N.Y. Times op-editorialist Bob Herbert has followed up on last Monday's column with another swipe at those who claim that soaring med mal insurance premiums are the result of massive incrases in med mal payouts. This time, though, it's the AMA who gets rapped for feeding the frenzy. Claiming that 20 states are now in a med-mal insurance crisis (up from 12 in 2002), the AMA has conveniently mapped out the whole country for all to see which states are in crisis, which ones are showing problem signs, and which states are "currently okay" (apparently only 6 states are in this last category). An interactive version of the map, with anecdotes, a smattering of statistics, and a description of the current state of the health-care liability laws, can be found here.
In today's column, Herbert claims that the evidence has been misstated or skewed by the AMA, at least as respects Missouri, Florida, and New Jersey. I'd add Texas to the list of so-called crisis states where the evidence seems to point to the opposite conclusion. After the surge of filings to beat the September 1, 2003, effective date of our med-mal reform statute, new filings seem to have virtually dried up. There's been little or no reduction in premiums in tort-reformed states, though, and I am betting (with Bob Herbert) that the docs have been sold a bill of goods about the causes (and cures) for their insurance-premium crisis. For more information, and a slightly more balanced view, check out the GAO report on the alleged med-mal crisis, discussed here last August 1.
4 comments:
I agree. Docs are being sold something. And they're believing it, or at least the AMA is leading an effective campaign to get them to believe it.
I'm a physician and a medical school professor. To the extent that one can identify two sides to this issue, I believe that both are correct in certain ways.
As much as I would enjoy practicing in a less litigious environment, I fear that attempts simply to suppress suits by making it more difficult for patients to bring cases and by making it more difficult to find expert witnesses could cause more trouble than they are worth and I believe many of these attempts are unethical. Let me mention one attempt: defining expert testimony as the practice of medicine and attempting to "discipline" doctors who testify against other physicians. There is a great hue and cry these days about "lying expert witnesses." The "lying expert witnesses" are always plaintiffs witnesses, of course. Defense witnesses never lie. And the proof that they are lying seems to be getting together a group of doctors who say they are lying.
I give "medical legal" testimony rarely. A few years ago I was testifying for the plaintiff and a defense attorney asked whether I thought my testimony was the practice of medicine. The question amazed me. I thought that it was obvious that it was not. There is no doctor patient relationship. I suppose you could use the analogy of public health medicine. But I don't think anyone previously thought giving testimony constituted practice until someone figure out that this ploy could be used as a way to strike fear in the hearts of expert witnesses and make it harder for lawyers to find doctors willing to testify. This may actually cut down the number of malpractice suits. Hiring hit men to kill the expert witnesses would probably also have the same effect.
If giving medical legal testimony is the practice of medicine, why isn't giving a lecture the practice of medicine. Maybe the doctors who work for the speaker's bureaus of drug company and who go around puffing the latest and greatest drugs should also be considered practicing medicine. Perhaps their lectures should be reviewed and maybe patients whose care is influenced by their lectures should be able to sue them for malpractice. In the long run I am afraid that doctors will be sorry they ever went down the road of distoring the definition of medical practice in order to supress lawsuits.
But I don't know the overall answer to the "malpractice problem" or "malpractice crisis." One piece of the answer may be to recognize that there are indeed many bad outcomes in which something actually did go wrong. Often, however, who goes wrong is part and parcel of the working of the whole system rather than something to pin on one or two hapless miscreants (i.e. bad doctors or nurses). I think there should be a comprehensive compensation system that covers the whole healthcare system and which be able to compensate individuals and investigate the root causes of the problem that led to the malpractice. It could be something like the workmen's comp system, though hopefully it could work a little better than that. It might also be like the system that gives veteran's service connected benefits. The fact that a veteran gets compensated for agent orange exposure does not necessarily require that his or her commanding officer be sued individually for creating the situation that caused the damage. In the VA compensation system it is wisely realized that there were certain problem that arose from the working out the military system. Like workman's comp, the VA system is imperfect but I still think it might be used as part of a model to compensate patients who are injured. Simply capping the awards and suppressing the suits is not a fair response.
I'm a physician and a medical school professor. To the extent that one can identify two sides to this issue, I believe that both are correct in certain ways.
As much as I would enjoy practicing in a less litigious environment, I fear that attempts simply to suppress suits by making it more difficult for patients to bring cases and by making it more difficult to find expert witnesses could cause more trouble than they are worth and I believe many of these attempts are unethical. Let me mention one attempt: defining expert testimony as the practice of medicine and attempting to "discipline" doctors who testify against other physicians. There is a great hue and cry these days about "lying expert witnesses." The "lying expert witnesses" are always plaintiffs witnesses, of course. Defense witnesses never lie. And the proof that they are lying seems to be getting together a group of doctors who say they are lying.
I give "medical legal" testimony rarely. A few years ago I was testifying for the plaintiff and a defense attorney asked whether I thought my testimony was the practice of medicine. The question amazed me. I thought that it was obvious that it was not. There is no doctor patient relationship. I suppose you could use the analogy of public health medicine. But I don't think anyone previously thought giving testimony constituted practice until someone figure out that this ploy could be used as a way to strike fear in the hearts of expert witnesses and make it harder for lawyers to find doctors willing to testify. This may actually cut down the number of malpractice suits. Hiring hit men to kill the expert witnesses would probably also have the same effect.
If giving medical legal testimony is the practice of medicine, why isn't giving a lecture the practice of medicine. Maybe the doctors who work for the speaker's bureaus of drug company and who go around puffing the latest and greatest drugs should also be considered practicing medicine. Perhaps their lectures should be reviewed and maybe patients whose care is influenced by their lectures should be able to sue them for malpractice. In the long run I am afraid that doctors will be sorry they ever went down the road of distoring the definition of medical practice in order to supress lawsuits.
But I don't know the overall answer to the "malpractice problem" or "malpractice crisis." One piece of the answer may be to recognize that there are indeed many bad outcomes in which something actually did go wrong. Often, however, who goes wrong is part and parcel of the working of the whole system rather than something to pin on one or two hapless miscreants (i.e. bad doctors or nurses). I think there should be a comprehensive compensation system that covers the whole healthcare system and which be able to compensate individuals and investigate the root causes of the problem that led to the malpractice. It could be something like the workmen's comp system, though hopefully it could work a little better than that. It might also be like the system that gives veteran's service connected benefits. The fact that a veteran gets compensated for agent orange exposure does not necessarily require that his or her commanding officer be sued individually for creating the situation that caused the damage. In the VA compensation system it is wisely realized that there were certain problem that arose from the working out the military system. Like workman's comp, the VA system is imperfect but I still think it might be used as part of a model to compensate patients who are injured. Simply capping the awards and suppressing the suits is not a fair response.
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