prohibitive,” said study author Julie S. Darnell, PhD, MHSA, then of the University of Chicago and now with the School of Public Health at the University of Illinois at Chicago. The mean cost for a doctor visit for uninsured patients is around $50, Darnell wrote.
Traditional sources of care, including public clinics and federal health centers, both charge fees and bill patients. “Aside from cost considerations, care is frequently difficult to find, especially for those with the least resources,” Darnell added. For many poor, uninsured, and underserved patients, the only sources of care are emergency rooms or free clinics.
At the time of the survey, 1,007 free clinics were known to be operating throughout 49 states and the District of Columbia (Alaska was the lone exception).
May 31, 2010
If BP’s liability for the oil spill is limited to $75 million, who pays for the damages over that amount? If some fisherman loses a business he has had for 50 years and BP has paid out a day or two of its earnings for damages — reached the cap — does the fisherman absorb the loss or does the government (the taxpayer) pay the difference? I expect that in reality, BP will be responsible for more than the $75 million in damage claims, but I have to wonder what Congress was thinking when it adopted the limitation of liability.
May 18, 2010
If after David beat Goliath the government decreed that henceforth when people fight giants, they must do so with six-inch sling shots and pebbles instead of rocks, there would be a huge outcry of protest. However, the changes that are being imbedded in our legal system in the name of tort reform are attempting to do the same thing.
May 15, 2010
The auto-repair industry serves its customers profitably in a free market for several reasons that do not apply to the health care industry:
1. The cost of an auto repair rarely exceeds 50% of the cost of acquiring an equivalent vehicle and is usually less than 5% of that cost.
The patient cannot acquire another body. The cost of an illness may exceed the combined cost of a buying a home and raising a family of university graduates.
2. Garages stay in business by making good decisions and providing good service.
Health care providers stay in business (retain their medical license) by conforming to industry standards. The health care industry (as opposed to the health care INSURANCE industry) does not want customers. They do not have to attract customers. There is no point in advertising for customers. The doctor regrets that the patient needs his help. The patient regrets being a patient.
3. Auto repair is based upon commodities: widely available parts, repair manuals, tools, and mechanics. Costs are well known and prices are regulated by competition
Health care equipment is highly technical and very expensive. Doctors are mostly specialists, often researchers with few students. They sometimes build their own equipment. The customer’s life may depend upon finding the right doctor. If that doctor does not have a contract with the patient’s private insurance company, the claim will be denied. (http://www.creators.com/liberal/froma-harrop/free-market-death-panels.html)
4. All drivers can afford to drive – until they can’t. If too many drivers can’t afford to drive, some garages may suffer or fail. It’s tough on the ex-drivers and ex-garage owners, but that’s the free market.
Patients must be served whether they can afford to pay or not. If they cannot pay, the cost must be shifted to others.