The following comes to us from an article written by Chelsey Ledue, Associate Editor of Healthcare Finance News:
Fewer medical malpractice payments were made on behalf of doctors in 2009 than any year on record, according to the National Practitioner Data Bank.
This finding contradicts claims that medical malpractice litigation is to blame for rising healthcare costs and that changing the liability system to the detriment of patients will not curb costs.
I read Andrew Cohen’s article in the Atlantic (Tort Reform is Anti-Democratic (And Ingeniously Marketed)) and thought I would summarize it for your convenience. Then I discovered that Philip Thomas had already done so, and quickly determined that he did a better job than I would have done.
Here is an excerpt of Philip’s post on his blog, MS Litigation Review:
In order to sell tort reform, corporate America applies a bait and switch commonly referred to as a “straw man” argument. Barry and Soccio define the straw man attack as follows in their book Practical Logic 104:
Will the President sacrifice the rights of patients injured by medical malpractice to get Republicans to sign-off on a health care bill?
Steven Olsen explains why the President should not in this article titled "Why Shouldn’t Obama Throw Injured Patients Under the Bus to Get Heath Reform? Ask Steven Olsen."
Steven Olsen is a malpractice victim from California. Here is a letter written by the jury foreman after he learned that the jury’s damage award was cut because of California’s cap on damages.
Team Health Holdings, Inc. is a physician-founded, physician-led outsourced healthcare professionals staffing organization. Based in Knoxville, TN, it purports to be "the largest providers of [Emergency Department] staffing and management services in the United States, based upon patient visits and revenue."
The company serves "approximately 550 hospital clients and their affiliated clinics in 46 states with a team of approximately 6,100 healthcare professionals, including physicians, physician assistants and nurse practitioners." It. provided care to 7.6 million patients in emergency rooms alone for the calendar year ending December 31, 2008.
The outlook for this business looks good. Here is how Team Health describes the future demand for its services:
A bill has been introduced in the Tennessee General Assembly to cap "non-economic" damages in medical malpractice lawsuits to $1,000,000, regardless of the degree of harm suffered by the patient.
Non-economic damages are defined as " damages for physical and emotional pain and suffering, inconvenience, discomfort, physical impairment, mental anguish, disfigurement, loss of enjoyment of life, loss of society and companionship, loss of consortium, injury to reputation, punitive damages, and all other nonpecuniary losses of any kind or nature."
The effort to limit patient rights comes notwithstanding the fact that medical malpractice filings are dropping significantly and there are less than seven jury verdicts for patients in the entire state per year.
Legislation has been introduced that would require a patient suing an emergency room doctor, on-call specialist, or hospital providing emergency room services to prove that the negligence of the provider rose to level of gross negligence.
Given the declining number of medical malpractice cases and the fact that there are only 6 or 7 verdicts for patients in any given year, one must wonder about the need for such legislation. It springs from arrogance, greed, or both.
That being said, I support the legislation, with one little amendment that says this:
The National Practioners Data Bank collects data about malpractice claims paid by health care professionals. The NPDB has a report that lists all of medical malpractice paid claims against all Tennessee health care providers between September 1, 1990 through November 29, 2009, a period one month short of 20 years. To understand what data is collected by the NPDB click here.
The total number of paid claims against all health care providers in the United States is 340,463, or about 17,000 claims per year. Recall the National Institute of Medicine said that there were 98,000 documented deaths per year in our nation’s hospitals.
After the jump I have listed the number of paid claims by type of provider in Tennessee. The data does not include hospitals or nursing homes except to the extent the payment was made by a hospital or nursing home on behalf of an individual provider after receipt of a written claim or lawsuit.
From the American Association for Justice:
State tort reforms have provided a boon to insurance companies, leading to record profits while physician and patient premiums continue to skyrocket.
An analysis of data from the National Association of Insurance Commissioners (NAIC) and company annual statements shows malpractice insurer profits are 24 percent higher in states with caps. In these cap states, insurers took in 3.5 times more in premiums than they paid out in 2008. In contrast, insurers in states without caps took in just over twice what they paid in claims.
Maine requires that a medical screening panel hear a medical malpractice case before it can be heard by a jury. Tennessee had screening panels in the late 1970s and early 1980s, when they were abandoned because all agreed that they were ridiculous.
Now, Senator Snowe wants to require that states adopt screening panels as a condition of receiving Medicaid funding. Here is a copy of the proposed amendment: www.dayontorts.com/uploads/file/Snowe-2948.pdf
How are the panels working in Maine? Well, 37.61% of claims filed in 2005 have yet to be heard by a panel while 69% of claims filed in 2006 are still pending. Maine Chief Justice Saufley has called the two-trial system “a cumbersome process with unpredictable results that cost both the plaintiffs and the defendants money and time in a way that was not intended by the Legislature.”
Senator Ensign (R-Nevada) introduced an amendment to limit contingent fees in medical malpractice cases. The Senator attempted to attached the language to amendment SA 2786 to H.R. 3590, which is intended to amend the Internal Revenue Code of 1986 to modify the first-time homebuyers credit in the case of members of the Armed Forces and certain other Federal employees, and for other purposes.
Senator Ensign’s amendment was defeated by a vote of 32 – 66 (2 Senators did not vote). Both Tennessee senators voted in favor of the amendment to restrict fees.
The following Democrats voted to limit fees as set forth in the amendment: Senators Hagan, Warner, Lieberman, Lincoln, and Kohl. The following Republicans voted against the amendment to limit fees: Senators Bennett, Chambliss, Cochran, Collins, Crapo, Hatch, Johanns, LeMieux, Risch, and Shelby.
Day on Torts