Injuryboard Commentary - Health Care

AAJ Goes Underground to Debunk Rumors About Tort Reform

David Mittleman — Fri, 04 Dec 2009 10:00:00 GMT

The American Association for Justice is getting an important message across by advertising in Union Station throughout December. Blanketing the metro station’s walls, the message reads “98,000 patients may die annually from medical errors…That’s like 737s crashing every day for a whole year…Tort law won’t fix health care…Tell Congress to put patients first.” The message is meant to counter Republican attacks against healthcare reform legislation: Republicans and health insurance companies have rallied for putting limits on medical liability lawsuit awards, claiming that tort reform is the answer to the escalating costs of private health care insurance.

Union Station is one of most highly-trafficked areas for commuters travelling to our nation’s capital. The American Association for Justice specifically wants to remind Senate staffers that many people die of medical errors, and will be left with no recourse if Republicans have their way with tort reform.

As the American Association for Justice so aptly states, “health care reform is about making sure that every American has access to quality, low-cost healthcare, not about limiting the rights of innocent patients harmed by medical negligence.” Despite the opposition’s arguments, tort reform would do very little in reducing current health care costs. In fact:

· Medical malpractice is a tiny percentage of health care costs – less than one and a half percent of overall spending – according to the Government Accountability Office (GAO) and Congressional Budget Office (CBO). Restricting patients’ legal rights would have little to no effect on premiums or health care costs.

· Medical malpractice suits are less than one percent of the entire civil caseload, and have been declining for nearly a decade.

· The GAO and CBO have found no evidence of so-called “defensive medicine,” instead determining that doctors run additional tests to generate more income or help diagnose patients.

Originally posted at InjuryBoard by David Mittleman

No Preventative Medicine: Wellness as a Crisis without a New Health Care Bill

Christy Thompson — Tue, 01 Dec 2009 17:53:27 GMT

The main dispute about health care reform is that the cost is just too much for the American taxpayers, state or federal governments to afford. Indeed, there is no arguing that the cost to implement a quality health care system in this country from the ground up will come at a sizeable cost. But everything great in US history has come at a high cost: good public transportation (where it actually exists), highways that span the nation, railroads, ideals of public education, taxpayer supported law enforcement, mail service, armed forces and arms programs. So if we can afford the price tags associated with these -- in many cases whether we agree with them or not -- why do we as taxpayers not have the right to pay for something that will keep us well?

"Crisis health care" such as ONLY seeking medical attention after a severe accident or when extremely ill leads to worsening health conditions, more death, and more costs are incurred by taxpayers. Unpaid visits to the emergency room for Americans without insurance will eventually cost exponentially more than a new health care plan.

Seeing a doctor only when disease is consuming someone's body or when a patient has a railroad spike piercing his cerebrum is a careless use of the most high tech medical machine in the world. The message of prevention is lost on the American public because they have been without it for so long that entire generations don't even really know what it means to have it and how much it could better their lives.

Supporting prevention health care rather than crisis health care is the only sure bet for the long run of a successful American health care system. Preventative medicine means doctors who take the time to inform patients and health care programs that promote healthy living and wellness as a way of being rather than letting the public depend on emergency rooms that offer only a temporary fix; it's like patching a flat tire over and over again. Eventually there will be one last blow out that just isn't fixable. This is an apt metaphor for both human beings in the current health care system and the current system itself.

Originally posted at InjuryBoard by Christy Thompson

Straight Talk on Tort Reform from Texas

Bret Hanna — Mon, 23 Nov 2009 23:20:37 GMT

Texas passed sweeping tort reform legislation in 2003 that, to a great extent, eliminated medical malpractice cases in the Lone Star State. Jennifer Bard is the Alvin R. Allison Professor of Law and director of the Health Law Program at Texas Tech University School of Law and an adjunct associate professor in the Department of Psychiatry, Texas Tech University School of Medicine, and she incorporates the Texas experience with tort reform into her analysis which concludes that such measures do not reduce health care costs. Here is her piece which appeared Saturday in the Houston Chronicle:

It's not as rare as you think for President Barack Obama and Gov. Sarah Palin to be in complete agreement on an issue of national importance.

In August, she wrote on her Facebook page that “we cannot have health care reform without litigation reform.” Speaking to the American Association of family physicians a few weeks later, President Obama said, “I have talked to enough doctors to know that defensive medicine may be contributing to unnecessary costs. ... So I am proposing that we move forward on a range of ideas about how to put patient safety first and let doctors focus on practicing medicine.” Both of them are wrong. There is no evidence to suggest that limiting the rights of individuals to bring lawsuits will either lower the cost of health care or increase its quality. In fact, were this true, Texas would have the cheapest and best health care in the nation. The provisions of the tort reform legislation passed in 2003 have essentially eliminated medical malpractice suits. Indeed, things are so bad the lawyers for the insurance companies are complaining about the loss of business.

The only evidence we have that defensive medicine, defined as doing extra tests or surgery based on fear of litigation, drives up costs is from the least reliable source possible — the doctors themselves. Doctors' objections to law suits aren't financial — they are philosophical. Doctors are on the whole good people who devote their lives to helping others. Yet somewhere in their training they acquire the idea that this puts them beyond the constraints and hassles faced by every other professional. Lawsuits are time-consuming and embarrassing. They require explaining one's actions to a group of nondoctors, something doctors feel inappropriate. What doctors want isn't reform, it is an exemption. And that's just not how we do things in the United States.

As in all other cases involving a professional, every medical malpractice case depends on another physician's testimony that the offending doctor caused the patient's harm by acting below the standard of a reasonable physician in similar circumstances. To say that a jury isn't qualified to choose the testimony of one expert witness over another in a medical malpractice case is to say they shouldn't be allowed to do so in cases involving exploding tires because they are not automobile engineers. Unless Obama and Palin are interested in trading in our legal system for one with less citizen input — say one more like China's — then not only isn't litigation reform a necessary part of health care reform, it is no part of health care reform.

But don't throw out the baby with the bath water. Perhaps doctors are practicing defensive medicine, but that doesn't mean litigation reform will change their habits. First, it is hard to attribute overtesting to fear of litigation when the current payment system financially rewards doctors and hospitals for the number of tests they order and procedures they run, rather than on the time they spend talking to the patient to find out what's wrong. Second, it is entirely possible that those interested in selling them malpractice insurance have greatly inflated the risk. After all, given the relative rareness with which medical malpractice suits are brought, fear of litigation should no more be motivating a doctor's decisions than fear of alien abduction.

No one has ever suggested that civil litigation can directly reduce medical error. Reducing infection rates by adopting uniform protocols for hand-washing and instrument sterilization is not the same as pressuring a company to withdraw a defective product from the market. But our system of civil justice, as outlined in the United States Constitution, is not to blame for health costs or medical malpractice. Health reform can take place without litigation reform — both systems may be broken but they are not dependent on each other.

So perhaps if Obama and Palin really want to lower the cost of health care and improve its quality, they should be listening to economists and safety experts rather than either doctors or lawyers.

This analysis is spot on and from someone who does not appear to have "skin the game." Yes she is a lawyer, but not one that makes her living representing those injured by medical malpractice or working for the insurance companies that hire lawyers to defend doctors when claims are pursued against them for malpractice. We should consider her analysis in the objective light in which it is presented.

Originally posted at InjuryBoard by Bret Hanna

Defensive Medicine: There Is Someone On The Defense All Right

Mike Bryant — Sat, 21 Nov 2009 17:07:00 GMT

The conservative blogs are loaded with talk of tort reform. We here at the Injuryboard continue to write about it. Guess the claim that no one is talking about it, is not only false, but intentionally misleading. It's interesting, how many of these posts get a comment with a link to the town hall site, which is claimed to have all of the answers. I spent some time looking at the link and it really does defy logic.

There is a section on defensive medicine and the very next section is entitled: "There Is No Proof That Threats of Litigation Deters Injuries" . What?????????????????? The reality is that while they use some facts, they stretch those facts and push frivolous arguments to come to a conclusion that fits for them. Even their damages charts distort the numbers to include extra fees that I would guess is the defensive medicine that actually the plaintiff was injured from. I would expect the executive compensation or medical charges costs includes even less for the injured consumer.

If you still have questions spend a little time with the American Association for Justices paper on the issue of the defensive medicine claim.

Ask the tough questions:

What tests are doctors doing that are actually not needed?

Have they ever found cancer or other medical life threatening issues with those tests?

Who got the money for those tests?

Why are so many people still dying in American hospitals?

Would more tests actually reduce the number of claims and keep more consumers alive?

My guess is that anyone claiming the existence of these tests really won't want to answer these questions. Mainly, because it simply doesn't happen and if it does they are involved in FRAUD. But, let's keep talking about it.

Originally posted at InjuryBoard by Mike Bryant

Health Care By The Numbers

Mike Bryant — Sat, 21 Nov 2009 12:58:00 GMT

The Congressional Budget Office released a report this past month that found: wait for it, that if we had tort reform money will be saved. Shocking, if you stop making the negligent and the grossly negligent pay for the damage they do, they get to keep their money. Those reports don't surprise me , nor do they scare me as a trial lawyer. Because, the question keeps going back to: saves money for whom?

The only way you get savings from the system is at best indirect. That the Medical Malpractice Insurance companies will do something that they have in the past been reluctant to do, which is lower premiums, and as a result, those savings will be passed on to the health Insurance companies, who will then pass those savings onto the consumers. The other potential savings will be that all of these doctors who are prescribing unnecessary and fraudulent tests will stop doing this and there will be savings there. This is a lot of very questionable gate keepers who we are expecting to do the right thing for others and not just for themselves.

But let's look at the CBO's numbers. Surprise, they are exactly what trial lawyers have been saying; one half of one percent of the whole system. Yes, this is the shocking number that some Republicans are claiming can be used to fix the whole medical reform mess. Now, I'll admit that 11 billion dollars is a lot of money, but what does it compare to?

There is the report from Washington University, which found that in 2007 there was $2.7 trillion (yes that's a trillion) spent on health care overall. So to start with, we are really talking about numbers that need to be compared, and not just blow horned by town meeting paid infiltrators.

The same report found that there is also $68 billion that is lost in fraud. That number works out to the fraud being 80% by the medical providers ( the ones that we want to give the savings back), 10% by consumers, and balance by others such as the insurance companies themselves.

Let's look at the Insurance numbers as the American Association for Justice did recently,they found:

Today, while premiums and health care costs skyrocket, malpractice insurers have average profits higher than 99 percent of Fortune 500 companies.

The key findings of the report, which analyzes the annual financial statements of the 10 largest U.S. medical malpractice insurers, include:

The average profit of these insurance companies is higher than 99 percent of all Fortune 500 companies and 35 times higher than the Fortune 500 average for the same time period.

Malpractice insurers have seen their profit margins range from 5.9 percent to 74.8 percent, with an average of 31.2 percent.

Medical malpractice insurers have underestimated profits and overestimated losses, creating overblown insurance “crises” to garner support for limiting patients’ legal rights. Then years later after the “crises” abated, revised filings show the companies were never in the financial peril they claimed.

After overestimating losses, insurers have since reported that losses over the last five years have been approximately 13.5 percent lower than initially reported.

By overestimating losses, companies have underestimated profits. Insurers averaged about 5.1 percent higher profits last year and 12.4 percent higher profits two years ago; these levels of profits will likely rise as upward revisions are made.

Medical negligence laws were passed under false pretenses. Overblown reported losses were used by the insurance industry to justify new measures restricting the rights of those injured by medical negligence.

Yep, there is gobs of money being made, and I would bet they are funneling right into those U S Chamber ads that are calling for tort reform and fighting against a system they just love to gouge.

There are far better ways to fix this system and to pay for it without changes that deny people their constitutional protections.

Originally posted at InjuryBoard by Mike Bryant

The Attacks On The Health Care Plan: Looks Like They Were Planned Out

Mike Bryant — Sat, 21 Nov 2009 09:48:58 GMT

Are you torn with all of the health care debates? What is being talked about and what isn't? Who is behind what and what do the leaders of our country really want to do? Who has bought off who and why is anyone saying that they would rather keep things the way they are?

I've talked to enough people about this issue to know that many people are confused about why this is such a battle. Why the plan isn't just to sit down and to work something out and get a plan put together. It's been interesting to discuss with people the role that trial lawyers are playing in the issue and also the roles of the insurance companies. I, like many of the people here at the Injuryboard, have been out front talking about the issues every chance we get.

What was illuminating was to run across the game plan of the opposition to any change. Rolling Stone recently uncovered this interesting memo:

The 10 Rules For The Stopping Of The "WASHINGTON TAKEOVER” Of Health care

(1) Humanize your approach. Abandon and exile ALL references to the “health care system.” From now on, health care is about people. Before you speak, think of the three components of tone that matter most: Individualize. Personalize. Humanize.

(2) Acknowledge the “crisis” or suffer the consequences. If you say there is no health care crisis, you give your listener permission to ignore everything else you say. It is a credibility killer for most Americans. A better approach is to define the crisis in your terms. “If you’re one of the millions who can’t afford health care, it is a crisis.” Better yet, “If some bureaucrat puts himself between you and your doctor, denying you exactly what you need, that’s a crisis.” And the best: “If you have to wait weeks for tests and months for treatment, that’s a health care crisis.”

(3) “Time” is the government health care killer. As Mick Jagger once sang, “Time is on Your Side.” Nothing else turns people against the government takeover of health care than the realistic expectation that it will result in delayed and potentially even denied treatment, procedures and/or medications. “Waiting to buy a car or even a house won’t kill you. But waiting for the health care you need – could. Delayed care is denied care.”

(4) The arguments against the Democrats’ health care plan must center around “politicians,” “bureaucrats,” and “Washington” … not the free market, tax incentives, or competition. Stop talking economic theory and start personalizing the impact of a government takeover of health care. They don’t want to hear that you’re opposed to government health care because it’s too expensive (any help from the government to lower costs will be embraced) or because it’s anti-competitive (they don’t know about or care about current limits to competition). But they are deathly afraid that a government takeover will lower their quality of care – so they are extremely receptive to the anti-Washington approach. It’s not an economic issue. It’s a bureaucratic issue.

(5) The health care denial horror stories from Canada & Co. do resonate, but you have to humanize them. You’ll notice we recommend the phrase “government takeover” rather than “government run” or “government controlled” It’s because too many politician say “we don’t want a government run health care system like Canada or Great Britain” without explaining those consequences. There is a better approach. “In countries with government run health care, politicians make YOUR health care decisions.THEY decide if you’ll get the procedure you need, or if you are disqualified because the treatment is too expensive or because you are too old. We can’t have that in America.”

(6) Health care quality = “getting the treatment you need, when you need it.” That is how Americans define quality, and so should you. Once again, focus on the importance of timeliness, but then add to it the specter of “denial.” Nothing will anger Americans more than the chance that they will be denied the health care they need for whatever reason. This is also important because it is an attribute of a government health care system that the Democrats CANNOT offer. So say it. “The plan put forward by the Democrats will deny people treatments they need and make them wait to get the treatments they are allowed to receive.”

(7) “One-size-does-NOT-fit-all.” The idea that a “committee of Washington bureaucrats” will establish the standard of care for all Americans and decide who gets what treatment based on how much it costs is anathema to Americans. Your approach? Call for the “protection of the personalized doctor-patient relationship.” It allows you to fight to protect and improve something good rather than only fighting to prevent something bad.

(8) WASTE, FRAUD, and ABUSE are your best targets for how to bring down costs. Make no mistake: the high cost of health care is still public enemy number one on this issue – and why so many Americans (including Republicans and conservatives) think the Democrats can handle health care better than the GOP. You can’t blame it on the lack of a private market; in case you missed it, capitalism isn’t exactly in vogue these days. But you can and should blame it on the waste, fraud, and abuse that is rampant in anything and everything the government controls.

(9) Americans will expect the government to look out for those who truly can’t afford health care. Here is the perfect sentence for addressing cost and the limited role for government that wins you allies rather than enemies: “A balanced, common sense approach that provides assistance to those who truly need it and keeps health care patient-centered rather than government-centered for everyone.”

(10) It’s not enough to just say what you’re against. You have to tell them what you’re for. It’s okay (and even necessary) for your campaign to center around why this health care plan is bad for America. But if you offer no vision for what’s better for America, you’ll be relegated to insignificance at best and labeled obstructionist at worst. What Americans are looking for in health care that your “solution” will provide is, in a word, more: “more access to more treatments and more doctors…with less interference from insurance companies and Washington politicians and special interests.”

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Reading this list, it seems clear that there are a group of people who don't want to get anything done. The people who ran the country for eight years and put profits in front of people and drove many parts of the economy into the dirt. It is made up of people who scream capitalism all the way to the bailout window. People who need to either come to the table and talk sense or get out of the way and let those who care about the consumer put together something that will truly make a difference.

Originally posted at InjuryBoard by Mike Bryant

Minnesota Association For Justice's Statement On AP Medical Malpractice Poll

Mike Bryant — Fri, 20 Nov 2009 21:56:09 GMT

ASSOCIATED PRESS POLL: MAKE IT MORE DIFFICULT TO SUE FOR MEDICAL ERROR

Minnesota legal group says the AP poll oversimplifies the malpractice debate and ignores accountability of insurers and providers.

(Minneapolis, MN)- The Minnesota Association for Justice (MNAJ) responded to results released today from an Associated Press (AP) poll which claims that a majority in the U.S. approve of stricter controls on individuals seeking accountability for medical malpractice as inaccurate, misleading and does little to enhance the debate on health care reform.

Michael A. Bryant an attorney practicing in Minnesota and the current President of the Minnesota Association for Justice said the poll, conducted by Stanford University and the Robert Wood Johnson Foundation for the AP, “asks the question in a way that the respondent is to believe that limits on malpractice accountability would substantially lower consumer insurance and health care costs in the United States. The problem is there is simply no evidence to support either outcome.”

Claims that restricting legal remedies for medical malpractice would lower insurance rates for physicians and hospitals is in direct conflict with data released last month by the Medical Liability Monitor, a respected annual publication of malpractice rates across the country. The Medical Liability Monitor’s research show that there is no relation to rates between states that cap damage awards and states that don’t—and in many cases states that limit damages actually have significantly higher premiums.
“This poll distracts from concrete facts that show that limiting our ability to be fully compensated for negligent sub-standard medical care will not result in insurance premiums reductions,” Bryant added.

Minnesota does not limit the amount of actual damages a jury can award, and in 2008, ranked 50th lowest in medical malpractice insurance premiums. Minnesota’s courts have seen a 40% decline in medical malpractice filings, while leading the nation in many health care outcome measures.

“As the debate on health care reform heats up in the coming days, policy makers must embrace a comprehensive set of solutions that focus on quality care, patient safety, accountability for providers and insurers, and protection of all patients in the health care system.” Bryant stated.

The Minnesota Association for Justice is a professional association of attorneys who represent Minnesotans wrongfully harmed or injured in person, property or human rights. MNAJ defends the rights guaranteed by the Constitutions and laws of the United States and Minnesota, foremost among them the right to a trial by jury and advocates for public policy to enhance consumer rights and protection.

Originally posted at InjuryBoard by Mike Bryant

Uninsured Trauma Patients Almost Twice as Likely to Die – We Need a System that Works

Camryn Hansen — Wed, 18 Nov 2009 21:56:33 GMT

Legally, it’s not supposed to matter whether emergency room patients have insurance or not. The Emergency Medical Treatment and Active Labor Act, passed by Congress in 1986, guarantees that all people brought to the emergency room receive all the treatment they require, independent of their ability to pay.

And yet, a study just published in the Archives of Surgery found that patients lacking insurance are 80% more likely to die from traumatic injuries than those with private insurance, including commercial health plans, health maintenance organizations, and Medicaid.

Trauma physicians said they were surprised by the findings, even though a slew of studies had previously documented the ill effects of going without health coverage. Uninsured patients are less likely to be screened for certain cancers or to be admitted to specialty hospitals for procedures such as heart bypass surgery. Overall, about 18,000 deaths each year have been traced to a lack of health insurance. –LA Times

While the researchers from Harvard University and Brigham and Women's Hospital in Boston were expecting to find some disparity in risk between insured and uninsured trauma patients, they were shocked at just how large the disparity was.

The researchers offered several possible explanations for the findings. Despite the federal law, uninsured patients often wait longer to see doctors in emergency rooms and sometimes visit ERs at several hospitals before finding one that will treat them. Other studies show that, once they're admitted, uninsured patients receive fewer services, such as CT and MRI scans, and are less likely to be transferred to a rehabilitation facility. –LA Times

Whatever the explanation, findings like this make it clear that we need to do away with a health care system that effectively makes second class citizens out of the uninsured.

Originally posted at InjuryBoard by Camryn Hansen

Making Health Care Easier and More Affordable

Eddie Farah — Tue, 17 Nov 2009 22:22:08 GMT

When you need to access health care in a hurry in Florida, you might not be thinking about cost comparisons like you would with food or toys.

But consider this. Shop for health care like you shop for anything when you want to save money – wisely. The state of Florida is making it a bit easier.

Many uninsured consumers of medical services in Florida may not know that under law they have the right to reliable and understandable information about their health care charges.

As of January 1, 2009, when the “Health Care Consumer’s Right to Information Act” took effect (SB 1488), consumers were entitled to be provided with a reasonable estimate of charges for any planned non emergency medical service from a health care provider.

The estimate is supposed to be written in lay language that anyone can understand, and should represent the average charge for that diagnosis or procedure. And for facilities not operated by the state, the bill requires them to provide the estimate of reasonably anticipated charges within seven days after the center confirms the individual is uninsured.

The law requires the facility to put a notice in the reception area concerning any discounts or charity discounts, under what condition they are available. A failure to do so subjects the facility to a $500 fine.

Also access the information on the state Web site (www.floridahealthfinder.gov) which lists undiscounted charges for no fewer than 150 of the most commonly performed adult and pediatric procedures.

Bottom line - Transparency in costs will help consumers shop more wisely for health care like consumer goods and lead to greater competition and incentive to keep costs down.

As reducing the cost of health care is on everyone’s mind, forcing transparency in the health care industry is one way we can lower our bills and keep everyone honest. #

Originally posted at InjuryBoard by Eddie Farah

Myth #5: Tort reform will lower insurance rates.

Mike Ferrara — Mon, 16 Nov 2009 20:13:15 GMT

The campaign to slip widespread tort reforms into America’s health care bill is gaining momentum it doesn’t deserve because people are blithely accepting its exaggerations, distortions, and outright lies as fact.

To combat this, the American Association for Justice has just released a report called “Five Myths About Medical Negligence,” which exposes the tort reformers’ media campaign as the propaganda it really is.

Myth #5: Tort reform will lower insurance rates.

Fact: It is absolutely not the case that doctor liability premiums will go down if national malpractice reforms are passed. States that have already passed caps on damages have shown that while insurance companies don’t have to pay out as much in these states, they don’t pass on the savings to doctors by lowering premiums. In 2009, premiums in capped states were actually more than $1,000 higher per year, on average, than premiums in states with no caps.

Tort reforms simply don’t translate to insurance price reductions for anybody—doctor or patient. The idea that malpractice lawsuits are unduly clogging the legal system while wasting American taxpayers’ money and driving doctors out of business is absolutely baseless. On the other hand, medical negligence is very real, and any responsible health care reform bill must find a way to meaningfully address issues of patient safety.

Originally posted at InjuryBoard by Mike Ferrara