Thursday, February 04, 2010

Illinois Supreme Court Strikes Down Medical Malpractice Caps

From Crain's Chicago Business:
The Illinois Supreme Court on Thursday struck down limits on jury awards in medical malpractice cases passed by the Legislature four years ago amid spiking liability costs for medical providers.

The court ruled that the caps on pain and suffering and other non-economic damages — $500,000 per case for doctors and $1 million for hospitals — are unconstitutional.

The court’s opinion upholds a 2007 ruling by a Cook County Circuit Court judge determining that the law violated the Illinois Constitution’s “separation of powers” clause, essentially finding that lawmakers interfered with the right of juries to determine fair damages.

It’s the third time the state’s high court has quashed limits on medical malpractice awards, having tossed out similar laws in 1976 and 1997.

The ruling is a blow to physicians, hospitals and malpractice insurers, who successfully argued in 2005 that frivolous lawsuits and runaway jury verdicts were driving up insurance rates and forcing physicians to leave the state.
Another blow to health care tort reform...

-Wes

24 comments:

Anonymous said...

True, a blow to health care tort reform, and thus the insurers who back it. Other than that, it changes little with regard to the health care debate. Doesn't effect the cost of healthcare, doesn't affect access significantly if at all (if you think it does, try and find an independent study showing a change in physicians per capita in the states that enacted it), and it will have no measurable effect (or at least never has) in the way physicians practice - thus the no savings part.

You should be down if you work for an Illinois malpractice carrier. Other than that, it doesn't affect you. Although it is one less thing government is taking away from the citizens of the country, so if you're of a libertarian bent, it's a good thing.

DrWes said...

Anony-

Other than that, it changes little with regard to the health care debate. Doesn't effect the cost of healthcare, doesn't affect access significantly if at all (if you think it does, try and find an independent study showing a change in physicians per capita in the states that enacted it), and it will have no measurable effect (or at least never has) in the way physicians practice - thus the no savings part.

No savings? From the WSJ today:

"Before the 2005 reform, Illinois was a tort bonanza that was raising malpractice insurance premiums that devastated the medical profession. Between 1998 and 2003 when the state was without any caps on jury awards, damages in Cook County grew by more than 247% while Chicago physicians saw liability premiums rise 10% to 12% a year. Rural areas began to see a scarcity of doctors, while specialists in obstetrics, neurosurgery and geriatrics fled the state.

The damage caps reversed the trend. Medical malpractice lawsuits in Cook County dropped by 25%, and doctors returned to underserved areas. Similar scenarios have played out in more than two dozen states that have adopted caps on noneconomic damages. According to the Congressional Budget Office, those reforms will save more than $54 billion in health-care costs over the next 10 years.

The separation of powers reasoning adopted by the Illinois Supremes is especially dubious because the legislative branch has always been able to define the nature of legal claims and the scope of remedies. True separation of powers concerns come into play when one branch of government threatens the authority of another—a cap on damages comes nowhere near that mark.

As Justice Lloyd Karmeier wrote in dissent, "We have no business telling the General Assembly that it has exceeded its constitutional power if we must ignore the constraints on our own authority to do so."

Plaintiffs lawyers have launched constitutional challenges in dozens of states to overturn a decade of medical malpractice reform, with cases being heard or pending in Texas, Wisconsin, Indiana and Florida, Maryland and Georgia. Most such cases have been filed on equal protection or due process grounds, rather than the separation of powers argument that would usually get them laughed out of court. The Illinois court's reasoning has been rejected in Maryland, Utah, Alaska, Colorado and Nebraska.

The court's decision takes Illinois's entire 2005 health-care reform down with it. Because of a non-severability clause, striking down part of the law invalidates all of it. Illinois Democrats who passed it will thus lose provisions that regulate insurance rates, encourage doctors to admit medical errors and make doctors' disciplinary records publicly available to patients. Illinois patients can brace for a return to runaway litigation costs and a reliance on defensive medicine.


So while you make the claim that this ruling won't affect me (and my patients), I respectfully disagree for all of the reasons mentioned above.

CriticalCareRN said...

Anonymous 10:25

I have a feeling you are not a physician in a high practice field.

While I am personally not a fan of patient award caps as the solution, perhaps you could ask the Texas Medical Board about reform increasing doctors, who had a back-log of filing new physician licenses from the large influx of physicians to that state after tort reform. Granted, many of them were specialists. But as you may or may not know, they are the ones who would benefit the most from tort reform. Primary care doctors are less concerned about that issue, as they can "refer" the higher risks to the specialists.

"The Texas Medical Board reports licensing 10,878 new physicians since 2003, up from 8,391 in the prior four years."

link:
http://www.nytimes.com/2007/10/05/us/05doctors.html?ex=1349236800&en=6c32f12da514abaf&ei=5088&partner=rssnyt&emc=rss

Perhaps Donald Patrick, executive director of the medical board and a neurosurgeon and lawyer, is lying?

Moreover, I would like to see an independent study that says tort reform did not improve access in that state.

From what I have learned, in post-tort reform Texas there was also an increase in per capita spending on health care - and critics of tort reform point to that as increased "costs" of health care. Similarly, people complain that Medicare "costs" went up in that state following tort reform, yet they fail to acknowledge that what more likely happened is increased health care and Medicare "spending" because of an increase in physicians to provide services. Grandma and Grandpa are less likely to "spend" Medicare dollars when they don't have good access.

I would like to see an independent study showing increased health care "costs", versus increased health care "spending" in that state post tort reform. I would like to see an independent study directly linking increasing insurance premiums to tort reform, and not inflation or other economic factors.

According to the CBO, with the new health care reform legislation, "The average, unsubsidized premium per person covered (including dependents) for new nongroup policies would be about 10 percent to 13 percent higher in 2016 than the average premium for nongroup coverage in that same year under current law" - and clearly that increase in health insurance premiums has nothing to do with tort reform.

Also - It seems that in Texas, physicians who have come to the state have banded together in the more urban areas - rather than spreading out and filling in gaps in the rural areas. But that seems to be a logical choice for those physicians. Doctors performing high risk interventions, for example, must be near a hospital with an OR - they can't be out in the middle of nowhere. Similarly, from what I hear, they band together to "spread" the risks - having back-up in the cath lab, for example, should it be necessary in a difficult case. And, to spread out the on-call time, since on-call time can mean going in at 2am, they can't be on-call for a week at a time, so must share that burden with a larger number of physicians.

Lastly - Please explain to me why the United States is the only industrialized nation without a well controlled tort system?

-Jodi

Anonymous said...

Dr. Wes, if you look at rates across the country, they rose and fell with the economic cycle. Regardless of the enactment of caps.

It wouldn't make sense for the caps to have affected the rates in Illinois, since the insurers well knew it would be challenged, and given that Illinois had struck down similar legislation previously, it's unlikely they would be foolish enough to rely upon it.

Because you can't show a difference between capped and noncapped states when it comes to rates, I will stand by my conclusion.

As to this statement from your citation:

" Illinois patients can brace for a return to runaway litigation costs and a reliance on defensive medicine."

There is no evidence that litigation costs in Illinois were "running away" (what does that mean, anyway?). Payouts have been about the same for quite awhile. In fact, out of 42,000 Illinois physicians, there were only 310 paid claims in 2008.

As to physicians relying on "defensive medicine", there's no evidence in any state, despite 30 years of caps, that caps reduce the amount of tests ordered or for that matter the cost of health care. SO again, this is a conclusion unsupported by the facts.

I would urge you to do a little critical questioning of some of the conclusions of those backing "reform". Again, we've had 30 years of caps in large states, so there's plenty of info out there, and even some not sponsored by groups with a dog in the fight.

Anonymous said...

Critical Care RN,

I have seen that Texas stat before. However, the rate of growth of physicians in Texas actually trails population growth, even now. So it's not surprising there are many more physicians in a place where there are many more people, is it?

What's more, of the physicians coming to Texas, the 2nd most popular place they come from is California, a state that has had caps since the 70s. So arguing the growth is due to caps doesn't make sense.

Texas is an interesting case, though, as it does explode at least one claim of the "reformers", that caps lower costs. This article sums it up nicely:

http://www.newyorker.com/reporting/2009/06/01/090601fa_fact_gawande

As to independent studies on access, I think the clearest study would be physicians per capita. If you look here:

http://www.statemaster.com/graph/hea_tot_non_phy_percap-total-nonfederal-physicians-per-capita

You'll see that caps have little to do with the number of physicians - consider Mississippi, which has caps and is 50th. I think the physicians per capita more closely corresponds to this chart:

http://www.statemaster.com/graph/eco_per_inc_percap-economy-personal-income-per-capita

Income per capita by state. Follow the money and not only will you find more physicians, you'll find more of all kinds of other services.

"Lastly - Please explain to me why the United States is the only industrialized nation without a well controlled tort system?"

I'm not sure what you mean by "well controlled". What, to you, would be indicia of control? And who would be in charge of such control? Without more understanding of your meaning behind the phrase, it's hard to answer.

CriticalCareRN said...

Anonymous:

I was speaking of Canada's award caps, and Europe's "loser pays" system. There seems an attempt, failed or not, to establish a barrier to frivolous lawsuit claims. Personally, I am not a fan of award caps for patients. However, tort reform that aims to reduce social cost burdens of frivolous claims, promotes better learning from medical related errors by downplaying hostility, blame, and professional and personal devastation, etc. is what I support.

The statemaster site listings are for 2004. We don't know what month of that year - could be January 2004. Mississippi and Texas both did their caps in 2003 - hardly enough time to suggest there was no impact.

I did find it interesting in the article from the new yorker that suggests that the US is low in alcoholism and smoking. Would like to know where they got that information. According to a 2008 report from the World Health Organization, the US leads in the consumption of alcohol, tobacco, heroin, and cocaine.

Moreover, a national statistics site (nationmaster.com), has the US highest in teen pregnancy, second to Mexico in child maltreatment deaths, higher than other industrialized nations in gun violence, rapes, total crimes, murders, highest in MVA deaths, highest in plastic surgery consumption, etc.


http://www.nationmaster.com/graph/hea_tee_pre_percap-health-teenage-pregnancy-per-capita

http://www.nationmaster.com/graph/hea_chi_mal_dea-health-child-maltreatment-deaths

http://www.nationmaster.com/graph/cri_gun_vio_hom_ove_hom_rat_per_100_pop-rate-per-100-000-pop

http://www.nationmaster.com/graph/cri_rap-crime-rapes

http://www.nationmaster.com/graph/cri_tot_cri-crime-total-crimes)

http://www.nationmaster.com/graph/cri_mur-crime-murders

http://www.nationmaster.com/graph/hea_mot_veh_dea-health-motor-vehicle-deaths

When violence happens, health care gets consumed. When humans ingest toxins, or otherwise treat their bodies badly, health care gets consumed. When accidents happen, or risky behaviors leading to accidents happen, health care gets consumed.

WHO report link:

http://www.cbsnews.com/stories/2008/07/01/health/webmd/main4222322.shtml

I will, however, absolutely agree with their overall assessment that too many hospitals are a bit "too posh", and rather than passing savings down to patients, are investing in gorgeous atriums, waterfalls, etc.

You can argue against establishing some sanity in our medical malpractice system - but if I may sound like Dr. Phil for a moment, as far as our current medical malpractice system protecting patients from adverse events in health care - "how's that workin' for ya?".

As we have more elderly, and therefore more frequent health care consumers, brought into the system, and while we continue to have a shortage of physicians and nurses, the rate of errors will likely only increase. Meanwhile, providers will be more likely to hide their errors whenever possible, rather than bringing them forward to teach others and correct the problems that brought them to that error.

But at least we'll have a larger number of wealthy trial lawyers - that's always good for society.

- Jodi

DrWes said...

Anony 11:12 AM-

Dr. Wes, if you look at rates across the country, they rose and fell with the economic cycle. Regardless of the enactment of caps.

A 247% increase in malpractice premiums over five years seems a bit more than here "economic cycle." But as you correctly point out, the issues are much more complicated than seen at first blush.

Perhaps the best explanation on the pros and cons of tort reform, with references, comes from the CBO, since my legal expertise must bow to the experts.

Anonymous said...

"A 247% increase in malpractice premiums over five years seems a bit more than here "economic cycle." "

What it may be indicative of is years of underpricing in the 90s, where premiums did not increase at all as insurers actually priced premiums below the cost because they were making it up on the float.

Anonymous said...

" was speaking of Canada's award caps, and Europe's "loser pays" system. There seems an attempt, failed or not, to establish a barrier to frivolous lawsuit claims."

Of course, they also have socialized medicine, so the importance of being able to recover is lessened since you always have care coverage. What's more, if you read comments from people who utilize those systems, you'll find that it doesn't work quite like you think it does. But really, with universal healthcare and a deeper social safety net, the need for recovery is significantly lessened. You're not really comparing apples to apples, wouldn't you agree?

" However, tort reform that aims to reduce social cost burdens of frivolous claims, promotes better learning from medical related errors by downplaying hostility, blame, and professional and personal devastation, etc. is what I support."

Before we go delving into that, perhaps you should define what exactly the "social costs" are and how you define a "frivolous claim". As far as learning from errors, if you're expecting the legal system to do that, it will fail. Medicine has to reform medicine.

"The statemaster site listings are for 2004. We don't know what month of that year - could be January 2004"

Sorry, they had 2008. You can also get it from Kaiser state health facts. They're still at the bottom. But feel free to confirm. Also, a good thing to know, which the insurers rarely publish but you can find if you wade through the morass of your state insurance regulator's website, is the payouts. I think you'll find that in most state's payouts remain consistent throughout the year.

" as far as our current medical malpractice system protecting patients from adverse events in health care - "how's that workin' for ya?"."

Poorly, because that's not its role. The legal system is designed to address specific disputes between two specific people. Nothing further. If you want a systematic review to allow MORE people to make MORE claims, by all means propose it. But so far, your industry's proposals have consisted of caps, which only further limits the access people do have. I bet you won't get much support from your colleagues and insurers for more people to have more claims.

"But at least we'll have a larger number of wealthy trial lawyers - that's always good for society. "

Given the corporatization of American society, I think it's good that there are still people out there who will represent the individual, rather than just those companies and insurers, don't you? As far as wealth though, US physicians are the highest paid professions in the world, 50% higher than attorneys. So if you want to criticize people for making money, start with your physician colleagues.

Michael Kirsch, M.D. said...

Remember Lincoln's 1858 'House Divided' speech in Springfield,IL? This was a memorable moment. The Supreme Court's decision last week in Springfield was a forgettable one. Here's an 1850 quote from Lincoln: "Never stir up litigation. A worse man can scarcely be found than one who does this."

Anonymous said...

"Here's an 1850 quote from Lincoln: "Never stir up litigation. A worse man can scarcely be found than one who does this."

Those of us who practice law often are amazed at how if insurers would just treat claimants as humans, most of the time it would be far cheaper for them. The average person typically doesn't WANT to file suit.

CriticalCareRN said...

Anonymous:

First - Europe does not have "socialized medicine". Take a look at France, for one. They have non-single payer universal health care. Some 90% of their citizens carry coverage policies from private insurers as well. Their physicians are largely in private practice. Look more closely at Germany, too.

Second - Where are the 2008 statemaster.com numbers? Can you provide that link? I no longer trust Kaiser, as I have discovered them using misleading methods in one of their studies.

Understand there is a difference between the terms, "universal health care, "socialized medicine", and "single payer health care".

Social costs that I am speaking of are the potential increases consumers pay because of high lawsuit rates. When physicians (or corporations) pay out large sums for in/out court settlements, costs for their services logically would be raised to recuperate those costs. Do you have independent studies showing that this behavior of passing on costs for in/out court payouts and premiums do not get passed down to consumers?

Our malpractice system hurts our ability to correct medical error rates because providers may be less likely to bring errors forward, learn from those errors and teach others better behaviors and system set-ups to avoid those errors. It is not be the legal systems responsibility to decrease error rates, but the way the systems is set-up, it likely deleteriously impacts the error rates.

The problem with defining frivolous lawsuits is that the right people aren't deciding if that suit has merit. Currently, is there a panel of doctors, (who are not being paid by the plaintiffs attorney), deciding if standard of care was given? Are there a panel of neurosurgeons (not paid by the plaintiff attorney) deciding if another neurosurgeon provided standard of care during a craniotomy and therefore has merit? Can an internist testify with the plaintiff against an interventional cardiologist in an angioplasty related case (I'm actually asking, I don't know the answer to that)? Who, exactly, is defining "standard of care", "negligence", "unintended outcome"?

Your last paragraph is the argument Americans often get to hear from trial lawyers. Most people don't buy their "we're looking out for you" mantra. Just look at the most recent AP Poll showing more Americans supporting tort reform than do not.

"US physicians are the highest paid professions in the world, 50% higher than attorneys."

Can you provide the resource for this information?

The earning potential of attorney's far exceeds physicians who are earning their living seeing patients. Just look at how wealthy John Edwards became suing doctors and corporations. Show me ONE physician in this country who became as wealthy seeing patients as John Edwards became suing doctors and corporations.

Moreover, doctors may list as the highest paid profession in America, but their earning potential is much, much, much lower than many careers with much less educational requirements. The government controls physician rates, which impact their earning potential. A person can become a multi-millionaire being a lawyer, MBA, real estate investor, stock broker, athlete, celebrity, etc., etc. Yet a physician seeing patients does not have that high earning potential.

cont...

CriticalCareRN said...

If you want to argue that America's doctors are overpaid, I can address that.

How many years of post high school education and training do lawyers go through - 7?

Compare that with 11 for a primary care doc, and as high as 15-16 for a specialist/surgeon.

What are the achievement requirements for getting into law school versus medical school?

How many years of 80 hour weeks did a lawyer have to endure during their lengthy educational process?

How much personal debt do lawyers take on for their educational process, compared to doctors?

How many continuing education units do lawyers have to have for their jobs each year?

How many life and death decisions, at times must be made in minutes, are required for lawyers in their jobs?

How often do lawyers go in at 2am to open a blocked artery of a human being suffering from a potentially fatal heart attack?

How much legal risks are their to performing their job for lawyers?

How often do lawyers field pages from nursing, emergency room, and other hospital staff during the night to tweak life and death medications and treatments?

Doctors should be earning several hundred thousand dollars a year, cardiologists, neurosurgeons, anesthesiologist should be earning half a million dollars, particularly when other career choices in America with much less (or no) post high school educational requirements are free to earn much, much, much more.

-Jodi

CriticalCareRN said...

Anonymous:

Also - I have no problem with wealth. I am a huge fan of it, in fact. I don't have any problem with people "earning" and "achieving" their high salaries.

I do have a problem with corrupt or greedy wealth, be it from lawyers, doctors, politicians, bankers, etc., etc.

Anonymous said...

Critical Care, you throw out a number of things, so let me try and address them one by one. If I miss one please let me know:

1. Wealth. I'm not begrudging the wealth of physicians. I believe they have probably earned it. I only mentioned it in response to your comment about "wealthy" trial lawyers, clearly meant to be a negative. I think that's a pointless statement, since you have no concept of the work involved or the cost of that work, or really what their average salaries are. Nor does it affect the merit of the claim or the system for addressing the claim.

What's more, you mentioned Europe as having it figured out on civil law and jury trials. Well, the average physician in France makes 1/3 what the average physician in the US makes. Why is that? Are our physicians 3x better? If saving money in healthcare is the goal, wouldn't that be a rather obvious place to start? I'm not suggesting that we should emulate them, but to pick one aspect of a country's healthcare and legal system, and treat it as a standalone without considering all other factors is disingenuous.

So I would encourage you to avoid running down the system based on your limited knowledge of what some actors in it make. Fair enough?

2. With regard to socialized medicine or universal care, whatever you want to call it, to pretend that's not a factor in the need for access to the court's for medical malpractice is foolish. After all, if you go in for surgery today, the doctor screws up, and you can no longer work and are looking at millions in future medical costs, you are likely uninsurable. Thus you have no way to pay for those costs EXCEPT a lawsuit. A country with a deeper social safety net eliminates some of those costs. Even if it's just $25,000 in future costs and you don't have insurance, if you don't pay that out of pocket, and ultimately you recover, much of the need to hold the responsible party liable is gone if you have universal coverage. Now as I said above, those countries with universal coverage also have a lot of other things that go with that, such as significantly reduced pay for providers. But if you want to advocate that we make the same less suits - less out of pocket cost to the public bargain here, by all means do so.

3. "Social costs that I am speaking of are the potential increases consumers pay because of high lawsuit rates."

This would be incorrect, especially in the health care field. Let's start with "high lawsuit rates". I don't know what you mean by "high" or what you would consider an "acceptable" rate, but the vast majority of lawsuits are businesses suing businesses. Those verdicts are generally transfers of funds, not removing income. In other words, Company X claims Company Y breached a contract where they would have made Z amount of money, and Company Y kept Z amount. If Company X gets Z amount, there is no money lost, other than the money they spent to enforce Y's obligation.

In the medical context, since costs of services is mostly set by CMS, and malpractice coverage is a very small percentage of the physician overhead numbers that CMS uses in its calculations, the providers don't really have the ability to pass any direct malpractice liability costs on to the consumer.

Moreover, in a med mal lawsuit, much of the judgment will go to pay past or future medical bills. So the money is going back into the system, either paying back a health insurer, or allowing a victim to pay future costs to providers. So every dollar paid by an insurer is not a dollar out of the system.

Anonymous said...

I'm going to continue in a second post:

4. "Do you have independent studies showing that this behavior of passing on costs for in/out court payouts and premiums do not get passed down to consumers?"

CMS publicizes the information it uses in calculating rates. As to independent studies, I can't point you to one off the top of my head. However, if you believe caps make a difference, it should be easy to prove. California has had caps for 30 years, and is a pretty large state. How much cheaper is healthcare there than in, say, Illinois? I'm betting it's negligible at best. What do you think?

5. "Our malpractice system hurts our ability to correct medical error rates because providers may be less likely to bring errors forward, learn from those errors and teach others better behaviors and system set-ups to avoid those errors."

This makes no sense unless the provider does not want to compensate a person they've injured as a result of their errors. Is that what you're saying? Does that seem just for you? Regardless, after the claims are made, you can get the info from the insurer and do a review of all the closed claims to see what's going on. Anesthesiologists used to have very high rates, and undertook just this type of study to address that.

6. "The problem with defining frivolous lawsuits is that the right people aren't deciding if that suit has merit. Currently, is there a panel of doctors, (who are not being paid by the plaintiffs attorney), deciding if standard of care was given."

If they're not being paid by the plaintiff's attorney (you don't think the defense experts get paid), do you think we should just let physicians judge their own? Really? If you believe what you believe, do those physicians judging not have a vested interest in the outcome if their malpractice rates will be lowered? Would you allow every industry to be judged only by other people in the industry? For example, if you are struck by a tractor trailer today, should the jury be made up of other truck drivers only?

Anonymous said...

7. "Can an internist testify with the plaintiff against an interventional cardiologist in an angioplasty related case (I'm actually asking, I don't know the answer to that)?"

Typically no. But that's done on a case by case basis, and both sides have AMPLE opportunity to challenge the other party's experts prior to trial. And if they are allowed to testify, they'll be subject to cross examination on their lack of qualifications.

8. "Most people don't buy their "we're looking out for you" mantra. Just look at the most recent AP Poll showing more Americans supporting tort reform than do not."

You don't have to buy it. Most people don't, UNTIL they have an accident. But where do physicians turn when they have a contract dispute with insurers? To attorneys, and they presumably want good ones who can try a case. Wouldn't you? So unless you're literally immune from harm, how can you think you'll always be so lucky to never need an attorney no matter what happens? Do you really believe if you step off the curb and are rendered a quadraplegic by a Wal-Mart truck that Wal-Mart's just going to write you a check for whatever you lost in terms of medical bills, lost wages, and lost quality of life no matter how much that number is? Really? Who is going to help you if they say you were jaywalking and they don't owe you a dime?

8. "Can you provide the resource for this information?"

US Dept of Labor stats.

9. "The earning potential of attorney's far exceeds physicians who are earning their living seeing patients."

Your basis for this belief is one lawyer? On the Forbes 400 there is a total of one lawyer, who made his fortune in one case, Pennzoil v. Texaco. You can always point to the outliers, and even then I think you'll find some very wealthy physicians as well. But the averages, which include those lawyers and those physicians who see clients/patients, say that physicians do 50% better. As far as the earning potential, that would be factored into that average as well. But again, I think arguing wealth doesn't really mean much to the merits of damage caps, wouldn't you agree?

Anonymous said...

Incidentally, I do agree with you that the way providers are compensated doesn't make much sense. But that's a bargain the industry made in the 60s with the government. And I don't see much from their lobbyists in terms of legislation indicating they want to return to a more free market system where they have a higher upside, but the downside could be lower as well.

Either way, that's no reason to arbitrarily limit what those injured by malpractice can recover.

CriticalCareRN said...

Anonymous:

Again, I am not a fan of capping patient awards. That would not be my solution to the problem.

I was talking about non-harm errors, or near miss errors, that providers don't discuss, because they are reluctant to disclose information about mistakes - either to patients or to authorities - for fear that information could be used against them in the legal system.

What I found in the US Bureau of Statistics is a median income for primary care docs at 186,044, and for lawyers 110,590. 50% more for a doctor? I think the prospect of an extra 75k for that 4 years of extra education and higher legal risks is hardly exorbitant. Your argument could be made for specialists, whose median is double median attorney, but they also have double the amount of time spent on their education, etc.

You will definitely find a small number of grossly wealthy physicians, but they did not get their wealth doing what they were trained to do - treat patients. John Edwards, for example, gained most of his wealth doing what he was trained and educated to do - sue. The earning potential for a lawyer is much higher than it is for a physician - to do what they were educated and trained to do. That was my point.

Having said that, I do not begrudge lawyers wealth. Again, I am a huge fan of wealth. The greater number of wealthy Americans, as far as I am concerned, the better. My argument is that it is not right that a trial lawyer can earn more off the health care system suing providers than a physician can seeing patients.

"...uses in its calculations, the providers don't really have the ability to pass any direct malpractice liability costs on to the consumer."

This argument about costs not being passed onto consumers doesn't make any sense to me. CMS does not set "costs". That's one of the problems with reimbursements, the rates don't match up with the "costs".

From CMS:

"It must be remembered that the Medicare payment schedule recognizes the relative costs of providing services, not the actual costs. CMS has recognized that Medicare payments for Physician Liability Insurance costs may not cover actual costs since “The purpose of the resource-based malpractice RVUs is not to guarantee each physician an absolute return of malpractice costs.”

Just because they cannot pass the costs onto Medicare, doesn't mean they don't pass on the costs. When physicians attempt to negotiate payments from private insurers, or patients who pay cash, making up for the loss of reimbursement from Medicare is a factor. Many argue this is a big reason why costs are so high to private insurers, because they have to pay more because the government pays too little.

Physicians are already "judging their own", are they not? They already testify in courts about whether or not the standard of care was upheld, right? As well they should be....Who are the ones doing the work in the system to understand and decide what standard of care is? Who else is trained enough in the delivery of medical care to do it? Certainly not somebody who has never been trained in medicine? The problem is, it should be an independent panel of physicians, not ones hired by either side. You can't remove the conflict of interest either way, but there seems less of a conflict when money is not exchanged for the testimony.

Your statement about me walking into the street and getting hit by a WalMart truck, I would sue. You must be a lawyer. If I walk into the street without looking, why should WalMart automatically be deemed responsible? This is the mentality of America that boggles my mind. Someone has to pay for their own negligence, bad choices, errors, whatever. Bad things happen, and every time we aim to make someone pay for it, we all pay.

It has been fun speaking with you. You make some very good points, and have said things I will think about.

CriticalCareRN said...

Math is not my strong suit. I see your statement that doctors earn 50% more than attorney's is accurate.

Anonymous said...

"Again, I am not a fan of capping patient awards. That would not be my solution to the problem."

I appreciate that. But when we're talking about proposed legal "reform" that's where the conversation starts and ends when you're talking about real life. Because every legislative proposal, which are by and large generated by the insurance lobby and occasionally the tobacco lobby, have caps. You will see nothing that gets any traction that does not include an arbitrary cap on the value of cases. I enjoy the rest of the discussion as much as anyone, but we need to recognize it's academic beyond caps.

Anonymous said...

1. "My argument is that it is not right that a trial lawyer can earn more off the health care system suing providers than a physician can seeing patients."

Interesting statement, but let me say this. A top flight lawyer will attract good cases because people know he/she will do a good job trying them. Physicians have so far not shown a willingness to differentiate themselves based on the quality of their services. The public has no way to tell if X doctor is better than Y. You, as a nurse, undoubtedly know, but still, both X and Y are paid on the same schedule. If physicians lack the earning potential, that is because of the payment model they have chosen.

Also, you're referring to healthcare as a system, and I would say that's part of the problem. It's become a "system", which promotes govt intervention because it seems like such a monolith only the govt can deal with it. It's not, though, at least on the physician level. It's professionals providing a service to the public. That's it. Those professionals no longer think about it that way, for some reason.

2. CMS does not set "costs". That's one of the problems with reimbursements, the rates don't match up with the "costs".

You're right, CMS sets reimbursements - which I thought is what I was saying. You said that malpractice rates drive up costs for the consumer. Putting aside that we've not settled on an "ideal" rate, my point is that the physician cannot pass on a rate increase, or decrease, to the consumer of their services. Because CMS sets the rates.

3. "The problem is, it should be an independent panel of physicians, not ones hired by either side. You can't remove the conflict of interest either way, but there seems less of a conflict when money is not exchanged for the testimony."

Who pays for this? Are these people working for free? Do they get no pressure from their own malpractice carriers?

If that's your position, I can respect that intellectually, although it seems a costly way for us taxpayers to resolve a dispute between essentially two individuals (and one's insurer). Would you allow all defendants to get juries made up of their own people? For example, when physicians sue health insurers, should that jury be made up of health insurance execs?

4. " If I walk into the street without looking, why should WalMart automatically be deemed responsible?"

I'm not saying they should. That's what the lawsuit is for, to resolve the dispute on whether you had the right of way or their truck did. But WalMart will always be able to afford lawyers. How do you, as the individual, benefit in making it harder for you to get one?

5. "Bad things happen, and every time we aim to make someone pay for it, we all pay."

Really? How so? If my negligence causes my vehicle to strike yours, how does "everyone" pay if you get a judgment against me for the costs you suffer?

You seem to be opposed to people being held accountable for the damages caused by their mistakes. SOMEONE will pay those damages, why wouldn't you want it to be the responsible party?

I agree that not all damages are someone else's fault, but again, if there's a dispute about that, don't you think we need to have a system to resolve that dispute?

Anonymous said...

"It has been fun speaking with you. You make some very good points, and have said things I will think about."

Its been a pleasure speaking with you as well.

CriticalCareRN said...

Anonymous:

I'm not sure I know what you mean when you suggest that physician's made a deal to have their reimbursement rates controlled by the government. When Medicare was set-up in 1965, the reimbursement rates were set to move along the same rates as private insurers. The SGR did not come along until the 90's, to my understanding, by the government in order to control their spending on health care. I'm pretty sure this was not the choice of physicians.

Again, just because Medicare does not pay for malpractice costs because they pay below costs to provide the care, does not mean those costs are not being recuperated in the negotiated pricing with private insurers.

Physicians gain, and lose patients, based on their performance ALL THE TIME. Other than emergency treatment, referral is predominantly how it works.

If I had not witnessed ridiculous lawsuits in the past, I would not feel the way I feel about ridiculous lawsuits. When my neighbor falls at her sisters house, and sues her sister because of the fall, and they split the money from the lawsuit, that is wrong and our legal system encourages that by allowing it. People fall, they should not sue someone because they fell on someone else's property.

When a former co-worker gets sued because her car stalled on the expressway and the guy who pulled over to help her gets hit by a car walking to her car, that is ridiculous.

It is witnessing these ridiculous lawsuits that makes me jaded by our system. Bad things happen, the person who is responsible often claims responsibility elsewhere, and we all end up paying for those lawsuits.

I had time to look over the Forbes Fortune 400 list. The fact there is a tort lawyer who became a BILLIONAIRE by suing people is unbelievable. Again, no physician could ever even come close to making that list doing what he/she was trained to do - trained for more years than any other career choice in this country. That statement could be made about every career that got someone onto that list. It is unfortunate that the group of people who train the most, do not have the earning potentials of those who do not.

I'm not advocating for billionaire, or even millionaire physicians. But I am advocating they be very wealthy, and be able to compete with incomes of their professional counterparts like lawyers - even on "earning potential". Yet, the earning potential of other career choices is millions and billions, and for physicians it is not.

Again, I like wealth, and I like that lawyers are wealthy, and I want it to stay that way. I just want to make sure our physicians remain the highest paid in this country - because they train the longest, etc., etc. etc.

-Jodi