Florida Personal Injury Blog - Medical Malpractice

Prevention, Early Detection and Good Health

Rosalyn Sia Baker-Barnes — Thu, 19 Nov 2009 15:03:59 GMT

A new study released by the United States Preventive Services Task Force has women and doctors confused and torn over recent recommendations regarding what age a woman should receive annual mammograms.

For years, the American Cancer Society, physicians, and other government organizations, have recommended that women receive annual mammograms at the age of 40 to prevent breast cancer, which seemingly aided in the early detection of the disease. Now, the task force, a government panel of doctors and scientists, are recommending that most women wait until age 50 to get mammograms and then have one every two years. The study states that beginning to test for breast cancer at age 40 saves few lives and can even harm patients. They point out that if a mammogram gives a false positive, it can lead to anxiety, unnecessary additional testing and biopsies, and exposure to radiation. Mammograms typically produce false-positives in about 10 percent of cases.

Opponents disagree and feel that these new guidelines will only confuse and scare women from seeking the recommended testing. The American Cancer Society posted a statement on its website stating that it would continue to recommend annual screening for all women, beginning at age 40. “It (the guideline) is very confusing and that’s one of the things we’re worried about is that women are already confused, scared, and worried about getting a mammogram because of what they may find out,” said American Cancer Society spokesperson Mary Kathryn Walker.

Breast cancer survivors are also angry about the new guidelines saying that if they didn’t receive mammograms in their 40’s, they wouldn’t be alive today. The American College of Radiology and other experts condemned the change saying the benefits of routine mammograms have been clearly demonstrated and continue to play a key role in reducing the number of mastectomies and deaths. Breast cancer is the most common cancer and the second leading cause of cancer deaths in American women.

The task force guidelines don’t apply to women at high risk for breast cancer, including those with genetic mutations that make them more susceptible to the disease.

Diana B. Petitti, vice chairman of the U.S. Preventive Services Task Force says “We’re not saying women shouldn’t get screened. But we are recommending against routine screening. There are important and serious negatives or harms that need to be considered carefully.”

The task force’s guidelines also recommend against teaching women to do regular self-exams, something that that American Cancer Society has been touting for years. The practice was so heavily promoted at one time that the organization distributed cards that could be hung in the shower demonstrating the circular motion women should use to feel for lumps. Recently, the American Cancer Society and other medical groups have backed off promoting breast self-exams because of scant evidence of their effectiveness, even before the new task force guidelines were revealed.

Insurance companies are claiming that coverage will not likely change because of the task force guidelines. In the past, the guidelines issued by the U.S. Preventive Services Task Force, has influenced the stance Medicare and many insurance companies take on healthcare coverage. Opponents of the new guidelines fear that the findings could spur insurers to deny coverage of annual mammograms and breast tests given to women under 50. “Screening isn’t perfect, but it’s the best thing we have and it works,” says Dr. Carol Lee, a spokesperson for the American College of Radiology. She also suggested that cutting health care costs may have played a role in the recent decision, but task force vice chairman Petitti said the task force does not consider cost or insurance in its review.

Whether or not you believe women’s health is again under fire, it is important to know your family medical history and routine visits to your doctor are your best tools against any type of disease, including cancer. The new task force guidelines are just that, guidelines. Mammograms, like all medical interventions, have risks and benefits. These new guidelines will hopefully help spur conversations and assist women in making the best decision for their personal circumstances.

Originally posted at InjuryBoard by Rosalyn Sia Baker-Barnes

Protect Yourself From Bad Doctors

Ed Normand — Sat, 14 Nov 2009 17:03:00 GMT

Did you know...

While the new health care bill is being debated in Washington, there is something individuals can do right now to ensure that they are receiving the best possible care. Most of the doctor malpractice in the country is committed repeatedly by just a small percentage of physicians. The Florida Department of Health publishes public profiles for every licensed medical doctor, osteopathic doctor, chiropractor, podiatrist, and advanced registered nurse practitioner practicing in the state. Each profile contains self-reported information about the medical practitioner that may help in selecting a doctor, or finding out more about the health professional that is currently treating you. The website also lists whether the practitioner carries medical malpractice insurance, and whether they have been involved in any medical malpractice litigation. For the website, go to: Medical Malpractice .

Originally posted at InjuryBoard by Ed Normand

Unemployed and Uninsured

Ed Normand — Tue, 03 Nov 2009 12:41:17 GMT

So far in 2009, almost 300,000 Floridians have lost their health insurance, along with their jobs. The link between health coverage and the rise in unemployment is important, because nearly two-thirds of people under the age of 65 get health coverage through their employment, or the employment of a spouse. Florida ranks third in the nation, among working age-adults, in the number of people who have lost their health insurance since January 2009, behind only California and Texas.

Several options are available to those who become unemployed, including COBRA, where you pay to extend current health coverage, but oftentimes individuals do not have the necessary financial means. However, the current trend of citing tort reform as a means to reduce health insurance costs are misplaced. During a time when more and more individuals are needing to purchase insurance on their own, it might be easy for some to point the finger at the alleged “evil” of medical malpractice lawsuits. Much has been proposed about the potential reduction in insurance costs if awards in medical malpractice cases were capped, or eliminated altogether. What individuals don’t realize is that in actuality, little to no savings in premiums have resulted from current attempts at tort reform. In fact, insurance companies in Florida like Aetna, have stated that tort reform has produced little or no savings in insurance rates in Florida, due in part to lawsuits only making up a tiny fraction of the overall healthcare spending in the United States each year. Reducing costs needs to come from within the system, starting with reducing the myriad of preventable medical errors committed by the small percentage of bad apple physicians each year.

Originally posted at InjuryBoard by Ed Normand

Americans should look at Insurance Reform Before Espousing Tort Reform

Gabrielle D'Alemberte — Wed, 21 Oct 2009 16:39:30 GMT

There is a lot of energy about the various Health Care Bills that are being prepared and proposed by Congress. One issue on lots of minds is tort reform. Some elected officials are for tort reform, but those are the same politicians that accept big checks from insurance companies, pharmaceutical companies and corporations who have a vested interest in "reform" (i.e. elimination of access to court by victims of medical negligence).

Sadly, the tort reformist politicians who have an agenda separate and apart from protecting their own constituencies, are propped up by Fox News and other "journalists". But the reporters are not being completely honest with the public. Either that or they simply don't do their homework and research the issue. Either option is irresponsible because the American public is actually buying into what is being reported. Now there is an entire group of tort reform supporters, which based on the information they believe to be accurate, are claiming tort reform is necessary in order to drastically reduce the cost of healthcare for Americans. “Enacting a typical set of proposals would reduce federal budget deficits by roughly $54 billion over the next 10 years,” wrote Congressional Budget Office Director Doug Elmendorf in his blog.

Others, like former Democratic Sen. Bill Bradley, have said that tort reform should be bundled with a healthcare package to attract Republican support for universal coverage. But while lowering costs may sound nice, it’s not reality. And in the case of Bradley, nobody wins with a pork-laden bill.

“Liability isn’t even the tail on the cost dog. It’s the hair on the end of the tail,” Tom Baker, a professor of law and health sciences at the University of Pennsylvania School of Law, told the New York Times in a recent interview.

Baker said medical malpractice tort costs in 2007 were $30.4 billion out of a more than a $2 trillion health care system, meaning litigation costs and malpractice insurance constituted about 1 to 1.5 percent of total medical costs. In fact, he argued that since there have been about the same number of claims today as 20 years ago, the cost of health care has doubled in that time frame, the number of medical encounters between doctors and patients has gone up and research shows a more or less constant rate of errors per hospitalizations, there actually is a declining rate of lawsuits relative to numbers of injuries.

But medical costs still have skyrocketed. Baker says to consider that the American population is aging, we’ve had expensive advances in technology, the US is a rich nation, and the richer you get, the more money you spend on health care, and compared to other countries, the US has heavy administrative costs from the private-insurance system.

And in some parts of the country, notably Florida, doctors aren’t even required to carry insurance. Interestingly, Florida doctors are doing some of the loudest complaining, but a considerable number of them,particularly ones who perform surgery, don't pay a single dollar in premiums. A state physician database showed that one in eight doctors statewide in Florida opt out of malpractice insurance under a state law that lets them go without coverage. The law says doctors can go uninsured if they post signs in their offices and promise to pay up to $250,000 per malpractice award, with a maximum of $750,000 per year.

This policy has negative consequences. First, the patient is left with little discourse in the case of legitimate medical malpractice. Second, the insurance companies raise premiums to make up for all the doctors who aren’t insured. According to the South Florida. More responsible reporting, such as the Sun-Sentinel, has disclosed that premiums since 2003 have gone down yearly by less than 10 percent as insurer profits climbed to an average of 20 percent in 2006.

Instead of focusing energy on tort reform, the focus would be better on reducing premiums and reforming insurance companies. And there is no doubt that uninsured doctors should not be allowed to practice. Period. Anywhere. Unless of course they will agree to submit that all acquisitions in their name, their wife's or husband's name, and the companies created as shell corporations are jointly and several liable for monies awarded by a jury in a negligence case.

In the cases where those doctors who are uninsured . That starts with helping insure doctors are compensated in a way they deem fair, which includes making premiums affordable. And should someone be injured through negligence, and there not be either assets or insurance to recover from, unless that person is independently wealthy, guess who pays for the ongoing needs and medical care they require going forward? That's right- the taxpayers.

Medical malpractice litigation isn’t the problem; it’s time to focus on some solutions.

Originally posted at InjuryBoard by Gabrielle D'Alemberte

Making Your Hospital Visit Safer

Sandy Grinnell — Thu, 15 Oct 2009 10:55:04 GMT

Sometimes the first step to recovery is protecting yourself during your hospital visit. Medical and human error during standard daily care and medical procedures are very real dangers and patients sometimes must serve as their own advocate during their stay in the hospital. Many times, patients are faced with challenges and needs that the hospital staff is either not responding to, or simply not noticing, and find themselves too weak to gather up the energy to request assistance. The Institute of Medicine reported that hospitalized patients should expect at least one medical error a day. In any given year up to ninety thousand patients may die from medical errors. There are certain key steps that you should take before and during your stay in a hospital to ensure that you do not encounter these errors.

First, before your surgery or procedure, research the operation and the hospital’s history on performing such operations. Some hospitals perform certain operations more frequently than others, and patient outcomes are more favorable in hospitals that are more experienced in these procedures.

Second, never remain alone for your stay. Having a trusted friend or family member to watch over you and to keep track of what the doctors and nurses are doing may help in catching a possibly deadly mistake. Also, many patients in hospitals are too weak or unable to request certain services so having someone to help you request attention or care may ensure safety during your stay.

Next, always request that your doctor or nurse washes their hands before coming into contact with you or your belongings. Washing hands is critical for stopping the spread of diseases and infections, and asking your doctor or nurse to wash their hands will limit your contact with outside bacteria and viruses.

Finally, whenever you are administered medication or given any treatment, make sure it is noted on your chart and your caregiver checks your hospital wristband and medical records to double check on the safety of the treatment. Patient mix ups in hospitals are more common than one would imagine.

Although hospitals should be a place of healing and treatment, mistakes do occur. Human error is a problem that every industry faces, and when you are dealing with human lives, taking every possible precaution is vital for the health and safety of not only yourself, but those you love. If anyone you know has been hurt or injured due to hospital error, please seek representation immediately. Be in control of your own health.

Originally posted at InjuryBoard by Sandy Grinnell

Tort Reform Lies and Illusions

John Hopkins — Tue, 13 Oct 2009 12:08:28 GMT

Is it okay with you if I limit your right to voice your opinion about the government? Good with you if you can not own a gun? You probably would appreciate me censoring what gets published in newspapers or talked about on your nightly news, right? You are happy to allow government to control what church you can or cannot attend?

You, of course, will not allow these rights to be taken away, but you will allow the right to trial by jury to be taken away, with little more than a thought, when lobbyists tell you (through your legislators) that tort reform is a good thing. You are happy to give up this fundamental right when told by the insurance lobby that tort reform is the only way to “save” the medical profession.

What these lobbyists and their political cronies really mean is that tort reform translates to higher insurance profits, with no down side for the insurance industry. It means lower exposure to the business of insurance, which means more money in insurance company profit margins.

When tort reform hearings were held in Florida, insurance company executives actually testified that tort reform would not lower malpractice insurance premiums for doctors. The same executives testified that frivolous lawsuits in medical negligence cases were extremely rare and did little to add to costs for malpractice insurance. They said that the very tort reform proposed (ultimately passed) would have little or no affect on availability of malpractice coverage or the cost of malpractice coverage.

There are no objective studies that correlate tort reform with lowering of so called defensive medicine; demonstrating that a tort crisis even exists; or showing any benefit to tort reform except to insurance companies.

See what the insurance companies and tort reform advocates have said in the past. They claim to be experts and none of them have the temerity to claim that tort reform works:

Representative of the Ohio Health Insurance Company testifying before the Wyoming Legislature: Tort reform will not lower rates. (Casper Star Tribune, May 4, 2003)

Medical Assurance Co. of Mississippi: “[T]ort reform does not provide a magical ‘silver-bullet’ that will immediately affect medical malpractice insurance rates.” (Medical Assurance Co. of Mississippi)

Patricia Costante, chairman and CEO of the MIIX Group of Insurance Companies: When asked by New Jersey Assemblyman Paul D’Amato whether, if caps are enacted in New Jersey, her insurance company will not raise premiums and will, in fact, reduce them, she said, “No, we’re not telling you that.” (Meeting of the New Jersey Assembly Joint Committee of Banking)

American Insurance Association: “[T]he insurance industry never promised that tort reform would achieve specific premium savings.”

Sherman Joyce, President, American Tort Reform Association: “We wouldn’t tell you or anyone that the reason to pass tort reform would be to reduce insurance rates.”

Victor Schwartz, General Counsel, American Tort Reform Association: “[M]any tort reform advocates do not contend that restricting litigation will lower insurance rates, and ‘I’ve never said that in 30 years.’”

Dick Marquardt, Washington Insurance Commissioner: It was “impossible to attribute stable insurance rates to tort-law changes or the damages cap,” since rates also improved in states that did not pass tort reform.

Chairman of Great American West Insurance Company: “[T]ort reform ‘will not eliminate the market dynamics that lead to insurance cycles,’ and ‘we must not over-promise—or even imply—that insurance cycles will end when civil justice reform begins.’

Connecticut State Lawmaker: “[T]he insurance industry now says [tort reform] measures will have no effect on insurance rates. We have been disappointed by the response of the insurance industry. The reforms we passed should have led to rate reductions because we made it more difficult to recover, or set limits on recovery. But this hasn’t happened.”

State Farm Insurance Company (Kansas): “[W]e believe the effect of tort reform on our book of business would be small. … [T]he loss savings resulting from the non-economic cap will not exceed 1% of our total indemnity losses.… [I]n our sample of liability claims, no claim was found that would have been affected by the joint and several restriction.” And any savings due to alternative payment methods would be “negligible.” (Letter from Robert J. Nagel, Assistant Vice President, State Filings Division, to Ray Rather, Kansas Insurance Department)

Aetna Casualty and Surety Co. (Florida): After Florida enacted what Aetna Casualty and Surety Co. characterized as "full-fledged tort reform," including a $450,000 cap on non-economic damages, Aetna did a study of cases it had recently closed and concluded that Florida’s tort reforms would not effect Aetna’s rates. Aetna explained that “the review of the actual data submitted on these cases indicated no reduction of cost.”

St. Paul (Florida): St. Paul’s found “a total effect of about 1% savings” from Florida’s 1986 tort reforms, but that even this 1% might be inflated. St. Paul concluded that “the noneconomic cap of $450,000, joint and several liability on the noneconomic damages, and mandatory structured settlements on losses above $250,000 will produce little or no savings to the tort system as it pertains to medical malpractice.”

General Accident Insurance Company (Washington State): “Given that liability losses constitute such a low proportion of business owners’ losses, GA feels it is prudent to continue with its original proposal of a 10 percent increase in base rates.” (The Seattle Times, July 1, 1986. The Times wrote that “the highly touted tort-reform legislation enacted by the Legislature early this year is not lowering liability-insurance rates as promised, according to preliminary filings made with the state insurance commissioner.”)

Allstate Insurance Company (Washington State) In asking for a 22% rate increase following passage of tort reform in Washington State, including a cap on all damage awards, the company said, “our proposed rate would not be measurably affected by the tort reform legislation.” (The Seattle Times, July 1, 1986)

Originally posted at InjuryBoard by John Hopkins

Medical Malpractice and Money

Ed Normand — Wed, 07 Oct 2009 09:00:00 GMT

The public perception that medical malpractice cases regularly result in large awards of money is an unrealistic one. Even if a plaintiff prevails at trial, there is no guarantee that any money will be forthcoming. A study from the Department of Justice, based on data from 43,000 cases, reveals that for seven states between 2000 and 2004 (Florida, Illinois, Maine, Massachusetts, Missouri, Nevada, and Texas), most medical malpractice cases that were decided for the plaintiff ended with no money going to the plaintiff.

For cases in which a plaintiff prevails and is awarded compensation, many states are now capping recovery at a maximum of $250,000. The amount an attorney can recover from that statutory maximum is now also restricted. In Florida, attorneys’ fees in such medical malpractice cases, unless agreed to otherwise, are limited to 30% of the first $250,000 (exclusive of reasonable and customary costs), and 10% of all damages in excess of $250,000 (exclusive of reasonable and customary costs). If an attorney seeks more than the statutory limit for fees, the attorney is regulated by the Rules Regulating the Florida Bar. The rules limit attorneys’ fees to 33 1/3% to 40% for any recovery up to $1 million; 30% for any recovery between $1 million and 2 million; or 20% of any portion of the recovery exceeding $2 million.

Average costs of preparing for a medical malpractice case can now average $50,000 to well over $100,000 and require years to prevail at trial. Plaintiffs are often left permanently disabled as a result of the incompetence or negligence of doctors and/or hospitals, and deserve to be adequately compensated for their suffering. By capping recovery in medical malpractice cases, states are not only affecting the compensation that plaintiffs receive, but also the opportunity for plaintiffs to get their day in court. Because preparation costs for medical malpractice cases are getting so high, bringing a case to trial presents a serious financial risk, as attorneys might not be able to recover their costs even with a monetary judgment. Statutory caps on medical malpractice verdicts for pain and suffering hurt those most deserving - mothers, children, and the elderly. Big wigs still get 100% compensation for the loss of earnings, so the corporate executive hurt by malpractice will still be compensated for all his lost earnings but the child and the mother won’t. Are children less worthy?

Originally posted at InjuryBoard by Ed Normand

A Recent Case with Ed Normand (names have been changed)

Ed Normand — Tue, 06 Oct 2009 09:00:00 GMT

I recently resolved a medical malpractice case that raises serious concerns surrounding the granting of privileges to doctors by hospitals. Mary Smith went to a local hospital because she broke her right hip. She was operated on by Dr. Jones. When Mary woke up from surgery, her right leg below her knee was cold and discolored. The hip was dislocated and fractured during surgery, and it turns out that Dr. Jones damaged an artery in her leg during the surgery. Tests were ordered by the hospital to find out why Mary’s leg was cold and discolored, but those tests were never completed. In fact, the hospital did the wrong test! Dr. Jones operated again two more times, and another doctor tried to repair the damaged artery in Mary’s right leg. But by that point, it was too late - the lack of blood to Mary’s right leg lasted too long - her leg had to be amputated.

What Mary didn’t know before going into surgery the first time was that her surgeon, Dr. Jones, had suffered a debilitating stroke several years prior. Dr. Jones was left with permanent impairments both physically and psychologically. It turns out that there were severe restrictions on Dr. Jones’ medical license, but these restrictions were ignored by both Dr. Jones and the hospital where Mary went. According to the restrictions, Dr. Jones was permitted to practice medicine, but he wasn’t permitted to operate past 12 noon, wasn’t permitted to be the doctor on call in the emergency room and had other restrictions. All of these restrictions were violated by Dr. Jones, and the hospital knew of these restrictions and still permitted Dr. Jones to practice medicine in their facility. Dr. Jones also had psychological problems from the stroke, notably negative personality changes. After having her leg amputated, Dr. Jones went into Mary’s hospital room right after the surgery for a post-operative visit. During that first post-operative visit, Dr. Jones decided to tell her a joke: "Do you know what they call a woman with one leg in Ireland? Eileen. Do you know what they call a woman with one leg in Japan? Irene." I kid you not!

Because of Mary’s age, she is unable to get a prosthetic leg, and is now bound to a wheelchair for the rest of her life. How a surgeon who suffered a stroke and had numerous restrictions on his medical license could still be permitted by a hospital to operate unsupervised is troubling. What is also troubling is that no one at the hospital told Mary about her doctor’s condition. One of the principles of the American healthcare system is that we have choice. We can chose what hospital we go to, what doctor to see, and what treatment to get done. Unfortunately for Mary, the hospital granted Dr. Jones surgical privileges, and failed to inform her about Dr. Jones’ condition, or properly supervise a surgeon with such restrictions on his license. Mary was unable to make an informed decision, much to her detriment. If Mary knew that Dr. Jones had suffered a stroke and had limitations on his medical license that restricted when and how often he performed surgery, she would have chosen someone else to perform her surgery. Because Mary was kept in the dark about Dr. Jones’ medical past, what would have been a routine operation resulted in a permanent disability and the loss of her right leg. Hospitals need to be more rigorous in the granting of privileges to doctors, and thoroughly investigate those healthcare professionals permitted to work in its facilities.

Originally posted at InjuryBoard by Ed Normand

Medical Malpractice Reform: The True Numbers?

Ed Normand — Mon, 05 Oct 2009 09:00:00 GMT

A recent article in TIME magazine about malpractice reform, available at: http://www.time.com/time/magazine/article/0,9171,1924501,00.html, caught my eye for several reasons. First, the article compares the varying levels of malpractice insurance costs for doctors throughout the nation. However, the article also contains incorrect facts about awards for noneconomic damages - money awarded for pain and suffering. Of note, the article, a Spotlight into Malpractice Reform, references that an obstetrician in Florida could pay five times as much as a colleague in Texas pays in malpractice insurance premiums. The reason behind this discrepancy? The author of the article blames it on the fact that "awards [for pain and suffering] are unlimited[]" in Florida, unlike Texas, where such damages are capped.

What the author of the article fails to realize is that this is wrong - awards in Florida for pain and suffering are capped. Beginning in 1988, the Florida legislature enacted NICA - the Neurological Injury Compensation Act, which was enacted as a way to compensate children who fit certain criteria. However, what the Act essentially did was limit the amount a child could recover from a doctor for a birth related neurological injury (most Ob/Gyn cases fall into this category), even if the doctor committed medical malpractice in the treatment of the child. Under NICA, a child gets $100,000 for a lifetime of pain and suffering. If the child dies, the death benefit is limited to $10,000, but if there is clear and convincing evidence of bad faith or malicious disregard of human rights, safety, or property, then a parent would not be prevented from suing the doctor. This is an almost impossible standard!

Florida has also placed a cap on medical malpractice awards in general, limiting noneconomic damages such as pain and suffering to $500,000 against medical practitioners such as doctors and nurses. For medical negligence that results in a permanent vegetative state or death, Florida has capped awards at $1,000,000. There are also separate caps related to hospitals and nonpractitioners. With respect to the medical negligence of nonpractitioners, Florida has capped noneconomic damages at $750,000 per patient, and where such negligence results in a permanent vegetative state or death, the maximum is set at $1,500,000. There are also separate caps in place for emergency services and care. For such services, recovery against medical practitioners are capped at $150,000 per patient, up to $300,000 recoverable by all patients from all such practitioners. Awards against nonpractitioner defendants providing emergency services is capped at $750,000 per claimant, up to $1,500,000 recoverable by all patients from all such practitioners. Florida statutes state these figures as the maximum amount a patient can receive, even if there are multiple negligent practitioners or nonpractitioners. For public health care providers, like the local county hospitals, there is also a more restrictive cap of $100,000 for all damages.

What needs to be the focus of health care in the United States is the reduction of costs. Part of the argument for capping malpractice awards has been the reduction of malpractice insurance premiums for doctors. Damages caps have been in place in Florida for quite some time, and malpractice insurance premiums have not been significantly reduced. Perhaps more attention should be focused on what else can be done to reduce costs, as the capping of malpractice awards is still not reducing health care costs in Florida and around the country. The real culprit is that there are bad doctors that commit multiple acts of malpractice but continue to practice. If the Department of Health and the doctors would police their own, rates would go down.

Originally posted at InjuryBoard by Ed Normand

Why Link Medical Malpractice Reform With Healthcare Reform? Does not make sense.

Gabrielle D'Alemberte — Thu, 01 Oct 2009 09:20:48 GMT

For the past few months, the one public policy that has been on every American's mind is health care reform. It seems like everyone has their own, unique opinion on the state of our country's health care system and how to best reform it, if reform is even necessary.

If you even begin to do some research on the subject, though, you find that there are a lot of red herrings in the health care debate, and it is very easy to be swayed by biased information that serves a particular interest group.

Take, for instance, the argument for litigation reform. Many doctors and insurance companies claim that the rising health care costs in America are caused by rampant medical malpractice claims by people who want to "get rich quick" off of the medical system, and by the subsequent need for doctors to perform "defensive medicine", wherein they perform unnecessary tests to cover themselves in case their patient decides to sue them for negligence. If we were to believe the people who support caps on awards in malpractice cases, all we would have to do to ensure quality, affordable universal health care is stop rewarding the countless individuals who rob the medical system of millions of dollars in rewards for petty injuries. Stories like the McDonald's customer who spilled coffee on her lap and supposedly won rewards of $2.7 million do not help the case that malpractice reform is a red herring in the health care debate. (It is worth knowing that the case of Liebeck vs. McDonald's is a bit more complicated than the story known by most people, and the woman's rewards were not as ridiculous as many have made them seem and in fact she ended up with very little money despite that the McDonald's store that she sued had several earlier similar instances of burning coffee which had caused injuries to customers).

So, is medical malpractice reform the solution to our health care problem? Not according to several prominent economists. Take, for instance, the opinion of Amitabh Chandra, a well-respected Harvard economist:

“Medical malpractice dollars are a red herring,” Chandra said in a telephone interview. “No serious economist thinks that saving money in med mal is the way to improve productivity in the system. There’s so many other sources of inefficiency.”

The results of a study by the U.S. Department of Health and Human Services show that medical malpractice cases make up only 2% of the country's health care spending, and "defensive medicine" only accounts for 5-9%. These numbers hardly reflect a significant source of spending in our health care system.

Proving this point even further, the Congressional Budget Office has concluded that even if states were to lower malpractice costs by 25-30%, health care costs would only be lowered about 0.4%, and there would be an equally negligible effect on health care insurance premiums.

The real cost of health care is outlined very clearly on the Henry J. Kaiser Foundation website, which finds the causes of rising health care to be:

Prescription drugs and technology – Spending on prescription drugs and new medical technologies has been cited as the primary contributor to the increase in overall health spending. Some analysts state that the availability of more expensive, state-of-the-art drugs and technological services fuels health care spending not only because the development costs of these products must be recouped by industry but also because they generate consumer demand for more intense, costly services even if they are not necessarily cost-effective.

Chronic disease – The nature of health care in the U.S. has changed dramatically over the past century with longer life spans and greater prevalence of chronic illnesses. This has placed tremendous demands on the health care system, particularly an increased need for treatment of ongoing illnesses and long-term care services such as nursing homes; it is estimated that health care costs for chronic disease treatment account for over 75% of national health expenditures.

Aging of the population – Health expenses rise with age and as the baby boomers are now in their middle years, some say that caring for this growing population has raised costs. This trend will continue as the baby boomers will begin qualifying for Medicare in 2011 and many of the costs are shifted to the public sector. However, experts agree that aging of the population contributes minimally to the high growth rate of health care spending.

Administrative costs – It is estimated that at least 7% of health care expenditures are for administrative costs (e.g. marketing, billing) and this portion is much lower in the Medicare program (<2%), which is operated by the federal government. Some argue that the mixed public-private system creates overhead costs and large profits that are fueling health care spending.

The facts are clear: medical malpractice claims are not a significant contributor to rising health care costs, and capping rewards in malpractice cases would not make health care more affordable. They make up less than 1% of total health care costs. 1%! If anything, capping rewards for malpractice cases is dangerous, because it means that doctors are held less accountable for their mistakes, and that patients who need compensation for wrongful pain, injury, or death will not be able to receive the justice they are due. It also means that the states supplement the medical care and treatment of the terribly injured person who cannot afford their ongoing care. What caps mean s we pay for doctor's negligence while insurance companies collecting premiums are given a pass. How does this make sense to anyone? If it doesn't make sense to you, I would hope you stay away from linking tort reform with any discussion on health care reform.

Originally posted at InjuryBoard by Gabrielle D'Alemberte