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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.

The eye of the beholder

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.

Tort reform repays in dividends

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

Politicians might become more favorable to tort reform if this becomes a trend

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…

The peril of medical blogging?

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.

Some reform in the Volunteer State

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.