AAJ report debunks med mal myths

The American Association of Justice (AAJ) released a new report entitled, “Five Myths about Medical Negligence” that debunks the myths about medical malpractice reform including:

• there are too many frivolous suits;
  
• medical malpractice lawsuits drive up healthcare costs;
  
• doctors are fleeing because of medical malpractice lawsuits;
  
• medical malpractice claims drive up premiums; and
  
• tort reform will lower insurance rates.
  

Calls for tort reform in the context of health care reform are an unwelcome distraction. As we have noted in several posts on this topic, in this debate, no one is speaking about the victims. This continuing effort to blame lawsuits for spiraling health costs is puzzling and unwarranted. The focus should shift to efforts on curbing negligent treatment of patients. Indeed, wouldn’t safer practices eliminate lawsuits and lower premiums?

You can view AAJ President Anthony Tarricone’s article on the report by clicking here. You can link directly to the report by clicking here.

Doctor rejects notion of limiting lawsuits

“The doctors’ lobby says capping malpractice suits will make healthcare cheaper. I’m an M.D. and I don’t believe it.” Those are the words of Dr. Rahul K. Parikh, a doctor who believes, like most of us, that lawsuits are not the reason we have a healthcare crisis in this country.

In an op-ed at Salon.com, Dr. Parikh wrote, “Proponents of reform say that defensive medicine, frivolous lawsuits and high premiums are behind the surge in healthcare expenses.” But “there’s nothing ’sure or quick’ about changing medical liability laws that will improve healthcare or its costs. Defensive medicine adds very little to healthcare’s price tag, and rising malpractice premiums have had very little impact on access to care.” Parikh discusses several studies on the subject, concluding, “Instead of a swamp of frivolous lawsuits, what the data shows is a system that functions.” He argues, “Tort reformers neglect the fact that malpractice reform won’t save one extra life. To make that difference, insurers, doctors and their lobbyists like the AMA need to find ways to improve patient safety.”

You can read the full text of the article by clicking here.

Dead by Mistake site focuses on medical errors

“Every year approximately 200,000 Americans die from preventable medical errors and healthcare-associated infections as tools to fight these needless deaths go unused at many hospitals.”

That’s from an online report by a team of Hearst journalists called Dead by Mistake which focuses on the plague of fatal but preventable hospital errors. These journalists recognized that part of the problem “in seeking some solution to the unrelenting number of preventable deaths each year was that there was no comprehensive reporting of medical errors around the country.” With Dead by Mistake, they set out to change that by gathering information and presenting it in newsprint and online.

The site contains a number of resources, including stories from the families of victims, strategies for obtaining safe health care, and ways to demand change in the healthcare delivery system. In one recent story from the site, the Heart journalists noted that the proposed medical malpractice reforms “would only save 0.5% of all health care costs, and leave injured patients with practically no legal recourse. But reducing medical errors means healthier patients and lower costs.” You can read the full article by clicking here.

In another analysis presented on the site, they noted that Congress may be wrangling over measures to extend health insurance to more Americans and lower the costs of medical care, but few lawmakers are concerned with making our health care system safer for patients. Indeed, the three health care reform bills under consideration by Congress do not include key solutions long ago envisioned in “To Err Is Human” and lobbied against by the health care industry ever since. You can read more on that by clicking here.

You can see the full Dead by Mistake report by clicking here.

Will the discussion ever focus on victims of malpractice?

The healthcare debate in this country has shifted the focus on the costs of medical malpractice and the contribution to the current “crisis.” On one side, there is argument and statistics which persuasively establish that medical malpractice claims have had minimal impact on rising healthcare costs. On the other side, there are critics who contend that greedy trial lawyers have caused healthcare costs to spiral out of control because doctors are practicing defensive medicine.

In this debate, however, no one is speaking about the victims. As we have noted repeatedly, this continuing effort to blame lawsuits for spiraling health costs is puzzling and unwarranted. The focus should shift to efforts on curbing negligent treatment of patients. Indeed, wouldn’t safer practices eliminate lawsuits and lower premiums?

We certainly hope that the debate shifts soon. In the meantime, here are a few items to consider:

The Salt Lake Tribune editorialized that a recent CBO report “estimated that a package of medical malpractice reforms could save the federal budget about $41 billion in health care costs and increase federal tax revenues another $13 billion, both over a 10-year period.” But “to put the numbers into perspective, the CBO estimates that the package of reforms it studied would reduce total national health care spending by about .5 percent (one-half of 1 percent). When it comes to health care, any reduction in rocketing costs is a good thing, but reforming malpractice law is hardly a panacea. The other side of the coin is that doctors and hospitals regularly kill people through their negligence.” The goal “should be to reform the process without denying people who have been injured or killed their day in court and just compensation.”

In a blog at the Milwaukee Business Journal, Corrine Hess wrote, “The Manhattan Institute’s Center for Legal Policy released a report Tuesday quantifying just how much of an impact litigation has on health care costs. The report, which is in the most recent edition of the Trial Lawyers Inc. series, shows the direct cost of medical malpractice litigation is $30.4 billion annually. The threat of litigation has prompted 93 percent of doctors to practice defensive medicine, which in turn comprises at least 12 percent of the relevant gap in health care spending between the United States and other developed countries, according to the institute.” The institute “said the findings signal a clear need for tort reform to be included in national health care reform.”

When reading these two items, it’s hard not to wonder who to believe. But if you bring the focus back to saving the lives of patients, the image gets clearer. We should be focusing on the safer delivery of healthcare services.

For a look at our past blogs on these topics, click here.

New Mass RMV service reminds you on license renewal

The Massachusetts Registry of Motor Vehicles (RMV) is offering a new and free service to notify residents that it’s time to renew your license. This makes up for the fact that since November 2008 the RMV no longer sends a renewal in the mail for your driver’s license. To address public concern on the issue, the RMV has created a system which will send you one alert via email, phone or text message (you choose which) approximately 30 days prior to your license expiration.

To sign up for this free service, click here. The site is hailed by the RMV as a safe electronic notification services that will help you remember to renew your MA driver’s license. With this free service you determine how the RMV reminds you (by email, phone or text (SMS) message). The RMV has partnered with Sendza, an outside firm that will deliver your automatic reminder at no cost to you or the Commonwealth.

To get started, you will need your Massachusetts license or MA ID number, date of birth, and your residential zip code so that the RMV can verify your information is in its database. The RMV will then transition you to the Sendza website where you will complete the process to subscribe to the reminder service. Sendza will ask you to select how you want to be notified—by email, phone or text message. You must then provide the appropriate email address or phone number. According to the RMV, Sendza receives coded information that enables them to deliver your reminder, but never sees your personal information and cannot display or share it.

Medicare madness for elderly tort victims

We wrote about some of the pitfalls of the Medicare bureaucracy and the impact on personal injury cases back in July. You can see that piece here. Just a few months later, the Medicare giants are roaring again with new tactics and legal strategies that continue to prevent elderly tort victims from getting justice.

In a column in Mother Jones (10/8), Stephanie Mencimer wrote, “In recent years, Congress has pushed Medicare to aggressively pursue debts from injured elderly people who have won compensation through lawsuits or liability insurance.” For people “on the receiving end of the collections process-mostly elderly car accident victims…it can be a traumatic ordeal.”

After “forcing plaintiffs’ lawyers to serve as Medicare’s debt collectors failed to produce the desired results, Congress passed new debt-collection measures as part of the 2007 SCHIP reauthorization. Starting next year, insurance companies must report any settlements or judgments involving Medicare beneficiaries to CMS. If a Medicare beneficiary fails to reimburse the agency for health care costs it paid, the agency can punish the insurance company with double damages.”

But “the prospect of harsher penalties is already leading to insurance company overkill that, combined with Medicare’s bureaucracy, has kept some elderly folks from receiving money that’s rightfully owed them.”

You can read the full article from Mother Jones by clicking here.

As we said previously, while it may seem fair for the government to seek recovery from cases, a more orderly procedure needs to be developed by the government for speedy resolution of claims and greater communication with lawyers for claimants. Until this orderly process put in place, elderly clients may go without legal representation, and may have to forgo seeking redress for their injuries altogether. That will result in an inability to seek justice on behalf of elderly clients, and will leave the Medicare system unreimbursed for costs paid. Let’s hope that any efforts at health care reform include revisions to these bureaucratic nightmares.

Medical malpractice insurers earning more than ever

As Congress debates nationwide health care reform, a new analysis reveals malpractice insurers have long-played a cruel hoax on legislators and the public. This information comes from a new reports released by the American Association for Justice which can be viewed by clicking here. By systematically distorting profits and losses, insurers created phony “financial crises,” so lawmakers would limit the legal rights of injured patients. 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.

“Insurance companies are gouging doctors on their premiums to mislead lawmakers. And today, injured patients are often left with no avenue to pursue justice, while health care costs continue to skyrocketing,” said American Association for Justice President Anthony Tarricone, managing partner at Kreindler & Kreindler LLP.

“As Congress looks to overhaul our nation’s health care system, it’s clear that limiting the legal rights of patients won’t lower health care costs or cover the uninsured,” continued Tarricone. “The focus should be on eliminating medical errors that injure or kill tens of thousands of Americans every year. Insurance companies clearly don’t need another handout.”

Medical malpractice in the federal health care fray

Now that the President has opened the door to discussion of medical malpractice as part of his healthcare package, the debate rages on. Here is a recent sampling provided courtesy of the American Association for Justice (AAJ):

In an op-ed in the Minneapolis Star Tribune (9/24), Minnesota lawyer Brian Wojtalewicz wrote, “Insurance and other large corporations, along with such politicians, have propagandized the claim that big verdicts are the cause of skyrocketing health care costs.” But “not only would caps on damages be cruel to those most badly harmed by malpractice, they simply don’t lower premiums for doctors.” Wojtalewicz asks, “What about a true medical malpractice crisis — the malpractice itself?” Wojtalewicz provides several examples of malpractice cases, and supporting studies.

Franklin: Federal attempts at med-mal reform misguided. In an op-ed in the Washington Post (9/24), medical malpractice consultant Cory Franklin wrote, “Medical malpractice is an imperfect process.” But “most proposed federal attempts at malpractice reform would either be unworkable or would infringe on individual states’ prerogatives to reform their systems.” Tort reform “does address one undeniable consequence of malpractice: the high cost of malpractice insurance.” But “access to specialists and exorbitant malpractice rates are primarily local problems, not national concerns. States should decide when and how to curb non-economic damages or restrict attorneys’ fees to relevel the playing field in a given locale.”

Leonhardt: Republicans can’t enact tort reform unless they negotiate. In the “Economix” blog at the New York Times (9/24), David Leonhardt wrote, “Republicans have an important point to make in the health debate: doctors do seem to practice some amount of so-called defensive medicine, out of fear of lawsuits.” But health reform “isn’t likely to include much malpractice reform unless the Republicans negotiate for it. And the Republicans can’t negotiate for it if, with the exception of Senator Olympia Snowe, the Maine Republican, they have made it clear that they’re going to oppose health reform virtually no matter what.”

No-fault med-mal system recommended. In “The Stump” blog at The Oregonian (9/24), former Oregon labor commissioner Jack Roberts wrote, “Maybe it’s time to consider a more radical reform, such as a system of no-fault insurance for medical malpractice similar to the workers’ compensation system.” Such a system “would compensate any patient whose surgery or other treatment (or lack of treatment) resulted in an adverse result, whether or not the doctor, hospital or nurse was at fault. It could redirect resources currently spent finding fault to compensating patients who have been harmed. And it would recognize that even where medical providers have performed their jobs badly, large jury verdicts are not paid by the wrongdoers but shared by everyone through the insurance system.”

This week, AAJ launched an ad campaign, 98,000reasons.org, making clear that the focus of any health care reform should be patient safety, not limiting patients’ legal rights.  That campaign that has resulted in quite a few stories which include the following by DailyKos, MyDD and Huffington Post. In addition, AAJ President Anthony Tarricone published an op-ed in the Politico on the same topic which can be viewed by clicking here. 

 

Yet another study debunks medical malpractice myths

A major new study released by Americans for Insurance Reform finds that premiums and claims for doctors both have dropped significantly in recent years while the medical malpractice insurance industry is enjoying remarkable profits in light of the global economic collapse. It concludes that further limiting the liability of negligent doctors and unsafe hospitals is not only unjustified, but also would have almost no impact lowering this country’s overall health care expenditures.

AIR’s report, True Risk: Medical Liability, Malpractice Insurance and Health Care, is by Gillian Gillian Cassell-Stiga and Joanne Doroshow of the Center for Justice & Democracy, and actuary J. Robert Hunter, who is Director of Insurance for the Consumer Federation of America (CFA), former Commissioner of Insurance for the State of Texas, and former Federal Insurance Administrator under Presidents Carter and Ford.

In describing the study’s findings, Hunter said, “Thirty years of inflation-adjusted data show that medical malpractice premiums are the lowest they have been in this entire period. This is in no small part due to the fact that claims have fallen like a rock, down 45 percent since 2000. The periodic premium spikes we see in the data are not related to claims but to the economic cycle of insurers and to drops in investment income. Since prices have not declined as much as claims have, medical malpractice insurer profits are higher than the rest of the property casualty industry, which has been remarkably profitable over the last five years.

“Our study also shows that states that have passed severe medical malpractice tort restrictions on victims of medical error have rate changes similar to those states that haven’t adopted these harsh measures. Finally, our research makes clear that medical malpractice claims and premiums have almost no impact on the cost of health care. Medical malpractice premiums are less than one-half of one percent of overall health care costs, and medical malpractice claims are a mere one-fifth of one percent of health care costs. If Congress completely eliminated every single medical malpractice lawsuit, including all legitimate cases, as part of health care reform, overall health care costs would hardly change, but the costs of medical error and hospital-induced injury would remain and someone else would have to pay.”

Joanne Doroshow, Executive Director of the Center for Justice & Democracy, said, “Where’s the crisis? Medical malpractice claims are down. Premiums are down. Meanwhile, insurers are raking in money and belittling the fact that hundreds of thousands of patients are killed or injured due to medical negligence each year. Many states have already afforded health care providers extensive legal protections for reckless or unsafe medical care. Proposals in any national health care bill that will take even more money out of the hands of injured patients and into the pockets of insurers are utterly indefensible.”

You can full the full report by clicking here.

 

Medicare liens are a pitfall for elderly plaintiffs

A few years ago, we wrote about the evils of subrogation from health insurance contracts any impact on personal injury judgments and settlements. You can view that piece by clicking here. For our elderly clients, there is yet another obstacle in the battle to achieve justice and that is the Medicare lien. Indeed, the Medicare Secondary Payor statute (MSPS) presents perils for plaintiffs, defendants, attorneys, and insurance carriers.

The law authorizes Medicare to seek reimbursement of medical payments made on behalf of an individual who is injured and later obtains recovery from a third party. Plaintiff’s attorneys are responsible for sorting out when and whether Medicare must be reimbursed for those payments in any given case. Problems arise mainly in cases when a compromise settlement may leave the plaintiff little or nothing after paying expenses and the Medicare lien. The problem is multiplied by the fact that it is difficult to get the government to provide the amount of the lien. It is not unusual to take months and even years to get a final number from the Federal government on the Medicare lien.

Medicare liens are administered by Centers for Medicare & Medicaid Services (CMS). Formerly known as the Health Care Financing Administration (HCFA), CMS is the federal agency responsible for administering the Medicare, Medicaid, CHIP (Children’s Health Insurance), HIPAA (Health Insurance Portability and Accountability Act), CLIA (Clinical Laboratory Improvement Amendments), and several other health-related programs. As attorneys for elderly clients, we contact CMS early on in a case seeking the amount due. But the federal agency takes the position that it “cannot supply the amount due until settlement or judgment has been reached because until one of those results has come about, there is technically no primary payer and thus no debt owed.” On top of that, the agency requires a myriad of forms and releases to be executed by the attorney and client just to establish communication. Now that’s federal bureaucracy for you. And that bureaucracy is not only hindering resolution of cases, it causes plaintiff’s attorneys to shy away from cases and clients may involve Medicare.

An article which highlights the pitfalls associated with Medicare liens can be found by clicking here. As noted in the article, Medicare can be extremely slow to tell them what its share of the settlement should be, taking several months and as much as a year or more. That can prevent them from engaging in damage negotiations with the liable party’s insurer, or from reaching an agreement and distributing the money if they already have. The article portrays an agency which does not seem to care that they are preventing elderly clients from seeing the proceeds of their personal injury cases.

While it may seem fair for the government to seek recovery from cases, a more orderly procedure needs to be developed by the government for speedy resolution of claims and greater communication with lawyers for claimants. Until this orderly process put in place, elderly clients may go without legal representation, and may have to forgo seeking redress for their injuries altogether. That will result in an inability to seek justice on behalf of elderly clients, and will leave the Medicare system unreimbursed for costs paid. Let’s hope that any efforts at health care reform include revisions to these bureaucratic nightmares.