March 12th, 2008

Eliot’s Mess: The Ramifications for Medical Malpractice "Reform" in New York

In case anyone wondered why a personal injury blogger was covering the Eliot Spitzer scandal — aside from the fact that his New York office is two blocks away from me and news helicopters are buzzing overhead as he prepares to resign — it’s because it may have deep ramifications for medical-legal issues here.

Just two days ago, before the scandal broke, I wrote about 1,500 doctors rallying in Albany. I debunked the myths that the New York Medical Society was using to support artificial one-size-fits-all caps on medical malpractice suits in their discussions with elected officials.

Part of the Medical Society press release, which I didn’t discuss at the time, has this quote from Spitzer:

“I look forward to standing with you when we sign these medical liability changes into law.”

So Spitzer, who’s brother is also a neurosurgeon, was an important ally of the physicians in trying to limit patient rights. Victimized patients will not be sorry to see him go if this was the issue that they held most dear to their hearts.

Assembly Republican Leader Jim Tedisco (R,C,I-Schenectady-Saratoga) had this to say about incoming Governor David Paterson, as he set the bar high:

“David Paterson’s life story is, in a word, inspirational. His public record is one of overcoming obstacles, showing true character in the face of daunting adversity and being able to bridge Albany’s bitter partisan divide that has, regrettably, widened into a chasm in recent years.”

“Governor Paterson knows the meaning of honor and has shown in both his deeds and words that he is a man of the highest public and personal integrity. His inherent decency and desire to put advancing the interests of the 18 and a half million New Yorkers we represent ahead of political partisanship will truly be a breath of fresh air.”

Addendum on 3/13/08: Last year, after a 14% medical malpractice insurance hike, Spitzer enacted a medial malpractice liability task force to suggest solutions. It remains to be seen what will happen to it.

More (3/19/08): The National Association of Manufacturers gives its take here: On the Tort Reform Angle, Too Bad about Spitzer

March 10th, 2008

New York Doctors Rally In Albany for Tort "Reform"

New York’s doctors, led by the state Medical Society, rallied last week for tort “reform,” blaming lawsuits for the increase in insurance premiums. According to a medical society press release, 1,500 physicians traveled to Albany last Tuesday to protest on the steps of the State Capitol. The issue they brought to the legislators was high medical malpractice premiums, which I reported last July jumped 14% (see: Why New York Medical Malpractice Insurance Jumped 14%).

As you can see from that link (You did read that link, didn’t you? I hope so because it’s important), the jump was related to artificially low rates set by the New York Insurance Department for years combined with the state swiping almost $700M from the rainy day fund.

But when the doctors rallied in Albany, it was injured patients that were their targets. In a surreal moment, Dr. Robert Goldberg, the head of the Medical Society, offered up in a press release this humdinger of Doublespeak:

Physicians firmly believe that patients who truly suffer injury due to medical error should be fully reimbursed for economic damages, but non-economic awards must be reined in and the litigation process must be made equitable.

In other words, caps on lawsuits must be imposed on the most badly injured individuals because it would be inequitable to fully compensate them. Equity, it appears, demands giving some level of protectionism to the person that caused the injury. George Orwell would certainly be proud.

One of the reasons this bit of propaganda is important is because payments to the injured had nothing to do with the rate hike. In fact, both the number of malpractice case and the amount of payments made have been relatively flat nationwide since 1991.

And the nationwide trend does not differ in New York. In November 2007, Public Citizen put out a report (that I discussed previously here: Will NY Doctors Be Hit With $50,000 Surcharge?) that reached these conclusions, among many others:

There have been fewer medical malpractice payments in the past five years than in any five-year period on record;
Amounts paid out, when adjusted for inflation and population, have either risen slightly in the past five years or declined slightly, depending on the measure used;
Only about 1 percent of New York’s doctors are enrolled in the state’s program for physicians deemed too risky by commercial insurance providers. Yet these doctors’ payments have been so massive that they and other losses have drowned the program in more than $500 million in red ink this decade;
A sliver of doctors are responsible for nearly half of the dollars paid out for medical malpractice in New York. Physicians who made three or more malpractice payments between 1990 and 2006 — accounting for no more than 4 percent of New York’s doctors — were responsible for nearly half (49.6 percent) of medical malpractice dollars paid out on behalf of doctors in the time period.
Costs for cases involving brain damage, blamed by some for rising insurance rates, are in fact modest in comparison with other types of cases. The category for injuries including brain damage ranks 5th of 10 in total amounts paid out. This fact exposes the lunacy of the radical proposal to deprive newborn babies of their legal rights and cede their care to a state-run fund.
Researchers have found that premiums consistently make up only a small percentage of doctors’ total expenses and that rising premiums have not, historically, depressed physicians’ incomes.

Has any of this stopped the doctor’s lobby from claiming that hitting victims a second time, by depriving them of a right to fully recovery, will help? Of course not. The only real questions are these:

Will the doctors abandon the White Coat of Silence that stops them from turning in bad physicians?
Will the doctors finally help to rid the state of the of the small percentage of doctors that are responsible for the majority of malpractice payouts?
Was the medical society’s propaganda known to the doctors who answered their call to lobby, or where they snookered by their own people?

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Full disclosure: I have lobbied New York’s legislators several times in the past to keep the courthouse doors open for the injured, and am currently scheduled for a return visit in May with the New York State Trial Lawyers Association.
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Addendum – see also:

Patient Safety Express (The PopTort):

“Only 4% of New York’s doctors are responsible for half of all of the state’s medical malpractice payouts. How many more people have to be infected by deadly diseases, or killed by incompetent practitioners before the state will act?”
Patient Safety Express, Day Two (The PopTort):

This morning, the “Patient Safety Express” made its way to Albany. The 15-foot syringe and handful more medical malpractice survivors made it through the metal detectors at the State Capitol to tell their stories to the media….

March 6th, 2008

New York Plastic Surgeon, Sued By Dozens, Finally Surrenders His License

New York plastic surgeon Michael Evan Sachs has finally surrendered his license. As of 2005 he had settled an astonishing 33 malpractice suits, according to this New York Times story.

One of those suits concerned the highly publicized death of Kathleen Kelly Cregan who had flown to New York from Ireland for a face lift.

In a long 2005 investigative piece in the New York Times, it noted that he had settled 11 cases in 1999 alone, and that the Daily News had stated back in 2000 that he was on a list of the “most sued doctors in New York.” (Sachs is seen here in an image from his promotional video.)

According to the article he specialized in rhinoplasties (nose jobs) and sometimes did as many as 10 in one day according to a former employee. “Appearing in 2003 on a broadcast of ‘Ireland AM,’ the country’s most popular morning television show, he stated he had done 42,000 rhinoplasties,” which would have been an average of four every day since he graduated medical school. He once did a free face lift in exchange for publicity in an Irish newspaper.

And it was that article that brought Kathleen Kelly Cregan to New York where she died.

Commenting about his web site, Dr. Scott L. Spear, the president of the American Society of Plastic Surgeons when the 2005 New York Times article appeared, said of Dr. Sachs’s curriculum vitae and biography: “This thing is full of puffery, self-aggrandizement and not professional. This is not a surgeon of high professional standing.”

In May 2005 New York City medical examiner said that Dr. Sachs’s surgery “was a significant contributing factor” to Ms. Cregan’s death.

Simply being sued, of course, doesn’t mean one did anything wrong. There are, after all, some bad lawsuits. But you would think that after the first dozen the Health Department would catch on that there might be a problem, investigate quickly, and not let things get out of hand. A list of 27 settlements from the past 10 years can be found in this document: MichaelSachsSettlements.pdf

It was just last week that I discussed the idea that the tort “reform” of capping malpractice judgments for the most badly injured was a horrible idea. And that if we wanted to do anything about reducing malpractice payments we should take note of the fact that one study showed that 7% of doctors were responsible for 68% of the payouts. (And in the comments of that post, another study, apparently using different years, found 5.9% of doctors responsible for 57.8% of the payouts. The study also found that 82% of doctors had never had a payout.)

So along comes Dr. Michael Evan Sachs to help prove the point. If medical malpractice insurance premiums are a problem, perhaps the medical groups should think less about maintaining a White Coat of Silence, and do more to exorcise the bad doctors from their ranks.

Dr. Sachs apparently got his medical malpractice insurance, by the way, through a guaranteed malpractice risk pool that spread his risk out to others. It was this very same risk pool that was raided by the State of New York of $691M to balance the budget, and helped to cause the recent 14% malpractice insurance rate hike.

The Cregan case is still pending, and is being defended by Mark Aaronson, one of New York’s top medical malpractice defense attorneys.

See also: Manhattan plastic surgeon in accused of patient death loses his license (New York Daily News)

February 29th, 2008

AMA Analysis: Screwing Injured People Means Lower Malpractice Rates

OK, maybe this American Medical Association article didn’t have quite the same headline I used. But according to them, tort “reform” in the form of capped damages means there will be lower insurance rates.

In other words, if the burden of a terrible loss is heaped upon the victim and not the tortfeasor, then the person that caused the injury will be better off.

So why have a cap? I bet if we lowered the cap to zero, that premiums will go down even further. Really great, huh? Especially if you are the insurance company or the person that caused the injury.

Of course, there are also other ways to bring down premiums. Like getting rid of bad doctors and not engaging in a white coat of silence. In New York, 7% of doctors are responsible for 68% of the malpractice payouts.

Does this mean there should be no damage caps at all? Of course not. New York doesn’t have a one-size-fits-all cap on damages, and we do just fine (see How New York Caps Personal Injury Damages). The question of artificial damage caps really boils down to this: Who should bear the burden of a loss, the one that caused it or the one that suffered it?

(hat tip to Kevin M.D. for the link, though I’m guessing he has a slightly different view)

February 29th, 2008

Patients Billed for Medical Errors

Talk about chutzpah. First the doctor operated on the wrong side before correcting himself and operating on the right side. Then the patient was billed for both surgeries.

While 10 states will no longer allow billing for “never events” such as wrong site surgeries, 40 states still allow it.

But still, even if the state allows it, what goes through the mind of the person submitting that bill? Operate on the wrong side and then bill for it? Good grief. MSNBC has the story.