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  • Breaking: The Latest Worthless Medical Malpractice "Reforms"

    When President Obama held his health care summit at the White House, Rep. Dave Camp (R-MI) pointed out that a key part of containing medical costs was completely missing from the debate: medical malpractice legal reform. The cost of defensive medicine alone (without taking into account the direct costs of such claims) “could be as high as $239 billion” according to a study by PriceWaterhouseCoopers cited by Camp.

    So what was President Obama’s response? He basically interrupted Camp and told him to “finish up.” On March 3, when Obama gave his speech in the East Room on health care reform, his only mention of this issue was about “funding state grants on medical malpractice reform.” Of course, he has said that before – in his address to Congress on health care last fall. Then he offered to fund “pilot” projects even though states like Texas and Mississippi have instituted such reform and we already know what works.

    The House bill actually tries to kill effective malpractice remedies such as caps on noneconomic damages. It provides incentive payments to states that provide “an alternative medical liability law” that prompts the “fair resolution” of disputes – but no such incentive will be paid to any state that limits “attorneys’ fees or imposes caps on damages.”

    Now according to a source, Rep. Cuellar (D-TX) is trying to convince his fellow legislators that this problem can be solved through an amendment to H.R. 3590. His proposed amendment states that “[t]he development, recognition, or implementation of any guideline or other standard under any provision of this Act shall not be construed to establish the standard of care or duty of care owed by health care providers to their patients in any medical malpractice action or claim.” The amendment also says that nothing in the federal law will “modify or impair State law governing legal standards or procedures used in medical malpractice cases.”

    However, arguably this provision may be worse than useless from the standpoint of protecting medical providers from medical malpractice claims because it may give medical providers a false sense of security. Even if defendants will be able to argue that federal guidelines do not automatically establish a standard of care, plaintiffs’ lawyers will compare the doctor’s conduct to that federal guideline whenever the doctor’s actions deviate from it. So, the doctor will still be at risk. Second, this amendment will not preclude a plaintiff’s lawyer from arguing that a doctor should have done more than the minimum federal guideline, turning it into the equivalent of a standard. Third, only a state legislature can stop state courts from adopting the federal guideline as the state’s standard of care for medical treatment. Finally, this provision gives the states no reason or incentive to implement specific reforms that are known to work like capping damages for noneconomic damages (like “pain and suffering”).

    The bottom line is that so far in this extended debate over healthcare, there is absolutely nothing substantive in the president’s proposals or the House or Senate bills that would implement any real medical malpractice reforms.

    Posted in Legal [slideshow_deploy]

    9 Responses to Breaking: The Latest Worthless Medical Malpractice "Reforms"

    1. Caroline says:

      When those damages caps are in place that step on our constitutional right to a trial by a jury of our peers, and when the fees that plaintiffs' lawyers are capped, that will solve the problem? In those states where the are caps, do you have empirical date supporting the assertion that tort reform reduces insurance rates and the out of pocket expenses paid by the patient?

      More importantly, is the defense willing to put their money where their mouth is and limit the the amount of attorney's fees they can charge their doctors and insurance companies in defending them from malpractice claims to help reduce costs? After all, attorney's fees aren't just being paid to the patient's attorney.

      In fact, I would almost be willing to bet that that more is spent every year on defense fees than on claims of malpractice. Are those attorneys willing to reduce their fees to reduce the burden on insurance companies and beleaguered doctors?

    2. Wm; Ky says:

      I am a Family Practice physician in Ky. I Completed a 3 yr residency in 1987 (total education past High School – 13yrs). I left private practice because I could have made more money in a local factory given the hours I put in each week AND could have received benefits. I now work for a hospital as do many physicians. I make $80/hr. I am considered an independent contractor therefore I receive NO BENEFITS. I see patients having received their medical degrees over the internet and from talking with others with "similar" illnesses who now bring me a laundry list of diagnoses and what tests they want to have performed, ignorant of the costs and risks. I find myself ordering many of these tests simply to pacify and "cover my ass". I have endured one lawsuit which never went to trial and this is as close to lawyers as I ever hope to be again. As one Kentucky lawyer told me "part of their job is to circulate money". I never expect Tort Reform. I would never recommend anyone encouraging their children to enter Medicine. The problem is 2 fold in my opinion. We have lawyers who will pursue anything, anybody if they can make a buck. AND, just as important we have people in this country that will sue anyone if they can get a buck (Legal Lottery). Phone books and Television ads are full of "we don't get paid unless you get paid" advertisements. It is a matter of integrity which seems sorely lacking in the legal profession to which I am aquainted. If I had stuffed my college funds into the mattress I would be a rich man now instead of $175,000 in debt and I could have had a life with my family. I certainly may be alone in my views but as things are and as things are going, from where do you think new doctors are going to come? I love Medicine but what I do at work each day has little to do with medicine.

    3. jim Ohare VP medmal says:

      Defensive medicine , at worst, yields an expensive diagnosis. My perspective is that of a 25year med mal claims guy. I am amazed how smart people connect fixing med mal as a cure for the criminal Healthcare expense. This is ludicrous. yes ,they both involve docs, and they both need fixing, but it is not a cause and effect relationship!

      Better gas mileage for cars and curtailing drunk driving both have cars in common, but that is about it. Fixing one has no affect on the other. The same with med mal and healthcare.

      The problem with healthcare is that it costs too much. – period. Why?- because those companies have a license to steal and operate within a legal antitrust system, provided by the Mccarron- ferguson act. If HC didnt have that protection and a 30% overhead, it could be considered reasonable, and nobody would care about defensive medicine.

      Chew on this- Aetna and Humana do not provide HC, they are just brokers with a protected 30-35% overhead. They ask for increases after quarters with billions in profit.- See California.

      The gov't delivers HC at a 6% overhead. Do the math. 24 cents of every HC dollar does not go to helping sick people. 24% cheaper by letting the gov't do it. Think about that as the gov't cant do anything efficiently. Waht do MRI's and CAT scans cost? Thousands and they are just glorified cameras.

      I just cut the cost of HC by a quarter. The HC companies have no incentive to curtail costs as there is no competition. Isnt this easy?

      The med mal problem and how do we fix it:

      - get more of the indemnity to the injured . They only get 40% on a cases total cost. Sliding fees.

      – mandatory insurance for docs, you need it to drive! No policy /no patients.

      – Cap on pain and suffering awards, you pick the amount. You cant measure nor weigh pain by $'s.

      – Loser of the case pays the costs of the other party.

      – Structured settlements for all settlements over $500k- it helps everyone.

      – Presuit affidavits from experts re liability, causation and damages. mandatory mediations.

      – Arbitration – a jury of peers. Still your day in court, just a different forum.

      – In court, a jury of peers , docs dont get them, how about a minimum of a bachelor degree to sit.

      Please remember caps are usually discussed for the one cause of action, not the whole case. Loss on earnings past and future, and medical expenses can be measured. Pain – its the angels on the head of a pin argument. I have more great ideas, but lets be honest, there is too much money involved and nobody wants change.

      Jim O'Hare VP med mal claims PIC florida

    4. Bob, Silver Spring, says:

      Referring to Rep. Cuellar's proposal, the article says "However, arguably this provision may be worse than useless from the standpoint of protecting medical providers from medical malpractice claims …."

      I think everyone is missing the real way to save money, and provide safer medical care. The real problem isn't "protecting medical providers from malpractice claims;" the real problem is protecting patients from malpractice. If that were done, malpractice claims would drop significantly and physicians fears of suits would drop as well.

      The Institute of Medicine says there are about 100,000 malpractice deaths a year from malpractice. Other reputable estimates are higher. Yet in 2009 there were only 3,537 malpractice payments for cases involving death. The percentage of non-death injuries being compensated is probably even lower. Tort reform won't solve the problem of malpractice itself; it only shifts the costs to the victims, and obviously only a very small proportion of victims are being compensated even now.

      The solution is to reduce malpractice in the first place. National Practitioner Data Bank records show that about 2 to 3 percent of physicians are responsible for over half of all the money paid out for malpractice since 1990. Yet most often these few physicians also have had no action to revoke or restrict their licenses. They are even less likely to have actions to restrict their hospital clinical privileges. If the state licensing boards and the hospital peer review committees started seriously reviewing the care of the "repeat offenders" and started restricting the practices or the revoking licenses of "repeat offenders," we would reduce malpractice, save lives and prevent injuries, reduce the fears of malpractice suits by the vast majority of good physicians, and preserve the rights of injured patients to be compensated.

      The focus should be on preventing malpractice; that is the best was to reduce malpractice lawsuits.

    5. Silvers, Flint, MI. says:

      Looking at things from the standpoint of a layman who has looked at thing from both sides of what I've read, head, and discussed,

      I don't think that the problem is with patients who are truly victims of mal-practice but the patients who are looking for some free money. Sue happy people are out there in all walks of life. In the auto industry there are people who try to suck millions out of minor albeit inconvenient accident, There are scammers trying to bone retailers for all they can get for "serious" injuries from accidents which occured in their stores.

      I don't think that the tort reform Wm. and Mr. Ohair are aimed at those who have died or been disfigured honestly by Doctors or other healthcare providers, and I don't feel that Wm. and the Institute of Medicine is correct in the figures provided. Those statistics indicate the number of suits filed, but not the number that exonerated the Doctors, nor the cases which were settled out of court simply because the legal fees would be greatly higher than the plaintiffs were requesting (nuisance suits).

      Also consider that once sued, whether found guilty or not, the Doctor will forever pay considerably higher premiums.

      Preventing malpractice is a wonderul idea in theory, but in reality, is no more likely that preventing drivers from having automobile accidents.

      I think the court system should weed out and fine both attorneys and their clients who file frivolous and fraudulent lawsuits, which will not only put a stop on them it will also open the court dockets for those who sincerely deserve them.

    6. alfonso valenzuela h says:

      sr OBAMA as a visitor to usa (los angels) i been bited by an infected mosquitoe ,and after 19 days i been taked to mexico (my country ) with any result ,and never able to work again .im varely can walk using a walker i just have the chance to come back to the usa ,to late to file a claim all the lalawyers say ,the satatute of litigations is over ,when all that time i was in mexico with any chance to come here ,how come one comes just viiting and get totally discapacitated whit a sicknes never ocurring in mexico why you never advertise anibody of this problem, that for the vast majority it would harm them for life like me ,now i have not a chance to any claim

    7. Jennifer Reinhart says:

      Then you have the patient, who during surgery has a life-changing complication that was completely preventable. But with the current court reforms in the state of Texas cannot bring a case against the negligent physician because the caps make it unattractive to the lawyers.

    8. josephp.martino says:

      about 25 newspapers/blogs have published my suggestions as related to medical reform.the government should defray all costs of a medical school education.

      student doctors participating in this program would be relieved of all their medical student debt. in exchange the participating student doctor upon inception of practice would be obligated for a set period of time to treat a percentage of eligible poor patients deemed so by the federal government.the participating doctor would under this government program would not bill medicare/medicaid thus enabling medicare

      to recover heir initial government investment.the plan could later be expanded to include other medical specialties and procedures.for every 1% medicare saves a year over 15 years comes to a 15 trillion dollar saving to the federal government.

      joseph p.martino writer/inventor/motivator

    9. YouTube video conver says:

      What words… A fantasy

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