You are currently browsing the monthly archive for September 2009.

The evidence keeps piling up with regards to med mal.

“After reviewing thousands of patient records, medical researchers have estimated that only 2 to 3 percent of cases of medical negligence lead to a malpractice claim. For every notorious error — the teenager who died in North Carolina after being given the wrong blood type, the 39-year-old Massachusetts mother killed by a chemotherapy overdose, the newborn twins (children of the actor Dennis Quaid) given too much blood thinner — there are dozens more. You never hear about these other cases.”

http://www.nytimes.com/2009/09/23/business/economy/23leonhardt.html?_r=2&scp=3&sq=leonhardt&st=cse

This story from BusinessWeek.

“Doctors say the suits send health-care costs soaring, but studies show reforms would have little effect.”

http://www.businessweek.com/magazine/content/09_39/b4148030880703.htm

and this from BusinessWeek March 3, 2003.

http://compuserve.businessweek.com/magazine/content/03_09/b3822079.htm

“After the FDA’s second rejection of fast-track status, in September 2007, ReGen asked lawmakers from New Jersey, its home turf, for help. Supporters included Democrats Sen. Robert Menendez; Rep. Frank Pallone, chairman of the Health Subcommittee of the House Energy and Commerce Committee; Rep. Steve Rothman of Hackensack; and Sen. Frank Lautenberg.

Messrs. Menendez, Lautenberg and Rothman signed a letter to the FDA in December 2007 asking for Dr. von Eschenbach, the FDA commissioner, to review the issue personally. Mr. Menendez talked with the commissioner by phone, his office said.

The four lawmakers defend their actions, saying they were simply assisting a constituent tangled up in government bureaucracy. "Our effort to help them was solely to ensure they received a fair and unbiased FDA review," Rep. Rothman said in a statement.

Congressional support helped ReGen land a meeting with Dr. von Eschenbach on Jan. 23, 2008. Two days later, ReGen in a letter called on Dr. von Eschenbach to put the matter in the hands of Dr. Schultz, head of the FDA’s device division.

In the same letter, ReGen also asked that the FDA staffers who previously had opposed Menaflex be excluded from the decision-making process.

Dr. von Eschenbach wrote back, "I believe it is imperative that FDA follow its well-developed procedures."

In subsequent months, ReGen got much of what it wanted. Dr. Schultz confirms that he took personal charge of the decision-making process”

http://online.wsj.com/article/SB123629954783946701-search.html

So what is to prevent this in the future? State tort laws, the right for patients to sue, is the one last recourse that people have over power and money.

“Both GAO and FDA, however, have identified shortcomings in FDA’s postmarket oversight. For example, in 2006 FDA reported that the agency’s ability to understand the risks related to the use of medical devices is limited by the fact that the volume of submitted reports exceeded FDA’s ability to consistently enter or review the reports in a routine manner. In 2008, FDA officials told us that while they have a number of strategies to prioritize their reviews of adverse event reports, they still cannot review all the reports they receive. Finally, GAO has found that FDA has not conducted required inspections of manufacturing establishments, another key FDA responsibility for medical devices marketed in the United States. In 2008, GAO reported that FDA has not met a statutory requirement to inspect certain domestic manufacturing establishments every 2 years. Instead, FDA officials estimated that the agency has inspected domestic establishments every 3 years (for class III devices) or 5 years (for class II devices). There is no comparable requirement to inspect foreign establishments, and FDA officials estimate that they have been inspected every 6 years (for class III devices) or 27 years (for class II devices).”

http://www.gao.gov/products/GAO-09-370T

Judges have more knowledge of the civil jury system than anyone.
In a recent survey:

  • Ninety-one percent believe the system is in good condition
    needing, at best, only minor work.
  • Only 1 percent of the judges who responded gave the jury
    system low marks.
  • Judges have great faith in juries to solve complicated
    issues.
  • Ninety-six percent said they agree with jury verdicts most
    or all of the time.
  • Nine of 10 judges said jurors show considerable understanding
    of legal issues involved in the cases they hear.

Source:
Dallas Morning News and Southern Methodist School of Law survey of federal trial judges in the United States, its territories and protectorates – over 900 judges. About 65% (594) of the federal judges responded. Allen Pusey, “Judges rule in favor of juries: Surveys by Morning News, SMU law school find overwhelming support for citizens’ role in court system,” Dallas Morning News, May 7, 2000.

Our study also shows that states that have passed severe medical malpractice tort restrictions on victims of medical error have rate changes similar to those states that haven’t adopted these harsh measures.

A major new study released today by Americans for Insurance Reform finds that premiums and claims for doctors both have dropped significantly in recent years while the medical malpractice insurance industry is enjoying remarkable profits in light of the global economic collapse.

http://www.centerjd.org/air/pr/090722.html
July 22 , 2009

“The Dartmouth Institute for Health Policy has reported that Medicare spending in Texas increased by almost 25 percent in the three years following that state’s adoption of restrictive tort laws. In fact, a University of Alabama study, published in the December 2008 issue of Health Sciences Review, reviewed data from 27 states that already have laws restricting torts and found that such laws do not impact the practice of defensive medicine and have not resulted in cost savings for healthcare consumers.”

The following exchange took place with a group of doctors and Dr. Gawande:

“It’s malpractice,” a family physician who had practiced here for thirty-three years said. “McAllen is legal hell,” the cardiologist agreed.  Doctors order unnecessary tests just to protect themselves, he said. Everyone thought the lawyers here were worse than elsewhere.

That explanation puzzled me. Several years ago, Texas passed a tough malpractice law that capped pain-and-suffering awards at two hundred and fifty thousand dollars. Didn’t lawsuits go down?  “Practically to zero,” the cardiologist admitted.

“Come on,” the general surgeon finally said. “We all know these arguments are bullshit. There is overutilization here, pure and simple.” Doctors, he said, were racking up charges with extra tests, services, and procedures.

http://www.newyorker.com/reporting/2009/06/01/090601fa_fact_gawande?currentPage=1
http://rijustice.wordpress.com/2009/09/10/obama-medical-malpractice-and-tort-reform/

http://rijustice.wordpress.com/2009/08/10/learn-the-facts-on-tort-reform/

Following is a GAO report on medical malpractice and could not find any evidence to substantiate the claims of lawsuits impacting health care costs, access to health care or defensive medicine (with one possible lose connection relating to OBGYN). But of course you will not see this report on any media outlet swinging left or right.

http://www.gao.gov/new.items/d03836.pdf

Remember the CBO report regarding the cost of a single payer system that we all grasped to support our arguments against a single payer system…

Well, there is the CBO report which had this to say about tort reform:

“But even large savings in premiums can have only a small direct impact on health care spending–private or governmental–because malpractice costs account for less than 2 percent of that spending.”

http://www.cbo.gov/doc.cfm?index=4968&type=0#t3

And of course there is Tillinghast-Towers Perrin (one of the largest in the world that provides risk management for the insurance and reinsurance industry).

According to the actuarial consulting firm Towers Perrin, medical malpractice tort costs were $30.4 billion in 2007, the last year for which data are available. We have a more than a $2 trillion health care system. That puts litigation costs and malpractice insurance at 1 to 1.5 percent of total medical costs. That’s a rounding error. Liability isn’t even the tail on the cost dog. It’s the hair on the end of the tail.

Of that 1 to 1.5 percent what portion of that is “frivolous”?

http://www.towersperrin.com/tp/getwebcachedoc?webc=USA/2008/200811/2008_tort_costs_trends.pdf (Page 10)

And then of course the report from Towers Perrin that states that the total tort cost in the US is 2% of the GDP. What percentage of that is “frivolous” and of that percentage what percentage is “frivolous” corporate lawsuits. So how much are “frivolous” lawsuits driving up the cost of everything? Maybe less than 2 cents on the dollar or maybe even less the 1 cent on the dollar?
http://www.towersperrin.com/tp/getwebcachedoc?webc=USA/2008/200811/2008_tort_costs_trends.pdf

It is unfortunate that everyone is so willing to give up their right to sue with such a small cost to society, if in fact these facts are true. If that is the case then maybe we should do something with smokers or overweight people such as myself. After all they present a tremendous cost to society. Or maybe we should ration end of life care as this has a significant cost to society.

Maybe doctors are practicing defensive medicine for other reasons like getting paid for procedures. Maybe doctors are practicing defensive medicine because of the exaggerations of tort costs.  Maybe insurance rates are going up for other reasons and lawsuits and trial lawyers are an easy target because we know how our own exaggerations can drive our anger and hate.

I do not know but the numbers are just not holding up the case for tort reform.

The big insurance consulting firm puts tort cost at approximately 2% of GDP. Of that they say medical malpractice cost were $30.4 billion of the $2 trillion health care system. That puts medical malpractice cost at 1 to 1.5 percent. How much of that percentage is “frivolous”.

http://prescriptions.blogs.nytimes.com/2009/08/31/would-tort-reform-lower-health-care-costs/

So “there are good and important reasons for an adversarial judicial system” for big business but not all of us people that only ask for our day in court.

And they also are joining forces with the American Civil Liberties Union “to fight this assault on the fundamental rights that are guaranteed to every U.S. citizen.” Does this mean they will sue themselves for their assault on state tort laws?

“In a democracy, there are good and important reasons for an adversarial judicial system—no matter how much money and political influence the US Chamber of Commerce has.”

“We are also working to vigorously protect the sacred, constitutionally guaranteed right of due process and a key element of that right, the attorney-client privilege. In a democracy, there are good and important reasons for an adversarial judicial system—no matter what politically ambitious prosecutors may say.”

“We have a big problem with that. So we’ve joined with groups such as the American Civil Liberties Union, the American Bar Association, and the National Association of Criminal Defense Lawyers to fight this assault on the fundamental rights that are guaranteed to every U.S. citizen.

http://www.uschamber.com/press/speeches/2005/051130tjd_wallstreet.htm