Friday, March 11, 2011

3/11/11 - State and Federal Med-Mal Reform

Liability & Health News Update
3/11/11 - State and Federal Med-Mal Reform

((Donna's in-article comments in blue italics. Please scroll to the end for more information, disclaimer, etc.))

1. Donna's Commentary

A recent article in a Pittsburgh paper mentioned that PA's trial lawyers are "strongly opposed" to any talk of tort reform in the state.

"Strongly opposed" is putting it lightly. They're hysterical, and looking for every possible opportunity to knock it down before it gets too far.

Recently, I arranged for a physician to participate in a local TV show's panel discussion about medical liability reform in PA. The other guest was a hospital's lawyer and a local personal injury lawyer, but the fourth guest was VERY instructive about how "on this" the state's trial lawyers are at the current time.

Even though he lives two hours away, and the show is to the Lehigh Valley, a former president of the Pa Trial Liars (I mean LAWYERS!) Association drove to Allentown in a blizzard to lend a hand to the local lawyer. Interestingly, although this lawyer has NO REASON be nice to me (considering that we've been on opposite sides of this issue for a long time), you'd have thought he was my best friend at the end of the show, asking me to reach out to PA's doctors to persuade you that the Fair Share Act will protect hospitals while leaving physicians out in the cold....can we spell "DIVIDE AND CONQUER?"

Here's a link to the show, if you're interested - Dr. Tom Bonekemper was brilliant speaking on PA's doctors' behalf. Ironically, the producers of the show didn't even ASK a doctor to participate. They asked me, and when I learned they hadn't bothered to ask a doctor to talk about medical malpractice (can you even conceive of that?) I contacted Dr. Bonekemper to see if he'd be willing to do it, and then told the show's producers that I was replacing myself with the doctor they should have asked in the FIRST place.

Medical Malpractice in PA "Do We Need Tort Reform or Do We Have It?"

I'm hopeful about medical liability reform in PA....but I'm not holding my breath, since I recall that it was two Republican judiciary committee chairs who threw up roadblocks in their committees to prevent a House or Senate vote on a caps amendment bill until the session ran out several years ago.

That said, I DO trust Majority Leader Mike Turzai's commitment to substantive medical liability reform in PA, as he and I share that commitment to PA's health through our physician spouses. I also trust Gov. Corbett's promise to effect liability reforms, and I KNOW that PA Rep. Curt Schroder will be out there fighting for it, even though he has to be REALLY tired of fighting the same fight by now. (I know I am.) Thankfully, he hasn't given up on it, as I know many physicians have.

THAT, unfortunately, is the worst mistake any Pennsylvania physician (or physician's spouse or other supporter) can make. Once doctors and other health care providers sit back and let OTHERS effect health care policy for them, it's over, and it's patients who will suffer for it.

Legislative advocacy is just part what doctors have to do now to protect their patients and their profession. Participation in the political process is the OTHER thing doctors have to do. Run for office, or choose a candidate to support - especially THIS YEAR, with judicial elections on tap in counties and at the state level. Know that the personal injury lawyers who WANT TO SUE YOU whether you've done anything wrong or not WILL BE SUPPORTING judicial candidates. Quid pro quo, you know. are stories about medical liability reform from Pennsylvania, and further down, federal stories. A House subcommittee has passed a caps bill at the federal level. Will it die in the Senate? Probably. But that doesn't mean we should use it as an opportunity to raise public awareness and debunk trial liar (I mean LAWYER!) lies. We'll hit on all of those in a later issue.

Stay's going to be a bumpy ride.



2. From Majority Leader Mike Turzai
The Fight to End Lawsuit Abuse Begins in PA House As ‘Benevolent Gesture’
Heads to Senate

((Got word from a much-respected PA state rep whom I consider one of my personal med-mal heroes that this measure can be likened to the baseball player who bunts to get on base, because a heavy hitter is up to bat stay tuned!))

The first bill to attack the prevalent abuse of Pennsylvania’s civil justice system passed the House today, Majority Leader Mike Turzai (R-Allegheny County) said.

“Our job is to protect ALL Pennsylvania residents and employers. With today’s lawsuit-happy environment, employers are choosing to move out or head somewhere other than Pennsylvania,” Turzai said. “The House plans to vote on commonsense legal reforms aimed at bringing fairness, balance and stability to Pennsylvania’s civil justice system, and benevolent gesture is the start.”
Fear of litigation has hampered some medical providers from giving a full disclosure of unanticipated outcomes. For this reason, 35 states have passed immunity for apology laws.
House Bill 495, authored by Rep. Keith Gillespie (R-York County), would allow doctors and health care providers to apologize or offer expressions of grief without fear their words will be used against them in court.

Contact: Stephen Miskin

From the Pittsburgh Post Gazette
Bill in state Legislature aims to let doctors explain mishaps
Tuesday, February 15, 2011
By Steve Twedt, Pittsburgh Post-Gazette

It was not much more than a passing mention in the State of the Union address last month. In an effort to further reduce health care costs, President Barack Obama said he was "willing to look at other ideas to bring down costs, including one that Republicans suggested last year -- medical malpractice reform to rein in frivolous lawsuits."

With newly installed Gov. Tom Corbett already on record as favoring malpractice reform, Mr. Obama's remarks raise the question: Are there major medical liability changes in store for Pennsylvania?

Not necessarily, says Tim Conboy, an attorney with the Downtown firm Caroselli Beachler McTiernan & Conboy, and president of the trial lawyers' group Pennsylvania Association for Justice.

"I think a lot of people have misinterpreted what the president was talking about," said Mr. Conboy. The "reforms" the president's referring to are already in place here, he said, such as a program adopted in 2002 that requires a medical expert to vouch for a lawsuit's merits before it can proceed.

"The reality is, there is no [medical malpractice reform] crisis in the state of Pennsylvania. Claims are down, payouts are down. We've shown that year in and year out. We already have substantial medical malpractice reform." ((How many lies can you find in those four sentences....?))

Physicians, not surprisingly, have a different perspective.

"There still are a lot of people who continue practicing defensive medicine in an attempt to protect themselves from lawsuits," said Ralph Schmeltz, a Mt. Lebanon endocrinologist and current president of the Pennsylvania Medical Society.

"And there are still a lot of cases that are brought inappropriately, if you look at the results. The defense wins in 75 to 80 percent of the cases."

Mr. Conboy counters that "lawsuits only occur when there are errors. The answer to those who say there are too many lawsuits is to reduce the number of errors." ((ARGH! It is comforting to know, however, that they don't have any NEW talking points, since we're all so good at debunking THESE....))

No one denies that mistakes can happen during treatment, and the state medical society is hoping that a bill going before the Pennsylvania House Judiciary Committee today eventually becomes law.

HB 495 says that if a physician is candid with the patient about a mishap and apologizes -- a gesture that may head off future legal action -- that the admission will not be used against the doctor in court. It also would not block a patient from filing suit.

"When a poor outcome occurs, patients want answers and physicians very much want to provide the patient with those answers," Dr. Schmeltz wrote in a letter to committee members.

"Unfortunately, the very real concern that personal injury lawyers will use benevolent gestures or admissions of fault against them makes many physicians reluctant to have that important conversation with their patients. This understandably frustrates and angers patients, and precipitates lawsuits that otherwise would not have been filed."

Medical negligence lawsuits can take a personal toll on physicians, too.

Just last month, retired cardiovascular and thoracic surgeon David Lolley, 68, of Indiana Township successfully defended himself in a medical malpractice case filed in 2009 -- about 18 months after his retirement. A former patient sued him for complications that surfaced about a week after Dr. Lolley performed an emergency procedure that probably saved the patient's life.

Although confident he had treated the patient appropriately, Dr. Lolley spent 18 months contemplating what would happen if the suit were successful -- and how he would pay for damages since he no longer had an income from treating patients.

"Financially, they wanted everything I had and more. You're put in financial jeopardy."

Pittsburgh-based pediatric neurologist Rajiv Varma said he was once sued by a 45-year-old woman -- even though he treats only children. It turned out to be mistaken identity; a physician with the same last name had been involved in the case and had since left the area.

Still, Dr. Varma said it took two years to get his name removed from the lawsuit. "For the two years, lawyers went to every deposition so that they could defend me in a case where I had never seen the patient."

He said he advises his medical students to protect themselves against possible suits. "I deal on a daily basis with the practice of defensive medicine," such as ordering extra tests on the remote chance it might detect some unlikely anomaly.

All of those tests only add to the nation's health care bill, he said.

"As one looks at how we're using resources, you don't feel good about defensive medicine," said Dr. Varma. "But I know plenty of cases where you do the right thing but the outcome is bad, and those cases end up being sued."

He also worries that practicing defensive medicine could create future problems if, for example, currently accepted radiation levels from those extra scans are one day found to be harmful to his young patients.

"How would I feel 10 years down the road if, in practicing defensive medicine, I've actually ended up hurting some children?"

Steve Twedt: or 412-263-1963.
First published on February 15, 2011 at 12:00 am

3. Pittsburgh Post Gazette
Turzai seeks changes in how damage awards are made in suits
Sunday, February 13, 2011
By Tom Barnes, Pittsburgh Post-Gazette

HARRISBURG -- Two groups with political muscle are wrestling over a proposal that would lessen large damage awards in some personal injury or product liability lawsuits.

State House Majority Leader Mike Turzai, R-Bradford Woods, is pushing what he calls the "Fair Share Act," also known as House Bill 1, so numbered because Republicans have put it at the top of their to-do list in the new legislative session. It's also a top priority for trial lawyers, who are strongly opposed.

Under current law, if two different firms provide a product or service, either one can be held 100 percent responsible financially if something goes wrong and a user is injured.

Mr. Turzai said that's not fair. He said that if a firm made only 10 percent of a defective product or service, its liability should be 10 percent, not 100 percent.

Mr. Turzai argues that the bill, which he considers long overdue, will make Pennsylvania more business-friendly, attract new companies and keep existing ones, thus increasing private sector jobs in the state.

The Fair Share Act was almost enacted twice in recent years and is now closer to reality than ever before, with pro-business Republicans running the House and Senate and GOP Gov. Tom Corbett in office. Many business and hospital lobbyists have lined up behind the bill, which could soon face its first test, a vote in the House Judiciary Committee.

"The political climate is right for this now," said Gene Barr of the state Chamber of Business and Industry. "We have a window of opportunity, but I'm not sure how long this window will stay open."
Trying to slam the window shut is Tim Conboy, a Pittsburgh attorney who heads the Pennsylvania Association for Justice, formerly known as the state Trial Lawyers Association. He contends the bill will make it harder for victims of defective products and services to get "full and fair reimbursement" for their pain and injuries.

He said that tort lawyers, those who represent clients "harmed by an act of negligence," will press legislators to oppose the bill. The lawyers group has clout because it's always among the top campaign contributors to lawmakers. ((A tad more specificity is required here - the lawyers' group has clout because it's the top campaign contributor to Democratic candidates.))
Mr. Turzai describes the bill as "tort reform," but Mr. Conboy calls it "wrongdoer protection."

"We are fighting for the rights of future victims of negligence," people who will be injured in the future and will find it hard to sue the makers of defective products if the law is changed, he said.
The actual name for the current policy is complicated -- "joint and several liability." It means that if two (or more) firms contributed to making a product, they can be held jointly responsible for the damages. If one company can't pay, then the other(s) can be made to pay 100 percent of a court verdict. Mr. Conboy said "joint and several" is centuries old, dating back to English common law, and has been the standard in Pennsylvania for more than 200 years. ((And almost every other state has ALREADY done away with it, because it's WRONG.))

Mr. Turzai said many other states have eliminated what he sees as an anti-business policy. Mr. Conboy said the "joint and several" policy is nowhere near the top of a company's reasons for locating in a particular state, adding that weather, transportation costs and workforce competence are much more important.

(( Pennsylvania's weather sucks and its workers are incompetent, Mr. Conboy?))

Current law would mean that if ABC Co. and XYZ Ltd. made a product together, but ABC has gone out of business by the time a jury verdict is handed down, XYZ is on the hook for all the court-ordered damages, even if it had only a small role in making the flawed product.

Mr. Conboy counters that changing existing law would deny an injured plaintiff "full and just compensation" for injuries. He used the example of a case where two men drive up to rob a bank. The getaway driver keeps the car running outside while his partner goes in and kills a bank teller. Both men can be held liable for murder because both were involved in the crime, he said.

A pro-business group, the Pennsylvania Business Council, has put on a push for the Fair Share Act, including a recent seminar where Mr. Turzai, state Sen. Jake Corman, R-Centre, and others spoke on behalf of it.

"We lost nearly a decade in getting this common-sense law enacted, and it's time to get it on the books," said David Taylor, president of the Manufacturers Association. He urged an end to "a 'lawsuit lottery' mentality."

That referred to claims that some plaintiffs and personal injury lawyers file "frivolous" suits, hoping to get large jury verdicts or large out-of-court settlements from defendants.

"These frivolous suits cost Pennsylvanians in the form of higher costs for products and higher taxes," contended Kevin Shivers of the National Federation of Independent Businesses, which represents smaller firms.

The "joint and several" policy has led some companies and doctors to move out of state to avoid getting hit with large verdicts, Mr. Turzai said.

Another problem with "nuisance suits," as corporations call them, is the need to put "wacky warning labels" on products, said Mr. Taylor. For example, he said, a paint-peeling tool, with temperatures of several hundred degrees, needed a warning label that said, "Don't use as a hair dryer."

It may sound funny, he said, but it's sad that manufacturers have to resort to such labels to keep a person from misusing a product and then suing for damages.

Mr. Turzai has a second weapon in his pro-business arsenal, a bill to cap "non-economic damages" in suits, meaning amounts given for a defendant's "pain and suffering."

Someone hurt by a defective product or service is entitled to "economic damages" to compensate for lost wages and hospital costs. But many juries also tack on thousands or even millions of additional dollars for "pain and suffering."

Critics consider such damages to often be a subjective or nebulous concept. Corporations, hospitals and doctors would like to limit non-economic damages, perhaps to $250,000 or $350,000 per case.

But Mr. Conboy said such caps are unfair. He called them "nothing more than a bailout for big business" and said they would "harm those who are severely maimed or killed by wrongdoers."
Tom Barnes: or 1-717-787-4254.

4. Interesting factoids from various sources

((Comparing the rate of increase in malpractice premiums to some other things Americans pay for....))

Gasoline - 1976 - $.60 1999 - 1.17 2008 - 3.23 2009 - 2.51 318% increase
Stamp - 1976 - $.13 1999 - .33 2009 - .42 223% increase
Dozen eggs - 1976 - $.84 1999 - 1.08 2009 - 1.84 119% increase
Gallon of milk - 1976 - $1.65 1999 - 3.32 2009 - 2.69 63% increase
New home 1976 - $48,000 1999 - 195,800 2009 - 232.800 383% increase

Total medical liability premiums in the U.S. grew by nearly 950% from 1976 to 2009.


5. From the Serious Medicine Strategy Blog
Obama on Malpractice Reform: No Change That We Can Believe In
Sunday, January 30, 2011
((This is LONG, but worth every moment you'll spend on it. I especially love the computer screen shots which prove the author's points...))

Did you see that Barack Obama is now pushing medical malpractice reform, as part of his moving to the center? You would be forgiven if you got that impression, because the idea that the administration has moved to the middle on malpractice has been a major meme emerging from the President’s 2011 State of the Union address. And yet it’s simply not true.
The White House and the Democratic Party are still as devoted as ever to the financial interests of trial lawyers--no matter what the cost to the country.Gullible media coverage aside, there’s no real evidence that the President has given an inch on the basic issues of medical lawyering and liability. Nevertheless, those are the issues that are not only making healthcare more expensive, but are also stifling the Serious Medicine innovation that would make healthcare cheaper, as well as better.
After all, it’s not what lawyers do to doctors that matters most, it’s what lawyers do to us--to our health and to our life-prospects.Yet many Americans might have the impression that something big is happening in medical malpractice, that the political ice is breaking on “med mal.” In the course of defending his Obamacare legislation in his January 25 SOTU Obama declared, “I’m willing to look at other ideas to bring down costs, including one that Republicans suggested last year--medical malpractice reform to rein in frivolous lawsuits.”
Those 26 words set off a wave of media interpretation--and over-interpretation. A headline at a affiliate read, “Obama pushes limits to medical malpractice suits.” Mark McKinnon, well-known Republican media consultant, wrote the next morning in The Daily Beast, “I was pleased to see President Obama talk about tort reform.” And the headline atop a post in The Frum Forum by Dr. Stanley Goldfarb of the University of Pennsylvania medical school proclaimed, “Obama Takes the Lead on Malpractice Reform.”

Yet maybe we need to look at the situation more closely. Dr. Goldfarb, for instance, asserts that malpractice reform is “a key part of the required approach to avoid financial calamity.” Dr. Goldfarb is absolutely right, but there’s no evidence that Obama agrees with him. An occupational hazard of punditry, to be sure, is to assume that the other person agrees with you, even to the point that you, the pundit, find yourself filling in the blank spaces between the other person’s words.
Indeed, so long as a powerful person, such as a president, says he is willing to “look at” an idea, some proponents will wishful-think equivocal words into unequivocal support. In fact, Obama’s 26 words in the SOTU need to be weighed against the two years of his presidency, where no serious action against “frivolous” lawsuits has been taken, to say nothing of the multiple lawsuits that are merely costly and harmful. Once again, we can observe that an overall cost to the country is a direct gain for the tort bar. Inside every one of those million- and billion-dollar settlements is a 40-percent contingency fee to a trial lawyer. And trial lawyers as a group, of course, are smart enough to share their wealth with politicians who protect their ongoing system of litigation plunder. Weighed against the deep structure of pro-trial-lawyer interests inside the Democratic Party, the brief words of a president in the middle of a re-election campaign seem fleeting indeed.
Of course, some might say that the White House has been busy, what with Egypt and all. But on Sunday morning, January 30, even as events in Egypt dominated the news, the White House was still prominently featuring its boilerplate State of the Union promotion package. And that’s right and proper, because, after all, we have a large federal government that does many things at once. So perhaps elsewhere in the executive branch, we might hope, top aides and advisers are diligently crafting a new look at malpractice.
That’s a possibility--but let’s take a look. Accompanying the President’s SOTU was a White House fact sheet, boldly titled, “President Obama's Plan to Win the Future." And in that document we find this single sentence: “The President is urging reforms to further reduce the rate of health care cost growth, including medical malpractice liability.” That’s it--just 19 words. Hard to call that much of a foundation for med mal progress.Meanwhile, as another part of the White House communications effort, on January 28, Health and Human Services Secretary Kathleen Sebelius, the administration’s point person on health issues,sat down for a Q & A session with reporters/bloggers; only one “Q”, out of the 13, concerned malpractice. And to that Sebelius answered, “The President has said pretty consistently that he does not support caps,” referring to the idea of limiting liability damages--a central plank of malpractice reformers. Instead, Sebelius cited new government efforts at “gathering data” on lawsuits and their effect on the cost of healthcare. She was referring to a plan that she herself launched in September 2009, when HHS began doling out $25 million in grants to encourage states to experiment with ways to deter malpractice lawsuits. These “demonstration projects,” as they are called, are based on existing programs in which doctors who make a mistake--or are accused of making a mistake--apologize early and seek to negotiate a settlement with the victim. Other projects include screening systems in which states have formed medical-expert panels which must rule that patients’ complaints have merit before they may sue.

Such plans are a good idea, but they have had little effect, because they fail to take into account the great-white-shark voraciousness of malpractice-feasting trial lawyers. If one Googles just the two words “malpractice money,” for example, one immediately sees an ad for a malpractice attorney, complete with a toll-free number to call.It might seem obvious that ambulance-chasing comes at a cost to the healthcare system--reasonable estimates vary from $55 billion to $200 billion a year--but for her part, Sebelius doesn’t seem to agree; as she told her questioner, “malpractice insurance rates are a tiny fraction of healthcare costs.” As an aside, we might note that it’s little wonder that Richard Foster, chief actuary of the Medicare program, is skeptical that any savings will be achieved through Obamacare.Moreover, in an opinion piece for AOL News, signed by Sebelius, the word “malpractice” did not appear once. In other words, without the prompt of a question, Sebelius and her HHS ghostwriters make no effort to highlight malpractice. In fact, a look at the HHS website finds nothing new on med mal. Yet this absence should be no real surprise, in view of Sebelius’ background; she spent a decade as the executive director of the Kansas Trial Lawyers Association. (We might also note that one can hear only the sound of med mal silence, too, at the Department of Justice.) Yet the idea of malpractice reform is popular with many key constituencies and much of the public, and so the President has talked up the idea of med mal from time to time. On June 15, 2009, for example, he addressed the American Medical Association in Chicago, saying that he understood that “doctors feel like they are constantly looking over their shoulder for fear of lawsuits.” He added, in words suggesting that he felt the medical profession’s pain: “Some doctors may feel the need to order more tests and treatments to avoid being legally vulnerable. That's a real issue.”
So yes, the AMA got a little bit of neo-Clintonian triangulation, as well as pain-felling, but no commitments.The President added more soothing words, even as he denied the central policy goal of the AMA--that is, to impose caps on damages as a way of disincentivizing their enemy, the trial lawyers. Finally, he shifted the focus back to his own goal at the time, which was garnering support for his healthcare legislation: While I’m not advocating caps on malpractice awards which I believe can be unfair to people who've been wrongfully harmed, I do think we need to explore a range of ideas about how to put patient safety first, let doctors focus on practicing medicine, and encourage broader use of evidence-based guidelines. That's how we can scale back the excessive defensive medicine reinforcing our current system of more treatment rather than better care.The AMA did, in fact, endorse Obamacare--despite its not making any headway on caps. Yet while the AMA might have been an easy sell, others were more suspicious.
The day after Obama’s AMA speech, The Wall Street Journal editorial page nailed the issue in a piece entitled, “The Malpractice Gesture.” That edit noted how Obama was able to orate sweet nothings and yet persuade gullible audiences that he was on their side: The paragraph he appended to his stock speech on health care for the American Medical Association yesterday didn’t offer much detail--"I do think we need to explore a range of ideas," he boldly declared--but trial lawyers and their stratospheric jury awards and settlements have led to major increases in the medical malpractice premiums, thus driving up the overall cost of U.S. health care.The Journal emphasized that there was nothing specific about med mal in Obama’s words--indeed, that his deeds, in preserving the status quo, contradicted his words: Mr. Obama's cri de coeur might have had more credibility had he not specifically ruled out the one policy to deter frivolous suits. "Don't get too excited yet," he warned the cheering AMA members. “Just hold onto your horses here, guys. . . . I want to be honest with you. I'm not advocating caps on malpractice awards.”
In other words, the tort lottery will continue. California, of all places, has had great success in holding down liability costs for doctors and hospitals after a 1975 reform that limited pain and suffering damages -- balanced against the public interest of fairly treating victims of genuine malpractice.And so the Journal summed up Obama’s deliberate fuzziness, providing some pointed political context: Mr. Obama showed again with his AMA speech that he's willing to nod at the concerns of his political opponents and take media credit for brave truth-telling, only to dump his conciliation if it offends liberal interest groups. Mr. Obama's aides have openly told the press that he views medical liability as a “credibility builder”--that is, a token policy to keep the health-care industry at the bargaining table. Given that the only “bargain” that seems likely to emerge is another major step toward total government control of the health markets, the President seems to be counting on credulity.
So there you have it: Obama said something nice but vague about malpractice reform a year and a half ago--a “credibility builder” for the credulous. And so what has happened since? Who was right: the AMA in its hope that Obama would deliver legal reform of some kind, or the Journal in suspecting that Obama was playing a rhetorical shell game? As we have seen, in Fall 2009, the Obama administration established kumbaya-ish “demonstration projects,” but in his January 2010 SOTU, the President made no mention of malpractice reform. Indeed, in the two years of Obama’s presidency, virtually nothing has happened on the key issue of malpractice reform--namely, requiring a cap on the shark-like entrepreneurialism of the trial lawyers.
Oh wait, something did happen: This past Tuesday night, the President said that he would “look at” malpractice reform. Nevertheless, anyone still thinking that Obama truly wishes to do something about med mal--thereby alienating the trial lawyers whom he needs to finance his re-election--should consult the “Peanuts” character Charlie Brown, still hoping for Lucy to keep the football in place so that he can actually kick it.

One clear-eyed observer is Forbes magazine’s David Whelan, who observed in the wake of the 2011 SOTU that the president’s nice words about malpractice “warrant skepticism.” OK, Forbes is over on the political right, but even The Washington Post noticed that Obama wasn’t saying very much in his SOTU--about malpractice, or, indeed, about anything else. And this non-specificity, the paper surmised, was a deliberate strategy. And yet, as the Post’s Ruth Marcus noticed, even a few friendly words were enough to make many observers happy. In a Friday column entitled, “From President Obama, lots of talk, little leadership,” Marcus criticized the 44th President for merely outlining, as opposed to advocating, “potentially cost-saving measures to control Medicare spending.” She added caustically, “Emphasis on potentially.”
Yet Marcus lamented that “some serious people” had “grasped at wispy tendrils of seriousness” in the president’s speech. And yet detecting such seriousness was an illusion, she concluded: “I hope they are right but fear that they are deluding themselves.” In other words, anything Obama said about a tough issue on Tuesday night was not to be taken seriously--because Obama himself wasn’t taking his words seriously. So where do we stand? I put the question to Jim Wootton, former president of the U.S. Chamber Institute for Legal Reform, who foresees med mal gridlock ahead: There is no doubt that the President's stated openness to medical liability reform legislation has put the issue “in play” . . .
But it is too early to be very optimistic that the House, Senate and White House will find enough common ground for meaningful medical tort reform to be enacted in the next two years. Each of these institutional players has different incentives which will influences how they approach this issue. The Republicans in the House want to quickly satisfy their constituents who have been pressing for tort reform for 15-20 years--which to most of them means hard caps on non-economic damages. Yet the Senate Democratic Leadership is known to be quite sympathetic to the personal injury lobby, which is adamantly opposed to all tort reform, particularly caps on damages. So there the issue sits: in stasis. Obama mentioned med mal in 2011, but his position today--and prospects for any reform--are the same now as they were in January of last year, when he didn’t mention med mal at all.
So the Serious Medicine lesson here is that absent a profound change in thinking, as opposed to mere partisan shuffling, there’s little prospect for med mal reform. Even if Republicans were to win the Senate and the White House in 2012, there’s no reason to think that the med mal situation would change; after all, from 2003 to 2006, when Republicans controlled everything in Washington, nothing happened med mal-wise. We can conclude: If malpractice reform is merely seen as being for the convenience and enrichment of doctors, drug companies, and medical equipment makers--as is often said--the goal will never be seen as being so important as to justify overturning the status quo.
What needs to be understood, therefore, is that the real issue is not so much what the trial lawyers do to doctors, but rather what the trial lawyers do to the prospect of Serious Medicine--the medicine that saves lives and bends the cost curve. That is, if malpractice suits simply add $100,000 or so to every doctor’s annual costs, well, in the minds of most Americans, that’s acceptable. Yet if GlaxoSmithKline pays out $6 billion or more for Avandia, as has been reported, that's most likely the end of diabetes research for GSK, and for many other firms, too. Circling trial lawyers are not going to be deterred by any sort of mediation project--they want the money. In addition to caps on damages and limits on contingency fees, the needed reform for pharmaceuticals and medical equipment is this: If the FDA approved the product, the maker of that product can't be sued. The FDA doesn't have to approve anything, but if it does, then whoever makes the product in good faith shouldn't be subject to a lawsuit--period.

In fact, the real cost of medical torts--and it is enormous to the point of incalculability--is the paralysis of scientific progress across the medical sector, because nobody wants to take possession of information that could later inculpate them, in some perhaps unforeseen way, in a future class-action suit. So what’s the way out? The way out is circuitous: Ultimately, we have to get to cures, because good health is both better, and cheaper, than sickness. But to get to there, to get to better medical outcomes in the long run, we have to change the legal system in the short run. Changes in the legal system will encourage innovation, information-sharing, and mass production of new medical products. That’s a bright prospect that will entice ordinary Americans who are at present indifferent spectators to the ongoing brawl between opponents and proponents of malpractice reform.
Here’s the bottom line: Advocates of legal reform must therefore become advocates of a comprehensive strategy for Serious Medicine, because only by making their argument larger and more promising can advocates make a persuasive case to Middle America. Cures are not just a good idea, cures are a big idea--the kind of idea that blows away the pecuniary interest of trial lawyers and their political grantees. And so it’s that big idea of cures that must be invoked in favor of med mal as part of a Serious Medicine Strategy. Anything less simply won’t get the job done. As the late management guru Peter Drucker observed, as a general rule, a new idea has to be ten times better than the old idea to be accepted and to replace the old idea. And so we can see what has gone wrong with med mal over the years: People might think med mal is a good idea, but they don’t see med mal as ten times better than the status quo, and so reform goes nowhere.
What med mal reformers need to do is link reform to the larger issue of cures. Cures, that is, as both a humanitarian goal and a money-saving strategy. Seen that way, cures are a ten-times-better idea than John Edwards & Co. Present the American people with a choice--what do you want: Cures for killer diseases? Or more trial lawyers flying around in private jets? If we cure diabetes, for example, we as a nation won’t spend $200 billion caring for diabetes. Although diabetes is often linked to obesity, about a quarter of diabetes patients in America were born with the condition. And even for those who can be said to be “at fault,” the plain reality is that we are paying for their care. So it makes sense for us, as part of our Serious Medical Strategy, to work with those seeking to reduce obesity. And to applaud, for example, the fitness efforts of Michelle Obama. Moreover, since we have developed a commercial culture which is seemingly dedicated to fattening us up--candy companies, for example, spend their time figuring out new methods of mixing sugar and salt in ways that are irresistible to our lizard-brain food reflexes--we need to develop equally shrewd counter-measures. And yet here again, the trial lawyers are a major obstacle to progress. If the lawsuits keep coming against weight-loss products--Fen-Phen awhile back, Zenical more recently--then we're stuck in a repetitive get-fat rut. (What’s needed, of course, is personalized medicine, so that those relatively few who are at risk from Fen-Phen, or Zenical, or anything else are warned away. And yet such personalization won’t happen, Jim Wootton explains, so long as the trial lawyers are able, through the legal discovery process, to comb through every medical record, looking to make a new class-action lawsuit.)
So once again, the way out is medical science--cures. The idea of cures, that is, as an articulated national goal, the sort of articulation that’s been missing from the debate for the past two decades, as we focused instead on health insurance. A Manhattan Project-like focus on cures would necessitate the sweeping away of the trial lawyers. During World War Two, nobody sued the A-bomb project. The quest for life-improving, cost-saving Serious Medicine should of course be a bipartisan effort. This is, President Obama should want to cure diabetes, not only because he is a compassionate man but also because he wants to make healthcare--and Obamacare--affordable. But to achieve those goals, Obama will have to do more than talk the talk of med mal; he will have to walk the difficult walk of enacting genuine legal reform. Perhaps it’s time to recall the old Jack Benny routine, “your money or your life.” In the comedian’s case--Benny portrayed himself as an epic tightwad--the choices of “money” or “life” were almost interchangeable. Even as a menacing robber threatened him, Benny answered, “I’m thinking, I’m thinking.” In the real world, of course, life is more important. But what if we knew that we could have both: money and life? That is, what if we could come to see that cures are cheaper than sickness-and cheaper than care? That has been true for polio, and smallpox, and tuberculosis, to name three diseases that we have mostly eliminated. So why not take the same cost-effective approach to diabetes, Alzheimer’s, and cancer? Yes, such cure would be a great challenge, but the reward would be much greater. It is simply inconsistent with the work of the nation to let legal pirates and plunderers continue to hollow out our healthcare industry--and our own health. The status quo is costing us both our money and our lives.
Posted by James P. Pinkerton at
12:05 PM

James P. Pinkerton - I am a Contributor to the Fox News Channel and a Fellow at the New America Foundation. I worked in the Reagan and Bush 41 White Houses. I can be reached a

((I posted the following comment on the blog.))

Donna Baver Rovito said...
It's sad that the current system actually changes the way well trained and dedicated doctors practice medicine. Back in the 80's, a young lawyer named John Edwards channelled the spirits of dead babies and charmed North Carolina juries into awarding millions in "bad baby" cases of cerebral palsy, claiming that the babies would have been normal IF ONLY the doctor had done a c-section sooner! Since that time, C-sections have grown in America from 5% to almost 30% of births.
And in that time, the percentage of cerebral palsy births has gone down......NOT A SINGLE PERCENTAGE POINT. In fact, it's now acceptable science that birth conditions have little or nothing to do with celebral palsy - that it's an in utero event.
But obstetricians now do c-sections, which are far riskier than vaginal births, at the slightest hint of fetal distress - because of John Edwards and his ilk.
Now we see the same kind of litigation "piling-on" with vaccines and autism, despite the fact that studies which linked the two were FAKED.
No wonder smart young people aren't going into medicine.

((Well, except for MY silly son....))

February 5, 2011 5:53 PM


6. From MedPage Today
GOP Senators Grill Sebelius on Malpractice Reform
By Emily P. Walker, Washington Correspondent, MedPage Today
Published: January 27, 2011

WASHINGTON -- Senate Republicans grilled Department of Health and Human Services (HHS) Secretary Kathleen Sebelius about the prospects of medical liability reform during a congressional hearing Thursday.

Sebelius appeared before the Senate Health, Education, Labor, and Pensions Committee, invited by Democrats who wanted to highlight some of the most popular provisions in the Affordable Care Act (ACA).

But Republicans weren't willing to follow the Democrats' lead, and soon after it started Sen. Mike Enzi of Wyoming called the hearing a "marketing" gimmick meant to cheerlead for "the few parts of reform that enjoy support." Instead, he focused on a provision that didn't make it into the ACA: medical malpractice reform.

Although the ACA addressed medical liability insurance by providing $50 million in grants for demonstration projects to explore alternatives to settling malpractice cases, most physicians say the law didn't go nearly far enough and would like to see caps on the amount of noneconomic damages a jury can award.

Enzi said he was pleased that President Obama said during his
State of the Union address Tuesday night that he would consider medical malpractice reform as a way to bring down costs.
Sen. John McCain (R-Ariz.) joined Enzi in questioning Sebelius about the tort system and asked her if HHS would submit a plan to restructure how medical liability cases are handled.
Sebelius seemed caught off guard by McCain's direct question, but she replied, "Sure."

McCain said he looked forward to working on malpractice reform, but revealed his pessimism when he added, "We're going to find out whether the trial lawyers run this place." ((That would be.....YES, Senator.))

The senator was referring to the opposing forces in the medical liability debate: doctors who want to see caps on noneconomic damages as a means to end defensive medicine, and lawyers who argue that patients injured by medical mistakes deserve large cash settlements.

Congress has many more lawyers in its ranks than it has doctors.

Obama, a lawyer himself, told the American Medical Association (AMA) in
2009 that he doesn't support caps.

Democrats at Thursday's hearing, meanwhile, asked Sebelius to lay out some of the provisions in the ACA that have already taken effect. She mentioned how insurers can no longer deny children insurance coverage based on a preexisting medical condition, as well as the elimination of copays for doctor's visits that would be considered preventive in nature.
Sebelius said the ACA is already making "an enormous difference


7. From the Boston Globe
Democrats cool to Obama’s offer to overhaul rules on malpractice
Mark Arsenault
Globe Staff / February 3, 2011

WASHINGTON — President Obama’s offer to join hands with Republicans and “rein in frivolous lawsuits’’ by overhauling medical malpractice rules was among the key bipartisan bullet points in his State of the Union speech.

But the president’s proposal has mostly fallen flat with his allies in the Senate, including Senator Patrick Leahy, the chairman of the Judiciary Committee. It also potentially puts him at odds with the nation’s trial lawyers, a powerful constituency of the Democratic Party.

((Don't worry, guys, it's not like he MEANT it or anything....))

Despite his willingness to reach across the aisle, the president himself remains opposed to caps on malpractice damage awards, a central element of Republican proposals to change the rules, the White House said last week in the days after his speech.

Republicans have long argued that limiting civil damages will keep down the cost of malpractice insurance doctors must buy and reduce the likelihood that doctors will practice “defensive medicine,’’ the ordering of unnecessary and costly medical tests to hedge against negligence claims.

A bill capping damages was introduced last week in the Republican-controlled House. But while the House is likely to pass a measure, it faces strong opposition among the Democrats who hold the majority in the Senate.

Democrats resist caps, arguing that civil damages are often the only way patients can punish negligence and be made whole if they, or their children, suffer debilitating injuries from errors by a doctor or hospital staff.

“I’m not going to throw people under the bus and say if something happens to you, you’re not going to have the support you need,’’ US Senator Patty Murray, a Washington Democrat, said in an interview.

Trial lawyers, who overwhelmingly favor Democrats with their campaign contributions, vow to oppose any national limits on damages. They say there is no evidence that capping malpractice awards controls health care costs.

In his State of the Union address, Obama defended his sweeping health care overhaul, then offered “to look at other ideas to bring down costs, including one that Republicans suggested last year — medical malpractice reform to rein in frivolous lawsuits.’’

He did not detail how far he is willing to go with changes, but has said in the past he does not favor caps on damages.

The Obama administration last year awarded $25 million in grants to pay for 21 pilot projects among the states to test different approaches to malpractice reform and the reduction of defensive medicine. Among those experiments, which are ongoing, are efforts to encourage doctors and hospitals to own up to errors, communicate better, and quickly compensate victims of malpractice. Some of the work is being undertaken by the Massachusetts Department of Public Health, which won $2.9 million of the grant money.

Under current law, regulations for malpractice lawsuits are set by individual state governments. That’s where the control should stay, said Senator Claire McCaskill, a Missouri Democrat.
“I do not understand why Washington thinks it’s any of its business what states do in their courthouses,’’ McCaskill said in an interview. “There is medical malpractice reform in my state as there is in many states. This is a perfect example of the hypocrisy of Republicans on states’ rights.’’

Leahy, a Vermont Democrat, has opposed damage caps. In an interview with the website of The Hill, an inside-the-Beltway publication, he expressed skepticism about such caps unless they were packaged with other changes, such as eliminating the antitrust exemption for health insurers.
The president’s invitation to work on the issue was well received by business interests, including the US Chamber of Commerce, and the GOP.

“This could be seen as a historic change of position by the president, and Republicans should support it,’’ Senator Mark Kirk, an Illinois Republican, said in an interview. Kirk said Illinois courts recently overturned a state cap on damages in malpractice cases. “So the only way to save Illinois right now is by federal legislation.’’

Trail lawyers were disappointed by the president’s position, said Gibson Vance, president of the American Association for Justice, an organization of trial lawyers.

Vance said that 98,000 people die each year of preventable medical injuries, and that civil action is usually the only recourse. Caps on awards “don’t benefit anybody except those who have done wrong,’’ he said.

The American Association for Justice made $2.8 million in political donations in the last election cycle, and 97 percent of the money went to Democrats, according to the Center for Responsive Politics.

The possible effects of damage caps is uncertain, but the amount of possible savings is minuscule when compared to how much the nation spends on health care, said Amitabh Chandra, an economist and professor of public policy at the Harvard Kennedy School of Government, who has studied the issue. He said caps on jury awards can’t protect doctors from the fear of being sued.
“You can’t insure against the hassle-cost of a suit,’’ he said. “You can’t insure against having your name dragged through the local newspaper and having to go to court and testify. That’s why doctors hate litigation. It’s not their payouts. For the payouts, they have insurance.’’
A serious national debate about medical liability reform is way overdue, said Dr. Alan Woodward, a past president of Massachusetts Medical Society and current vice chairman of the society’s committee on professional liability.

“The current system is profoundly dysfunctional,’’ he said, adding that courts are slow and inefficient — and often inequitable — to injured patients, and the liability system creates a “culture of fear’’ among doctors that drives up cost with defensive medicine.

Far better would be a system in use at the University of Michigan, he said, which requires full disclosure to patients who have been injured, along with “a sincere apology,’’ an explanation on how the mistake would not be repeated on anyone else, as well as an offer of compensation. The program dramatically reduced litigation, he said.

Obama endorsed a similar approach in a 2006 New England Journal of Medicine article he wrote with Hillary Clinton, when both were senators, the society said.

© Copyright 2011 Globe Newspaper Company


8. From the Philadelphia Daily News
Letters: Strengthen legal system and help Pa. create jobs
March 05, 2011

The General Assembly has a rare opportunity to pass a law that can strengthen our economic climate, attract jobs to Pennsylvania, and help contain rising health-care costs while preserving consumers' access to health-care services. Pennsylvania can do all this, and return fairness and balance to the legal system, by enacting joint and several liability reform with the Fair Share Act.
Our region has one of the nation's largest concentrations of top biotech firms, pharmaceutical companies, hospitals and medical schools, and universities. This "meds and eds" sector in large part drives the region's economy, but is also among those hardest hit by judgments in liability lawsuits.

Current state law holds that every defendant found even one percent liable in a lawsuit is responsible for the entire verdict if other defendants cannot pay their share. Thus plaintiffs often go in search of deep pockets when filing lawsuits because parties found only marginally responsible are unfairly forced to pay an entire award simply because they can.

In Pennsylvania, we need to do everything we can to grow jobs and the economy, including make our legal system as fair and just as possible. Lawmakers can start with a vote for the Fair Share Act.

Ken Braithwaite
Regional Executive, Delaware Valley Healthcare Council of HAP
Rob Wonderling
President & CEO, Greater Philadelphia Chamber of Commerce, Philadelphia


9. From the PA Hospital Association's Care for
Keeping Our Care: Medical Liability in Pennsylvania
Pennsylvania is home to nine medical schools and 27 teaching hospitals, and trains more than 6,000 medical students each year. With that, you would think that Pennsylvania has plenty of physicians to care for its residents. You couldn't be more wrong.

Several factors are coming together to create an anticipated physician shortage of historic proportions. Between now and 2015, the year after health care reforms are scheduled to take effect, there will be an estimated shortage of 63,000 doctors in the United States. In addition, the U.S. Census Bureau projects a 36 percent growth in the number of Americans over 65 years of age.

According to the Pennsylvania Department of Health, nearly 20 percent of the physicians who practice primary care say they will leave Pennsylvania in five years or less. To make matters worse, only one in three physicians who complete their medical degree in Pennsylvania remain in the state to practice. Why?

Pennsylvania consistently ranks as having one of the worst legal climates in the nation. Physicians and other health care professionals are hesitant to practice medicine or deliver health care services in a state where they are more vulnerable to unnecessary, frivolous, or costly lawsuits; and because of that, have to pay some of the highest medical liability insurance costs in the nation. New physicians graduating from Pennsylvania's medical schools, faced with growing student loan debt, are attracted to states with less hostile legal environments and lower practice costs. Physicians from other states who are offered jobs in Pennsylvania don't want to practice here either.

This means hospitals often cannot attract enough physicians and other health care professionals to meet the communities' needs, and patients' access to services are impacted. For example, if a hospital loses its obstetrician and cannot hire a new one, the hospital can no longer deliver babies. Patients will need to travel further from home to receive care. And in Pennsylvania's numerous rural communities, it could take hours to get to the next hospital.

Your Role
By implementing several common sense reforms, which are already enacted in other states, Pennsylvania would increase the number of physicians that want to practice in our state. Governor Corbett and many lawmakers agree. They have already pledged to make medical liability reform one of their top priorities.
Pennsylvania must:
Ensure that defendants are responsible for only their fair share of damages in a case.
Ensure that health care providers can apologize and offer expressions of grief, without their words being used against them in court.
Ensure that health care professionals are protected from baseless claims.

These three items would help to reduce medical costs, increase the number of physicians that want to practice in our state, and define Pennsylvania as a state serious about its residents and their health care.

In the coming weeks, we will ask you to email your lawmaker and ask that they support these very important bills. Please make sure you have
subscribed to our Action Alert emails to receive the latest information.


10. From Medical News Today
Burgess Reintroduces Legislation To End Unnecessary Health Care Lawsuits
Article Date: 04 Mar 2011 - 4:00 PST

Today, Congressman Michael C. Burgess, M.D. (TX-26) reintroduced the Medical Justice Act, H.R. 896, which would improve patient access to doctors by putting an end to unnecessary lawsuits brought about by trial lawyers. "Physicians are forced to trim their budgets in order to cover their insurance costs, often resulting in laying off staff, limiting access to certain aspects of their practice, or closing their practice all together," said Dr. Burgess. "We need national, across-the-board change in the tort reform system, and my bill would do just that. Runaway lawsuits are unnecessary and costly, and reforming medical liability must be a part of the national health care debate." The Medical Justice Act would regulate civil actions for an injury or death resulting from health care by, among other things, limiting the non-economic damages that an individual could recover. Medical litigation and soaring malpractice insurance premiums contribute significantly to the rising cost of health care. Physicians are forced to practice defensive medicine in fear of being second-guessed by trial lawyers, which results in millions of dollars in unnecessary tests, procedures, and imaging. Furthermore, seasoned medical professionals are retiring early because staying in practice is no longer financially feasible, further contributing to our nation's doctor shortage. "Texas has led the nation in medical justice reform, and is now a model state for what successful tort reform looks like," Dr. Burgess said. "Unfortunately, only a few states have followed suit, leaving too many Americans trapped in a system that is harmful to patients and doctors." Dr. Burgess' legislation mirrors the commonsense reform Texas put in place in 2003, when the state passed legislation to address sky-rocketing medical lawsuits and a declining pool of medical professionals. The results are documented reduction in liability insurance rates, reported growth in the number of doctors licensed each year, and increased charity care, among others. "All Americans deserve to enjoy the benefits Texas has seen thanks to the eradication of our epidemic of health care lawsuit abuse," said Texas Medical Association President Susan R. Bailey, MD. "Since our new law took effect, Texas has licensed 21,000 new physicians, including a record 3,621 in fiscal year 2008," Dr. Bailey said. "This has been good medicine for the people of Texas, and Dr. Burgess' plan would apply this life-saving treatment to the rest of the country." Source: U.S Congressman Michael C. Burgess, M.D


11. From the American College of Emergency Physicians
Texas Medical Liability Reforms Are a Model for the Nation
Hundreds of Physicians Have Moved to the State, Patient Safety has Improved

WASHINGTON, Jan. 21, 2011 /PRNewswire-USNewswire/ -- As Congress considers national medical liability reform; the American College of Emergency Physicians (ACEP) today said that the state of Texas is a model of reform for the nation. Responding to testimony provided Thursday at a U.S. House of Representatives Judiciary hearing, Dr. Sandra Schneider, president of ACEP said that the new law has drawn more emergency and critical care physicians to the state and improved patient safety.
"Since the passage of reform in Texas, 799 emergency care physicians have moved to the state, including rural areas, giving more people access to medical care and increasing patient safety," said Dr. Sandra Schneider, president of the ACEP. "Since the passage of reforms, 26 Texas counties that had no emergency physicians now do. In addition, emergency patient wait times have dropped significantly, and patient safety has improved in the state from 2006 to 2009, according to the 2009 National Report Card on the State of Emergency Medicine."
"Texas has achieved the second biggest improvement for emergency patient wait times among all 50 states, according to a 2010 report from Press Ganey," said Dr. Schneider. "Despite growing demand and the highest uninsured population in the nation, Texas provides greater access to medical care for patients, often closer to home, and patients harmed by acts or omissions of ER physicians are able to go to court and collect damages."
Dr. Schneider said the Texas law addresses the unique challenges of diagnosing and treating emergency patients.
"Often there is no prior medical history, and many times emergency physicians must make snap decisions with limited information under the most dire circumstances," said Dr. Schneider. "Without this law, there would be fewer emergency physicians in the state and specialists needed to care for you, beyond what the emergency physician can do. They simply would not perform high-risk procedures out of fear of lawsuits. This is a problem across the country, leaving many areas with limited access to specialists, such as neurosurgeons, orthopedists and hand surgeons. As a result, patients must travel farther and wait longer to receive needed care. In some cases, this can be life-threatening."
According to the Texas Alliance for Patient Access (TAPA), 82 Texas counties have seen net gains in emergency physicians since the passage of the law. Thirty-three rural counties have added at least one emergency physician, including 24 counties that previously had none. In addition, since the passage of reforms, hospitals are no longer closing or limiting their emergency services, and many have expanded their emergency services.
"In states with liability reforms, trial attorneys work relentlessly to overturn those reforms, because reforms dampen the ability of trial attorneys to file frivolous and shake down lawsuits," said Dr. Schneider. "Not only does unbridled litigation drive emergency care specialists away, it also puts critically ill and injured patients at risk."
ACEP is a national medical specialty society representing emergency medicine. ACEP is committed to advancing emergency care through continuing education, research and public education. Headquartered in Dallas, Texas, ACEP has 53 chapters representing each state, as well as Puerto Rico and the District of Columbia. A Government Services Chapter represents emergency physicians employed by military branches and other government agencies.
SOURCE American College of Emergency Physicians


12. From American Medical News
House panel OKs medical liability reform bill
The HEALTH Act, supported by the AMA and other organizations, heads to the House floor despite initial constitutional concerns from Texas Republicans.
By Doug Trapp, amednews staff. Posted Feb. 28, 2011.

Washington -- The House Judiciary Committee on Feb. 16 approved a Republican medical liability reform bill after fending off more than two dozen Democratic amendments, many of which sought to weaken the bill.
The committee adopted the measure -- the Help Efficient, Accessible, Low-cost, Timely Healthcare Act of 2011 -- on a party-line vote of 18-15. The bill will head to the House floor next for final consideration.
The HEALTH Act, based on a long-time California law, would place a $250,000 cap on noneconomic damages and limit punitive damages to the greater of $250,000 or twice the amount of economic damages. The measure would set a statute of limitations on filing health care lawsuits of one year after a patient discovers -- or should have discovered -- an injury or three years after the injury, whichever occurs first.
"The House Judiciary Committee's approval of the HEALTH Act marks an important milestone for the progress of medical malpractice liability reform desperately needed in this country," said Rep. Phil Gingrey, MD (R, Ga.), the bill's primary sponsor. "Without mending this broken system, we are crippling the access to care for patients and wasting billions of valuable health care dollars."
The measure is a top priority for House Republicans and is expected to pass the chamber. However, the bill faces a difficult path through the Democratic-controlled Senate. The House has adopted similar bills numerous times before, but the Senate has never followed suit. Although President Obama has indicated that he is open to exploring medical liability reform legislation, he consistently has opposed caps on damage awards.
Arizona, Arkansas, Kentucky, Pennsylvania and Wyoming ban noneconomic damage caps.
The American Medical Association and more than 100 other medical organizations support the bill, which had 84 House co-sponsors at this article's deadline, including two Democrats: Reps. David Scott of Georgia and Jim Matheson of Utah.
But the legislation initially ran into unexpected concerns from a few Republicans. House Judiciary Committee Chair Lamar Smith (R, Texas) began his panel's markup of the bill on Jan. 9, but he postponed consideration for a week after two fellow Texas Republicans agreed with Democrats' concerns that the HEALTH Act did not adequately respect states' rights.
The constitutions of Arizona, Arkansas, Kentucky, Pennsylvania and Wyoming ban liability damage caps, but the bill as introduced would enact caps in these states, too.
"I've got problems with that. I think it's a violation of the 10th Amendment," Rep. Ted Poe (R, Texas) said Feb. 9, citing the states' rights issue. Rep. Louie Gohmert (R, Texas) expressed similar concerns.
The legislation would allow individual states to set higher or lower caps than those authorized by the federal government. Texas has its own liability reforms that impose caps similar to California's.
Proposed amendments by Rep. Hank Johnson (D, Ga.) would have limited the HEALTH Act to cases in federal court and would have exempted states with constitutional bans on damage caps. But both amendments failed to pass on Feb. 16. Gohmert and Poe did not vote on either amendment. However, they voted in favor of the final bill.
Smith said Feb. 16 that GOP panel members were working on an amendment that would ensure the HEALTH Act "respects states' rights." Smith said it probably would be introduced when the bill reaches the House floor. A date for floor consideration had not been set at this article's deadline.
Rep. Jerry Nadler (D, N.Y.) proposed an amendment that would have allowed the bill's damage caps to increase along with the consumer inflation rate, but it also failed on Feb. 16 by a vote of 15-18.
Republican committee members approved one Democratic amendment. Rep. Bobby Scott (D, Va.) negotiated with Smith to strike a bill provision preventing plaintiffs from recovering damages twice for the same injury. The original language would have prevented a jury, for example, from awarding lost wages that already were covered by an insurance claim. Smith did not explain why he accepted the amendment.
Democrats on Feb. 16 failed to sway Republicans with other amendments supporting states' rights, expanding the law to apply to lawsuits beyond health care suits and removing the bill's punitive damages exemption for Food and Drug Administration-approved pharmaceuticals and medical devices.


13. From The Hill
Tort reform opponents knock 'defensive medicine' argument
By Julian Pecquet - 02/22/11 11:55 AM ET

Trial lawyers and consumer advocates are trotting out a novel argument as they fight off tort reform proposals: they say medical malpractice suits, rather than driving over-use of costly tests by risk-averse doctors, instead prevent rationing.
The political stars are aligning in favor of tort reform this Congress, with House Republicans vowing to pass a $250,000 cap on non-economic damages, and the White House setting aside $250 million in the 2012 budget for state experiments. One culprit, in lawyers' view, is the concept of "defensive medicine" that has been uniting Republicans who want to cut doctors' malpractice insurance bills and Democrats worried about wasteful medical spending that's bankrupting federal programs.
This week, the consumer organization Center for Justice and Democracy began to release
excerpts from a draft research article that questions the prevalence of defensive medicine. And the consumer advocacy group Public Citizen had scheduled a media briefing, now postponed, on defensive medicine for Tuesday.
"'Defensive medicine' by all scholarly reviews has become a myth, a combination of surveys of interested parties and the 'imagination' that those parties are avoiding — or believe they are avoiding — liability through alteration of their medical practices," writes Fred Hyde, a professor at the Columbia University Mailman School of Public Health, whose study was funded by the Center for Justice and Democracy. "The costs, if any, of defensive medicine, are trivial, in comparison to the medical and social costs of negligence."
The defensive medicine argument took on new prominence during the healthcare reform debate when the Congressional Budget Office
estimated that medical malpractice reform proposals could reduce national health spending by about .5 percent. Two-fifths of that was attributed to lower medical liability premiums, and three-fifths to "slightly less utilization of health care systems."
In a Dec. 10, 2009, letter to Sen. Jay Rockefeller (D-W.Va.), CBO wrote that tort reforms would probably have a bigger impact on Medicare than on privately funded healthcare because private insurance plans are more likely to manage care.
"Such plans may limit the use of services that have marginal benefit to patients to a greater degree than does Medicare," CBO wrote, "leaving less room for changes in pressures regarding malpractice to affect utilization."
Hyde's article turns that analysis on its head: He argues that Democrats' healthcare reform law, by shifting away from Medicare reimbursements for each procedure towards payments for episodes of care, risks promoting healthcare rationing if the threat of lawsuits is curtailed.
"Health care reform may change financial incentives toward doing fewer rather than more tests and procedures," Hyde writes. "If that happens, concerns about malpractice liability may act to check potential tendencies to provide too few services."


14. From Blog
Medical Devices, Liability Reform, and Defensive Medicine
Posted by:
Carter Wood under Briefly Legal, Health Care, Innovation, Regulations on February 17, 2011 @ 7:39 am

The House Energy and Commerce holds a hearing this morning, “
Impact of Medical Device Regulation on Jobs and Patients,” to examine the state of the medical device industry and the impact of regulations on job creation and patient access.
It’s a timely topic. Working on
H.R. 5, the medical liability reform bill, the House Judiciary Committee rejected an amendment (Amdt. 15) sponsored by Rep. Mike Quiqley (D-IL) to strike the “safe harbor” provisions that would preclude punitive damages in litigation against FDA-approved medical devices and drugs. We discussed the importance of that language in a post Wednesday, “Why Medical Liability Matters to Manufacturers.”
Elsewhere in the world of medical liability, a new study provides further documentation that the threat of lawsuits drives doctors to conduct unnecessary and expensive tests, driving up health care cost. From the American Academy of Orthopaedic Surgeons, “
Healthcare Spending: Study Shows High Imaging Costs for Defensive Purposes“:
Nearly 35 percent of all the imaging costs ordered for 2,068 orthopaedic patient encounters in Pennsylvania were ordered for defensive purposes, according to a new study presented today at the 2011 Annual Meeting of the American Academy of Orthopaedic Surgeons (AAOS).
For many years now, some physicians have ordered specific diagnostic procedures that are of little or no benefit to a patient, largely to protect themselves from a lawsuit. Until now, however, efforts to actually measure defensive medicine practices have been limited primarily to surveys sent to physicians. Such surveys would simply ask whether or not that individual actually practiced defensive medicine.
“This is the first study we know of that looked at the actual practice decisions of physicians regarding defensive imaging in real time — prospectively done,” says John Flynn, MD.
And here’s
the agenda for the summer convention in New York City of the American Association for Justice, the trial lawyers’ lobby. You’ll see that AAJ’s members are very interested in suing doctors, drug makers and medical device manufacturers. ((No surprises there. They're also very interested in turning BACK previously passed reforms whenever they can.))


15. From Politico
House Judiciary approves tort reform
By: Brett CoughlinFebruary 16, 2011 09:42 PM EST

The House Judiciary Committee on Wednesday approved a medical malpractice reform bill by an 18-15 party-line vote after turning aside several Democratic attempts to amend it, including one which mirrored the concerns of two Republican members of the panel.The two Republicans, Texans Louie Gohmert and Ted Poe, were noticeably absent from the room when the panel rejected two amendments by Hank Johnson (D-Ga) aimed at striking provisions that would pre-empt state medical malpractice laws or constitutional provisions.Poe and Gohmert had raised concerns about those provisions when the markup began Feb. 9, saying they doubted the federal government has the power to do that under the Commerce Clause, and they wanted to make sure the bill doesn't violate states' rights under the 10th Amendment. Despite their concerns, both voted to send the bill to the full House.Poe said he had stepped out of the committee room to meet with constituents and had "other meetings" when the vote was taken. Gohmert could not be reached for comment.Judiciary Chairman Lamar Smith (R-Texas) promised that an amendment to deal with the issue would be considered during floor debate on the bill, which would put a three-year statute of limitations on medical lawsuits, cap non-economic damages at $250,000, and limit punitive damages to $250,000 or twice the economic damages, whichever is greater. It would apply to lawsuits in federal and state courts, but it’s aimed at states that don’t already have their own tort reform laws.“If you are a champion of states’ rights, you cannot vote this bill out of committee in good conscience,” Johnson said.Rep. Zoe Lofgren (D-Calif.) quipped that the Republicans had changed their tune on states’ rights within the span of a few hours, noting that Virginia Attorney General Ken Cuccinelli had told the panel earlier that the health care overhaul was unconstitutional because it includes an individual mandate requiring everyone to buy insurance.In the afternoon, she said, Judiciary Committee Republicans argued that the federal government can impose its will about medical malpractice laws and “intrude on states’ rights.”“You can’t have it both ways,” she said


16. From Kaiser Health News
Medical Liability Reform Should Be Real And Effective
Feb 24, 2011

In his State of the Union speech last month, President Barack Obama appeared to offer an olive branch to congressional Republicans and those who favor medical liability reform when he said, "I am willing to look at other ideas to bring down costs, including one that Republicans suggested last year – medical malpractice reform to rein in frivolous lawsuits."
One has to commend the president for addressing the issue, but there are some problems with his statement. To find out why, just look at the Republicans' principal medical liability legislation, H.R.5, which has been reintroduced this year in the House by Rep. Phil Gingrey, R-Ga. It does not include sanctions against frivolous lawsuits, which often take the form of court-imposed fines or penalties. And with good reason. As every competent medical malpractice plaintiffs' lawyer knows (and defense lawyers know, too), it is very rare for plaintiffs' lawyers to bring frivolous medical malpractice suits. The fact is most plaintiffs' lawyers turn down most medical malpractice suits, for which preparation is cost- and labor-intensive, because they are not viable. (We do need stronger sanctions against frivolous claims, but that is an across-the-board issue. The president should support a separate piece of pending legislation, the Lawsuit Abuse Reduction Act, which accomplishes that important goal.)
And there is nothing to suggest in theory or fact that sanctions against medical malpractice frivolous lawsuits will significantly bring down the cost of medical malpractice insurance. What Will Work H.R.5 contains reforms that will work and reduce insurance costs. Perhaps the most important is a limit of $250,000 on pain and suffering -- also known as non-economic -- damages. This "cap" comes directly from a 1978 California law, which was signed by Democratic Gov. Jerry Brown, who was then serving his first term in the office. In spite of numerous lobbying attempts by trial lawyers to repeal or raise the amount, the Democratic-dominated California legislature has never done so. That's because, while other states have seen medical malpractice insurance costs skyrocket, California's premiums have been relatively stable. The California legislators know "when something is not broken, do not fix it."
Among the other reforms included in H.R. 5 that reflect the California law are its sliding scale cap on plaintiff's attorney fees, its provision for periodic payment of future damages and its three-year-from-incident/one-year-from discovery statute of limitations.
But one need not only look to California as proof that the cap on pain and suffering is effective. In the past few years, Mississippi and Texas also have enacted medical liability laws that limit non-economic damages. As a result, additional malpractice insurers have entered the market in both states, and insurance costs have been stabilized. As has been the case in California for more than 40 years, there have been no significant efforts to repeal these caps on damages.
Critics of caps say no clear direct evidence supports the idea that the average person pays less for medical costs when such reforms are enacted. But, certainly as the Congressional Budget Office has shown, caps bring about real savings to taxpayers and the health care system. CBO's latest estimate of Republican-style bills, with caps, sets the number at $56 billion over ten years.
While $56 billion may seem a drop in the bucket, as has been echoed by some trial-lawyer cap opponents, it is nothing to sneeze at. As the late Sen. Everett Dirksen is purported to have said, "a billion here and a billion there, it soon adds up to real money."
There are also controversial questions related to "defensive medicine" -- whether it is the direct result of physicians' liability fears and whether, in practice, it drives up health care costs.
While doctors are placed in a very difficult position to admit this, extreme and uncertain liability exposure does lead to the practice of defensive medicine. When doctors have to testify about this point, they can be put in a trap. A trial lawyer-leaning member of Congress may ask, "Doctor, did you perform tests that were unnecessary?" What is the doctor to say? "Yes, I did, I do it all the time." But, knowledgeable people, and perhaps every reader of this column, know that defensive medicine does occur. A doctor does not want to take a risk by not providing that one extra test that might reveal a problem. The CBO did account for defensive medicine in its $56 billion estimate.
The Key Elements Of Meaningful Reform If Congress moves forward on the issue, there are key elements that must be included in any meaningful attempt at reform.
First, any federal malpractice bill should be labeled "medical liability." Its coverage needs to be broader than protection for doctors. If the legislation is not carefully drafted and the focus is solely on liability of doctors, then dollars saved can simply shift to another defendant who is brought into a lawsuit, but is not protected by the bill. That is the way that "deep pocket" tort suits work. If a doctor's pain and suffering damages are capped, inventive plaintiffs' lawyers will find a way to apportion at least some blame, however remote, on some other defendant -- for example, a hospital or a pharmaceutical company.
If the doctors are capped at $250,000 for pain and suffering, a jury award above that amount (jurors are not told about the cap, it is applied by the judge) could be thrust, in whole or in part, onto a marginal defendant. This shift is the result of "joint and several" liability rules that in some states can hold a defendant totally responsible for all damages a jury awards above the cap even if the jury finds it only two, three or five percent responsible for an alleged harm. Fortunately, H.R.5 is designed to prevent such unfair results. It can be done by eliminating "joint and several" liability or providing protections that are included in the legislation only to any party that is named in the lawsuit against a doctor. A second key consideration has to do with federalism, and the interaction of federal and state medical liability reforms. The huge cost to the health care system for excessive medical liability, $56 billion over 10 years, provides, in itself, a reason for federal action. Nevertheless, like H.R.5, any federal medical liability legislation should be limited in its scope and directed at ways to save real money. Bills also must be crafted carefully to interact with state law. For example, if the state of Mississippi wants to have a lower cap than $250,000, or wishes to have other medical liability reforms, such as requiring that a plaintiff's lawyer produce a medical certificate of merit before his claim is filed, the state should be free to do so. This is not only a matter of careful drafting, but also of sound public policy.
Overall, the president should embrace the spirit of his promise that he will support effective federal medical liability reform. While H.R.5 is likely to easily pass the House, the president's power and prestige will be needed to have any meaningful medical liability reform bill pass the Senate, where the Democratic majority has historically opposed the idea of non-economic damage caps. But the more than 40 years of experience with the California law proves the approach is effective in achieving the goal of reducing health care costs while preserving sufficient deterrence in the legal system. Victor E. Schwartz is chairman of the public policy group in the Washington, D.C. office of the law firm Shook Hardy & Bacon L.L.P., and general counsel to the American Tort Reform Association. He also is a co-author of the widely used torts casebook, Prosser, Wade and Schwartz's Torts.The views expressed in this article are those of Mr. Schwartz and do not represent the official views of ATRA or any other client of Shook Hardy & Bacon.


17. From the Centre Daily Times
Study: Fearing suits, docs order unneeded tests
Marilynn Marchione The Associatd Press
February 17, 2011 8:25am EST

SAN DIEGO— CT scans, MRIs and other pricey imaging tests are often more for the doctor’s benefit than the patient’s, new research confirms.
Roughly one-fifth of tests that bone and joint specialists order are because a doctor fears being sued, not because the patient needs them, a first-of-its-kind study in Pennsylvania suggests.
The study comes a day after President Barack Obama began a push to overhaul state medical malpractice laws as a way to reduce unnecessary tests that drive up health care costs.
“This study is a glimpse behind the curtain of what’s happening in a doctor’s mind,” said its leader, Dr. John Flynn of Children’s Hospital of Philadelphia. If doctors sense you might second-guess them or cause trouble, “you could potentially be risking more tests being done.”
Results were reported Wednesday at an American Academy of Orthopedic Surgeons conference in California.
Patients expect the highest level of care and think this means the most advanced technology, Flynn said. Many patients feel better when a doctor orders lots of tests — until they get the bill.
Besides hurting your wallet and adding to health care costs, unnecessary tests can expose people to radiation that accumulates over a lifetime and can raise the risk of cancer. Ordinary X-rays are rarely a concern, but an MRI, or magnetic resonance imaging scan, can cost $1,000 or more. And super-sharp X-rays called CT scans involve relatively large radiation doses.
Yet doctors often order tests they don’t really think a patient needs because they fear being sued if the diagnosis was wrong or they miss detecting a problem.
Previous studies of how often this happens have relied on doctor surveys. This is the first one to enlist doctors in advance to track their decisions over time.
It involved 72 orthopedic surgeons throughout Pennsylvania who tracked tests they ordered on 2,068 patients, mostly adults, in ordinary office visits, emergency rooms and other settings. Doctors checked a box saying a test was either required for clinical care or done “for defensive reasons.”
Defensive imaging accounted for 20 percent of total tests — 11 percent of X-rays, 38 percent of MRIs, 33 percent of CT scans, 57 percent of bone scans and 53 percent of ultrasounds.
Defensive medicine also accounted for 35 percent of costs, nearly all of it from MRIs.
One example: a torn meniscus, a knee cartilage injury that is a leading reason for knee surgery. Studies have shown that a doctor’s judgment based on symptoms and an exam is even better than an MRI to diagnose the condition. Yet patients hardly ever go to surgery without having the imaging test, Flynn said.


18. From Caroline Journal - John Hood's Daily Journal
Two Sensible Tort Reforms Daren Bakst
February 11, 2011

This week’s “Daily Journal” guest columnist is Daren Bakst, John Locke Foundation Director of Legal and Regulatory Studies.RALEIGH — North Carolina’s legal system should provide a forum for the fair compensation of plaintiffs. This doesn’t mean, though, that defendants should be treated unfairly in the process. Unfortunately, that’s precisely the problem in North Carolina.While there’s a need for many reforms to our civil justice system, two reforms stand out. First, there should be a cap on noneconomic damages. It’s important to understand what these damages cover.To compensate plaintiffs for their losses, there are two types of damages that can be awarded to plaintiffs: economic and noneconomic damages. Plaintiffs should be able to receive whatever economic damages a jury awards. These damages represent the actual economic harm a plaintiff has or will sustain, such as lost wages and medical expenses.Noneconomic damages are intangible in nature and therefore difficult to quantify. They represent damages due to pain and suffering, loss of consortium, and mental anguish. It is these subjective damages, often driven by emotional factors, which can lead to excessive awards.A cap on these noneconomic damages would provide some reasonable protection for defendants without in any way failing to compensate plaintiffs for their tangible losses. Intangible losses, though, shouldn't be taken lightly, so a cap must be carefully developed and revisited. Further, judges should be provided some leeway to grant exceptions to the cap in certain extreme situations, as defined by the legislature. The
level of a cap varies across the states, and in some states a cap is limited to medical liability cases alone. For example, South Carolina limits the cap to $350,000 per medical provider, with a total aggregate amount of $1.05 million for all providers.California, not exactly a friendly environment for anyone engaging in commerce, caps noneconomic damages in medical liability cases to $250,000.The North Carolina Senate has just introduced a bill (Senate Bill 33) that would be comparable to California by capping noneconomic damages in medical liability cases to $250,000.This bill certainly is an important step when addressing noneconomic damages in the medical situation, but a cap should apply in all civil proceedings.Certainly, though, it is understandable to be particularly concerned with medical liability. In a 2007 report, the American Medical Association identified North Carolina as one of 17 crisis states “where medical liability insurance rates force physicians to retire early, eliminate high-risk procedures, or leave the state.”The AMA recently has provided additional studies (PDF link here) that illustrate the added costs associated with the litigious climate for medical professionals.A startling finding from the AMA: “[A]mong physicians surveyed by the AMA, there was an average of 95 medical liability claims filed for every 100 physicians, almost one per physician.” Doctors are constantly getting sued, and without caps, this will only lead to costly defensive medicine.Health care is properly a significant concern. There’s one way to address rising heath care costs without any mandates or completely turning the health care system upside down: Adopt tort reform for the medical providers.There’s a second important tort reform that the North Carolina legislature should adopt. North Carolina should get rid of the rule called joint and several liability. If a defendant is responsible for 1 percent of the damages to a plaintiff and the other defendant is 99 percent responsible, the defendant who is only 1 percent responsible would be required to pay 100 percent of the damages to the plaintiff if the other defendant is unable to pay.This rule is extremely unfair and unjust to defendants. They are forced to pay far more than what is proportional to their level of fault. This rule should be changed, and defendants should only be liable based on their level of fault.While it is true that such a rule protects plaintiffs, it only does so by creating an extreme hardship on defendants and forcing them to take on someone else's responsibility.Many states have done away with joint and several liability either completely or in part. The best option is simply to require defendants to pay their proportional amount of damages, as in Tennessee. Some states have created systems where a defendant isn’t liable for damages of another defendant(s) when the defendant is less than 50 percent at fault.These two tort reforms, a cap on noneconomic damages and eliminating joint and several liability, barely scratch the surface of what’s needed to reform our tort system. However, these two changes are very important changes that need to be made and would help create a civil justice system that guarantees justice for both plaintiffs and defendants.


19. From Prognosis Blog
Medical Liability Reform and Lawyerly Logic
Posted: 11 Feb 2011 08:24 AM PST

As the House Judiciary Committee works toward the passage of medical liability reform legislation, the nation’s trial lawyers – who, of course, have the most to lose if tort reform becomes law – are stressing the counterintuitive argument that states which have enacted liability reform actually have higher healthcare costs.
The trial attorneys’ association, the American Association for Justice, has
issued a primer on the issue in which it uses Texas as its prime example of health costs increasing even when strict limits on non-economic damages in medical liability cases have been put into effect. The AAJ wrote:
“If doctors feel they need to practice “defensively” and order extra tests to avoid the liability, and if all this defensive medicine results in excess health care costs, then states that have already limited liability for doctors through tort reform should experience significantly lower health care costs than states that do not limit liability. Texas has some of the strictest caps in the country, which should eliminate any need to practice “defensively,” thereby lowering health care costs in the state. Yet Texas has some of the highest health care costs in the country. Health care costs in McAllen, Texas, have been growing at a faster rate than any other area in the country, and the cost of health care per patient is currently second highest in the nation.”
I suspect the good men and women of the trial bar are aware that they are freely mingling apples and oranges here. Texas’ healthcare costs are driven by the fact that the state has one of the nation’s highest uninsured populations, meaning that a comparatively higher percentage of patients are receiving their healthcare through emergency rooms.
And as for the McAllen, Texas reference, the American Association for Justice should
read the Atul Gawande article in the New Yorker that documented the McAllen situation, which involves Medicare billing practices and has no linkage to the state’s liability laws.
The medical liability reform is an important one and deserves a serious discussion. Turning logic on its head to make a point doesn’t contribute to the dialogue.


20. From the Atlanta Journal Constitution
Gingrey faced the kind of malpractice suits he now hopes to limit
Bob Keefe
6:55 p.m. Wednesday, February 9, 2011

WASHINGTON -- Four years before Rep. Phil Gingrey sponsored his latest legislation aimed at limiting medical malpractice awards, the former obstetrician was involved in a $500,000 settlement of a malpractice lawsuit.
Gingrey's personal experience isn't what ultimately drove him to sponsor legislation last month that would cap damages in malpractice suits and make it harder for patients to sue their doctors -- but his firsthand knowledge of malpractice suits did factor into his decision, according to a spokeswoman for the Marietta Republican.
"Because he has an acute awareness of the issues within the system and need for reform, he understands the need for liability reform," Gingrey spokeswoman Brooke Sammon said in a statement. She said Gingrey was unavailable for comment Wednesday.
"After all, too often our medical liability system benefits third parties over patients, allowing investors and law firms to reap huge percentages of rewards instead of the injured parties who need them most," Sammon added.
Gingrey's involvement in the 2007 malpractice settlement was first reported by The New York Times. Citing court records, the Times reported that Gingrey testified that he has been involved in at least three other malpractice suits during his nearly 30 years as a doctor.
The most recent lawsuit, according to the Times, involved a Georgia woman who claimed she lost her 15-week-old fetus after Gingrey and two other obstetricians he worked with failed to properly diagnose the woman's appendicitis. She filed suit in 2002 -- the same year Gingrey was first elected to Congress.
The woman's original suit against Gingrey and the two others was dismissed in 2004, but a Georgia appeals court ordered a retrial a year later.
Gingrey and two partners in his obstetrics practice and their insurers settled the lawsuit just prior to when the retrial was supposed to take place.
"Ultimately, Congressman Gingrey and his partners agreed to settle due to various factors, including the cost, time commitment and stress of another trial, along with the desire by all parties to have final closure on this case," spokeswoman Sammon said.
Gingrey, who is co-chair of the House GOP Doctors' Caucus, has perennially pushed for legislation that would curb malpractice suits and limit damages against doctors.
His latest bill, which he co-sponsored in January along with Democratic Rep. David Scott of Atlanta and Republican Rep. Lamar Smith of Texas, would limit the time in which patients can sue their doctors for malpractice and would cap damages at $250,000. ((NO! THAT'S WRONG! It would cap only NON-economic damages. The media, the trial liars (LAWYERS!) and legislators who oppose liability reform KNOW this, but they "conveniently" don't mention it. Get used to telling people the difference between economic and NON-economic damages all over again.))


21. From Capitol Weekly
Opinion: Lawyers' changes to MICRA will hurt vulnerable consumers, state's finances
Roger Peeks, Ellen Rothman 01/20/11 12:00 AM PST

Consumer Attorneys of California, the trade group representing personal injury lawyers, would like to change California’s successful Medical Injury Compensation Reform Act (MICRA). ((Don't you just love the way the personal injury lawyers' trade groups have all changed their names to hide the fact that they're all trial lawyers?))
They want to make it easier and more lucrative for lawyers to file lawsuits alleging medical negligence against doctors, hospitals, paramedics, nurses, community clinics and other healthcare providers.
Changing MICRA will limit patients’ access to healthcare, particularly care provided by community clinics which serve mostly communities of color, low-income Californians and rural patients. Also affected will be access to specialty care like OBGYNs, neurosurgeons and other specialists.
Further, a change to MICRA also will increase health care costs by billions of dollars each year. These costs will be passed along to consumers, the state’s general fund, and taxpayers.
Between the two of us, we oversee multiple community health centers in L.A. County. Our physicians and staff each year see more than 175,000 patients, ranging in age from babies to the elderly. We provide medical, dental and mental health services, and have facilities in schools to serve thousands of students in the L.A. Unified and Compton School Districts. All our patients are low-income, most are from communities of color.
We struggle daily to patch together funding to provide care and medication to our patients. Any additional costs our clinics incur due to changing MICRA will come directly from patient care. We strongly support MICRA as do community clinics statewide.
MICRA sets forth legal guidelines when a patient is injured in a medical procedure. MICRA ensures injured patients receive fair compensation for all economic losses, while limiting speculative, meritless lawsuits that drive up health care costs and reduce patient access to care.
MICRA provides full recovery of all economic or out-of-pocket costs. Past and future medical bills are covered on an unlimited basis as are past and future lost wages. Patients can sue for unlimited punitive damages. MICRA even provides up to $250,000 in non-economic damages (pain and suffering). Finally, the law sets forth an attorneys’ fees sliding scale to ensure more money goes to patients, not lawyers.
The reasonable $250,000 cap on non-economic damages is a fair way of limiting meritless lawsuits and keeping health care costs lower. But it’s a target of the personal injury lawyers because it restricts runaway payouts and the contingency fees they can collect.
If the cap on non-economic damages is doubled (some rumors have the lawyers going for a quadrupling of the limit), it would add more than $9 billion annually to the cost of health care in California. Increasing MICRA’s cap means:
Consumers will pay more for health insurance coverage. A recent study found that doubling MICRA’s cap will increase the cost of healthcare for the average family of four by approximately $1000 per year.
Doctors, hospitals, clinics and all health care providers will pay significantly more for medical liability coverage, and could be forced out of business. California already suffers from an acute shortage of physicians. OBGYNs, rural doctors, specialty doctors and clinics serving low-income patients are particularly vulnerable to spikes in liability costs. Changing MICRA and the resulting increase in medical liability rates would make the state even more inhospitable and further limit patient access to care.
Negative impacts will be felt disproportionally by low-income and rural Californians, and communities of color. These Californians are the least able to absorb increases to health insurance costs, and already have fewer health care options to begin with. They will be disproportionally and negatively impacted if MICRA is changed to allow more lawsuits.
Costs to the State General fund will increase by hundreds of millions annually – decreasing funding for health care, schools and other services. The cost to provide health care for current and retired employees covered through CalPERS will go up. Other state budget areas hit: Medi-Cal, Healthy Families, Department of Mental Health, Department of Corrections, Department of Developmental Services. The total estimated cost to the state ranges in the hundreds of millions.
Local governments will be hit twice. Public hospitals and health facilities self-insure against claims. Any dollar spent defending against a meritless claim is a dollar not spent on care provided to California’s neediest residents. Local governments also provide health benefits to current and retired employees. Those costs also will go up.
There is no legitimate policy reason to change MICRA. California has a $28 billion dollar deficit. Unemployment is in the double digits. The economy has not recovered. There is no public outcry (except from personal injury lawyers) to change MICRA.
That is because MICRA is working. And why groups including the Community Clinic Association of Los Angeles County and community clinics throughout California, along with the California Medical Association, California Hospital Association, California Dental Association, Planned Parenthood, California State Association of Counties, and more than 400 other groups support MICRA.
We join these groups because it is far more important to preserve patient’s access to affordable, quality health care, than it is invite more lawsuits just so personal injury lawyers can have a bigger payout.

22. From American Medical News
AMA Chair Tells House Judiciary Committee: Irrational Medical Liability System Fails Patients, Physicians
For immediate release: Jan. 20, 2011

Ardis Dee Hoven, MD, chair of the American Medical Association, today told the U.S. House Judiciary Committee that the nation's medical liability system is increasingly irrational and needs reform. Dr. Hoven shared results from recent AMA studies that show the system has become costly and unfair for patients and physicians, and offered a proven solution to improve stability.
"Nearly 61 percent of physicians age 55 and older have been sued," Dr. Hoven told the committee during the hearing entitled "Medical Liability Reform: Cutting Costs, Spurring Investment, Creating Jobs." She shared results from an
AMA report that found an average of 95 medical liability claims filed for every 100 physicians.
Dr. Hoven noted that a majority of claims filed against physicians lack merit, as 64 percent of liability claims that closed in 2009 were dropped or dismissed. These claims still come at a significant cost, as physicians and health care providers may take extra precautionary measures to avoid being sued, a practice known as defensive medicine. A 2003 U.S. Department of Health and Human Services report estimated the cost of defensive medicine to be between $70-$126 billion per year. For patients who have been harmed by negligence, Dr. Hoven said that the extremely inefficient current system means a substantial amount of any compensation awarded to patients is consumed by court costs and attorney fees.
"Every dollar that goes toward medical liability costs is a dollar that does not go to patients who need care, nor toward investment in physician practices, a majority of which are small businesses that create jobs that benefit local and state economies," Dr. Hoven said. "The good news is there are proven examples of long-term reforms that have kept physicians' liability premiums stable, but more importantly have ensured and protected patients' access to health care."
"The AMA strongly supports federal liability reforms similar to those already working in California and Texas because they have proven to be effective," Dr. Hoven said. "While the total medical liability premiums in the rest of the U.S. rose 945 percent between 1976 and 2009, the increase in California premiums was less than one third of that amount at just 261 percent."
In addition to proven reforms, Dr. Hoven also told the committee that the AMA continues to support federal funding for states to pursue innovative liability and patient safety reforms including early disclosure and compensation programs, safe harbors for the practice of evidence based medicine, and health courts.

Medical Liability Reform
View the presentation Download the whitepaper
Contact: Heather Lasher Todd
AMA Media


23. From
Doctors' Distress

Doctors' Distress: I attended a virtual briefing yesterday about a survey of physician attitudes in 11 countries, conducted by APCO Insight for Pfizer. It paints a chilling picture of the dissatisfaction in the U.S. and other countries where doctors feel they are losing their authority to make medical decisions to bureaucracies that dictate how they must practice:
Nearly half of doctors surveyed in the U.S. and three-fourths of those in Germany believe the practice of medicine is going in a negative direction. ((But....they have "universal" health care in Germany! How can more of their doctors be unhappy?!?!))
Doctors, especially in the most developed countries, are most concerned about administrative burdens and outside interference in medical decisions.
Large majorities of physicians in the U.S., Germany, and France believe that the condition of their health systems will be worse in the future.
By a two-to-one margin, U.S. physicians rate the new health law as unfavorable (50%) vs. favorable (24%).
Doctors in the U.S. were more likely than those in any other country to say they expect to leave medical practice sooner than they had originally planned.
While doctors in most countries have a generally favorable view of clinical assessments of treatments and technologies, they want them to be voluntary. The survey found that 51% of physicians in the U.S. believe treatment guidelines that come from government or insurance companies have a negative impact on patient health.
The conclusion is clear that doctors want to spend more time with patients and not paperwork, and they want to treat patients according to their best medical judgment, not the dictates of outside payers.


24. From AAOS News
Addressing the medical liability crisis
By Thomas Fleeter, MD

Despite the efforts of the American Association of Orthopaedic Surgeons (AAOS) and many other medical specialty societies, the healthcare reform bill of 2010 does not directly address medical liability tort reform. During debates prior to the passage of the bill, President Obama admitted that defensive medicine may contribute to unnecessary costs. Although the president opposed caps on damages, he indicated a preference for using preventive medicine to ward off lawsuits. ((Which is utterly RIDICULOUS...))
Although medical liability reforms could help reduce health costs and promote safety, the Patient Protection and Affordable Care Act (PPACA) includes only two small liability provisions. The first authorizes limited demonstrations projects; the second offers federal medical liability protection to nonmedical personnel who work in free clinics.
Grant fundingThe intent of the demonstration project grants is to improve communication and reduce the rate of preventable injuries. These grants emphasize open communication when discussing and rectifying errors, team building, and moving away from a blame mentality.
As part of the funding for demonstration projects, the Agency for Healthcare Research and Quality (AHRQ) has awarded $25 million for pilot programs to improve patient safety and reduce the number of medical liability lawsuits filed. Approximately $19 million was awarded to seven demonstration programs supporting a variety of models that meet the AHRQ goals of reducing preventable harms, informing patients promptly and allowing prompt direct compensation injuries, and promoting early disclosures and settlement through court-directed alternative dispute resolution models.
In addition, 13 studies were funded to evaluate additional medical injury prevention measures and to develop a safe harbor for physicians who can demonstrate that they followed evidence-based guidelines, to support early disclosure and make efforts to provide prompt compensation, and to increase transparency between providers and patients when injuries occur.
Although many of these programs are still in the early stages of development, may have only small chances of actually being implemented, or are unproven in their efficacy in reducing medical injuries, these grants may represent the only federally funded efforts affecting medical liability reform. Despite their small size and scope, some of the programs represent interesting and promising concepts that warrant a closer look.
Demonstration project descriptionsWith its grant, a medical center in central Minnesota established critical event teams specifically trained to recognize situations that require early intervention. The first team was established on the obstetrics ward and drills regularly to identify high-risk pregnancies and treat complicated deliveries.
When an “at risk” baby is identified, the team is mobilized and is often in place even before the mother arrives at the hospital. By identifying and mobilizing for these and other obstetric emergencies, the critical event team has been instrumental in preventing injuries and increasing patient satisfaction—two important aspects of reducing medical liability lawsuits. Based on its initial success, this demonstration project has been expanded to 16 other Minnesota hospitals.
Similarly, a health system in Missouri used its grant to help reduce errors in perinatal care and address mistakes when they do occur. Hospital staff received special training to identify and treat perinatal emergencies such as anoxia and shoulder dystocia. The responding medical team now has a preset bundle of appropriate responses designed to reduce the time to appropriate treatment, resulting in fewer perinatal injuries. Reducing time from diagnosis to treatment reduces the likelihood of injury and lawsuits.
A demonstration project at the University of Washington attempts to address the problem of poor communication among members of the medical team, another common cause of medical injuries. For example, the night shift nurse may not have a mechanism allowing him or her to speak up and identify any concerns or may be reluctant to disturb the treating physician or members of the medical team at the beginning of a tense or complex surgical procedure.
The project’s proposal, therefore, includes establishing a formal conference led by a Quality Initiative representative to determine the cause of injury, formulate a plan to prevent injury, and develop a shared disclosure plan with a possible joint compensation offer. If successful, this communication training proposal could expand as a statewide initiative.
The Massachusetts Department of Public Health received $3 million to identify and avoid process issues that lead to errors after a patient goes home. For example, a patient who has a radiologic study that indicates a problem may not follow through with the appropriate specialist and, as a result, a more serious problem develops. Focusing on how to ensure that follow-up tests and evaluations occur can help to reduce injuries and medical liability costs.
The University of Illinois and the University of Texas each received grants to study how to improve physician-patient communications. These projects focus on early communication with patients and includes early issuing of an appropriate apology by the doctor or hospital. Early apologies with appropriate explanations can sharply reduce medical liability claims.
New York State was awarded a grant designed to reduce malpractice costs through accelerated negotiations. This project uses judge-directed settlements to arrive at earlier resolution of complaints with lower costs. In this study, the same judge presides over the case throughout its entirety. Only parties with authority to negotiate are involved, and using the same judge expedites the process, reduces costs, and increases the percentage of any award given to the patient.
Wait and seeAlthough these small demonstration projects are interesting and provocative, their long-term effect on medical liability reform may be small. Carolyn Clancy, MD, director of the AHRQ, believes that these types of projects can buttress the case for changes in federal law by providing “a fundamentally better evidence base” to reduce errors and improve outcomes. Whether these proposals lead to meaningful tort reform is yet to be seen; however, any change that reduces errors, improves communications, and reduces liability exposure is clearly a step in the right direction.
E-mail your comments to or contact this issue’s contributors directly.
Thomas Fleeter, MDDr. Fleeter is in private practice at Town Center Orthopedic Associates in Reston, Va., and chair of the board of directors for Reston Hospital Center. He is a member of the AAOS Medical Liability Committee. He can be reached at
Additional Links:
Medical Liability Reform and Patient Safety: Demonstration Grants
Medical Liability Reform and Patient Safety: Planning Grants
AAOS NowFebruary 2011 Issue


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