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Earlier this month, I noted that the Oregon state supreme court overturned tort caps for state agencies. I may be wrong, and I’m open to arguments that I am, but it still seems to me that this decision made sense. Why shouldn’t all Oregonians have such protection? It would be good for everyone (lower medical costs and/or more doctors and hospitals). Why should state workers be treated differently?However, the consequences of the decision of the state’s supreme court provide great evidence for why madmal caps are a good idea. Overlawyered.com points out this AP report:
Oregon Health & Science University plans to cut at least 200 jobs and raise tuition by at least 10 percent to free the money needed for higher insurance costs following an Oregon Supreme Court ruling.
The December ruling cleared the way for the family of a brain-damaged child to pursue malpractice damages from the university. It effectively eliminated a liability cap of $200,000 designed to protect state agencies from major damage awards.
The cutbacks, expected to be announced Friday, were first reported by The Oregonian newspaper. Besides trimming jobs and hiking tuition, OHSU expects to restructure or close clinical, research and education programs, and scale back construction on Portland’s South Waterfront. (read the rest)
So there you have it: Cuts in doctors, slowdowns in new construction, higher prices. This is a picture of how much worse Oregon’s medical care must be as a result of unlimited medical malpractice liability. Imagine what would happen to the number of doctors and hospitals and the cost of medicine if the whole state had medical malpractice caps!
“A Venango County veterinarian who was cleared of malpractice charges has been awarded $10,000 for legal costs.” So reports the Times Leader News in their story, “State veterinarian board ordered to pay vet’s legal costs.” I realize that malpractice on animals is not the same as malpractice for people, but I still thought the principles would apply for both. But oddly, this isn’t really about treating an animal.
Nelson euthanized a Franklin woman’s ailing 17-year-old dog in September 2001. She claimed Nelson was unprofessional and told her she’d “rot in hell” for complaining to regulators.
Because this had nothing to do with “competence or professional aptitude,” the judge found this to be frivolous.I feel ambivalent about this victory because it was not a ruling against a plaintiff who was trying to win a ton of money, but against a professional group trying to police their own. I realize these groups can make mistakes. On the other hand, do we want to make the court system with plaintiffs pursuing monetary awards the only way we can deal with problems in a profession? Shouldn’t there be some other means of dealing with complaints.
This story is horrible. I notice the attorney used it to make a political point.
“This case underscores the injustice of a $250,000 cap in Texas on
non-economic damages for the most severely injured victims of medical
malpractice. The laws need to be changed so that other catastrophic victims
like Ron Springs can be fairly compensated,” Weisbrod said.
I’m not sure that the case underscores anything of the kind. Of course, if readers come away thinking that, if gross negligence in fact occurred, the family can win no more than a quarter million dollars. But that is not, as far as I can tell, true.
If negligence really occurred, then the family gets to win economic damages to provide for Springs’ medical care and for his family. If I am mistaken about that, please let me know. The 250 thousand dollars is above and beyond that amount. The only real problem, that I see, is that the lawyer gets a large cut of the money that is supposed to provide for the victims. The lawyer has to make a living, but one could wish the system worked differently so that the family was fully provided for.
So, how much is a just amount, above and beyond the damage done. How do you put a price tag on pain and suffering? A million dollars? A billion? The cost of this tragedy is infinite.
There simply is no amount that seems right. But we all know there are limits to what we can do about the losses we suffer in life. Huge payouts at some point stop personally hurting the doctor and the hospital and instead simply raise malpractice insurance costs so that health care is more expensive for everyone and cause doctors to leave either the practice, or find administrative positions, or move to a location where their rates are not as high.
What doesn’t happen very often is that these huge payouts deter actual gross negligence. The reason for this is that the higher the possible winning, the more every just case is drowned out by a multitude of frivolous cases. Doctors don’t learn to be careful; they learn to be paranoid. And the cost of healthcare skyrockets not only from insurance but from the cost of unnecessary tests and other procedures known as “defensive medicine.”
Remember, unlike judge rulings, juries have to give no explanation for their decisions. No precedent is set. Juries don’t have to follow the precedents of other juries or even explain themselves in reference to them. There is nothing to follow. This is not a system that allows predictability so that actors can make rational decisions that control their fate. It is a lottery.
Finally (again, under the assumption that the accusation of gross negligence is actually true), there are various ways to complain about a doctor’s conduct and weed out those who are not competent. These ways themselves may be too draconian at the moment (I’m not in a position to know), but at least in theory they can judge by standards and make statements that can function as guidelines. So raising everyone’s medical costs is not the only way to deal with negligent doctors.
All of the above statements are debatable. I’d be happy to hear other ideas and better information. But this is why I don’t think one case of what might be gross negligence proves the quarter million dollar “noneconomic damages” cap in Texas to be unjust. We need a better or at least a fuller argument.
What happened in this story is tragic beyond words whether or not there was gross negligence. If there was, I hope it will be remedied. But it isn’t clear how this awful tragedy demonstrates that Texas’ cap on noneconomic damages should be removed.
If you live in Oklahoma and practice medicine or would like to see your favorite doctor stay in the state, it looks like there is good news ahead. At least, it looks that way according to this story, “Coffee, Republicans will push for lawsuit reform.”
It seems that Oklahoma Senate Republicans are dedicated to pushing through caps and other changes that will make the state less dangerous for doctors and other businessmen.
A few things that seemed especially interesting in the article:
Coffee pointed to a survey from the Oklahoma Alliance of Physicians for Tort Reform showing lawsuit threats “caused nearly one-fifth of Oklahoma doctors to consider leaving the state, while 60 percent of doctors have stopped performing riskier procedures (like delivering babies). Lawsuits are also playing a role in the growing shortage of critical medical specialties here, such as obstetrics, especially in rural Oklahoma.”
Coffee supports pro-reform doctors, many of them Democrats, who say colleagues are relocating their practice to Texas, where the surge of requests for new medical licenses is so great that Lone Star bureaucrats are having trouble keeping up with the demand.
Finally, he observed, a State Chamber survey of Oklahoma businesses found that 87 percent of businesses believe our legal climate hurts job growth. And, 52 percent say they would consider moving their business out of state because of lawsuit threats.
I guess my main worry is, what sort of Supreme Court does the state have?
The medical quack wrote a short post that lays out the perverse dynamics that mean escalating malpractice claims and costs:
To recoup their loss, doctors treat more patients in less time. “More patients in less time” is a toxic recipe for substandard care. Some PPO doctors treat a remarkable 30 to 35 patients a day. In a letter to The New York Times, Dr. Michael Harel comments: “Practicing under price controls, as most physicians do today under Medicare and managed care, does not leave us much choice when malpractice insurance premiums rise. In order to balance the books, one has to increase one’s daily office visits by reducing the allotted time per patient, which sooner or later will negatively affect quality of care and result in more malpractice suits.” It’s astonishing there aren’t more lawsuits.
Like you, doctors don’t have much choice. A patient can use only doctors on the PPO provider list, and doctors can see only patients who subscribe to the same managed care organization the doctors contract with. In a climate where managed care organizations decide which doctors will be on the PPO provider lists, doctors can’t build and maintain a practice based on referrals. Their reputation is not their primary source of patients. Their primary source is managed care organizations, and in the same manner managed care organizations can funnel patients to doctors by signing them to PPO contracts, so too they can funnel patients away by declining to renew PPO contracts, and there is nothing the doctors can do about it.
Even outside of PPOs, we can see how medical malpractice rates have led to shortages in doctors. That would indicate that the remaining doctors must see more patients in less time. So we have three rules of healthcare:
- The more doctors struggle financially, the more likely they will be subject to medical malpractice lawsuits because they will be trying to work faster to see more patients.
- High medical malpractice rates can cause doctors to make more mistakes because they are trying to pay for insurance by seeing more patents in less time.
- In a situation where doctors are struggling financially, medical malpractice rates will make the situation worse and result in even more medical malpractice lawsuits.
This all looks inevitable to me. What do you think?
Kevin MD says that the story is about a frivolous lawsuit, the result of “our malpractice-mad society.” I’m tempted to disagree. I would be really angry and ready to seek out redress if someone forced this on me against my will:
NEW YORK (AP) — A construction worker claimed in a lawsuit that when he went to a hospital after being hit on the forehead by a falling wooden beam, emergency room staffers forcibly gave him a rectal examination.
Brian Persaud, 38, says in court papers that after he denied a request by NewYork-Presbyterian Hospital emergency room employees to examine his rectum, he was “assaulted, battered and falsely imprisoned.”
His lawyer, Gerrard M. Marrone, said he and Persaud later learned the exam was one way of determining whether he had suffered spinal damage in the accident.
Marrone said his client got eight stitches for a cut over his eyebrow.
Then, Marrone said, emergency room staffers insisted on examining his rectum and held him down while he begged, “Please don’t do that.” He said Persaud hit a doctor while flailing around and staffers gave him an injection, which knocked him out, and performed the rectal exam.
Persaud woke up handcuffed to a bed and with an oxygen tube down his throat, the lawyer said, and spent three days in a detention center. (more)
However, once I get over my, uh, gut response, I think this is a probably evidence for why we need to give doctors and hospitals more protection from medical malpractice lawsuits. All you have to do to ask this question: why was it so important to the ER staff to make sure he didn’t have a spinal injury. I haven’t yet found a story that says so explicitly, but I’m willing to bet that fear of a malpractice lawsuit had a great deal to do with it.
This is almost certainly an example of the problem of defensive medicine.
This college conservative is making a political point, but his statement also contains an important implied advice for doctors:
If one speaks to a doctor, he or she will tell you that one of the biggest costs of medicine is malpractice insurance. There must be restrictions on malpractice lawsuits so that only the must extreme cases receive settlements. There are risks with every procedure, and everyone should be aware of that. When I got a colonoscopy, I was told that there is a small chance that they puncture my colon. That was a risk I agreed to take. If it happens, I am not owed a cash settlement. I chose to take the risk; therefore, it is my responsibility.
But it is possible that doctors might be tempted not to really say too much about risks because they don’t want their patients to be scared. This article from Medical Economics, “Be careful what you promise,” points out the understandable tempation doctors face:
“This won’t hurt a bit.” We first heard that when we were very young and our pediatrician was about to give us a shot. Many of us have had a slight, but lingering, distrust of physicians ever since. Yet, it’s an example of how the natural inclination of doctors to comfort patients and relieve their anxiety might do medical professionals more harm than good.
It makes sense. Doctors don’t want patients to suffer anxiety for a lot of reasons both personal and professional. But anything that builds up unreasonable expectations is risky.
Keep in mind that only two things are required to generate a lawsuit. The first is a patient with unrealistic expectations and the second is a less-than-optimal outcome. Physicians can’t always prevent undesirable outcomes, even when they do everything right. However, they can do a great deal to create realistic expectations.
The article is well worth reading.
Pretty amazing analysis of what the horns of the dilemma are on which an emergency room physician is impaled:
If we don’t perform the CT scans and there is a fracture present, the radiology reports can be thrown in our faces as “proof” that we were negligent for not doing the scans. After all, if we ordered an x-ray to rule out a fracture, our suspicion for a fracture must have been “high,” right?
If we perform the CT scans and they are negative for fracture, non-clinicians publish studies that ED physicians are “unnecessarily” running up the cost of medical care and are causing cancer with all of the excess radiation.
Oh, and if we perform the CT scans and they are positive for a fracture, everyone asks the ED physician why he didn’t just order the CT scan in the first place.
The reason for the dilemma is that radiologist return reports that are masterpieces of ambiguity. Go to the Whitecoat Rants blog entry to see samples. It looks like everyone is playing a game of hot potato where each person is trying to make sure that the record shows that he or she is not the person responsible for making a risky decision.
And that’s the issue in a nutshell. Making a decision requires the willingness to either accept risk or spend an endless amount of money. And the price of accepting risk has become way too high. So the defensive medicine continues.
Medical Justice just released this statement about the shortage in Florida:
It is no secret that Florida is facing one of the worst physician shortages in the United States. With Florida regarded by many as one of the most attractive places to live in the country, why are its physicians fleeing in droves? It’s a lethal combination of factors: high malpractice premiums, and a crisis-level epidemic of frivolous malpractice lawsuits. The situation is bad enough to make many physicians flee for greener, albeit colder, pastures.
Last year, we reported a on a critical shortage of neurosurgeons in Palm Beach County that required hour long ambulance rides out of town for those seeking urgent and critical care. … Now, the St. Petersburg Times is reporting that a critical shortage of heart surgeons is imminent…
There is no link to the Florida story, but I was able to find it thanks to google’s news search. It begins:
Dr. Jack Brock still wears blue surgical scrubs each day, even though he no longer needs them.
That’s because Brock, once the respected director of cardiac surgery at Tampa General Hospital, no longer spends his days stitching arteries and removing lung tumors. Instead, he has joined an office practicing “anti-aging medicine,” where he’ll offer weight-loss plans and sell supplements.
Once, Brock saved lives at their most fragile.
“That’s what I … love doing,” he said. “But I can’t make a living doing it, to be honest with you.”
Across the country, doctors in Brock’s specialty, thoracic surgery, are leaving the field. Medicare payments for bypass surgeries have dropped 54 percent since 1989. The number of bypass surgeries performed has also dropped, replaced by less-invasive angioplasties and stents.
Brock, 55, said his take-home pay had fallen from $380,000 in the early 1980s to about $80,000. His malpractice insurance cost $70,000 a year, while he was being paid only $1,500 per bypass operation.
Brock says that he’s excited about his new work and that he ultimately may save more lives preventing heart disease than he did fixing the damage.
But many doctors in Tampa Bay see Brock’s defection in symbolic terms. Brock, after all, was supposed to be at the top of the medical heap. He was performing complex surgeries including heart transplants at a major trauma hospital. He even trained with Dr. Michael E. DeBakey, one of the world’s best-known heart surgeons. If Brock is bested by rising malpractice costs and shrinking payments, what hope is there for the rest of medicine?
The story includes anecdotes about doctors selling Amway or real estate on the side. Medical malpractice rates are not the only cause of the problem. But they certainly aren’t helping the situation in Florida.
Not many–at least not who actually practice medicine.
Although the state has plenty of doctors, it doesn’t have enough who actually see patients – a situation that creates “a silent and growing crisis,” the head of the state medical society said yesterday.
The shortages are greatest in rural areas “but are likely to affect most of us by the year 2015,” said Dr. Martin P. Wasserman, executive director of MedChi, the professional society for the state’s doctors.
MedChi and the Maryland Hospital Association released a study yesterday showing that the state has 179 doctors delivering care for every 100,000 residents. That is 16 percent below the national average of 212.
In this case, the story does not emphasize the role of madical malpractice costs in the shortage. But it does point out that there is a group addressing the shortage by recommending “lower caps on medical malpractice judgments to cut liability premiums.” The study claims that 40 percent are involved “in teaching, research and administrative duties,” rather than patient care.
