Prodigal State: Tort reform brings doctors back to Texas

OpinionJournal – Cross Country


So what has happened since September of 2003, when the new law went into effect? After years of losing doctors, Texas has added nearly 4,000 since passage of Proposition 12, including 127 orthopedic surgeons, almost 300 anesthesiologists, over 200 emergency room physicians, 146 new obstetricians, 58 neurologists and 24 neurosurgeons. The Texas Medical Board is anticipating some 4,000 applicants for new physician licenses this year alone–double last year’s numbers, and 30% more than the greatest growth year ever.

The threat of lawsuits has been a particular barrier to attracting and retaining pediatric specialists. Since 2003, Texas has gained 20 pediatric cardiologists, 14 pediatric oncologists, almost 50 new perinatologists (obstetricians specializing in high-risk pregnancies), 10 pediatric surgeons and 8 new pediatric endocrinologists.

Medically underserved counties in Texas are benefiting as well. Jefferson, Webb and Victoria Counties, as well as the counties of Cameron and Hidalgo in the Rio Grande Valley, have all experienced an influx of physicians. Additionally, the market for insurance to protect health-care providers against the cost of lawsuits has become more robust and competitive. In 2002 there were only four companies writing policies. Today that number has more than tripled. And all of these trends are expected to continue.

Okay, anecdotes are just that, but these appear to be real numbers. Given that it’s a trend reversal, and the only real change in the Texas healthcare climate has been tort reform, I think that gets the majority of the blame / credit. 

I’m not in love with caps, as it seems quite a blunt axe to solve a complex problem.  However, as no other solution was viable, this is the one we wound up with.

via Jim in Plano, and yes, we still need to take a lunch. 


Comments

  1. I have an extremely important question related to this article (at least to me(. I work in Massachusetts, where according to the law, tomorrow a Lawyer could take everything I own if I have a bad outcome. Does ANYBODY know of a LIST OF STATES I can move to (Like Texas) which protects my Assets in the event of a lawsuit? I’m looking to move to a State where I don’t have this constant Paranoia. Even a website link would be apreciated!

  2. There is no such paradise. Every state has lawyers who can get to your assets, but every state also has lawyers who can help you protect your assets. For example, nobody can get to your qualified retirement plan assets (by Federal statute), but if you’re in private practice, it will cost you some time and money set this up. If a SEP plan works for you, it’s simple and will cost minimal money to set up. An often overlooked plan is the Defined Benefit plan, which will cost a couple thousand to set up but allows you to protect up to 25% of your income, sometime more, from both taxes and lawyers. Other things are state specific. Find a Mass lawyer (ask your MD colleagues) who is knowledgable about these issues how to title and finance your home to best protect yourself. Same with cars, boats, other property. In some states, under certain circumstances, cash value insurance policies are also protected from creditors. This is not a do it yourself project, but even in Mass., I’m sure you can get your assets protected adequately. Get legal advice, this is not a DIY project. Also, get started now, as anything you do in response to a threatened loss will be treated as a fraudulent conveyence and subject to reversal by the courts. The above will be a lot easier than relocating your practice, if your are otherwise happy where you are. Good luck.

  3. “and the only real change in the Texas healthcare climate has been tort reform,”

    And the improving of the overall economic environment, which has led to more malpractice carriers and thus more competition among them in both states with AND without caps. A trend that will continue until the next economic downturn, precipitating the next “crisis”, as it has 3 times in the past 30 years. I’d say probably around 2010, when hard choices have to be made in dealing with the deficit created by a free spending Texan and the economy contracts as a result.

    The other “real” change in Texas has been population growth. Between 2000 and 2004, Texas’ population increased at a rate of 7.9%. It’s physician population increased at a rate of 6.9% (48,584-52,210). Presuming Texas has continued to grow at the same rate, and given the success of energy lately, it’s probably growing faster, this increase is not really that surprising. Texas hospitals seem to be anticipating it, spending hundreds of millions in expansions in DFW and Houston. $2.2 billion in expansions in North Texas alone. So really, this increase is not that surprising at all, considering the population increase and large number of new jobs resulting from expansions.

    Such is the peril of making policy based on anecdotes.

  4. Clearly, the talking points memos are out.

    In truth, there’s no scientific study that will prove or disprove tort reform being an exact cause of physician population increases, increased number of insurance companies and increased competition for medmal coverage. There’s just too many variables.

    However, I can tell you, anecdotally, having the Big Bullseye on my back diminished, even a little bit, has made my mental outlook about practicing medicine much much better. I have colleagues who have relocated to Texas and tell me it’s because they were tired of the legal climate in their former states.

    Science is science, life is anecdotal, tort reform has helped in Texas.

  5. Since when did the statistics put out by the Texas Medical Board and the US Census Dept. become “talking points”? Since they made your conclusion look ridiculous?

    What I don’t understand is how is that bullseye reduced so much? The bulk of most awards are noneconomic, primarily due to the amount of medical bills. A multimillion dollar case is a multimillion dollar case primarily because of the extent of the injury, resulting medical bills (primarily future medicals) and lost income. Texas’ tort “reform” hasn’t changed any of those. All it has done is reduced the likelihood of a child or an unemployed person having one because they don’t have lost income.

    Why do physicians, who make decisions in their professional life primarily by considering all the available evidence in front of them, make decisions in their personal lives based on campaign slogans?

    But your conclusion illustrates just how the negative effects of tort reform on those you’re supposed to care about mean little to you. I guess that’s why people aren’t as concerned about the rest of your plights regarding declining reimbursements and such. So you’re right – tort reform has helped insurers in Texas! As for the weaker members of society, oh well, they didn’t have it so great anyway.

    Go team!

  6. I like this statement – you don’t see this kind of truth often:

    “In truth, there’s no scientific study that will prove or disprove tort reform being an exact cause of physician population increases, increased number of insurance companies and increased competition for medmal coverage.”

    This is all done just so we can make sure physicians have a warm fuzzy feeling about something they haven’t taken the time to understand or assess, victims be damned.

    You have to give it to the PR depts. of the insurers – this is a true victory for them. I await the day they start blaming high physician salaries for the cost of health care premiums.

  7. doctordel says:

    I would be interested in matt expanding on: a) what exactly does he mean by “something (physicians) haven’t taken the time to understand or assess”, b) how he feels morally and experientially justified in ascribing all physicians with the attitude reflected in the phrase “victims be damned”, and c) does he really understand the environment we practice in everyday and its resultant effects on our attitudes towards medical malpractice?

    No thinking individual is going to argue that insurance companies have made out pretty well post-Prop 12. Consider this though: physicians were (and still are in many states) only one dissatisfied patient-regardless of actual malpractice (a well-defined legal concept that can be blurred quite easily in a jury’s mind by a crafty attorney)-away from professional and emotional ruin at the hands of trial lawyers (not all, obviously) who have been all too willing to pursue cases we must assume they knew to be questionable, if not downright frivilous. Even matt would have to agree that his legal collegues certainly have not made a very strong or public push to reduce the number of med mal lawsuits that lack merit. Who can blame them, though? The practice makes some of them very wealthy, meritorious or not, ethics be damned.

  8. Anonymous says:

    Matt- please address this as the serious question that I intend it to be: You and others in other venues have described tort reform as being a victory primarily for the insurance companies, and nothing but a warm fuzzy for the docs. Surely you are aware that malpractice policies are written with clear limits of coverage. A very typical policy is $1 mil/3 mil, meaning that the most they will pay for any single loss is $1 million, and no more than $3 million in any year. This absolutely caps their liability- multiply $3mil by the number of policies they write, multiply by the experience factor, and there is the worst case scenario. There is no worst case scenario for the doc- everything he has title to is at risk, and there is no limit to the amount that can be awarded, absent caps. If there is an opposite of warm fuzzy, that is where we are. Why is this a boon for the insurance company- their exposure is not appreciably lessened???

    Another question while I’m at it: When you write “The bulk of most awards are noneconomic, primarily due to the amount of medical bills.” you indicate a fundamental misunderstanding of the malpractice tort system. The medical bills are economic damages, as are lost income. The astronomical awards are for noneconomic damages, such as pain and suffering, and loss of consortium. It is the noneconomic awards that concern us, as they are limited only by a jury’s sympathy. I am not aware of any proposed or actual caps that purport to limit ecomomic damages- if you have present or future bills, or lost income, you are free to sue for the whole sum- it’s the pain and suffering awards that drive us to look for early retirement.

  9. docordel says:

    Matt is right when he says that the real winners here are the insurance companies and most of the doctors I know considered Prop 12 to be a fundamentally flawed piece of legislation, especially its implications for future, unrelated types of liability suits.

    Matt, as you probably know, it is downright wrong to think physicians want to hurt anyone or see anyone suffer as a result of their care, which was rendered with the intention of helping ease pain, prolonging life, or otherwise making another person feel better and more complete. We are driven by a unifying characteristic: compassion. Compassion is driven by empathy. I know that most of us put ourselves through the 11 or more years of education that led to practice in order to help our fellow man in the name of compassion. It is what drives the physician to be their best every day.

    What I believe many physicians think is that non-physicians do not seem to understand that the malpractice lawsuit, regardless of its merit, basically tells the doctor that his/her compassion-their driving force, their very reason for being-doesn’t matter. Everything that the physician has done for the patient doesn’t matter. The late night calls to the hospital to take care of the admitted patients who need immediate attention, the countless hours spent at the patients’ bedsides, the innumerable conversations with families that often are emotionally draining, the assiduous attemps to keep up with a body of knowledge that expands daily, all of it doesn’t matter. I guess what I am saying is that the lawsuit is just as personal to the doctor as the alledged tort is to the patient and bad outcomes happen everyday. I see 25-35 new human beings every day, mostly strangers, nearly all incapable of providing more than a simplistic account of their complaint, despite the use of open-ended questions and then more specific ones followed by a physical exam. I do my very best to be the empathetic and compassionate physician they expect and need me to be. Over the course of a year I see around 5400 patients and every one of them could potentially have an outcome or complication due to the complaint they came to see me with and hold me responsible for it regardless of my compassion, regardless of my treatment, regardless of my instructions to them for follow up. We physicians know this and we still do what we do because we are a compassionate group. The med mal climate is really starting to test the limits of compassion, though, because we are all wary of the power of the frivilous lawsuit, knowing that we can be personally and professionally destroyed by just one patient whether they were genuinely incapacitated but not due to their care, or just dissatisfied with their outcome, the doctor’s tone of voice or how he/she addressed sensitive issues such as obesity, drug and alcohol use, or sexual responsibility.

    I may be totally off base with this but that is just my 2 cents. We are not monsters, Matt. We are people who care for others a whole lot and we just want to continue doing so.

  10. doctordel says:

    I think the notion of “screwing the most injured” that has been posited by the legal community (and Houston Press magazine) will have to wait until the numbers of med mal cases post-Prop 12 are counted up and compared to previous years (perhaps this has already been done and I missed the story). It seems to me that any reduction would suggest a somewhat unflattering, less-than-altruistic picture of the med mal plaintiffs bar. No one would expect the number of legitimately harmed patients to decrease post-Prop 12 (increase? since we can all just practice wrecklessly now, I guess people believe) so there really shouldn’t be any drop in the number of cases filed if these suits were always meritorious.

  11. “This absolutely caps their liability- multiply $3mil by the number of policies they write, multiply by the experience factor, and there is the worst case scenario.”

    Be glad to answer, and I apprecitae the tone. As to the quote above, not exactly, because they still have to weigh the cost of not settling for policy limits and ending up with a bad faith claim. Not a big fear, to be sure, but there to an extent. But what the insurer gains is predictability, and leverage with the victim. No longer do they have to worry about what the quality of one’s life truly was in the eyes of the jury. It can never be greater than $250,000.

    Plus, the value of every case involving someone without lost wages is now set at medical bills. Which means once they pay their attorney, they are still in the hole. Personally, I think this will encourage more trials, because the insurer’s incentive to settle a case just went down. We’ve removed the risk from the risk business. It’s like we’ve decided that insurers have some guarantee of profitability, no matter how poorly they plan for risk.

    But you know what the best thing about the Texas tort reform and that proposed by Bush is for the insurer? Periodic payments of any award over $100K with regard to future damages, NOT indexed for inflation. That means no matter what the cost of the future damages, all the insurer has to pay is $100,000 per year. Again, NOT indexed for inflation, so the value of that decreases every year. Don’t tell me that has anything to do with patients or their access to care, much less physicians.

    As to your risk beyond insurance, considering that your home, retirement accounts, and several other things are protected in bankruptcy where you could discharge any award against you, what else is there to get? Assuming you’re smart enough to do non-medical related investments in a separate corporation, those are untouchable. It makes no sense 99% of the time to continue with a case once policy limits have been offered if they are in the amounts you mention. I don’t think physicians really understand how rare these awards are, or how easily they can protect their assets.

    “The astronomical awards are for noneconomic damages, such as pain and suffering, and loss of consortium”

    No, they aren’t. I recently worked on a case where my client was killed in a car wreck. 40 years old, making $25K a year. The economist retained by us, and not even deposed by the defendant because they had used him in the past and knew him to be a solid expert, put his lost earnings at $650,000. Now, couple that with a debilitating injury that required lifetime care. Those are what put cases in the million dollar range, regardless of pain and suffering. Your $1 million worth of coverage will be hit by the economics alone, before we even get to pain and suffering.

    Sure, the pain and suffering amount is likely to be high in a catastrophic injury case, but why shouldn’t it be? If you can’t walk, doesn’t your lost quality of life have a value? Regardless however, the bulk of the value of those cases remains in the economics. So explain me how capping your noneconomics at $250,000 makes you feel safer.

    And let me ask you a serious question. Why $250,000? And why is it not indexed for inflation? Where did this number come from? Why is it that $250,000 has become the magic number for all cases, regardless of the facts of the case? Do the facts not matter? Do you really believe the quality of life doesn’t matter?

  12. “it is downright wrong to think physicians want to hurt anyone or see anyone suffer as a result of their care, which was rendered with the intention of helping ease pain, prolonging life, or otherwise making another person feel better and more complete. ”

    Of course I do, just as you know it is downright wrong to suggest that the only reason any lawyer takes a case is so that he/she can hit a “jackpot” and screw a doctor. I was responding to hyperbole with hyperbole.

    “What I believe many physicians think is that non-physicians do not seem to understand that the malpractice lawsuit, regardless of its merit, basically tells the doctor that his/her compassion-their driving force, their very reason for being-doesn’t matter.”

    I understand you believe that. But I think when you look at the surveys of why suits are filed, including those conducted by physicians – see Gerald Hickson’s studies – you’ll see it’s primarily because the patients couldn’t get an answer. The physician in fact was not compassionate. And, I think to an extent you have to not take it personally, because you are probably dealing with someone who has no other avenue. Let’s assume you were negligent, for the sake of argument, and the person was injured to the point they couldn’t work. The only way to get your insurer to pay may be a lawsuit. But I would invite you to study Mr. Hickson’s work.

    “The med mal climate is really starting to test the limits of compassion, though, because we are all wary of the power of the frivilous lawsuit”

    I think this is a misunderstanding of your risk, and if you would take the time to talk to an estate planning/business planning lawyer, you would have a better understanding of what your true risk is and how to minimize it. I think there is a lot of fearmongering going on by those with the biggest stake in tort reform.

    I know you’re not monsters, and I have never had a bad face to face experience with a physician. I just think that in the zeal to “get back” at attorneys, you’re missing who the real winners and losers are in this debate.

  13. “It seems to me that any reduction would suggest a somewhat unflattering, less-than-altruistic picture of the med mal plaintiffs bar. No one would expect the number of legitimately harmed patients to decrease post-Prop 12 (increase? since we can all just practice wrecklessly now, I guess people believe) so there really shouldn’t be any drop in the number of cases filed if these suits were always meritorious.”

    Actually, Prop 12 will decrease the number of cases because the value of every case without lost wages just got set at medical bills plus $250,000 max. It reduces the number of cases that are financially viable.

    It will paint no less of a less-than-altruistic picture of the trial bar than campaigning for tort reform so you’ll save a few bucks (hopefully) on insurance premiums does on physicians.

  14. Matt-
    I was the anon who posted at 517- forgot to put in the ID.
    I agree that $250K is low for an egregious case of disfigurement caused by medical negligence. I believe it’s a case of the trial bar having overshot its case, filing too many outrageous lawsuits, and having a real effect on availablity of docs when they need them. Despite the litigation explosion of the past few decades, the average American goes through a lifetime without filing a lawsuit. He is unlikely to go for more than a few months without having to consult a physician, or having a loved one do so. We really have been doing things that would have seemed nearly miraculous a few years ago, and JQPublic knows it. He has seen real stories of ERs closing, docs retiring early or limiting their practices, pregnant women traveling hours to find an OB, ad nauseam. These may be anecdotes, but the plural of anecdote is data. At a basic level, the average American is far more fearful of going without needed medical care than having a malpractice case limited by this cap. The political system has responded to this fear with the overreaction of the $250K cap. If the trial bar had restricted its efforts to cases of real malpractice instead of filing suits with a bad outcome and a sympathetic plaintiff (eg, cerebral palsy), you would not see the backlash that results in $250K caps. Now, everbody has lost- docs have been losing for years, severely injured plaintiffs will not get compensated, and even some of the trial lawyers may have to find honest jobs.

  15. Matt- I didn’t address your other questions above. You make some good points, but the answer is that there isn’t enough money in they medical system to compensate everyone for every injury that might occur. We allow people to drive cars with state-mandated insurance of, in many states, $100K or so. If you are injured by that person, that’s all you get, no matter what. That’s why I have all kinds of insurance on myself, which I pay for. If I lose a leg and can’t work due to a botched medical procedure, a car wreck, or falling out of a tree, I get the money I believe I need because I need paid for the protection. Note that I can buy life insurance and disability insurance, but not pain and suffering insurance- there is no rational way to value this in dollars, so there is no market for it, except in the world of the trial lawyer. I have never understood why a given injury seems to be much more valuable if it occurs as a result of a medical procedure as compared to an auto accident- could it be the deep pocket??? People have an a priori way of determining what their life is worth- they can buy a certain amount of life insurance. When a patient dies after a surgical procedure, the family typically sues for a large multiple of their insurance policy (my limited experience only). Could it be the deep pockets?

  16. “I believe it’s a case of the trial bar having overshot its case, filing too many outrageous lawsuits, and having a real effect on availablity of docs when they need them.”

    This is what I’m talking about. You’ve just made these claims and have no evidence to support them. Would you allow me to make similar claims about the prevalence of med mal with no evidence? Of course not. There is literally no evidence that any places are underserved by physicians as a result of lawsuits. Rural areas, like always, struggle to retain physicians. You’re relying on anecdotes to reach a conclusion like this, when if someone were to do the same in your field, you’d object strenuously. The only nonpartisan studies of these physician leaving stories, done by the CBO, have determined them to be unfounded or in places where there have always been physician shortages.

    You should be careful about propagating this theme that everyone has a right to be within, say, 45 miles of an OB/GYN. You end up making health care a right, not a claim.

    “Despite the litigation explosion of the past few decades, the average American goes through a lifetime without filing a lawsuit.”

    Another urban legend. The bulk of the “explosion” is businesses suing businesses. Not tort filings.

    ” If the trial bar had restricted its efforts to cases of real malpractice instead of filing suits with a bad outcome and a sympathetic plaintiff (eg, cerebral palsy), you would not see the backlash that results in $250K caps.”

    And it keeps coming. Seriously, at some point don’t you think you ought to have some evidence for these? Would you allow me to make pronouncements on the “crisis” of poor medical treatment based on such flimsy evidence?

    As to your claim that trial lawyers will have to make an honest living, that’s interesting to me. Because trial lawyers represent people just like you, who, usually through no fault of their own, are left in a position where they need some help from someone. Do you not think you will ever need one? Do you think it serves your purposes to make it harder for you to find a lawyer?

  17. Anonymous says:

    “But I think when you look at the surveys of why suits are filed, including those conducted by physicians – see Gerald Hickson’s studies – you’ll see it’s primarily because the patients couldn’t get an answer.”

    Matt, come on. People do not seem to be suing for “answers.” I do, however, believe that it would make an interesting study to look at the number of plaintiffs who made an explicit explanation of the outcome or damage in question their first step in seeking recompense and compare those results with the number of individuals who first sought an attorney, albeit in some cases to have the attorney’s medical expert look at the case. If people want answers, our names are on nearly every page of their chart, hospital staff lists, and are a matter of public record with the state board.

    “I think to an extent you have to not take it personally, because you are probably dealing with someone who has no other avenue.”

    Not take it personally? Do you take your life’s ambition personally, Matt? That comment really has no place in a conversation regarding my profession, as I am sure it has no place in yours. Everything we do is personal.

    “I think this is a misunderstanding of your risk, and if you would take the time to talk to an estate planning/business planning lawyer, you would have a better understanding of what your true risk is and how to minimize it. I think there is a lot of fearmongering going on by those with the biggest stake in tort reform.”

    Agreed, that fearmongering has skewed this debate. But the beginning of this statement ignores the crux of my position: my estate is not what I am concerned with. I know that I can always get a job and provide a comfortable life for my family. The health of my patients, my profession, and our community as a whole are my only concerns.

    Also, what does “financially viable” really mean as an excuse for lawyers to refuse cases? Is it that your cut of the maximum penalty is not enough? I do not understand how you would turn away a truly deserving case just because of this cap, as you suggest. I know legions of doctors, myself included, that provide care everyday that we have zero expectation of payment for while still maintaining all of the risk. We do this because the person needs help, not because it is “financially viable.” And it may be anecdotal, but trying to get a doctor to continue the delivery of free health care after they have been sued by one of these patients would seem a very daunting task, regardless of how many lives they may have changed for the better to that point and may potentially impact in the future.

    As for the seemingly arbitrary $250,000 I am in complete agreement with both Matt and JB. Where did this number come from, anyway? And why does this number dominate the current national debate over tort reform? Does anyone have a real answer that does not fall back on the “insurance companies and their Washington cronies” explanation? Why aren’t we discussing truly innovative approaches to this problem-i.e. health courts, expert witness panels, evidence-based standards of care, etc.-instead of limiting compensation for what could be a lifetime of suffering?

  18. “but the answer is that there isn’t enough money in they medical system to compensate everyone for every injury that might occur.”

    Undoubtedly, that’s why it doesn’t – just those injuries caused by the negligence of another. And not from the medical system, but from the liability insurance system – and I don’t know if you’ve been watching the news, but insurance is a VERY good business to be in. But think about this – the money to compensate those people ultimately does come from somewhere, the taxpayer if not the person who was responsible for the wrong.

    “We allow people to drive cars with state-mandated insurance of, in many states, $100K or so. If you are injured by that person, that’s all you get, no matter what.”

    It’s less than that – $25K usually, and in places like Mississippi, $15K. But, the harm caused by the average car wreck costs, on average, much less.

    ” Note that I can buy life insurance and disability insurance, but not pain and suffering insurance- there is no rational way to value this in dollars, so there is no market for it, except in the world of the trial lawyer.”

    It wasn’t lawyers who came up with the premise that pain and suffering awards should be valued. We as a society did. We as a society believe those things have value, and while money is an imperfect form of compensation, it’s the only form we have. Personally, I believe that the best way to determine the value is by allowing a jury to listen to the facts of the particular case, rather than having a legislator who is responding to whatever lobbyist dropped the biggest bag of money by arbitrarily decide a value for ALL cases. You say a jury is arbitrary despite the fact that they heard all the evidence involved, yet you argue a cap is a better solution? That makes no sense.

    “I have never understood why a given injury seems to be much more valuable if it occurs as a result of a medical procedure as compared to an auto accident- could it be the deep pocket??? ”

    I’m not sure why you believe this is true. Can you point me to cases with similar injuries and similarly situated plaintiffs that you believe resulted in radically different amounts being awarded? If you’re talking about the averages, then as I mentioned earlier, the damages in a car wreck case are less likely, on average, to be as significant as the average cost of remedying an instance of medical malpractice.

    “When a patient dies after a surgical procedure, the family typically sues for a large multiple of their insurance policy (my limited experience only). Could it be the deep pockets?”

    When I file suit, I usually don’t put an amount, other than to say it’s within the jurisdictional limits of the court. The case is worth what it is worth, regardless of the defendant. It’s the actions of the particular defendant that matter.

    Much of your argument seems to be based on stories you’ve heard here or there, with no real evidentiary or statistical basis. You seem to be demanding a level of perfection you would not demand of the practice of medicine, and your criticisms are based on less than you would allow someone to criticize the practice of medicine with.

    All I would ask is that you approach these stories of different verdicts, outrageous awards, etc., with the same skeptical eye you give similar claims of your own profession.

  19. doctordel says:

    last Anon 0810 was me

    post are coming too fast…good topic!

  20. “People do not seem to be suing for “answers.” I do, however, believe that it would make an interesting study to look at the number of plaintiffs who made an explicit explanation of the outcome or damage in question their first step in seeking recompense and compare those results with the number of individuals who first sought an attorney, albeit in some cases to have the attorney’s medical expert look at the case. ”

    No, you file a civil suit for money, because that’s the only remedy of a civil suit. Seriously, though, read Dr. Hickson’s work. He’s not employed by ATLA, he’s one of you. You’ll see exactly what I’m talking about. If you’re serious about risk reduction, that’s where you should start.

    “Not take it personally? Do you take your life’s ambition personally, Matt? That comment really has no place in a conversation regarding my profession, as I am sure it has no place in yours. Everything we do is personal.”

    Not quite how I meant it. What I’m trying to say is this. Insurers don’t simply write multimillion dollar checks all the time, even when culpability is there and damages are legit. Adjusters have to do the work to justify that, and sometimes that requires the plaintiff filing suit so depositions and discovery can be had. In that sense, it’s not personal, it’s the only way your insurer will pay.

    “The health of my patients, my profession, and our community as a whole are my only concerns.”

    As it should be. If that’s the case, though, you should be frustrated with all of this focus and money spent on tort reform when it has so little effect on your concerns. You might ask yourself if your lobbying money couldn’t be spent in a manner to more directly assist you, rather than your liability carrier.

    “Also, what does “financially viable” really mean as an excuse for lawyers to refuse cases? Is it that your cut of the maximum penalty is not enough?”

    Example: A child has $250,000 in medical bills. He has no lost wages, and the maximum he’ll receive in pain and suffering is $250,000. Total damages $500,000. You’re an attorney, looking at spending $100,000 (which is what the insurers claim it costs), to try this. You will recover those costs. 1/3 of $500,000 is what, $166K? Plus you get your expenses back.

    So, if you’re the mother of this child, do you really want to go through all this just to pay your medical bills back? Or if you’re lucky enough to have insurance, to pay your health insurer back? And if you’re the lawyer, knowing that you always have a chance of losing because juries favor physicians and finding a quality expert to testify against a physician is difficult, do you want to spend $100K on a case you may not win and won’t result in much for your client anyway?

    As a physician, would you spend $100,000, not to mention probably that much in the value of your time, to take this case? Knowing that the net effect for your client is that they get their medical bills paid? And if those medicals were future medicals and you were in Texas, that your client would only get a maximum of $100,000 per year of that award? I doubt you would. It wouldn’t make financial sense, would it?

    “Does anyone have a real answer that does not fall back on the “insurance companies and their Washington cronies” explanation?”

    Can you give me a better answer?

    “Why aren’t we discussing truly innovative approaches to this problem-i.e. health courts, expert witness panels, evidence-based standards of care, etc.-instead of limiting compensation for what could be a lifetime of suffering?”

    Cynical as it may sound, it’s because there is no money in it.

    Here’s a question for you – why don’t physicians institute EBM now? The insurers have all the information you could want regarding what cases are filed, their value, how the experts came down on standards of care, etc. Why not simply take these and propagate firm standards of care?

  21. “post are coming too fast…good topic!”

    It is a good topic when debated politely.

  22. doctordel says:

    Matt, I think you make some solid points about the sensationalism of certain verdicts and the need for evidence to support either position on tort reform. The popularity of John Edwards as a beneficiary of shaky CP-early cesarian theory brought even more attention to this debate in 2004 and what could be more sensational than that?

    I have to tell you that things aren’t as rosy as you seem to think they are. Anecdotal again, but I personally know of several claims that have been made that were just “testing the waters” for a suit only to not file a suit. Now, you may say “no harm, no suit, no foul”. But I suggest that this practice is contributing to a climate that cannot be empirically measured. I mean, how do you measure anxiety? How do you measure self-worth or self-doubt, even when a suit is ultimately not even filed? Forget the practical considerations: we have to disclose that claim, along with a full explanation of the alledged injury, our role in the alledged injury, all relevant information, the names of others in the claim, etc for the rest of our lives whenever we apply for a stste license or staff position. All for a claim that the trial lawyer made before bothering to see if it was even meritorious. And what is with the shotgun technique of claims that the lawyers seem to prefer? Do you all really and truly believe that 11 (yes eleven in one case I know of) doctors could all be responsible for one injured patient, before dropping all but 2 doctors before filing the suit?

    I guess I just suffer from what everyone of us involved in this conversation suffers from, which is a lack of understanding of the other side. We see things at different levels, different wavelengths maybe, and a common dialogue is tough.

    Baby’s crying…goodnight…

  23. “I have to tell you that things aren’t as rosy as you seem to think they are.”

    I don’t think they are rosy at all for physicians. I think physicians are squeezed between a rock and a hard place. The rest of the medical industry gets rich promoting how they can make you live forever while you do the grunt work of trying to make that dream come true. For your work, you are faced with a system that pays you not based on the quality of your care, but on the volume, and pays you less and less each year. As a result of being a volume practice, it is difficult to keep the relationships that you need with your patients personally, much less put the time in to considering their issues as a professional. Then, to top it off, you have to deal with the fact that you may well be sued by them.

    Other professions, even mine, don’t deal with that. There are all kinds of ways to commit malpractice in the law, probably as many as in medicine, but the external pressures that I have no control over are limited.

    As for the shotgun technique, I attribute that to time. Med mal, thanks to your lobbying efforts, has one of the shortest statute of limitations period of any tort. Often, by the time the client comes to you and you get the medical records in, you’re running up on it, and you still don’t have an affidavit of merit. You name everyone because often there’s not a clear delineation of who was responsible for what, and until discovery is complete, you can’t be sure. Now, some states have given physicians the ability to do an affidavit of their involvement in the case early, and if they aren’t dropped after filing it, they can receive attorney’s fees and costs and I believe a small fine. It’s not really in the plaintiff’s interests to add a bunch more lawyers to the case, because his time goes unreimbursed, and if he loses, his expenses do as well.

    As for Mr. Edwards’ cases, I’ve never spoken to someone who reviewed the evidence in one and found the claim to lack merit. Have you?

    Good luck getting the baby down.

  24. Matt-
    You demand evidence and statistics for my explanation of why a relatively low cap has been promulgated in a state previously notorious for being plaintiff friendly. I clearly identified my assertion as a belief, which I believe just as strongly as the value of removing an inflamed appendix (which I am just about to do) despite the total abscence of randomized trials that prove the value of this operation. I also know of no studies that statistically prove the value of a well functioning parachute when exiting an aircraft at altitude. Some things can be determined by observation. When docs quit or limit their practice due to the expense of malpractice insurance (personal observation), it’s good enough for me.

    I never suggested that anyone has a “right” to be within 45 miles of an OB. I do think that a pregnant woman would greatly prefer that, and would vote for a politician who supports legislation that would encourage him to keep his practice open in her town. Hence, support for caps.

    I also never stated that the litigation explosion was entirely, or even mostly, due to tort filings. I only posited that it exists. With the barratry that goes on in every jurisdiction that I have ever visited (look at the yellow pages, bilboards, etc.), I do belive that tort filings are up, but your statistics may differ.

    I’m not worried that it will be hard for me to find a lawyer. Many of them offer on TV to come to my home, office, or even hospital room to get my lawsuit jumpstarted.

  25. “You demand evidence and statistics for my explanation of why a relatively low cap has been promulgated in a state previously notorious for being plaintiff friendly.”

    I did? I’m sorry, I didn’t mean to. I know why they did – lobbying.

    ” When docs quit or limit their practice due to the expense of malpractice insurance (personal observation), it’s good enough for me.”

    Do you think you could provide some names? Because on average, according to the committee that sets Medicare reimbursements, malpractice payments are 5% of a physicians’ overhead.

    “I do think that a pregnant woman would greatly prefer that, and would vote for a politician who supports legislation that would encourage him to keep his practice open in her town. Hence, support for caps.”

    Yet there is no evidence that caps will put a physician that close. In fact, the shortage of OB/GYNs may well be a myth. The shortage will more likely be in family practice. What is not a myth is that physicians, like most people, are more likely to live in cities where they can get paid better. This leads to shortages of lots of things in rural areas, including physicians.

    “With the barratry that goes on in every jurisdiction that I have ever visited (look at the yellow pages, bilboards, etc.), I do belive that tort filings are up, but your statistics may differ.

    They aren’t my statistics, they are the National Center for State Courts.

    “I’m not worried that it will be hard for me to find a lawyer. Many of them offer on TV to come to my home, office, or even hospital room to get my lawsuit jumpstarted.”

    They’re almost as prevalent as physicians! I have no doubt you can open a phone book and find someone to handle a rearender car wreck. That’s not exactly a med mal case, though, is it?

  26. Nobody answered my question which started this post: WHAT STATES, other then Texas, can I move to where I will have the protection of tort Limits? I think this list should be posted in every Hospital Residency office.

  27. As far as I know, the only other State with caps is California with their MICRA law.

  28. I think the AMA’s crisis map ID’s ‘em. There are many, with varying applications of the cap.

    As for what it will protect you from, well, that’s another story. Is false security better than none?