Opinions vary on the cause or causes of whatever level of medical malpractice insurance crisis may exist. Some people think that the root cause is frivolous lawsuits, other think that insurance reform is the solution while still others think that we need to reduce the incidence of injury due to medical negligence.
If you are in any of those camps, Democratic Presidential candidate John Edwards has a policy proposal you may like. Edward thinks that all three contribute to the problem and he has reasonably specific proposals to deal with each.
To identify Edward’s proposals, I took information from an op-ed he wrote in the Washington Post as well as from the policy section of his web site.
Edwards identifies the problem as being one of rising premiums for malpractice coverage:
The rising cost of malpractice insurance for doctors is getting in the way of good health care. In rural areas, some specialists can no longer afford to practice, and patients can't get the care they need.
Secondly, he identifies the goals of his proposal:
We need a real solution that frees doctors from crippling insurance costs -- without preventing the most badly injured victims from receiving the compensation they deserve.
Unfortunately, President Bush's proposed prescription comes straight off the insurance companies' wish list: a sharp limit on the compensation these companies have to pay children and parents who have been blinded, paralyzed or otherwise severely injured. The victims who make the least money will suffer the most under this plan. The harm to the kinds of families I represented as a lawyer for nearly 20 years will be enormous.What the president's proposal won't do is work. Insurance premiums have spiked recently because of insurance companies' losses on their investments, not their losses to victims. In fact, about half the states already have some limits on victim compensation, yet premiums in states with caps average about the same as premiums in states without caps. California finally controlled rates not by attacking victims -- that didn't work -- but by reforming the insurance industry and rolling back premium increases.
Most lawyers are responsible advocates for their clients, but the few who aren't hurt the real victims, undercut the credibility of the legal system, and clog our courts. Before a lawyer can bring a medical malpractice case to court, Edwards will require that he or she swear that an expert doctor is ready to testify that real malpractice has occurred. Lawyers who file frivolous cases should face tough, mandatory sanctions. Lawyers who file three frivolous cases should be forbidden from bringing another suit for the next 10 years — in other words, three strikes and you're out.
Plaintiffs can not win med mal cases without an expert to testify that the defendant’s acts or omissions violated the standard of care and I see nothing wrong with requiring that such an expert to be identified prior to the suit being filed. If the plaintiff can not locate such an expert, there is no reason to put the doctor through the trouble, expense and embarrassment the filing of a suit can cause. Similarly, if the plaintiff has identified such an expert, the chance that the suit is frivolous is small.
I do not think that Edwards’ proposal goes far enough in that regard. Georgia has experimented with a similar reform. In Georgia, a malpractice suit is subject to dismissal if the lawyer does not attach to the complaint a sworn affidavit from a doctor testifying that the defendant committed at least one act of negligence. See OCGA § 9-11-9.1.
It took a while for the Georgia system to get the bugs out. Issues such as the qualifications of the expert submitting the affidavit and the contents of the affidavit had to be determined. What happens if the expert has not reviewed the medical records or has reviewed only portions of the records? Believe it or not, the defense bar in Georgia spent many thousands of dollars litigating whether a faxed copy of the expert affidavit met the requirement. Frivolity exists on both sides of the vs.
Once such issues were decided, the system seems to work pretty well and as a result, very few medical malpractice suits are filed in Georgia without an expert affidavit attached. Those that are so filed are routinely dismissed at a very early stage of the litigation. Requiring expert testimony as a prerequisite for filing may not eliminate all frivolous medical malpractice suits, but it eliminates an entire class of such suits.
In sum, I think Edwards’ general idea is a good one but that Georgia has found a better way to achieve the result Edwards seeks.
To the extent that malpractice insurance premiums are rising because of payouts in meritorious cases, one way to slow that rise is to reduce the number of people injured by medical negligence. Edwards notes:
In medicine, as in law, a few people cause the most problems: Only 5 percent of doctors have paid malpractice claims more than once since 1990. This same 5 percent is responsible for over half of all claims paid.
One part of the problem is state medical boards whose discipline is as lax as state bar associations'. We need to provide resources and incentives for boards to adopt real standards on the "three strikes" model. At the same time, we need to encourage doctors to report more medical errors voluntarily, so we can learn more about systemic problems.
One reason that state medical boards have not more aggressively disciplined doctors who repeatedly injure patients that that, ironically, doctors are some of the most litigious folks around when it comes to their licenses or hospital privileges. Perhaps we need some reform of the system by which doctors sue to retain their licenses and privileges.
Some people think that insurance reform would be useful in reducing the rise in malpractice premiums. Edwards agrees:
The most critical step is reforming the insurance industry. Today insurance companies use slow and burdensome processes to discourage both doctors and patients from filing legitimate claims. Worse still, these companies can fix prices and divvy up the country in order to drive up their profits. Even when companies don't explicitly collude, they set their rates based on a trade-group loss calculation that they know other companies will follow. In any other industry, this kind of conduct would be subject to scrutiny under the antitrust laws. But an obscure 1945 law gives insurance companies a broad antitrust exemption. Because of the insurance lobby's influence, Congress has even blocked the Federal Trade Commission from investigating insurance company rip-offs. These special privileges must go.
Edwards’ proposals seems like a balanced approach. Unlike the president’s proposal, Edwards seeks to address the issue of rising premiums without preventing innocent victims of medical negligence from receiving full compensation for their losses.
If only Nixon can go to China, perhaps only a trial lawyer can effectively reform the medical malpractice tort system.
Your account of Edward's proposals sound like reasonable reforms. Most doctors are careful and honest, and they should not be burdened with higher premiums to cover the few bad eggs.
One problem I forsee is with the "expert" medical witness testifying that the case is legitimate. I would imagine a cottage industry of such experts would spring up, flying from case to case and "certifying" the harm done. There must be some way to ensure that defendents seek a variety of opinions, not just those they pay to give them the OK they want.
Posted by: Brian at January 31, 2004 09:16 PMActually, Edwards proposal is ALREADY the law here in New York; a lawyer must certify that he has consulted with another doctor who reviewed the records and concluded that the offending doctor fell below the community standard of care, i.e., malpracticed. And even with this rule, doctors still win the majority of verdicts here.
I understand that new doctors going into ob-gyn (the Valhalla of fields for plaintiff's med mal lawyers) often don't even get insurance-- preferring to place assets in spouse's hands and take their own chances.
I hate to say this (but I will anyway): this is a major problem that could be largely solved by a variant of socialized medicine: the big component of the humongous med mal awards is future care; if the state picked that up AUTOMATICALLY (i.e. because it paid for everyone's medical expenses), then we have taken great pressure off verdicts and settlements. Also, we can "socialize" the insurance risks, so that, in essence, doctors who just get nailed with suits and awards over and over again lose their license to practice medicine for the same reason that an awful driver might not be able to get insurance, a component of auto registration.
But that's just me, of course. In order to get any of these proposals through an insurance company friendly Congress, unfortunately some bones will have to be thrown to the bastards; certainly, as Edwards proposals will make filing claims in SOME states a little bit harder, I'm sure THAT will pass.
Posted by: the talking dog at February 1, 2004 10:04 AMEdwards has made millions suing physicians, he is the fox guarding the chicken coupe. His dirty band-aid fix for tort reform is typical of his breed. Physicians are the new lottery for a greed frenzy America. Five to ten percent of physicians and surgeons that are in the upper bracket for law suits practice very difficult medicine. Tort reform needs to occure so hungry juries stop giving excessive lotto dollars to the undeserving. Manage "legal care", and Mr. Edwards keep your dirty band-aid.
Posted by: eusty at February 11, 2004 01:55 AMTort reform is long overdue in this country and the amount of misinformation out there is astounding.
Talking dog is recommending the state to pick up future care, and indeed this might alleviate part of the problem. However, what we docotors are looking for is NOT a way out of paying for future care or earnings loss. Every doc I speak to agrees that the injured patient must be made whole again in this regard. What we do want is a limit on the "non-economic" damages that comprise the vast majority of the awards given. This is the true Lotto, Powerball, and Megabucks rolled into one.
I am a surgeon, a Democrat, and pretty far to the left on most issues. On this issue, however, I feel let down by my party. I am tired of the comments from people about killer docs and negligent surgeons. What we do is a hell of a difficult job and we often take a persons life into our hands with limited information available.
The fact of the matter is that mistakes do happen - sometimes tragic ones. I have seen other doctors make them, and I have made them myself. We play in the deep end of the pool and we do our level best. The level of commitment physicians have to their patients is enormous. Perhaps we should be more like the trial lawyers who so willingly "become" their clients in order to secure a massive reward. Perhaps we too could be paid in some sort of contingency fashion. Maybe I should not charge someone whose life I save, but instead take a portion of all their future earnings - after all, they would be dead without me. And yes I am being sarcastic.
And before someone responds with "that's why you get paid the big bucks" -- I wish it were true, I really do. I am 10 years out of residency and still in debt. Payment for procedures keeps going down and costs keep going up.
I love being a surgeon, but I am tired of this game. First chance to get out, and I will take it. Many other docs feel the same way. There WILL be a shortage of us very very soon.
Posted by: Scalpel at March 17, 2004 02:19 PMdamn straight scalpel. In 10 years America is going to wake up and wonder where all the doctors (and nurses) went. The answer is you sued us until we went away. Now have your lawyer do a lap chole on you.
Posted by: elvis at June 13, 2004 02:34 AMAs I and my colleagues who have all been sued, will tell you, any bad outcome seems to be grounds for a med mal suit, regardless of the level of care given. There are plenty of "experts" out there for hire to assert that care was negligent. In Ohio another carrier is likely going down the tubes and many of us, even primary care docs, will probably not be able to get insurance...I don't even know if tort reform in OH will save the state's physicians before many of us have been driven out of business.
Posted by: FamilyDocOhio at July 11, 2004 08:30 AMThe "cottage industry" of medical malpratice expert witnesses already exists. Medical prostitutes sell their "expert" opinions on a regular basis often signing affidavits before even knowing all the details of a case. We worry so much about "conflicts of interest" in medicine and our society, but how do we fail to see the conflict of interest in these handsomely paid "experts" who give testimony. Edwards proposal to require getting one of these doc's opinions first won't do anything at all to limit medical malpractice lawsuits. What a joke.
Posted by: scarredpedi at July 12, 2004 12:16 AMAs commented on before the talking dog, "expert" certification does exist here in New York, but it is a joke. Any doctor with an MD can testify that negligence is present. Most are outlying physicians that testify against doctors for a living. In the vast majority of cases, the doctor is not even in the same specialty. Is an internist capable of determining negligence in a neurosurgical case, or can a urologist comment on a pediatric case? For it to be truly, effective, there has to be a committee (NY had one years ago) that is made up of true "peers" of the same specialty of some academic status, maybe on a rotating basis, possibly along with a med-mal lawyer.
On the issue to 3 strikes and you're out, you would have no neurosurgeons or OBs in 5-10 years. High risks specialties that take care of very sick patients would be decimated. There has to be another way.
When I was in medical school over 10 years ago, defensive medicine was frowned upon. Now the lines have blurred, where defensive medicine seems to be good medicine. What was considered "defensive" is now "standard of care", since everyone else is doing it.
I truly believe that the current system is so broken, that it can't be fixed by incremental reforms. The only good thing Bush can do if he is re-elected is that he will destroy our health care system, so that we would be forced to start all over again.
Posted by: sypark at July 12, 2004 08:56 PMI am a high risk OB specialist in Oregon (perinatologist). I am about where Michael Moore is politically. I can't think of anything good about about Bush except his views on capping pain and suffering awards. He is off base in my opinion on Iraq, terrorism, tax cuts for the Rich, the Environement, education, everything. He is way too cozy with rich , corporate types including the pharmaceutical industry. He has done nothing about helping the working lower middle class and poor get/keep health insurance. And this week we learn about how poor this administration has been worldwide in fighting HIV in the poor despite BS propaganda and promises to the contrary. Nevertheless, when I hear Edwards is a leading attorney prosecuting OB docs for brain-injured newborns I feel like I have been punched in the gut.
2 -3 years ago I was a defense witness in a case where an OB delivered a brain-injured newborn who now has severe Cerebral Palsy. There was not, in my expert opinion, malpractice in this case yet the jury awardes 8 million bucks. The Doctor, who was a good doctor was forced to leave the state because he couldn't get a malpractice renewal.
On the other hand this family, who didn't have $$, was looking at a couple of million bucks of lost wages and full time care nursing and rehab costs for a lifetime for this kid.
There has to be a better way where this family is not financially ruined, but a good doctor isn't punished because of a bad outcome not related to malpractice.
My premiums have gone from 25K to 94K per annum in 2 years and I have no judgments nor trials against me in my 16 years. Next year probably 125K.
In my community OB's have gone from 15 to 9 in 2 years. New docs can't come here because no one will insure them.
Docs however have to better police ourselves. For awhile we had some bad docs on staff and it is nearly impossible to get rid of bad docs unless they outright shoot someone in the head.
I do think for neurologic injury we need a binding mediation type arrangement that will cover true costs in a "no-fault" type insurance arrangement. The panel should be composed of respected region docs by specialty, patient advocates, and perhaps clergy type ethicists.....and this panel should also review and remove/discipline bad docs aggressively.
Posted by: condor at July 15, 2004 03:14 PMOne thing that has not been touched upon is that the giving of "expert" testimony needs to be considered the practice of medicine. And as such, would be subject to peer review. So that if an "expert" comes up with outrageous claims, he/she could be held liable. I also believe that in cases where the defendant in a medical malpracticie case wins, and the plaintiff or the plaintiff's attorney should be liable for the costs of defending the case.
Posted by: sleepdoc at August 21, 2004 12:49 PM