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Real Medical Malpractice Reform in New York—It’s About Patient Safety, Stupid.

13 comments

You’ve no doubt been hearing a lot about “Tort Reform,” or what I like to call “malpractice entitlements.” The idea is simple: someone hurts you through their own carelessness, but you pick up the bill (or, if you can’t afford it, the taxpayer picks it up through medicaid and the like). But obstetricians in New York have shown that patient safety and outcomes can be radically improved, with real reduction in the costs of litigation, with some basic common sense approaches (from Crain’s New York):

Delivering babies can be a high-stakes undertaking for hospitals, with the threat of multi-million-dollar malpractice damages when serious mishaps occur. But a team of Manhattan obstetricians says it has beaten the odds—dramatically reducing errors and slashing their department’s medical malpractice payouts by more than 99%.

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At Weill Cornell, the safety changes resulted in annual medical malpractice payouts dropping from an average of a $28 million from 2003 to 2006 to $2.6 million a year from 2007 to 2009. With no sentinel events reported in 2008 and 2009, those totals are expected to drop still further.

How’d they do it? With simple steps like replacing a whiteboard system with an electronic one, and using better patient care documentation to insure better care (and to ensure they could show when mistakes did not occur, for legal purposes). That’s right, a few simple steps, and a dramatic reduction in both patient care and, unsurprisingly, patient lawsuits. Good news for everyone, unless you want tort reform and don’t care about facts:

At NYACOG, executive director Donna Montalto says her group does not support that bill but still pushes for tort reform. The Weill Cornell study has not changed her group’s position. “We are all for obstetric safety but safety is not tort reform. We need reform now.” said Ms. Montalto.

“Safety is not tort reform,” huh? Remember that next time someone tells you tort reform is a good idea. This is simply an attempt to allow one group to be negligent, without bearing the costs—it’s an “entitlement” is the worst sense of the word.

There are plenty of ways to reduce malpractice. I’ve written about the Checklist solution before, and the simple upgrades written about above are a great example of how simple the solutions can be. Study after study shows that many Americans are injured or even killed by avoidable mistakes, and that simple solutions exist to change that.

What doesn’t work is putting an arbitrary cap on damages, essentially saying, “no mother’s (or father’s, or child’s) life is worth more than $250,000.” The best way to reduce medical malpractice lawsuit costs is to reduce medical malpractice. Simple, logical, and it works, as this example has shown. (Other examples include the airline industry, that shaped up and reduced accidents dramatically.) Oklahoma is looking at precisely these types of malpractice entitlements, rather than patient safety, right now.

What do you think? Do you agree with the Crain’s readers, who were voting 80% against malpractice entitlements the last time I checked? Share your comments below!

Previous Malpractice Entitlements Articles:

Tags: Malpractice Entitlements, reducing medical malpractice, tort deform, tort reform, patient safety, Crain’s, Weill Cornell, NYACOG, Donna Montalto

UPDATE: Here’s a great tort reform mythology Q& A from "The Medical Malpractice Myth" author and law school professor Tom Baker, written by Anne Underwood. This book is a great read for people who want to know the actual facts and figures at issue in tort reform.

13 Comments

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  1. Razia says:
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    There is a very fine line between medicine and business. I have found that most doctors are in medicine because they want to help patients, not for the money. However, the fear of litigation certainly forces doctors to practice at a higher level. Physicians today practice very defensive medicine in fear of having to use their medical malpractice insurance. (see http://www.equotemd.com/blog ). There is no question that defensive medicine is driving up the cost of health care for everyone. I think we need tort reform to help doctors fight frivolous lawsuits, however caps is not the way to go. Caps are not the right thing to do when a patient is severely injured. If doctors didn’t practice in fear would they stop practicing defensive medicine? (knowing they get paid the more they practice)

    Razia

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    Razia,

    Thanks for taking the time to comment. I think the Weill Cornell example I discuss above proves, conclusively, that improving treatment process–not “defensive medicine,” which is simply fraud–can greatly reduce both malpractice and malpractice lawsuit costs (which are, of course, directly related).

    You write that, “There is no question that defensive medicine is driving up the cost of health care for everyone.” I agree! So we should stop fraudulent over billing. Either it is good for a patient, or it is fraud, and neither way does it help with lawsuits.

  3. Lew Siegler says:
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    I do not feel that caps on pain and suffering will solve the problems of medical errors and reduce the billions spent every year on defensive medicine by physicians such as myself. I do however feel that the special health court idea that President Obama wants to introduce will markedly speed up the entire process at a much lower cost per case. It will allow more cases to be heard resulting in the compensation of a greater number of injured victims with a higher percentage of the insurance dollar going to victims. If more victims are compensated then more physicians are held accountable and errors should go dowm. Additionally from what I understand his plan will utilize panels of experts. This will bring a greater consistency to what constitutes the standard of care in an indidvdual case. This will take the fear out of practicing medicine appropriately. As it stands now, we are uncertain as to what will keep us out of court in the event of a bad outcome. Individual experts for hire create this uncertainty.
    I think President Obama is on to something here. Almost everyone wins with the new system.

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    @Lew Siegler,

    Thanks for taking the time to share your ideas. I don’t like the idea of more big government–which is likely what a “health court” would be, with a panel of experts–but I think all options should be explored.

    Given that med mal lawsuits in total–not just so-called “frivolous” lawsuits–make up just 1-2% of the total cost of our health care, it isn’t an issue that will change much of anything, unfortunately.

  5. Larry says:
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    @ Lew Siegler

    Check out the 7th Amendment (right to a civil jury trial).

    I have a problem with taking the ultimate decision away from U.S. citizens.

    To win a med mal case, a patient must present a medical expert (many times a medical professor who also practices medicine in the field at issue) to instruct the jury why there was negligence.

    Many times it is something as simply as not having a good case management system and operating on the wrong organ.

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    @Larry,

    Thanks for commenting, great points! For more 7th and 10th Amendment issues, check out Andrew Cochran’s work here: http://voices.injuryboard.com/miscellaneous/why-tea-partiers-conservatives-should-oppose-federal-law-limiting-health-care-lawsuits.aspx?googleid=288420

  7. Lew Siegler says:
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    I appreciate the chance to exchange ideas and opinions on this blog.

    If health courts without juries are deemed unconstitutional, I believe there are health court models that do utilize lay juries.

    I agree that actual payouts to injured victims are a small fraction of the total cost of health care, but there is potential savings in the billions on reduced spending on defensive medicine. This however would not happen overnight.

    A medical justice system that spends tens to sometimes hundreds of thousands of dollars and 3-5 years resolving just one case is reminiscent of big government inefficiency.

    I think we can do better and I agree that options need to be explored so we can get this right.

    Thanks again

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    @Lew Siegler,

    Thanks for commenting, and I, too, appreciate the chance to have a dialogue. Too often this debate is about politics or the insurance lobby throwing its weight around–remember, while we’re worried about healthcare costs, the insurance companies still made billions in profit last year–up 40%! (http://www.healthinsurance.org/blog/2010/11/15/insurance-company-profits-up-41-percent/)

    There’s room for improvement, to be sure. One thing I’d remind readers is that Plaintiff’s attorneys’ interests align with reducing the costs of lawsuits. They advance all these costs, and bear the entire risk of a lost case (that is, they eat the sometimes hundreds of thousands in expenses). So no one would support making lawsuits less wasteful!

  9. Larry says:
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    Well, I see another ambulance chaser (Billy Eadie) is having a discussion with his clone (Lew Siegler).

    The travesty, of course, here is that there is “lawsuit entitlement” given to ambulance-chasing plaintiff’s lawyers. And here is what the plaintiff’s lawyers are thinking:

    1) Sue and lose? No problem. They judges are our friends! We pay to get them elected, after all! They will never award defense costs to the defendant from you. No worries.

    2) File a worthless case? No problem. No sanctions. See 1) above. We always win. For us! No, sorry, I meant for YOU!

    3) So what if I have a financial interest in your case (“contingent” fee case). I would NEVER advise you to do something that would benefit me first, like settle this case because blah, blah, blah (when I am thinking… “because I am such a schmuck I forgot to get a decent expert, and anyway, I have a boat payment due!”)

    The days of the parasitical plaintiff’s bar’s stranglehold on the courts is coming to an end. Can’t be any too soon.

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    @Larry,

    Thanks for taking the time to comment. Not sure why you insist on personal attacks, but if you’d like a decent and respectful conversation, feel free to give that a try.

    Among the points you make that are things other than ad hominem attacks, and i think there were two, you are mistaken on your facts.

    (1) The insurance/anti-lawsuit contingent spends millions more on lobbying. See post above for links to facts on the issue.

    (2) Your understanding of the risk of “contingent fees” is limited to what you describe as “sanctions.” But these cases cost tens, sometimes hundreds of thousands of dollars, that the Plaintiff’s lawyer advances–and then eats those costs in the event s/he loses.

    Again, I welcome a constructive and civil discussion, and thanks for stopping by.

  11. John Cox says:
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    Medical entitlements? How about legal entitlements?
    Over 80% of malpractice cases that go to court in Ohio are found for the defendant doc! What that indicates is that a lot of frivolous malpractice cases are going to court. Happens to most docs – -you get sued because you name is on the chart or a typo on a report. Often an inexperienced plaintiff attorney sues and pays a big fee to a “medical expert” who will say anything for a fee. I have to believe that half way thru these cases the plaintiff’s attorney knows it is a frivolous case, yet they persist so they can try and extort money from the doctor. If the doc wins the case, why not allow the doc to sue the plaintiff’s attorney for damages because of the frivolous litigation? Allowing that type of litigation would cut out all those frivolous malpractice cases that clog up the courts for years. Another idea is to allow the defendant doc to sue the “medical expert” for malpractice if his opinion is way out of line. Being a medical expert is really practicing medicine and being liable for malpractice would force these docs to give accurate testimony, not just collect a big fee. But these reforms would cut into the legal profession and their fees and would be bitterly fought by plaintiff attorneys. So the plainiff’s attorneys (some of whom are “inexperienced”) and the “medical experts” get away with no liability for often fraudulent actions – -what an entitlement!

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    John Cox,

    Thanks for taking the time to comment. There appear to be a couple things you aren’t aware of.

    First off, the plaintiffs attorneys you think are out there extorting doctors by paying a big fee to a medical expert are punished if they lose the case–they cover that “big fee” for the client, and in fact, cover all the costs of the litigation in most cases. So the loser already pays. If this is a surprise to you, that may be because you are listening to the wrong information sources.

    “Over 80% of malpractice cases that go to court in Ohio are found for the defendant doc! What that indicates is that a lot of frivolous malpractice cases are going to court.” This is not accurate. I could just as easily argue that this reflect the poisoning of the jury pool with anti-injured-person bias from “tort reform” efforts across the country. Neither one is supported by the statistic directly. indeed, it could well be that, of the tiny percentage of lawsuits that ever make it to a jury, there is a bias against punishing doctors.

    In Ohio, you cannot even file the lawsuit without an affidavit–sworn testimony–from another doctor saying there was malpractice. And then the judge can (and will) throw out the case in a motion to dismiss (if the complaint is facially insufficient) or motion for summary judgment (if the evidence doesn’t support the claim).

    Also, you should know that ALL studies on the subject show no “epidemic” of lawsuits–it has stayed pretty much in line with population–and in fact most cases of malpractice (not just bad outcomes, but malpractice) never even become lawsuits.

    If you’re interested in actually knowing facts, here’s an eye-opening report on the status of safety in American hospitals: http://www.healthgrades.com/media/DMS/pdf/PatientSafetyInAmericanHospitalsStudy2010.pdf I support our medical institutions and we have world-class doctors, but the civil justice system is a positive part of the solution to needless patient injury, not the problem.

  13. John Cox says:
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    We know that plaintiff attorneys absorb litigation costs in the event they lose. Doctors absorb litigation costs also, even when they win. Docs lose practice time and have to pay increased malpractice costs whenever they are sued. In addition, docs can be hit with punitive damages and have to pay any damages in excess of their malpractice. If a doc refuses to settle a justified malpractice suit and loses at trial he can be hit with “delay damages” for not settling the case. All this is in addition to the tremendous damage to his reputation. Most fair minded people would agree that docs should be allowed to sue irresponsible plaintiff attorneys.
    The Ohio jury system gives a defense verdict 80% of the time in malpractice cases year after year.Juries go thru the voir dire process making them as neutral as the judicial system can make them. I frankly cannot understand how a plaintiff’s attorney, filing a legitimate malpractice suit can lose 80% of the time! Stands to reason that a lot of those lawsuits are frivlous.
    Your claim that a malpractice attorney cannot file a malpractice suit in Ohio without an affidavit of merit is false. Plaintiff’s attorneys file malpractice suits against docs all the time without affidavits of merit. The doc has to report this to his malpractice carrier and a defense attorney has to answer the claim. Now if there is no affidavit of merit, and no expert witness, the judge will throw the claim out, a few months after filing. But the malpractice carrier will factor a rate increase into the docs rates and the doc is forced to disclose that he was sued for malpractice whenever he applies for hospital staff privileges for the rest of his career!
    I am human, and like all docs, I try hard not to make medical mistakes. Lawyers should try equally hard not to make legal mistakes. So saying that the amount of malpractice litigation has not significantly increased and being comfortable with an 80% loss rate at trial is disingenuous. I would hope lawyers would want to improve. Maybe there should be a decrease in the quanity of malpractice suits filed and an increase in the quality of the malpractice suits filed. One way of improving might be to require lawyers to obtain some certification or additonal training before they are allowed to file malpractice suits. Kind of like doctors wanting to do surgery at a hospital – -you gotta show you have the training!
    The Ohio legal system gives a free pass to “medical experts” to commit legalized fraud with no consequences whatsoever. After collecting a substantial fee, the “medical expert” can rest assured that he will never be held accountable for his court room testimony because he is “just stating his opinion.”
    There are good docs and attorneys and there are bad docs and attorneys, out there. You say the tort system improves medical care and I say allowing docs to countersue plaintiff attorneys and “medical experts” would make Ohio justice more equitable and decrease frivolous malpractice suits.