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The legislature in Austin, Texas, has been busy lately.
Texans for Lawsuit Reform, the state’s largest civil justice reform organization, released a press statement yesterday, declaring,
AUSTIN, Texas, May 29, 2007 (PRIME NEWSWIRE) — Texans for Lawsuit Reform commended state lawmakers for their continued commitment to ending lawsuit abuse in Texas. In a constructive session for lawsuit reform, lawmakers closed a dangerous loophole in state venue law and rejected dozens of proposals to roll back groundbreaking lawsuit reforms enacted over the past decade that have boosted our economy and helped to create hundreds of thousands of new jobs for Texans.
“Thanks to the commitment of Texas lawmakers in this session, our state remains a national leader in the fight against lawsuit abuse,” said TLR CEO and Chairman, Dick Weekley. “Legislators acted decisively to close a loophole in our venue law that was being exploited by a few lawyers to the detriment of the state’s economically critical maritime industry. The new law will keep our waterways open for business and our economy flourishing, to the benefit of all Texas workers and consumers.”
Weekley said TLR supporters from all over the state contacted their lawmakers during the legislative session to urge them to stand firm against lawsuit abuse and efforts by personal injury trial lawyers to reverse or weaken tort reforms. A broad coalition of business and professional groups committed to civil justice reform also worked together on a variety of issues during the session. [READ THE REST]
There are signs that tort reform is already having a great impact on medicine in Texas for the benefit of patients in that state.
According to basic economic theory, in order for people to get more affordable medical care they need to see an increase in the supply of that medical care so that competition drives the price down. This doesn’t necessarily have to happen at the expense of doctors, because, while everyone would love higher profits, they are not really profits if they are eaten up by out-of-control lawsuits. In fact, one might guess that doctors would trade higher profits with the fear and uncertainty involved in unpredictable litigation for a predictable income that means not having to live in fear.
That’s the theory. Thanks to the Medskool blog, I noticed that it looks as if we’re seeing it happen in reality. (The blog is written by a Texas med student, by the way, and he included audio in his post that inspired my title above. Go listen. Whatever you think of the Lone Star State, this plug is obligatory for a St. Louis-based company that supports the local economy.) The Medskool linked a TLR editorial that points out:
So many doctors are seeking licenses to practice in Texas that the board is facing a certification backlog. As Express-News business columnist David Hendricks recently detailed, the board processed 2,446 licenses in fiscal year 2001. In fiscal year 2006, the number jumped to 4,026.
More doctors who earn their medical degrees in Texas are choosing to stay here. And more doctors from other states are seeking to move here.
Why the change? Historic tort reform in 2003 that capped non-economic damages from malpractice lawsuits at $250,000. Five years ago, the legal climate and skyrocketing malpractice insurance rates made Texas an unattractive place for doctors to make a living. Those rates have dropped by nearly 30 percent since voters approved Proposition 12.
What we have here, then, is a laboratory for who benefits from tort reform. So far, the evidence looks really positive.
I don’t know much about Dr. Wurzbacher or her book on better doctor-patient communication, but I’m glad she pointed out this blog entry by medical malpractice attorney Jack Landskroner. He writes of potential clients who come to him due to a perceived problem in their own or a loved one’s care:
Many of these clients believe that just because a complication occurred that the doctor or hospital must have done something wrong and therefore there must be a viable medical malpractice lawsuit. In discussing the issue with the clients and counseling them on their rights, frequently it s determined that the real problem is not always medical malpractice, but a lack of good communication between the physician and the patient. Many times clients will say the doctor never told us what happened or fully discussed the problems or complications.
So Landskroner advises patients to go back to their health care providers to try to open up communication rather than going to a lawyer.
Patients should try and create an open dialogue with their physician and ask as many questions as you can. If you need to schedule a further meeting with the doctor try to do so. In this day of managed health care it is often difficult, but most doctors take their patients and their jobs seriously and will be open and honest and will do the right thing.
Even if these problems are mostly in the perceptions of patients, not the physicians, I suspect it would make a great deal of economic sense for doctors to proactively offer ways that patients can get better information about their situation. Why wait for patients to “try and create an open dialogue”? Why not provide means for such dialogue and actively encourage patients to use them?
I would love to know what doctors and other health care providers think of Landskroner’s advice.
Of course, in line with my earlier post about the “working environment” that is fostered by our litigious society, I’m also wondering if the medical malpractice lawsuit industry is not itself promoting these breakdowns in communication. It is easy to imagine why health care providers might become increasingly tight-lipped in today’s environment.
Personally, in my own family–though we’ve known plenty of happy homebirthers–we’ve preferred hospitals. I mention that upfront so that no one will think I’m trying to push any specific option for women. I’m just interested in what it reveals about the cost of liability–costs to patients as much as to doctors.
When Amy Cunningham blogged about Ricki Lake’s new documentary about childbirth, a mother and yoga instructor commented about it and Amy reblogged the comment. You can read it all at her post, but she mentioned something about medical liability which is should be of interest to us all:
In my state lay midwives are legal but must be “backed up” by a medical doctor. Of course, there isn’t a single medical doctor in my community willing to be a backup because of legal and liability issues (ie., they . . . risk malpractice lawsuits). Therefore most births technically are “illegal” and parents risk intervention at all different stages.
Of course, the blogosphere is not always accurate, but this makes a great deal of sense. It also makes me wonder if there has been a decline in providing free services due to the worsening state of medical liability.
It is one thing to volunteer to help and give away your time and expertise for free. It is completely different to volunteer not only to help and give away your time and expertise for free, but also to incur the burden of the possibility of a lawsuit.
Have you or anyone you know ever decided against volunteering due to the pressure of added medical liability?
No, but something even stranger seems to be taking place in North Carolina. Lawyers and Doctors are agreeing to tort reform. Obviously, this is unexpected. As one medical blogger asked, “Is hell freezing over in North Carolina?”
Apparently the dealmaker here was the desire on the part of both parties for litigants to enter binding arbitration. In that case, the cap on damages would be a million dollars. According to the news report, this only applies in cases of negligence, but it is still amazing that both the North Carolina Medical Society and the North Carolina Academy of Trial Lawyers support the Bill, which has already passed the N.C. House of Representatives by a “wide margin.”
“We’ve been walking on a circle on this issue for several years,” said Rep. Ray Rapp, D-Madison, a bill sponsor, said before the measure was approved by a vote of 110-3. “You can almost not talk about it because the passions are so strong.”
Lawmakers and both sides were hopeful that the current bill, finalized after weeks of negotiations and modeled on a Washington state law passed last year, will signal a new era of cooperation.
“I think everybody is cautiously optimistic,” said Chip Baggett, a medical society lobbyist. “This is just a small baby step … but it is a small baby step in the right direction.”
Under the bill, plaintiffs and defendants in a patient negligence lawsuit against a doctor or hospital could agree to settle their case under binding arbitration. The two sides could agree on an arbitrator or ask a court to select one.
The measure lays out how the arbitration would occur, with legislators seeking hearings to begin no later than 10 months after agreeing to enter the procedure. The arbitrator would have to issue a decision within two weeks of the hearing’s close, with all monetary damages limited to $1 million. Appeals would be very limited.
The bill now heads to the Senate. A final edition also would have to go to Gov. Mike Easley’s desk to become law (Read the whole story).
It will be interesting to see if this Bill passes and what the results will be for the residents of North Carolina, whether they are patients, doctors, or lawyers.
Here is the website for the North Carolina House of Representatives. I haven’t been able to find the text of the bill yet, but when I do I will post a link to it here.
I would love to know if readers are more skeptical or more hopeful when they read this news. Please feel free to comment.
Tennessee is one of the states we cover so this story caught my eye. (Actually, we are interested in what is going on in medmal in court cases and legislative bodies all over the country. You never know what state may end up leading the rest or what court case might end up setting a precedent.) According to the Insurance Journal:
A bipartisan effort by Tennessee lawmakers to limit frivolous medical malpractice lawsuits fell apart Wednesday and has likely stalled for this year.
The Senate unanimously passed a similar bill last month to require attorneys to have an independent medical expert evaluate the merits of a case before filing suit. It also would have given defendants 60 days notice before a lawsuit was filed.
But the consensus fell apart in the House after Rep. Rob Briley, D-Nashville, tried to attach an amendment that would have changed the rules for which medical experts can testify in malpractice trials. (Read The Rest).
What caught my eye though, was the spirited comment in response to the story that one reader left. He said in part.
The personal injury attorneys have again influenced their politician conterparts to block any effort to limit frivolous suits. Why? Because it affects their income. Instead, they let this drag-on while doctors and patients pay the price for ridiculously high medical expenses and Med Mal insurance. The standard for any tort claim against a medical professional should be “intentional acts or gross neglect”. Medical results are never 100% guaranteed. Sometimes the doctors do everything 100% properly, yet there is a bad outcome.
You can read the rest, but I’m going to take a wild guess and assert that he probably was not serious when he proposed that doctors boycott treating attorneys.
It does raise an issue to me, though: What sort of relationship does a medical malpractice attorney have with his surgical team when he is involved in a medical emergency? I’m sure that the staff would give him their same professional treatment that they show to everyone. But I also think that it could cause a tense and awkward situation–not one that would be helpful.
If you have any thoughts on the story, or comment, feel free to leave them. The comments section at Insurance Journal seems like it is still open as well.
Is court reform any real substitute for tort reform?
May 23, 2007 in Failed legislation, Oklahoma, comments, courts, reform ideas | by markhorne | Leave a comment
Having dabbled in the medmal blogosphere I have found a lot more material out there written by attorneys for potential litigants than I have for doctors and those concerned about insurance and other expenses. (I’ve also found a plethora of blogs that are simply robots that find online news stories and post links to them on the blog. That seems useless to me. We can all do the same thing through Google News.) This morning, however, I noticed a doctor who recommended an attorney’s blog entry about what goes on “behind the scenes” of a potential case. The attorney, Eric Turkewitz, a New York personal injury lawyer, summarizes fives steps that a potential case must survive:
It is an interesting post, thought I doubt many readers here will agree with his perspective.
What I thought was more interesting, which I might have missed except that a commenter on the Kevin, MD blog asked about it, was his last observation:
This makes a certain amount of sense. To the extent that you offer people an efficient tool to do a certain activity it is probably more likely that they will engage in that activity. The commenter writes,
I’m curious about this myself. Is there something that is being overlooked in this prediction? Would “health courts” involve a better and more stringent vetting system than what Turkewitz envisions? I’d like to hear what other people think.
ASIDE:
I also saw this morning a story about failed tort reform, that would almost be humorous if the issue was not serious.
My only point here is that, if a politician is breaking a promise that he has made by vetoing legislation that he requested, you know that there is a pretty powerful lobby on the other side of the issue.