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The Colorado Springs Gazette fired off a well-aimed editorial regarding the recent move by a Senate Committee to increase the medical malpractice caps in that state. They write,
Politicians who feign support for affordable health care, while supporting Senate Bill 164, are either confused or they’re lying. Either way, they’re paying favor to trial lawyers — a loyal constituency — while selling out the cause of health care for all.
The three Democrats on the Senate’s five-member State, Veterans & Military Affairs Committee recently voted to move forward with Senate Bill 164, which would substantially increase the awards granted by judges and juries in malpractice suits. If the bill passes, doctors would be hit with increases in their malpractice insurance premiums. Senate President Peter Groff introduced the bill, and Sens. Abel Tapia, Chris Romer and Sue Windels voted it through committee.
They argue that, if the bill passes, it will mean a twelve to fourteen percent rise in the cost of premiums. These premiums already account for ten percent of the average phycisians overhead. And those premiums are simply for the same coverage these doctors now have. If the bill passes, each doctor will have to pay for more coverage simply to protect himself.
The math can’t be evaded. Raising caps will mean less access to more expensive health care.
This “story” about misdiagnosed heart attacks seems like a model demonstration of what is going wrong in the malpractice system. The basic factual basis for the story is that
Annually in the United States, approximately 7 million people go to hospital emergency rooms complaining of chest pain or other symptoms that indicate they might be having a heart attack. A missed heart attack diagnosis garners the highest malpractice payout among all medical malpractice cases and is the most common form of medical malpractice in our country.
Now there are two possible implications here:
- Doctors who check heart complaints are especially incompetent and need to be driven out of medicine or punished so that they will get motivated to do it right the next time.
- Heart problems are notoriously difficult for even trained experts to detect and predict so that there are many deaths that, if the doctors had the psychic ability of precognition, they might have been able to prevent.
Which sounds more probable?
This is important because the answer will dictate what you expect to result from the high number of medical malpractice lawsuits. Select one or more:
- The lawsuits will eventually taper off as doctors are motivated to do their job right, and the bad doctors are forced to stop practicing.
- Medical expenses will sky-rocket as a battery of expensive tests are used for every complaint in order to completely rule out heart problems.
- Doctors will seek administrative or other positions that keep them away from ever diagnosing anyone who might have had a heart attack.
Only one of these outcomes is good, and it is obviously completely unrealistic because it is based on an unrealistic premise.
This story about a pediatrician in Florida is really inspiring. It is also sobering because it reveals what is at stake in medical malpractice expenses.
Funds to serve patients without insurance — for free or for a fee of $10, $15 or $20 — come from One by One Leadership Foundation of Southwest Florida, a faith-based, nonprofit organization. The pediatric clinic receives at least $1,000 a month from them, Villarosa says.
Florida Community Bank, which has headquarters in Immokalee, has been paying his medical malpractice insurance premiums for the past two years. This year, he received more $12,000.
The board felt that they needed to support Villarosa, says Steve Price, chairman of the board and CEO of the bank.
“Dr. V is an outstanding pediatrician and Immokalee desperately needs him,” Price says. “He is not only a good doctor, but a man who has a good heart.”
Father Patrick O’Connor of Our Lady of Guadalupe Parish echoes Price’s sentiments, commending Villarosa for giving up what could have been a “very lucrative career” to serve the poor community.
“I think he’s a wonderful role model,” O’Connor says, adding that Villarosa is both a doctor of the body and of the spirit.
That fits with Villarosa’s personal mission: He serves God by treating children, he says. Villarosa, who was born in Virginia and raised in the Philippines, treats children with a mission to serve God (emphasis added).
That is a straightforward example of how medical malpractice costs affect a doctor’s ability to work. And they are affected by the threat of a lawsuit. Looking at the doctor’s practice, I doubt anyone is going to claim that he would be less careful with his patients if he didn’t have litigation to threaten him. No, he is already dedicated to his patients’ welfare.
The threat of litigation simply makes is more expensive for him to practice medicine. No one benefits from that.
I had never heard of Colorado’s medical malpractice situation before reading this editorial. Apparently, the state passed tort reform back in 1988. Up until then,
Physicians faced annual liability insurance increases of as much as 73 percent. Doctors had no choice but to avoid performing high-risk procedures. They also began retiring early, and some moved out of state. A University of Colorado survey of local OB-GYNs and family physicians at that time found that 20 percent had stopped delivering babies in the previous five years because of malpractice insurance costs, and 63 percent said further increases would cause them to drop all OB services. We were in crisis.
Weirdly, there is a move underway to get rid of the limits. The editorial summarizes what the consequences would be: 1) higher costs due to not only higher insurance premiums but also due to the practice of defensive medicine, 2) shortages of doctors willing to do anything that is risky even though patients need such doctors.
I’d be interested in seeing responses about this decision by the Supreme Court. It seems the Supreme Court has ruled that no one can fault the safety of medical equipment in a lawsuit if that equipment has been approved by Federal regulators.
Under federal law, a company must substantiate the safety and effectiveness of a medical device before the U.S. Food and Drug Administration will approve it for the marketplace.
State lawsuits are barred to the extent they would impose requirements that are different from federal requirements, said the ruling by Justice Antonin Scalia.
In dissent, Justice Ruth Bader Ginsburg said that Congress never intended “a radical curtailment of state common-law lawsuits seeking compensation for injuries caused by defectively designed or labeled medical devices.”
But Scalia, in response, said, “It is not our job to speculate upon congressional motives.”
Seven federal appeals courts including the one in Riegel’s case have interpreted federal law on medical devices as prohibiting state lawsuits. The 11th U.S. Circuit Court of Appeals in Atlanta and the Illinois Supreme Court have ruled otherwise.
Charles Riegel’s family alleged that the catheter produced by Medtronic Inc. of Fridley, Minn., outside Minneapolis had a design defect and an inadequate warning label.
On the one hand, it makes a lot of sense to me that, if a company has gained Federal approval, this could be seen as “due diligence.” Otherwise, no company could ever know if they had done enough. On the other hand, I could imagine an argument that court precedents have a role in determining what should count as due diligence. (Though I don’t see how jury awards could really do that; you would need judges writing decisions for that to work.)
If anyone has an opinion, feel free to comment.
Lawyers make a living by winning cases. This can be good and bad. One would hope that they would only take clients who had a legitimate grievance. However, in the medical malpractice field, one way to guarantee more wins is to spread the idea in the populace that malpractice by incompetent doctors is extremely common.
According to Dr Hot List estimates 35% of doctors are dangerous and giving medicine a bad name. This high percentage of dangerous docs on the national hotlist is bad for business for all parties. Its also alarming news for patients who should be wary of those doctors who lose privileges and are members of a new elite club called the National Practitioner Data Bank Hot Sheet.
Thirty-five percent is an insanely high and inaccurate figure. I find it ironic that the press release actually demonstrates that it represents a means of increasing medical malpractice errors:
many of these doctors who make the national hot list are burned out and need to retire. Most solo practitioners with privileges at multiple hospitals and heavy case loads are at the highest risk. Multiple divorce, complex personal drama and doctors who hide behind the excuse of so called addictions to mask their irresponsible behavior and negligence are also among the highest precentage of hot listed docs. Doctors who are not qualified to perform cosmetic surgery including doctors who have only taken a weekend course and then the following week they are performing controversial medical procedures such as laser vaginal rejuvenation, liposuction, tummy tucks, breast augmentation and other complex surgeries. Doctors that are experiencing extreme financial distress, involved in multiple lawsuits typically try to cut corners and because they have so many multiple fires burning down their ‘career forest’ they will inevitably pose an imminent danger to patients.
If this were all true, what do you think would be a principle source of this “burn out” and “financial distress”? How about a national blitz spreading paranoia about doctors encouraging them to expect the worst and to be ready to sue?
As far as the “hot list” is concerned,
The National Practitioner Data Bank Public Use Files contains information about doctors and other health care practitioners who have had medical malpractice suits filed or adverse action taken against them.
This doesn’t mean that these doctors are incompetent. It only tells us that people are willing to sue and that doctors are willing to settle. There is no justification for using this list as a means to badmouthing thirty-five percent of the medical profession.
That didn’t mean much to me as far as medical malpractice is concerned. But others were more creative than I was. This is a great post about Abraham Lincoln’s experiences defending doctors in medical malpractice cases. Apparently, the basic issues that we’re still dealing with were around well over a century ago. Here’s a sample:
In October of 1855, Keziah West sued Dr. Powers Ritchey in Hancock, Illinois, for medical malpractice. Dr. Ritchey had set Mrs. West’s wrist after a fracture and dislocation. Dr. Ritchey did not use surgical intervention but applied splints and bandages to the wrist. Unfortunately, Mrs. West’s wrist failed to heal to her satisfaction. Mrs. West claimed that her hand was both deformed and unusable. Her list of Dr. Ritchey’s deviations from the standard of care included: 1) failure to apply long enough splints; 2) failure to apply wide enough splints; and 3) failure to diagnose the wrist dislocations; and 4) failure to properly follow up with patient after treatment….
Lincoln found himself in the frustrating position of many appellate lawyers. Then as today, new evidence and objections cannot be raised on appeal. Dr. Ritchey’s attorneys at trial had failed to introduce key medical evidence. Only five years earlier, Dr. Frank H. Hamilton had published a study of 461 fractures. Dr. Hamilton’s study revealed only ten percent of wrist fractures treated healed with “perfect” unity. This evidence would have been tremendously beneficial to Dr. Ritchey, but it was never offered. Lincoln was frustrated. His client had a good defense, but he was blocked from bringing it out in the appellate brief because of defense counsel’s omissions at the trial court level. (Id. @ 90) Predictably, the Illinois Supreme Court rejected Lincoln’s efforts. Dr. Ritchey was found to have lacked “ordinary skill” in his care of Mrs. West. Dr. Ritchey was ordered to pay Mrs. West $983.35 for damages, costs, and court fees.
The entry covers much more about Lincoln’s career and makes a case that the President had some memories to draw upon when he spoke of the need to “bind up the Nation’s wounds.”
It is amazing to me that, in that day, people were so sure that serious broken bones should heal completely without any difference after the breakage. But some were, and were ready to blame the doctor for any disappointment to their expectations.
I notice that KevinMD blogged about the same arbitration story that I mentioned a couple of days ago. He wrote,
A malpractice trial is long and laborious, and at the end of it all, patients are often not appropriately compensated for medical errors.
Arbitration would be a more streamlined process, and allow patients to be compensated more quickly.
I can’t say with confidence that arbitration is the ultimate answer as opposed to tort reform or medical courts (and I Kevin isn’t either, as far as I can tell). There may be an even better solution. But arbitration does make a lot of sense (more sense than the story seems to allow for).
The reason it makes sense is that both doctors and patients have certain shared interests. For example, they both value their
TIME
Court cases take a long time, especially with the appeals process.
MONEY
Granted, in the court system some people might win huge amounts of money, large enough to make make an impact on medical care for everyone as prices rise and shortages expand. But many people don’t, and they have to pay an attorney a substantial percentage of what is won. Saving money in the arbitration process itself is a benefit for both parties.
This story seems rather negative.
Within the space of two weeks late last year, Michael and Hedy Cohen, who happen to be experts on medical errors, each encountered what they saw as a disturbing development in the modern doctor-patient relationship.
They were asked by two groups of suburban doctors to sign away their right to a jury trial in the interest of reducing malpractice costs.
Legal experts say such attempts to channel potentially unhappy patients away from the court system and into arbitration are becoming increasingly common in health care. Agreements to settle future disputes with binding arbitration, in which an appointed individual or small panel decides the case instead of a judge or jury, are now pervasive in contracts involving many other things we buy, including credit cards, cell phones and cars (source).
One of the more interesting claims in the news story is that the system “makes it harder to … build legal precedents.” I don’t understand this because I don’t think the jury trial does much to produce precedents either. If one wants precedents, then decisions need to be made by judges rather than juries.
Medical courts anyone?
If you haven’t seen it already, make sure you read Movin’ Meat’s Malpractice and John Ritter. He makes a really good case both that there was no negligence and that the accused would almost certainly lose anyway. Read the whole thing. To give you a taste, below is his conclusion:
Which begs the question — if there was not negligence, then why have nine other entities settled for a total cumulative settlement of $14 million?
Because juries are not qualified to make the determination as to whether there was negligence. They are laypersons with limited knowledge of medicine, diagnosis, or statistics. They are swayed by the pathos: the suffering of the widow and small children, the sadness of the loss of a beloved star, and the righteous anger of the family who believe the doctors killed their loved one:
“You can’t treat my kid’s dad for something and kill him in the process,” [Ritter's wife] said. “I think the money will show how angry the jury will be about what happened to John and what could happen to them.”
They will listen to grey-bearded professors contradict one another, flip a coin as to who was more credible, and issue a verdict. And the plaintiffs are swinging a big stick — a $67 million one. If you lose, you lose very big. Safer to settle for policy limits and walk away, rather than take that downside risk.
And the lay population wonders why doctors are cynical and mistrusting of the medical malpractice system.
One might add, “And the lay population wonders why it is getting harder to find doctors who still practice. “
