Good news from Pennsylvania
Pennsylvania Malpractice Cases Decline Further
The number of medical malpractice lawsuits in Pennsylvania declined again in 2007, according to statistics released today.
There were 1,617 medical malpractice lawsuits filed in 2007, according to the state Supreme Court. That’s down from 1,693 in 2006 and 2,903 in 2002, the year before legal changes intended to prevent frivolous lawsuits took effect.
The legal changes require lawyers filing malpractice cases to obtain a certificate of merit from a medical professional, saying the medical care that prompted the lawsuits was outside acceptable standards.
They also put an end to “venue shopping,” a practice by which lawyers who file malpractice cases would try to put them in front of juries in Philadelphia, where jurors are known for ruling against doctors and hospitals.
In 2007, 153 medical malpractice cases were heard by juries, which ruled in favor of the health care provider about 83 percent of the time, the court said.
In a news release, Chief Justice Ronald Castille said the data show the decline in medical malpractice cases is not temporary and that they reflect a sustained response to the 2003 changes. [read the rest]
Pretty cool. You can find other versions of the story here and here. The interpretation of the injuryboard.com blog was kind of interesting:
Medical Malpractice Cases Decline — No Need for “Tort Reform”
Those who favor restricting the rights of those harmed by careless doctors have one less weapon to use in their PR campaign. The latest figures just released by the Pennsylvania Supreme Court show that the number of medical malpractice cases have been declining over the past three years. Those who feel doctors should be held personal responsible for the harms they cause are vindicated by these findings. Most of the PR from the doctors has not withstood the scrutiny of careful analysis. The solution is to weed from the profession those doctors who cause the most harm, not restrict the rights of those who have been harmed.
Kind of a strange mixture here. I’m pretty sure that before the 2003 reforms were put in place, that the “PR from the doctors” included the claim that many medical malpractice suits were not justified but were being pursued by lawyers who didn’t have to run the case by a real medical professional to look at the merits of the case. The “PR” probably also included the claim that “venue shopping” was allowing frivolous lawsuits. So I’m not sure Pennsylvania is exactly the PR win for the attorneys that it is portrayed as.
But if something other than monetary caps on damages is sufficient for reforming the medical system, time will tell. We have different states trying different things. Texas has caps and Pennsylvania has other reforms. It is possible that this diversity is a good thing and will give us the information we need.
What we want, after all, like the post says, is for incompetent doctors to be weeded out. What we don’t want is a system that views doctors as lottery tickets and thus imposes irrational fears and irrational costs upon them so that they have no way to predict what sort of behavior will be penalized. Otherwise, we’ll get costly defensive medicine and a shortage of good doctors–which in many cases is what is happening now.
Last summer, I pointed out reports of a shortage of mammogram readers. Reading the image one gets from such a machine is quite difficult. Since reading it wrong will often get a doctor sued, fewer and fewer doctors are specializing in reading them.
So I’m glad to see the Medinnovation blog post on The Limits of Digital Technology:
For radiologists, digitally-powered images have become the magic wand. There’s only one problem, of course. What images mean reside in the eyes of the beholder. Image subtleties must be interpreted. It’s a high art form, based on years on experience, a discerning eye, the quality of the image, comparison to past images, even the mood, time of day, number of images required to be interpreted, and in the case of mammography, the density of the breast tissue. [read the whole post]
The medical malpractice problem, of course, is that, even though “the technology is always ahead of the interpretation,” the expectations are always ahead of the technology. And expectations play a key role in jury decisions.
Here is a pretty interesting story from Illinois: Malpractice insurer to pay $11 million to health-care providers. Those who favored (and successfully lobbied for) tort reform, think this is evidence that the new system is working. Others are interpreting things differently:
Changes Illinois lawmakers made in 2005 to the state’s medical malpractice laws placed a $500,000 cap on non-economic damages paid by doctors when they are found liable in malpractice cases. Similarly, the law created a $1 million cap for hospitals. An injured patient’s economic damages — for medical care, lost wages and other costs — still are to be paid in full.
“There’s no magic or mystery about it,” Jensen said in announcing the dividends. “The reforms are working here, just as they’ve been proven effective in a host of other states.”
Advocates of the limits say they are needed to keep malpractice insurance rates affordable and to keep doctors and hospitals in business.
However, Bruce Kohen, president of the Illinois Trial Lawyers Association, which fought the caps, said the ISMIE dividends are a result of other parts of the malpractice insurance reforms.
The law also gave state regulators more authority to review malpractice insurance rates, a provision that was used to create the dividend requirement, Kohen said.
“While the Illinois State Medical Insurance Exchange seems to pat itself on the back for these dividend refunds, they mention nothing about the fact that they are doing it because the state Department of Insurance ordered them to do so,” Kohen said.
I’m not sure these two perspectives are really opposed to one another. Obviously, those favoring tort reform were fine with granting the Department of Insurance the power to order the payments. That too is just part of the state’s tort reform working.
Hat tip: Kevin MD
At least, that’s the first (and obviously cynical) thought that popped in my head when I read the headline, “Political Malpractice.”
This suit, by Angeleno Sandy Hubbard, sprang from a recommendation by none other than L.A. Planning Commission President Jane Ellison Usher, who recommended that someone challenge the policy in court.
It was, to be sure, unusual for a top city official to publicly acknowledge the futility of trying to appeal to elected officials’ sense of civic duty. But to her credit, Usher frankly advised residents to sue before this new building rule wrecks neighborhoods.
The so-called “density bonus” that the Los Angeles City Council adopted earlier this year – and which Mayor Antonio Villaraigosa has endorsed in spirit – allows developers to run roughshod over the few city planning restrictions that could protect the public from bad development.
I can understand the perceived need to go this route, and it might be the right option. However, I have to say something about the premise that starts the article.
ONE of the important checks to weed out incompetent doctors, and keep them from injuring or killing their patients, is the prospect of a legitimate malpractice lawsuit.
For that reason, it’s telling that the lawyer who filed a lawsuit on behalf of a Valley Village woman against the city of Los Angeles referred to the city’s density bonus as “political malpractice.”
And why not?
If malpractice lawsuits can help protect the public from harmful medical incompetence, why not a lawsuit that can protect the public from harmful political incompetence?
The point may stand since the word, “legitimate” is used in the lead sentence. But the truth is that the system can only work if it does indeed restrict lawsuits to the legitimate cases. Otherwise, if doctors see no rational connection between their behavior and being hurt or destroyed by the legal system, the malpractice system will not work like it is supposed to. Rather than weeding out incompetent doctors, it will weed out doctors who might have served high-risk patients. It will weed out doctors in areas of medicine that are riskier than others, and leave desperate patients without any chance at medical care. It will also provoke a host of preventative measures that drive up costs in a way that makes health care less affordable to everyone. And so on…
Since there is so much discussion about medical malpractice issues in the medical blogosphere, I think it is ironic that blogging itself can be a liability. I was reminded of this after finding that the Professional Liability company, ProAssurance, provides a newsletter for doctors. The issue out in the first quarter of 2008 has an article about this risk. It documents several stories in which blogging was a practice that came with a price for doctors. It’s conclusion seemed reasonable to me:
Obviously, there are both benefits and drawbacks to technology, especially new communication methods. Most physicians would think twice before discussing legal matters in public—but some feel differently when it comes to the web. Remember, anything said by e-mail (or in a blog) is out there in cyberspace forever. Additionally, pseudonyms don’t guarantee anonymity. In Dr. Lindeman’s blog, he referred to himself as “Flea;” even though he removed his blog from the web, it was copied into other blogs and websites prior to its removal.
Tennessee is getting some medical malpractice reform. On the positive side, it seems overwhelmingly popular (passed in the House 93 to 1). On the other hand, I don’t see any mention of monetary caps in the story, so it will be interesting to compare what happens in medical malpractice in the state to what is happening in a state like Texas which has imposed caps on pain-and-suffering damages.
The Tennessee reforms include:
- 60 days notice to the potential defendants prior to the filing of a lawsuit This is aimed at getting rid of the burden on those who are named by mistake and have to sacrifice time and money to correct the situation.
- An independent medical expert must review and decide on the merits of a case before the attorney files a lawsuit.
From the story, the main motive for the reform seems to be to give doctors relief from having to spend money on defense attorneys more than a concern about the size of monetary awards. Since doctors have to pay defense costs even when they win, trying to find ways to keep unnecessary cases from going to trial can save everyone time and money.
I thought this blog entry had a particularly compelling way of illustrating the problems of liability in today’s legal climate.
Take a look at any lawnmower you buy in the U.S.
What do you see on it?
Every one of them has a stupid sticker on it telling you not to put your hands and feet under that sucker while it’s running. Do we really need that? Is there really any benefit from that? Is anyone who is so stupid that they would put their hands and feet under a running mower, actually going to read such a label?
Of course not. That label is there for one reason and one reason only. It is there because the company making that lawnmower is scarred to death of being sued. I have no doubt in my mind that the genesis of this was some idiot losing a finger or toe at some point in the past and then suing a lawnmower company.
The writer goes on to talk about how the quick release lever for the bicycle fork and front wheel has also been rendered useless due to liability concerns.
It is easy to generate sympathy for unfettered liability since there are real victimizations that happen and such victims need to be protected by the courts. But that truth doesn’t change the fact that our legal culture is often not rational about liability. The evidence is all around us.
Even in lawnmowers and bicycle forks.
hat tip: KevinMD
Maybe the connection is defensive medicine or maybe there are something about the expectations that seem relevant to medical malpractice, or maybe I’m just being too imaginative. But this jumped out at me:
I explain exactly how this is a waste of an ambulance, especially as how the hospital is 800 yards away from the woman’s address. I suggest that a taxi would have been more appropriate. I could explain how people who are actually ill are now waiting for an ambulance while she gets a free ride to hospital. I could refuse to take her.
Then I get a complaint, then I get fired.
The writer, not being stupid, doesn’t do any of the things described above and so getst to keep his job. And he actually makes the defensive medicine connection explicit.
The problem is this, the people up in Control aren’t allowed to use the 3lb of grey squishy stuff nestled between their ears to determine how important a call is. They have to mindlessly follow a computer script, if they deviate from the script they’ll miss out on any chances for promotion.
While the computer script is useful it’s a real shame that our call-takers can’t use their common sense. It’s why we end up going to people who ‘aren’t breathing’, yet are able to make a 999 call.
And all because the computer system we use has never been sued.
I think the overarching medical malpractice point is that it demonstrates unrealistic expectations. Those expectations certainly could be affecting what sort of medical malpractice cases are allowed and how much damages are assessed for. In fact, I can’t help but suspect that one side effect of “defensive medicine” is that it confirms those unrealistic expectations and trains patients to go look for a lawyer whenever they are not met.
From an Attorney Personal Injury blog we get Nevada: How is that Medical Malpractice Cap Working?
Nevada, the bloggers point out, has put a $350,000 cap on compensation for pain and suffering. They think recent events show how wrong this is:
A hepatitis C outbreak linked to unsanitary syringe use at a Las Vegas clinic (Endoscopy Center of Southern Nevada) sickened six people and put 40,000 at risk has changed people’s thinking.
Dr. Dipak Desai is under investigation by county, state and federal agencies following the discovery of a hepatitis C outbreak linked to unsafe syringe use at his practice, Endoscopy Center of Southern Nevada. He’s accused of ordering nurses at the center to rely on the unsafe procedure of reusing syringes and single-use medication vials on multiple patients. As a result of the problems uncovered at the Endoscopy Center of Southern Nevada, state health officials are inspecting all of the state’s 50 surgical centers. So far, they’ve uncovered unsafe infection control practices at more than half a dozen other clinics across the state.
Reading thus far, I wasn’t sure what their point was. Do they think that anyone who would engage in such behavior would have been dissuaded by the prospect of more losses in court to offset pain and suffering? If the doctor is guilty of what he has been accused of doing, then I expect his behavior is simply impervious to threats of future losses. And if he is guilty it looks likely to me that criminal charges will radically end his lifestyle.
But the blog entry goes on to list the symptoms of Hepatitis C, an incurable disease, and ask, “Who wants to trade their long-term health for these daily medical problems for $350,000?” Too true. But what about the $350k plus all medical bills, including resulting complications, as well as compensation for lost revenue? Maybe the blog would still be persuasive to you regardless, but I find it interesting that nothing is said about other ways in which a jury can reward a plaintiff in this situation. No one would walk away with only $350,000. They would get a lot more.
Here is a report that a medical malpractice attorney is suing a “medical expert” because he changed his testimony after being confronted by more evidence than he had at first.
supposedly the expert committed (1) professional malpractice, (2) fraud, (3) negligent misrepresentation, (4) breach of fiduciary duty, (5) breach of contract, (6) breach of the implied covenant of good faith and fair dealing, and (7) negligent infliction of emotional distress.
Dr. Swerdlow, the expert witness in this case was bearing witness against a surgeon for allegedly not meeting the proper standards of care and thus causing a death. However, he had not read the surgeon’s own deposition. When he was challenged for this by the defense, he conceded he should have read it before making a judgment.
Swerdlow then did what he believed was eminently reasonable. He asked for the defendant’s side of the story; namely the surgeon’s deposition. He read it. Then he wrote an addendum addressed to all attorneys stating now that he had read the entire record, he did NOT believe the treatment rendered was below the standard of care.
As a result, the case was dismissed. So the plaintiff’s lawyer now believes he has the right to sue.
If he wins his lawsuit, it will pretty much be an official admission that expert witnesses are not really experts at anything except making the agenda of the lawyer who hired him look plausible to a jury. But the only reason these experts are plausible is to the extent that people belive them to be giving their honest opinion.
If an “expert” can be penalized for changing his mind when confronted with new evidence, then his testimony is worthless.
