The Health Care Bill has passed...

[Kevin]

Originally Posted by AXiDTrish

1. Ambulance chasing lawyers and their frivolous, ridulous law suits!

As an 'ambulance chasing lawyer,' (yes I do personal injury, but not medical malpractice), I cannot actually recall even hearing about a so-called frivolous lawsuit anywhere but in the national media; and even then, I can't recall a story which was in my opinion actually frivolous other than the lawsuit filed by that former Administrative Law Judge in D.C. regarding his alleged lost pants.. (and his case was dismissed with prejudice, he was disbarred and a judgment was granted against him for attorneys fees).

Other than that, there is simply no basis for saying that if frivolous lawsuits do exist, that said lawsuits are actually a serious problem in the grand scheme of things.

And if you're really looking for the culprit in all of this, look at the doctors. Depending on the study you're looking at, medical errors account for between 98,000 and 195,000 deaths per year. And no one, not even the insurance companies which deny claims for malpractice and subsequently force and lose a lot of trials would tell you (unless they were telling lies) that the majority or even close to a significant number of lawsuits are frivolous.

[AOII Angel]

Originally Posted by Kevin

As an 'ambulance chasing lawyer,' (yes I do personal injury, but not medical malpractice), I cannot actually recall even hearing about a so-called frivolous lawsuit anywhere but in the national media; and even then, I can't recall a story which was in my opinion actually frivolous other than the lawsuit filed by that former Administrative Law Judge in D.C. regarding his alleged lost pants.. (and his case was dismissed with prejudice, he was disbarred and a judgment was granted against him for attorneys fees).

Other than that, there is simply no basis for saying that if frivolous lawsuits do exist, that said lawsuits are actually a serious problem in the grand scheme of things.

And if you're really looking for the culprit in all of this, look at the doctors. Depending on the study you're looking at, medical errors account for between 98,000 and 195,000 deaths per year. And no one, not even the insurance companies which deny claims for malpractice and subsequently force and lose a lot of trials would tell you (unless they were telling lies) that the majority or even close to a significant number of lawsuits are frivolous.

From personal experience, I can say that there are frivilous lawsuits. I think there are lawyers who do NOT cross their "T"s and dot their "I"s. Doctors aren't the only ones who make mistakes. Medical errors do occur because doctors are humans, nurses are humans, information is misinterpreted, but not all medical errors are malpractice. Unlike doctors, though, we can't sue lawyers for malpractice.

I was sued for malpractice for a case which did involve malpractice by another set of physicians. I was said to be incapable of performing cataract surgery, providing anesthesia and a whole host of medical procedures that I do NOT perform simply because my name was on a chart. It took two years and a lot of money to get my name removed from the lawsuit that should never have included my name in the first place. I can also name at least three other people at the same institution named in the same case who were also not involved in the inciting incident. Multiple other people have been named in cases inappropriately. You multiply this by every malpractice suit in the nation, and you can't convince me that this does not influence the cost of malpractice insurance which most definitely does increase the cost of health care.

Malpractice suits definitely have their place. I can think of a number of cases off the top of my head from residency that I could even testify for the patient. The case above had merit and settled for an undisclosed amount. I just wish all lawyers would practice due diligence before filing these cases.

That being said, lawsuits are NOT the problem with health care, but they do drive doctors to practice "cover your ass" medicine which has driven up the cost of health care significantly.

[kddani]

Originally Posted by AOII Angel

Unlike doctors, though, we can't sue lawyers for malpractice.
...
I just wish all lawyers would practice due diligence before filing these cases.

[disclaimer] Yes, I am an attorney, but I've handled only one med mal case in my life and that was defending a doctor sued by a prison inmate on what I would agree was a frivolous case (like quite a few prisoner cases)[/disclaimer]

Point 1- Attorneys are often sued for malpractice.

Point 2 - Lawyers should practice due diligence before filing the cases. For instance Pennsylvania has particular standards that must be met when filing a med mal case, which generally require that a Certificate of Merit be filed with the Complaint certifying a qualified expert has supplied a written statement that there exists a reasonable probability that the defendant's care fell outside acceptable professional standards and that such conduct was a cause of injury.

Also, sometimes lawyers simply cannot obtain the information that they need before filing a complaint against a party or parties. With some information, there is no way to get it from the defendants until the parties are engaged in litigation.

This is more directed at AXiDTrish, but I agree that there are frivolous lawsuits, however, if a judge or jury finds in favor of a Plaintiff and awards damages, then that lawsuit can hardly be said to be frivolous. And capping them is a huge issue - damages are on a case by case basis. If you ever lost a loved one or incurred a grave harm, wouldn't you be pissed that some random politician told you how much you could recover?

Also to AXiDTrish, what do debt collectors have anything to do with this discussion? Why don't doctors (or anyone else) have a right to collect money owed to them? If anything, the collection of debt HELPS the industry by increasing the percentage of fees recovered. I don't agree with illegal debt collection practices, but there are plenty of statutes in place (both on a federal and state level) that protect against that (and provide with some interesting penalties).

[AOII Angel]

[QUOTE=kddani;1878843]

Point 1- Attorneys are often sued for malpractice.

Yeah, but I can't sue an attorney for suing me frivilously, wasting my time and money when I had nothing to do with a case. Also, you have to get a lawyer to sue the other lawyer...I have a feeling that's kinda like getting a doctor to testify against another doctor!

In thhe case in question, they had enough information to know that I was the resident who had read the CT Brain on the patient after she had coded, but they did NOT sue the anesthesiologists or the ophthalmologists who were present when the patient coded and basically became brain dead. The whole case was ridiculous from the start. Every person listed on the complaint actually helped the patient after the incident and got slapped with the lawsuit for our trouble.

[Kevin]

Originally Posted by AOII Angel

Also, you have to get a lawyer to sue the other lawyer...

I won't do it, but I have a go-to lawyer to refer folks to when I see a legal malpractice claim. She does a pretty good job with those things. I suspect any lawyer probably knows someone who will handle a malpractice claim.. and since it can be malpractice not to advise your client that they might be the victim of malpractice, you better believe I'm making that referral if I think it's a good case. If that happens in a city like OKC's legal community (everyone pretty much knows everyone here), it damn sure happens in larger jurisdictions.

In thhe case in question, they had enough information to know that I was the resident who had read the CT Brain on the patient after she had coded, but they did NOT sue the anesthesiologists or the ophthalmologists who were present when the patient coded and basically became brain dead. The whole case was ridiculous from the start. Every person listed on the complaint actually helped the patient after the incident and got slapped with the lawsuit for our trouble.

Having the information does not mean that they had the time or expertise to properly evaluate that information, nor does it mean that they had all the information. There are just some things which can't be done until the case is at issue.

[AOII Angel]

Originally Posted by Kevin

True, errors are not malpractice unless you violate the applicable standard in your jurisdiction for malpractice. But malpractice does happen. The solution should involve targeting doctors who are repeat offenders for termination of their licenses, the prompt payment of claims which obviously involve malpractice, and a fair and just manner of scheduling compensation for victims so that the respective parties would at least have some sort of legal guidelines in settling claims.

From a lawyer's perspective, it is very difficult to properly evaluate a case before even getting to the first settlement demand. The client comes into your office, tells you her 'tale of woe,' and that's all you have to go on until you submit the case to an expert for evaluation. Often in the meantime, you'll have a deadline or a statute of limitations issue and have to file your case just to avoid that deadline (be it a winner or not, because contrary to your assertion, failure to do so could result in a malpractice case being brought against the attorney).

Compound that with the fact that in jurisdictions like Oklahoma, it costs the attorney (who usually foots the bill because sick/injured/dead people can't usually afford justice) a minimum of $5,000 for an expert's opinion just to file the case. Note that at least around here, we only have one malpractice insurer. That insurer will not insure any doctor who testifies or signs an affidavit against another doctor, so we either have to go out of state or go to a professional 'hired gun.' Getting a real, honest assessment of the case is damn near next to impossible.

As for something being 'frivolous,' while to you, it might appear to be frivolous, the attorney simply can't in all cases properly evaluate the case without first getting something filed and taking depositions and conducting discovery. He can't do that without shelling out some serious coin of his own to do so. So if you mean frivolous as in 'bad faith,' I'll bet that the number of those cases being filed is damn next to nil. But of course, just like with any other tort law, some losing cases will get filed. If the case does make it to trial, however, it cannot be said to be frivolous at all -- there are a lot of mechanisms preventing truly frivolous claims from making it to that stage and I'm convinced they work very well -- sometimes too well.

One of the conclusions of this 2006 study was that ". . .the number of meritorious claims that did not get paid was actually larger than the group of meritless claims that were paid." So who really should have more protections in the legal system? The folks who are killing and maiming through their negligence? Or the folks who are killed and maimed? Right now, clearly, the killers and maimers are better protected and are demanding more protection. I guess money talks.

http://www.hsph.harvard.edu/news/pre...s05102006.html



Oh, absolutely, I agree with you here. The administrative and litigation costs in settling malpractice claims are absurd. Unfortunately, both sides only favor outcomes which clearly stack the deck in their favor. For example, the insurance/physicians side wants to place hard caps on pain and suffering awards -- something which not only is morally objectionable in that it places a monetary value on human life, telling doctors and insurance companies when it's okay just to make a business decision and intentionally kill someone or maim them, it also disproportionately harms the most grievously injured patients by not affording them a proper level of compensation for their injuries.

Some things I'd possibly be in favor of (depending on the setup) would be accelerated discovery schedules, faster court dates, judges with medical expertise who are better equipped to wade through fact-intensive pretrial motions, etc. I had a friend of mine (a doctor) go through exactly the same thing. Didn't cost him a penny of course, just a lot of stress. That's why we have malpractice insurance. Turns out that the case (wasn't even that good a case) was filed by the attorney simply because the statute of limitations was about to expire and he had to get something filed to avoid malpractice on his own part. That stuff happens -- and when you have a client/victim who has twelve doctors on his charts, it's impossible, possibly even malpractice not to name every single one of them without knowing *precisely* what their involvement in the case was... and charts can be wrong.



I think in most cases, they do. In other cases, the client doesn't show up until the statute of limitations is looming and you have to get something filed to cover the bases. Still, in other cases, you really can't start to exclude innocent doctors from the case until you've had an opportunity to conduct discovery. Sometimes, due diligence doesn't happen until after the case gets filed because it simply cannot.

Originally Posted by Kevin

Having the information does not mean that they had the time or expertise to properly evaluate that information, nor does it mean that they had all the information. There are just some things which can't be done until the case is at issue.

I thank you for explaining why this happens. Now, why don't they fix this. Just like with medicine, saying that "It's always been that way." doesn't make it right. The malpractice insurance premiums have driven a lot of physicians out of practice in states like Mississippi and West Virginia. OB/GYN and Neurosurgery can be cost-prohibitory to practice.

Originally Posted by Kevin

I'm not sure that's a bad thing though. Docs wouldn't be doing that if the risk/reward calculus for practicing that sort of medicine didn't come out in their favor. They obviously must know that doing that means that they are operating at the standard of care and that it is more likely to save lives or prevent injuries to patients.

I have to disagree with you here. The use of radiology services has jumped astronomically in the past 5 years with CT imaging increasing more than 60% since I started residency. This has actually decreased physicians' ability to utilize physical diagnosis (hands-on examination) skills which are FREE in exchange for high cost CTs which have a very REAL risk of CANCER! If you look at my PACS system (radiology archival system) there are patients that come to my ER that have had abdominal CTs for abdominal pain every month for 10 months that have NEVER found a single abnormality. That is $30,000 worth of medical imaging to cover an ER doctors butt that has provided to patient with over 1,000 x-rays worth of radiation. Not a good idea. More expensive is not always better!

[Kevin]

Originally Posted by AOII Angel

I thank you for explaining why this happens. Now, why don't they fix this. Just like with medicine, saying that "It's always been that way." doesn't make it right. The malpractice insurance premiums have driven a lot of physicians out of practice in states like Mississippi and West Virginia. OB/GYN and Neurosurgery can be cost-prohibitory to practice.

Trouble is, the only folks really shilling methods of 'fixing things,' are just shilling means to enriching their respective constituencies, not actually fixing anything, and in many cases, making things worse.

Obviously, there must be disincentive built into the system to keep docs from performing open-heart-surgery while tripping on painkillers (it happens). And the 'driving folks out of business' argument just doesn't play well with me. They tried that argument recently in my state, but ignored the fact that while some practices did close, more practices opened in their place, meaning that there was a net-gain in the number of practices opening. It's pure speculation on my part, but I imagine that's the case in Mississippi and West Virginia as well. Unfortunately, the 'tort reform' side of the argument relies a lot on what can objectively be called misinformation or outright falsehood. They don't want an honest answer, they just want to increase their clients' (not doctors, but malpractice insurers) bottom line.

Case in point, take any of the states which have passed major medmal reform legislation, e.g., Texas. Their rates continued to climb in lock-step with the rest of the industry (but of course, the insurers ended up with a lot more cash than before).

Docs, I think, are too quick to blame the legal system for their malpractice insurance rates. They might instead look to the folks who they keep writing those big checks to (hint: not lawyers).

I have to disagree with you here. The use of radiology services has jumped astronomically in the past 5 years with CT imaging increasing more than 60% since I started residency. This has actually decreased physicians' ability to utilize physical diagnosis (hands-on examination) skills which are FREE in exchange for high cost CTs which have a very REAL risk of CANCER! If you look at my PACS system (radiology archival system) there are patients that come to my ER that have had abdominal CTs for abdominal pain every month for 10 months that have NEVER found a single abnormality. That is $30,000 worth of medical imaging to cover an ER doctors butt that has provided to patient with over 1,000 x-rays worth of radiation. Not a good idea. More expensive is not always better!

I think I must have heard a study confirming that on NPR recently. But I don't see any way around that short of some sort of medical tribunal actually putting out standards for that sort of care. While that, absent a statute, probably wouldn't bind a court, part of what goes into winning a medical malpractice case is proving by a preponderance of the evidence (or more depending on the state) that the physician violated the standard of care. If all physicians had some sort of guidelines as to what would and wouldn't violate that standard, maybe they could get away from defensive medicine. I'm not an expert in that field, but something like that would probably have some serious pull if physicians would actually stick to those rules more-less.

What I definitely don't think should happen is that bad doctors get insulated from practicing bad medicine.

[Kevin]

Originally Posted by AOII Angel

From personal experience, I can say that there are frivilous lawsuits. I think there are lawyers who do NOT cross their Ts and dot their Is. Doctors aren't the only ones who make mistakes. Medical errors do occur because doctors are humans, nurses are humans, information is misinterpreted, but not all medical errors are malpractice. Unlike doctors, though, we can't sue lawyers for malpractice.

True, errors are not malpractice unless you violate the applicable standard in your jurisdiction for malpractice. But malpractice does happen. The solution should involve targeting doctors who are repeat offenders for termination of their licenses, the prompt payment of claims which obviously involve malpractice, and a fair and just manner of scheduling compensation for victims so that the respective parties would at least have some sort of legal guidelines in settling claims.

From a lawyer's perspective, it is very difficult to properly evaluate a case before even getting to the first settlement demand. The client comes into your office, tells you her 'tale of woe,' and that's all you have to go on until you submit the case to an expert for evaluation. Often in the meantime, you'll have a deadline or a statute of limitations issue and have to file your case just to avoid that deadline (be it a winner or not, because contrary to your assertion, failure to do so could result in a malpractice case being brought against the attorney).

Compound that with the fact that in jurisdictions like Oklahoma, it costs the attorney (who usually foots the bill because sick/injured/dead people can't usually afford justice) a minimum of $5,000 for an expert's opinion just to file the case. Note that at least around here, we only have one malpractice insurer. That insurer will not insure any doctor who testifies or signs an affidavit against another doctor, so we either have to go out of state or go to a professional 'hired gun.' Getting a real, honest assessment of the case is damn near next to impossible.

As for something being 'frivolous,' while to you, it might appear to be frivolous, the attorney simply can't in all cases properly evaluate the case without first getting something filed and taking depositions and conducting discovery. He can't do that without shelling out some serious coin of his own to do so. So if you mean frivolous as in 'bad faith,' I'll bet that the number of those cases being filed is damn next to nil. But of course, just like with any other tort law, some losing cases will get filed. If the case does make it to trial, however, it cannot be said to be frivolous at all -- there are a lot of mechanisms preventing truly frivolous claims from making it to that stage and I'm convinced they work very well -- sometimes too well.

One of the conclusions of this 2006 study was that ". . .the number of meritorious claims that did not get paid was actually larger than the group of meritless claims that were paid." So who really should have more protections in the legal system? The folks who are killing and maiming through their negligence? Or the folks who are killed and maimed? Right now, clearly, the killers and maimers are better protected and are demanding more protection. I guess money talks.

http://www.hsph.harvard.edu/news/pre...s05102006.html

I was sued for malpractice for a case which did involve malpractice by another set of physicians. I was said to be incapable of performing cataract surgery, providing anesthesia and a whole host of medical procedures that I do NOT perform simply because my name was on a chart. It took two years and a lot of money to get my name removed from the lawsuit that should never have included my name in the first place. I can also name at least three other people at the same institution named in the same case who were also not involved in the inciting incident. Multiple other people have been named in cases inappropriately. You multiply this by every malpractice suit in the nation, and you can't convince me that this does not influence the cost of malpractice insurance which most definitely does increase the cost of health care.

Oh, absolutely, I agree with you here. The administrative and litigation costs in settling malpractice claims are absurd. Unfortunately, both sides only favor outcomes which clearly stack the deck in their favor. For example, the insurance/physicians side wants to place hard caps on pain and suffering awards -- something which not only is morally objectionable in that it places a monetary value on human life, telling doctors and insurance companies when it's okay just to make a business decision and intentionally kill someone or maim them, it also disproportionately harms the most grievously injured patients by not affording them a proper level of compensation for their injuries.

Some things I'd possibly be in favor of (depending on the setup) would be accelerated discovery schedules, faster court dates, judges with medical expertise who are better equipped to wade through fact-intensive pretrial motions, etc. I had a friend of mine (a doctor) go through exactly the same thing. Didn't cost him a penny of course, just a lot of stress. That's why we have malpractice insurance. Turns out that the case (wasn't even that good a case) was filed by the attorney simply because the statute of limitations was about to expire and he had to get something filed to avoid malpractice on his own part. That stuff happens -- and when you have a client/victim who has twelve doctors on his charts, it's impossible, possibly even malpractice not to name every single one of them without knowing *precisely* what their involvement in the case was... and charts can be wrong.

I just wish all lawyers would practice due diligence before filing these cases.

I think in most cases, they do. In other cases, the client doesn't show up until the statute of limitations is looming and you have to get something filed to cover the bases. Still, in other cases, you really can't start to exclude innocent doctors from the case until you've had an opportunity to conduct discovery. Sometimes, due diligence doesn't happen until after the case gets filed because it simply cannot.

That being said, lawsuits are NOT the problem with health care, but they do drive doctors to practice "cover your ass" medicine which has driven up the cost of health care significantly.

I'm not sure that's a bad thing though. Docs wouldn't be doing that if the risk/reward calculus for practicing that sort of medicine didn't come out in their favor. They obviously must know that doing that means that they are operating at the standard of care and that it is more likely to save lives or prevent injuries to patients.

[KSig RC]

Originally Posted by AOII Angel

From personal experience, I can say that there are frivilous lawsuits.

MedMal lawyers will tell you: about one case in a thousand has enough merit to go to trial, in any shape - physicians still win the "public opinion" battle here. So yeah, while there are some "chop shop" firms, the overwhelming majority of cases are not fueled by attorneys at all. In fact, medical malpractice is likely grossly underreported, because "minor" malpractice has no recourse (trials are brutal, on the doctors, on the families, on hospitals, even on the insurance companies who need to keep a careful balance sheet to pay out all premiums paid in).

You multiply this by every malpractice suit in the nation, and you can't convince me that this does not influence the cost of malpractice insurance which most definitely does increase the cost of health care.

Studies of potential tort reform methods indicate that capping non-economic damages at $250,000 in every state that does not have such restrictions already would reduce medical malpractice premiums by a whopping . . . 8%. The problem obviously isn't verdicts.

The problems with malpractice insurance, as it relates to medical costs, are difficult to pin down - insurance companies claim the problems are "huge awards" that happen rarely in reality (and usually only for deaths/permanent disfigurement/botched births), doctors and insurers blame fear of litigation for "defensive medicine" that drives costs up across the board, attorneys blame doctors, and the consumer really doesn't care because they foot the bill either way.

Malpractice suits definitely have their place. I can think of a number of cases off the top of my head from residency that I could even testify for the patient. The case above had merit and settled for an undisclosed amount. I just wish all lawyers would practice due diligence before filing these cases.

That being said, lawsuits are NOT the problem with health care, but they do drive doctors to practice "cover your ass" medicine which has driven up the cost of health care significantly.

There are a couple of problems with this (not "logical" problems, but endemic issues as medicine and litigation interrelate):

1 - If "defensive medicine" actually does its job and reduces lawsuits (because verdicts and/or sheer number of lawsuits are the problem), then it should pay for itself, and insurers should be all for it, right?

2 - And if defensive medicine doesn't "work" (under our operating definition), then the problem is on the supply side, and not the demand side, right?

3 - Isn't one of the problems with the "system" (as it were) that you're generally discouraged from testifying in these cases you say you could have testified in? Wouldn't that drive the case to settlement/fair-value judgment much faster? Remember, the long, drawn-out process you describe earlier is only partly a product of the plaintiffs' bar (which will generally carpet-bomb with claims, then clean up the mess later once discovery begins) - the insurers, who generally take over the case from the doctor/hospital immediately, have much more to gain from a long, drawn-out process than the plaintiffs do.

I can't say this last part strongly enough: insurance companies who have taken over defense for the doctors have made an amazing mess of costs as well. Whether it is dragging discovery out for six years in a cerebral palsy birth case to get the family to "quit" or accept a favorable settlement (because of pain, needing money, private insurance reaching its cap, etc.); or calling 30 experts to testify about causation, life care exceptions, state aid or just to read an MRI (at an average of $1,000 an hour); or using the same "trial in a box" that has been used for 35 years in court - all of which actually happen in just about every botched-birth case, etc. - the attorneys from the defense side are just as much the problem.

[AOII Angel]

Originally Posted by KSig RC

MedMal lawyers will tell you: about one case in a thousand has enough merit to go to trial, in any shape - physicians still win the "public opinion" battle here. So yeah, while there are some "chop shop" firms, the overwhelming majority of cases are not fueled by attorneys at all. In fact, medical malpractice is likely grossly underreported, because "minor" malpractice has no recourse (trials are brutal, on the doctors, on the families, on hospitals, even on the insurance companies who need to keep a careful balance sheet to pay out all premiums paid in).



Studies of potential tort reform methods indicate that capping non-economic damages at $250,000 in every state that does not have such restrictions already would reduce medical malpractice premiums by a whopping . . . 8%. The problem obviously isn't verdicts.

The problems with malpractice insurance, as it relates to medical costs, are difficult to pin down - insurance companies claim the problems are "huge awards" that happen rarely in reality (and usually only for deaths/permanent disfigurement/botched births), doctors and insurers blame fear of litigation for "defensive medicine" that drives costs up across the board, attorneys blame doctors, and the consumer really doesn't care because they foot the bill either way.

I haven't proposed capping malpractice verdicts, just asking that lawyers actually check that they sue the correct physicians before they send in the paperwork. I don't like being accused of being incapable of performing procedures I didn't perform!

There are a couple of problems with this (not "logical" problems, but endemic issues as medicine and litigation interrelate):

1 - If "defensive medicine" actually does its job and reduces lawsuits (because verdicts and/or sheer number of lawsuits are the problem), then it should pay for itself, and insurers should be all for it, right?
The problem is that defensive medicine is not good for patients and is expensive which drives escalating health care costs. (Please see earlier posts)

2 - And if defensive medicine doesn't "work" (under our operating definition), then the problem is on the supply side, and not the demand side, right?
I'm not really sure what you mean by this. Ordering every test under the sun doesn't mean you are going to improve outcomes. A lot of tests have ambiguous results, lead to further tests and have complications.

3 - Isn't one of the problems with the "system" (as it were) that you're generally discouraged from testifying in these cases you say you could have testified in? Wouldn't that drive the case to settlement/fair-value judgment much faster? Remember, the long, drawn-out process you describe earlier is only partly a product of the plaintiffs' bar (which will generally carpet-bomb with claims, then clean up the mess later once discovery begins) - the insurers, who generally take over the case from the doctor/hospital immediately, have much more to gain from a long, drawn-out process than the plaintiffs do.
I have been involved in only one case where I was deposed for the plaintiff. It was in Louisiana. The medical review board (which was apparently composed of "Good Ole Boys" because this was an obvious case of malpractice) found that there was no malpractice. He decided to sue the hospital anyway, so I was deposed but it went no further. As far as I know, there is no clause in my malpractice insurance that says I can't testify against another physician. That being said, in private practice, I can know about cases but not have enough first hand knowledge to actually testify in court about them.

I can't say this last part strongly enough: insurance companies who have taken over defense for the doctors have made an amazing mess of costs as well. Whether it is dragging discovery out for six years in a cerebral palsy birth case to get the family to "quit" or accept a favorable settlement (because of pain, needing money, private insurance reaching its cap, etc.); or calling 30 experts to testify about causation, life care exceptions, state aid or just to read an MRI (at an average of $1,000 an hour); or using the same "trial in a box" that has been used for 35 years in court - all of which actually happen in just about every botched-birth case, etc. - the attorneys from the defense side are just as much the problem.
Don't get me started on cerebral palsy. This is not due to BIRTH TRAUMA. It's perinatal ischemia. OB-GYNs get so much shit for delivering babies. It is impossible to tell when the brain injury occurred unless there is a VERY WELL documented incident during the delivery. Most of the time, there isn't.

See my responses in Bold

[KSig RC]

Originally Posted by AOII Angel

I haven't proposed capping malpractice verdicts, just asking that lawyers actually check that they sue the correct physicians before they send in the paperwork. I don't like being accused of being incapable of performing procedures I didn't perform!

Oh, I wasn't implying that you were in favor of tort reform - I'm pointing out that "large verdicts" really cannot be a part of the malpractice insurance problem, because capping awards affects less than 10% of the cost of the insurance.

The problem is deeper than "too many lawsuits" or "juries giving out truckloads of money" - I was agreeing with you, and providing some evidence to support your points.

The problem is that defensive medicine is not good for patients and is expensive which drives escalating health care costs. (Please see earlier posts)

I'm not really sure what you mean by this. Ordering every test under the sun doesn't mean you are going to improve outcomes. A lot of tests have ambiguous results, lead to further tests and have complications.

My point is that "defensive medicine" (which everyone will agree sucks) isn't really a consumer issue in the truest sense. That's what the logical fork was intended to show - I'm not sure why "defensive medicine" is a health care cost issue since the arrow can only go one direction. I don't mean to say it's the "fault" of doctors - that's really not the issue - but I don't really see how health care reform can address this issue without taking odd steps that benefit those other than doctors/patients the most.

Longer-form issue: if such a tiny proportion of Mal insurance costs are tied to non-economic damages, how exactly do we propose curtailing those costs? It's a chicken/egg dilemma at that point, it seems. Do you simply say "this is what something is worth" and limit income? Do you force f-ed up rates on insurers? Do we increase the disparity for those using certain types of medicine (aka "screw pregnant women one more time")? It's tough.

Don't get me started on cerebral palsy. This is not due to BIRTH TRAUMA. It's perinatal ischemia. OB-GYNs get so much shit for delivering babies. It is impossible to tell when the brain injury occurred unless there is a VERY WELL documented incident during the delivery. Most of the time, there isn't.

Obviously I did not imply anywhere that some non-specific trauma "causes" cerebral palsy - and I'm sure everyone's seen the commercials for James Sokolove or Ken Suggs, it can certainly be a factory-firm game, but that doesn't mean CP cases are somehow implicitly exploitative.

The bolded is definitely true, mostly because the womb isn't see-through and knowing exactly when, say, hypoxic ischemic encephalopathy (which I'll use as an example, since it's the most common claim in my experience) takes place is impossible, and because the very term "CP" is borderline useless due to its umbrella nature (actually, that's not true - it's insanely useful to, again, defense council, because the "WE DON'T EVEN KNOW WHAT CAUSES CP!" defense is one of the strongest on the planet, although it is akin to saying "WE DON'T EVEN KNOW WHAT CAUSES BROKEN LEGS!" in many ways . . . again, not passing judgment, but it is one of many benefits the defense enjoys in MedMal cases).

Most of the time, a link is indeed very hard to prove - which is why so very few cases make it to court. This is actually the case with every non-traumatic MedMal request - obviously causation is easy for a sponge, and difficult for a non-specific brain injury. I'll agree that OB/GYNs, along with ER doctors and some other specialists, receive the brunt of the litigation maelstrom, fairly or unfairly. Of course, it's also perfectly feasible that OB/GYNs make poor decisions that carry much more tangible and lasting impact, too, but either way, the train has so much momentum that it will be next to impossible to stop.

However, in court, the issue is basically whether we can say with 50.0001% certainty that a certain poor decision led to the hypoxic event, and that the event led to the injury. About 0.3% of babies are born with CP - of course, some of those "bad decision" births were already in trouble. However, it's quite the coincidence, don't you think?

OB/GYNs get a bad name both because their cases are high-profile and high-emotion (there is no puke like seeing 45 minutes' worth of PowerPoint slides on a kid looking cute just before a seizure with no other purpose than fiddling the heart strings) and because negligence that leads to HIE is probably worth about $16 million. It's just the way it is.

And, to bring this back to the health care bill . . . Congress apparently does not address this issue, or the others we've discussed, in the slightest. Medical malpractice is barely touched at all, from what I've read. So, apparently, we're going to "reform" health care and get it to everyone, for cheaper, with better service, without addressing any of these fundamental issues. Pardon me if I'm skeptical.

[AXiDTrish]

I must say, I LOVE this thread. Kevin, AOII Angel, KSig....your discussion has been very interesting!!

Not that I want to bring this up and interrupt, but...

Also to AXiDTrish, what do debt collectors have anything to do with this discussion? Why don't doctors (or anyone else) have a right to collect money owed to them? If anything, the collection of debt HELPS the industry by increasing the percentage of fees recovered. I don't agree with illegal debt collection practices, but there are plenty of statutes in place (both on a federal and state level) that protect against that (and provide with some interesting penalties).

Doctor's absolutely have the right the collect money that is owed to them and should! It's when balance billing takes place or collector's balance bill on a doctor's behalf that is the problem. Ex: A doctor bills $100 for a procedure and their negotiated rate based on their contract is to receive payment of $75 whether from an insurance company or through a members/patients copay, coinsurance, deductible or a combo of all three. The doctor, by signing a contract (and they don't have to) has agreed to write off the other $25. Balance billing is when they bill the member for the additional $25 making them in breach (sp?) of their contract. Many times that ends up in a collections agency's queue. I'm working a scenario right now where the doctor closed their practice and sold all their accounts to a collector. The collector going after a member for a claim from three years ago that they paid correctly according to their benefits! The collector doesn't care that the member has paid everything they are supposed to and the provider is in breach of contract. All they care is that they get a cut of any money they collect at the expense of a member/patient. It's infuriating and unfair. Balance billing is very, very common. Sometimes it's due to a simple A/R mistake, sometimes inexperienced billers, sometimes intentional.

[AOII Angel]

Originally Posted by AXiDTrish

I must say, I LOVE this thread. Kevin, AOII Angel, KSig....your discussion has been very interesting!!

Not that I want to bring this up and interrupt, but...



Doctor's absolutely have the right the collect money that is owed to them and should! It's when balance billing takes place or collector's balance bill on a doctor's behalf that is the problem. Ex: A doctor bills $100 for a procedure and their negotiated rate based on their contract is to receive payment of $75 whether from an insurance company or through a members/patients copay, coinsurance, deductible or a combo of all three. The doctor, by signing a contract (and they don't have to) has agreed to write off the other $25. Balance billing is when they bill the member for the additional $25 making them in breach (sp?) of their contract. Many times that ends up in a collections agency's queue. I'm working a scenario right now where the doctor closed their practice and sold all their accounts to a collector. The collector going after a member for a claim from three years ago that they paid correctly according to their benefits! The collector doesn't care that the member has paid everything they are supposed to and the provider is in breach of contract. All they care is that they get a cut of any money they collect at the expense of a member/patient. It's infuriating and unfair. Balance billing is very, very common. Sometimes it's due to a simple A/R mistake, sometimes inexperienced billers, sometimes intentional.

I agree...That is wrong.

[AOII Angel]

Originally Posted by KSig RC

And, to bring this back to the health care bill . . . Congress apparently does not address this issue, or the others we've discussed, in the slightest. Medical malpractice is barely touched at all, from what I've read. So, apparently, we're going to "reform" health care and get it to everyone, for cheaper, with better service, without addressing any of these fundamental issues. Pardon me if I'm skeptical.

I'm skeptical, too. I wish there was a way to reform the system that could bring in common sense allowing for experts to evaluate a case fairly, tease out the uninvolved parties without any of the "Good Ole Boy" network getting in the way. There are so many physicians who are scared of their own shadows because of thoughts of suits. I'm a lot more practical, but then again, I've never been afraid of making a decision. In some areas, radiologists won't read mammograms because everyone thinks you get sued all the time. I've been reading them for three years (and knock on wood, haven't been sued yet) but it's only a matter of time before it happens. It's a part of practicing. I think that we just don't trust that when the case goes to court that it can be evaluated scientifically instead of emotionally.