Utah Med Law

Part of the health care debate and the call for reforming tort law regarding medical malpractice is the claim that doctors practice in such a way that the cost of medicine is increased because doctors order tests and treatments to protect themselves from medical malpractice claims.  Of course the ordering of unnecessary tests and treatments increases the cost of health care overall and increases your health insurance premiums.  This practice of ordering unnecessary tests and treatment is called defensive medicine.

Imagine that you go to the mechanic complaining that your car's brakes do not seem to be work properly.  The mechanic looks at your vehicle and tells you that you need new brake pads and you expect the bake pads to be fixed and receive a bill for $300.  However, unknown to you, he also places new calipers and a new master cylinder fearing that if your brakes fail you will sue him. Your anticipated bill for $300 becomes a bill for $1000.  Welcome to the world of defensive automobile repair.  Would you accept and pay the bill?

Now doctors are supposed to be professionals.  Your doctor should not order unnecessary tests and treatment if he does not think the tests will reveal a treatable condition or rule out a threatening illness.  Treatments that yield no benefit should be foregone. An excellent example of how physicians have allowed erosion of their professional standards is the rise of Methicillin resistant Staphylococcus aureus (MRSA).  MRSA infections may have been driven in part by physicians' tendency to over-prescribe antibiotics to avoid being sued by disgruntled patients, according to a study published this past fall in the American Journal of Therapeutics. 

If we enforce "Best Practices" a patient demanding antibiotics for treatment of a condition which should not have antibiotics prescribed may not receive those antibiotics.  Costs would be reduced and the doctor would be acting professionally.  Doctors respond of course that the practice of medicine is part science and part art and that they must be allowed to practice without rigid guidelines. The pros and cons of guidelines or best practices is extensively discussed in KevinMD.com authored by Kevin Pho M.D.  My hat is off to Dr. Pho for writing about provocative issues of everyday health care and medical malpractice.  

Best practice guidelines, perhaps created by a respected panel of national physicians, should be the basis of health care treatment in the United States.  If a physician deviates from the best practice he should have a reason to do so - in both under-treating and over-treating the patient.  If the physician deviates from the accepted practice guideline or best practice then he should be liable for medical malpractice and any harm that visits his patient as a result of the deviation.  Medical malpractice lawyers could evaluate the guideline against what teh physician actually did and determine if a medical malpractice case is viable.  Guidelines and best practices exist - let's use them!  For example, look at the National Guidelines Clearinghouse or the Washington State Medical Treatment Guidelines.

It is time to enter the present doctors - let's get on board and start practicing medicine in a manner that benefits patients and not your antiquated notions of the noble pursuit of medicine.

Importantly this bill has no provisions that would limit an injured medical malpractice victim's rights concerning their claims.  This is a stunning victory for victims of medical malpractice considering the tremendous pressure brought to bear against the bill from the health insurance industry and others interested in reducing patient rights.  However, there is a provision for demonstration projects.  Demonstration projects will be funded by the federal government at the state level to allow the states to explore better ways to handle medical malpractice claims.  There is also an opt-out clause for plaintiffs in the plan and it appears they can remove themselves from an expiremntal approach at any time.  Only time will tell if Utah will decide to embark on a demonstration project.

Of course the House and Senate bills have to be reconciled before the bill is passed into law by President Obama.  The Senate bill would prevent insurance companies from dropping patients who get sick and create a new legal requirement that all Americans must own health insurance – a provision already under growing attack from conservatives.  On the other side the Senate plan falls far short of Democrats' initial vision for reform in one key regard — it lacks a government-run insurance option after several moderate Democrats said they’d block the bill if it remained. That decision has divided the Democratic base, with many liberals saying the plan isn’t true reform and would merely enrich private insurers.

I am a trial lawyer and damn proud to be one one!

I represent people that are severely injured as a result of medical malpractice. When the chips are down and you or a loved one are facing the loss of everything you have worked for your entire life you need a trial lawyer on your side.  The groundswell of hatred directed at trial lawyers is not grounded in reality or fact.  People who chant "trial lawyer" in this video have never had a close encounter of the medical malpractice kind and have never needed a trial lawyer to represent them when they risk loosing it all.  The chanters of "trial lawyer" use it like a dirty word.  The chanters are victims of tort reform propaganda and / or have their selfish interests at heart - perhaps because they are in part funded by large medical insurance companies.

If you had any doubt about health care reform being about money this article should show you that all of the interested parties, including health insurers, doctors and facilities have their (and not the public) interest at heart.

There was a recent article in the Atlanta Business Chronicle titled "Survey: U.S. docs want tort reform."  The article quotes a survey published by Jackson Healthcare - an Atlanta-based company that provides clinician staffing, anesthesia management and health care information technology solutions.  The article claims that 85% of the doctors surveyed said that the threat of medical malpractice litigation is the primary hindrance to practicing medicine as they see fit.  Furthermore, the article states “We found that regardless of a physician’s political affiliation, the respondents attributed the practice of defensive medicine to excessive waste in the health care system,” quoting Rick Jackson, chairman and CEO of Jackson Healthcare.

The problem here of course is that practice as they "see fit" is killing people.  As a medical malpractice attorney and an occasional consumer of health care, I am happy that physicians practice with one eye to medical malpractice.  The threat of medical malpractice makes them practice medicine in a way that it should be practiced.  The threat of medical malpractice makes doctors spend time with the patient and makes them order appropriate tests to rule out life-threatening illnesses.  Medical malpractice makes physicians practice medicine according to an accepted standard of care.  If they deviate from the accepted standard of care they commit medical malpractice. 

Physicians often claim that the threat of medical malpractice makes them order tests that are not really needed but they order them anyway to make sure they can avoid medical malpractice claims. The doctors claim that unnecessary tests add to the cost of health care unnecessarily - they have named these unnecessary tests "defensive medicine."  Even though that sentiment may be widely held by doctors there is no objective evidence that shows doctors are practicing defensive medicine.

The problem with defensive medicine is not that the tests are ordered but how health insurers, doctors and hospitals are paid.  Everybody gets their cut from the ordered tests.  Let's say that your doctor orders an MRI to check out your complaints of abdominal pain.  That MRI is first ordered by your physician and he or she orders you to return in a week to review the outcome of the MRI.  Caching!  That is another visit to your doctor and another fee for him or her.  You of course go to the hospital and get the MRI.  Caching!  The hospital bills the insurance company a fee for the MRI.  Caching!  The health insurer pays the bill but at a reduced negotiated rate.  Caching!  The health insurer makes money on the negotiated difference between that billed and that paid to the hospital.  You follow-up with your doctor and he or she refers you to a surgeon because your primary care physician is not an expert at abdominal imaging or surgery. Caching!  The specialist gets a fee when you visit them for evaluation.  Caching!  It goes on and on....

Maybe it is time that physicians and health care facilities get out of the habit of ordering tests so they can earn more money and practice medicine that meets the accepted standard of care!

As the health care debate goes on special interest groups are all trying to get their piece of the pie.  It should not come as any surprise that doctors, health insurance companies, medical malpractice insurance companies, large defense legal firms and health care conglomerates (Intermountain Healthcare (IHC) included) have a lot at stake in the health care debate.  To protect their piece of the pie they have engaged in publicity warfare and have painted trial lawyers, medical malpractice trial lawyers who represent the victims of medical malpractice in particular, as part of the greater health care problem. They paint themselves as the victims.  Let's get one thing straight from the get go - people that are injured as a result of medical malpractice are the victims!

Just one example of heavy publicity and lobbying efforts was reported by yahoo where the Chamber of Commerce was reported to have spent $34.7 million over the course of one quarter.  Other interested groups are also engaged in the publicity war such as the  Pharmaceutical Research and Manufacturers of America and Pfizer.  

I am a medical malpractice lawyer and I represent people who have been injured as a result of medical malpractice.  I make no apologies and go further to say that I am damn proud to be part of a profession that holds people responsible for their misdeeds.  Depending on your point of view you might think I am representing a special interest group, namely injured victims of medical malpractice and I am trying to get a piece of the health care debate pie.  That is your right but I ask that you simply keep an open mind while reading this post.

I was a registered nurse for years before I became an attorney.  I have seen medical malpractice occur.  There is no malice forethought on the part of the negligent performer.  More often than not the negligence occurs because of system problems.  As a nurse I have been involved in medical malpractice.  I did not mean for it to happen but I was negligent.  That does not mean that the person that was harmed should not get fully compensated.  If you have any doubt that medical malpractice happens and happens on a  grand scale ask any nurse you know.  If they are truthful they will admit that medical malpractice is a big problem.  The safe delivery of health care needs to improve.  We need not restrict access to justice that people so horribly damaged by medical malpractice so desperately need.

MYTHS DEBUNKED

Even if we can agree on all of the foregoing, medical malpractice myths persist.  These myths persist because the stakeholders such as doctors, health insurance companies, medical malpractice insurance companies and health care conglomerates have engaged in that publicity warfare.  Medical malpractice myths are just that, myths. Here is the truth on medical malpractice myths reprinted in part from the American Association of Justice:

• Myth #1: There are too many “frivolous” malpractice lawsuits.

Fact: There’s an epidemic of medical negligence, not lawsuits.  Only one in eight people injured by medical negligence ever file suit.  Civil filings have declined eight percent over the last decade, and are less than one percent of the whole civil docket.  A 2006 Harvard study found that 97 percent of claims were meritorious, stating, “portraits of a malpractice system that is stricken with frivolous litigation are overblown.”

• Myth #2: Malpractice claims drive up health care costs.

Fact: According to the National Association of Insurance Commissioners, the total spent defending claims and compensating victims of medical negligence was just 0.3% of health care costs, and the Congressional Budget Office and Government Accountability Office have made similar findings.

• Myth #3: Doctors are fleeing.

Fact: Then where are they going?  According to the American Medical Association’s own data, the number of practicing physicians in the United States has been growing steadily for decades. Not only are there more doctors, but the number of doctors is increasing faster than population growth.  Despite the cries of physicians fleeing multiple states, the number of physicians increased in every state, and only four states saw growth slower than population growth; these four states all have medical malpractice caps.

• Myth #4: Malpractice claims drive up doctors’ premiums.

Fact: Empirical research has found that there is little correlation between malpractice payouts and malpractice premiums paid by doctors. A study of the leading medical malpractice insurance companies’ financial statements by former Missouri Insurance Commissioner Jay Angoff found that these insurers artificially raised doctors’ premiums and misled the public about the nature of medical negligence claims.  A previous AAJ report on malpractice insurers found they had earnings higher than 99% of Fortune 500 companies.

• Myth #5: Tort reform will lower insurance rates.

Fact:  Tort reforms are passed under the guise that they will lower physicians’ liability premiums. This does not happen. While insurers do pay out less money when damages awards are capped, they do not pass the savings along to doctors by lowering premiums. Even the most ardent tort reformers have been caught stating that tort reform will have no effect on insurance rates.

Doctors, health care facilities and the health care insurance conglomerates are fond of lambasting plaintiff attorneys about how the lawyers are making out like bandits by representing medical malpractice victims.  This video puts the shoe on the other foot - it is a very funny video.

"Democrats ... want universal health coverage, believing that if other industrialized countries can achieve it, surely the United States can. For Democrats, universal coverage speaks to America’s sense of decency and compassion. Democrats also believe that it will lead to a healthier and more productive country.  ...Republicans ... want legal reform, believing that our economic competitiveness is being shackled by the billions we spend annually on tort costs; an estimated 10 cents of every health care dollar paid by individuals and companies goes for litigation and defensive medicine. For Republicans, tort reform and its health care analogue, malpractice reform, speak to the goal of stronger economic growth and lower costs."  Bill Bradley op-ed contribution to The New York Times.

Bill Bradley goes on to say that a commonsensical alternative to the current medical malpractice legal system might be the creation of medical courts something on par with bankruptcy or admiralty courts.  I have written before about the viability of "Medical Malpractice Courts" and I personally think they may be a reasonable alternative.  I know, because I have been a registered nurse and now a medical malpractice attorney, that many instances of medical malpractice go unreported because the doctor fears loosing everything he has worked for.  Doctors fear litigation, justifiably so, and as a result tend not to freely report medical malpractice.  However, their fear of litigation does nothing to compensate the patients that are harmed as a result of medical malpractice and in the bigger picture does nothing from stopping a similar cause from happening again and injuring more people.  It is all kept very hush hush and swept under the rug. Medical malpractice legal reform will not by itself bring the costs of health care lower.

That is the rub - we all make mistakes - but the injured person needs to be compensated and the system looked at to prevent injury from occurring again.  If there is to be health care reform and if that health care reform either succeeds or fails because of medical malpractice law reform we need to be open and honest first about the problems and second about the solutions.

First of all the idea that medical malpractice attorneys make too much money from the clients they represent in medical malpractice actions is just not true.  Yes - the fee is 33.3% of everything earned but a close analysis of medical malpractice cases shows that most medical malpractice cases are settled short of trial.  This datum supports the contention that good cases settle and more difficult cases go to trial.  In other words if you have a slam dunk (if there is such a thing) medical malpractice case it is probably destined to settle short of trial.  On the other hand if you have a more difficult medical malpractice case (liability is a problem or relatively small damages) chances are your case will either be dropped by the lawyer or you will need to go to trial.  Because the case is tougher (perhaps because liability is sharply contested) these cases are sometimes won by the plaintiffs but are more often lost because primarily of the anti-lawyer pro medical malpractice reform sentiment in society.

This war of medical malpractice legal reform is fought primarily in the media and manifested in the verdicts, most often for the doctor, at trial.  Who ends up being most disserved by this war is of course the medical malpractice victim.  I often have people in my office that are clear victims of medical malpractice but their injuries are too minor to support a case.  For example, a person who has non-permanent injury but left with the need for repeat surgery might launch a medical malpractice case.  However, such a case might only settle for $50,000 and once the attorney fee and costs (mostly the cost of experts to prove the case) and medical bills repaid are subtracted the injured client may only reap a retuen of perhaps $10,000 to $20,000 and that assumes that all goes according to plan and the case settles.  If the case does not settle and you need to go to trial you can expect a negative return.

Maybe medical tribunals are the way to go.  Of course the devil will be in the details.  Who decides if what a doctor did was within the standard of care?  Do we force a judicial responsibility onto the medical community relying in their ability to self-regulate their own profession?  Do we create an independent judiciary that makes tha call and determines damages?  DO we bisect the case and require liability in one forum and the amount to be paid (damages) in another?  Who are the judges going to be - doctors or lawyers or neither?

Americans for Insurance Reform (AIR) is a national coalition of public interest organizations that support effective insurance industry reforms to control skyrocketing insurance rates, reduced insurance coverage, arbitrary policy cancellations, mismanagement and other insurance industry abuses.  AIR is a project of the Center for Justice and Democracy (CJ&D) who is the only national consumer organization in the country exclusively dedicated to protecting our civil justice system.  AIR states that part of their aim is to:

Reform the insurance industry instead of
lose your rights to have your claims paid
and hold wrongdoers accountable in court.

AIR recently released a report titled 'TRUE RISK: Medical Liability,Medical Insurance and Health Care' that sheds new light on the claims of the insurance industry that should be of interest to all that claim that medical malpractice cases are driving up medical malpractice insurance for doctors.  AIR found that:

• Medical malpractice premiums, inflation-adjusted, are nearly the lowest they have been in over 30 years.

• Medical malpractice claims, inflation-adjusted, are dropping significantly, down 45 percent since 2000.

• Medical malpractice premiums are less than one-half of one percent of the country’s overall health care costs; medical malpractice claims are a mere one-fifth of one percent of health care costs. In over 30 years, premiums and claims have never been greater than 1% of our nation’s health care costs.

• Medical malpractice insurer profits are higher than the rest of the property casualty industry, which has been remarkably profitable over the last five years.

• The periodic premium spikes that doctors experience, as they did from 2002 until 2005, are not related to claims but to the economic cycle of insurers and to drops in investment income.

• Many states that have resisted enacting severe restrictions on injured patients’ legal rights experienced rate changes (i.e., premium increases or decreases for doctors) similar to hose states that enacted severe restrictions on patients’ rights, i.e., there is no correlation between “tort reform” and insurance rates for doctors.

I am an attorney who represents people and families that feel the real impact of medical malpractice.  As a past practicing nurse and now as an attorney representing injured people there is no doubt in my mind that the insurance industry in general and medical malpractice insurers in particular are excellent at what they do.  What they do is manipulate the public and their insured (doctors and hospitals) that passing legislation to limit the rights of injured people is a way to increase profits for the insurers.  The insurance companies are pitting doctors against lawyers and driving a wedge between doctors and patients.

I have always said that we have insurance for a reason - we can all make mistakes.  I carry legal malpractice insurance because I can make a mistake and cost a client their case.  If I make such a mistake my insurance will kick in and compensate my client.  The same is true for doctors.  When they make a mistake their insurance should kick in and compensate the injured patient.  The problem in this simple calculation is the insurance companies who, according to AIR, are reaping record profits on the back of injured people.

This is a reprint from AAJ: 

The injuries patients suffer from preventable medical errors are very real. Some are easily calculated, such as additional medical costs and lost wages, while others are less so, such as quality of life and pain and suffering. The problem with many medical negligence reforms is that they do not seek to prevent medical errors, but merely to shift the burden of these damages to the injured patients themselves.

Caps on non-economic damages are one such “reform” that do nothing to reform medical negligence at all. Non-economic damages compensate patients for very real injuries—such as the loss of a limb or sight, the loss of mobility, the loss of fertility, excruciating pain, or severe disfigurement, or even the loss of a child or a spouse. In the name of a “medical negligence crisis” many states have moved to cap these damages. The effect is often to render many medical negligence cases too expensive to bring to trial, especially for women, children, the elderly and the disabled—those who may not have suffered substantial economic loss. University of Buffalo law professor Lucinda Finley found that such groups received restitution far below average levels, and had a far harder time even getting to court because the expenses of a case often outweighed any potential award. She concluded, “caps benefit insurance companies by increasing their profits, while producing no benefit for doctors, and causing a detriment to injured people, especially women and the elderly.”ⁱ The “reform” takes away the restitution, but does nothing to prevent the injuries.

Civil Justice and Patient Safety
Such reforms also take away a powerful deterrent to medical negligence. The civil justice system not only provides patients with their constitutional right to seek restitution for their injuries in a court of law; it also encourages patient safety systems that help prevent negligence before it occurs. Hospitals, such as Connecticut’s Bridgeport Hospital, have reformed dangerous practices because of litigation. In some cases, entire medical fields have been transformed.

More Tort Reform Equals Worse Health Care
Medical negligence lawsuits serve an important role in promoting public health and patient safety. Evidence suggests that the lessening of accountability that comes from reforms such as medical negligence caps can have a detrimental effect on patient safety and health care quality. A study from the American College of Emergency Physicians found that safety improves when injured patients can hold negligent hospitals or physicians accountable. States with aggressive legislation limiting patient access to the legal system are also the states that score lowest in patient safety. Overall, the 10 states doctors claim have the “best liability environment” (more tort reform) have a D+ score for patient safety (just two points above fail). In contrast, the 10 states doctors claim have the “worst liability environment” have a B- for patient safety, above the C+ national average. The 25 states with “best liability environments” all rank below the national average for patient safety. 

Similarly, data collected from the non-partisan Commonwealth Fund show health care in states that cap damages in medical negligence cases tends to be of lower quality than health care in states that do not.ⁱⁱ Patients in states that do not cap damages have better access to health care and are more likely to be covered by health insurance than patients living in states with caps on damages. The aforementioned study from Tulane University also found that states with more accountability experienced lower rates of mortality.ⁱⁱⁱ Analysis by Professors David Hyman and Charles Silver also found that insulating providers from liability was detrimental to patient safety, and concluded, “The widely held belief that fear of malpractice liability impedes efforts to improve the reliability of health care delivery systems is unfounded.”^iv Professors Jonathan Klick and Thomas Stratmann similarly noted medical negligence reforms resulted in lower health care quality and increased infant mortality.^v

This is a reprint from AAJ: 

Although much attention has been given to “medical negligence liability crises,” in reality, very few injured patients ever file a medical negligence lawsuit.

In 2006, researchers at Harvard University announced the results of a study showing that most negligence claims involve medical error and serious injury, and concluded “portraits of a malpractice system that is stricken with frivolous litigation are  overblown.”ⁱ The researchers found that few claims were without merit, and those that were generally did not receive any money. Most negligence claims were meritorious, with 97 percent of claims involving medical injury and 80 percent involving physical injuries resulting in major disability or death. Few claims where there was not error were ever paid. In fact, researchers found the reverse--non-payment of claims where error was involved—was a bigger problem.

Co-author William Sage commented, “These findings are absolutely no surprise to any of us in the policy community. They are consistent with everything we suspected and learned from research over last 20 years, which is that the major problem out there is medical errors that are not compensated, rather than frivolous claims that are compensated.”ⁱⁱ

This conclusion did not surprise the patient safety movement. Kaiser Family Foundation President Drew Altman said, “Maybe the question instead of 'Why do we have so many lawsuits?' is 'Why do we have so few?”ⁱⁱⁱ

According to the National Center for State Courts (NCSC) only about six percent of the civil caseload is comprised of tort cases. Of that subsection, just three percent comprise medical negligence cases. And even that tiny number has declined by eight percent over the last 10 years.^iv Data from other sources such as the National Practitioner Databank, to which all physicians’ medical malpractice payments must be reported, confirms the same downward trend.^v

When the number of medical negligence payouts made every year is compared to the number of suspected deaths from preventable medical errors, it is easy to see why researchers have concluded that there are too few malpractice claims, not too many.^vi