Lower Medical Malpractice Lawsuits, Lower Health Costs

by Ryan Hanley
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According to an article recently posted on www.Insurancenewnet.com, by the Associated Press (AP), “Health Negotiators Look At Malpractice Changes“, President Obama has begun to compromise on the need for alternatives to medical malpractice lawsuits. Opponents to changing the malpractice system insist that malpractice reform will have an insignificant impact on lowering the cost of health care.  I strongly disagree with this opinion.  Tort reform is a major piece of the health reform puzzle and deserves ample attention as we work to achieve a better health care system.

Tort reform is not “The Answer” to the health care problem but to put your head in the sand like some legislators have on the issue is insanity.   Most proponents of tort reform for medical malpractice believe (and this was echoed by President Obama in his speech last Wednesday) that fear of lawsuits drives doctors to perform unnecessary tests sometimes in redundancy in order to escape malpractice suits.  This also means more medical billing and coding work for insurance companies. How does the practice of over testing to protect against lawsuits not add to the ridiculous cost of health care in America?

There are three solutions outlined in the AP article that used in conjunction with one another may have a positive impact.

The first idea involves incentives to doctors and hospitals for “early disclosure” of mistakes and offering restitution outside of the court system.

The second idea involves creating a body of experts that would screen malpractice cases before they were allowed to go to trial in an effort to weed out frivolous lawsuits(according to the AP article this was enacted in Tennessee last year, malpractice lawsuits dropped 69% and malpractice premiums are estimated to drop 2.5% next year).

The third idea involves the creation of new court system specifically designed to handle malpractice cases.  All judges that would preside in this court would have to be experienced in the medical field.  The idea being that judges with medical backgrounds would be able to make more informed decisions with less emotional bias.

As I mentioned early tort reform is not the answer to the health care crisis.  But it is my opinion that any and all avenues that may reduce the consumer cost of health care should be explored.

Disclaimer:

This article is for informational purposely only. There is no legal advice being suggested or proffered and the author assumes no responsibility or liability for the actions take or not taken by the readers based upon such information.

Thank you,

Ryan H.

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  • http://www.oginski-law.com Gerry Oginski

    I totally agree with John H. above. It’s a refreshingly clear and concise viewpoint that more people should have.

  • http://www.oginski-law.com/ Gerry Oginski

    I totally agree with John H. above. It’s a refreshingly clear and concise viewpoint that more people should have.

  • John H.

    Ryan,

    I usually do not read, nor pay attention to the multitude of blogs that
    enter my email each day. However, I must admit that your current
    thoughts on medical malpractice reform caught my eye. First, I do not,
    nor have I ever represented a Plaintiff in a medical malpractice action.
    However, I am familiar with the laws in the State of New York and
    believe your assessment, at least with respect to New York State and the
    vast majority of other states in the country, is flawed.

    First, the implementation of the plan quoted in the AP story is largely
    law in New York State, with the exception of “specialized judges.” In
    New York, the law is so procedurally tilted in the doctor’s favor, that
    obtaining a medmal verdict is as difficult as it gets. The statute of
    limitations is shortened and the Plaintiff has an absolute obligation to
    call a medical professional with similar expertise as the Defendant and
    offer proof that the Defendant deviated from what a reasonable doctor in
    similar circumstances would have done. This standard is more
    pro-Defendant than even the liability protection standard of “best
    practices” quoted in the article.

    Second, limiting or capping liability hurts individuals who are most
    grievously injured in medmal cases and does nothing to eliminate
    frivolity. If you are injured slightly as a result of malpractice or if
    your claim was frivolous, you would not get above the cap in any event.
    Statistically, the real value of medical malpractice payouts from
    settlements and verdicts has not changed since the 70s. In states were
    caps have been implemented, medical malpractice premiums have continued
    to increase.

    Finally, specialized judges are not the answer. Judges and juries hear
    extremely complex matters including complex securities litigation and
    technical patent and trademark issues. They typically, although there
    are always exceptions, reach the correct conclusion.

    I do not condone frivolity in the system, and I would welcome reforms
    that are designed to prevent frivolity, however, I don’t believe for a
    second that this issue is being driven by a desire for more affordable
    healthcare. Instead, doctors have been brainwashed into believing that
    the boogeyman is the trial attorney when in actuality it is the
    insurance producer. If the doctor does his job in accordance with best
    practices, he should never be concerned of a lawsuit. If doctors
    policed themselves the issue would be reduced because the bad apples
    would be eliminated.

    Sorry for the rant. It is probably a good thing I don’t respond to more
    of these things.

    [WORDPRESS HASHCASH] The poster sent us ’0 which is not a hashcash value.

  • John H.

    Ryan,

    I usually do not read, nor pay attention to the multitude of blogs that
    enter my email each day. However, I must admit that your current
    thoughts on medical malpractice reform caught my eye. First, I do not,
    nor have I ever represented a Plaintiff in a medical malpractice action.
    However, I am familiar with the laws in the State of New York and
    believe your assessment, at least with respect to New York State and the
    vast majority of other states in the country, is flawed.

    First, the implementation of the plan quoted in the AP story is largely
    law in New York State, with the exception of “specialized judges.” In
    New York, the law is so procedurally tilted in the doctor’s favor, that
    obtaining a medmal verdict is as difficult as it gets. The statute of
    limitations is shortened and the Plaintiff has an absolute obligation to
    call a medical professional with similar expertise as the Defendant and
    offer proof that the Defendant deviated from what a reasonable doctor in
    similar circumstances would have done. This standard is more
    pro-Defendant than even the liability protection standard of “best
    practices” quoted in the article.

    Second, limiting or capping liability hurts individuals who are most
    grievously injured in medmal cases and does nothing to eliminate
    frivolity. If you are injured slightly as a result of malpractice or if
    your claim was frivolous, you would not get above the cap in any event.
    Statistically, the real value of medical malpractice payouts from
    settlements and verdicts has not changed since the 70s. In states were
    caps have been implemented, medical malpractice premiums have continued
    to increase.

    Finally, specialized judges are not the answer. Judges and juries hear
    extremely complex matters including complex securities litigation and
    technical patent and trademark issues. They typically, although there
    are always exceptions, reach the correct conclusion.

    I do not condone frivolity in the system, and I would welcome reforms
    that are designed to prevent frivolity, however, I don’t believe for a
    second that this issue is being driven by a desire for more affordable
    healthcare. Instead, doctors have been brainwashed into believing that
    the boogeyman is the trial attorney when in actuality it is the
    insurance producer. If the doctor does his job in accordance with best
    practices, he should never be concerned of a lawsuit. If doctors
    policed themselves the issue would be reduced because the bad apples
    would be eliminated.

    Sorry for the rant. It is probably a good thing I don’t respond to more
    of these things.

    [WORDPRESS HASHCASH] The poster sent us ’0 which is not a hashcash value.