July 19th, 2011

Tort “Reform” Claims more Victims

Remember the Metrolink train crash from 2008 out in Southern California? It claimed the lives of 24 innocents people and injured over 100 more because a train engineer was texting while driving and missed a signal.

But Congress granted immunity for all claims over $200 million, forcing a local judge to make a Sophie’s Choice among victims, while the negligent corporation went skipping merrily away after paying the cap.

Andrew Cohen has the heartbreaking story at The Atlantic: The Real Victims of ‘Tort Reform’

June 27th, 2011

Hot Coffee Tonight

Late last year I wrote about Hot Coffee, a documentary about the tort “reform” industry. The movie, which debuted at the Sundance Film Festival, included much about the McDonald’s hot coffee case where the late Stella Liebeck was scalded from the brew. I would tell you more about the case, except that you already know the story.

Or, perhaps, you only think you know about the story. Hot Coffee looks not only at that, but at why you think you know about the case and how the publicity campaign got you to form opinions. The move airs on HBO tonight. The trailer is here.

And this is the lede for a review by Hank Stuever from the Washington Post:

We get a lot wrong in our media-transfixed culture, where a wry quip and populist outrage almost always trump any understanding of complicated facts. But rarely do we get someone as wrong as we got Stella Liebeck.

Was the movie good? Steuver reaches this conclusion:

Unlike so many documentaries these days, “Hot Coffee” is refreshingly unadorned or manipulated for artistic or tear-jerking effect. It winnows down complicated legal arguments and anecdotal cases with compassion and clarity. It does everything a documentary can do — which, in terms of effecting change, isn’t much. But if nothing else, it has at least given Stella Liebeck what McDonald’s and Jay Leno did not: understanding.

So if you have HBO, it seems like this is something you might want to tune in to. Especially if you are on the other side of the aisle from where I usually stand. Because it isn’t just about coffee.

Other reviews of the film after it debuted at Sundance can be read here.

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.

March 15th, 2011

Does Tort “Reform” Kill Patients?

Medical malpractice payments plunge after comprehensive patient safety improvements are made

Two questions today as New York ponders putting a $250K cap on medical malpractice awards among its “reform” measures:

Question 1: Has medical malpractice tort “reform” ever saved a life?

Answer: No. OK, that one was easy. So-called reforms merely strip rights from the injured, they do zippo to improve medical care.

Question 2: Does medical malpractice tort “reform” kill patients?

Answer: Yes. Now this question was in dispute up until recently, but no longer given a study that showed plunging medical malpractice payments and “sentinel events” after patient safety improvements were made (graph at right). But since everyone knows that histrionics aren’t my style, an explanation as to how I come to that conclusion that tort “reform” kills is in order.

Prior medical studies had tried to address the issue of whether “reform” had an effect on increasing injury/death due to less medical care. This was a tough subject because, on one side you had “reformers” claim there was defensive medicine for fear of malpractice suits and wasted money, and on the other you had patients pointing out that doctors actually billed for, and profited from, those tests. Also, those “unnecessary” tests often found things.

So I turned to the Congressional Budget Office, which does non-partisan cost analysis of government expenditures of various budgetary changes, and found a letter to Congressman Bruce Brayley that directly addressed the issue. (On page 3, entitled The Effects of Tort Reform on Patients’ Health). The CBO opinion was inconclusive, citing conflicting medical studies.

So why would I, faced with conflicting evidence on the issue of whether tort “reform” kills, now claim that it does?

Because the American Journal of Obstetrics and Gynecology published a study in February from Columbia Presbyterian Hosptial / Cornell Weill Medical Center that devastates the arguments of the so-called “reformers.” The study found that “instituting a comprehensive obstetric patient safety program decreased compensation payments and sentinel events resulting in immediate and significant savings.” What does that mean in dollars and cents? It means that their payments due to malpractice plunged, as the graph in the upper right hand corner shows. Quoting the report itself: “The 2009 compensation payment total constituted a 99.1% drop from the average 2003-2006 payments (from $27,591,610 to $ 250,000).”

It is abundantly clear then, from a pure dollars and cents point of view, that the medical profession has a spectacular opportunity to save money by slashing its malpractice payments. But to do that, they have to improve patient safety. You can see the raw savings in the chart on the left.

Of course, if that incentive is taken away by simply giving immunities and protections to the those that committed preventable errors, which is what tort “reform” is all about, the safety improvements would not take place. That means patients will continue to be injured and die from malpractice.

Conservatives should take note, as they have long held beliefs that market forces will win the day when a better mousetrap has been built. And Columbia Presbyterian / Cornell had now devised that better mousetrap by figuring out how to keep patients safer, resulting in lower costs. Focusing on “reform” that offers protection from lawsuits instead of protection from injury/death merely perpetuates the current problems in hospitals today. Such “reforms” take away the critical incentive to improve.

So this is the two-part conclusion:

Safety improvements = fewer malpractice payments and healthier patients.

Tort reform = more patient deaths.

Some money quotes from the report:

Our results show that implementing a comprehensive obstetric patient safety program not only decreases severe adverse outcomes but can also have an immediate impact on compensation payments.

Our experience supports the recommen-dation that: “. . . Malpractice loss is best avoided by reduction in adverse out-comes and the development of unambiguous practice guidelines.”

Good teamwork promotes professional integrity and is essential in delivering optimal patient care, and failure in communication and teamwork is often cited as a common cause of adverse events.

Making significant changes on a labor and delivery unit including such features as the implementation of a standardized oxytocin protocol, electronic charting, team training, and improving situational awareness through a central communi- cation system, should be considered by all obstetric services. As we have shown, these changes can increase pa-tient safety, decrease sentinel events, and, as a consequence, reduce compensation payments.

The myth that medical malpractice tort “reform” was needed has not just been deflated, but its been disproven and debunked, and it was done by one of the nation’s leading hospitals.

And why have I put the word “reform” in quotes all these years? Because the concept of reform is built about improving a system, not making it worse.

Addendum: My op-ed in The Journal News on Sunday, March 20th.