Comments on: Tort Transform

By: Robbo

Robbo — Sat, 24 Jul 2004 04:22:23 +0000

re: “After all, the goal of medicine is to make people well, not to follow the rules.” Yes, but that isn’t always possible… moreover, in a long-term sense, it’s NEVERY possible to do this indefinately. We all die, eventually… the question is in a malpractic case, who’s fault is it. The point is medical malpractice is asking the question “Did the doctor cause this person’s injury (death, disability, etc)?” That often is very difficult to prove, and even “experts” don’t always agree. And as I mentioned above, even when they do, they often don’t agree with the 12 people off the street who comprise a jury. One solution is to adopt a “no fault” system, like much of western Europe has. That would actually be supported your line of reasoning over the current system. Why? Because then you don’t have to prove anyone did anything wrong, just that someone is hurt. So even if everyone did “everything right” the patient still gets compensated (sort of like, as one poster mentioned, Worker’s Comp). The other is to have a court system with special expertise in medical law. The judges would have expertise because they could get extra training, and then would learn even more over time, because all of their time would be spent on these cases (and not a little medical tort, a little family law, a little bit of traffic court, etc…). Or there could be panels of experts who decide the cases. The point is the possibilities are limitless; and there are myriad alternatives that would (a) be more fair and rational, (b) cost less to our economy, and even (yes!) (c) get more money in the proper hands—the patient (and/or family) that suffers. The only people who lose are the lawyers…

By: Robbo

Robbo — Sat, 24 Jul 2004 04:08:31 +0000

Thomas, congratulations on sparring with the red herring. Well, first of all, California didn’t “get rid of it,” they put caps on awards; the merely revised the system, not abolished it. California’s system is not the system I’ve advocated… yes, the AMA and some tort reformers advocte it; but it is also a broken system. And yes, there is ample evidence that juries make awards on sentimentality. Not all, no… but in this area, and many others, juries often make awards based on sentimentality. The idea of the award being awarded on the “sympathy” factor didn’t originate with me. It originated with a study from Harvard Medical School, the most powerful of multiple studies that have examined the issue. The study put real medical mishaps in front of a panel of “experts.” Granted, these experts weren’t omniscient, but they certainly were well informed, in that they were medical school professors. They basically were allowed to “know” everything the jury “knew”—short of the verdict. The result was the “experts” didn’t agree with the juries much. In many cases where the jury awarded for the plantiff, the experts saw that there was a sad outcome, certainly, but no wrongdoing by the defendant. But before you charge that they were merely extending “professional courtesy,” they also found a great number of cases where the doctor was exhonerated by the jury, and the experts deemed them negligent. The authors of the study, in their opinion, stated that the difference in opinion between the experts and the juries was often due to whether or not a plantiff/victim (and/or his/her family) “resonated” with the jury… The point is that the information is complex, and in the absence of understanding, emotion often becomes the deciding factor. The solution isn’t to abolish courts or the rule of law (I never suggested that—read my posts again). The solution is to establish a completely separate court system, that does nothing but decide medical malpractice. This would be much like there is a separate court system to decide patent law cases, so it isn’t without precedent in our legal system. Your comments about Iraq, government waste, etc, not withstanding, the fact remains that in spending not entirely controlled by our government, healthcare is probably the biggest albatross on the neck of our economy. Multiple threads on this website have demonstrated just how much more the USA spends, per capita, than any other country. I’ve outlined in multiple ways how the current tort system contributes to this; you have not in any way refuted this. Your reply basically is summed up with “there’s no other way to do this that won’t cheat the victims.” The truth is there are other possible ways to compensate victims and not enrich lawyers; many other countries have such systems in place already. Then there are other ways The biggest obsticle to doing away with the current system is not in finding a viable, fair, and just alternative; the biggest obsticle to doing away with the current system is the current system supports an entire “cottage industry” of personal injury lawyers and their employees, and tort reform is a threat to their livelihood. The problem is their livelihood syphons off the rest of us…

By: Thomas Dent

Thomas Dent — Fri, 23 Jul 2004 11:28:49 +0000

I like that. It’s not tax cuts, it’s not the war in Iraq, it’s not pork, it’s MEDICAL LIABILITY INSURANCE and MALPRACTICE LAWSUITS that are causing the enormous deficit and are at the roots of economic malaise! The Republicans send their love. I don’t see any real evidence that the current system punishes based on the “sadness” of an outcome. This is a pretty funny word to use. The death of your pet hamster is “sad”: for a normal child to be permanently disabled and brain-damaged because of a bad medical decision is more than sad. I suppose you want to say that juries are sentimental fools who don’t care whether or not what the doctor did what was right, only about the result. To show this, you’d have to prove that juries took little or no account of medical competence in deciding awards. The alternative, I suppose, is to sue or punish in every case where a mistake was made regardless of the severity of the consequences. Now, I certainly think that mistakes with very bad outcomes ought to be punished more severely than those which turn out all right in the end. After all, the goal of medicine is to make people well, not to follow the rules. To argue that the current system is nowhere near perfect, therefore we have to get rid of it, is incoherent. California did get rid of it, and the results there are, arguably, no better, because some people cannot obtain redress at all. The danger is that insurance premiums get reduced but the standard of care for a minority of unlucky people decreases. The lucky, relatively healthy majority benefits at the expense of the unlucky minority who are the victims of medical mistakes. This is precisely the sort of inequity that the legal system is made to address, which is why one should be very wary of taking power away from courts and juries and giving it to politicians and corporate bodies such as HMOs. Finally, the complaint that lawyers make a lot of money at malpractice. As we all know, they only make money if they win cases, and in all cases the plaintiff gets more money than the lawyer. This division is agreed between plaintiff and lawyer. So, if you want to stop lawyers making money this way, you must also want to stop plaintiffs being awarded substantial non- economic damages. So what is your alternative? What else can serve the dual purpose of adequately compensating victims of gross incompetence or neglect, and adequately punishing or deterring those that would commit it? What, apart from a court of law, could legitimately make an equitable decision in such cases?

By: Robbo

Robbo — Fri, 23 Jul 2004 02:39:46 +0000

Thomas Dent wrote: “How can this be done without a system which severely penalizes the worst?” I’m not arguing with that… what my beef is with is the current system, which does not punish “the worst.” It punishes based on the sadness of an outcome, not on lack of clinical competency. There are many, many well-designed studies that show this is true when viewed at a variety of angles. As mdjd said, the current system does less to encourage quality than it does to enrich lawyers. IF the system could encourage quality I’d be all for it. However, it’s hopelessly not doing that, it’s bankrupting our economy, and therefore it needs to go…

By: Thomas Dent

Thomas Dent — Thu, 22 Jul 2004 13:04:07 +0000

One thing I don’t understand is the rhetoric applied against “preventative medicine”. That is, spending more money now in order to avoid the risk of having to spend a lot more money in the future (and of having a severely ill patient). What happened to the idea that prevention is better than cure? As well as the fact that most illnesses are much easier to treat when diagnosed early. I don’t see any “demonization” of doctors in this thread. A small minority of them who do charitable work, etc., are no doubt praiseworthy, but are also quite irrelevant to the discussion. I suppose putting in place a system of no-fault compensation for catastrophic errors in treatment would address some of the concerns. But we also want to maintain pressure on doctors not to make mistakes, and on HMO’s not to put profit before care. How can this be done without a system which severely penalizes the worst? Possibly one could require doctors and other care providers to publish statistics on their success rates. That way, patients could really have an informed choice and could have the power of customers in the market. However, doing this consistently with confidentiality appears difficult.

By: eudoxis

eudoxis — Wed, 21 Jul 2004 20:40:52 +0000

So, um, capping awards as one step in an incremental approach is myopic, but allowing medicare, which sets the pace in reimbursement by reimbursing care at less than cost (capping), to ” restructure the way med mal claims involving Medicare and Medicaid patients are treated” and passing the cost on via reimbursement is “brilliant”? Medicare, in its general approach of unfunded mandates and stultifying standards of uniformity has been a major force in the structure of inefficiency of medical practice and cost-shifting to the private sector. I would think that the goal of medical expenditures is not divorced from improvement in the practice of medicine. There is no indication that unleashing the big dog off the porch would improve patient care. Rather, it would result in a big disincentive to those institutions where exellent medicine has been the main weapon in an arsenal to fight lawyers in a battle over the health care dollar.

By: robbo

robbo — Wed, 21 Jul 2004 18:45:55 +0000

serial catowner: Well, the decision as to hire RN’s (vs other professionals) doesn’t always lie with the physicians. More and more physicians I know are employees, and have less and less decision-making power about their work environment. My impression is that more and more, those decisions are made by MBA’s running increasingly large and impersonal hospital and large multispecialty groups. IMO, it’s the trend of physicians having less control over their practices has played a part in the depersonalization of care. Yes, there are doctors who basically run their practices in “auto-pilot” and let “physician extenders” see patients in conjunction with MA’s and the like. The solution isn’t to demonize all physicians. IMO, the solution is to change the system. Why? Because CPT and E&M guidelines rewards doctors who zip through a million patients a day. We need a re-vamping of the system on that end, too, so that a doctor who spends more time with their patient and bills a high level of service isn’t looked at as “kook” by his employer and a potential “fraud” by the Centers for Medicare and Medicaid…

By: Robbo

Robbo — Wed, 21 Jul 2004 18:36:28 +0000

Thomas Dent wrote: “And here’s a case where an $800 CAT scan was the correct thing to do…” I’m not arguing there aren’t such cases, nor that they aren’t sad, or that some of them aren’t preventable. I’m not even stating that doing the CAT scan is a wrong thing to do, in a general ethics sense. It basically boils down to a question of “how much do you want to pay for all of these cases to be prevented?” Because it does cost something to do the tests; and deciding when they are absolutely necessary isn’t always clear at the time they’re done. If Americans are comfortable that their health care is MUCH more expensive than the rest of the world, it’s OK to strive to prevent all of these cases. But the problem is, Americans are unhappy with the cost of healthcare. And somewhere, something has to give (because professional salaries are a much smaller cost of the overall health expendatures than things like high tech tests…). “There is a kind of myth here that care providers are in the business out of the goodness of their hearts and would never intentionally do put profit before delivering the best medical care” That’s a bit of an overgeneralization, no? I do know doctors who fit this (as well as the comments of serial catowner). But I also know a number of doctors who spend their vacation volunteering their time in third world countries treating people who would otherwise have no health care—or “spelling” overworked doctors in those settings (some of whom are US trained physicians). These doctors spend their own money to get there, and their only pay is the thanks of the patients they treat. Yes, this is the exception, but they do exist… Plus, I think that “myth” is about 15 years out of date. I think most of the public sees doctors as grossly overpaid and greedy. (Nevermind that most primary care doctors earn less than a lot of engineers with fewer years of schooling much less school debt…).

By: Robbo

Robbo — Wed, 21 Jul 2004 18:35:31 +0000

By: robbo

robbo — Wed, 21 Jul 2004 18:24:48 +0000

Ross: on 1) That’s true; I guess my fear is that the attorneys seem to be more entrenched in the various levels of goverment and beaurocracy than are doctors and insurers (some of it by the nature of the jobs…) re: 2) You’re right… it could be a sticky wickett to get those panels appointed. However, I do agree with MDJD that physicians appear to have been policing better themselves than attorneys… not that that’s saying much (attorneys police themselves about as well as 3rd world dictators do), but I do think it’d be an improvement over the current system. It may sound naive, but at least doctors would have a stake in “purifying” their profession… rather than trying to reap millions out of the system in the name of “fixing” it. Also, I do think if you took away some of the malpractice stigma with a combo of an error-reporting system and injury-related compensation system, it could create an atmosphere of getting rid of the “squeeky wheels” and making sure people were taken care of adequately for real damages/needs related to bad medical outcomes. In fact, then it wouldn’t necessarily need to be a neglegence-related issue. (ie: if you just happen to the be the sorry person who has the 1/1million disease, we can help you as a society, even if your doctor did everything reasonable to look for the cause before the zebra stamped all over your health). I must say, however, I shudder at the thought this might look like Worker’s Comp, because that system keeps a lot of attorneys VERY well employed, and razes a few thousand acres of forest a day to keep the paper mills running… re: 4) I think that you’re exactly right. Some of it is like you said, patients expecting to get a doctor visit, MRI, 2 prescriptions and a backrub on the way to their car for their $20 co-pay; and the specialists certainly have a double-incentive to do what the patient wants (ie: I get paid if I do what they want and I might get sued if I don’t!). But I do think some of it is the litigation climate creates a sense, like I said earlier, of “any time I don’t get better means my doctor is incompetent” attitude in the USA. IF you want to have doctors “be the bad guys” and tell patients that they aren’t getting tests they want but don’t need, you need to protect them, for the sake of our society. (Else, as you said, they have little reason to put up a fight! If the patient is the one in a million whose back pain is a spinal tumor and not a muscle pull, well, he/she’s SOL if he/she doesn’t get the MRI the patient wants!) The Supreme Court has recently ruled the HMO’s aren’t on the hook for these decisions (because of ERISA, all those “sue your HMO” state laws are now unconstitutional), so it basically is going to all fall on the doctors, as things stand now. As it stands, neither party, IMO, is doing enough to push through the patient’s bill of rights bill through to make insurers more accountable for denials. OTOH, this bill might just multiply the effect you mentioned: suddenly, it IS the patient’s right to have that MRI. So while I’m no fan of the tactics of insurers in this country (there’s no accident most have been named in collusion/racketeering suits), I’m not exactly thrilled about this sort of bill, either, for fear of strengthening an entitlement mentality toward health care that’s already draining our economy.

By: MDJD

MDJD — Wed, 21 Jul 2004 13:23:32 +0000

The issue of medical malpractice always seems to boil down to “bad doctors who hurt patients vs greedy lawyers”. Neither position will help the problem or even let us know if there is a real problem. The issue should probably be “do physicians operate under the same rules as lawyers regarding malapractice/”. The Bar sanctions many less lawyers than medical boards sanction physicians. This would suggest that if self regulation is ok for lawyers then it would be ok to turn regulation completely over to medical boards. Objectivly medical boards do a better job than the bar. In legal malpractice the plaintiff must prove that they would have won the case except for the malapractice, not that they had a better chance of a good outcome. This would suggest that a med mal case should be dismissed unless the plaintiff can prove they would have been in perfect health when treated by the method the plaintiff claims should have been done. If a plaintiff received a settlement they can’t win against their attorney just by saying that they should have gotten more money. If a patient gets a recognized complication than any suit based on avoiding it would be dismissed at the pleading stage. Attorneys are also not liable for bringing suits which were unsuccessful. When a former plaintiff gets a multimillion dollar settlement for the “pain and suffering” that going through the litigation process for a weak suit brings then I’ll believe it is an equal system. Enterprise liabilty is interesting but just a joke until judges can be held liable as part of the tort system, ie if they allow a judgement based on junk science(CP as birth trauma) they are personally liable for the damages.Until then we must understand that this is just a political question about protecting lawyers income, not a discussion about improving medical outcomes.

By: Thomas Dent

Thomas Dent — Wed, 21 Jul 2004 10:00:11 +0000

I would be interested to know the real proportion of migraine headaches that get treated with CAT scans. I suspect it is not very high, at least where HMO-funded care is concerned. In California, HMOs are effectively shielded from any serious liability, they are free to give inferior care to any patient who doesn’t have the money to sue them and get large economic damages if something goes wrong. How can a good standard of care be enforced if there is no incentive to give good service rather than mediocre? And here’s a case where an $800 CAT scan was the correct thing to do and would probably have saved hundreds of thousands of dollars, as well as saving a family from a lifetime of despair: http://www.consumerwatchdog.org/healthcare/fs/fs003009.php3 For every anecdote of a ‘crazy’ jury, there’s another anecdote – or many – of a life ruined by inadequate or incompetent medical care. There is a kind of myth here that care providers are in the business out of the goodness of their hearts and would never intentionally do put profit before delivering the best medical care. No, healthcare is run as a business, and one where the customer – far from being always right – has virtually zero power.

By: Andy

Andy — Tue, 20 Jul 2004 22:22:46 +0000

I like Robbo’s solution, though my analogy was to workers’ comp (itself not a perfect system, but arguably an improvement over what we have now). Simple negligence gets handled through the MedMal Board, which can flag doctors, award damages, etc. Gross negligence, including cover-ups, remains actionable. Since the latter cases are the punitive-damages bonanzas, there’s a huge incentive for doctors, etc. to self-report, protecting themselves & creating a paper trail that allows the repeat offenders to get their licenses yanked. With a more open system, the systemic causes of medmal can be analyzed and diminished.

By: serial catowner

serial catowner — Tue, 20 Jul 2004 21:24:52 +0000

As a nurse and a patient, I find the comments interesting and a little amusing. To start with, very few doctors have A CLUE about what is happening. They act like robots, and pretty much trust that if something is really wrong, or out of the ordinary, someone else will catch it. They supplement this ignorance by constantly lobbying to lower the standards for the people they hire as ‘office assistants’ so they can pay these people less. But, not to worry! The average patient knows less than the average doctor, and your chances of finding a good lawyer aren’t that good. Based on what I’ve seen personally, the chances of a plaintiff’s attorney presenting a credible threat to a malpracticing institution are way below 1%. By now, ‘tort reform’ is a part of so many Republican speeches that they probably don’t even really want to fix it. So things will go on pretty much as they have. When the stock market dips, the insurers will blame the plaintiffs for their financial losses. The doctors aren’t going to change a system that lets them function on autopilot for their working life. And advances in health will come from improvements in nutrition and workplace safety, as they have for the past century.

By: Ross Silverman

Ross Silverman — Tue, 20 Jul 2004 20:29:45 +0000

Thanks to everyone for their insightful comments. A few responses, questions and thoughts: 1. Robbo, I agree that implementing the system Sage proposes is utopian, including for the reason you state in point #2 – trial lawyers aren’t going to give up their livelihood lying down. But the insurance companies (including the physician-owned med mal insurers) aren’t going to take it lying down either. 2. On the issue of panels of experts: in the abstract, I am in favor of this approach to adjudicating injury claims, however, given the political system in which we currently operate, I am skeptical of the ability to find truly “objective” expertise on the subject. Who, exactly, would be responsible for putting together these expert panels? Who would be responsible for putting in place the people in charge of deciding who comprises these panels? Having worked in the past for state licensure boards, I know the power state medical societies have over every aspect of state government which purports to offer “oversight” over their profession. Will we be satisfied that putting the fox in charge of the henhouse is both scientifically and morally the best approach? How is that different from the conduct you deride in your lawyers-to-legislators-to-lobbyists statement? 3. I fear my summary of Sage’s Medicare use proposal was somewhat reductive—I am certain he is aware of the RVU system, but his proposal does not stop with RVUs. It also would take advantage of Medicare’s administrative adjudication (faster and less expensive case handling, no juries so more “reasonable” payouts) and the power of its quality initiatives to reduce costs. 4. Robbo, On your second post, your scenario tells only a part of the story, and leaves out the nature of the U.S. health insurance system, which insulates specialists and patients from the consequences of overuse of services. Some of the problem may be hunting zebras, but some of it is also getting paid to give the people what they want. To this point, it’s difficult to separate out one from the other, at least with hard data. 5. The expert witness issue is a problem – on both sides. Few local providers are willing to step in when one of their colleages are on the firing line, which means “hired guns,” a further distortion of the system and more costs incurred in each case. 6. Punitive damages are relatively few and far between in med mal cases. Furthermore, while part of the problem of rising claims values is with non-economic damages, the rising amounts are also due to increases in economic damages. Not a lot of data has been released by the insurance industry about the breakdown of Economic/Noneconomic damages in cases (we hear wild anecdotal cases, but those are exceptions, not the rule). As was recently stated in the LA Times about the RAND study of the California law, One of the chief goals of California’s malpractice cap was to keep medical malpractice premiums affordable for doctors by limiting insurers’ payouts. The Rand study didn’t assess whether it has made any difference in premiums. Nick Pace, the study’s lead author, said that would have required insurers to open their books so researchers could scour their claims-paying history and other variables.