New York Personal Injury Law Blog » Florida, Medical Malpractice, tort reform


July 19th, 2012

Sorry, Dr. Gross, But You’re Wrong (Florida Malpractice Proposal)

In an opinion piece today in the Tampa Tribune, Dr. Lee S. Gross, treasurer of a local county Medical Society and president of the Florida chapter of Docs4PatientCare, advocates replacing the current medical liability system with a type of worker compensation system.

Dr. Gross’s argument, in a nutshell, goes like this:

By eliminating the fear of being sued, the wedge between patients and physicians will be removed, allowing doctors to choose the best health care for their patients. Fewer unnecessary tests and procedures will result in decreased health care costs for individuals, employers and state and federal governments.

The problem with this argument? It’s already been debunked by studies. The biggest study I know of is Texas, which turned itself into a lab study by eviscerating patient rights in 2003 by capping pain and suffering awards at $250,000. Since medical malpractice cases are so difficult to bring and expensive to prosecute, this effectively gave a big helping of immunity to the medical community.

The Texas logic in doing this? That by closing the courthouse door more doctors would come to Texas, whose population was swelling.

And the Texas experiment has now been shown to be a failure. It gave protections and immunities but didn’t do what it was intended to do. I wrote about this two months ago (Study Says Texas Medical Malpractice Tort “Reform” Is A Bust (Is Congress Listening?)), and you can read that post if you want more, but this is the summary:

There is no evidence that the number of physicians per capita practicing in Texas is larger than it would have been without tort reform.

But that wasn’t the only failure of the Texas Malpractice Experiment. It also failed to control costs. Since Florida’s Dr. Gross thinks reform will cut costs in Florida by eliminating “defensive medicine” tests, it’s worth noting that a different study showed Texas medical costs rose 13% more than the national average after its “reforms” were put in place. The problem, it seems, is that doctors get paid to do those so-called defensive tests.

While it is certainly possible that some docs at some points may practice defensive medicine, the real problem is that costs go up when you have a fee for service system.

And so, if you think that destroying the medical liability system in Florida is likely to lead to lower costs, there is an uphill fight because the data says otherwise. Will doctors make more money? Yes, they will. That happens when income stays the same and expenses (malpractice insurance) goes down. But it won’t help those injured by malpractice who will bear the burden of the injuries and it won’t help lower medical costs. What it really means, is that those injured will have to fight in an administrative forum for compensation, instead of a judicial forum, and do so for compensation that does not make them whole.

And last, a final note of irony: Dr. Gross, as I noted at the top, is part of an advocacy group called Docs4PatientCare. They oppose big government intervention in the healthcare system. Except, I guess, when the big government intervention is to help give them immunities and protections and increase their profits. Then, it seems, it is A-OK.

12 thoughts on “Sorry, Dr. Gross, But You’re Wrong (Florida Malpractice Proposal)

  1. This is from a NYT opinion article this week

    Among the states, Texas has the highest uninsured rate, 24 percent, and the second-highest number of uninsured residents, 5.6 million children and adults, according to state and federal health officials.

    I think doctors don’t want to go to Texas because one in four patients have no insurance, not even medicaid, and the weather is too hot.

    • I think doctors don’t want to go to Texas because one in four patients have no insurance, not even medicaid, and the weather is too hot.

      I think the bigger problem is that doctors (and all other professionals) mostly want to live in big cities and not in rural areas. And Texas has a lot of rural areas. Doctor shortages don’t really take place in big cities.

  2. Doctors need to stop falsely claiming they want something like workers’ comp. In WC, all you need to prove is that your injuries were caused on-the-job; negligence has nothing to do with it. If we imposed the same system on medicine, even if we took steps to limit it to situations where the claimant had to prove the injury was iatrogenic, the health care system would be battered by the claims. The entire medmal system, including all lawyers, settlements, and judgments, is about $4.5B annually. Compare that to the estimated purely economic loss caused by malpractice: $20B annually.

    Do they really want to make the system four times bigger in terms of payouts? Of course not. They won’t want a workers’ comp system. They want a “we should never be held accountable for malpractice” system, but obviously the public won’t accept that, so they bill it as “reform” and “streamlining” and other nonsense. It’s like if your insurance company said they wanted to “reform” their policies by just taking your money from now on and never paying it back.

  3. Aside from the money there must be something about the process of litigation in personal injury that gives people closure. The opportunity to each side to tell their version of the truth in a formal and rigorously scrutinized format would be lost in a system modeled after workers comp.

  4. I don’t want the irony of this statement to go unnoticed, in light of the enormous costs of the current system in which opposing parties try to convince a jury of the facts: “the real problem is that costs go up when you have a fee for service system.”

  5. That is ironic. Doctors and lawyers have more in common than they realize. But don’t plaintiff lawyers have incentive to keep costs down since they are not doing hourly billing?

  6. Something like 60% of the money spent on malpractice litigation is consumed by the lawyers on both sides. That’s an expensive system for trying to “prove” who is at fault for what is a very predictable outcome over the broader population. Bad things happen in hospitals and clinics. @Betty

  7. I know that in workers comp and often in disability claims people often hire lawyers for representation. So is the idea behind a workers-comp model that this would be less expensive because that type of lawyer is willing to work for less compensation than a litigator?

  8. Bad things happen in hospitals and clinics.

    Bad things also happen to people in cars and pedestrians. But we don’t give immunity to negligent actors whose acts cause injury to others.

    Our justice system is based on personal responsibility.

  9. @Eric Turkewitz – It’s just convincing a jury — even a theoretical one, as in just about every case — is a very expensive way to determine who will be responsible. If we’re talking about costs, this is a good place to look. And none of this is to criticize your excellent blog, Eric!

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