Texas MedMal in the News

Well, what to believe. A couple of days ago an analysis of Texas Medmal verdicts was released, finding basically that Texas had no crisis of skyrocketing Medmal verdicts. That this goes against the conventional wisdom in my field is a given. Symtym has quotes from several of the Usual Suspects. Reflecting my skepticism with an eloquence I lack, Ted Frank at PointofLaw has questions for the authors, and points out some fairly basic flaws in the paper.

Then, comes this news:

TMA Action

Citing the 2003 liability reforms and passage of Proposition 12, two more professional liability insurers announced last month they plan to cut their rates.

Physicians who hold policies written by The Doctors Co. should see an average 14-percent drop in premiums. The company has asked the Texas Department of Insurance (TDI) to approve its plan to give rate reductions of up to 30 percent to most of its 1,100 customers in Texas. The change would be for new policyholders effective April 1 and for renewing policyholders effective June 1.

American Physicians Insurance Exchange said it will cut rates for about 2,200 Texas physicians by an average of 5 percent.

The cuts are the latest reductions announced by insurers in the wake of the 2003 reforms. The Texas Medical Liability Trust (TMLT) has reduced its rates by 17 percent. TMLT President Tom Cotten called the reduction “indicative of the triumph of medical liability reform in Texas.”

OK, I’ll give you that 5-15% cuts aren’t terribly dramatic, and the days of $2000 coverage are gone forever. However, I know which of these I believe. If insurers are voluntarily lowering rates after a historic run-up, that tells me that medmal reform works to lower rates.

The real solution to this situation is for people to realize no-one is perfect and that accidents happen. I’m for actual victims of real malpractice being appropriately compensated. I’m against the current adversarial/lottery system, and I’m against medmal being used as disability insurance by patients with bad outcomes.


Comments

  1. amen. i want justice… the quaint notion that elevates us above the beasts. glad to see a glimmer of hope, enroute to larger reforms someday.

  2. Curious JD says:

    You got duped, Doc. You were used by the insurance industry. You were so eager to blast lawyers and believe everything you were told you left a physician’s typical healthy skepticism at the door.

    And now, next time the economy drops, you’re going to get slapped again. Who you going to take it out on next time? You’ve already hammered those who have been injured the worst by medical malpractice? Who is next?

    “If insurers are voluntarily lowering rates after a historic run-up, that tells me that medmal reform works to lower rates.” Look at you, you still want to believe so bad it hurts. What has changed? The economy has turned around. Interest rates are up, the stock market is up. They jacked your rates up 150% for no reason, and now they’re giving you back 15% and you’re happy.

    You’re against a system that has nothing wrong with it. The only thing wrong is that you swallowed, hook line and sinker everything the AMA told you. And to save a few dollars on your insurance premiums you screwed over the truly catastrophically injured. You didn’t stop any truly frivolous suits from being filed, you didn’t get any long term relief on your rates, you didn’t get anything.

    The facts are that the last thing anyone uses med mal for is a disability policy against bad outcomes. Anyone who has any clue about what goes into a med mal trial knows that those cases are screened up and down and the vast majority are turned away by lawyers.

    What are you going to tell yourself the next time the economy tanks?

  3. A SYSTEM THAT’S GOT NOTHING WRONG WITH IT?

    What planet do you live in? Oh, right, the one which enriches itself at the hands/wallets of others.

    I have DIRECT, PERSONAL experience with your ilk, I have been sued because of bad outcomes but without wrongdoing on my part, and this system is screwed up beyond belief.

    Now, because your golden goose is getting squeezed, you’re going to wrap yourself in the ‘protecting patients’ wrapper. You are not kidding me or anyone else.

    I DO know who is on my side, who profits from me, and who is my enemy. I’m not stupid, insurance companies are NOT my friend (my rates are going up, not down, thanks to plaintiffs’ lawyers just like you).

    So, my two final thoughts to you:
    a) start a medmal ins. company. If it’s such a great way to get rich at the hands of stupid docs like me, then you can prove your point and retire early.

    b) I wouldn’t listen to the Devil tell me how scripture is wrong, and I’m not going to listen to a plaintiffs’ lawyer telling me how medmal reform is wrong. Has to do with their underlying agendas, you see.

  4. Curious JD says:

    I like the old “start a med mal insurance company” line. Let me turn it around on you – if practicing med mal is such an easy way to make tons of money, why don’t you get a law degree and do it? That argument is dumb both ways. The great thing is you picked that line up from Ted Olson, who has made his money representing the insurers you claim not to trust.

    Look at you – the proof is that claims are consistent, payouts are consistent, etc., and you still believe it’s the lawyers who are driving up your rates. And how do you solve that problem? By shitting on the patients with the cases that clearly aren’t frivolous. What passed in Texas doesn’t stop a single frivolous suit. You don’t have to listen to me, in fact I’d be surprised if you did. You only have to read every bit of evidence out there that wasn’t put out by an insurer for the truth. For someone who doesn’t trust insurers, you sure put a lot of faith in their “studies”.

    Whose golden goose? The only reason we’re having this conversation is because YOUR med mal rates went up and you think squeezing those who are already injured is the way to get them down. Forgot about that underlying agenda, didn’t you?

    Doc, I’ve got some oceanfront property in Denton I’d like to sell you. You’re clearly just the kind of person who I think would be willing to buy. I’ll have my insurance agent drop by with the details – I know you’ll trust him.

  5. Curious JD says:

    Sorry, I got the guys who make their money from those with the most interest in tort reform mixed up. It’s Ted Frank and Walter Olson. They’re easy to confuse given that they have the same backers.

  6. But you don’t share the same backers. Hehe.

    And, I’m not starting a medmal insurance company for the same reason, although because I’m willing to admit it’s not the pot of riches you say it is.

    Your arguments are specious, and when unable to defend them you resort to calling us dupes.

  7. Curious JD says:

    If a physician believes that an increase in lawsuits is the reason their insurance premiums skyrocketed the last 5 years, then they have been duped. Because the evidence is that payouts and claims have dropped or remained consistent with medical inflation or the increase in population.

    If a physician believes that a cap on damages will lower their premiums for any length of time or any appreciable amount, then they have been duped. Because even states with caps are having a “crisis.”

    There is nothing specious about the article you linked that started this thread. There is nothing specious about the evidence showing that everytime there has been an economic downturn in the last 30 years, there has been a med mal “crisis.” There is nothing specious about the fact that caps don’t affect “frivolous” claims, rather they only hurt those already injured the worst. There is nothing specious about Pennsylvania’s largest med mal insurer going broke because of mismanagement and looting by its corporate officers. I’m not making this stuff up – it’s been documented time and again by independent sources – people who have no axe to grind.

    And actually, I’m not backed by an insurance company. I don’t work for them for the same reasons you don’t like working for them, probably. I don’t feel like having someone who doesn’t practice law question my billing or my professional judgment.

    Doc, there are lots of problems in medicine, and I know you’re getting squeezed at all turns. But you’ve been sold a bill of goods by insurers because lawyers are an easy target. The fact is, we’ll be doing this again in 10 years if the stock market tanks and interest rates drop again, just as we did in the mid 70s and late 80s. But the problems you face with respect to overregulation, billing issues, etc. will still exist and only continue to grow as the population ages.

    You’re facing a national health care plan if you don’t stop focusing on this tiny slice of the healthcare pie and concentrate your energies elsewhere. The government isn’t going to let GM et al. fail, it’s going to take over its insurance liabilities. Bush is cutting Medicaid payments to the states – that’s going to come out of your pocket. If your industry spent more time marching on your state capitols on those issues instead of hurting those who have already been hurt, you personally would be much better off. Your insurer might not, but you would.

  8. Suit rates are up, payouts are up. The AMA has a multipage study that shows it. It’s been pointed out to you, before, in other comment threads. The article I linked to is notable only because it’s the only one I’m aware of that goes against the AM study, and linked it mainly to point out there are questionas about its methods, and therefore its conclusions.

    Again, I’ve not been duped by anyone. My eyes are wide open. You wouldn’t be screaming if your ox weren’t getting gored, like ours in medicine has for years, at the hands of your ATLA buddies.

    ‘They’re going to nationalize healthcare’ is the next ATLA talking point to counter medmal reform? Hmm, wonder how that test-marketed (or, is this the test-market for that little bit of sillyness? Because, that would put you out of business, nearly completely. With nationalized healthcare, docs would insist on being covered just like other fed/military docs, and thereby be suit-immune. Have fun suing Uncle. (I know it’s done, but it can’t be as fun as squeezing a settlement out of a doc).

  9. Curious JD says:

    Got a link? Every study I’ve seen shows that payouts have tracked medical inflation, which is not surprising considering that much of the damages are past medical bills – which incidentally typically get paid back to the health insurer. Medical inflation has gone up significantly.

    Suits have remained consistent with the growth in the number of physicans or the population growth, except for the occasional time when tort reform is enacted and many are filed to beat the effective date.

    The AMA’s study doesn’t say that at all (disregarding the fact that it isn’t a study, but rather a compilation). You will not find in there anything that shows that payouts have been anything but consistent with inflation – they don’t even mention inflation in there because it undercuts their numbers. You will find such silly stats as the “tort costs” on American society. Never mind that the “tort costs” includes claims from no-fault states, insurer overhead, insurer exec salaries, adjuster salaries (which they’d have even without litigation), etc. Use your natural skepticism when you look at these numbers, doc.

    The fact that you think you’re getting “gored” by lawyers only further illustrates how much you’ve been duped. Again, claims haven’t gone up any great amount and payouts have remained consistent. Yet your rates have skyrocketed. You need to get a better ID on that bull that’s sticking you.

    I’m only screaming because I know how bad it sucks for people on the lower end of the economic ladder already to get screwed that much more. It doesn’t affect my bottom line at all. I can do real estate work, probate work, etc., and less than 5%, if that, of my practice is med mal.

    You’re foolish if you think that nationalized health care would put me out of business. Just as foolish as you are if you think insurance companies are in the business of being squeezed out of defensible claims. Med mal is an extremely difficult specialty, and any lawyer who can try a case for either side of a med mal case is going to be able to make money trying any kind of case.

    What do you think is going to happen when companies like GM can’t afford their health care promises to their pensioners? Who do you think is going to pick up the tab? GM alone has 1 million workers covered. And I don’t know if you’ve looked lately, but they aren’t selling that many cars. This has nothing to do with ATLA, lots of people are saying this.

    For a good, unbiased look at the whole issue of tort reform, this week’s Business Week has it as the lead story. It’s worth picking up, or at least reading in your local Barnes & Noble and not buying, as I did.

  10. Wow, I suppose that makes me foolish AND duped! Wonder how I can get my shoes tied in the morning, being so ignorant and all.

  11. Curious JD says:

    Doc,

    Do you really think there won’t be any need for litigation if there is a nationalized health care plan? That people will somehow start magically being nice to each other?

    Do you really think that insurers make money by rolling over on every frivolous lawsuit? Do they roll over when you submit your bills? Why would they be any different for anyone else.

    You don’t believe those things, I’m sure, so clearly you’re not foolish?

    You’re not stupid, and we both know that. But you have an irrational faith in what the AMA is telling you. I challenge you to cast the same critical eye you cast on every case of med mal that’s won on the claims of the insurance industry and the AMA. Give it the same fair reading and see if you still believe it.

    Good luck. I hope your rates stay down. A lot of hurt people lost big so you could have that. I hope you and yours are never the victims of malpractice.

  12. I’m not an AMA member, because I pay attention. Their political biases on many issues clash with my own, and I’ve written about it before.

    I’m not swallowing anything I didn’t choose, observe and chew up first. I only swallow things I’m willing to live with. Tort reform is one of those things. It’s not perfect, but it’s better than what we had.

  13. Curious JD says:

    You’ve obviously swallowed something if you believe claims or payouts were up due to lawsuits. The study you linked proves that. I guess your exhaustive study of the situation didn’t turn up GE Medical Protective’s letter to the TX Dept. of Ins. where it stated that noneconomic caps would effect at most 1% of its losses. They wrote this in connection with their request for a 17% increase after Texas tort reform.

    I also guess you didn’t know that the number of malpractice claims per year between 1992 and 2001 peaked in 1993.

    So what does it do that makes it better than what we had? Are you happy that people who may have been legitimately injured to an extent severe enough to justify a high award will not be able to recover?

    Or do you just believe that no one in your profession could ever commit negligence? If so, you get acquainted with this physician, who by the way has never been disciplined by the Texas State Board:

    Physician Number 36270 settled eight malpractice lawsuits between 1992 and 2002 involving two incidents of wrong diagnosis, surgery on the wrong body part, two incidents of improper surgery, improper treatment, improper performance of treatment, and unnecessary surgery. The damages add up to $2,925,000.

    You, of course, could probably ask around and would know about this doctor before letting him treat you or your family. What about the rest of us? How do we protect ourselves if you just gave him liability protection from non-economic damages?

  14. I’ll bet, were I interested, that I could find a similarly incompetent lawyer who was never meaningfully disciplined by any state. That doesn’t make jackpot medmal verdicts right.

    But, that’s beside the point, at this point.

    What is it with you? You’re just pathologically arguing now, for no purpose other than you’re specifically trained to argue. I accept that you cannot seem to let this thread go, and ask you to reflect upon why you keep commenting when it’s clear I’m not EVER going to swallow the ATLA koolaid, and apparently nobody else cares about a week-old thread?

    Why? Why do you do this? You like to see yourself type?

  15. Curious JD says:

    I don’t know why at this point, so I’m giving up. You have faith like an original Apostle. Except your Messiah is your insurer.

    You say I’m giving you ATLA Koolaid, but the only one who has mentioned ATLA is you. All the numbers I’ve mentioned come from state court statistics compiled by the courts themselves and from state medical agency stats. It’s sad how your misplaced anger has replaced your ability to reason.

    You probably could find a lawyer who has done that. But we police ourselves pretty aggressively, and if a lawyer screwed with client funds the way that physicians screwed with his patient’s body, he’d be out the door. If you even overdraw your trust account by $1 as an attorney, you’ll get a call from the State Bar that day requiring you to justify it.

    You want to talk about “jackpot” med mal verdicts, but the truth is almost anyone who has received a lot of money in one of those cases wouldn’t trade what they’ve been through for all the money in the world. And the other thing is, you don’t even mention how much of that money goes to medical bills, both past and future. There is no jackpot for someone who has been hurt badly by medical malpractice.

    I pointed these things out to you because I know deep down there is a reasonable, scientific person under all the anger. Maybe one day it will seep through. Until then, I hope your prayers to Hank Greenberg are answered, and that when you are ultimately disappointed by your Messiah, you don’t lose faith in ALL humanity.

    Good luck.

  16. I have been deeply disappointed, and it was at the hands of Plaintiff Attorneys just like you. There is no fairness to this system, no reasonable checks on greed, until we found a way to take the jackpot out of the verdict. Suddenly, suit rates are down.

    Doesn’t take a genius to line up those dots.

    I’m an entirely reasonable person, and have no use for your line of argument. I’ve read it, it doesn’t fit my life or my experiences (or, frankly, the experiences of my colleagues or the patients and family I’ve talked to about it), there’s plenty of data to support my conclusions. So, I’m done.

  17. The doctor is done is because he lost an argument. There is no data to support his assertions–his support is whether claims “fit[s] my life or my experiences.” As I hope Dr. Grunt learned in Psych101, human beings have a tremendous capacity to edit reality to buttress their prejudices (and their pcoketbooks)

    And Dr. Grunt is supposed to have a scientific outlook??? Does gruntdoc look at data to determine courses of treatment or just he just try to see whether a particular medicine or surgery will “fit his life experience”

    The point is the consumer-doctor contract is costly to monitor. We need a system to ensure that doctors don’t screw up (And, “Trust us, we’re professionals doesn’t do it”–ha, ha, trust the s elf-protecting medical monopoly mafia’s mandate of omerta!!!) Like audits on taxes, the med mal system provides a check. Like audits, ithe med mal system is somewhat arbitrary in its inenforcement, but it is effective at making sure that doctors don’t cheat.

  18. I have not lost an argument. My argument has won, and continues to win, to wit the opening of this post. That I decide not to continuously argue the same thing over and over again is not evidence of a closed mind. I’ve examined this, on many many occasions. This comment thread isn’t my first foray into medmal reform, but pray it’ll be my last.

    As for your contention that the current medmal system provides a check is correct only in that it provides lots of checks, but only to the lawyers for both sides. There’s NO data to show that medmal suits ‘police’ the specialty any better than asteroids.

    And, let’s remember, we didn’t abolish medmal suits. You can go any weekday and file one in my state. However, the only change is you just can’t get rich doing it.

  19. Curious JD says:

    Yeah, because everyone knows that the best way to get rich is to have a case where your noneconomic damages might be over $250,000.

    It’s such a happy existence being a quadraplegic with all that money. Or a child whose brain doesn’t function. Or any of the typically catastrophic, life altering injuries that involve pain and suffering awards that high. You’ve hit the jackpot!! Woohoo!!

    It’s sad how happy you are that you’ve hurt those who have already been hurt the worst. And all so your insurer’s execs can afford that second home in Aspen. What’s even sadder is that you didn’t win anything yourself. You’re a cheerleader for someone else’s team.

    Guess you better hope it’s not one of your loved ones on the other end of a physician’s negligence. Or maybe you just don’t believe it ever happens. Whatever you have to tell yourself, I guess.

  20. Curious JD says:

    Speaking of someone else’s team, do you remember that class action a few years back where about 600,000 docs sued Cigna, the health insurer, claiming they were screwing them on the reimbursements. The docs got tens of millions back.

    Your friend Ted Frank from PointofLaw.com, who you cite so approvingly, worked on that case. Guess which side he was on?

    Keep cheering.

  21. I’m not happy with any of those outcomes (from the post above your last post). Those are horrible outcomes. A very few may be due to medical malpractice, but statistically most are not. I’m willing to bet, though, that most sue their doctors. Why? Because they can, which is correct, and because it’s a way for the lawyers to enrich themselves, which isn’t.

    If lawyers are not now taking those cases (because of caps), they have no-one to look at but themselves. As Protectors of the Injured they have to, right? Otherwise, it’s just about The Money. And we all know, from your very very frequent comments, it’s not about the money. Really. Except that it is, except that it isn’t, unless it’s money that’s not for actual damages, then it is, except it’s not.

    Got it.

    I’m really not worried about physician negligence and harm to my family from it. See, as a physician, I see how very very very rare it is, and sleep well at night knowing how rare it is. And, so much for (the second try at) that canard.

    And, for Cigna: 10 mil div by 600K docs is $1,666.00 each. Wow, they’ve hit it rich! And, that was (mostly) before my time, so I haven’t hit it ‘rich’. Ted Frank may have gotten rich, and you’d applaud if it were your side being enriched, but alas, again is isn’t. So, again, you don’t.

    Still, it’s legal to file for medmal in my state, and every state. Any weekday, I’m told. You just can’t hit the Lottery doing it in my state. You can get all your damages (real and projected) to include medical costs and the like, plus a quarter of a million dollars more. Medmal isn’t outlawed, but greed is curtailed.

    And, lastly, a quote from you and a response from me: “It’s sad how happy you are that you’ve hurt those who have already been hurt the worst.”

    Are you accusiing me personally, sir, of hurting people? If so, say it now, in print and out loud. If not, apologze or clarify (I know you guys can clarify with the best of them). If so, and you think I have any glee that I’ve hurt anyone, you are to be despised for assuming any such base motive in me.

    If not, perhaps you have misspoken yourself. I offer you this opportunity for retraction.

  22. Curious JD says:

    That’s nice that you’re willing to bet things, but why don’t you back it up with some statistical evidence. For a man of science, you sure do rely on anecdotal evidence a lot.

    I know you like to focus on the lawyers, because that beats focusing on a screwed up child or woman who has a double mastectomy based on a faulty reading, but think about them for a second. If you can.

    I misspoke on the CIGNA settlement. Guaranteed cash payments of $85 million and possibly up to $140 million, plus they are required to make changes in their reimbursement practices which should net physicians up to $400 million more.

    My point as to Mr. Frank was merely that you still haven’t realized who you’re doing the dirty work for. When he writes these articles, he’s not doing it to help you. He’s doing it to help his insurance industry clients.

    And yes, I am accusing you of hurting people. I’m accusing you of taking away the opportunity for justice for the weakest members of our society all so you can hopefully, maybe, talk your insurer into lowering your med mal rates. And that hurts people. You take away their ability to pay their past and future medicals, and you take away their ability to get compensated for the loss of their quality of life. Would $250,000 be sufficient for your child’s ability to speak, walk, talk?

    When you say people who would file cases that might exceed the $250,000 limit are only motivated by greed, you’re simply wrong. You would be very hard pressed to find anyone with an injury so debilitating that it would merit that kind of award who wouldn’t rather have their health back.

    When you say “Medmal isn’t outlawed, but greed is curtailed”, are you not gleeful that it’s now harder for people who have been hurt that bad to recover? Maybe I misunderstood what you wrote.

    And again, YOU GET NOTHING FROM THE CAP. Zero. Your rates will skyrocket again as soon as the economy tanks, just like they have every time for the last 30 years. You don’t even stop the filing of frivolous suits. You just stop the full compensation for legitimate ones. And again, by doing that, you are hurting people. People who have already suffered greatly.

  23. Curious JD says:

    And doc, before you go on and on about how you’ve been wronged and how evil you think all lawyers are and so on and so forth. Remember that this all comes from your belief that you’re being sued out of existence and the fact that your insurer has to raise their rates so much because of all the lawsuits.

    And it’s all a lie. Not according to ATLA, not according to me, not according to some trial lawyer’s think tank, but according to your own Dept. of Insurance: “data from the Texas Department of Insurance shows that the number of claims, the value of claims, and the rate of claims per physician have all remained constant or declined over the last decade.”

    You’ve staked all this time and effort on a lie.

  24. Yes, you seem to have mentioned, several times, your dislike of insurance companies. You seem to have missed several time, my explanation that I’m not in love with my insurance company, and that THANKS TO PEOPLE JUST LIKE YOU my medmal is going up, not down.

    My experience is not unique; some of my colleagues tell emt their medmal insurance is going down, others tell emt theirs is going up.

    Not a bit of this gets your buddies off the hook for a slew of ‘just in case’ suits filed before the laws changed here in Texas, to get in under the ‘jackpot’ rules, and before the reform rules took effect. Firvilous suits: yes, I’ve had some. Thanks to your buddies. I have yet to hear you plaeding for sanctions for them, or for the emotional toll their suits have caused, or the time I’ve lost giving depostitons.

    Yes, I get it: you want to blame all this on “The EEELVIL insurers” and not look in the mirror as the cause. I got it about 16 posts ago, but because youre un/underemployed, you have nothing better to do than harangue me and this thread.

    I suppose it’s a small price to pay to keep you from filing suit against a doc whose patient had a bad outcome.

    And, it’s still legal to file a medmal suit in my state, you just can’t get rich doing it. Get it?

  25. Curious JD says:

    Whatever you have to tell yourself doc. You’re the one hurting people.

    I strongly believe in sanctions. I recognize their necessity and think they are underutilized. I also can respect a person who believes in discussing such things as modifying expert witness standards, or pre-suit screening panels.

    What I can’t abide are people who would remove the right to allow a jury to decide damages in a civil case. You may not like insurance cos., but you sure are quick to do their dirty work. That’s why I call you a dupe.

    Next time you read about someone who has been the victim of negligence by a physician who was drunk or was abusing drugs, and they get their award knocked down because of caps, why don’t you call them and tell them how much better it is that they didn’t get a “jackpot”? For someone supposedly dedicated to healing, you sure don’t care much about those hurt the worst.

    Good luck to you doc. I’ve whipped you and your anecdotes thoroughly and it has ceased being fun. You’re a hard hearted soul, whose only faith appears to be in what his insurer and the AMA tells you. Jesus would be lucky to have such adherents to his message.

  26. JD – this is getting crazy! getting the last word, writing response after response ad nauseum, and badgering people is no way to convince us of anything. it shuts down our will to share a dialogue with you, and your occasionally valid points are in danger of being completely disregarded.
    give us a break!

  27. Yikes. Remind me never to post about MedMal. Never. Ever.

    Of course the beauty of blogging is that the blog owner can ALWAYS get the last word–and then promptly close comments. :-)

  28. Whoops…didn’t mean to be anonymous.

  29. I can’t figure out why a socialized system would be a problem with respect to malpractice.

    What I mean is, the government exempts itself from the liability rules the rest of us experience.

    The state medical centers in my state are heavily protected.

    TOTAL liability for the state medical centers in my state are lower than the NONECONOMIC damages limit in Texas. There is specific statutory limitation.

    There is already talk about trying to impose liability limits like our state medical center has, for docs who provide care to our Medicaid patients. In other words, we would be agents of the medical school when providing care to Medicaid patients. Or similar agency when doing trauma care, or working in rural areas, etc.

    If we had socialized medicine in our state, I could see that doing more to advance tort reform than anything else.

    Of course, then we would have the problem of socialized medicine. You could have all the quality problems of the National Health Service, the waiting lists, etc., with no ability to sue.

  30. I also can’t figure out why one study done by a bunch of lawyers at a couple law schools has become the definitive study, case closed.

    There is, for example, the GAO study commissioned by Senator Durbin during the last tort reform battle, the one that failed in the senate on a party-line vote. I believe that was in the summer 2003.

    That was the study, commissioned by House/Senate opponents of tort reform, that concluded that the number and frequency of verdicts was the primary driver of insurance cost.

    The study came out before the Senate debate. Faced with his own study, with conclusions he did not like, Senator Durbin suppressed the study, did not release the report until AFTER the bill had died in the Senate.

    So, I suppose there are a lot of studies out there, making a lot of conclusions.

  31. Curious JD says:

    Charles, do you ever stop whining?

    I’m really not even speaking to you and Grunt. You guys were gone years ago. You’re like those women who wouldn’t leave the Koresh compound no matter what it cost them. You’ve staked your position, and all the truth in the world isn’t going to change you.

    However, there are people who come to read your sites for the truth, or at least a balanced view, and because they are interested in medicine. Basically, the same reasons I read most of the posts on the other subjects. I greatly enjoy those. However, when you guys get off of what you know and start talking about your knowledge of the law, the truth needs to be pointed out. I realize that dissension is one of those things that doctors don’t handle well, though.

  32. I don’t know who the anonymous “Curious JD” thinks my “backers” are, but I’ve never represented a medical malpractice insurer, and I’ve represented insureds adverse to insurers about as often as I’ve represented insurers. The class action against CIGNA and related class action brought by CIGNA had nothing to do with medical malpractice costs. And I’ve never received a dime directly or indirectly for my writings on medical malpractice; I’ve never even worked a medical malpractice case, and it’s quite probably I never will.

    I just call ‘em like I see ‘em, and, while investment opportunities certainly subsidized med-mal insurance rates in the 1990s, there is no question that today’s rates are a direct consequence of the expense of defending med-mal claims.

    It’s one thing to argue that med-mal insurance rates should be that high as Mencimer does (though it certainly appears that society disagrees), but it’s completely fallacious to claim that insurers are ripping off the doctors. Insurance defense costs still outstrip premiums by a great degree: the payout ratio was $1.375 in 2003, and I have yet to see an attack on the insurance industry that acknowledges this simple statistic.

  33. “What I can’t abide are people who would remove the right to allow a jury to decide damages in a civil case. ”

    So why did the PaTLA work so hard to prevent a ballot resolution after the Pa House and Senate passed the resolution?

    Don’t REALLY trust the people?

  34. “And now, next time the economy drops, you’re going to get slapped again. ”

    A) car, home and other insurances have the same weight in stocks and bonds as med/mal and have not had the 100-300% increases

    B) Is there a different stock market in CA or Wisconsin? Their rates are vastly different then the states in crisis.

  35. “You’re against a system that has nothing wrong with it.”

    Had to laugh at that one. Sit through a completely meritless case because the workman’s comp wouldn’t pay and say that with a straight face.

    BTW Physicians NEVER win. Once a suit is filed it is all damage control. Fair would be if the loser paid but only the innocent doctor’s pay.

  36. Payouts drive premiums and they are rising in PA:

    Payouts reported by Pennsylvania malpractice insurers for claims against
    physicians:
    _ 1991, $182.5 million
    _ 1992, $216.7 million
    _ 1993, $208.4 million
    _ 1994, $228 million
    _ 1995, $233.3 million
    _ 1996, $309.5 million
    _ 1997, $320.3 million
    _ 1998, $279.2 million
    _ 1999, $356.4 million
    _ 2000, $350.8 million
    _ 2001, $423.7 million
    _ 2002, $398.9 million
    _ 2003, $394.5 million
    _ 2004, $448 million

  37. Curious JD says:

    Beth,

    Would you care to post the profits of Penn. med mal insurers for those years? Or like Ted, are you only familiar with the one year where claims paid were higher than premiums? Funny how the other years never get mentioned.

    I trust you’re also aware of the fact that Penn.’s largest med mal insurer went under due to financial mismanagement, and that the rest of the companies had to pick up the tab? Wonder if that had anything to do with it?

    California passed an insurance reform bill which requires justification of rate increases. Why did they pass it? Because 13 years after passing caps, the next stock market crash hit, and there was a “crisis” again. Missouri, a state that has had caps for 15 years, is also in “crisis.”

    The nation’s largest med mal insurer has stated that caps will affect at most 1% of its losses.

    You can legitimately argue a lot of changes – screening panels, expert panels, etc. But arguing that caps will have any effect on your premiums requires you to bury your head in the sand.

  38. Please. Post the profits. I’d love to see them. Are they greater then auto, home insurers? The image of gouging insurance companies is a smokescreen.

    You made the claim, you prove it.

    If the business is so profitable, why aren’t established companies writing policies?

    Regarding your vague claim of “financial mismanagement”. The companies made bad decisions based on expectations that losses would remain stable which they did not. Simply put. The premiums were too low to cover costs.

    The myth that insurance reform lowered premiums is not substaintiated by the facts. Only half of the insurance companies are subject to Prop 103 and it does nothing other than to prohibit “excessive charges”. It requires a hearing for any premium raise over 15 % and those hearings are few and far between. Specifically, what insurance reform do you think would be effective? Capping rates?

    Texas passed caps and has seen both of its largest providers drop rates and the third largest had no rate increase. If it is not attributable to caps then please explain why those companies have dropped rates while Pa has seen 15% and 25% rate increases.

    I agree that caps alone will not solve the medical liability crisis; the abuses in the system are too large for one solution. However, without caps the crisis will never be solved if medical liabilty cases remain in the current tort system.

    I personally like a no-fault system that would provide injured patients with substantial savings of time and money.

  39. Cuirious JD quotes directly from the ATLA playbook entitled “The US Tort System: How To Continue to Dupe the Public into Thinking Injury Attorneys Care About The Little People While Maintaining the Status Quo That Enriches Our Profession at Everyone Else’s Expense” and states “California passed an insurance reform bill which requires justification of rate increases. Why did they pass it? Because 13 years after passing caps, the next stock market crash hit, and there was a “crisis” again. Missouri, a state that has had caps for 15 years, is also in “crisis.””

    One argument put forth by opponents to MICRA is that Proposition 103, not MICRA, kept medical liability premium rates affordable in California. Proposition 103, also known as the Insurance Rate Reduction and Reform Act, applies to all lines of insurance. It was passed as an initiative by the voters in 1988 (thirteen years after MICRA), yet did not take effect until 1989. This is when the state?s high court struck down the provision that would have only allowed rates and premiums that were reduced between November 8, 1988 and November 8, 1989 pursuant to subdivision (a) to be increased if the commissioner found, after a hearing, that an insurer was substantially threatened with insolvency. The rest of the law was upheld. Proposition 103 implemented a basic standard that ?no rate shall be approved or remain in effect which is excessive, inadequate, unfairly discriminatory or otherwise in violation of this chapter.? However, Proposition 103 provides that ?every insurer which desires to change any rate shall file a complete rate application with the commissioner.? Proposition 103 also requires that the Department of Insurance grant a hearing for a challenge to any increase above 15 percent for commercial lines of insurance.

    According to Californians Allied for Patient Protection, the not-for-profit group devoted to protecting MICRA, ?Insurers have regularly applied for and obtained significant rate increases in all lines of insurance, except medical liability where MICRA has kept the rates from rising astronomically. Between September and the end of October, 2002, for instance, the Insurance Department approved more than 75 applications for double-digit increases in insurance rates.? This illustrates that Proposition 103 is not responsible for keeping medical liability premiums down; rather it is MICRA that has been the force behind California?s success.

    In addition, MICRA and caps were passed in 1975. Caps took more then 10 years to take effect due to the incessant challenges in court by injury lawyers like Curious JD who fought desparately to have it struck down as unconstitutional. When it was upheld in the courts and after the backlog of pre-cap cases made it throught the court system, rates stabilized.

    Regarding Missouri(and other crisis states with caps the trial bar loves bragging about as models of how caps don’t work), the 1986 cap was $350,000 on noneconomic damages. Adjusted annually for inflation as of 2/1/2003 the cap is $557,000. This is too high and thus obviously ineffective. Other states that have “trial bar caps” that remain in crisis are either too high to be effective or have too many exceptions to work.

    Curious JD states, “The nation’s largest med mal insurer has stated that caps will affect at most 1% of its losses.”. Texas enacted a hard cap over 1 year ago and rates have gone down for doctors 17% to date and continue to drop as specialists as well as malpractice insurers come back into the state.

    The only head buried in the sand JD is yours and the trial bar that continues to deny the problem and your culpability at the expense of “the little people” who cannot find a specialist.

    Aldous Huxley said, “Facts do not cease do exist simply because they are ignored”.

  40. Or like Ted, are you only familiar with the one year where claims paid were higher than premiums?

    I use 2003 because it’s the most recent year for which I have data. 2002 was also about $1.37/$1.00. If you have data for earlier years, I’d love to see it.

    If med-mal insurers really believed that caps would only affect claims by 1% (and they don’t), you wonder why both insurers and the trial bar have joined the battle so heavily over caps.

    Curious JD, I’ve addressed all of this in my Point of Law column. Why don’t you ever respond to that instead with irrelevancies and ad hominems thrown from beneath the cloak of anonymity?

  41. Curious JD says:

    Unfortunately, Beth, one can’t readily obtain those statistics from private companies. They don’t publish their profits when they are making money. Ask yourself why that is?

    Also, if you want answers to your questions about PA, do a search for the details on PHICO and Reliant. Both of those have now been forced into bankruptcy and the rest of the insurers are picking up the tab. According to the state, executives were draining cash from the company to fund their “lavish lifestyle.”

    Beth, for an excellent summary of the whole issue, try this article from Medical Economics, or in the past couple weeks Business Week also had a fair look at it as its cover story:

    http://www.memag.com/memag/article/articleDetail.jsp?id=141338

    As for Texas, considering that those companies that have dropped rates by 10-15% had raised their rates in excess of 100% prior to that, do you really think that represents a win? And that’s 2 companies. Two others, who hadn’t jacked their rates that high, asked for rate increases and were denied by the Texas Dept. of Insurance.

    Ted works for insurers, perhaps he can obtain them. Incidentally, Ted, which would you like to have – my phone number, email, street address? Just let me know, I’ll be glad to provide it.

    By the way Ted, if med mal insurers really don’t believe that caps affect at most 1% of losses, why would GE Medical Protective have told the Texas Department of Insurance that? Do you think they were lying?

    Here, read the document for yourself:

    http://www.consumerwatchdog.org/insurance/rp/rp004689.pdf

    Here’s some more good quotes from the horse’s mouth for you:

    ?I don?t like to hear insurance-company executives say it?s the tort system ? it?s self inflicted.??
    Donald J. Zuk, Chief Executive of Scpie Holdings Inc., a leading malpractice insurer in California, Wall Street Journal, June 24, 2002.

    ?As the economy enjoyed a magic carpet ride in the 1990s, insurers kept rates artificially low because they earned more money investing than by writing policies.?
    ?The insurance companies wouldn?t be in this position if they hadn?t been so hungry for investment profits and had priced their product appropriately.?
    Carol Brierly Golin, editor of Medical Liability Monitor, an industry newsletter in Chicago – Rising
    Malpractice Premiums Hit Florida Doctors Hardest, Medical Liability Monitor, 12/19/01.

    ?The conclusion of the study is that the noneconmic cap . . .[and other tort ?reforms?] will produce little or no savings to the tort system as it pertains to medical malpractice.?
    Internal documents citing a study written by Florida insurers regarding that state?s omnibus tort ?reform? law of 1986 – Medical Professional Liability, State of Florida, St. Paul fire and Marine Insurance Company, St. Paul Mercury Insurance Company.

  42. Curious JD says:

    Scot,

    Since you believe a cap indexed for inflation is “too high”, can you tell me why?

    Why is $250,000 some magic number?

    And if you do get that as a cap, how much will premiums go down? And for how long?

    I mean, if you’re going to hammer those injured the worst, particularly those without economic damages (elderly, children, etc.), can you please tell me where the benefit to physicians is?

    I also note the legendary claim that specialists are leaving. Unfortunately, this has been debunked many, many times. The places that do have trouble retaining physicians are the same places that have ALWAYS had trouble, because they are primarily rural, and primarily poor.

    Speaking of Missouri, why would it be in “crisis” at all? After passing the last round of tort “reform”, claims were down and payouts were down, yet they still lost insurers. Perhaps you can enlighten me as to how that cap wasn’t effective considering those facts?

  43. Curious JD says:

    Incidentally, Scot, are you suggesting it took 10 years for pre-cap med mal cases to make it through the system?

    Maybe I misread your post.

  44. Counselor Curious:

    The number 250 is not magic. It is a number used by the state of California that has seen its malpractice premiums rise only 176% in 30 years compared to 500% for the rest of the nation and 1400% for PA, a state with a cap of infinity. I am not a businessman or an actuarial, just a surgeon, and it makes perfect sense to me that the less money insurers pay out to plaintiffs and their lawyers, the less they have to charge their customers. A cap makes payouts more predictable, plain and simple. PA has no cap, therefore payouts are unpredictable and premiums for doctors are also unpredictable and excessive. The same insurer in a state with caps will charge me significantly less for the same or better insurance. I know this because I am looking elsewhere to practice and have obtained that information. I am one of your debunked anectdotes whose reality you choose to deny.

    Caps are not the ultimate answer, most doctors realize this. Caps are simply a stopgap to stem the hemorrhage until the ultimate solution to this problem is found. That solution involves removing you and your colleagues from the health care system so that the legitamately injured can be compensated without you siphoning 50% in fees plus expenses. Don’t believe in defensive medicine? Doesn’t matter what you believe because you are not on the front line witnessing the incredible waste of money. I am. It’s happening. Your kind are the direct cause.

    You will need to choose between a system that enriches a few as well as their attorneys at the expense of the rest of society or one that does not bankrupt the system by victimizing good doctors and people who cannot find one in their time of need.

    You can deny the existence of a crisis all you want, but I would not want to be one of your anectdotes with a head injury at my hospital which is only 30 minutes from Philly. You see, because of the malpractice crisis, we have no Neurosurgeon. Ten years ago we had 3. A neighboring county also has none. Debunk all you want Curious. Those of us on the front lines know the reality. 8 years ago I was the youngest General Surgeon in the county. Today I am still. The only reason I remain is because my hospital subsidizes my malpractice premium which comes close to 100k(no settlements or payouts).

    Regarding Missouri, I have no desire to enlighten you. Doing so accomplishes nothing. You will never see things my way, nor I yours. We despise each other. That will not change based on my ability or lack thereof to educate you. Fortunately, the fat lady is singing for your profession Curious. In fact I took that fat lady’s gallbladder out yesterday. 70% of Americans want change regarding caps and the liability lottery your brethren created 40 years ago. Most people know the game you play. It’s all about the money and you know it. If it weren’t, ATLA wouldn’t be fighting to the death over a cap of 250k for pain and suffering.

  45. Anonymous says:

    Incidentally, Scot, are you suggesting it took 10 years for pre-cap med mal cases to make it through the system?

    Maybe I misread your post.

    It took 10 years for MICRA and caps to pass constitutional muster. Until it did, premiums were not effected. If I were an insurer, I would do the same.

  46. Sorry, forgot to type my name on that last post.

  47. Curious JD, why do you think one person’s pain and suffering are worth more than others? A cap is fair. A recent Rand study showed awards all over the place. Who ranks getting more money for suffering? Why do you think money is going to help with pain and suffering?

    Fee schedules are set in many areas, including medicine. Indeed, the federal government had a $250, 000 cap on the victims of 9/11.

    The comment that specialist aren’t leaving just isn’t true. In my county we had 6 neurosurgeons for several years. We are down to one and 1/2. If you are attempting to wrap yourself around the flag of injured patients, you need to talk to the Mississippi surgeon who lost his son due to the lack of a neurosurgeon. Where is his check?

    Again, your own quote admits that premiums were not priced appropriately. Which is it? Too low and it fraud and too high its gouging?

    Missouri doesn’t have an effective cap. The cap increases with inflation and now is almost $600K. It also is applied to each defendant and each plaintiff for each injury. The possibilities are endless making the cap non-existent.

  48. Curious JD says:

    Yes, Beth, I do. If a physician removes the wrong kidney, leaving the person without a functioning kidney for the rest of his life, I think his pain and suffering is more acute than someone with an injury that heals fully within a year.

    With your Mississippi story, are you arguing that the man who lost his son is entitled to a check? I thought you only wanted to pay legitimate claims where malpractice had been proven.

    Tell me, what county in Miss. are you in? The GAO found the number of physicians per capita in Mississippi increased between 1998-2002. Again, some physicians probably did leave rural areas. But surely you’re not suggesting the reason for the drain in rural areas is solely due to a lack of caps?

    You say Missouri doesn’t have an effective cap, but if claims were down and payouts were down since it went into effect, how could it be any more effective? How many cases in Missouri would have come out differently with a lower cap? Don’t you think you should answer these before you lower it further?

    Why shouldn’t it be indexed for inflation, by the way?

    As for Scot, do you have a case cite where MICRA didn’t go into effect for 10 years? I had not heard that before, so I’d like to see a source.

    Can I ask why you guys are so focused on a cap? If the evidence is that payouts and claims were down, and the insurers are saying it will affect 1.0% of claims, why is that the centerpiece of your movement? Especially when it falls disproportionately hard on those injured the worst, and makes it harder for children and the elderly to recover?

  49. Curious:

    I have no links for you regarding the MICRA cap.

    Regarding our focus on caps, the medical community fully understands that a cap will simply stop the hemorrhage until the source of the problem can be removed. That source is the trial bar.

    In the meantime, I keep hearing you drone on and on about the 1% number from the GAO, but I see reality in Texas. One year after a cap…………17% reduction(higher in some cases). So again you may accuse us of using anectdotes and scare tactics, but we on the front lines know what is going on and what is happening. Physicians in Texas know how a cap will affect their premiums………17%.

    And incidentally, we aren’t attending your feigned pity party for the elderly and young either. These people can recover for potential lost wages and have done so in huge amounts in California which as you know has capped pain and suffering at 250k.

    Plaintiffs in CA recover similar amounts as those in states without caps and they do it faster. The party that recovers significantly less is the trial bar as they are limited as to how much they can charge by MICRA. The only losers are the personal injury lawyers.

    And please do not tell us how the young and elderly lose access to the court system because of caps. The access is unchanged. What changes is the lawyers lack of desire to take a case that won’t net them 40 million dollars. If your colleagues were truly concerned about defending the little guy instead of the money, they would take any case that had merit, not just a case with merit that has a high enough value. Physicians take cases with no monetary value on a daily basis and all we get in return is the risk of unlimited liability and financial ruin.

    It’s all about the money JD.

  50. Curious JD says:

    Scot,

    You got one thing right. It is all about the money. Physicians, the highest paid profession in society (avg. $150,000/yr), are losing a few thousand bucks in insurance premiums and are seeking to punish patients. They think they are hitting lawyers, but they aren’t. A talented trial lawyer can always find work. But someone catastrophically injured at the hands of another is who gets screwed.

    You have no links for me regarding the MICRA cap because it’s BS. As for Texas, if after raising rates 100%+ for no reason, then getting back 15% constitutes a “victory” for you, then you have a very low threshold for success. Particularly when those reductions are not guaranteed for any length of time. And why would Texas have reductions before any court challenges are completed but it would take 10 years for California?

    I don’t know if you realize this, but children and the elderly typically don’t have economic damages besides medical bills, which all end up in the hands of the providers. That’s why it falls disproportionately hard on them. It has nothing to do with pity, just facts. Sorry you don’t like them.

    Your comment about what the trial bar cares about illustrates your ignorance of the economics of the plaintiff’s side. Which seems to go hand in hand with your ignorance of insurance economics.

    Personally, I’m not aware of any $100 million med mal verdicts which would result in a $40 million fee. Are you just making up stuff because the facts don’t support you? Is your claim about how much California victims recover one of those made up ones as well?

    Anyway, back to the economics. I’m sure you’ve often repeated the claim that taking a case to trial costs the defense X number of dollars. Well, it costs the plaintiff’s attorney that much in expenses plus he isn’t compensated for his time unless he recovers. And since most people, particularly if they’ve been injured and are out of work, can’t afford to pay the hourly fees the physician’s insurer pays the defense lawyer, the only way the victim can recover is via a contingency fee. So the plaintiff’s counsel has to put all his money on the line, and has to evaluate the case on possibility of recovery.

    Now, if you want to talk about the merits of screening panels, expert panels, etc., I think an honest debate can be had. But caps, which is the only national proposal out there, only hurt people who have already been hurt bad enough. They don’t stop the filing of one frivolous suit.

    I sense your disdain for people who represent victims, but ask yourself, if you were injured significantly, who do you think would represent you? Or do you just believe it could never happen to you, and if it did the other party’s insurer would just write you a big check no questions asked? Maybe you’re like Bruce Willis in Unbreakable. Or just such a great driver that you could never be in a wreck?

    If that’s what you think, I’ve got some bridges I’d like to sell you.

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  1. symtym says:

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