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Being in this line of work ( legal ) most people don't know that doctors/ attorneys work together. From ER to Physical Therapy. And they do get Paid. It's called a lien. There's a reason they Bill for more then it's actually done. And for reference, our firm works with surgeons/ doctors/ neuro surgeons to private practice/ physical therapy. It all goes in a circle.
Many state supreme courts have held caps on pain and suffering unconstitutional. Many states have a clause in their state constitutions which says something like:
1. "The courts shall remain open to redress grievances of their citizens" (caps on pain and suffering prevent the courts from fulfilling this function).
2. "Citizens are guaranteed a right to a jury trial in civil cases". (caps on pain and suffering prevent the courts from fulfilling this function).
Anyone considering this question or issue needs to ask themselves what function courts serve in our society. Courts exist as a vehicle for ordinary citizens to obtain justice against those who have wronged them, irrespective of that person's financial position within the community. Caps on pain and suffering deprive individuals of the right to have the courts award a fair measure of damages to them. They arbitrarily prevent citizens from getting that which is due them under common law.
From a purely practical level, someone might successfully argue that some limitation should be placed on damages for pain and suffering. However, $250,000 is by any standards inadequate compensation for a person who will be paralyzed for the rest of their life or someone suffering from a chronic pain condition that virtually never lets up.
A $250,000 cap is just wrong, wrong, wrong. I ask people who support such caps if they will cap the pain a victim suffers. Lawyer fees are typically one third of the amount recovered in these cases. That leaves two thirds of the money available to the injured person.
Lack of tort reform it the REAL reason American healthcare is the most expensive and least efficient in the world. Obama had nothing to do with that, but Dubya certainly pandered to the lawyering lobby every damn day he infested the White House.
Just another reason that lying war criminal should be brought in front of a firing squad --- or better yet, let Dubya crawl into Saddam's hiding hole and see how the Islamic jihadists do with him as they please.
I think this is such crap. States that do have so called 'tort reform' have healthcare just as expensive as in all other states. Fees for doctor visits/surgeries, etc didn't magically go down once tort reforms were enacted.
I feel so bad for this guy. Too bad they did not mark the correct side with a sharpie and confirm with the patient the day of surgery. Patients need to be their own advocates and on top of their procedures. What a nightmare.
You are probably underestimating the effect of defensive medicine. It is not "alleged," It's very real, and it may account for about a third of medical costs.
"Concerns and perceptions about medical liability lead practitioners to practice defensive medicine. As a result, diagnostic testing, consultations and imaging studies are ordered to satisfy a perceived legal risk, resulting in higher healthcare expenditures. To minimize malpractice risk, some neurosurgeons have eliminated high-risk procedures. Left unchecked, concerns over medical liability will further defensive medicine practices, limit patient access to care, and increase the cost of healthcare delivery in the United States."
In other words, not only does fear of being sued lead to unnecessary tests, it means some doctors will decline to do procedures that may have a significant risk of poor outcome. That is evident in obstetrics, too, for example, where some doctors and hospitals do not offer a trial of labor after a previous Cesarean section.
I really do not think there is much of a "conspiracy of silence" any more. With physicians having to compete with one another, peer review has become a way for some doctors to eliminate competition. They can be ruthless. Who regulates lawyers, by the way?
I have a real problem with attorneys making millions from a single malpractice case, too. The excuse that that money helps to pay for cases where the plaintiff loses does not fly with me. Lawyers do not take on contingency many cases they do not have an expectation of winning. If a jury awards $3 million for non-economic damages, why should a lawyer get $1 million or more out of that? What is the problem with payouts in the form of an annuity rather than a lump sum? Not everyone who receives a large sum of money at one time will be able to manage it. Money to pay for ongoing medical care should be available when it's needed and should stop when it's no longer needed.
I believe in another thread that you said the vaccine injury compensation system was a reasonable way to keep vaccines available to all of us. That has a cap on non-economic damages. It awards "reasonable" attorney fees. Lawyers do not make millions on vaccine court cases, though. Do we need such a system for neurosurgery? Obstetrics?
We also have the situation where juries award wildly different amounts for the same injury. In another post, you mentioned some of the factors that sway a jury, including the appearance of the parties in the suit and awards made on a basis of sympathy rather than merit. Do you really think that is just?
Defensive medicine actually has a lot of good points behind it. Right now it's public enemy number one of the bean counters and insurance companies and the "utilization review" types. You should see some of the stuff that they come up with as "defensive medicine" however. Clear presentations of torn rotator cuffs that you can't get MRIs authorized for for 10+ months.
Med Mal lawsuits are expensive. Have you seen what expert witnesses cost? It's pretty common to have several in any lawsuit. $500 an hour, two hour minimum. Trial testimony at $5,000 per day. It may seem excessive, but you've got to remember how much a lot of these people make. The average neurologist makes $500k a year, and they aren't using the average neurologist as an expert witness. When you're paying $500/hour for case review/deposition for five or six different witnesses, even if the case doesn't go to trial it's massively expensive. Again, the defense would love to limit those awards since that's the only way experts get paid for on the plaintiff side. No experts, no cases.
Of course, there's a cost to all of this. It's just overstated greatly. The entire medical field has very high salaries. Salaries, mind you. If you're employed by the hospital, you aren't carrying your own med mal insurance like a self-employed physician would. The salaries are still very high. http://economix.blogs.nytimes.com/20...ountries-make/
For specialists, it's even more pronounced. Some of that is education. A lot of countries basically pay for med school and then we steal their doctors since the pay is so much better here, hence why so many physicians are from India nowadays.
2. The government has studied the affect of medical malpractice suits on medical costs in general. The Congressional Budget Office has concluded that the malpractice suits result in a total increase of somewhere between 1% and 2% of health care expenditures. This research takes into account both the costs of medical malpractice insurance and the alleged cost of practicing defensive medicine by medical practitioners. Considering that medical costs rise an average of 3% to 7% per year, the point is that if you totally eliminated malpractice lawsuits, you wouldn't be able to notice the change in health care costs.
You are probably underestimating the effect of defensive medicine. It is not "alleged," It's very real, and it may account for about a third of medical costs.
"Concerns and perceptions about medical liability lead practitioners to practice defensive medicine. As a result, diagnostic testing, consultations and imaging studies are ordered to satisfy a perceived legal risk, resulting in higher healthcare expenditures. To minimize malpractice risk, some neurosurgeons have eliminated high-risk procedures. Left unchecked, concerns over medical liability will further defensive medicine practices, limit patient access to care, and increase the cost of healthcare delivery in the United States."
In other words, not only does fear of being sued lead to unnecessary tests, it means some doctors will decline to do procedures that may have a significant risk of poor outcome. That is evident in obstetrics, too, for example, where some doctors and hospitals do not offer a trial of labor after a previous Cesarean section.
I read this article closely. Tell me if this passes the "common sense" test ok? They assert that "defensive medicine" is approximately 26% to 34% of all medical costs in this country. For the sake of rounding, that would mean one-third of all health care dollars are unnecessary and caused by the tort system. I don't observe anything of the sort when I visit the doctor. Except for new machines and new tests, I don't see much difference in the medical care I got in the sixties as a child and the care I get today at the doctor's office.
Here's the second problem: Virtually all things that are alleged to be "defensive medicine" make money for hospitals and doctors. Do you see the conflict of interest here? The more tests that doctors and hospitals allege are necessary to protect themselves, the more money they make. The article you quote relied on a survey of physicians. I would suggest that someone other than this group which financially benefits from ordering tests and doing additional procedures should determine what is necessary and what is being done purely on a CYA basis.
The third problem with this analysis is I want to know what's the boundary between defensive medicine and good medical practice. Is it defensive medicine or simply good medical practice to order a CT scan for someone complaining of either a minor head or cervical spine injury? How about ordering an ultrasound test when a patient complains of an injury to his leg which he believes is a torn ligament? If we say these things are "good medical practice" than its not defensive medicine.
I really do not think there is much of a "conspiracy of silence" any more. With physicians having to compete with one another, peer review has become a way for some doctors to eliminate competition. They can be ruthless. Who regulates lawyers, by the way?
I could write reams about this. I'll try to be brief. Finding a respectable expert witness in a medical malpractice is a chore. Even when the malpractice is something blatant like sewing up a sponge in a patient during surgery. I think I have mentioned I've handled a half dozen malpractice cases in thirty years. I've never, repeat never, been able to get anyone local to testify against another physician even when the malpractice was truly blatant. What I've done is go to "Who's Who Among American Physicians" and make some guesses based on what I read. Than, its spend some time on the telephone. Expert witnesses in these cases are expensive and that alone is proof that the local medical community won't provide the testimony.
Are you aware that there are malpractice lawsuits against lawyers? Most lawyers, like myself, now have insurance for this very purpose. The difference is that suing a lawyer is comparatively easy in my state compared to suing a physician. There is no pre-litigation screening process, there is no shortened statute of limitations, there is no requirement that notice be given to the state licensing agency. There is no damage cap if a verdict is rendered against me. A lawsuit against an attorney is no more difficult than suing an ordinary citizen.
One more I will make. Our state bar association disbars a minimum of a dozen lawyers a year. Can you say the same for the medical association in your state? For example, how are doctors with alcohol and drug problems who injure patients dealt with?
I have a real problem with attorneys making millions from a single malpractice case, too. The excuse that that money helps to pay for cases where the plaintiff loses does not fly with me. Lawyers do not take on contingency many cases they do not have an expectation of winning. If a jury awards $3 million for non-economic damages, why should a lawyer get $1 million or more out of that? What is the problem with payouts in the form of an annuity rather than a lump sum? Not everyone who receives a large sum of money at one time will be able to manage it. Money to pay for ongoing medical care should be available when it's needed and should stop when it's no longer needed.
Let me answer a question with a question. Why should specialist physicians expect annual incomes of $500K or more per year? If I were answering that question, I would say "because that's the price the market sets". I actually dispute that the market mechanism really works when it comes to health care, but its beside the point. If doctor's fees are going to be unregulated, than legal fees should be unregulated as well.
I believe in another thread that you said the vaccine injury compensation system was a reasonable way to keep vaccines available to all of us. That has a cap on non-economic damages. It awards "reasonable" attorney fees. Lawyers do not make millions on vaccine court cases, though. Do we need such a system for neurosurgery? Obstetrics?
Good memory, I did say that I would assert that the situation with vaccines was a more dire situation. There was difficulty finding a company that would make certain vaccines without that change in the law. I don't see all obstetricians or neurosurgeons shutting their doors because of malpractice insurance. Rather, they raise their rates by some modest amount to cover any additional cost.
We also have the situation where juries award wildly different amounts for the same injury. In another post, you mentioned some of the factors that sway a jury, including the appearance of the parties in the suit and awards made on a basis of sympathy rather than merit. Do you really think that is just?
I think its unjust when people with valid cases lose those cases because an insurance company and the doctors/hospitals they insure have the money to wear them out and hire more and better witnesses. Unfortunately, that regularly happens.
What you say has an element of truth in it. However, I won't address it until you admit that the problem cuts both ways and sometimes its consumers rather than medical professionals who are treated unjustly.
There is a saying that I don't like, but there is some truth to it:
Little people get little justice. Big people get big justice.
That report is 12 years old. The numbers used in it are older.
Defensive medicine has grown quite a bit since then.
This is a 2009 article from the New York Times discussing data from 2008. It says the same thing. Malpractice costs are about 1.5% of total health care costs.
Let's look at it another way, though. Let's say we did undertake major changes in the system. How much of that 1.5% can be saved? If you run any compensation system at all its going to cost you money. So, in the end what we are really talking about is saving about 1/2 of 1 percent. Even if you stretch the numbers a bit, its still not going to result in a significant change in health care expenses.
That's terrible. I have worked in healthcare for over 30 years and I cannot imagine that happening. Surgeons are diligent about talking with the patient before surgery, marking the correct operative site, and taking a timeout before beginning surgery to again verify the correct operative site.
But in this, since it did happen, I definitely think the man deserves whatever he can get. They basically took away his life. Very sad.
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I would assert that the situation with vaccines was a more dire situation. There was difficulty finding a company that would make certain vaccines without that change in the law. I don't see all obstetricians or neurosurgeons shutting their doors because of malpractice insurance. Rather, they raise their rates by some modest amount to cover any additional cost.