posted
Doctors in the US are on a pay per procedure system.
They do 1 thing, they get a fee. They do another thing, they get another fee.
So what is to stop a doctor from purposefully misdiagnosing a patient so as to perform multiple procedures, and collect multiple fees?
The patient can sue the doctor for his mistakes if those mistakes cause injury or harm.
Torte Reform as being proposed would cut the amount any person could sue for.
Sure, if my doctor caused me $10,000 in unnecessary expenditures I could sue and would be able to get most of that back, plus the cost of repairing what ever damage the doctor did, say another $10,000. I would then be limited to the amount I could sue for to cover the pain and suffering his error caused, perhaps to a third $10,000.
So I want go to a doctor who charges me $10,000 for treatments that do more damage than good. I am out $10,000. If I catch him, we go to court and I get my money back--breaking even except for the lost time, suffering, and other incidental fees that may have appeared. Then I get another $10,000 that goes back to the doctor to fix what the first one did wrong.
Oh, wait, you say. That 2nd $10,000 wouldn't go to the same doctor. I would take it to a 2nd doctor--unless the doctors are in the same medical corporation that handles a large percentage of all medicine in the area. Then, even if its a second doctor, the doctor corp is making that 2nd $10,000 back.
But then, there are complications, unexpected ongoing problems, fee increases since the settlement. The other $10,000 that I received for pain and suffering goes into these new expenses within the first 6 months.
Now I'm out all the money that I received for the malpractice, and the doctors can look forward to my continued payments.
But there is more.
This first doctor, the greedy one, practices this poor/rich medicine--poor in an ethical/quality sense. Rich in that it makes him rich.
If just 1 out of 3 patients take him to court, he loses money. But the statistics are more like 1 out of 20.
What is to stop him?
A bad reputation? Part of the settlement was that I can not complain about his reputation.
Under today's torte law, instead of $10,000 in pain and suffering, I would be getting $2,000,000.
That is enough to discourage even the most financially greedy doctor from playing his patients for mercenary purposes.
Yet the wise=guys in Washington, those in the AMA's pocket, want to change that. They want to limit how much we, the patients, can protect ourselves from those few greedy doctors and their medical corporations. . . . . Now. That entire argument is a pile of hogwash. There are at least 5 major problems that I can see with it even as it came out of my head.
yet
If it were sharpened just a little, and sent out to the blogosphere, chain emailed to all those people who send you pictures of cute cats and bible mis-quotes, it would be enough to scare folks into fighting against malpractice torte reform.
Welcome to the information age. Someone wise once said that Information was Power, but Information that is not used is just distraction.
Posts: 1941 | Registered: Feb 2003
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posted
I think that the trick to tort reform in general is for punitive damages - not actual damages but the amount juries add on to discourage bad behaviour to go somewhere other than to the plaintiff or his lawyers.
Posts: 11187 | Registered: Sep 2005
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posted
Also, no one is suggesting such a low cap on pain and suffering damage. $250,000 is the number I hear most often, to stop the millions and millions.
I think there are far bigger problems than tort reform, like a system that charges a fee per service, rather than an integrated system that only gives you the tests you need, and maybe even pays the doctor for his performance rather than how he can pad a medical bill.
But I still think it's necessary. You know, sometimes it's malpractice, and sometimes it's just an accident. When did America become addicted to the idea that medicine should be risk free? Accidents happen. Things don't always turn out the way we want them to, or expect them to, but we can't blame the doctor for it every time. If they're careless and make a mistake, they should pay for it in some way, but suing everyone because something doesn't turn out the way a person expects is a big part of our problem.
I'm okay with a cap on pain and suffering and punitive damages, so long as the actual medical costs are covered under such a malpractice suit when actual malpractice is demonstrated.
Posts: 21898 | Registered: Nov 2004
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posted
Malpractice reform is, by far, the least straightforward part of the inevitable overhaul of our health system.
It's such an insidious potential pitfall.
Caps do nothing to deter malpractice insurance rates, unfortunately, and the biggest expense facing hospitals, doctors and health care providers is (private) malpractice insurance. By focusing on crisis based care, you're making the consequences of any errors worse — exacerbating any bad decision making. If you keep more people healthier for longer periods of time for lower cost, you're going to be lowering malpractice insurance payouts and controlling malpractice premiums.
As it stands now, a hospital earns plenty money (and costs us greatly) when they saw off a gangrenous diabetic's leg. They do not earn any money when they spend a couple of bucks educating him on what to eat to control his diabetes. The current actuarial model creates a 'crisis-based' private health care outcome which is necessarily exploitative. It has to be, otherwise the "health care provider" is not fulfilling its fiduciary responsibility to its shareholders. Malpractice reform fits snugly into this, because 'reforming' it unfortunately causes few productive benefits in terms of removing this outcome; it mostly dismembers one of the few remaining tools individuals have against the system and it in practice simply means more money for insurers.
Posts: 15421 | Registered: Aug 2005
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As Lyrhawn said, the cap would not be on actual damages. They would be on the punitive damages, which are above and beyond the actual damages.
I am opposed because I think it won't actual do anything to control health care costs, since the malpractice judgments are a small drop in the bucket compared to spiraling costs.
Posts: 26077 | Registered: Mar 2000
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posted
I would imagine that actual malpractice judgements and the cost of malpractice insurance are different.
As it is, a doctor has every incentive to order procedures and tests that are usually (or even almost always) unneeded. It protects the doctor from lawsuits and increases the money the doctor makes.
Posts: 11187 | Registered: Sep 2005
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quote:Originally posted by kmbboots: As it is, a doctor has every incentive to order procedures and tests that are usually (or even almost always) unneeded.
Not if they are part of an HMO they don't.
Posts: 32919 | Registered: Mar 2003
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posted
In my one and only experience being called for jury duty, I got a pretty memorable lesson in the role that insurance companies play in driving up the costs of litigation in malpractice cases.
Short version - the case was settled for an amount that had always been on the table (and a relatively small one - the plaintiff wanted an admission of wrongdoing). The settlement occurred the same morning the case was to go to trial.
The judge was pissed - since he claimed this happened fairly frequently and he wanted us to know why our time and the courts had been wasted.
According to him, the case was a slam-dunk, with falsified records as part of the mix.
The insurance company's policy was to drag out any case as long as possible - regardless of the merits - and settle at the last minute. Not for the benefit of the immediate client and case at hand, but to discourage lawsuits in general, since malpractice lawyers would know what they would be up against. Knowing that, fewer lawyers would be willing to go up against them.
It would be nice to hear more about the role insurance companies play in this problem - it seems like the only "abuses" I hear of in malpractice cases are in terms of the people *bringing* a suit.
I'm influenced by personal experience, but I think the situation is more complicated than allegedly out-of-control malpractice lawyers and award-happy juries.
posted
I think the problem of overtesting has more to do with fee for service doctors who use good insurance plans like personal piggy banks, but that's not necessarily why I'd like to see tort reform.
I think it's a good idea even if it only marginally improves the spiraling costs of malpractice insurance. I don't think a cap on malpractice insurance will do much damage, or at least, I've seen little evidence that it will. As far as reform goes, I think it's a small piece of the pie, but...
Politically, it's a huge piece. Tort reform could be used as a potential carrot to gain bi-partisan support for an even more aggressive overhaul of the medical care system in this country, going far beyond just health care insurance. Republicans have hammered at the point for years, claiming Democrats are in the pocket of trial lawyers, and getting past it would remove a decent sized stumbling block, and also a repository of useless rhetoric, for what I think is a minimal overall cost.
I think a different way to get at punitive damage from the point of view of deterrence would be to make it illegal to have insurance cover punitive damages, and then set the cap considerably lower, like $10,000. That's a massive sum of money for an individual, and removing that consideration from insurance should at least put a dent in rates, in addition to causing doctors to be on their toes with the knowledge that insurance won't cover them, but neither would a punitive award ruin them.
Posts: 21898 | Registered: Nov 2004
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quote:I think a different way to get at punitive damage from the point of view of deterrence would be to make it illegal to have insurance cover punitive damages, and then set the cap considerably lower, like $10,000. That's a massive sum of money for an individual
Its a massive sum of money for most individuals, for a surgeon whose earning $500,000/year -- not really. For the CEO of a corporation with a net worth of $100 million, its penny cash, for a corporation like McDonalds, its not even in the noise. That's the problem with any cap -- it would ignore the huge disparity in available resources that exists in our society.
That aside, I don't think civil suits should ever consider punitive damages. Punishment is the role of the criminal justice system. The role of the civil justice system is to provide restitution to victims. Using civil suit to punish people blurs that distinction and degrades the cause of justice overall.
I think the entire issue has arisen because limited liability corporations are sort of outside the realm of traditional criminal justice. You can't send a corporation to prison, but you can nail them with massive punitive damages in a civil suit.
I agree with you that Tort reform is needed, but the real reason that its never gotten of the ground has little to do with trial lawyers. All the proposals out there for Tort reform would reduce the liability of large corporations which is exactly the opposite of what we need. Until Tort reform is coupled with reforms in increased oversight and increased legal liability for corporations, its dead in the water.
Posts: 12591 | Registered: Jan 2000
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quote:Its a massive sum of money for most individuals, for a surgeon whose earning $500,000/year -- not really.
A doctor working at a local practice doesn't make that sort of money. Maybe you put it on a sliding scale by making the maximum penalty a percentage of yearly income.
quote:For the CEO of a corporation with a net worth of $100 million, its penny cash, for a corporation like McDonalds, its not even in the noise. That's the problem with any cap -- it would ignore the huge disparity in available resources that exists in our society.
Well now you're widening the scope. Specific to health care, malpractice suits and limits on awardable damages, I don't see how that relates. The trial lawyers lobby has put considerable sums of money into Democratic coffers specifically to fight this exact kind of tort reform. Maybe as a wider look at tort reform in general, in the entire US Code, it's a drop in the bucket, but for caps on malpractice suit damages, it's either a big factor, it's perceived to be a big factor, or some combination of the two, and either way, that still makes it a thing worth looking at, and there's still a lot of political wriggle room on this specific part of tort reform.
Posts: 21898 | Registered: Nov 2004
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posted
"Keep what you kill" (yes, so it is sometimes called) is not necessarily the standard. It's often the case with smaller clinics owned by the providers, but doctors at larger organizations are more frequently paid a salary.
I do rather suspect we need some sort of reform before we run out of OB/GYNs all together. Right now a family practitioner who doesn't do obstetrics can expect to be paid a fifth more than one who does, largely because of the insurance issue.
Posts: 3826 | Registered: May 2005
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posted
Wow, you'd think in such a specialized market in demand of doctors they'd command a higher salary to make up the difference.
Posts: 21898 | Registered: Nov 2004
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quote:Under today's torte law, instead of $10,000 in pain and suffering, I would be getting $2,000,000.
That is enough to discourage even the most financially greedy doctor from playing his patients for mercenary purposes.
Your argument is based on the idea that the doctor would pay the settlement. But that isn't the way it works. The doctor pays malpractice insurance and the insurance firm pays the settlement. The doctor pretty much has to pay malpractice insurance whether he ever has a malpractice suit against him her or not because no hospital or clinic will allow a doctor to work in their establishment unless that doctor has malpractice insurance. And those malpractice insurance premiums don't change all that much unless a doctor has a unusually large number of suits.
That $2 milllion award you get, wouldn't come out of the doctors pocket at all. It comes out of the pockets of every patient seen by every doctor whose cost of doing business must include the malpractice insurance to cover your award. And that's the real problem.
Posts: 12591 | Registered: Jan 2000
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posted
A brief point from the last time we talked about tort reform:
The sort of punitive damage caps that are most often cited as "tort reform" only modestly affect the practice of defensive medicine. A different sort of tort reform that had a more significant impact on unnecessary tests was requiring malpractice claims go to arbitrartion before trial. In the limited study I remember, it decreased the cost of treatment per injury by about half without impacting quality of treatment. The effect of damage caps was more along the lines of 10%.
The take away is that the main driver of doctor concern over malpractice is not an occasional large suit, but the costs of frequent small suits that are then inflated by lawyer and court fees. <edit>I should say this isn't necessarily reflected in decreased malpractice insurance rates, although in an ideal market it would be.</edit>
quote:Republicans have hammered at the point for years, observing Democrats are in the pocket of trial lawyers
Fixed that for you Posts: 2926 | Registered: Sep 2005
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quote:Originally posted by kmbboots: As I recall from when I worked for an HMO many of the doctors were paid a fee for service.
HMOs tend to have quite a lot of service-limiting practices in effect (bonuses for doctors whose per-patient costs are low, for example). This is especially true for the type of HMO where the insurer/HMO is the employer of the doctors.
Posts: 32919 | Registered: Mar 2003
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posted
All I know is that doctors and hospitals frequently make mistakes. There was a study by the AMA, I think, or some other group that was representative of medical people themselves, which showed that 30% of all hospital patients suffer from mistakes by doctors or hospital staff that cause them harm. 30%!!!
All I know is that malpractice suits are practically the only power there is that counters this trend. What will the percentage be if we hamper them? 100%?
During years of working at hospitals, I realized that being in the hospital is a life-threatening situation. Don't ever go unless you're already in danger of dying, and there's a fair chance they can save you. Take the odds into consideration when deciding on that procedure. Doctors by personal necessity don't realize or think about all the downsides. Make your own choice based on full knowledge.
Whenever anyone I love is in the hospital, I try to spend as much time as possible there with them, too. They need someone who is well to look out for them and defend them against potentially lethal mistakes. If this sounds extreme to you, please realize that I didn't feel this way originally, but after years of working in various hospitals and hearing of cases weekly in which extremely questionable injuries were done to patients, I changed my mind. Then after that they killed my father despite all I could do. So that may make me sound rather definite in this opinion, so to speak.
No insult is meant to individual doctors or nurses or techs by this. It's the system that's broken. I applaud the many wonderful hard-working people who give their hearts and souls to helping heal their patients. There are many many health workers like this. I hope the current system changes to one that will reward them appropriately.
Posts: 6246 | Registered: Aug 2004
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quote:That aside, I don't think civil suits should ever consider punitive damages. Punishment is the role of the criminal justice system.
Note that compensation for pain and suffering is not the same as punitive damages. It's hard to quantify the value of pain, but I could certainly quantify the cost of the massage chair, the yoga classes, and the work that I have to hire people to do around the house because I can't do it. It's much harder to quantify the cost of the work that doesn't get done around the house because I can neither do it myself not afford to hire someone.
What I find really unfair is that I am unable to be compensated for my injury beyond that which is established by Worker's Comp, because I was injured on the job. I'd estimate that that injury has cost me about $200,000 since 1996, but there's nothing I can do about it, because a contract exists between employees and employers that says that employers can't be sued for pain and suffering, and that lost wages are computed as a fraction of the pay that you were earning at the time of the injury.
My injury happened in 1996, but if I lose work because of it (which just happened recently) I'm compensated at less than half of what I earned per day in 1996.
Posts: 3735 | Registered: Mar 2002
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