How to Address the Insurance and Malpractice Crises Facing the Nation

[nothingshocksmeanymore]

http://www.consumerwatchdog.org/healthcare/fs/fs003112.php3

Recommendations for Insurance Reform and Reducing Malpractice
Solving the medical malpractice crisis requires both insurance reform and improvements to our system for assuring quality healthcare.

A. Insurance Reform

The real cause of the cyclical insurance crisis, and the driving force behind the contrived malpractice lawsuit crisis, is the cash flow underwriting practices of the insurance industry. Unless the destabilizing premium surges and mismanagement caused by the "insurance cycle" are stopped, the result will be periodic "crises" in the insurance market, each an opportunity to scapegoat victims' rights in order to cloak massive premium gouging, arbitrary cancellations and reduced coverage. California's Proposition 103 is a model:

Limit insurance rates, expenses, loss projections and profits. One of the reasons that the insurance industry has been able to squeeze its customers in the malpractice insurance market and elsewhere is the lack of serious regulation and oversight of the industry. Most state regulation of insurers is weak to non-existent, reflecting the fact that officials responsible for oversight are typically beholden to the industry through previous or promised employment. Following the lead of California, there must be greater regulation of the industry's prices and underwriting practices. To prevent wild fluctuations in insurance rates and instability that can lead to insolvency, state insurance departments should set upper and lower limits on permissible rates that insurance companies may charge. All rate increases should be subject to the prior approval of an insurance commissioner, who should be accountable directly to the voters by election. Similarly, insurers should be prohibited from arbitrarily canceling or refusing to renew policies. There must be more effective insurance disclosure laws, so that citizens, consumers and policymakers can review lawsuit and claims information to determine the extent of malpractice claims, whether the price of premiums is justified, and what further measures need to be taken to limit malpractice. Finally, state insurance departments need more resources to effectively and independently monitor the industry.

Repeal the industry exemption from the antitrust laws. The insurance industry is not subject to federal regulation and it is exempt from the federal antitrust laws, and even from Federal Trade Commission scrutiny without explicit Congressional approval. Congress should repeal these barriers to competition and oversight.

Mandate fair rating practices to reward good doctors. Currently, insurance companies use narrowly defined subcategories to classify physicians who apply for malpractice liability insurance. Because there are so few physicians in some of the specialties, insurers cannot spread the risk effectively: the result is extremely high premiums for certain specialties, such as obstetricians. These rating systems force a majority of good doctors to subsidize the few bad ones. (It should be noted, however, that physicians collectively bear some responsibility for higher premiums to the extent that they do not discipline negligent physicians within their own ranks.)

Instead, insurance companies should be required by law to spread risk more equitably by placing physicians in a reduced number of underwriting categories. However, in order to differentiate poor doctors from the rest of the pool, insurance companies should charge rates based on a physician's own experience with malpractice claims. This practice, known as "experience rating," is much the same as the practice of rewarding good drivers with a discount on their auto insurance. It would ensure that doctors with histories of negligence or incompetence pay more, and doctors with clean records would be rewarded with lower rates.

B. Reducing Malpractice
Protect the Doctor-Patient Relationship. In 1990, the Texas Medical Association invited doctors who had practiced at least 20 years without a malpractice lawsuit to explain how they handle their relationships with their patients. Over 200 doctors responded, and almost all of them focused on improving communication with patients as the key to avoiding lawsuits. In the current era of profit-driven medicine, protecting the doctor-patient relationship -- and the ability of doctors to properly treat their patients -- is essential.

Improve Loss Prevention" Techniques. Medical science should do more to prevent malpractice through research that is disseminated to physicians and hospitals. So-called "outcomes research" enables health care practitioners to determine what works and what doesn't. There is presently no program in place to make sure all practitioners get this important information."Practice guidelines" could provide physicians with a check-list of standard, proven procedures. However, if physicians need only show they complied with such guidelines in order to escape malpractice liability, the effect will be to lead medical associations to issue minimal guidelines, a "lowest common denominator" approach that harms rather than protects patients.

Hospitals could improve their mechanisms for identifying and monitoring hospital-caused injuries. Aggressive risk management programs such as those instituted by the Harvard University-affiliated hospitals for anesthesia have proven very effective in reducing liability costs and insurance premiums. An integral part of the program was the development and implementation of clinical standards or protocols. Prior to the use of such standards, the average anesthesia-related malpractice claim was approximately $153,000; after such standards were effected, the average claim dropped to roughly $34,000.

Require Periodic Check-Ups for Doctors, Nurses and Hospitals. Periodic refresher courses and continuing education is required of many professionals, including lawyers, accountants and, in some cases, doctors. However, as is true of many other professions, the requirements are weak and accountability is limited. Incompetence that might be merely costly when it involves other professionals becomes a matter of life and death when a medical practitioner makes a mistake. Doctors should be required to obtain periodic re-certification based upon written exams, clinical evaluations and audits of patients' medical care records. The best way to prevent malpractice is to educate physicians before they make a mistake.

Toughen Government Monitoring and Discipline of Physicians. Independent and rigorous oversight of the medical profession, including a crackdown on dangerous doctors, is essential to curb malpractice. Medical boards should be restructured so that local medical societies are not allowed to dominate, and eviscerate, the boards' oversight and disciplinary functions. Boards should be controlled by non-physician majorities accountable only to the public. The medical lobby argues that lay people don't have the expertise necessary to evaluate the practices of physicians and hospitals, but this is a phony argument. Publicly-controlled medical boards can hire physicians and other technical experts as staff or consultants to review complaints and make recommendations to board members. But consumers, not physicians, should make the final decision.

State medical boards are typically underfunded, with too few investigators and administrative personnel to do the job. Lobbyists for the medical industry usually oppose legislative efforts to strengthen the boards with increased funding and staffing that would ensure timely and thorough investigations of complaints. Adequate resources should be provided to the boards. One hundred percent of physicians' license fees should go to funding the boards; presently, these funds are often diverted by lawmakers to pay for other state programs. In addition, Congress should create a small program of grants-in-aid to state medical boards. These federal grants should be tied to the boards' agreement to meet high standards of performance and independence.

Boards should be given more disciplinary authority, and the disciplinary process should be made more efficient. Presently, bureaucratic procedures slow the resolution of serious cases. Lawyers for physicians can fend off action for months or years, allowing dangerous physicians to remain "on the street." The boards should be given the authority to suspend a physician on an emergency basis pending formal hearings in cases where a doctor poses a potential danger to other patients. In addition, medical board disciplinary actions should not be stalled or delayed by litigation. In serious cases, they should take effect while a physician pursues lengthy appeals through the court system.

All formal disciplinary actions and all formal complaints, regardless of the outcome, should be considered public matters and the records of such cases should be made available promptly and easily (through a toll-free number, for example) to anyone who requests them.

Improve national coordination. The National Practitioner Data Bank (NPDB), taxpayer-funded and operated by the federal government, tracks doctor disciplinary actions, hospital revocation of physicians' privileges and malpractice claims paid by insurers throughout the country and makes the data available to state medical boards and hospitals. Other state and federal agencies should be required to coordinate with the NPDB. For example, the Drug Enforcement Administration should alert pharmacists and the public about which doctors' prescription licenses it has pulled or restricted. Moreover, criminal sanctions should be imposed for misuse of prescription drugs. Finally, consumers should have full access to the information contained in the NPDB.

Protect patient and whistle-blower confidentiality. To encourage patients and witnesses to come forward with evidence of malpractice, the identity of those who complain in good faith to the medical board should be kept confidential. Those who make such complaints should be given immunity from anti-free speech lawsuits brought by physicians to intimidate whistle-blowers and discourage such disclosures.

Force insurance companies to cooperate. Insurance companies should be required to forward all claims and settlement information involving malpractice claims against physicians, hospitals and other medical professionals to state licensing boards.

End Conflicts of Interest That Lead to Financial Malpractice. Physicians should not have a financial interest in hospitals, laboratories, diagnostic facilities and other health care institutions. Research studies have demonstrated that such conflicts of interest lead to unnecessary medical care, raising health care costs and, worse, exposing patients to unnecessary medical risks. Until the profit motive is removed from medical practice, physicians will continue to order unnecessary and expensive medical procedures.

[wtmusic]

1. Zero mention of tort reform

seems a little unrealistic. Spurious malpractice claims are a HUGE drain on the industry

[gratuitous]

3. No they're not

"Spurious" malpractice claims are thrown out of court at the level of a motion to dismiss for failure to state a claim or on a motion for summary judgment.

Or are you talking about the lawsuits where both sides present a full case, and the medical practitioners are found to have failed to meet their standard of care, maiming the patient or worse? Because in that case, I'd have to say that the claim isn't "spurious."

[wtmusic]

4. No actually

I was talking about the first ones, where insurance companies spend $10,000 just getting to that point, or give up and settle for something less than that. There are hundreds of thousands of those filed every year.

And don't forget about the ones where both sides present a full case, and the plaintiff loses. No malpractice, but the insurance company is out $100-200K (and seldom reimbursed by the plaintiff, who hasn't spent a dime).

[gratuitous]

5. The plaintiff hasn't spent a dime?

Boy, sign my firm up for those cases! In my 12 years with my present firm, we've brought two medical malpractice cases, and taken one over from another firm. We've looked at dozens of others, and turned them down. At a minimum for the three we've pursued, we've spent $75,000 on expert doctors and nurses, medical records, depositions, travel, and hundreds of hours of attorney and paralegal time. During this time, we of course can't take on other cases, and put other cases on hold.

For the ones we haven't taken, we still invest thousands of dollars on medical records, research and retainers for experts.

The plaintiff hasn't spent a dime! Nonsense.

[wtmusic]

6. Are you the plaintiff?

?

[gratuitous]

37. When our firm represents the plaintiff, yes

And ultimately, unless we decide to eat the costs, our client is responsible for the costs incurred on his or her behalf.

Do you have any idea what you're talking about at all?

[wtmusic]

43. Ha good one

"when our firm represents the plaintiff, we are the plaintiff'

I'd like to see a stat on how many 'plaintiffs' (look it up, if you have to) actually reimburse anyone.

Note to self: do not hire gratuitous next time I need a lawyer

[gratuitous]

52. Plaintiffs with the ability to pay, do

Unfortunately, when some licensed butcher has buried his mistake or sent it to the care center in a persistent vegetative state, it's highly unlikely that the attorney will be reimbursed for costs unless the attorney wins.

But back to your original point: The cost of lawsuits, frivolous or otherwise, as NMSA has pointed out, contributes less than 2% to the cost of insurance premiums. I can't imagine where the other 98% comes from . . . you don't suppose the insurance companies are ripping off the doctors, do you?

[NuttyFluffers]

13. inform yourself

Center for Justice & Democracy
http://www.centerjd.org/

a great place to start to find the other viewpoint. and this viewpoint has more facts and figures. and my favorite part, in its bowels it has a delicious compilation of @ 20 insurance companies managers stating that tort lawsuits are in no way a drain on their industry (being @ 2% or less of their costs of business).

happy reading! :D

[wtmusic]

15. thanks

and I will read it.

My knowledge is based on first hand experience. I have three MDs in my family and two have quit practice because of the frustration of frivolous malpractice lawsuits. They are conscientious, hard-working and talented. My sis graduated from Harvard Med School and was president of the Chicago Board of Health -- and she just threw in the towel. Not worth it.

She's very happy in her new job selling medical database software to state health departments, but the health profession got the short end of the stick when she left it.

[SomthingsGotaGive]

19. Just a question..

Did she throw in the towel because of the malpractice insurance costs, or because she was worried about being sued successfully in a frivolous lawsuit.

I think the cost of insurance is due to the industry oversight or lack there of.

Imagine what your house insurance would be if there were no building regulations.

The insurance companies might think the risks of insuring a doctor are pretty high based on the lack of accountability or repercussions for negligence.

But I'm no doctor or lawyer.

[wtmusic]

22. I think it was both

Her premiums were $36K a year, she was spending a lot of time in depositions, and she was stressed out of her mind. The fact that every lawsuit she was named in was thrown out is irrelevant.

I agree that there needs to be more insurance regulation. Absolutely the number one problem. The AMA has to take a stronger stand against bad doctors. But this increasingly pervasive idea that there is a textbook way to treat a guy who is rolled into ER at 2AM with three bullets in his abdomen minus 6 pints of blood is insane. You bust your ass to save someone's life and they turn around and sue you. Fuck them and the stretcher they were wheeled in on.

[SomthingsGotaGive]

24. thanks for the reply

I live in socialist Canuckistan and don't have the freedom to sue my doctor for big money.

The lawsuits seem to me to be a symptom rather than a cause.

[MadHound]

38. A small fact for you, from one who has doctors, lawyers,

And insurance agents in my circle of family and friends.

First off, the number of malpractice suits is declining, and has been declining for the past ten years. Also, the amounts rewarded in malpractice suits have been going down.

There are two reasons for the rates of malpractice insurance going up. The first is that insurance companies, who make the vast bulk of their money from investments, have been taking a bath in the market over the past few years. They are now recouping their losses by charging more in premiums, both for malpractice insurance and other forms of insurance. Second, the insurance industry has been paying out claims at an ever increasing rate ever since the early ninties. Natural disasters, hurricanes, tornadoes, flood, fire, earthquakes, all of these have been occuring at an increasing rate(global warming?), and doing more damage as population centers become larger and more congested. So once again, the insurance companies are recouping losses by jacking up premiums across the board.

It has gotten so bad that there are times, places and companies that are not even issuing policies. For example, in the spring of '03, central Missouri just got nailed by a series of tornadoes. Well, even though the official value of my house at the time hadn't increased, and in ten years I had never filed a claim, my house insurance rates went up ten percent. In the fall of '03 I bought a new house, and had a devil of a time finding an insurance company to issue a policy, even though I had good credit and a spotless claim record. The reason was due to the rash of tornadoes in the spring.

These are what is driving malpratice insurance rates through the roof, not frivolous lawsuits or monster awards. Yet the insurance companies, the AMA, and the politicians paid off by those two industrys' lobbies(by the by, the insurance industry and the AMA have two of the top five largest lobbying groups in Washington) have seized on these skyrocketing premiums as an excuse to tear down the legal system that protects us all from the excesses of the medical industry. Tort reform is simply an excuse to allow crappy doctors and crappy medical institutions to continue to operate in a shabby and substandard manner, free of the fear of lawsuit. This is something that the AMA has dreamed of for decades, and if things continue in this manner, it will soon come to fruitition, and thus cause irrepairable harm to us all.

[wtmusic]

45. Do you have some statistics

to back up the number of suits/awards declining?

It is a mistake to imply that the insurance industry and the AMA are in bed together. Physicians are being driven from the industry by the cost of their premiums; this is hardly a recipe for some kind of nefarious collaboration.

What is in fact causing irreparable harm to us all is driving the best and brightest from the industry; of taking up a doctor's time and energy defending frivolous lawsuits instead of taking care of their patients. I've seen it first hand.

[MadHound]

47. Here are some links

<http://www.citizen.org/pressroom/release.cfm?ID=1648>
<http://www.michaelkeller.com/news/news639.htm>
<http://www.makethemaccountable.com/myth/RisingCostOfMedicalMalpracticeInsurance.htm>

If you would do some in depth research, you'll find that most other honest analysis will back my claims up, ie that it is declining investment revenue driving up premiums, not malpractice suits.

And I'm not implying that the insurance industry and the AMA are "in bed together". What I am saying is that both have a vested interest in lowering the number or lawsuits and the amount of money paid out. Thus they ARE working in concert to bring about tort "reform".

And yes, I agree with you about the loss of the best and brightest from the medical field. However, it isn't the malpractice system that is forcing this to happen, it is the insurance industry's greed, and the willingness to balance their books on the backs of their customers through higher premiums that is bringing about this crisis.

[merh]

44. Were the lawsuits she was named in

the pharmeutical ones or regarding the prescriptions she wrote for drugs like FenFen or for the implants?

Did they involve her actions or inactions or did they involve some device that was faulty or medicine that was dangerous?

[wtmusic]

46. The only one I have details on

was a guy who fell down a flight of stairs at a hospital after being released. He wasn't her patient but she was the head of the department he was being treated in.

It was thrown out--but there is an immense amount of time and effort that is devoted to defending a case like that even up to that time.

She was an infectious diseases specialist got her residency at San Francisco General just when AIDS was discovered. She was involved in public planning for managing tuberculosis outbreaks, and she was very good at it. Pisses me off.

[merh]

50. Not to be rude or insensitive, but your sister took the

responsibility upon herself when she accepted the post as department head.

Not all lawsuits, medical or civil, are frivolous. Attorneys risk sanctions by the court is they file frivolous suits and too many frivolous suits filed by one attorney can result in sanctions by the bar (complaints filed against the attorney can result in suspension of license and fines).

Viewing all malpractice cases from the narrow, second hand perspective of your sister is wrong.

As the earlier poster referenced, the costs associated with litigating a claim on behalf of the plaintiff is extradionary, medical malpractice claims are some of the most expensive. Not only are there costs associated with review the claim to determine if it is legitimate and expert costs, finding doctors willing to testify against doctors is difficult and costly.

[wtmusic]

51. not insensitive

but I don't understand how you can say she's looking at it from a narrow viewpoint? She's looking at it from the viewpoint that she can't do her job effectively.

Does accepting a position of authority mean you should have to spend a significant part of your day defending frivolous lawsuits? If so, then something is wrong.

Usually malpractice attorneys take malpractice cases on a contingency basis, so the risk/reward ratio for the plaintiff is virtually insignificant.

[merh]

54. It is the defense attorneys that milk litigation files

and file pleadings and stretch out the proceedings because they get paid hourly. Also, they know plaintiff's attorneys are footing the bill of the litigation, so they try to break them and force them to give up on the case.

The recovery of the plaintiff is not insignificant. Just because the attorney gets paid (only if he wins) does not make the reward insignificant. No reward is insignificant. Not being allowed is insignificant. Some malpractice cases have had positive effects on the community, besides awaking the community to a physician that has messed up.

There was the case of the woman who went in to have a growth removed from her breast. She could have had it done as an out patient, but she trusted the doctors and said put me under anesthesia and do it in surgery. Well, the anesthesiologist mixed up the lines, at that time the couplings were interchangeable, so instead of giving her whatever ratio of gas she needed, he blasted her with the wrong gas and she died within minutes. She was a 40 year old mother of 2. Not only were the attorneys able to recover money for the husband and her kids, but the litigation resulted in the couplings for the gases being corrected. The couplings are no longer were interchangeable.

What about fenfen - do you know anyone on a waiting list for a heart because they were prescribed fenfen, even though reports suggested their were problems with it, I do. His heart muscles are shot!

Yes, your sister accepted the responsibility of all under her charge when she accepted the position of department head. That is the honest to god truth, that is how management works. If doctors would regulate and monitor their own, then maybe they wouldn't have such a problem with malpractice claims.

Here is you another one. Guy goes in the hospital to have some disease brain removed. Surgeon operates on the wrong man, removes his diseased brain. The other guy is sent home and dies. The 2nd guy now has brain damage too! Same doc is supposed to remove a growth from a woman's brain, makes the incision, whoops, wrong side of the head. Sews her up and the next day does it right. What is scary is that guy is till out there cutting and sewing. Don't you think doctors (AMA) should do something about guys like this?

[wtmusic]

55. Of course something should be done

I'm not saying malpractice doesn't exist, I'm not saying patients shouldn't be able to sue doctors. And I think there is a crisis of trust due to a large part by the AMA not getting aggressive with bad MDs.

I'm trying to show you the other side, which is: for every horror story you come up with there are thousands of excellent, dedicated doctors whose work is being compromised by out-of-control, unjustified legal maneuvering. Just because it doesn't make the front page doesn't mean it's not happening.

[Mayberry Machiavelli]

23. Even if you are NOT "sued successfully" in a frivolous lawsuit, if the

suit is brought, and dropped before trial with or without settlement, it is a huge drain of your time and emotions.

This happened to a good friend. Involved with an obstetric case. He was an anesthesiologist. The malpractice issues with the case were with obstetric decisions, not anesthetic ones. The patient had an obstetric catastrophe with major bleeding. When my friend first was notified about any of this and got involved the patient was in extremis. He tried heroically to resuscitate the patient but it was unsuccessful and patient and fetus died. No fault could be found with anything in the resuscitation attempts.

My friend was named, among many others in a lawsuit. The allegation, best as could be determined, was that he had "not called for a Caesarean section early enough". When there are obstetricians present and actively involved, as there were in this case, this is not the anesthesiologist's call. They were asking for a piddly amount for a catastrophic outcome like this (10's of thousands), a sure sign that the plaintiff lawyers are just "shaking the tree" to see if the doc will spook and settle to avoid the hassle of even a baseless suit like this. My friend said no effing way will I settle. He had to go through preliminary motions for trial such as giving a deposition etc.

Finally there was a settlement through the hospital for around a million dollars or so regarding other issues with the care of this patient, and my friend was dropped from his suit a day later. The whole thing dragged out over several months and caused my friend a great deal of anguish.

If the losers, or people dropping a suit, would have to cover the legal costs of the winners, then a suit like this, which the plaintiff lawyers HAD to know had only a tiny chance of convincing a jury my friend was in any way at fault, would not be brought because the odds would be 90 plus percent that they would have to pay that expense.

But there is no penalty for bringing and dropping such a frivolous suit. It is blood sport for the plaintiff attorney, in this case. And even though it is dropped, my friend henceforth has to say in any licensing/credentialling activity that he has been sued and provide a lengthy explanation as to why and what happened.

I worry a lot more about getting frivolously named in a "net cast wide" situation like this when anyone with insurance or money who has touched the patient gets sued, than getting sued for a huge amount for some major injury I might have caused someone myself.

[dpibel]

35. I must be missing something

As a first matter, if the blood-sporting plaintiff's attorneys are "are just 'shaking the tree' to see if the doc will spook and settle," they are patent idiots. You really think the doc is calling the shots? Next time one of your friends gets named in a clearly frivolous lawsuit, have him dial up defense counsel and say, "I'm not up for the hassle. Let's settle." See how far that goes.

As for naming everybody who touched the case in a complaint, there's this problem in many states that the tort reformers have managed to do away with joint and several liability. This leads to a different kind of blood sport, and it's not on the plaintiff's side. If there's no joint and several liability, and the plaintiff fails to name someone who touched the case, it suddenly becomes the task of all the named defendants to prove that the omitted defendant was responsible for all the damage.

I'm finding it a little difficult to see your example as a clear-cut instance of frivolity anyway. If the hospital settled for a million, there was damned sure some malpractice involved. It's far more likely that your friend was a named defendant due to the sort of nicety introduced, not by rapacious plaintiff's attorneys, but by the insurance and medical industries. Why would someone try to shake $20K out of the tree when the case is worth a million?

No sane person likes a lawsuit. Your friend didn't like getting deposed. Do you think the plaintiffs did? Some of the most elegantly cruel depositions are taken by defense counsel. Your friend had to suffer the anguish of having his deposition taken. The husband of the dead woman had the same anguish. Oh. He also had the anguish of having his wife die unnecessarily. Who am I really supposed to feel sorriest for?

The eternal call for a "loser pays" system is a siren call designed to do nothing less than make lawsuits the province of the wealthy. When people bewail the anomalous result in favor of a plaintiff -- about which we hear endlessly -- they never seem to think that anomalous results happen both ways. Are we somehow to believe that the mesmerizing of juries happens only by plaintiff's attorneys? Do you really think that insurance defense lawyers are such chumps? The reason it never occurs to people that perfectly valid claims sometimes lose in court is because when it happens, it's just not news. But it does happen, and probably just as frequently as it happens the other way. It's just that losing plaintiffs with valid claims somehow don't have the same pull with the media and lawmakers that insurance companies do. But the bottom line is this: real people don't have the money to pay if they lose. Insurance companies do. If you institute a loser pays system, you've just closed the courthouse door for real people. If there's a chance of losing even the most meritorious claim (and you may rest assured there is), then no real person (other than a wealthy one) can afford to roll the dice.

As many people have stated, no doubt better than I, the myth of the rampant frivolous suit is just that, especially when it comes to medical malpractice. Med mal cases are the most expensive, most brutal cases that exist. Anyone fool enough to try to make a living bringing frivolous med mal cases is a masochist, and, within a very short time, a broke masochist.

Here's a fact: There are no rollover med mal cases. Insurance defense attorneys are paid by the hour, and the med mal ones are paid big bucks per hour. Insurance companies hate to pay claims, and they don't settle for defense costs. Frivolous claims are losers, start to finish.

[Mayberry Machiavelli]

36. You ARE missing something.

Since the facts of the case are not fully presented, you will simply have to take my word for it that the problematic issues in the case had nothing to do with anesthesia. My friend was simply named in the case because he was an insured party who had cared for the patient.

As soon as the plaintiff family had gotten a wad of money from the hospital they dropped my friends case.

The fact of the injury/deaths has no bearing on the lack of merit of the suit brought against my friend.

It would be just as wrong if I was jointly taking care of a patient with another specialist, and I caused the patient an injury strictly due to some error or complication of my own, and the other specialist who had done nothing, got named in a suit as well as me because he happened to be taking care of that patient as well. Some very flimsy construct can be put together to justify bringing a suit that all parties know has very little chance of winning in court but it is just an effort to buffalo the doc's insurance company to not go through the costs of going to court even if they know they will win.

Note that I am not saying that patients are not injured through malpractice and there are not deserving cases. I'm just pointing out that many suits with little merit are brought. I have personal knowledge of some. I'm not blaming all of the US health care system problems on malpractice at all.

[Tsiyu]

31. Welcome to DU Sumthin's Gotta Give

"Imagine what your house insurance would be if there were no building regulations."

Nail was just hit on head.

[rumguy]

16. any true 'junk' lawsuit is tossed out of court

and the plaintiff and counsel bringing the junk lawsuit would have to pay the defendant's legal fees

[Mayberry Machiavelli]

25. The plaintiff lawyers are NOT required to cover the expenses of the

defendant in "junk" lawsuits lost or thrown out, to the best of my knowledge. To require this, as it exists in France and some other countries, would be one of the most important reforms we could introduce.

I would be much more interested in something like this than limiting plaintiff awards.

[rumguy]

26. There's Rule 11 in the federal rules of civil procedure - and all states

have similiar provisions...

"(b) Representations to Court.

By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,--

(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;

(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;

(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

(c) Sanctions.

If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation.

(1) How Initiated.

(A) By Motion. A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b).  It shall be served as provided in Rule 5, but shall not be filed with or presented to the court unless, within 21 days after service of the motion (or such other period as the court may prescribe), the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.  If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney's fees incurred in presenting or opposing the motion.  Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees.

(B) On Court's Initiative. On its own initiative, the court may enter an order describing the specific conduct that appears to violate subdivision (b) and directing an attorney, law firm, or party to show cause why it has not violated subdivision (b) with respect thereto.

(2) Nature of Sanction; Limitations. A sanction imposed for violation of this rule shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated.  Subject to the limitations in subparagraphs (A) and (B), the sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorneys' fees and other expenses incurred as a direct result of the violation.

(A) Monetary sanctions may not be awarded against a represented party for a violation of subdivision (b)(2).

(B) Monetary sanctions may not be awarded on the court's initiative unless the court issues its order to show cause before a voluntary dismissal or settlement of the claims made by or against the party which is, or whose attorneys are, to be sanctioned.

(3) Order. When imposing sanctions, the court shall describe the conduct determined to constitute a violation of this rule and explain the basis for the sanction imposed."

http://www.law.cornell.edu/rules/frcp/Rule11.htm

[Mayberry Machiavelli]

28. We may be playing a semantics game here. What is defined in your

post as "frivolous" or without evidence is a standard of "frivolity" that many malpractice suits that I would consider without reasonable merit but just meant to cow skittish docs and insurance companies into the occasional settlement probably do not meet such a standard. But my understanding from the malpractice related lectures and such that I've gone to is that the U.S. system does not require plaintiffs to cover the costs of the defendant in lost or dropped suits, compared to some European countries. I have not been sued and am not an expert in this area though. It may be that these statutes exist but as a practical matter the standards of what is considered necessary to demand compensation from a plaintiff is past what many of these crappy suits can meet. Do you know of any concrete examples of plaintiffs paying the defendant cost in malpractice actions?

[rumguy]

30. I know that it happens

I know of cases (not med mal) but other lawsuits where attorney's fees had to be payed per Rule 11 ("if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorneys' fees and other expenses incurred as a direct result of the violation.")

A blatantly junk med mal lawsuit would be subject to Rule 11.

However, I imagine that due to conflicting science, etc. there is probably a large 'grey area' in regards to what is frivilous and what is not.


:shrug:

[nothingshocksmeanymore]

39. First off the insurance industry nixed "loser pays" initiatives because

more often than not they are the losers (malpractice being probably the exception)

Second, an attorney HAD to file against every doctor and ancillary service involved in a case because if they don't it might very well constitute LEGAL MALPRACTICE if the other service is at fault.

Finally, when cases are dismissed, they are either dismissed WIHTOUT prejudice and the plaintiff "held harmless" for costs or WITH prejudice and the plaintiff is not held harmelss. This is true whether a settlement is negotiated prior to dismissal or not..and if a settlement is negotiated then those terms are stipulated by the defense attorney ( meaning they think it is in the carrier's not docs, interest to settle) If they are NOT held harmless, the carrier and or doctor CAN sue for malicious prosecution. There is ALWAYS a legal remedy.

[nothingshocksmeanymore]

17. There's 8 times more malpractice actually committed than claims filed

This article cites studies and confirms:

"In Pennsylvania and West Virginia, for example, two of 19 states designated by the AMA as being in a "full-blown liability crisis," the number of doctors per capita has actually increased in the past six years, according to the GAO.

Fewer malpractice claims not more:

"A study released last week about Maryland, where medical groups have warned about a "crisis" caused by rising malpractice premiums, reached similar conclusions. Researchers from Public Citizen Health Research Group analyzed government data and found that the number of malpractice claims filed per physician declined significantly between 1996 and 2002, as did the amount paid by insurers to cover claims. And while some groups have warned about an "exodus" of physicians, the number of doctors in the state actually increased between 1996 and 2002, according to the advocacy group."


No explosion of cases filed and it is NOWHERE NEAR HUNDREDS OF THOUSANDS:

"Hunter, an actuary, said that he oversaw the production of a study last year for a coalition of 100 consumer groups that tracked 30 years of malpractice payments and insurance premiums. The report concluded that there has been no malpractice "explosion" during the past three decades and that payments have been "extremely stable" since the mid-1980s."

Skyrocketing premiums are tied to their stock market losses :

That conclusion is similar to one reached by the GAO in a report released last June. Among the causes of the latest round of malpractice premium increases, the congressional investigators found, were insurers' losses in their investment portfolios, inadequate reserves to pay claims and artificially low rates set during the 1990s when many companies vied to attract policyholders.

Among states and specialties, insurance rates paid by doctors vary tremendously. The GAO found that a large insurance company in Minnesota charged a statewide base rate of $3,803 for an internist and $17,431 for an obstetrician-gynecologist in 2002, an increase of about 2 percent over its 1999 rates. By contrast, a large Florida insurer charged an internist in Dade County a premium of $56,153 and an obstetrician $201,376, increases of 98 percent and 43 percent, respectively, over 1999 rates.

More innocent people are harmed by bad medicine than innocent doctors harmed by bad lawsuits:

"What's often lost in this discussion is that there is much more malpractice than there are malpractice suits," Napoli noted. A 1991 study by Harvard University researchers, still regarded as the most influential of its kind, found that acts of medical negligence are eight to 10 times more common than malpractice lawsuits.•

http://www.washingtonpost.com/ac2/wp-dyn/A15752-2003Sep15?language=printer

[Tsiyu]

33. Insurance is a huge expense for many

Try to run a daycare center, a go-cart track, a horse stable, a tower-rigging business. everyone's premiums are skyrocketing, not just doctors'.

And the problems in hospitals are related to cost-cutting ( profit-increasing) measures such as reduced staff, reduced levels of care, shorter hospital stays.

When some idiot like Valentine gets on the air and claims, "But you can't be turned away by law from a hospital ER if you require treatment," he is tacitly urging us to have socialized medicine. Because that poor, uninsured person who takes Valentine's advice and uses an ER for his primary medical care is one more non payer who will take up a bed and time that should be devoted to trauma or acute cases. If he comes in for an asthma attack that could be better treated at home with a nebulizer, he costs the system big time, and who pays his way?

[Kanary]

34. Small business owners with any intelligence are big supporters: Universal

health care.

Especially those doing business outside the US -- they know the only way they can be competitive with business in other countries is with Universal Single Payer Health Care.

It's waaay past time for us to stop playing around with trying to rearrange the deck chairs, and just do what should have been done many years ago. Get rid of the damned insurance companies sucking the populace dry, and institute real Universal Health Care!

It's really a no-brainer.

Kanary

[RapidCreek]

49. Really? How many insurance companies have gone broke

covering malpractice claims? Since you made an as yet spurious statement...please supply some facts to back it up.

RC

[eridani]

2. And universal health care, too

One reason why people in other developed countries aren't sueing each other all the time is that health care is a right. Many lawsuits are motivated by the recovery of future medical costs, and if those are already covered, a major motivation for suits is eliminated.

[Kanary]

20. I don't understand the reason for putting any energy into insurance

at all. Why spend so much time and $$$ trying to "reform" a rotten system? Just get rid of all the middlemen, and enjoy Universal Health Care like other -- SANE -- countries do.

Why do we always have to go at it the hard way???

Kanary

[eridani]

32. My point exactly

When MM's new movie is out, maybe we can push Kerry into doing it right.

[blm]

7. Bump

.

[napi21]

8. There's one BIG problem that wasn't mentioned at all!

The AMA should enforce rules and yank the license of any doctor who is in violation or has been successfully sued for malpractice. They are supposed to be the governing oversight group of the medical community, but just how many times have they yanked a license of an unethical Dr.?

The ABA disbars unethical lawyers.

The AMA needs to be more responsible in their oversight!!!

[SharonAnn]

9. Yes, any doctor or nurse can tell you which doctors to avoid.

So if they know who they are, why do they keep it a secret?

I've know of doctors who sexually molested patients, other doctors knew it, but they didn't report it.

[napi21]

10. I guess I can understand other Drs not reporting. In law enforcement

they call it the blue line of secrecy. What can't accept is the AMA not doing their job! I really believe this is the biggest problem with malpractice insurance costs. Why the rest of the medical community doesn't fight for this is beyond me. It's costing them big time, and their reaction is to pass it on to the patients.

[hunter]

14. The AMA is not really a political power anymore...

The pharmaceutical industry bought them.

Being a member of the AMA is sort of like being a member of the Auto Club. You get free travel books and maps, and "limited" roadside service.

I may be exaggerating here, but just a little.

[nothingshocksmeanymore]

40. The AMA is a lobbying organization not a disciplinary org

The disciplinary orgs are the state medical quality assurance boards and they are overworked and underfunded. Also, the various BOARDS that docs are certified as specialists by require ongoing education but could afford to make themselves a bit more powerful especially when testing for cosmetic surgery specialization.

[hunter]

53. The Auto Club lobbies too...

Your clarification is good.

The AMA missed its chance to be a a union or "professional association" of doctors when it sold out and became a mouthpiece for the pharmeceutical and insurance industries.

That's my personal take on this by the way and not that of any of my family friends clients pets or other associates which is a legal disclaimer of sorts and maybe I can say these disclaimers really fast or write them really small blah blah blah like they do in all those prescription drug ads...blah blah blah some more... Or maybe not...

:evilgrin:

[lastliberalintexas]

48. Nope, I can't understand a doctor not reporting another

doctor out of some idiotic sense of brotherhood. As an attorney in Texas, I have an OBLIGATION to report attorney misconduct to the state bar. If I know of an attorney who's potentially committed misconduct and I don't report him/her, then *I* can actually be sanctioned in some manner by the bar.

The medical profession has done an awful job of policing itself, despite the fact that they have been given great latitude in regulating practicioners. A study showed that prior to the tort "reform" debate in our state last year, the state BME had not revoked the license of a single doctor in over 10 years. And the only doctors who had been disciplined in any manner were those who had committed such egregious misconduct that it was actually criminal in nature (ie, drug use/misuse, sexual assault of patients, etc.). This, despite the fact that studies also show that about 5% of medical providers account for 60-75% of the lawsuits. Do something about that 5% and heavily regulate the insurance industry, and you'll see that tort reform is almost meaningless.

As an attorney, I know which doctors to avoid. Surely the BME has even more information on the bad apples than I do.


And I'm actually very disappointed to see some of the posts on this thread. There is a great deal of misinformation in many of these posts, and many people here would do well to research this issue a little more rather than relying on anecdotal evidence as an analysis of the issues involved. The fact that X happened to your sister or friend doesn't mean that X is the norm.

Lawyers are not the enemy, any more than doctors are. Although each profession must be better at self-regulation (esp the doctors). The insurance industry is the enemy. If even some on our side of the aisle don't realize this, then we're in more trouble than I thought.

[Kanary]

21. Not reporting sexual misconduct should be instantly rewarded with loss of

license!!!

AFter all, these same drs are LEGALLY REQUIRED to report sexual abuse of patients by other people. Yet, they can protect other drs from these same charges?????

Why in the world do we stand for this kind of nonsense, and just shake our heads and walk away?

Why do we allow this level of violence in our society?

Kanary

[Mayberry Machiavelli]

27. The AMA is a lobby, not a governing body.

It is influential, but it is not like the Bar Association or something.

It does not have the power to enforce anything regarding practitioner's licenses etc.

This is all regulated through the state medical boards. There is no requirement for any doctor to be a member of the AMA. This is a major misconception that many if not most people in America have about the AMA.

[Cleita]

11. I think we need national health care like the other civilized

europeanized nations of the world. The only way this can be done is to take the profit out of the health insurance industry. Oh, I have ideas how it can be done but not in this post. Oh my son-in-law had an on the job injury and is now dealing with Worker's Compensation. He's not getting the care he needs.

[Eric J in MN]

12. Break up the big insurance companies. It's mergers which

have driven up prices.

[nothingshocksmeanymore]

41. Well ending antitrust exemptions would go a long way

[Eric J in MN]

42. If there is still concentration in the insurance industry, I'm

not sure how much repealing the anti-trust exemption would do.

It would be a start, but I wouldn't expect too much from it.

[hunter]

18. Thanks for posting this.

Generally insurance companies, especially health insurance companies, work to increase the stream of dollars they control. Rising health care costs are a good thing on their books because the insurance company takes a certain percentage of the stream as profits. This system is bad for patients, and bad for health care professionals.

[Kanary]

29. I've added this discussion to the list kept of health care issues:

http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=117&topic_id=3831

There's a lot of good information here for those who are wishing to gather documentation for health care issues.

Thanks to Lars for collecting all these threads! :hi:

Kanary

[nothingshocksmeanymore]

56. kick

[Bake]

57. Jesus! I'm a DEFENSE lawyer and I don't want a "loser pays" system

There ARE valid claims out there. If courts would enforce Rule 11, which exists in every state in the Union, this discussion would be moot.

The only frivolous lawsuit, by definition, is one that is filed against you (or a relative of yours).

The solution is NOT--I REPEAT NOT-- to lock the courthouse doors to people who have been legitimately wronged! As a defense lawyer, I can tell you that I can make it sooooooooooo expensive for a plaintiff to litigate that you WILL throw in the towel. I can keep you out of court for YEARS. And if you have to pay MY fees? At $200+ per hour? HAHAHAHAHAHAHAHA!!!!!!

But somebody who has a legitimate claim should not be barred from suing a negligent doctor. Many states have systems which require a complaint to be submitted to a medical review board BEFORE it ever goes to litigation -- if they say there is a legitimate claim, it goes forward, if not, tough shit.

Tort reform merely benefits the insurer. It won't make your doctor brother or sister's premium go down. It will just increase the insurance company CEO's bonus.

Bake