May 9th, 2012

Study Says Texas Medical Malpractice Tort “Reform” Is A Bust (Is Congress Listening?)

I’ve written before about the savage Texas medical malpractice “reform” that was implemented in 2003 and its inherent injustice. The premise was that if the state capped pain and suffering awards at $250,000 for doctors (no matter how many were liable) and $250,000 for hospitals, it would encourage more doctors to practice medicine in Texas. The cap was nominal, meaning it was not adjusted for inflation, so it remains at that stagnated level.

Now there is a study that debunks the premise of that so-called reform. And even tort “reformer” Ted Frank agrees that the report is so damning that he will no longer cite Texas for the proposition that such reforms will lead to an increase in doctors in the state.

The report is exceptionally damning to those who argued that providing protections and immunities to negligent doctors would bring more doctors to Texas (though I’ve often wondered what kind of doctors they were looking to bring in with that logic). The summary:

Before Texas adopted tort reform in 2003, proponents claimed that physicians were deserting Texas in droves. After tort reform was enacted, proponents claimed there had been a dramatic increase in physicians moving to Texas due to the improved liability climate. We find no evidence to support either claim.

That is a big, fat ouch for those that have supported government protections for tortfeasors.

The $250,000 cap that was enacted back in 2003 did have some affect, of course. It cut down medical malpractice payments by 70% and premiums by 50%. But this wasn’t the reason for the changes in the law, since claim payouts had been stable for the preceding decade. But claims will clearly drop under such circumstances as cases are difficult and expensive to bring, and if it isn’t a economically viable to bring the suits, lawyers won’t take them. It isn’t easy to risk tens of thousands of dollars of your own money and hundreds of hours over many years if the case isn’t substantial enough. The rent still has to get paid, as does the secretary, and the lights need to be kept on.

But did the 70% drop in payouts bring the flood of doctors? You would think so according to the initial reports (including from the New York Times) that looked at the increase in licenses being issued. According to the report:

Proponents argued that physicians were fleeing Texas because of lawsuit risk and high insurance premiums, but would stop leaving if the state adopted the reforms. After the reforms took effect proponents asserted that the reforms brought new physicians to the state in droves – a more impressive result than they originally predicted, which was only that doctors already in Texas would stay put.

But using data from 2003 up until 2010, the authors conclude:

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

The evidence has been brewing. In 2007, four years after reform, the Texas Observer ran a piece discussing the nonsense that was sold to voters by the insurance industry to get the bill passed, claiming that “doctors were fleeing Texas, leaving scores of counties with no obstetricians to deliver babies, no neurologists or orthopedic surgeons to tend to the ill.” This wasn’t true.

Also from the Observer, to get that bill passed Gov. Rick Perry and his minions from the Texas Medical Association argued in a flier mailed out in English and Spanish and posted in waiting rooms around the state that:

‘152 counties in Texas now have no obstetrician. Wide swaths of Texas have no neurosurgeon or orthopedic surgeon. … The primary culprit for this crisis is an explosion in awards for non-economic (pain and suffering) damages in liability lawsuits.’

Doctors to deliver your babies or lawsuits, they argued, which would you like? And you know what? Four years after the “reforms” were passed there were still 152 rural counties without an obstetrician. Because it seems that doctors, like many other professionals, happen to like living in urban areas.

The reports of an increase in doctors attributable to tort “reform” that came out, and are often echoed in Congress by advocates of establishing federal standards over the state tort systems, have not been accurate. The authors attribute this to the fact that the number of doctors going to Texas was rising before 2003 (as was the population as a whole), that researchers at universities should not be counted as they are unaffected by the issue, and that there was an increase in medical care after Hurricane Katrina in 2005 as people relocated.

And finally, the statistics showing an increase in doctors was based on new licenses being issued. But that didn’t take into account those that left the state or had retired. You can’t just count docs entering Texas healthcare without also accounting for exiting docs if you want to figure out whether the net population is increasing or decreasing. According to the authors, “using the number of licenses granted as a measure of the “success” of tort reform is potentially very misleading.”

The fact that the physician population was increasing before the “reforms” and continued to increase at the same rate after the “reforms” is very telling. The authors write, “There was neither an exodus before reform, nor a dramatic increase after reform.” How damning is this report? The authors go on to write about those who made the claims for “reform”:

When making the case for lawsuit restrictions and when claiming enormous post-reform success, the identified speakers made statements that were false. And, not just garden variety false, but “liar, liar, pants on fire” false.

And that my friends, is a whole lot of false.

The report is filled with facts and figures that shows that in the post-reform era, Texas has actually done worse at attracting doctors then the rest of the nation. Not better. And not even the same.

I end on this note: As I type, Republicans in Congress (it is always those that claim they want limited government that do this) seek to expand federal power and put nationwide damage caps in place. One of the prime reasons is that were used in Texas. And those that were used in Texas have now been debunked.

(P.S. For those that want to shift the argument to arguing that such reforms will lower health care costs, well, it doesn’t do that either. I covered that last year here: The Failure of Medical Malpractice Caps (Healthcare Costs Rise in Texas).

Elsewhere:

New Study Crushes Key Claim in Federal Medmal Debate (Andrew Cochran)

Did You Know… Medical Malpractice Lawsuits Are Declining? (Brett Emison)

March 14th, 2012

House GOP Again Attempts Federal Power-Grab On Medical Malpractice Lawsuits

House Republicans like to claim that they believe in shrinking the power of the federal government and making sure that states retain the rights they were given in the Bill of Rights under the Tenth Amendment.

But that, apparently, is only what they say, not what they do. As I sit at my keyboard, Republicans are once again hypocritically attempting to subvert the power of states to make their own laws when negligent conduct by doctors injures patients. In a vote set for next week, the House is to decide on a bill that would, in part, cut a rationing board that could force Medicare cuts without congressional approval. This board is the infamous (and mis-named) “death panels” that Sarah Palin tried to conjure up the debate over health care.

Because this cut would increase federal expenditures, the GOP figures it would take the opportunity to jump on a long-favorite subject of theirs: Granting federal protections and immunities to the medical profession when their negligence causes injuries to patients, under the guise of calling these cuts in federal funding. This would override state tort laws. Their touted theory is that, if there are less concerns about lawsuits, there will be less “preventive medicine.”

They call this tort “reform,” but we call it what it really is, a payback to the massive insurance-healthcare conglomerate that supplies so much cash to the Republican party. There is no other explanation, since the act of seizing more federal power and subverting state laws runs directly contrary to conservative political theory. Even conservative theorists agree. But the House Republicans are elected officials, and political theory takes a back seat for many of them to something vastly more important: Money.

It’s also worth noting that cutting the rights of people who have been injured does not decrease Medicare expenditures. They tried this trick in Texas, and they found that costs escalated even faster than they went up elsewhere. See: The Failure of Medical Malpractice Caps (Healthcare Costs Rise in Texas).

Is this a good time for me to say, “I told you so?” Back in January 2011, when the Republicans took control of the House, their first order of business was to read the Constitution, and pledge to defend it. At that time, I wrote:

But will Republicans really follow the Constitution when it comes to tort “reform?” My bet is no, based on a history of Republicans trying to limit consumer access to the courts. One academic favored by the right wing, Richard Epstein, arrogantly refers to the constitutional right to a civil jury trial as a “procedural feature.”

So there you have it. The Republicans are once again trumpeting tort “reform” despite the fact that it violates their own political theory of smaller federal government, despite that it grants protections to those that injure others due to negligence instead of holding them accountable, and despite the fact that it doesn’t actually do what they want it to do.

See also: House Attack on ‘Death Panel’ Doubly Hypocritical (Jay Bookman @ Atlanta Journal Constitution)

June 23rd, 2011

Wrong Site Surgery Continues To Be a Problem

You would think that easy mistakes, like surgery on the wrong part of the body or wrong patient, could be easily eliminated. Well it can. But it hasn’t.

An article this week in Kaiser Health News highlights the continuing problem (Effort To End Surgeries On Wrong Patient Or Body Part Falters). Seven years after universal protocols were instituted by the Joint Commission on Accreditation, “some researchers and patient safety experts say the problem of wrong-site surgery has not improved and may be getting worse.” These were some of the facts:

Based on state data, Joint Commission officials estimate that wrong-site surgery occurs 40 times a week in U.S. hospitals and clinics. Last year 93 cases were reported to the accrediting organization, compared with 49 in 2004. Reporting to the commission is voluntary and confidential — to encourage doctors and hospitals to come forward and to make improvements, officials say. About half the states, including Virginia, do not require reporting. In two states that track and intensively study these errors, 48 cases were reported in Minnesota last year, up from 44 in 2009; Pennsylvania has averaged about 64 cases for the past few years.

Medical workers continue to mix up left and right sides, view x-rays backwards, fail to take timeouts to insure they have the right patient and right surgery, and make other routine errors. There is also this study cited by the article:

Reported cases are “clearly the tip of the iceberg,” said Philip F. Stahel, director of orthopedic surgery at Denver Health Medical Center.

Stahel was lead author of a 2010 study of 132 wrong-site and wrong-patient cases reported by doctors to a large malpractice insurer in Colorado between 2002 and 2008, one-third of which resulted in death or serious injury. Among them were three men who underwent prostate cancer surgery although they were cancer-free. In 72 percent of cases there was no timeout.

There is much more in the article, and I encourage others to read it, but there something else buried at the end, which deals with a doctor apologizing for doing a carpal tunnel surgery when he was supposed to do a trigger finger release. He confessed to the patient, then did the proper surgery. The hospital paid out a small settlement and there was no litigation. And that is likely because, as one book argues saying “I’m sorry” works, which happens to be in tune with my own observations of human behavior.

April 27th, 2011

Barney Frank: Injured People Must Sacrifice Even More

Frank: The injured haven't suffered enough.

Rep. Barney Frank has decided to join the tort “reform” movement, asking that those who’ve been catastrophically injured should pitch in more to help with national financial troubles caused by others. In an article today in The Hill, he had this to say:

“I also am ready, as a liberal, to look at the whole question of malpractice and liability reform,” Frank said during an appearance on MSNBC’s “Morning Joe” program, according to a transcript. “People who are injured ought to be compensated, but I do think that that’s something that I would throw in if we had an otherwise overall compromise [on the national debt], because I recognize everybody’s got to give something to get this.”

In other words, those who have been most badly injured (the ones most likely to be most affected by restrictions on civil suits) haven’t sacrificed enough by virtue of their disabilities, diminished (or lost) employment, and destruction of lifestyle.

Now, according to Frank, they also need to give some level of immunity to those whose negligence caused them to be injured in the first place.

And somebody in his office ought to give him a copy of the recent study from Columbia Presbyterian/Cornell. That’s the one where the obstetrics and gynecology department lowered their malpractice costs by over 90% by improving patient safety. You see, the best way to lower malpractice costs is to lower the incidents of malpractice. But if you choose immunity instead, you will only end out killing patients by killing the incentive to improve.

See also: Why Medical Malpractice “Reform” Will Increase the Deficit, Not Reduce It (Joanne Doroshow @ HuffPo)

Photo by Martin Schoeller, The New Yorker

March 20th, 2011

My Op-Ed in The Journal News

I have an op-ed in today’s Journal News. This is a Gannett paper that serves the suburban counties just north of New York City:

Cuomo’s medical malpractice ‘reform’ will hurt victims and taxpayers

Gov. Andrew Cuomo is now proposing to grant immunities and protections to hospitals that injure or kill patients by acting negligently. Voters and consumers should be alarmed, because the effect of the proposal will shift the burdens of those most seriously hurt onto both the victims and the taxpayers. The beneficiaries are the insurance companies and those that acted negligently.

These new proposals are tucked inside a document, far from public view, called the Medicaid Redesign Report. The proposed new law would create an artificial one-size-fits-all cap of $250,000 on medical malpractice pain and suffering claims — even for those who’ve been paralyzed or brain damaged from negligence. It would also strip rights away from neurologically impaired infants by creating a new government-created fund, so that taxpayers end up subsidizing malpractice. The authors of the report are insurance companies and medical institutions. There were no patient representatives on the committee.

This is an anti-consumer bill that is flawed on both public policy and monetary grounds. The New York State Bar Association — the largest bar association in the state, with lawyers who represent both doctors and patients — has condemned these two proposals. Essentially, the taxpayers will be picking up the tab for the negligence of others.

Currently, New York caps personal injury cases for those runaway verdicts you see in the papers from time to time. These caps are geared to individual cases, a process the state has undertaken for almost 200 years. Fundamentally, if a verdict “deviates materially from what would be reasonable compensation” (either by being way too high or way too low) the trial court, or the appellate court after that, will order a new trial. So the system in place has both a belt and suspenders to protect litigants from the occasional outlier verdict.

What is the advantage of changing a system that isn’t broken? Well, by limiting the rights of the citizenry to a trial by jury, it gives a healthy dose of immunities and protections to those that committed the wrongful acts. Is that an advantage? It is if you are the one that caused the injury.

If the arbitrary cap is in place, of course, the injuries won’t be diminished. The only thing that will change is that the economic burden of those injuries will be borne by the victim instead of the party that caused them. To the extent that people are bankrupted by the toll of their injuries, the taxpayers will then foot the bill for Medicaid and a host of other social safety net programs.

Is it sound public policy to victimize the injured person a second time and discard the concept of personal responsibility? Should taxpayers bear the burden of loss instead of the insurance companies that collect premiums for just this reason?

Natural cap

Factors already keep malpractice cases in check. First, the suits are very expensive to bring. It could cost more in experts, records and depositions to get a verdict. Second, New York’s low legal fees, the result of “reforms” that were enacted in the mid-1980s, are a disincentive to lawyers to overreach. Legal fees start at 30 percent of the first $250,000 and rapidly slide down to 10 percent of anything over $1,250,000. In other words, complex and expensive malpractice cases have lower legal fees than the norm, causing a predictable drop in the number of attorneys willing to undertake these difficult cases.

The result of that “sliding-scale” fee structure is that doctors and hospitals in New York now enjoy significant immunity from medical malpractice cases. It is simply too expensive to bring many of the actions, even if they have merit.

The insurance companies and medical professionals that drafted the “reform” proposal now ask for a second giant helping of immunity by eviscerating the pain-and-suffering damages. The ones who will be hurt, of course, are those who have been most seriously hurt. It will have no effect on frivolous cases, as they do not have a value over $250,000.

If the government wants to cut Medicaid costs, and cut lawsuits, the efforts must be devoted to patient safety, not killing patient rights. Telling people they can act with impunity doesn’t increase safety. According to the February issue of American Journal of Obstetrics & Gynecology, New York Presbyterian Hospital/Weill Cornell reduced errors and slashed their medical malpractice payouts by 99 percent due to enhanced patient safety initiatives. The message is clear; tort “reform” does not equal patient safety.

With respect to the plan for a new fund to pay the costs associated with those lives that been devastated the most — neurologically impaired infants — testimony in Albany on this issue uncovered a startling fact: They haven’t figured out how to pay for it, though a “baby tax” is contemplated on people and companies that buy insurance. This gets the insurance companies off the hook for paying for the errors of the people they insure, and places more burdens on the taxpayers.

If Big Hospital Inc. commits malpractice and injures someone, why should the taxpayers subsidize that malpractice? Ultimately, of course, someone will pay, and it makes sense that the one that did the damage should pay the bill.

This scheme makes no sense on either public policy or economic grounds. There will, however, be a windfall profit for the insurance companies and those doctors who hurt the most people and make the biggest mistakes.