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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.
I saw a couple of MedMal items from the neighboring states of Pennsylvania and New York. From Pennsylvania, here is a plea for tort reform that summarizes the benefits reaped by Texas as a result of such reform:
Since then, medical malpractice insurance rates have fallen 40 percent and many malpractice insurance companies that left the state have returned.
Today, there are 6,000 more doctors in Texas than there were in 2003 and Texas has added 195 OB-GYN physicians, 169 orthopedic surgeons, 554 anesthesiologists, 497 ER physicians, 110 neurologists and 36 neurosurgeons.
Current backlog for applications at the Texas Board of Medical Examiners exceeds 2,500. Clearly, doctors view Texas as an attractive place to practice.
The writer points out that, while Texas is gaining doctors, Pennsylvania is losing them. In fact, “Westmoreland County’s only orthopedic spine surgeon, Dr. Catino, is moving to Texas effective Jan. 1, 2008.”
So, that’s one response to what is admitted to be a medical malpractice disaster. Here’s another, noticed by the Point of Law blog:
Talk of a $50,000 -per-doctor surcharge has physicians in the state “petrified”, according to Robert Goldberg, president of the Medical Society of the State of New York. “A Brooklyn brain surgeon now pays $267,000 a year in malpractice insurance premiums and an obstetrician in Queens pays $180,490,” but now it turns out, per state insurance superintendent Eric Dinallo, that insurance rates have been “been artificially low for more than a decade”.
This is pretty amazing. I guess the superintendent has been keeping a list and thinks the doctors were naughty.
Not only will this raise the cost of medical care by forcing doctors to charge more, but it will also drive doctors away from NY to places like Texas. This will further raise the price. Alternatively, it will mean more shortages. Medicine will be priced right on paper, but in reality there will be no doctor available.
W can only hope the Grinch has a change of heart.
Houston Chronicle: Closer look irks doctors
One by one, angry, frustrated doctors from Houston to Laredo took the microphone at a legislative hearing in Austin, spilling woeful tales of overzealous oversight — grueling, expensive probes, witch hunts, railroading — allegedly committed by the state board that regulates them.
Texas physicians blast anonymous complaints
Angry Texas doctors told a legislative panel Tuesday that they are being harassed through anonymous complaints to state regulators.
They also complained that the agency following up on the complaints, the Texas Medical Board, conducts lengthy and sometimes unjust investigations that can cost innocent physicians thousands of dollars.
“Malicious anonymous complaints are filed against physicians, anonymous so-called experts are hired by the TMB to discredit them and secret proceedings are conducted without due legal process,” said Steven Hotze, a Houston physician. “The physicians are intimidated and forced to sign agreements under the threat of license revocation.”
I have no idea where the truth lies in these complaints about how medical malpractice accusations are handled. Figuring out what is the right level of intervention is always debatable. But this does show that Texan tort reform doesn’t mean that doctors are completely unaccountable.
Whether the system in place needs to be more or less draconian, one thing I wonder is if the decisions made by the Texas State Board of Medical Examiners are providing guidance for other Texas doctors as to what constitutes proper procedure. Do we have here the hope of setting objective precedents?
But while the system may need improvements one way or the other, it demonstrates it is possible to provide medmal consumer protection without irrationally high tort costs causing doctor shortages.
Hat tip: Kevin MD, Every Patient’s Advoctate
That’s the way Kevin MD put it:
Patients are benefiting, lawyers are seething and scheming…
The story presents an interesting case study in how lawyers are trying to roll back the law that caps medical malpractice damages:
Liebbe wants to interrogate four separate doctors he feels “may” be worth suing on behalf of his client, whose 78 year-old mother died of a heart attack while working in her garden. One of them should have given her a stress test, Liebbe argues.
Thankfully, tort reform prevents this kind of shotgun discovery, which forces doctors to be at the beck and call of any random lawyer who smells an opportunity, rather than that of the patients they’ve committed to serve.
This isn’t to say lawyers like Liebbe still cannot sue. He just needs to find a medical expert to first conclude that his reasoning sounds legitimate on its face before he puts a doctor through the lawsuit ringer. Is that really too much to ask?
Under little media scrutiny, the Texas Supreme Court is currently weighing Liebbe’s arguments. Here’s hoping they keep tort reform in place.
That’s a pretty amazing power lawyers have had and, I guess, want to get back in Texas. I’ve watched enough courtroom dramas to know that there is nothing worse than a judge agreeing with a defense attorney that a prosecutor wants “to go on a fishing expedition.” Yet, these same attorneys, who would balk at this sort of power in the hands of a D.A., think they should have it themselves.
I suspect that when most people think about medmal costs, they think of expensive verdicts. But this story reminds me that there is much more going on. Having to worry about hours taken away by a lawyer fishing for someone to blame would be a real deterrent to becoming a doctor.
Health Care BS pointed out (“Medical Malpractice Caps Work“) that the New York Times has, in at least one case, not published any. Instead, they published a story about Texas medmal situation after tort reform. While there is debate over how much of the new increase in doctor immigration into the state is due to the tort reform, there seems to be a (reluctant in some cases) consensus that it is at least in part responsible and that the increase is long-term, not simply a “spike.”
I couldn’t get the HCBS link to work, but I found the NY Times article through the google news search. Here it is: “More Doctors in Texas After Malpractice Caps.” I have read about Texas before but one detail I had somehow missed and/or forgotten was that the caps were put in place through a state constitutional amendment. I think that is important to understand the dramatic result: there is little or no fear that the law will be thrown out by a judge. Other states have implemented tort reform through the legislature. While the worsening of the situation has slowed down or stop, those states haven’t always seen the dramatic decrease in the medical malpractice insurance rates or some other obvious improvement. This is probably because people are still living in fear that the caps won’t be allowed to cap anything.
This just in: As I’m writing this I notice that the Wall Street Journal’s Health Blog just posted a piece, “After Texas Caps Malpractice, Doctors Move In.”
Mississippi has a testimony too! According to the story from WTOK-TV in Meridian, MS, Governor, Doctors Praise Tort Reform, up until 2003 when Tort reform was passed doctors were leaving the state. Since it passed they have begun to return: “Barbour announced the fifth decrease in medical liability rates in three years. Overall, that’s a 45 percent decrease.”
What amazes me though is the domino effect this has in the regional economy:
But tort reform hasn’t just benefited the state medically. It’s keeping jobs here in Mississippi. Tort reform means fewer lawsuits against business owners as well, whether it’s Toyota or a mom and pop operation.
“One lawsuit could put a small business out of business, and in fact, small businesses could go broke winning a lawsuit,” said the governor.
But Dr. Randy Easterling says more doctors means more medical professionals like pharmacists and nurses stay in Mississippi.
“Every physician represents 52 jobs in a community,” said Easterling. “So if you lose ten physicians, you lose 520 jobs. If you lost twenty, you’ve lost a Nissan plant.”
Now returning doctors mean the Nissans and Toyotas will stay and more like them will follow [READ THE REST].
Now they have more doctors, and hospitals report a much easier time recruiting doctors.
Hat Tip: Kevin MD
Since we have been tracking the goings-on in Texas for awhile on this blog, I have to let you know the latest:
The Texas Medical Liability Trust’s governing board voted to reduce rates for Texas policyholders and pay out a dividend once policies are renewed in 2008.
TMLT is the largest writer of medical malpractice insurance in Texas.
The board approved a 6.5 percent rate reduction on all medical specialities and classes, effective Jan. 1, 2008. In addition, all current TMLT policyholders renewing their policies in 2008 will receive a dividend equal to 22 percent of their expiring premium. This dividend is worth $35 million [READ THE REST].
This is the fifth consecutive year that rates have been lowered since medical malpractice Reform was instituted in Texas. Of course, insurance companies are vastly better off with many more clients rather than charging higher rates to a shrinking number of doctors. And, as we have reported, Texas is experiencing a rapid increase in doctors who want to be able to practice their craft without the fear of sudden, unpredictable, staggering losses that ruin them.
And this is better for all Texans who, as they suddenly have more medical options, will be able to choose the right doctor and find him or her vastly more affordable.
Hat tip to Kevin MD for the story. As a salute to the first blog entry that led us to the ongoing Texas story (if we can agree that imitation is flattery) here is a video for celebrating this five year record.
This newspaper article on the medmal situation in Texas is obviously written mainly from the standpoint of what is good for attorney’s (not the heading, “legal trade”). Since the whole point was to reduce the amount of legal trade going on, the law is naturally perceived as bad news.
Still, it is noteworthy that the story reports there are still medical malpractice cases being filed, just not as many as before. This should count as evidence, I think, that it is not impossible to go to court in the case of malpractice. Rather, it indicates (hopefully) that only those cases that are worth hearing should go to court.
Nevertheless, we should keep our eye on Texas and see what happens. But we should also be careful who tells us what is going on. Notice that one lawyer claims, “they didn’t just close the courthouse doors to frivolous cases, but to most all cases.” But the next paragraph says the number of suits is half what it was. That doesn’t sound like “almost all cases.”
The attitude for some seems to be that the sudden influx of new doctors to Texas represents a threat rather than a blessing. I’ve already put on my amateur economist hat on this issue. Again, the only thing we can do is wait and see if prices drop and people have more affordable medicine or if the quality of care deteriorates.
The story is well worth reading for its verson of the good and the bad. Hopefully, the benefits will continue–like reduced costs and the availability of certain specialties that had been driven entirely out of the state–while liabilities such as an underfunded state Medical Board will be addressed.
A new story appeared today backing up a post last month about Texas. According to the Austin American-Statesman,
Many parts of the state that have had doctor shortages are seeing new physicians arrive, Opelt said. Beaumont once had to fly some trauma patients to other cities for treatment because the city didn’t have enough trauma surgeons, Opelt said. Now, enough surgeons have moved to Beaumont to handle the caseload.
Jon Opelt is the executive director of Texas Alliance for Patient Access. He was interviewed for the story, “Doctors clamoring to come to Texas, creating backlog of applicants.” The reason for the “clamoring” is quite straigtforward, according to the article, “the state’s limits on malpractice lawsuits have generated a surge of doctors, including specialists, . . . which is helping bring more doctors to areas of the state that don’t have enough.” For example:
Dr. Kevin H. Brown, who started practicing obstetrics in Round Rock in May, applied for a Texas license the same day in September as his obstetrician wife and partner, Ingrid W. Brown. It took six months for his license to be approved; his wife is still waiting for hers because of a paperwork delay, he said.
Brown said that his wife was able to get a temporary license and that their practice is helping alleviate Round Rock’s shortage of obstetricians. . .
Brown said he and his wife paid $130,000 a year for both of them to have malpractice insurance in Georgia. Now, they pay a combined premium of $82,000 a year, he said.
“It was a $24,000 raise for each of us before we even got started,” Brown said.
Already, I see signs on the attorney side of the medmal blogosphere that people are insisting that we haven’t gathered hard evidence that proves the quality of medical care has increased for Texans. And there are dark hints that only low quality doctors would want to move to the state where liability is capped. But common sense tells you that an increase in the availability of medical care means more options for consumers. Furthermore, every doctor has to have medical malpractice insurance. There is no reason that quality doctors would not want that “raise before they even get started” that waits for them in Texas.
A few days ago I put my amateur free market economist hat on, and recommended that everyone listen to a Budweiser commercial. Following a tip from the medskool blog, I passed on news that Texas is dealing with a sudden influx of doctors and it was possible this was the result of tort reform.
In my view, this is just common sense. People will tend to gravitate toward work where it gets easier rather than harder. Living under the threat of lawsuits that you are convinced may be used against you even when you do a good job is a hard thing. Thus, doctors are, all things being equal, going to prefer being doctors in a place where they are protected from such lawsuits. I would confidently predict this was happening even if nothing had been reported.
But, we are not all comfortable with a priori economics. People want a lot of evidence before they agree to a general principle.
Well, here’s some evidence of the same economic forces working in the opposite direction. According to alternet, there are a growing number of vacancies in jobs requiring mammogram reading. Even though mammograms are lifesaving and there is a high demand for such readers it is still hard to find them. Not only are positions vacant, but also teaching fellowships are going unused. Finally, mammogram facilities are closing.
In short, radiologists are afraid of being sued, and there’s evidence that they have more reason to worry than providers in other areas of medicine.
Missed breast cancer is the most common basis for medical malpractice lawsuits in the United States, according to the Physician Insurers Association of America, a trade group of medical malpractice insurance carriers.
And it’s among the most expensive kind of malpractice cases. In a seven-year period ending in 2002, PIAA members spent almost $200 million on breast cancer malpractice cases. That was $30 million more than was spent during the previous six years.
But, experts say, the problem is not inept radiologists, although there are certainly some of those.
Instead, the problem is a misconception about the effectiveness of mammography.
The story goes on to explain how each woman is different and detecting anomalies is extremely tricky.
So, while in Texas tort reform means more doctors coming to serve Texans. In the mammography practice, high probabilities of an unavoidable lawsuit mean fewer doctors in that area.
