The Health Care Bill has passed...

[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.