Justinian Lane - Commentary on law, politics, and tort "reform."

Doctor is awarded $500,000 in punitive damages in wrongful termination lawsuit

Considering how vociferously that doctors argue they shouldn’t be sued, I always note when they file a lawsuit.  This doctor will learn firsthand how much of an injustice that damage caps are, as his $500,000 award will get reduced by $200,000.

A radiation oncologist who formerly worked for the University of Pittsburgh Cancer Institute won a potential $3 million verdict in federal court yesterday on charges that her employer retaliated against her for raising concerns about discrimination.

….

In addition to back and front pay, the verdict includes $200,000 in compensatory damages, as well as $300,000 in punitive damages. The jury found that punitive damages should be $500,000, but under law, the cap is $300,000, said Dr. Gerszten's attorney, Colleen Ramage Johnston.

Source: Doctor wins suit against cancer institute

Healthcare Fraud Costs Taxpayers Three Times as Much As Medical Malpractice

The figure most commonly cited as the cost of all medical malpractice is about one half of  one percent of all healthcare expenditures.  Now, some people claim that figure is too low.  So let’s double it and assume that medical malpractice costs add up to 1 full percent of total healthcare spending. 

Unquestionably, some portion of that 1 percent represent legitimate expenditures that no amount of tort “reform” would make go away.  For example, if a doctor operates on the wrong person or wrong body part, that doctor should have to pay SOMETHING to the malpractice victim.

Rather than work on cutting the fat from that one percent, why not tackle healthcare fraud?  The FBI estimates that healthcare fraud represents as little as three and as much as ten percent of total healthcare expenditures:

All health care programs are subject to fraud; however, Medicare and Medicaid programs are the most visible. Estimates of fraudulent billings to health care programs, both public and private, are estimated between 3 and 10 percent of total health care expenditures. The fraud schemes are not specific to any area but are found throughout the entire country. The schemes target large health care programs, public and private, as well as beneficiaries.
Source: Federal Bureau of Investigation - FINANCIAL CRIMES REPORT TO THE PUBLIC FISCAL YEAR 2007

Every dollar spent on healthcare fraud is an unnecessary expense.  There’s no reason not to aggressively target it in a healthcare reform package.  A nice benefit of doing so is that it may also cut down on money spent on medical malpractice.  Here’s more from the FBI:

One of the most significant trends observed in recent health care fraud cases includes the willingness of medical professionals to risk patient harm in their schemes. FBI investigations in several offices are focusing on subjects who conduct unnecessary surgeries, prescribe dangerous drugs without medical necessity, and engage in abusive or sub-standard care practices.

I defy you to tell me why we should focus on reducing medical malpractice costs as long as medical malpractice costs are less than healthcare fraud cases. 

Bruce Braley Asks, “Who Will Speak For The Patients?”

When I read this article, I expected the comment thread to be full of semi-literate rants by people who bought Atlas Shrugged but couldn’t read it because it didn’t have enough pictures.  I was pleasantly surprised by the comment thread instead.  Read the post and see what I mean.

WASHINGTON, D.C. -- A short but fiery speech made on the floor of the House of Representatives has raised the hopes of patient safety advocates across the nation.

Rep. Bruce Braley, a second-term Democrat from Iowa, gave a last-minute speech about medical errors moments before the House voted on the health reform bill earlier this month.

"Who will speak for the patients?" Braley said in his House speech as Republicans jeered him. He quoted an Institute of Medicine report, saying, "They told us the most significant way to reduce the cost of medical malpractice is to emphasize patient safety by reducing the number of preventable medical errors."

Source: Congressman fights for patient safety

There’s a Reason The 14th Amendment Didn’t Have A Trigger Option

I can say that I no longer give a damn about healthcare reform.  I no longer give a damn because I know that whatever we finally get will be a watered-down compromise that is more about ensuring that neither the Democrats nor the Republicans can be said to have lost the battle.  Both sides are of course under enormous pressure to deliver.  A loss for the Democrats will be seen (stupidly) as a referendum on Obama and the progressive movement, and a loss for the Republicans will be seen as a referendum on the GOP.  Both sides are so firmly entrenched that neither can afford to be said to have lost.  So both sides will deliver some bullshit compromise measure whose effects will be impossible to explain in one or two sentences.

The beauty of the 14th Amendment is that it is both incredibly complex and incredibly simple.  If you doubt the former, take a Con Law class.  And if you doubt the latter, remember that elementary school students are taught that the 14th Amendment abolished slavery.  Sure, that explanation leaves a lot out, but it explains perhaps the most important part of the Amendment.  The 14th Amendment is also beautiful because it neatly and cleanly accomplished what it set out to do.  There’s been a lot of peripheral litigation over the scope of the Amendment, but never any serious debate over whether it’s legal to own a slave in the U.S.

One has to wonder how effective the 14th Amendment would have been if instead it had been written as a trigger option.  Perhaps it would have required states to grant citizenship to a certain percentage of slaves by a certain date, and if those states failed to do so, then the 14th Amendment would take effect.  It could have left it up to the states to determine which slaves to grant citizenship to, and perhaps even let states define citizenship, thus allowing states to game the system by saying that “X percent of our slaves have been granted citizenship,” when in fact that grant of citizenship did not comport with the intent of the drafters of the 14th Amendment.  Can you imagine such a system succeeding?  Probably not if your definition of success meant that there would be zero slaves in the United States.

Similarly, any trigger option that leaves it up to the states (read: private insurance companies) to cover the uninsured will not succeed if you define success as meaning every U.S. citizen has healthcare coverage.

Instead of delivering legislation that is as clean and as effective as the 14th Amendment, Congress is going to deliver us a bill that will best be described as a kludge or a patchwork.  The 14th Amendment wasn’t a kludge and it wasn’t a patchwork.  There’s something else it wasn’t, too: a failure.  And a failure is what I predict this bill will be.

I think it’s funny that on the one hand the GOP yells and screams “listen to the doctors!” about medical malpractice reform.  But when they’re told that the majority of doctors support single-payer universal healthcare, well, it’s not so important to listen to doctors anymore.  The problem is fundamental.  Many people (like me) believe that every American, by virtue of being a citizen in the greatest country the world has ever known, has a fundamental right to medical care.  Others, (like most of the GOP) believe that no one has a fundamental right to healthcare and instead should have to work to pay for it.

Personally, I don’t understand why I don’t have to work to pay for the military that keeps me safe, the fire department that keeps me safe, and the police that keep me safe, but I should have to pay for my healthcare coverage.  If it’s the job of our government to keep us protected from being killed by terrorists, then why shouldn’t it also keep us from dying of preventable illnesses?  One preventable death is too many, regardless of whether it comes from a shoe bomb or poor prenatal care. 

At this point, all I hope is that the Democrats don’t decide to try and buy off Republicans by giving them tort reform.  Here’s what’s going to happen if they do: Within ten years, Democrats will no longer be able to count on the support of trial lawyers, because trial lawyers won’t be able to afford to donate.  Republican challengers will then take out vulnerable Dems, and once they own Congress & the White House, they’ll gut the portions of the healthcare bill that they didn’t like, and keep tort reform.  Hope the Dems keep that in mind…

A Mediocre Article On Both Sides of The Medical Malpractice Debate

This could have been an excellent article.  It could have told the story of someone severely injured by malpractice, the years it took them to get compensation, and the problems with the medical system that let the malpractice occur.  Then, it could have detailed the struggle of a doctor who was wrongly sued, the hundreds of hours it took from his or her time, and the problems in the legal system that let a bogus malpractice suit get as far as it did.  The article could have then concluded with a critique of proposed medical malpractice reforms, and how they wouldn’t fix some of the problems in both systems.  That’s what this article could have been.  It’s still worth reading, though:

"They woke me up, and they said there's been a huge mistake we operated on the wrong foot," Kennedy said.

Julie Kennedy says she let the doctor operate on the correct foot on the condition that he take care of any problems caused by the first surgery.

"And when he ceased to take care of that, my husband and I knew we had to do something because the pain was getting worse," Kennedy said.

Still in pain, with medical bills mounting, she filed suit in 2000. Her doctor's lawyers made her out to be anything but a victim.

Source: Operation Healthcare: Two Faces Of Medical Tort Reform - NewsOn6.com - Tulsa, OK - News, Weather, Video and Sports - KOTV.com |

Tort Reform Hypocrite Greg Abbott is at it again

Remember Greg Abbott? He’s the attorney general who made millions by suing a Texas homeowner.  Now he’s trying to deny access to the courts to someone else who got injured:

Attorney General Greg Abbott on Wednesday asked the Texas Supreme Court to throw out a lawsuit by Emmalene Rankin, who discovered a surgical sponge lodged in her abdomen 10 years and eight months after a hysterectomy.

The amicus brief, written by state Solicitor General James Ho, asks the court to support the Texas statute of repose, which places a strict 10-year deadline on filing a medical malpractice lawsuit.

"Our legal system does not remedy injuries in perpetuity. Evidence grows stale; eyewitnesses move; records become lost; and parties receive assurances that courts will not re-examine acts from the distant past that have long since faded from memory," Ho wrote.

Source: AG wants sponge suit dismissed; Sugar Land mayor robbed

This guy is a disgrace to the legal profession.

If doctors don’t have time to spend with their patients, why is the average patient visit getting longer?

Food for thought.

But as it turns out, the amount of time primary-care docs spend with each patient actually increased a little bit between 1997 and 2005, according to an analysis published today in the Archives of Internal Medicine.

Source: Primary Care Doctor Visits, 1997-2005 - Health Blog - WSJ

Hospital CEO is careful not to admit his doctors practice defensive medicine, and misunderstands “loser pays”

David Dunlap, the President and CEO of Roper St. Francis Healthcare, wrote an op-ed in favor of “loser pays” in medical malpractice cases.  Read the following paragraph carefully:

A recent survey on defensive medicine was completed by more than 900 physicians, with about 83 percent responding that they do practice defensive medicine. The cost for imaging services alone, such as X-rays and CT scans can cost thousands of dollars depending on the type of the study. Many of these are done to prevent the possibility of lawsuits. Roper St. Francis will do over 50,000 CT scans a year, and if just a fraction of those scans are eliminated, the savings would be significant.

With 65 acute care hospitals in our state, it's easy to see how the cost of defensive medicine quickly adds up into billions. And it's also easy to see how this unnecessary cost, which must be paid by someone, ends up costing all of us money in the form of higher physician and hospital bills and higher insurance premiums. Just think what would happen if the money directed to defensive medicine went to cover the uninsured instead.

Source: ‘Loser Pays' is a winning cure The Post and Courier - Charleston SC newspaper

Note that he walks a tightrope when he discusses doctors who practice “defensive medicine” and his hospital.  He never comes right out and admits that anyone at his hospital does so.  Why?  Because he would then be admitting that he is aware that doctors at his hospital are breaking federal law.  You see, it is actually illegal for a doctor to bill an insurer for a test he or she feels is not medically necessary.  The terms of every insurance contract require doctors to only order procedures they feel are medically necessary, and several federal laws prohibit so-called defensive medicine.  Some doctors don’t worry about the legal implications of admitting they’re breaking federal law, but this CEO is smart enough not to do so. 

Often, whistleblower lawsuits are filed against hospitals who rip off the federal government by billing Medicare or Medicaid for unnecessary medical procedures.  Those whistleblower lawsuits force lawbreakers to reimburse the federal government for the money they stole from taxpayers through fraudulent billing.  A written admission from the CEO that doctors at his hospital bilk taxpayers by running unnecessary tests would likely be Exhibit A in such a lawsuit.

Also note this sentence in the article:

We already have a form of Loser Pays and that's automobile liability insurance. If an accident is your fault, you pay. We've all learned to live with it. So why not adopt loser pays for health care?

Mr. Dunlap either does not understand how “Loser Pays” works, or he’s lying to persuade those less-informed than he is.  Loser Pays doesn’t change who is liable in a lawsuit.  Under either the existing model, or under loser pays, if a jury finds the defendant at fault, the defendant pays.  What changes with “loser pays” is that if you lose a lawsuit, you’re responsible for the attorney fees of the other side.  Mr. Dunlap’s comparison to an auto accident is completely off-base.  I suspect that as the President and CEO of a hospital he knows his comparison rings false.  But I’ll give him the benefit of the doubt.

Joanne Doroshow on the Insurance Antitrust Exemption

Joanne never disappoints.  

It's fascinating to watch the insurance industry try to justify 60 years of anti-competitive behavior. The medical malpractice insurers are doing their best, that's for sure. They want medical malpractice "removed from the bill," according to insurance lobbyist Larry Smarr, president of the Physician Insurers Association of America, who testified that "market conduct abuses" never happen in the medical liability industry, and that repealing the most anti-competitive law in the nation would, in his words, "undermine competition."

Whatever their tactic and latest form of utterly absurd double speak, it's crucial that when Congress does repeal the McCarran-Ferguson Act, the medical malpractice industry is not left out. The Consumer Federation of America predicts that repealing this law for medical malpractice insurers could result in a 20 percent insurance savings for doctors.

Source: Joanne Doroshow: Medical Malpractice Insurers: Time to End Their License to Gouge

These medical malpractice premiums don’t seem overly high to me

So, the average gastroenterologist earns between $300,000 and $500,000 per year.  This guy is a superstar and presumably earns well in excess of $500,000.  He sees between 4,000 and 5,000 patients per year, and pays $45k in medical malpractice premiums.

He said MGG grosses between $8 million and $10 million a year. He won't tell me what he earns, but he points out that the "average GE" in this area makes between $300,000 to $500,000 a year. He fields 4,000 to 5,000 patient visits a year and performs between 1,000 and 1,300 procedures.

….

Payroll and overhead eat up 60 percent of MGG's revenues, including the 6 percent spent just to collect money from insurance companies, Medicare and individuals. Hardi pays $45,000 a year for his own medical malpractice insurance.

Source: Thomas Heath - Value Added: Up close and personal with a gastroenterologist - washingtonpost.com

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