Friday, September 21, 2012

6 Things Your Doctor Won't Tell You About Tort Reform.

6 Things your Doctor won't tell you about tort reform. 

     Over the last two decades, medical malpractice law has been under the microscope, and legal rights and remedies of people injured by medical negligence has been eroded over and over again, to the point where justice in the field of medical malpractice is scarce as water in the Sahara Desert.

     Nowhere has this been more the case than in my home state of Texas, which has seen some of the most anti-consumer legislation in history in the field of medical malpractice.  And Texas's medical malpractice reform has been heralded as a model in other states, and before the United States' Congress by factions calling for federal medical malpractice reform.

     Here are six things that your Doctor will not tell you about tort reform and the medical system.

1.  Mistakes happen -- frequently

Yes, doctors study for long hours, devote years of their lives to caring for patients, and occasionally work miracles.  But doctors are also human.  And they make mistakes.  A lot of them, according to a study reported last year in the health policy journal Health Affairs.  According to the study, roughly one out of every three people encounter an "adverse event" (in other words, medical negligence) when they are admitted to a hospital. 1  Another study by the Institute of Medicine revealed that as many as 98,000 Americans die each year as a result of hospital mistakes, and a million more are injured. 2  That is equivalent to 750 Boeing 737s crashing each year!  

 2.   Health care costs are not driven by lawsuits

Many people cite lawsuits as being the reason for the high cost of medicine.  And there's a reason for that.  Its because medical mistakes happen to you, me, and our friends and families.  And we don't have a lobby in Congress promoting our interests.  Why is healthcare expensive?  For one thing, its because there is a tremendous amount of research and development that goes into truly "cutting edge" medicine.  Your cancer drug is not expensive merely because of lawsuits, but because the drug company spent billions to develop it, and has a limited amount of time to recoup their investment.  
Medical costs are also high because hospitals are under economic pressure to have the best facilities and the latest gadgets.  Part of that is due to competition with each other for the large health insurance group's business. Part is to attract new doctors and new patients.
Finally, medical costs are high because hospitals and doctors must shift the expenses to those who can pay them.  That $100 analgesic tablet?  It is priced so high because no one pays $100 except those who are private pay.  Private insurance patients' insurance companies pay $50.  Workers' Comp pays $25, and Medicare/Medicaid pay $0.25 (far less than the actual cost of the item).  These "discounts" must be made up somewhere, and it is by adjusting the overall "price," referred to as the "Chargemaster rate"

3.  Doctors insist on more exams to charge you more

You go in to the ER or the doctor with a basic problem, and the next thing you know, you are being sent for labs, X-rays, MRI scans, EBT, or some other procedure.  Many doctors, when asked, will throw out "fear of litigation" as the reason, but it's far more basic than that.
Why do doctors do so many diagnostic tests?  Having purchased the cutting-edge machinery that they were sold by smooth-talking medical device salesman, now the device must be paid for.  And each new diagnostic scan helps to pay for the machine.  There is a certain number of scans which must be done each month in order to make a profit.  Doctors, whether at a hospital or in private practice, are under tremendous financial pressure to make their office equipment profitable.  And they know that they will have to upgrade the machine's hardware and software frequently to keep pace with other facilities.
Many times, the price may also be driven by private insurance or medicare/medicaid, out of a desire to justify other procedures or more detailed exams, or make up for revenue shortfall on other items the medical provider can collect for.

4.  Doctors are not beseiged by frivolous lawsuits

Do doctors get sued?  Yes, of course they do.  (See number 1).  But how many of those suits are justified and how often are they frivolous?  Hospital and insurance lobbyists would try to convince you that all of them are frivolous.  Even though we know, instinctively that cannot be true, many of the statistics on the number of frivolous lawsuits cite all lawsuits in their number of frivolous suits.  Truth be known, there are no objective statistics which track whether lawsuits filed are frivolous or meritorious.  And that very description is subjective by nature, and depends on who you ask.  The injured plaintiff's attorney?  The defense attorney?  The court?
For any lawsuits that are truly frivolous, rules exist in every state and in the federal court system that allow these cases to be tossed out by the judge very early in the case,  and punish the people who file them, or assess costs against them.  That has been part of our legal system for generations. 
The truth is that most medical malpractice lawsuits, like other lawsuits, are brought by attorneys representing the injured party on a contingent fee. That means that the attorney or law firm invests their own money in the costs, filing fees, expert witness fees, and, if there is no recovery, that money is written off.   I do not know of a single attorney who is willing to invest $10 thousand (often ten times that) of their personal funds in bringing a case that does not have at least an even chance of winning, and paying the money back.  This is one way in which the contingent fee system is beneficial to the system, by serving as a common-sense gatekeeper to prevent frivolous lawsuits.

5.   Doctors won't tell you when they mess up.

With the amount of records that hospitals keep on everything that goes on, you would think that it would be easy to prove medical malpractice by looking at the medical records, right?  Well, the truth is that you will not get those records.  Since the middle of the last century, hospitals have been keeping detailed records of cases that go wrong, people who die because someone had a bad day, and other "things that go bump in the night." But those records are very well-hidden behind the "peer review privilege."  This means that no one other than the hospital administrators, and occasionally government regulators, is allowed to see these records or know that they exist.  Not the patient, the patient's family, or their attorneys.  "Peer review" means that  we want hospitals and doctors to talk freely about mistakes to make sure that they don't happen again, but more often than not, peer review becomes an excuse to protect negligent doctors and nurses from accountability, and hide the truth about mistakes that were made.
And mistakes become even harder to discern based on medical records, which are drafted by doctors and nurses that provided the care, sometimes hours or days later, and use such euphemisms as "poor outcome" to describe death on the operating table.  It becomes very easy for the providers drafting the medical record to "omit" negative statements from their records, and there is tremendous pressure on medical workers to maintain silence about mistakes that are made by these "problem children."  But just ask any nurse or health care worker in the family.  They will tell you horror stories about doctors or nurses who are known to be chronic problems. 

 6.  Justice in medical malpractice is an endangered species.

 If I get hurt by a negligent doctor, I can get fairly compensated, right?  Think again.  Probably not.  Due to the incredible weight of restrictions and regulation which have been emplaced in the name of "tort reform" over the last couple of decades, attorneys turn away far more cases -- often very tragic cases -- than they accept.  This is partly because of the extra procedures and requirement for experts that has really increased the burden of proof required to "win" a case,  and partly because of increasingly conservative juries who are unwilling to accept that doctors make mistakes, but more often than not because of caps on verdicts.
While claiming that they were fighting "frivolous claims," many states have very cleverly enacted caps on medical malpractice recoveries, which really only affect the serious, meritorious cases the most.  
In Texas, for example, "non-economic damages" are capped in medical malpractice cases to $250,000 maximum for all doctors involved, and $250,000 for negligent facilities, up to two facilities.  What is "non-economic?" Everything but lost wages and medical bills (which have their own, slightly higher cap).  And these numbers are not indexed to inflation.  Which means that, as the cost of living goes up, the caps actually go down, until the legislature decides to increase them.
Let's consider it this way -- a negligent hospital nurse administers nitrous oxide (an anesthetic gas) through a breathing mask instead of oxygen to your teenaged child with a cracked rib, and your child dies as a result!  The only legal way to get justice is through a lawsuit for damages.  And the hospital can only be penalized for $250,000 (which is the equivalent of a parking ticket to a multi-billion dollar facility). Your child had no medical bills resulting from the incident, and was not a wage earner, so there are no economic damages.   
What's more, the hospital knows that they risk $250,000 at most, so it is unlikely they will offer to pay the full amount voluntarily, without forcing you to go through a jury trial and appeals. The trial will likely cost 45% of the recovery for the lawyer's fees, plus $50,000 in expert expenses and depositions, leaving you with $87,500 or less to compensate you for the loss of your fifteen-year old daughter.
Its worse at a government-owned hospital, like the local county hospital or state-university affiliated hospital in Texas, where the government-claims cap may be as little as $100,000 per person injured for all damages.  In that case, your daughter's life might be worth as much as $5,000 under the same scenario.  Which is why many good lawyers are not willing to take medical malpractice cases, because they know that, in most cases, justice is not an option.

What can you do?  Get involved.  Write your legislature.  Follow groups like Stop TLR, the American Association for Justice, Texas Watch, and other grassroots organizations that look out for the rights of Americans like you and me.  It is time that the truth was known. 

Robert S. Hogan is an attorney licensed to practice in Texas and New Mexico, and Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization.  This article is meant for informational purposes only, and not to be relied upon for legal advice or representation.  

© 2012 Robert S. Hogan, Hogan Law Firm, PC, 1801 13th Street, Lubbock, Texas.

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