How About a Ban on Legislative Malpractice?

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.)

11 comments

  1. Max Power says:

    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.

    Well you’re giving him more credit than I am. I fully believe this legislation was written by the AMA or some other doctors group.

    Listen the reason there are so many medmal suits is because there’s so much medical malpractice. It’s a freakin’ epidemic. Two people I know personally were hospitalized last week due to 1) faulty medical device and subsequent doctors error and 2) clear doctors error.

    Doctors have a tough job but shielding them from liability when they make mistakes won’t make them better doctors instead it will likely do just the opposite.

  2. KD_fiscal conservative says:

    I read that whole article only to find out it was a propaganda piece designed to protect our friend Ron’s multi-billion $$$ industry. It’s kind of like how the corn farmers tell you how removing ethanol tax credits is unAmerican….

    Also, while the article is full of half-truths, there are at least two patently false statements.
    “…supporters contend that Doctors can cease practising(sp?) ”preventive medicine” and lower medical costs.”
    1)“Preventive medicine” are measures taken to prevent diseases(such as vaccinations, treating chronic conditions b/f they led to further complications etc). This has nothing to do with malpractice reform. It’s “defensive medicine” that is the problem. That’s when your doc orders a $1500 MRI for a headache so Ron and his friends don’t come after him in the .0001% chance that the patient has an aneurysm.

    “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.”
    2) I’m know you understand the difference between “cost” and “price” but you fail to make a distinction here.
    Medical “costs”, as any accountant will tell you, is component costs of delivered goods and/or services. This most definitely goes down. A large part of “component costs of services” for doctors and hospitals are medical liability insurance, and insurance premiums *do* go down, compared to rest of the country.

    Medical “price” of each procedure is what the patient sees on their bills. These are largely are set by Federal a Medicare fee schedule panel and most private insurances use the Medicare payment scheme. Hospitals/Doctors don’t and can’t arbitrarily decide what to charge people, so such a bill can’t really bring down cost, but in Texas it was shown to reduce costs to hospitals and that money was used build more medical facilities and increase quality of care.

    • Max Power says:

      This has nothing to do with malpractice reform. It’s “defensive medicine” that is the problem. That’s when your doc orders a $1500 MRI for a headache so Ron and his friends don’t come after him in the .0001% chance that the patient has an aneurysm.

      Which is more likely, a doctor orders an MRI to prevent a less than 1% chance of a medmal suit or the doctor orders an MRI so the doctors medical group or an affiliated medical group can make $1500 from an MRI.

    • Ron Daniels says:

      I don’t take umbrage with you suggesting that I’m writing this piece solely to protect an industry. I’m not, but it’s fine for you to think that.

      I don’t think the gap is as wide as you would like between “preventive” and defensive” medicine. While this bill, from memory, targets “defensive” medicine, the end effect is an attack on “preventive medicine.” I like using football as an analogy; preventive medicine is basically a prevent defense. By making “defensive” medicine a thing of the past, you are openly encouraging doctors to not practice “preventive” medicine. They go hand in hand. If a doctor is solely requesting tests to defend himself/herself from a lawsuit, they likely have no business practicing medicine. (British spelling is practising.) And I do not believe most doctors require tests simply to defend against a lawsuit.

      As for half-truths, I actually believe the bill will drive costs upward. As discussed in the bill and elsewhere, there are a large number of smaller claims that do not get brought. Claims for less than 100k. There will be a surge of those claims. To pay for those claims, and the bigger claims, all doctors will need to pay into the fund with substantial numbers. That money will not grow on a tree. They will increase the cost to the consumer, meaning their patients. I think if you really analyze this bill, you will find that it turns your own points on their head. This will be more claimants filing more claims and costing more money.

      But that’s just my opinion.

      • KD_fiscal conservative says:

        Admittedly, I haven’t actually looked at this specific bill and will do so when I have time but:
        1) The idea of a physician panel to determine if a malpractice claim is valid is a good one
        2) The trail lawyer lobby(not just you, but also the GTLA and others), are against this bill is that it has the potential to decrease their caseload
        3) Some type of medical tort reform is needed

        I guess we can agree to disagree, and in sprite of full disclosure: I’m part of the “healthcare system.” Don’t want to revel exactly how as I try to stay semi-anonymous on here.

        • Ron Daniels says:

          My wife is also in the healthcare industry, so I see that side too.

          I understand that the GTLA lobby is upset, I see a system that will allow me to take more cases and make more money. What I find very interesting is that the insurance lobby isn’t pushing this bill. I suspect because they realize it will hurt them.

  3. ThatcherQueen says:

    Trial lawyers oppose this because they aren’t about patients. They never take a case less than $500k. Elderly patients have died at the hands of a bad doctor and loved ones have never been compensated because attorneys won’t even talk to families when the victim is old. Lawyers aren’t about protecting patients, they are about lining their pockets. They are the most elite of our society — more elite than Wall Street bankers. Senator Beach has a great idea that’s worth exploring and not only may protect you someday if some doctor hurts your parent or child. But unlike Obamacare which never addressed tort reform, it could bring down healthcare costs. As Charles Krauthammer says often on Fox News, I’m tired of doctors sending me for more tests than I need just to cover their butts. Bring it on. Let’s have the debate.

    • Ron Daniels says:

      I didn’t know I was “elite” now. You might not want to be so quick to lump all lawyers together. I regularly represent people with cases less than 500k. I actually care about my clients and I understand that I maybe an exception to the rule.

      But Doctors aren’t about helping patients, they are about making money. Teachers aren’t about helping students, they are about making money. We can go on and on with this till some cows show up and get absolutely nowhere. Your allegation applies to any profession. And I think it is without merit.

      And, for the record, I think you’re generally wrong about the type of claims lawyers will take. I do agree, however, that a large number of claims go unattended because the cost of prosecuting such a claim is greatly outweighed by the potential recovery. Insurance companies drive up those costs. You want to blame them?

  4. dougwojcieszak says:

    Let’s take the temperature down a notch, here.

    My family has experienced med-mal twice, including losing my oldest brother to medical errors in 1998. I am the Founder of Sorry Works! (www.sorryworks.net), which advocates and teaches doctors and nurses how to empathize and (when necessary) apologize after something goes wrong, including providing fair, upfront compensation to injured patients and families. I am also a board member of Patients for Fair Compensation (PFC), which developed this legislation for the Georgia Genera Assembly.

    I understand medical malpractice extremely well — both personally and professionally. The thing that really spoke to me about PFC was/is the improved chances for patients and families with “lower value” claims to receive fair compensation in an expedited manner. Mr. Daniels in his original post agreed with this position.

    What is a “lower value” claim? Some people say anything less than $500K. Maybe $250K. Possibly less than $100K. Often depends how well-organized the case and how easy it is prove (or not). But, you know what, a $50K case is almost impossible for a lawyer to take, but $50K of lost work, medical expenses, etc is a lot of money to most patients and families. That’s the kind of money that can push a family over the edge into foreclosure or bankruptcy — and the current system is simply not designed to help these people.

    Moreover, the sad reality is most med-mal cases are “lower value”…very few cases, actually, are in the six to seven-figure range. Very few. So, we have all these physically and financially harmed people who often get nothing from the current system. I believe the PFC system offers a chance to help these people.

    Moreover, by removing some of the animosity of the current system, we will hopefully encourage doctors and nurses to do a better communicating after something goes wrong, including apologies, which will provide 1) emotional closure for all sides and 2) increase learning from mistakes. So many injured patients and families often say hearing an apology and learning how mistakes will be fixed so future patients are not hurt is often more important than money! This is the truth!

    I think we need to give the PFC proposal a fair hearing — it hits on important issues for all stakeholders in the med-mal arena.

    Sincerely,

    – Doug

    Doug Wojcieszak, Founder
    Sorry Works!
    PO Box 531
    Glen Carbon, IL 62034
    618-559-8168
    [email protected]

    • Ron Daniels says:

      Doug, thanks for your comments. I do think something needs to be done so that those who have received substandard care can be compensated.

      However, I think this bill will ultimately drive medical costs up. I certainly agree, however, that it’s worth giving a fair hearing. All legislation should be vetted before being signed into law. We’ve done a poor job of that lately, on a national and state level. I hope that our legislature will give this bill the attention it deserves.

  5. HelmetLaw says:

    In order to file a complaint for a medical malpractice lawsuit, the attorney must simultaneously submit an affidavit from a doctor saying that the doctor at issue committed malpractice. This is seriously messed up – the affidavit creates a barrier to entry to filing a complaint that is NOT the norm for other states. To put this into context, imagine your utility company gives you substandard service, and the only way you could get redress for your grievances is to have another utility sign a legal document that your utility was blatantly and unambiguously wrong. Don’t forget that there’s only so many utilities. And this gets even worse for us Georgians (what’re you doing here, Illinois? You are drunk, go home) when one realizes that, unless you’re talking about suing a GP, the doctors in a particular specialty know each other. Or will soon. And they’ll know when one doctor is ratting out another for making mistakes. You see, what has happened in Georgia is that the doctor’s lobby has created a system wherein only the egregious mistakes are redressable.

    So that’s bad. And now Sen. Beach has proposed a system of government control of malpractice in the hands of doctors. And Mr. Daniels has pointed out the inherent, numerous flaws of this system. Trials, and the law, are a citizen’s defense against encroachment by the government. They are the citizen’s bull pulpit, because only in trials do you get to have your cause decided by your peers. In every other arena, your cause is decided by somebody with a personal stake in the outcome of your cause. So go on and hate on lawyers, especially trial lawyers, until you realize that trial lawyers are your best friends. It’s expensive because it’s important.

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