You knew it wouldn’t be too long before someone here addressed Senator Beach’s Patient Injury Act, SB 141. The bill, in theory, would lower medical costs by establishing a “compensation panel” of doctors to review claims. This panel would allow everyone to pay into a “no-fault” fund to cover all claims. Basically, Beach’s bill tries to force medical malpractice claims into the Worker’s Compensation model. By funnelling claims through this panel process, supporters contend that Doctors can cease practising “preventive medicine” and lower medical costs.
And it all sounds too good to be true. Because it is. The Worker’s Compensation system works because you have a very good baseline–specifically lost wages. And comp claims don’t go before a panel of employers; they go before an administrative law judge. Running medmal claims through a board of physicians and others would not yield the same results. Partially because of the lack of a baseline. How would a panel of physicians value the arm of a concert pianist? That problem does not arise in comp claims, because the focus is on lost wages. What will these panels focus on? Potential lost wages? Potential use of body parts? Cost of repair? Shouldn’t, you know, economists be making the decision about what a particular botched surgery is potentially worth?
I’m not saying there aren’t benefits to the proposed system. A very small number of medmal claims ever make it to a “claim” currently. Realistically, if the doctor doesn’t leave you half dead–or fully dead–then your claim is likely too small for a lawyer to take. Lawyers get a bad rap sometimes, but a lot of factors go into a lawyer taking a malpractice claims. First of all, litigation is likely to cost a hundred thousand dollars even before going to trial. Insurance companies fight these claims tooth and nail. They hire experts, you hire experts, they do depositions, you do depositions, and guess who fronts all of these costs? Lawyers. I can tell you right now, I’ve turned down more than a handful of cases since November were a doctor deviated from the standard of care. The problem was damages. We can’t help someone who suffered twenty thousand dollars worth of damage from a doctor’s error or omission. Why? Because I wouldn’t make enough to cover my costs.
The proposed system would at least provide those people with coverage. But that’s not a good reason to throw out the current system. The other benefits touted by the bill’s supporters simply do not add up. “Preventive medicine” is what doctors are taught now; it has been the standard of care since the seventies. This bill won’t make it disappear. Medical Schools will still teach it, doctors will still practice it. Because it’s better to act in an abundance of caution.
The other fallacy is that this will drive costs down. Our medical costs are on par with most states; but states with rigid tort reform do not have less expensive medical care. Texas, for example.
Further, SB 141 will not decrease any litigation. As set forth in the proposed appeal system, a denied claim or a “low ball” claim can be appealed to an administrative law judge. The judge’s opinion is subject to judicial review. Basically bringing us back to square one.
I fully believe Senator Beach has the best intentions, but the system he has created will not achieve its goals. It will cause headache without decreasing costs. It will ensure that individuals are denied just compensation. It will add a new state bureaucracy that will surely cost this state money. And there are those out there who believe the bill itself is unconstitutional. I think Stefan wants to take you all down that journey later this week.
In the interest of full disclosure, I’m a trial lawyer. I practice in the areas of personal injury, worker’s compensation, and banking. (That fits together so well.)