9/22/11 - Become a better advocate, tort reforms work, more

9/22/11 - Liability and Health Reform Update
Become a better advocate, tort reform works, more

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


CONTENTS:

1. Commentary
2. PAMPAC Campaign and Grassroots Advocacy Seminar
3. From Modern Physician
Harkin: Congress likely will tackle 'doc fix' in omnibus bill
http://www.modernphysician.com/article/20110920/MODERNPHYSICIAN/110929996/harkin-congress-likely-will-tackle-doc-fix-in-omnibus-bill
4. From Modern Physician
MedPAC proposes cuts to save $233 billion
http://www.modernphysician.com/article/20110921/MODERNPHYSICIAN/309219963?AllowView=VW8xUmo5Q21TcWJOb1gzb0tNN3RLZ0h0MWg5SVgra3NZRzROR3l0WWRMZmJYZjhBRWxYek9UYktwUGZUamg5b1g4WFFERmhzbHhwTHN6Yk9XcUU9?trk=mp_newsletter_FULL
5. From Allentown Morning Call
New law brings fairness to malpractice suits
http://www.mcall.com/opinion/yourview/mc-tort-reform-anderson--yv-20110913,0,403690.story
6. From Modern Medicine
Malpractice reform helps bottom line even if you don't get sued
http://www.modernmedicine.com/modernmedicine/Modern+Medicine+News/Malpractice-reform-helps-bottom-line-even-if-you-d/ArticleStandard/Article/detail/738812?contextCategoryId=40169
7. From the Legal Intelligencer
Delco Jury Awards $3.8 Mil. to Woman Who Died From Sepsis
http://www.law.com/jsp/pa/PubArticlePA.jsp?id=1202512430265&src=EMC-Email&et=editorial&bu=The%20Legal%20Intelligencer&pt=TLI%20PM%20Legal%20Alert&cn=TLI%20_PM20110825&kw=Delco%20Jury%20Awards%20%243.8%20Mil.%20to%20Woman%20Who%20Died%20From%20Sepsis&slreturn=1&hbxlogin=1
8. From Legal Watchdog
The True Cost of Lawsuit Abuse
http://www.legalwatchdog.org/abuse_cost.asp
9. From The Patriot News
Pennsylvania dentists may soon be required to purchase malpractice insurance
http://www.pennlive.com/midstate/index.ssf/2011/08/pennsylvania_dentists_may_soon.html
10. From Insurance Journal
http://www.insurancejournal.com/news/southcentral/2011/08/25/212358.htm
Texas Medical Liability Trust to Reduce Rates, Pay 18.5% Dividend
11. From Legal Watchdog
Gov. Perry Calls for Expanded Lawsuit Reform in Texas
http://www.legalwatchdog.org/
12. From American Medical News
Most doctors face lawsuits, but few lose them
Less than 2% of those sued make payments to plaintiffs, a study shows. Neurosurgeons are sued more often than any other specialists.
http://www.ama-assn.org/amednews/2011/08/29/prsa0829.htm
13. From Washington Examiner
Days numbered for trial lawyers getting outrageous paydays
http://washingtonexaminer.com/opinion/columnists/2011/08/days-numbered-trial-lawyers-getting-outrageous-paydays
14. From Roll Call
Gingrey: Lawsuits Handcuffing Health Care
Awards from Liability Suits Shouldn't Be Used as Investments for Hedge Funds
http://www.rollcall.com/features/Health-Care-2011_Policy-Briefing/policy_briefings/-204316-1.html
15. From NCPA
Health Reform and Medical Malpractice Reform
http://www.aei.org/docLib/2011-04-Hyman-Sage.pdf
16. From Forbes
Malpractice Suits Plunge In Wake of Mississippi Tort Reforms
http://blogs.forbes.com/danielfisher/2011/07/28/malpractice-suits-plunge-in-wake-of-mississippi-tort-reforms/
17. Everything You Wanted to Know About "ObamaCare" (but didn't know who to ask)
http://www.ustream.tv/channel/health-care-reform---desales

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1. Commentary

NO one is a better advocate for quality health care than a physician.

Let me say it again - NO ONE, not a lobbyist, a lawyer, an executive director, an adorable child, or a cute puppy can affect a legislator's opinion or vote in the same way a physician can.

So....why do physicians sit back and let people that everyone knows get paid to advocate for them do all the work?

Sure, the professionals know what to say and how to say it. They've studied your issues, and they're wonderful - to an extent.

But physicians don't need to be told what to say about the issues that affect their ability to provide quality medical care - physicians LIVE it, and legislators know that. So a heartfelt story from a physician (or a physician's spouse!) about rising malpractice premiums making it impossible to hire more staff, or about government interference making it difficult to treat a patient's INDIVIDUAL needs, is far more effective than anything a paid lobbyist can say.

Don't get me wrong, we NEED our lobbyists to maintain a consistent presence and keep the groups that represent physicians in the forefront of legislators' minds, but for the REAL heavy lifting, doctors and other members of the "family of medicine" need to get involved - up close and personally involved.

Some of the people who are the BEST at helping physicians and their families maximize their inherent ability to impact legislative and political outcomes are joining forces this Saturday in Harrisburg to provide a unique training program for physicians and their family members. PAMPAC's Larry Light (whose quiet brilliance is scary sometimes) and AMPAC's Jim Wilson (who ran the outstanding AMPAC Campaign School I attended several years ago) will share their experience, insight, and techniques for successful advocacy.

This is a members-only benefit and I'm happy to say that I'll be there to soak up more of their collective wisdom. So if you're registered, make sure to be there - and if you're not and you'd like to be, it might not be too late (although I don't know that for sure.....)

I hope to see many of you there!

DBR


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2. PAMPAC Campaign and Grassroots Seminar

((This seminar is available only to PAMPAC and AMPAC members.))

PAMPAC and AMPAC would like to invite you to a Regional Campaign and Grassroots Seminar on September 24, 2011 from 8:30 a.m.-3 p.m. The Seminar will be held at the PMS headquarters at 777 East Park Drive, Harrisburg, PA.

Increase your political effectiveness with sessions on:

Effective Advocacy Communication
Make an Impact on a Local Political Campaign
Running for Public Office – A Primer
Polish Your Political Skills
Please see the attached agenda for more information. This seminar is free to all current PAMPAC and AMPAC members. Continental breakfast and lunch will be provided.

Ask for the discounted PA Medical Society rate at-

Best Western Premier-800 East Park Dr. (717) 561-2800, (use code 3449)
Hampton Inn Harrisburg East-4230 Union Deposit Road- (717) 545-9595

To confirm your registration or for more information, please contact PAMPAC at pampac@pamedsoc.org or 717-558-7821.

If you are already registered for the session, you need do nothing else, and we look forward to seeing you in a few weeks!

Sincerely,
Jim Wilson. PhD

Manager, Political Education Programs

jim.wilson@ama-assn.org


PAMPAC POLITICAL SEMINAR
September 24, 2011
PA Medical Society Building
777 East Park Drive, Harrisburg, PA

8:30 AM Continental Breakfast

9:00 AM Effective Advocacy Communication
Meeting, Talking & Writing to Your Legislator
Message, Structure & Strategy
Stephanie Vance, Advocacy Associates

10:30 AM Break

10:45 Make an Impact on a Local Political Campaign
Fundraising, Get Out the Vote, Using your White
Coat & Office Effectively, Getting Your
Colleagues Involved
Vance & Jim Wilson, AMPAC

12:15 Lunch

12:45 Running for Public Office – A Primer
Should I Consider Running, How to get started,
State vs Federal
Larry Light, PAMPAC

1:45 PM Polish Your Political Skills
Role Play and Interactive
Jim Wilson

2:45 Closing Comments Jim Wilson

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3. From Modern Physician
Harkin: Congress likely will tackle 'doc fix' in omnibus bill
http://www.modernphysician.com/article/20110920/MODERNPHYSICIAN/110929996/harkin-congress-likely-will-tackle-doc-fix-in-omnibus-bill
By Rich Daly

Posted: September 20, 2011 - 6:15 pm ET

((Just what we need.....another massive bill no one will have time to read....does this make four or FIVE planned reductions of physician reimbursement floating around out there....? I've lost count.))

Congress will not prevent the looming 29.4% cut in Medicare payments to physicians until it approves a last-minute omnibus funding bill, according to a senior Senate Democrat.

Sen. Tom Harkin (D-Iowa), chairman of the powerful Senate Appropriations Committee's Labor, Health and Human Services, Education and Related Agencies Subcommittee, told reporters Tuesday that a measure to prevent the scheduled cut to provider reimbursements from taking effect in January is one of several high-profile provisions he expects Congress to include in a catch-all spending bill it will pass in the final days of the year.

Physician groups have pushed for Congress to pass a "permanent fix" to the current sustainable growth-rate payment formula. Congress has delayed such action because of the estimated $344 billion, 10-year cost of switching to another system for setting payments, according to federal actuaries.

Another measure Harkin expects the omnibus to include is funding for the federal version of state health exchanges. Insurance exchanges in each state were authorized by the 2010 healthcare law to launch in 2014, with the federal government establishing exchanges in states that opted not to establish an exchange. However, published reports have asserted that the federal exchanges were unfunded by the law, and HHS officials have not clearly affirmed or denied those reports.

Harkin, who is the senior Senate Democrat overseeing healthcare funding, made it clear that the exchanges still require congressional appropriations.

"If the states won't do it, we go in and do it," Harkin said about the federal versions of state insurance exchanges.

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4. From Modern Physician
MedPAC proposes cuts to save $233 billion
http://www.modernphysician.com/article/20110921/MODERNPHYSICIAN/309219963?AllowView=VW8xUmo5Q21TcWJOb1gzb0tNN3RLZ0h0MWg5SVgra3NZRzROR3l0WWRMZmJYZjhBRWxYek9UYktwUGZUamg5b1g4WFFERmhzbHhwTHN6Yk9XcUU9?trk=mp_newsletter_FULL

By Rich Daly

Posted: September 21, 2011 - 1:00 pm ET

Congress could fund $233 billion of the 10-year cost of overhauling the Medicare physician payment program through a series of cuts to the seniors' health program, according to draft recommendations (PDF) posted online by the staff of the Medicare Payment Advisory Commission

The proposed Medicare cuts, on which the panel has not yet voted, came in addition to Medicare-only savings that could fund a "doc fix" that MedPAC discussed last week. Those ideas included a freeze on the reimbursement rate for primary-care services and cutting payments to specialists by 5.9% each year for three years.

Such steps aim to avoid a 29.4% cut in Medicare payments to providers that is scheduled to take effect in January under the current sustainable growth-rate formula.

The suggested cuts posted Tuesday by MedPAC staff included $75 billion in estimated 10-year savings from requiring drugmakers to provide Medicaid-type rebates for dual-eligible beneficiaries. Other savings include $23 billion from rebasing skilled-nursing facilities and $14 billion from both limiting the hospital update to 1% in 2012 and implementing documentation and coding improvements.

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5. From Allentown Morning Call
New law brings fairness to malpractice suits
http://www.mcall.com/opinion/yourview/mc-tort-reform-anderson--yv-20110913,0,403690.story
September 13, 2011

Earlier this summer, Gov. Corbett signed the Fair Share Act into law, bringing joint and several liability reform to Pennsylvania. Hallelujah!

I want to publicly extend the appreciation of all the men and women at St. Luke's Hospital & Health Network to Gov. Corbett and members of Pennsylvania's Senate and House who supported this landmark legislation. I have been a long-standing and vocal critic of Pennsylvania's contentious medical malpractice climate, and the passage of the Fair Share Act represents a significant step in a long journey toward substantive legal reform.

The Fair Share Act brings a degree of fairness to our legal system. It maintains a person's right to collect damages in a civil lawsuit while ensuring each defendant's level of financial responsibility is assessed in a fair and equitable manner, as determined by a judge or jury.

Previously, Pennsylvania law held every defendant found even 1 percent liable in a civil suit responsible for the entire verdict if other defendants could not pay their share. Under the Fair Share Act, percentage of fault equates to percentage of financial liability — basic common sense.

In signing the Fair Share Act, Gov. Corbett emphasized the legislation is "critical to improving the state's legal climate which has a direct impact on our economic climate." He noted the bill affects "the cost of goods and services, the cost of health care, and will encourage companies to move here, start here, grow here and stay here." I wholeheartedly agree.

Pennsylvania's economy — and that of our nation and many other countries across the world — continue to teeter on the brink of crisis.

The Fair Share Act levels the playing field for those involved in a civil lawsuit, including health care providers. It will further help to attract business and industry to Pennsylvania, creating jobs and providing health care benefits to more people.

It will help reduce exorbitant legal and malpractice insurance costs paid by Pennsylvania health care providers resulting from frivolous lawsuits filed by plaintiffs and their lawyers seeking to "win the lottery" in a litigious climate where degree of liability had no bearing on degree of financial responsibility in a civil lawsuit.

There is still more reform needed to bring additional fairness, common sense and accountability into our legal system. Requirements for medical experts writing the required certificate of merit as well as financial limits to pain and suffering awards must be enacted.

The Fair Share Act demonstrates the tremendous good that comes when our elected officials choose leadership over politics and fulfill their responsibility to facilitate positive change on behalf of all Pennsylvanians. St. Luke's thanks them for their efforts in enacting the Fair Share Act and urges them to continue to act and heal Pennsylvania's legal system.

Richard A. Anderson is president and CEO of St. Luke's Hospital & Health Network.
Copyright © 2011, The Morning Call

((Fair Share was a good first step - there are many more steps to take, and physician and family of medicine advocacy will be VITAL to the success of other measures. We can't "rest" simply we have a governor who supports medical liability reform.))

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6. From Modern Medicine
Malpractice reform helps bottom line even if you don't get sued
http://www.modernmedicine.com/modernmedicine/Modern+Medicine+News/Malpractice-reform-helps-bottom-line-even-if-you-d/ArticleStandard/Article/detail/738812?contextCategoryId=40169

Publish date: Sep 7, 2011
By: Brenda L. Mooney

Does medical liability reform help the bottom lines of physicians who never get sued? Texas’ experience suggests that the answer is yes.

The board of governors of Texas Medical Liability Trust (TMLT), a physician-owned malpractice insurer, announced that it will reduce rates for the ninth consecutive year. For 2012, the average rate decrease will be 6.9%, varying by the specialty and location of the practice. In addition, the trust is paying out an 18.5% dividend for renewing policyholders, effective January 1, 2012. Combined, the rate reduction and dividend save TMLT policyholders nearly $35.8 million in 2012 premiums, according to the trust.

Insurance rates started on a downward trend when medical liability reform was passed in Texas in 2003, and with the 2012 cuts, physicians have saved $745.5 million in decreased premiums since that time, TMLT said. With the latest rate announcement, policyholders have seen their rates drop 56.7% since liability reform went into effect. ((Tort reform doesn't reduce premiums, though, just ask your friendly neighborhood trial lawyers' association....))

This is the seventh time TMLT has declared a policyholder dividend, which will represent about a $25.4 million benefit to the group’s policyholders in 2012.

"Physicians work within an environment of decreasing reimbursements and increasing operating costs. We are hopeful that these reductions and dividends will help physicians as they help patients," said Charles R. (Chip) Ott Jr., TMLT president and chief executive officer.

On its Web site, the Texas Medical Association (TMA) points out that all major physician liability carriers in Texas have cut their rates since the passage of the reforms, most by double-digits and by an average of 27%. That has meant $879 million in cumulative liability cost savings since January 2004, according to the association.

In addition, lawsuit filings in most Texas counties have dropped by half, TMA said.

Texas also has adopted a constitutional amendment to thwart challenges from trial lawyers, now operating under an organization called the American Association for Justice (AAJ). On its Web site opposing tort reform, AAJ argues that “Medical negligence lawsuits serve an important role in promoting public health and patient safety.” ((Actually, there's no quantifiable evidence of that.))

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7. From the Legal Intelligencer
Delco Jury Awards $3.8 Mil. to Woman Who Died From Sepsis
http://www.law.com/jsp/pa/PubArticlePA.jsp?id=1202512430265&src=EMC-Email&et=editorial&bu=The%20Legal%20Intelligencer&pt=TLI%20PM%20Legal%20Alert&cn=TLI%20_PM20110825&kw=Delco%20Jury%20Awards%20%243.8%20Mil.%20to%20Woman%20Who%20Died%20From%20Sepsis&slreturn=1&hbxlogin=1
Gina Passarella
August 25, 2011

A Delaware County jury has awarded $3.8 million to the estate of a 52-year-old woman who died of sepsis at Riddle Memorial Hospital 14 hours after going to the emergency room with severe constipation.

The medical malpractice award is said to be one of the highest, if not the highest, in the county in several years, and it is one of less than a handful of cases that have gone in the plaintiff’s favor in five years.

According to Raynes McCarty attorney Roy DeCaro (pictured above), who represented Janice D. Heffner's husband, William, the court told him there were 75 medical malpractice cases that went to jury verdicts between 2006 and 2010 in Delaware County and 70 of them were defense verdicts. A call to the Delaware County court administrator to confirm these statistics was not immediately returned.

DeCaro said one judge told him the verdict was a good thing for the county because defendants are reluctant to even entertain settlements in the counties where defense verdicts are so prevalent.

"I think it's important that in a county, given the right case, the jurors will give fair value," DeCaro said. "But unfortunately it's the exception to the rule. But when you get verdicts like this, then the defense insurance companies have to pay attention and perhaps they will evaluate these cases in a fairer way than they are." ((That's an outrageous claim - perhaps he could offer some statistics to back it up? There's hard evidence that fewer malpractice cases are filed in Pennsylvania since the tort reforms of 2003 and the subsequent Supreme Court rule changes, but there is NO evidence available which indicates that there are fewer or lower settlements, since the PA Supreme Court doesn't track those.))

The 12-member jury in Heffner v. Riddle Memorial Hospital found 10-2 that Riddle Memorial Hospital house physician Dr. John A. Kotyo and attending physician Dr. Lawrence P. Wean were negligent in their care of Janice Heffner and that that negligence caused her death. The jury found Wean 40 percent negligent and found Kotyo 60 percent.

DeCaro said Kotyo was a direct employee of the hospital and put on a defense along with the hospital. While Wean put on his own defense, he was considered an agent of the hospital, placing Riddle Memorial on the hook for the $3.8 million. The jury awarded $3 million in Wrongful Death Act damages and $806,785 in Survival Act damages. DeCaro has filed for delay damages of $137,409.

DeCaro said plaintiffs often win the battle and lose the war when juries think they are teaching doctors a lesson by finding them negligent but then not finding that negligence was a cause of the plaintiff's harm. So he said he spent a lot of time in his closing talking about factual cause as it relates to increased risk. Showing that the conduct increased the risk of harm, which is required in Pennsylvania, is sometimes a hard concept for juries to understand, he said. ((I don't think that's hard to understand at all - if alleged negligence caused no HARM, then for what should a defendant be compensated?))

James C. Stroud of Rawle & Henderson represented Riddle Memorial and Kotyo. He said he was obviously disappointed in the verdict. He said he thought the case went really well for his client and he was surprised at the finding of liability. He was even more surprised, he said, at the size of the verdict for wrongful death, given Heffner had three adult children. Stroud said the verdict would have been high in Philadelphia, let alone Delaware County. He said his clients are considering their options for post-trial motions.

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8. From Legal Watchdog
The True Cost of Lawsuit Abuse
http://www.legalwatchdog.org/abuse_cost.asp

Austin, Texas -The U.S. legal system imposes on the nation a staggering cost of more than $865 billion annually through lawsuit abuse, according to recent study by the Pacific Research Institute (PRI) of San Francisco, Calif.

The cost of lawsuit abuse is 27 times more than the federal government spends on homeland security, 30 times what the National Institutes of Health dedicates to finding cures for deadly diseases, and 13 times the amount the U.S. Department of Education spends to help educate America's children. ((I like these comparisons - they kind of remind me of the trial lawyers' "American doctors kill as many people as three jumbo jets crashing each day" rhetoric.))

The authors of "Jackpot Justice: The True cost of America's Tort System" calculated that the nation's tort system imposes a yearly "tort tax" of $9,827 for a family of four and raises health care spending in the United States by $124 billion.

Lost Jobs and Lost Retirement Saving More than 51,000 U.S. jobs have been lost due to asbestos-related bankruptcies alone. Employees at these bankrupted companies have lost $559 million in pension benefits.

Loss of Shareholder Wealth Lawsuits against American corporations generate an annual loss of $684 billion in shareholder value. Who are American shareholders? Not only Bill Gates and Warren Buffet, but 50 percent of all United States shareholders are ordinary individuals.

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9. From The Patriot News
Pennsylvania dentists may soon be required to purchase malpractice insurance
http://www.pennlive.com/midstate/index.ssf/2011/08/pennsylvania_dentists_may_soon.html
Published: Monday, August 01, 2011, 7:11 PM Updated: Monday, August 01, 2011, 8:13 PM
BY JOHN MANGANARO, For The Patriot-News

Most dentists in Pennsylvania carry malpractice insurance, but currently, they aren’t required to do so.

That may change in the near future.

Sen. Pat Vance, R-Cumberland County, has sponsored a bill requiring dentists to purchase malpractice insurance. The state Senate unanimously approved the bill in June, and it is now in the state House of Representatives. The Legislature is in recess for the summer.

Vance introduced the bill after hearing reports of patient abuse in Reading, Berks County, and other areas of the state. Dentists who didn’t buy insurance could lose their license under the bill.

“Most responsible and group dentists already carry this kind of insurance anyway,” Vance said. “But unfortunately, the rogue dentists we really need to have this kind of coverage, to protect the consumer, are the ones who don’t.”

Dentists would be required to purchase liability insurance of $3 million annually. That amount of malpractice coverage would cost the average Pennsylvania dentist about $2,400 annually, according to Gil Davis, CEO of Pennsylvania Dental Association Insurance Services. ((Well, at least until the personal injury lawyers start to mine the new source of income....))

That average is driven up by rates in the southeastern part of the state. The average in Delaware and Montgomery counties is about $2,700. Philadelphia’s rate is closer to $4,500.

Local dentist Dr. Michael Verber called the bill “a good example of good government.”

“I already have that amount of coverage, and most dentists in the state do as well,” Verber said. “With this measure, the government will be able to increase the quality of health care without dramatically increasing the burden on doctors or patients.”

Dr. Craig Mathias, a Harrisburg orthodontist, said new malpractice insurance requirements would be “another unnecessary expense.”

“As an orthodontist, I’ve got a different level of liability, so we do already carry an adequate amount of insurance in my office,” Mathias said. “I’ve got about half of that right now.”

Mathias said picking up the rest “wouldn’t be a nail in the coffin. More like a tack to have to sit on.”

Davis said the average malpractice claim against dentists is only about $20,000. Davis didn’t have a number of claims typically filed in a year, but said there “is not a significant number.”

Dr. Dennis Charlton, president of the Pennsylvania Dental Association and a dentist in Mercer County, said his organization supports the legislation.

“Nearly all dentists in the commonwealth already have this level of malpractice insurance and this law will bring our malpractice requirements to the same level as other professionals in the state,” Charlton said.

Ronald Ruman, press secretary for the Department of State, said the agency “supports the general concept to require dentists to carry professional liability insurance.” The state department oversees the licensing of dentists.

Ruman added that, because some details of the measure are likely to be debated and changed in the House, the department “will wait to see the final version before taking a position on the legislation in its final form.”


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10. From Insurance Journal
Texas Medical Liability Trust to Reduce Rates, Pay 18.5% Dividend
http://www.insurancejournal.com/news/southcentral/2011/08/25/212358.htm
August 25, 2011

Texas Medical Liability Trust announced a rate reduction for TMLT policyholders and an 18.5 percent dividend for renewing policyholders, effective Jan.1, 2012.

The average rate decrease will be 6.9 percent, but will vary by specialty and the geographic location of medical practice. The combined rate reduction and dividend will save TMLT policyholders nearly $35.8 million in 2012 premium

TMLT has reduced rates for Texas physicians for nine consecutive years since the passage of medical liability reform by the Texas legislature in 2003, the company said. The 2012 rate reduction saves TMLT policyholders about $10.4 million.

This is the seventh time TMLT has declared a policyholder dividend. This will amount to approximately $25.4 million in 2012 premium savings for TMLT physicians.

Since the passage of medical liability reform, TMLT insured physicians will have saved $745.5 million in decreased premiums, once this latest round of rate cuts and dividends is implemented.

In 2011, TMLT policyholders saw their premiums reduced 54.4 percent from 2003 rates. In 2012, this percentage is projected to increase to 56.7percent.

Source: TMLT

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11. From Legal Watchdog
Gov. Perry Calls for Expanded Lawsuit Reform in Texas
http://www.legalwatchdog.org/

AUSTIN – Gov. Rick Perry today urged lawmakers to maintain the principles that have helped Texas' economy lead the nation, and to build upon previous improvements to the state's legal system by further expanding lawsuit reform. The governor gave the keynote address at the Texas Public Policy Foundation's (TPPF) 9th Annual Policy Orientation for the Texas Legislature.

"As the ripple effects of the recession began to reach Texas, our sound policies helped us rebound quicker than other states and are now helping us lead the way to recovery," Gov. Perry said. "We must work together this session to strengthen the basic economic building blocks that have drawn new employers and jobs to our state to ensure Texas remains the best state to do business and raise a family."

Balancing the budget while strengthening Texas' job-friendly climate¬ – based on low taxes, predictable regulations, a fair legal system and world-class workforce – is a top priority for the governor and vital to the future of the state.

To keep Texas' legal system accountable, transparent and efficient, and maintain Texas' competitive economic position, the governor noted the need to expand lawsuit reform in Texas by:

Creating an early dismissal option for frivolous lawsuits ((That's an excellent idea. The longer these cases linger, the more they cost.))

Ensuring victims of frivolous lawsuits do not bear the financial burden of defending themselves through the creation of a "loser pays" system

Ensuring new laws cannot create causes of action unless expressly established by the Legislature
Setting up expedited trials and limited discovery for lawsuits with claims between $10,000 and $100,000

Gov. Perry also reiterated his call for legislators to use available state revenue and thoroughly review all agencies and programs in order to balance the budget without raising taxes. To ensure state agencies continue to use taxpayer dollars prudently, the governor, lieutenant governor and House speaker have already directed state agencies to identify savings of 5 percent in the 2010-2011 biennium, an additional 2.5 percent for the 2011 fiscal year, and 10 percent for the 2012-2013 biennium.

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12. From American Medical News
Most doctors face lawsuits, but few lose them
Less than 2% of those sued make payments to plaintiffs, a study shows. Neurosurgeons are sued more often than any other specialists.
http://www.ama-assn.org/amednews/2011/08/29/prsa0829.htm
By Alicia Gallegos, amednews staff. Posted Aug. 29, 2011.

Most physicians will be sued at least once during their career, but the majority of cases will end in their favor.

The frequency of medical liability claims varies by specialty, with neurosurgeons sued more often than other physicians, said a study in the Aug. 18 issue of The New England Journal of Medicine.

Researchers estimated that by age 65, 75% of physicians in low-risk specialties will have experienced a lawsuit, compared with 99% of physicians in high-risk specialties.

"The purpose of this study was to really try to understand what are the individual malpractice risks that physicians in each specialty face," said lead study author Anupam B. Jena, MD, an internist in the Dept. of Medicine at Massachusetts General Hospital and a clinical fellow at Harvard Medical School in Boston. "Naturally, physicians in each specialty believe they are getting sued more often than average."

Dr. Jena and his colleagues analyzed claims data on about 41,000 physicians between 1991 and 2005 from an unidentified national medical liability insurer. The study found that each year, an average 7.4% of physicians experienced a medical liability claim. But among those doctors, only 1.6% made payments to plaintiffs.

Among neurosurgeons, each year 19.1% were sued. About one in five thoracic-cardiovascular surgeons faced a claim, followed by 15.3% of general surgeons. Only 2.6% of psychiatrists were sued in a given year, the least of all specialties.

About 8% of internists and 5.2% of family physicians faced lawsuits.

Physicians sued more often do not necessarily pay higher awards to plaintiffs, the study found. Dermatologists paid an average award or settlement of $117,832, the least of any specialty. Pediatricians paid the most, an average of $520,923 per payment.

Study supports previous research

The findings are not surprising, said Brian Atchinson, president of the Physician Insurers Assn. of America.

"This study validates what PIAA has reported for decades -- that the vast majority of claims and suits brought against health care providers have no merit," Atchinson said in an email. "Our figures show that 70% of the claims and suits brought against doctors do not result in payments to patients. Furthermore, for claims resolved at verdict, the defense prevails 80% of the time. Despite these facts, as a result of our flawed and inefficient medical liability system, health care providers continue to be subjected to unnecessary stress and time away from caring for patients, as the study noted."

An average of 7.4% of U.S. physicians are sued each year.

An analysis by PIAA found that the average cost of resolving a medical liability case in 2009 was $324,969, a rise of 13.9% from 2000.

The NEJM study results on frequency of lawsuits are similar to those of an American Medical Association survey released in 2010. The survey found more than 60% of physicians were sued by age 55.

The NEJM and AMA studies "paint a bleak picture of physicians' experiences with medical liability claims and bolsters the case for national and state level reform to rein in a broken legal system that invites abuse and excessive litigation," said AMA President Peter W. Carmel, MD. "Even though the vast majority of claims are dropped or decided in favor of physicians, the understandable fear of meritless lawsuits can profoundly influence which medical specialty physicians choose, where they practice and when they retire. This litigious climate hurts patients' access to health care at a time when we are also facing a shortage of physicians and other health professionals."

Authors of the NEJM study hope the piece will motivate physicians and others to discuss and implement more creative strategies to combat meritless claims, said co-study author Amitabh Chandra, a professor of public policy at Harvard Kennedy School. Traditional tort reforms such as damages caps are merely "patching portholes in the Titanic," he said.

Researchers said there were other costs the NEJM study did not capture, including the toll on physicians' emotions and reputation during a lawsuit.

"Although most cases get resolved in favor of doctors, it's a long, torturous legal process," Chandra said. "It's very slow, and the doctor is sitting there, sweating the whole time."

Lawsuits by specialty

A study shows how often physicians by specialty are sued annually and how many end up making payments to plaintiffs who have sued them.

Percentage of physicians sued
Specialty Sued Making plaintiff payment
Neurosurgery 19.1% 3.1%
Thoracic-cardiovascular surgery 18.9% 3.8%
General surgery 15.3% 4.2%
Orthopedic surgery 14.2% 3.9%
Plastic surgery 12.7% 2.8%
Gastroenterology 11.6% 1.3%
Obstetrics-gynecology 11.0% 2.9%
Urology 10.5% 2.5%
Pulmonary medicine 9.3% 0.9%
Oncology 9.1% 1.9%
Cardiology 8.6% 1.0%
Gynecology 8.3% 3.2%
Neurology 7.8% 1.4%
Internal medicine 7.7% 1.3%
Emergency medicine 7.6 1.4%
Anesthesiology 7.3% 1.6%
Diagnostic radiology 7.2% 1.6%
Ophthalmology 6.7% 1.2%
Nephrology 6.0% 0.4%
Pathology 5.6% 1.3%
Dermatology 5.4% 1.2%
Family general practice 5.2% 1.0%
Pediatrics 3.1% 0.5%
Psychiatry 2.6% 0.5%
Other specialties 4.0% 0.7%
All physicians 7.4% 1.6%

Source: "Malpractice Risk According to Physician Specialty," The New England Journal of Medicine, Aug. 18 (www.ncbi.nlm.nih.gov/pubmed/21848463)

Weblink
"Malpractice Risk According to Physician Specialty," The New England Journal of Medicine, Aug. 18 (www.ncbi.nlm.nih.gov/pubmed/21848463)

"Medical Liability Claim Frequency: A 2007-2008 Snapshot of Physicians," AMA Policy Research Perspectives, August 2010 (www.ama-assn.org/ama1/pub/upload/mm/363/prp-201001-claim-freq.pdf)

Copyright 2011 American Medical Association. All rights reserved.

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13. From Washington Examiner
Days numbered for trial lawyers getting outrageous paydays
http://washingtonexaminer.com/opinion/columnists/2011/08/days-numbered-trial-lawyers-getting-outrageous-paydays
By: David Freddoso Online Opinion Editor
08/23/11 8:05 PM

Here's a tip for you: Listening to really, really loud sounds over long periods of time can damage your hearing.

Perhaps you already knew that. But a few years back, a group of clever trial lawyers decided they could make some serious money by arguing in court that you are too stupid to know it yourself.

They filed 26 consumer fraud lawsuits in multiple states against Motorola and other manufacturers of Bluetooth headsets. They alleged that consumers were not warned sufficiently about the dangers, and that they "would not have purchased their Bluetooth headsets but for defendants' false advertising."

That led to a single class-action case in federal court, in which the plaintiffs sought refunds, restitution and punitive damages. And attorneys' fees, of course.

The case was pretty light on the merits -- in fact, Apple recently got a similar nuisance case thrown out of court over its iPod product line. But millions of people had purchased Bluetooth headsets, and so the potential for liability was high.

And these kinds of nuisance cases often cost a lot of money to defend. Most deep-pocketed defendants would rather spend a million dollars making a case like this one go away than spend millions more in litigation.

For the lawyers, this case was simple: File a lawsuit, then get a settlement agreement -- which they did. Under its terms, a hearing loss charity was to get $100,000. The lawyers were to get $800,000. And those who cranked up the volume full blast until they lost their hearing? They would basically get nothing. ((Look at that again - the lawyers were to get $800,000.))

But this week, the U.S. Ninth Circuit Court of Appeals put a damper on the business model of legal extortion by trial lawyers filing frivolous lawsuits. It sent this particular class-action settlement back to the lower court for reconsideration. It was the court's first failure to rubber-stamp such a class-action settlement in eight years.

Ted Frank of the Center for Class Action Fairness had filed the objection to the settlement. "We have been saying all along that this is an abuse of the class-action process," Frank told me. He said that the case could be a milestone in his fight to prevent such abuses.

"A defendant is willing to throw a million dollars at a case to make it go away, because it's often more expensive to defend it," Frank said. "And the attorneys are OK with settling for that million dollars, if they get the million dollars. But if most of the money has to go to their clients, they won't bring the crummy cases in the first place. They'll only bring meritorious cases."

Frank has become the proverbial fly in the trial lawyers' ointment, objecting again and again to bogus nuisance settlements that make up the bread and butter for some. In January, his objection helped convince a court to throw out a settlement between Classmates.com (the online social site with the annoying popup ads) and some users who felt they had been duped into signing up.

In that case -- whose merits appear much stronger than the Bluetooth case -- the lawyers had negotiated $117,000 for the aggrieved class, and a million-plus-dollar fee for themselves.

Frank's organization, a nonprofit 501(c)(3), is currently fighting settlements that are overly generous to trial lawyers in cases against Kellogg, Volkswagen and Toys "R" Us, among others.

He has also filed an objection to a settlement in an antitrust case against Sirius XM radio, which provided nothing -- zero -- for the plaintiffs, and $13 million (or 100 percent of the monetary settlement) for the attorneys.

The message for certain trial lawyers is that their days of self-serving deals and sponging off deep-pocketed defendants are numbered.

((Ted Frank is one of my heroes.....!))

David Freddoso is The Examiner's online opinion editor. He can be reached at dfreddoso@washingtonexaminer.com.

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14. From Roll Call
Gingrey: Lawsuits Handcuffing Health Care
Awards from Liability Suits Shouldn't Be Used as Investments for Hedge Funds
http://www.rollcall.com/features/Health-Care-2011_Policy-Briefing/policy_briefings/-204316-1.html
By Rep. Phil Gingrey
Special to Roll Call
March 25, 2011, 10:23 a.m.

It is a well-known fact that a strong doctor-patient relationship is an important part of an effective health care system.

What is less known, however, is that this relationship is in serious peril because of increasing attempts by some trial attorneys and Wall Street to exploit medical malpractice cases in search of large profits.

In the past few years, hedge funds and investment firms have begun capitalizing on medical lawsuits in order to reap rewards that are actually intended for injured patients. Furthermore, many of these suits aren’t even based on legitimate claims and oftentimes it is the patient’s own attorney who is responsible for facilitating these deals.

This is an alarming and costly problem. The New York Times reported that in this year alone, the financing of these types of frivolous suits will cost nearly $1 billion, adding a large amount of wasteful spending to our already ailing health care system. Health care liability awards should not be used as an investment vehicle for law firms and hedge funds, but should be used to make the patient whole.

When the well-being of patients is no longer the first priority, the need for tort reform becomes more important than ever. Support for meaningful medical malpractice liability reform can be traced back 30 years, to when then-Gov. Jerry Brown (D) of California implemented tort reform laws to address this very problem. The results were significant. The state saw an improvement in the care of patients and their safety, more accessibility to care, growth in the industry and lower costs.

The need for reform is still being echoed today, but on a national level. Most recently, we heard President Barack Obama during his State of the Union address talk about the need to look at alternate ways to lower the cost of health care, including medical liability reform. What may have been traditionally thought of as a political issue is now clearly an initiative with widespread bipartisan support.

This support gives us the ability to answer the call for reform by implementing meaningful liability solutions on a much larger scale. To do so, I introduced H.R. 5, the Help Efficient, Accessible, Low-cost, Timely Healthcare Act, along with my co-sponsors, House Judiciary Chairman Lamar Smith (R-Texas) and Rep. David Scott (D-Ga.). Our bill parallels the successful reforms in California and would ensure that injured patients can be made whole while creating substantial savings for our health care system.

And the savings that these reforms would bring about are quite significant. Meaningful medical liability reform has the potential to dramatically reduce the cost of health care by as much as $200 billion annually. Currently, this money is being lost to the practice of defensive medicine, frivolous lawsuits and excessive fees instead of being used to compensate injured patients. In a time when each and every dollar that we spend counts, these savings could make a huge difference in the quality of health care provided.

This cost ultimately increases insurance rates and creates a less desirable environment for physicians to practice medicine. In fact, the rising cost of medical malpractice insurance has been the main reason cited by medical students for deciding not to practice, which is a contributing factor to our national physician shortage.

Lack of reform not only increases the costs of health care significantly, but it directly strains the doctor-patient relationship. When medical liability cases becomes less about the quality of care and more about outside parties earning dividends on patient injury awards, the need for reform is clear. After all, it should be easier to see your doctor than to sue your doctor.

Maintaining the status quo in our health care system is no longer acceptable. Big, expensive and intrusive bills are not the kinds of solutions the American people want. But by supporting reforms such as the HEALTH Act, we can enact cost-cutting and meaningful measures that truly turn our focus back to the care and protection of patients nationwide.

Rep. Phil Gingrey (R-Ga.) is a member of the House Energy and Commerce Committee and its Subcommittee on Health. He co-chairs the GOP Doctors Caucus.


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15. From NCPA
Health Reform and Medical Malpractice Reform
http://www.aei.org/docLib/2011-04-Hyman-Sage.pdf

The final version of the Patient Protection and Affordable Care Act (PPACA) included only two minor provisions related to medical malpractice. Section 6801 encourages states "to develop and test alternatives to the civil litigation system," say David A. Hyman, University of Illinois, and William M. Sage, University of Texas at Austin.

Section 10607 authorizes $50 million over a five-year period to support demonstration grants to states for the "development, implementation, and evaluation of alternatives to current tort litigation for resolving disputes over injuries allegedly caused by health care providers or health care organizations."

To qualify for the new funding, a state must demonstrate that its proposal:

Makes the medical liability system more reliable and efficient.
Encourages the disclosure of health care errors and enhances patient safety.
Improves access to liability insurance.
Fully informs patients about the differences in the alternative and current tort litigation.
Provides patients the ability to opt out of or voluntarily withdraw from participating in the alternative at any time.
Does not conflict with state law and will not limit or curtail a patient's existing legal rights.

Why did the PPACA not emphasize malpractice reform as a more important component of health care reform? Should the PPACA have done more to change the rules of malpractice liability? What kinds of changes might make sense? The PPACA's omission of malpractice reform was a missed opportunity to secure the support of physicians for payment reform and delivery-system transformation. The real issue is what we want our health care system and our malpractice system to do when working together.

Modifications to both should be undertaken with that question in mind, say Hyman and Sage.

((Dr. Sage is fair-minded and intelligent, as he demonstrated during Pennsylvania's medical liability crisis.))

Source: David A. Hyman and William M. Sage, "Do Health Reform and Malpractice Reform Fit Together?" The American Enterprise Institute, April 1, 2011.

For text:

http://www.aei.org/docLib/2011-04-Hyman-Sage.pdf

For more on Health Issues:

http://www.ncpa.org/sub/dpd/index.php?Article_Category=16


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16. From Forbes
Malpractice Suits Plunge In Wake of Mississippi Tort Reforms
http://blogs.forbes.com/danielfisher/2011/07/28/malpractice-suits-plunge-in-wake-of-mississippi-tort-reforms/
Jul. 28 2011 - 2:01 pm
By DANIEL FISHER

A new study of medical malpractice litigation in Mississippi suggests caps on pain and suffering awards and other reforms had a dramatic impact on lawsuits against doctors in that state.
The study in the current issue of Obstetrics & Gynecology is by Mark Behrens of Shook, Hardy & Bacon, the defense firm of choice for tobacco companies and manufacturers with serious toxic liability issues. No matter. Behren simply looks at the number of lawsuits filed against doctors insured by the Medical Assurance Co. of Mississippi, the state’s largest med-mal insurer, and comes up with convincing evidence that once the legislature made it harder to sue and win big bucks, lawyers responded by filing fewer suits.

The charts make for interesting viewing. In the years before Mississippi began seriously discussing med-mal tort reform lawsuits against MACM-insured physicians rose at a steady rate of about 8.5% a year to around 250. They jumped to 355 in 2001 and then surged to 630 in 2002, after legislators passed a law capping non-economic damages at $500,000 for suits filed after Jan. 1, 2003. Who knew doctors could commit more malpractice simply because the legislature changed the rules? (The MACM said by the end of 2006 that it was “disposing of most of those claims with little or no expense,” casting doubt on quality of that last-minute lawyering.) ((I LOVE that this reporter pointed out the surge in claims JUST PRIOR to reforms going into effect - we had the same thing happen here in PA in 2002, and the numbers generated by the get-in-under-the-old-rules surge of filings has been used to make it look like the reforms had far more effect than they did ever since.))

The once-friendly legislators punished trial lawyers the following year by eliminating any increases in the cap on pain and suffering, outlawing forum shopping by forcing plaintiffs to sue in the county where they were allegedly injured, and other tweaks that made it harder to drag tangential players into lawsuits. Lawsuits fell to 132 in 2003, their lowest level since 1989, and since have averaged about 150 a year, compared with 207 a year in the decade before 2002.

The steady increase in lawsuits before tort reform exceeded the rise in MACM physician rolls, which was about 3.5% a year. The number of insured jumped 14% after reform passed to 2,500 and has since increased to 2,721. So, as Behrens points out, the reduction in lawsuits filed can’t have anything to do with the number of physicians practicing. If tort reform doesn’t explain the lower number of suits, why else are more doctors drawing fewer claims of malpractice? Medicine didn’t suddenly get safer in Mississippi in 2003. ((Which only goes to prove that the number of lawsuits filed has far more to do with money than it does with safety.))

Behrens also talks about declining med-mal insurance rates, although as Tom Baker of the University of Pennsylvania has demonstrated convincingly, med-mal rates tend to rise and fall to their own rhythm. Still, the numbers are impressive. Premiums rose more than 10% each year between 2000 and 2004, with a 45% increase in 2003. Since 2006 they’ve fallen 5% to 20% a year.

The Mississippi experience offers a few important lessons. First, despite what some lawyers (and state Supreme Courts) say, the legislature does have the power to dictate the terms of civil litigation. The argument that medical malpractice litigation makes medicine safer is an idea in search of supporting evidence. ((YES!)) And lawyers, like all business people, respond to economic incentives. The sudden spike in apparent malpractice followed by a major decrease says everything about economics and very little about how many people were actually injured by malpractice. ((Again, YES!))

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17. Everything You Wanted to Know About "ObamaCare"
(but didn't know who to ask)
http://www.ustream.tv/channel/health-care-reform---desales

Video of Lehigh Valley COALITION for Health Care Reform's Constitution Day Educational Workshop - Everything You Wanted to Know About "ObamaCare" (but didn't know who to ask) at DeSales University on Sept. 17th.

Part 1
http://www.ustream.tv/recorded/17332009 - 1:59.25
Introduction - PPACA Nuts and Bolts, Implementation Timeline - Donna Baver Rovito - PA Rep. Stephen Bloom - Dr. Elena Farrell (D4PC) - Dr. Nick Pandelides (D4PC) - Samuel Denisco (PA Chamber) - Rep. John Shadegg - Dr. Richard Armstrong (D4PC)

Part 2
http://www.ustream.tv/recorded/17334048 - 6:27
Dr. Richard Armstrong (D4PC) (cont) -

Part 3
http://www.ustream.tv/recorded/17334228 - 1:01.17
Terrence O'Connor (HB 42) - William Taylor Reil (Nullification) - John Morningstar (Health Care Compacts) - John Brinson (Individual Reforms needed) - Dr. Alieta Eck (AAPS Pres-Elect)

Part 4
http://www.ustream.tv/recorded/17335319 - :58.37
Panel Discussion - Closing

For more information about the Coalition, go to www.meetup.com/lehigh-valley-coalition-for-health-care-reform

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This LIABILITY & HEALTH REFORM UPDATE is a free service which I provide, as a volunteer, to help supply medical liability and health care reform news and information, legislative updates, and political insight to physicians, patients, liability reform, and quality health care advocates. No one pays me to do this.

I am not employed by any physician or health care reform advocacy or liability reform organization, political party, or candidate, although I volunteer for several. I am an advocate for quality health care, physicians and patients, a breast cancer survivor, physician's spouse, journalist, political noisemaker, mom, and freelance writer. I am not, nor will I ever claim to be, unbiased (I am....biased, I mean), unlike many in the mainstream media.

Most information in this newsletter is copied and pasted from other sources, and will always provide a link to the original source. Opinions and clarifications are my own, and do not reflect the official position of any physician or patient advocacy organization, tort reform, or health care reform group unless stated as such. My opinions are placed in double parentheses (("my opinion")), italicized, and appear in blue.

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