Real Health Care Reform Must Include Tort Reform
December 1, 2009
Two excellent articles in the past few days continue to make the case that effective health care reform must include meaningful medical liability reform. The Congressional Budget Office recently estimated that as much as $54 billion could be saved over the next decade if Congress enacted legal reforms.
In an interview with LegalNewsLine, columnist Charles Krauthammer argues that without liability reforms the billions that could be saved are instead flushed away:
“Part is simply hemorrhaged into the legal system to benefit a few jackpot lawsuit winners and an army of extravagantly rich malpractice lawyers such as John Edwards. The rest is wasted within the medical system in the millions of unnecessary tests, procedures and referrals undertaken solely to fend off lawsuits.”
As Krauthammer points out, instead of enacting serious reforms, the health care bill passed by the House “actually penalizes states that dare ‘limit attorneys’ fees or impose caps on damages.’”
An article by Jim Copeland of the Manhattan Institute uncovers the other trial lawyer goodies hidden in the House bill. It ain’t pretty. And the Senate bill? MIA when it comes to tackling runaway medical liability premiums - there are no legal reforms to be found, just a meaningless ”sense of the Senate” provision that medical liability is an issue.
As Copeland writes,
“The trial bar could hardly have designed better bills for protecting its interests.”
More On Health Care Bill Trial Lawyer Protections
November 12, 2009
Last week I called attention to the trial lawyer protections that were in the health care reform legislation the House was preparing to bring to the floor for a vote. Well, those provisions made it into the final bill that passed in the middle of the night last Saturday.
Today’s Wall Street Journal editorial page weighs in.
More Evidence of the Trial Bar’s Powerful Influence in Congress
November 2, 2009
Howard Dean has admitted that medical liability reform has been kept out of health care reform out of fear of angering the powerful trial bar. Apparently, this wasn’t enough payback for the legal titans, who funneled nearly $100 million to congressional Democrats in the last election cycle. Andrew Breitbart’s biggovernment.com uncovered the following provision, buried on pages 1,431-1,433 of the 1,900-page House bill:
Section 2531, entitled “Medical Liability Alternatives,” establishes an incentive program for states to adopt and implement alternatives to medical liability litigation. [But]…… a state is not eligible for the incentive payments if that state puts a law on the books that limits attorneys’ fees or imposes caps on damages.
So states that have effectively dealt with the medical liability crisis get punished, while states that have bowed to trial lawyer pressure get rewarded. Some reform.
Since Texas established reasonable limits on non-economic damages, rates for medical liability insurance have dropped by an average of 27% and over 14,000 doctors have either returned to the state or started practicing for the first time, according to Governor Rick Perry. Other states have had similar experiences. So will the Obama Administration – which has professed its support for reining in abusive lawsuits – side with patients and doctors or with trial lawyers?
A Starting Point on Medical Liability Reform
October 30, 2009
Mort Kondracke calls on Congress to move on medical liability reform in a Roll Call article today. He says a middle ground estimate of the costs of defensive medicine — where doctors perform unnecessary tests and procedures out of fear of being sued — comes in at around $100 billion a year or $1 trillion over 10 years.
Kondracke pushes an idea pioneered by legal reformer James Wootton which promotes “early settlement offers, mistake-prevention discussions, use of independent experts and comparability standards for damage awards.” Given the trial lawyer lobby’s pervasive influence in Congress and success at blocking real medical liability reform — such as reasonable limits on non-economic damages — the Wootton idea might be a good place to start. Writes Kondracke:
“Before Congress and the president complete the health care reform process this year, they need to take decisive action on the malpractice reform front - not kick it into the future with mere studies.”
Whether they actually do so will test whether Congress and the Obama Administration are serious about reining in health care costs by diverting the flow of $$$ from the trial bar back to patients and doctors, where it belongs.
Another Voice for Medical Liability Reform
October 27, 2009
Columnist Charles Krauthammer makes the case for making medical liability reform a key component of our health care overhaul in an interview published in Der Spiegel. In addition to being a Pulitzer Prize winner, Krauthammer is also an M.D., Harvard Medical School, class of 1975. Money graph:
SPIEGEL: How could Obama still win Republican support for healthcare reform?
Krauthammer: He should finally realize that we need to reform our insane malpractice system. The US is spending between $60 and $200 billion a year on protection against lawsuits. I used to be a doctor, I know how much is wasted on defensive medicine. Everybody I practiced with spends hours and enormous amounts of money on wasted tests, diagnostic and procedures — all to avoid lawsuits. The Democrats will not touch it. When Howard Dean was asked why, he said honestly and explicitly that Democrats don’t want to antagonize the trial lawyers who donate huge amounts of money to the Democrats.
Theater Of The Absurd
September 16, 2009
So President Obama wants some “demonstration projects” to test the already exhaustively-proven proposition that doctors engage in defensive medicine to protect themselves from always-hovering, endlessly-circling trial lawyers. The person in charge? HHS Secretary Kathleen Sebelius, the former top lobbyist for the Kansas trial lawyers association! Both Stephen Hayes and Mary Katherine Ham of the Weekly Standard have posted on this. As Hayes puts it, no wonder Americans are cynical about ObamaCare.
Diagnosing For Dollars
November 11, 2008
If West Virginia’s phantom doctors aren’t bad enough, read this editorial in yesterday’s Wall Street Journal. It seems the real doctor diagnosing many Michigan asbestos claims is even worse. But in this case, it’s not the doctor who has disappeared, it’s the lawsuits.
As the editorial points out, Michigan is still a hot-bed for asbestos claims, accounting for 14% of all asbestos lawsuits and ranked #1 for new filings in 2007. Over the past 15 years, one doctor – a Lansing physician named Michael Kelly – has “reported 7,323 cases of asbestos-related disease” – for which lawyers paid him $500 a pop.
Dr. Kelly is neither a radiologist nor a pulmonologist, the Journal reports, and in 1989 he “failed the federal test that certifies doctors to read X-rays for lung disease.” But apparently, this kind of “expertise” is exactly what personal injury lawyers needed to flood Michigan courts with asbestos claims.
All was running smoothly until Wayne County (MI) Circuit Court Judge Robert Colombo, Jr. began listening to evidence that Dr. Kelly’s dialing for dollar diagnoses were fraudulent. It seems Dr. Kelly made the mistake of sending client/patients to hospitals for their X-rays, apparently forgetting that hospital radiologists would be reading the same X-rays. In nearly 9 out of 10 cases reviewed by Dr. Kelly and hospital radiologists, the hospital doctors found no evidence of disease.
Defense lawyers also provided Judge Colombo with the results of a blind study by independent X-ray readers, which concluded that 88% of Dr. Kelly’s diagnoses were fraudulent. But defense lawyers still may not get the chance to cross examine Dr. Kelly. Within 24 hours of Judge Colombo’s decision to hold a hearing on the doctor, the plaintiffs’ lawyers dropped every lawsuit but one.
The Journal editors argue that Judge Colombo should go ahead with the hearing anyway – and they’re right. It will be interesting to see if judges in other jurisdictions show as much interest in exposing widespread abuses of asbestos litigation like diagnosing for dollars and the case of the phantom doctor.
Texas vs. Florida
September 9, 2008
There’s probably no more dramatic demonstration of effective tort reform in action than Texas’ constitutional amendment capping non-economic damages (i.e. pain and suffering) to $250,000. Since Texas voters passed Prop. 12 in 2003, the Lone Star State’s largest medical liability carrier has seen the number of lawsuit filings cut in half. Liability insurance, which before Prop. 12 was driving physicians out of state, has declined by 25 percent, and so many doctors are applying for medical licenses that there’s a serious backlog. Whole areas of the state that were once under-served – primarily poor and Hispanic regions – are seeing specialists come and set up practice for the first time. Overall, as this article in the AMA News details (subscription required), the state’s supply of neurosurgeons has jumped 12%.
It’s instructive to compare what’s been called the “Texas Miracle” with the deepening mire in Florida, where trial lawyers still have the upper hand, and showing up at the ER has been compared to playing Russian roulette, because of the shortage of neurosurgeons and other specialists. Trauma centers across the state are periodically forced to shut down because they don’t have the necessary specialists on call, as happened in February when Bayfront Medical Center in Pinellas Country had to start shipping its acutely injured patients to Tampa for treatment.
Naturally the patients sue when this doesn’t turn out so well, and Tenet Healthcare Corp just paid out $2 million for a Boca Raton woman who died after two of its hospitals couldn’t find a neurosurgeon to treat her stroke.
Not really what you’d call a rational health care policy, but clearly it’s working well for the trial lawyers.
The Trial Bar’s Attack on Expectant Mothers (Cont’d.)
September 4, 2008
After 104 years of delivering babies, the maternity unit at Chestnut Hill Hospital in Philadelphia, PA is shutting down, thanks to soaring medical liability insurance costs brought on by an explosion of frivolous lawsuits and jackpot-sized jury awards.
The toll of the medical liability crisis has been staggering on expectant mothers in the Philadelphia area. Since 1997, the Philadelphia Inquirer reports, 15 hospitals in the region have closed maternity units, forcing pregnant women to search far and wide for quality obstetrical care.
The Patients and Physicians Alliance (The Fighting Docs) has done heroic work pushing medical liability reform in the Pennsylvania Legislature, but Governor Ed Rendell blocks every effort to fix this crisis, enabling state trial lawyers to turn medical liability cases into their own personal ATM machines. It seems like Philadelphia mothers-to-be have to flee to Delaware or New Jersey before the state’s political leadership decides that Pennsylvanians are paying too high of a price to continue enriching the trial bar.
Trial Lawyer’s Free Fire Zone
July 16, 2008
In an op-ed in Pennsylvania’s Daily Local News, retired family physician Robert Poole describes what it’s like to have a target painted on your back in a trial lawyers’ free fire zone — in other words, what it’s like to be a doctor in Pennsylvania today.
Today, the pressing issue in the well-heeled suburb of West Chester is the need to open a trauma center to replace the one that was closed down in 2002 because of the medical liability crisis. This is in the same county, Chester, where trial lawyers have driven out every single practicing neurosurgeon. The county has set up a special Trauma Center Task Force to raise pubic awareness of the issue, as without major pubic subsidies to defray liability costs, the center is a non-starter. Taxpayers already pay into a state fund to subsidize liability insurance so the few remaining doctors don’t high-tail it out of state like so many of their colleagues. So once again, taxpayers are being asked to subsidize a broken system that serves no other purpose than to make trial lawyers rich.
According to Dr. Poole, when doctors from the Chester County Medical Society met with local legislators to plead for tort reform, they were told that until they could come up with the kind of campaign contributions regularly doled out by the Pennsylvania Trial Lawyers Association PAC they might as well be just spitting into the wind.
It’s estimated that the Trauma Center would save 10 to 12 lives a year – in other words, lives that are being sacrificed today to feed the greed of the Pennsylvania trial bar.