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Health insurance companies, battling the overwhelming costs of frivolous lawsuits and jackpot justice that are putting honest doctors out of business and risking the lives of Americans every day, are struggling to survive in this down economy, many shuttering their doors as they fold up, one-by-one.

Oh, wait, health insurance companies collectively made a whopping $9.3 billion in profits in 2010. And that was just for the first nine months! Profits were up 41% over the same period in 2009. Chuck Smith Dewey reported this astonishing figure back when Democrat Pete Stark (D-Calif.) was demanding that the companies lower their premiums. Instead, the health insurance lobby spent millions to help implement malpractice entitlements for bad doctors, so that they could eke out just a little bit more money. They also made sure Democrats didn’t retain control of congress.

But, some careful readers are thinking, “that’s personal health insurance, not malpractice insurance! The malpractice insurers are the ones on the ropes, right?” Wrong again: “medical malpractice insurance companies’ average profits are higher than those of 99 percent of Fortune 500 companies.” Seriously, re-read that last sentence.

How do they do it? By pitting doctors against patients (or, more particularly, doctors against their patients’ lawyers). For decades, the insurance company has been telling doctors that greedy plaintiff’s lawyers are filing frivolous lawsuits, and this was the reason their insurance rates were shooting up. But that simply doesn’t make sense: why raise doctor’s premiums when making lots of money? The same is true for how they justify raising individual health insurance rates. I’ve written about the misleading Oklahoma tort “reform,” and now New York malpractice entitlements may become law. Who does this help? Nobody, except maybe insurance companies.

Most people injured by malpractice don’t even sue. And those that do, only account for 1-2% of healthcare costs. Lawyers and doctors both want the same thing: safe and healthy patients. And bad doctors—there are a few, but they certainly aren’t the norm—hurt not just their patients, but all the good doctors, too. We should be on the same side.

How do we improve this? By providing better care, to reduce malpractice. It worked in New York, where simple care improvements reduced the costs of malpractice litigation by 99%. Yes, 99%. And then there’s the checklist solution, that did for some hospitals what checklists did for the aviation industry: radically reduced unnecessary human error, saving lives.

I’m sure some insurance company executives want to save lives, and would consider encouraging doctors to implement these types of reforms to help their already-bulging bottom line. But the proof is in the pudding: the largest insurance companies had six lobbyists for every legislator, sent to kill any meaningful reform efforts. They spent millions to do it! And most injured patients have just one representative: a plaintiff’s attorney. They don’t want a fair fight, they want no fight.

What do you think? Let me know by posting a comment below!

Previous Malpractice Entitlements Articles:

27 Comments

  1. Gravatar for Razia

    You make a great point that the large majority of malpractice never becomes a claim. There are mistakes that happen every day. I would like to see an article on how a plaintiff attorney decides to file a lawsuit. It seems that when a patient goes to attorney wanting to sue the doctor, the plaintiff attorney doesn't have time right then and there to figure out who is at fault, if anyone, so they file a claim and name everyone that had any involvement. Than, as they go through depositions etc, they dismiss certain people from the case. People don't realize that it cost the medical malpractice insurance company thousands of dollars every time they defend a case where their doctor gets dismissed. I think there needs to be some stronger guidelines on filing a claim. If I am wrong on this I would like to hear the authors thoughts.

  2. Gravatar for William Eadie

    Razia,

    Thanks for reading and commenting. I would suggest that, when time constraints are an issue (such as the statute of limitations, which sets the time window when you are allowed to file suit), filing with "everyone" who could be at fault is required. That's why malpractice entitlements like tort reform are counterproductive, because they tend to shorten the statute of limitations. Thus, by the time the patient (or, if the patient passed away, her family) gets an attorney, it may be very close to the end of the statute of limitations.

    I think plaintiff's attorneys' and insurance companies' interests are aligned on this point: the plaintiff's attorneys are spending money taking those depositions, too, and I don't know any plaintiff's attorney who would not much prefer being able to hone the case down to the real culprit before even considering filing suit. It saves expenses, time, energy, and frustration.

  3. Gravatar for jc

    Right now, the plaintiff attorneys are doing no research on cases before filing. That is why they lose 80% of cases that go to trial and 70% of cases are dismissed without payment. Ohio needs to pass a law stating that the clerk of courts cannot accept a malpractice suit without an Affidavit of Merit against the doc filed with the malpractice suit. That would force plaintiff attorneys to do some minimal research before filing a claim.

  4. Gravatar for jc

    Maybe Bill Eadie doesn't know this, but if a patient comes into his office with a complaint, the plaintiff's attorney can always extend the statute of limitations in Ohio with a 180 day letter. That allows the attorney half a year to examine the case and determine whether true malpractice has occurred.

  5. Gravatar for William Eadie

    JC,

    Thanks for commenting.

    There already is an affidavit of merit requirement. Courts will allow some leeway by granting you an additional 90 days to file the AOM, but they do not have to do that.

    I am aware of the 180-day letters--I've sent many of them myself--and we do use them to try and prevent filing suit when more research might reveal people who can be kept off the complaint. They are an attempt to mitigate the negative effects of a far-too-short statute of limitations period. But they are better than nothing.

    But they only work if you already know who may be responsible. This is often impossible with the medical records they will provide without the pressure of discovery (in, for example, a busy hospital setting where may people might have had contact with a single patient, left impossible-to-read notes signed with only initials, etc.

  6. Gravatar for jc

    Show me in the Ohio Revised Code where it says that

    a plaintiff's attorney has to file an affidavit of merit with the malpractice suit at the time the malpractice suit is filed. There is no Court in Ohio which will prevent a plaintiff's attorney from filing a malpractice suit without an AOM. They will all give you 90 days to come up with an AOM, because the judges bend over backwards for plaintiff attorneys. Your arguments about lack of time and SOL are specious. You send out 180 day letters if SOL is an issue and, as a last resort, you can sue Dr. John Doe.

    Scatter shot suits against every doc whose name is on the chart is sloppy legal investigation and docs should be allowed to countersue plaintiff attorneys for that type of frivolous litigation. Remember, once you sue a doc, it effects his malpractive insurance rates and is on his record forever, regardless of the outcome of the case.

  7. Gravatar for jc

    Bill I would also like to point out that malpractice litigation is highly specialized. Most attorneys do not possess the knowledge necessary to pursue this litigation. Yet the Ohio Bar Association sets no training requirements for a plaintiff's attorney in this litigation. Is it any wonder that there are so many frivolous malpractice suits and that plaintiff attorneys lose 80% of cases that go to trial. Why doesn't the legal profession police itself!

  8. Gravatar for jc

    So far, Bill Eadie has not been able to show an ORC law which requires an affidavit of merit before a malpractice suit can be filed. Bill has also not been able to give an example of an Ohio court refusing to accept a malpractice suit without an AOM in Ohio history. So Bill Eadie is lying when he says that you have to have an affidavit of merit to file a malpractice suit in Ohio. Most malpractice suits filed in Ohio are filed without an AOM at the time of filing. In 90 days, the plaintiff's attorney if he cannot get an affidavit of merit, he dismisses the case and can refile in a year. This effectively extends the SOL for a total of 2 years 3 months. Don't cry for the plaintiff's attorneys, they will find a way to screw docs.

  9. Gravatar for William Eadie

    JC,

    Thanks for commenting, and commenting again, but please be respectful in your comments. I have tried to do the same with you. I don't lie in these posts, and I have no cause to distort things--I'd like the system to work better, too, and while we may disagree about how that could work, it is not my desire to reach some predetermined end point through lies.

    For information on the AOM requirement, look to Ohio Civil Rule 10(d)(2). (Civil Rule 10 governs the form of pleadings--the requirements for how you must prepare documents.)

    Here's a link to a pdf of the Civil Rules: http://www.supremecourt.ohio.gov/LegalResources/Rules/civil/CivilProcedure.pdf

    Here's Rule 10(d)(2), pasted from the above-linked PDF:

    (2) Affidavit of merit; medical liability claim.

    (a) Except as provided in division (D)(2)(b) of this rule, a complaint that contains a medical claim, dental claim, optometric claim, or chiropractic claim, as defined in section 2305.113 of the Revised Code, shall include one or more affidavits of merit relative to each defendant named in the complaint for whom expert testimony is necessary to establish liability. Affidavits of merit shall be provided by an expert witness pursuant to Rules 601(D) and 702 of the Ohio Rules of Evidence. Affidavits of merit shall include all of the following:

    (i) A statement that the affiant has reviewed all medical records reasonably

    available to the plaintiff concerning the allegations contained in the complaint;

    (ii) A statement that the affiant is familiar with the applicable standard of care;

    (iii) The opinion of the affiant that the standard of care was breached by one or

    more of the defendants to the action and that the breach caused injury to the plaintiff.

    (b) The plaintiff may file a motion to extend the period of time to file an affidavit of merit. The motion shall be filed by the plaintiff with the complaint. For good cause shown and in

    accordance with division (c) of this rule, the court shall grant the plaintiff a reasonable period of time to file an affidavit of merit, not to exceed ninety days, except the time may be extended beyond ninety days if the court determines that a defendant or non-party has failed to cooperate with discovery or that other circumstances warrant extension.

    (c) In determining whether good cause exists to extend the period of time to file an affidavit of merit, the court shall consider the following:

    (i) A description of any information necessary in order to obtain an affidavit of merit;

    (ii) Whether the information is in the possession or control of a defendant or third party;

    (iii) The scope and type of discovery necessary to obtain the information;

    (iv) What efforts, if any, were taken to obtain the information;

    (v) Any other facts or circumstances relevant to the ability of the plaintiff to obtain an affidavit of merit.

    (d) An affidavit of merit is required to establish the adequacy of the complaint and shall not otherwise be admissible as evidence or used for purposes of impeachment. Any dismissal for the failure to comply with this rule shall operate as a failure otherwise than on the merits.

    (e) If an affidavit of merit as required by this rule has been filed as to any defendant along with the complaint or amended complaint in which claims are first asserted against that defendant, and the affidavit of merit is determined by the court to be defective pursuant to the provisions of division (D)(2)(a) of this rule, the court shall grant the plaintiff a reasonable time, not to exceed sixty days, to file an affidavit of merit intended to cure the defect.

  10. Gravatar for William Eadie

    As for your earlier points, "You send out 180 day letters if SOL is an issue and, as a last resort, you can sue Dr. John Doe."

    For your information, since I get the feeling you don't know much about how these things actually work and that you're not reading my responses too closely, 180-day letters are only effective if the potential-defendant receives them before the statute runs. Like I said, and imperfect attempt to fix a too-short SOL, because you do not always know all the actors who may be involved. but it is better than nothing.

    John Doe pleading (under Civil Rule 15) was eviscerated by a 2010 Ohio Supreme Court decision, Erwin vs. Bryan. (PDF of decision: http://www.sconet.state.oh.us/rod/docs/pdf/0/2010/2010-ohio-2202.pdf)

    The Erwin decision change what attorneys understood the rule to mean. before, the idea was that, if you knew someone else might have been involved (like a hospital tech), but could not discover who they were before you had to file suit to protect the statute, you could name "John Doe," file suit, get the records you needed to identify the person, and then amend the complaint to name them (within a year of filing suit). That's certainly how the Rule reads.

    But the Court held that you still had to serve the complaint to these unknown people within the statute of limitations. How could you serve someone who you don't know? The court held that the rule wasn't to allow you to serve unknown actors, just people whose NAME you don't know, but who you could still sufficiently describe in all other respects so closely that they someone could serve them with the Complaint merely from that description.

    Here's what the court said in its syllabus:

    SYLLABUS OF THE COURT

    1. Pursuant to Civ.R. 15(D), a complaint against a party whose name is unknown must describe the defendant and a summons containing the words “name unknown” must be personally served on the defendant.

    2. Civ.R. 15(D) does not authorize a claimant to designate defendants using fictitious names as placeholders in a complaint filed within the statute-of-limitations period and then identify, name, and personally serve those defendants after the limitations period has elapsed.

    Again, JC, these are just facts; we can disagree on the pros and cons, but there's no need to resort to slurs on my integrity.

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