Archive for March, 2010

TORT REFORM – IS IT REALLY?

March 23, 2010

If you are looking for a diatribe for or against what we have come to know as “tort reform”, you will be disappointed. The problem is too complex. The purpose here is to shed some light.

Let’s clarify the issue. Advocates of “tort reform” are really arguing for lower incidence of medical malpractice awards, smaller dollar awards, and lower medical malpractice insurance premiums for physicians. They also hope to reduce the level of “defensive medicine”, the result of which is higher medical cost in response to the fear of being sued.

According to the National Practitioner Data Bank, the number and dollar value of medical malpractice award payouts has been flat since 1991, and have actually declined since 2001.The figures presented by the National Association of Insurance Commissions back this up. Public Citizens’ Congress Watch in Washington, D.C. reports that medical malpractice award payments declined 13.6% from 2001 through 2004 (the latest data available). Award payments of $1 million or more actually fell 56% from 1991 through 2004. According to a Harvard University study, very few medical errors ever result in legal claims – only one claim per 7.6 injuries ever results in legal action. Of those claims, plaintiffs drop 9 of every 10 that are initiated. Let’s at least admit that a case made solely on the basis of the “exploding incidence” of medical malpractice claims and awards has its problems.

Well, then, what about medical malpractice insurance premiums? Premiums have increased and there is no doubt about it. The question is WHY have premiums increased. There are authorities who have looked at this issue and concluded that medical malpractice insurance premiums rise NOT just because of increased frequency of litigation or jury awards, but to compensate for poor insurance company investment returns. Robert Hunter, Insurance Director for the Consumer Federation of America recently pointed this out. The U.S. Government Accountability Office (formerly the U.S. General Accounting Office) has reported this several times, the most relevant being GAO 03-702. GAO reported that multiple factors, including falling investment income and rising reinsurance costs, have contributed to increases in premium rates. In one interesting comparison, the GAO report showed that the premiums insurers charge physicians in different locales have such huge variability that the discrepancy cannot be explained by claims incidence alone. If it is true that other factors contribute to premium increases, then it follows that preventing or limiting medical malpractice awards may not result in corresponding premium decreases.

Defensive medicine is the hardest to deal with because its impact is difficult to calculate. There is no doubt that there are more medical tests being ordered for fear of medical liability then there would be otherwise. The question is what is the impact. Nobody really knows (GAO 03-836). We do know that medical insurance costs average about 3.2% of average physician revenues. We also know that 5.5% of physicians cause 57.3% of all medical malpractice payouts to patients. Do we approach the problem, as some have suggested, by not interfering with tort claims and instead going after the few transgressors?

Much study still needs to be done, but the end game will not change. As a society, we will have to decide whether we want to prevent or limit the legitimate claims of citizens damaged by medical errors by making it harder to obtain compensation for those errors, or insulate physicians and thus reduce the motivation for defensive medicine in the hope that the cost savings will justify the lost opportunities.

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KNOW WHO YOU PLAN TO SUE

March 18, 2010

The decision about what medical specialist to use in a medical malpractice case is up to the client. Nevertheless, we have all too often discussed cases with individuals and attorneys when they did not know what type of medical specialist they wanted to be involved. Sometimes we get the comment that any medical expert will do. In our view, the notion that any medical expert will do is wrong-headed and possibly even self-defeating.
Why?
You need to know who you are suing. You want to have a physician expert in the same medical specialty review the records (there are exceptions, but we won’t get into them here). In this way, you ensure that the medical expert will be able to authoritatively comment on the same standards of care owed by a provider in the same specialty. It does no good to have someone of lesser expertise comment on those standards of care because the opinion will surely be impeached for lack of qualifications. That is fairly obvious. However, the same applies for someone who is overqualified because the offending provider cannot be held to higher standards of care than those owed by someone in his medical specialty. There is abundant case law that backs this assertion.

If you have a medical malpractice case and if you are looking for a medical expert to review and opine on the medical records, ask yourself a few questions that will save you time, effort, and money:
1) Who do I blame for the presumed medical negligence? In other words, whose errors of omission/commission led to the injury?
2) If more than one medical provider is presumed to be at fault, whose care do I principally blame [you may ultimately need more than one medical expert, but if the beginning expert opinion is supportive, then you know you have a case. If not, you will need to reassess the situation]?
3) What is the provider’s medical specialty?

When the action is personal injury, the considerations are different. The issue then becomes one of determining whether the injury in question resulted directly from the accident. The decision concerning the appropriate medical specialty in such cases is driven by the nature of the injuries and the course of treatment that followed the injury.