Category Archives: tort reform

 

September 29th, 2009

Defensive Medicine or Medical Greed (Dr. Turkewitz Responds)


One of my brothers is a doctor. Internist. Geriatrician. You may not have expected that given the many decades both my father and I spent prosecuting medical malpractice claims, but thems the facts.

Today he guest blogs in my humble little corner of cyberspace. He wrote this letter in response to an NPR broadcast on defensive medicine. They didn’t air his views, but I will. (My prior comments on Defensive Medicine v. Medical Greed are here, so that, if you choose, you can compare some of the intra-family views on the subject.)
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By Stuart Turkewitz, M.D.

I listened with interest to your NPR interview regarding the estimated portion of health care costs attributable to malpractice expenses, and especially to the practice of defensive medicine. Both you and the host, Robert Segal, made repeated reference to unnecessary “tests and prescriptions” before arriving at a conclusion that a “very small portion” of the total health care bill results from practicing defensively.

Unfortunately, your reference to “tests and prescriptions” omits a major component of unnecessary health care expenditures: hospital admissions of older adults, and particularly adults with chronic medical problems.

I am an internist and geriatrician, and my patients occasionally go to or are sent to the emergency room, usually because a test is needed to urgently rule out a condition: a CT scan to rule out subdural hematoma, a lower extremity Doppler to rule out deep venous thrombosis, cardiac enzymes and EKG to rule out a heart attack.

Once a dangerous condition is ruled out, there is every reason not to admit an older patient to the hospital: people do best in familiar surroundings with familiar caregivers and food. The hospital subjects them to multiple new faces, irregular sleep cycles and sleep deprivation, risk of infection, and relative immobility, often precipitating a substantial decline in function.

Once in the emergency room, however, patients are confronted with physicians and other staff with every incentive to admit the patient, and little incentive to send him or her home. The infection, confusion, and insomnia that often accompany admission are at least a day or two in the future , and are not a consideration of the ER physician. On the other hand, the ER physician feels that he or she will be held to account for any misfortune that befalls the patient sent home from the ER. In addition, chronic medical problems can often look acute to physicians and staff unfamiliar with a particular patient’s “baseline.” The urge to recommend admission is overwhelming. The attending physician (that would be me), often at the other end of the phone, however skeptical of a true change in condition, is ill-prepared to argue against the physician who actually saw the patient moments earlier.

There is no question that the fear of malpractice suits influences physicians, particularly ER physicians, to admit patients unnecessarily, and I believe that the magnitude of this dwarfs the “tests and prescriptions” that you mention. This not only drives up the national health care bill enormously, but is detrimental to the health of most patients.

I believe that if the true “costs” of a hospital admission, including temporary and permanent decline in function, were truly and fairly accounted for, then it would be more evident how much the fear of lawsuits was truly costing us all.

Links to this post:

Defensive Medicine – Rob Sachs
Mr. Sachs makes a good point about defensive medicine in a recent post on his lawyer blog. Personally, I don’t think he understands what defensive medicine is, based on some of his back-handed comments. Here’s a little piece of that …

posted by Shawn Vuong @ October 16, 2009 7:03 PM

Unnecessary hospital admissions cost money and can harm patients
Unnecessary hospital admissions cost money and can harm patients. When the elderly go to the emergency room, more often than not, they are admitted to the hospital. Stuart Turkewitz, a geriatrician posting at his platintiff attorney …

posted by Kevin @ October 16, 2009 7:00 AM

Defensive medicine and hospital admissions
Unnecessary testing and prescribing is often the first example that comes to mind in discussions of defensive medicine, but Stuart Turkewitz, MD, explains why needless hospital admissions, especially of older adults and those with …

posted by Walter Olson @ October 01, 2009 7:51 AM

 

July 15th, 2009

Debunking Yet Another Tort "Reform" Column, This Time in Forbes


I feel like a broken record sometimes, rebutting the same disingenuous tort “reform” nonsense over and over. The latest comes from Forbes (via PofL), in a piece written by Manhattan Institute fellow John Avlon, regarding the amount that New York City pays out in settlements and verdicts.

His comments in italics with my responses:

The city’s $568 million outlay in fiscal year 2008 was more than double what it spent 15 years ago.

Only double? So then, when you account for inflation, there really hasn’t been much change at all?

Sidewalk “slip-and-falls” cost taxpayers $54 million…

Sidewalk cases against the city have mostly evaporated as a result of a change in the law six years ago. In 7-210 of the Administrative Code of the City of N.Y the city shifted liability for the miserable state of our sidewalks to most of the abutting landowners.

Suing the city is big business. Ninety percent of the city’s claims costs come from personal-injury lawsuits; of these, medical-malpractice suits are by far the priciest, draining $145.3 million from city coffers in fiscal year 2008–a particular vulnerability for a self-insured city with 11 public hospitals.

Has it occurred to you that the city’s hospitals get sued often because most of them suck? If you think the city is vulnerable, what about the folks that are forced to use those hospitals? Here’s a suggestion on how to reduce city malpractice claims: Improve the hospitals. I know, it’s a crazy notion.

Nearly 90 cases against the city were settled for amounts over $1 million, and the average settlement was nearly $75,000–up from $14,396 in 1984. (The city settles most suits to reduce the costs of going to trial.)

The city settles cases when the facts warrant it. They take verdicts when the facts warrant it. The idea that the city settles a million dollar case simply to avoid the cost of trying it is empty political rhetoric that is wholly unsupported by analysis. It’s gibberish, and every medical malpractice attorney in this town knows it, defense included.

Why is Gotham such a litigation target? Blame New York State’s laws, which have made the city a gold mine for personal-injury lawyers.

Having already admitted that medical malpractice cases are the biggest problem, don’t you think you should point out that New York has some of the lowest legal fees in the nation for medical malpractice cases? Some gold mine. And perhaps one day you should look at the actual economics of taking a malpractice case in New York.

…the cozy relationship of New York trial-law firms and state lawmakers, who have received $2 million in donations over the last five years from the New York State Trial Lawyers Association.

So how much have Fortune 500 companies made in donations? Seems to me that if you want to do a comparison of donations then you need to actually have something to compare it to.

Under current law, lawyers’ fees in medical-malpractice cases are capped at 10% for all awards exceeding $1.25 million. In recent budget negotiations, Silver reportedly pushed for increasing that cap to 33%–a massive new incentive for lawsuit abuse in the Empire State

Currently, due to the low legal fees, most acts of malpractice are never put into suit. The medical community has de facto immunity from negligence in most cases. Once upon a time conservatives actually believed in personal responsibility for the conduct of people. That seems to have disappeared when it comes to protecting big business with various tort “reform” measures.

A good start would be to place caps on noneconomic damages, such as pain and suffering, as two-thirds of states have done.

Well, that would effectively make victims bear the brunt of the negligence of others. And you think that is good policy? Let the victims get poorer and the tortfeasors walk away?

In Texas, for instance, lawmakers recently imposed a $250,000 cap on noneconomic damages, which not only resulted in dramatically reduced malpractice-insurance premiums for doctors, but also cut the number of all tort lawsuits in half and doubled the number of doctors applying to practice medicine there.

To the determent of the victims. I think we can agree that when you slam the courthouse door shut in someone’s face then the wrongdoers will benefit and the victims will lose. See: Do Texas Med-Mal Damage Caps Work? (What Do You Mean By “Work?”)

But perhaps the single most effective action would be to establish a court of claims for municipal cases to restrain outsize judgments.

Interesting assumption. Some counties have become so notoriously conservative that plaintiffs no longer ask for jury trials. It’s the defendants that are making the requests. Of course, if the city attorneys appear only in front of city judges they will be able to form a more comfortable relationship with each other. Perhaps that is what you had in mind?

One last thought, if you want to “control” lawsuits; why not just abolish them and tell the victims to just piss off? Because we both know that this will be fair, make sidewalks, hospitals and cars safer, and lead to greater accountability by those that currently act negligently. Right?

Related: The False Premises of Medical Malpractice “Reform” (Response to Richard Epstein in WSJ) 6/30/09
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Elsewhere:

Reasonable people smarter than I am support the idea of reforming the tort system and limiting the rights of victims. But you have to at least pretend to write a balanced article if your are trying to convince the undecided. Otherwise, you are just preaching to the choir. [more]

  • Andrew Oh-Willeke @ Wash Park Prophet responds with Tort Suits Not What’s Wrong With NYC:

    Rather than securing and paying for medical malpractice insurance, the city’s hospital system “self-insures.” Thus, while medical malpractice insurance premiums don’t show up on the books in other jurisdictions at “lawsuit” related costs, they do in New York City…

    John P. Avlon’s … rant against New York City litigation is either fatally incompetent or dishonest. [much more here]

Links to this post:

tort suits not what’s wrong with nyc
forbes, the magazine of big business, has recently released an article arguing that new york city is unfairly subject to too many lawsuits. most of the points that it makes are convincingly rebutted here. …

posted by Andrew Oh-Willeke @ July 15, 2009 8:08 PM

forbes article on lawsuits in new york
i was tempted to respond to this forbes article on how our tort system and medical malpractice lawyers are ruining new york. but, to save myself some effort, i decided to wait the obligatory fifteen minutes to give the resident new york …

posted by @ July 15, 2009 12:22 PM

john avlon, “sue city”
manhattan institute senior fellow john avlon, in forbes: new york city spends more money on lawsuits than the next five largest american cities — los angeles, chicago, houston, phoenix and philadelphia — combined. …
posted by Walter Olson @ July 15, 2009 9:28 AM

 

June 30th, 2009

The False Premises of Medical Malpractice “Reform” (Response to Richard Epstein in WSJ)

There’s an old saying, “garbage in, garbage out.” If you use a false premise to substantiate an argument then the result will be worthless. And that is exactly what University of Chicago law professor Richard A. Epstein does today in the Wall Street Journal (via PofL).

His column How Other Countries Judge Malpractice pretends to support the “reform” of problems in the medical malpractice system. But he supports his arguments with some whoppers and fallacious arguments that don’t hold water.

Whopper #1, Epstein writes:

“American courts commonly think it proper for juries to infer medical negligence from the mere occurrence of a serious injury.”

This is just flat out false, and every competent lawyer that tries malpractice cases for either the plaintiff or the defendant knows it. Litigants must show — at least in NY, where I practice, and where Epstein is now a visiting professor at NYU — specific deviations from care. The jury gets a special verdict to decide if the exact deviation from practice occurred. Epstein does not identify even a single jurisdiction that allows a court to commonly infer negligence from a bad outcome. Not even one.

Whopper #2, Epstein writes:

American plaintiffs are sometimes spared the heavy burden of identifying particular acts of negligence, or of showing the precise causal connection between a negligent act and an actual injury.

Once again, Epstein misses the mark, at least in New York. For a jury must not only return a verdict regarding a specific act of negligence, but they must also find that that specific departure was a substantial cause of injury. If Epstein knows of jurisdictions that allow verdicts without showing a casual connection he should mention them. He does not.

Epstein has an impressive resume. He teaches. He writes. But nowhere in that lengthy summary of ivory tower achievements does he discuss how many juries he has picked or how many times he’s tried to convince a jury to bring back a verdict based on the silliness he propounds.

Epstein also identifies four “procedural features that drive up malpractice costs.” They are:

The first is jury trials, which can veer out of control and in any case introduce significant uncertainty.

This “procedural feature” is called a constitutional right. The Seventh Amendment‘s right to jury trials in civil actions (and statewide equivalents) is what Epstein is actually complaining about. I reprint the federal version here so that he doesn’t have to look far for it:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Epstein’s real problem isn’t with some procedural feature, it’s with the Bill of Rights and our nation’s founders and the desire to disperse power away from power-hungry governmental types and put it in the hands of the people. And as to uncertainty with jury verdicts, an alternative system does not ameliorate that issue. Someone somewhere still has to decide the issue. And that person (or people) will come with biases.

The second “procedural feature” is the:

“contingency-fee system, which allows well-heeled lawyers to self-finance litigation.”

Of course, if the lawyers didn’t fund the litigation, no one except the rich could bring a suit. Allowing others to fund the litigation when they see a cause worth fighting — and risking their own money for — is what keeps the courthouse doors open. Does he want to force those that have already been victimized by malpractice to fund the lawsuit as they also wrestle with paying the mortgage while incapacitated? That’s a great way to give immunity to those that were negligent.

The third “procedural feature:”

“…is the rule that makes each side bear its own costs. This induces riskier lawsuits than are undertaken in most other countries, such as Canada, England and most of Europe, where the loser pays the legal costs of the winner.”

We return again to the concept of keeping the courthouse door open. If you want to strip away the rights of the citizenry, this is the way to go. Those of modest means simply won’t be able to bring suit. (And it also may end out rewarding those that are less than honest on the witness stand, causing the injured party to be victimized yet again.)

Epstein trumpets the fact that in other countries there are fewer lawsuits as a result of “loser-pays.” But that just means that victims can’t afford to bring the suits and they are forced to bear the costs and burdens of the negligence of others.

The fourth is:

“…extensive pretrial discovery outside the direct supervision of judges, which occurs far more readily here than elsewhere.”

I’ve never heard of discovery that didn’t have judicial oversight in the event of abuses. Epstein doesn’t provide a single reference to any jurisdiction where this allegedly occurs.

Epstein also complains about the cost of litigation. Here is one way to put the brakes on it in New York: Let interest on the judgment run from the date of the malpractice. As it stands now, interest only runs from judgment, which is usually years later. Defendants, their lawyers and the insurance companies profit by dragging the lawsuit out and running the meter. (See: No, your medical malpractice case will NOT settle fast) If they knew they would have to pay interest from the time of the malpractice, they would likely take a different view of things.

In sum, Epstein fills his opinion piece with a call for “reform” that is based on little more than unsubstantiated cliches. I expect better from someone that calls himself a law professor.

Remember what the definition of tort “reformer” actually is: Someone that has never been seriously injured by the negligence of another. You can see some profiles of tort reform hypocrites at this link: Do Texas Med-Mal Damage Caps Work? (What Do You Mean By “Work?”)
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More from John Stossel at ABC, who supports “reform,” even though he had no hesitancy himself in suing another for injuring him. Some “reformers” are cured when they see the consequences of their actions, but others, like Stossel, seem to stick with “tort reform for thee, but not for me.”

Links to this post:

maxwell strikes back
maxwell kennerly’s litigation and trial blog is a must-read for lawyers who practice civil litigation of almost any type. his posts are timely, thoughtful, and relevant. take this post, “‘how other countries judge [medical] malpractice …

posted by [email protected] (John Day) @ July 02, 2009 5:39 AM

epstein: “how other countries judge malpractice”
richard epstein surveys the ways other systems handle litigation, and medical litigation in particular: even these features [jury trials, contingency fees, lack of loser-pays, extensive lawyer-driven discovery] aren’t the whole story. …
posted by Walter Olson @ June 30, 2009 8:17 AM

 

April 14th, 2009

Do Texas Med-Mal Damage Caps Work? (What Do You Mean By “Work”?)

In a headline at Point of Law, the Manhattan Institute blog dedicated to tort “reform,” comes this: Texas Med-Mal Damage Caps Worked.

And in support of that headline, Andrew Grossman recaps this article with data about the reduction of payouts for pain and suffering (“non-economic” loss) since Texas slashed the ability of injured people to hold the wrongdoers accountable for their conduct:

The Texas cap reduced allowed non-economic damages in tried cases by an estimated 73 percent, allowed verdicts by 38 percent, and payouts by 27 percent. As expected, settlement payouts declined, by 18 percent.

But what, exactly does it mean for a statute to “work” when it reduces the ability of the most badly injured individuals to recover for their loss?

  • Does offering government protectionism for tortfeasors mean it works?
  • Does stopping those who’ve been victimized from recovering from their loss mean it works?
  • Does destroying the concept of personal responsibility for one’s actions mean it works?

If the objective is to offer windfalls to those whose negligence has injured others then one might say it works. But that doesn’t makes it good public policy.

I’ve always found it odd that the tort “reform” movement is lead by those whose political philosophy is to have less government intervention and more personal responsibility. Because tort “reform” is just the opposite.

But some have seen the light. Below is a list of a few “reformers” that have been covered in this blog that no longer believe that insurance company profits are more important than making the victims whole again. I’ve excerpted it from The Bubbe Maisse Report (aka “Judicial Hellholes”):

Another Tort “Reformer” Sees The Light:

Dr. Dave Stewart is a California anesthesiologist. He supported tort “reform.” Then his 72 year old mother died after knee surgery from an undiagnosed bowel obstruction. When the family tried to hire a lawyer, they were turned down by two dozen different medical malpractice attorneys.

Tort “Reform”, Trent Lott, and Changing Fortunes: Aside from Trent Lott, it deals with Frank Cornelius —

In 1975, I helped persuade the Indiana Legislature to pass what was acclaimed as a pioneering reform of the medical malpractice laws: a $500,000 cap on damage awards, and elimination of all damages for pain and suffering. I argued successfully that such limits would reduce health care costs and encourage physicians to stay in Indiana — the same sort of arguments that not underpin the medical industry’s call for national malpractice reform.

Today, from my wheelchair, I rue that that accomplishment. Here is my story.

Tort “Reform” Gone Bad. And the Personal Injury Round-Up: With this story from a “reformer” and medical oncologist:

It appeared that the case would be resolved quickly, considering that the defendant freely admitted his error. However, this turned out to be far from true.
…
As I’d expected, the jury found the original pathologist negligent. But, to my surprise, Mary wasn’t awarded any damages… The jurors reasoned that the pathologist had not acted maliciously, and that if he were found liable for a monetary award, he might leave the state. They were likely influenced by political ads that ran during the state’s tort reform ballot campaign, describing physicians who were leaving Nevada because of its malpractice crisis.

Tort “Reformer” Michael Savage Brings Lawsuit:

Right wing radio talk-show host and tort “reformer” Michael Savage has brought a lawsuit. The infraction? He was quoted by an Islamic group on its website in which he called the Quran a “book of hate” and said Muslims “need deportation.”

Robert Bork Brings Trip/Fall Suit for Over $1M, Plus Punitive Damages And Legal Fees —

Former Supreme Court nominee Robert Bork has sued the Yale Club for an amount “in excess of $1,000,000,” plus punitive damages, as a result of a trip and fall accident on June 6, 2006. The Complaint is here via the WSJ. The accident happened while he was climbing to the dais for a speech, and there were no steps or handrail for the 79-year old Bork to hold on to.

Remember: Tort “reform” is an idea promulgated by people who’ve never been badly injured by the negligence of others.
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See also:

  1. George W. Bush
  2. ABC News Correspondent John Stossel
  3. Sen Rick Santorum
  4. “Lawsuit Abuse” Group Founder and Trustee, Sterling Cornelius
  5. Texans for Lawsuit Reform Board Members

Links to this post:

med mal caps work… against med mal victims, that is.
eric turkewitz points out that when folks claim that capping non-economic damages in medical malpractice claims “works,” they often conveniently neglect to explain what “working” really means. he writes: …
posted by Kia Franklin @ April 15, 2009 4:29 PM

 

December 18th, 2008

Chamber of Commerce Flubs Tort "Reform" Propaganda Campaign

The Chamber of Commerce has blown its own propaganda campaign regarding frivolous lawsuits. At this website designed to spread the myth of the frivolous lawsuit as a bona fide problem, they mistakingly included a pro-consumer eight-minute video called Mr. Fancy Pants. If you hold your cursor over the pictures after the video runs, you will see which one it is.

The video was produced by Injury Board, a collection of plaintiffs attorneys, and discussed last year at TortDeform.

Whoever put the Chamber site together apparently didn’t listen past the opening minute or so, which gives the propaganda angle. The rest of the video goes on to explain how the Chamber puts together their lobbying efforts and that judges already have the power to sanction litigants over frivolous cases.

I expect the Chamber to pull down the video after I post this, and perhaps slap someone upside the head for not bothering to actually watch the stuff they put up on their own site. I’m sure their corporate contributors will be delighted. Since it will likely disappear from their site, I’m putting the video here since it is also on available via YouTube. Enjoy the video…now being actively promoted by the U.S. Chamber of Commerce:

P.S.: These additional videos linked at the end of a clip are likely embedded by YouTube. If you look at the bottom of the video that I posted, for example, you will see unrelated “pants” videos. Which means that corporations that want to use this stuff need to re-code the YouTube videos to exclude those frames and links.