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Dawn Lipthrott, LCSW
Ethical Health Partnerships
1177 Louisiana Ave. #212
Winter Park, FL 32789
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In this and other articles, we
will explore the area of malpractice and give you suggestions
about how you can take action.
Summary:
While tort reform is necessary to 'stop the bleeding', it will
not solve the problems of unjust malpractice claims or patient
injury and compensation. Basic issues of tort reform . . . caps
on awards, contingency fee restrictions, joint and several liability,
collateral sources of compensation, periodic payment, and expert
testimony are discussed. We encourage a
new approach to expert testimony and more balance in creating
a jury of peers when cases go to court. For what I believe is
a more ethical approach to patient injury and compensation, click
here.
The malpractice climate, especially
in states like Florida, is indeed a crisis. People who say there
is no crisis of care, have not talked with many physicians in
Florida which has some of the highest malpractice premiums in
the country. When you have a patient that is bleeding profusely,
you have to stop the bleeding before you can address the problem
at a deeper, and ultimately, more effective level. Tort reform
is needed now to stop that bleeding. It is not the whole answer,
but is a part of the first remedy to stabilize some of the system.
Insurance reform is not the whole answer, but is part of the
same first line of remedy.
We all must think much more creatively
to address the problem at a core level. In the near future I
will be including an article link here to help stimulate your
thinking in terms of ethical health partnership.
Malpractice:
Reforming the Law (Tort Reform)
What IS Tort Reform?
Tort reform is the most publicized
and debated approach to reducing the rising costs, financial
and emotional, of alleged medical malpractice. It is also called
medical liability reform.
While doctors and lawyers blame
each other and lawyers also blame insurance, it seems there is
at least some truth in all positions. Physicians, nurses, hospitals
and patients can do more to prevent injuries. Collecting data
is not enough. Legal reform is necessary to set better boundaries
and to be fairer to all physicians, while holding those who cause
injury through negligence. Distinctions need to be made between
negative or unexpected outcome, an error that occurs no matter
how careful the physician is, known complications of procedures.
Yet, the needs of people who have been injured, even when there
is no malpractice or negligence, must be adequately addressed.
It makes more sense to create and implement new ways to resolve
claims, to provide care and economic needs of injured patients,
to prevent future errors, to hold responsible the person or persons
actually responsible, and to be fair to all parties involved,
including physicians. Most adverse events, including most errors
that cause serious injury, are not due to negligence. There is
no doctor, even world renowned experts, who has not made a mistake.
Yet, how can a patient who has been injured even though there
is no negligence, be adequately taken care of, without having
to allege negligence? Ethical health partnership holds all parties
responsible for treating each other fairly and ethically. The
current system does not do any of that very well.
I believe that for truly ethical
health partnership to be created in these situations, alternative
ways to address injuries MUST be developed and implemented. Litigation
should be reserved for those situations where there is truly
evidence of substandard care. However, until those alternatives
are in place, the current system needs to be reformed.
According to National Statistics
and Trends: A Snapshot of the Crisis only seven percent of
medical liability cases went to trial, and of these, defendant's
won 82.4 percent of them. (Jury Verdict Research, Current Award
Trends in Personal Injury, 2002) I agree with physicians in saying
this seems to be evidence of the number of unfounded claims.
And yet, most of these people are injured. To me, it points out
that most injuries are not the result of substandard care, yet
somehow, the needs of people injured need to be addressed without
alleging that the physician was negligent. I like my surgeon.
I know she is extremely competent, careful, thorough, which is
why I go to her. She gives me exceptional care. I have been very
fortunate to have had good outcomes. And, I know she is human
and no matter how careful she is, she could make a mistake. If
I, as her patient, were ever injured in surgery, I would certainly
want my medical needs taken care of. If as a result of that injury
I could not work for a period of time, or for a lifetime, I would
want my house and and basic needs paid. Yet, I would not want
to sue her because a) I know she is would never be negligent
and b) because I wouldn't want her to be punished because she
is human. I would not want her to lose her practice because of
the financial burden that could arise because of an injury to
me or someone else. I would not want her to lose personal assets
that she has spent a lifetime working for. Injuries are a known
risk of her profession. She is willing to take that risk to help
patients. BOTH of us should be protected. What adds to the personal
burden of physicians, at least in Florida and some other states,
is that many have had to 'go bare' which means they essentially
self-insure. This is an unfair climate for physicians, especially
specialists who typically have the highest premiums) to have
to work. It's also not fair to patients.
Therefore, ethical health partnership,
in which the well-being of all the partners is taken into consideration,
calls for meaningful options for remedy before litigation is
pursued. It calls for fairness to patients AND fairness to physicians
who provide the care. I will explore options in a separate article.
But right now, let's talk about liability reform.
Proposals for Tort Reform usually
include some combination of the following:
* Cap Restrictions
* Contingency Fee Restrictions or Sliding Scale
* Joint & Several Liability
* Collateral Source
* Expert Testimony
* Periodic Payment
1. Cap Restrictions:
What is it?
Cap restrictions seek to
place a set limit of the possible award for pain and suffering.
Usually proponents suggest a cap of $250,000 although others
have proposed higher limits. Sometimes people are confused when
they hear the some of the rhetoric about caps. Caps DO NOT affect
the amount a jury can award for medical costs or economic loss,
past present and future. That remains unlimited. So if a person
has lost income of $50,000, has expenses of $150,000, and is
expected to lose $2 million in future lifetime income, plus $5million
in medical care, ALL of that would still be paid with a cap of
$250,000. Placing a cap on awards affects ONLY the "pain
and suffering" component. Economic and medical loss award
is separate and untouched.
Who wants it and why?
Physicians and physician associations, insurance, and most Americans.
According to a 2003 Gallup poll 72% of those polled favored a
law limiting amounts that can be awarded for emotional pain and
suffering.
Insurance position: It helps create more stable losses which
can be better predicted by insurance companies and can help regulate
malpractice premiums. Part of the concern for both insurance,
physicians and much of the general public is that jury awards
have increased over the years making mega-awards possible. The
median amount of jury awards has tripled from 1995 to 2000 in
which it was $1 million, with the average being $3.5 million
(Jury Verdict Research, Current Award Trends in Personal Injury,
2002) During that time of increase, the trend has been toward
significantly higher portions of the award being for pain and
suffering, rather than medical and economic loss. In 1997, only
two medical liability verdicts topped $20 million. In 2001, at
least 12 went above $20 million and three exceeded $100 million,
including a $269 million judgment. (National Statistics and
Trends: A Snapshot of the Crisis and Miami Herald, 02/03/02)
Insurance also believes that
caps will help discourage questionable lawsuits, assuming that
attorneys will not be willing to risk absorbing the costs it
takes to prepare a case unless they are fairly certain of a return
on their investment. Almost 70 percent of medical liability claims
do not result in payments to plaintiffs. Less than one percent
results in verdicts for plaintiffs. (Physician Insurers Association
of America, in National Statistics and Trends: A Snapshot
of the Crisis).
Pain and suffering awards are
highly subjective and are not consistent across states or even
similar cases.
Physician position:
Physicians want them for
the same reason insurance companies do, and for a few other reasons.
One reason is that physicians' groups believe that this will
help stop 'frivolous' lawsuits and the idea of a malpractice
lawsuit as an easy way to make money (either for the patient
or their attorney). Attorneys make their money on the "pain
and suffering" portion of the award, since the medical and
economic portions are designed to compensate and protect the
patient. Physicians agree that injured patients need medical
expenses and economic losses compensated. However, there is motive
on the plaintiff side to gain through a jury sympathetic to the
"pain and suffering" aspect. Doctors believe that the
enticement of large pain and suffering awards motivates many
malpractice claims.
Another part of the physician
position is that most physicians know that most injuries and
errors are not due to negligence, which means that the physician
performed substandard care. They also know, either through personal
experience, or through seeing a colleague go through a lawsuit,
how devastating it is for a physician who is truly competent
and caring to be accused of negligence, the foundation of any
malpractice claim.
Excessive awards significantly
impact the already increasing malpractice premiums for all physicians,
even those who have never had a claim. With reimbursements from
insurance decreasing and expenses rising, a large number of physicians
are struggling to stay in practice. Others have given up and
left active practice.
Who is opposed?
American Trial Attorney Association,
personal injury attorneys and some patient groups.
Attorney position: Attorneys say that restricting the pain and
suffering award, will not make it financially feasible for them
to represent injured patients and that patients won't be able
to get their day in court. Although attorney out-of-pocket expenses
are covered in other ways, their salary comes out of this part
of the award. They also argue that it is not the rate or amount
of jury awards that cause high malpractice premium rates, but
the insurance industry cycle, and some bad doctors.
My position: I do believe caps on pain and suffering
are necessary, although in and of themselves, they do NOT guarantee
that the cost of malpractice insurance for physicians will go
down. To me, it is ONE of the steps that need to be taken. However,
I also agree with attorneys that caps alone are not enough and
that the insurance industry also needs to be held accountable.
I also think that physicians and patients play a roles in malpractice
that has less to do with injury than it does with poor communication,
anger, unrealistic expectations, and reactions to losses of all
kinds. Studies show that poor communication is a factor in the
majority of malpractice claims.
There are no consistent guidelines
for juries, so depending on how much sympathy the attorney can
stir, the monetary awards can be dramatic, and unpredictable.
As I am revising this page, I just read about the first Vioxx
lawsuit against Merck. While it is different in some respects
than usual medical malpractice, the need for caps for pain and
suffering is evident. The wife of the man who died of heart problems
was awarded $24 million for mental anguish and loss of companionship
although they had been married less than one year and both were
in their late 50's. That is a ridiculous amount that all of us
will ultimately pay for in rising drug costs.
I firmly believe that injured
patients need to receive compensation for medical expense and
economic loss, but pain and suffering is a very undefined and
subjective thing and great effort is made to play on sympathy
and can be exploitive of the process of justice. I also support
caps because I think an attorney making 40% or so of $250,000
is a fair salary . . . more than the physician makes. . . and
that lack of caps make huge awards very appealing for some attorneys
and some patients. While the majority of patients do not sue
just for the money, unfortunately there are some that do. I recently
read on a malpractice attorney's website that "while the
first question many people ask is 'how much do you think I can
get', I cannot answer that question until we investigate the
case." So apparently there are significant numbers who are
only interested in a big payday.
I think that we need to explore
other ways of compensating injured patients that are quicker
and fairer to them and to physicians (and the rest of us).
2. Contingency fee limitations:
These are limits on the percentages
of an award that an attorney can charge for his or her fees and
how much of the award must go to the patient. Attorneys commonly
take about 40% of an award, so much of the cost of "pain
and suffering" is really about attorney fees for taking
the case. I don't know how it is where you live, but in my city,
it is the personal injury attorneys (who are the ones handling
malpractice cases and other sawsuits) who have the biggest ads,
the most billboards, TV & radio commercials . . .who have
the most money to spend on advertising and expanding. You can
guess who is for and who is against any limits on contingency
fees.
3. Joint and several liability: This means that ANYONE named in a claim
can be made responsible for the full amount of the award, no
matter how much or how little responsibility they had for the
adverse event . . .even if they are only 1% responsible. Some
states have tried to address this by setting a minimum limit
of the amount of responsibility needed (for example, 20%). Others
have passed 'fair share' modifications, which means if some named
in the suit was found to be 10% responsible, he or she would
pay that portion of the award. A combination of a minimum percentage
of responsibility AND a fair share approach can help, but I don't
think it is enough.
My position: Part of me believes
joint and several liability should be eliminated. If not eliminated,
there definitely needs to be BOTH a fair share approach and a
minimum level of responsibility specified. Patient responsibility
should also be included in the proportions. My big concern with
joint and several liability is that it encourages naming every
possible person listed in a chart in an effort to find as many
pockets as possible. Naming physicians, hospitals, nurses, and
others in a lawsuit, just because their name shows up, or because
they saw a patient, is not without consequence. Naming many defendants
and then dropping them as the suit progresses, costs not only
the people named (time off for depositions, lost work, lost income,
emotional stress, and financial burdens), but it also cost the
insurance companies, you and me. I think it is one of the things
that adds to increase in defensive medicine (tests and procedures
ordered that would not normally be if there were no fear of having
to document later in a lawsuit). So even if a doctor just consults
on a case, they have to cover their bases.
It costs money to defend, even
if a physician is later dropped from a case, and that adds to
the increasing malpractice costs and the subsequent impact on
all of us. On the other hand, another part of me thinks that
if there is a 50-50 responsibility with two defendants, then
it could make sense that both be equally responsible in terms
of payment. But boundaries need to be set to keep it from getting
out of hand as it is now.
I believe that a uniform set
of requirements to name someone in a lawsuit needs to be implemented.
I think joint and several liability is also a way for attorneys
to file a complaint against numerous defendants without doing
the rigorous work of determining who might be responsible and
who clearly is not. That becomes unfair and unethical. I recently
saw something that said that attorneys themselves favored removing
those few attorneys who file frivolous lawsuits. (I can't remember
where I read it, but will try to find the source.)
4. Collateral Source: Collateral source means other sources
of payment to the injured patient. These might include health
insurance, disability insurance, workman's comp and more. The
question is whether or not those should be brought into the malpractice
hearings. Some state laws prohibit those from being identified
and taken into consideration in an award.
My position: All states should require that those sources and
the amounts paid or scheduled to be paid be identified to the
court before any award decision is made. Otherwise, the person
is getting paid two or three times for the same injury. I think
of a recent malpractice case in my city involving a child with
cerebral palsy. The jury estimated that her expenses for the
future would be $16 million and then awarded more. However, people
with disabilities receive income and medical care from Social
Security and Medicaid. So, if medical expenses are paid, why
the high expense award?
5.
Expert testimony: This refers
to doctors and others brought in to testify against the physicians,
nurses, or hospitals to say that in their expert opinion, the
responsible parties did not meet the standard of care in the
case in question. The concern is in having someone who is current
in the standards of care for the specialty in question and requiring
them to be ethical in their testimony. We want the standards
for expert testimony proposed by the Coalition and Center for Ethical
Medical Testimony . In
addition, experts are not adequately instructed by the court
and even well-meaning experts can give biased testimony because
that's what they think they are being hired to do. Expert testimony
is big business. (More will be coming on this in a future article.)
Our proposal: Replace 'Experts
for Hire' with a More Objective Method:
In the current system, both plaintiff and defendant pay to bring
in experts sympathetic to their side. This process needs to be
more objective for the court and the jury to receive the information
they need to make a fair decision. Unfortunately there are physicians
'for hire' willing to slant testimony toward the side that pay
them. This is unethical and unjust for both patients and physicians.
One option might be to:
List specialty area of medicine
on license renewal and date of original medical license issued
in any state in the United States. Use a system similar to jury
pooling of relevant specialists in any malpractice trial, calling
a group of specialists with at least 10 or more years experience
in that specialty. If a specific procedure is in question, the
expert pool must have at least matching years experience in that
procedure as the defendant physician. Bring 4 of these 'experts'
in . . . 3 to testify, one as alternate.
The expert physicians will be
paid $100 per hour, with payment to be split between plaintiff
and defendant.
Each expert physician, including
the alternate, will review the patient records and other relevant
information; interview as a group, the defendant physician about
thinking, decision making, and behavior in the case; and interview
the patient where possible.
They each will create a written
report for the court regarding the above, the standard of care
being used to determine whether or not there was negligence or
substandard care, and specifically how, in their opinion, the
defendant physician did and/or did not meet that standard of
care. These reports and decisions will be created independently
by each 'expert' physician. Report will be filed with the court
with copy to both plaintiff and defendant. Each physician will
be called to testify.
6. Periodic Payment
Periodic payment means that
when a jury has determined an award for an injured patient, payment
of that award is done in regular payments. Sometimes these payments
are made as economic losses and needs occur. Often the insurance
company or physician (if self insured or if he or she is liable
for more than what insurance covers), funds an annuity from which
the patient receives regular monthly payments. This has two benefits.
One, it insures that the money for the patient's ongoing needs
will be there. Some of the concern with lump sum payment is that
the money is spent more quickly and sometimes on unnecessary
things and runs out. It's a story one hears often with lottery
winners. They win large sums of money and 5 or 10 years later
are broke. Periodic payment provides steady income when the award
is over a certain amount (in Florida, when over $250,000). Periodic
payment also makes it more manageable for an individual physician
who is paying all or part out of their pocket. For insurance
companies, it helps make losses steadier and more predictable
which can help create a climate for steadier and more reasonable
premiums.
7. Jury of Peers
One of the fundamental principles
of the American justice system is that every defendant has a
right to a trial by jury of one's peers. To have juries without
physicians judging physicians is not a jury of peers. 1/3-1/2
of jurors in malpractice trials should be physicians, with at
least one or more licensed in the same specialty area as the
defendant physician. This would create more equity and help juries
process some of the complex information that is sometimes presented
in malpractice cases.
Insurance Reform:
Of course, with caps, contingency
restrictions, periodic payment or any of these reforms, insurance
companies would also need to be held accountable for premium
regulation and ethical relationship with physicians and consumers.
A March 13, 2002 statement by the American Insurance Association
said: "The insurance industry never promised that tort
reform would achieve specific premium savings." Personal
injury attorneys are correct when they claim that we need insurance
reform and better regulation. That definitely needs to be PART
of the solution to stabilize the current system.
We Need to Explore Alternatives
Beyond the Current Tort System:
The system we have, while
better than nothing, does not create ethical relationship with
either injured patients or physicians, both those who are negligent
and those who are not. The system has come to perpetuate injustice.
Cases are not filed unless they are lucrative enough for a law
firm. Because the whole system is based on alleged negligence
and substandard care, most injured patients are left without
needed help when they have significant medical expense and economic
loss due to an avoidable injury. Right now, the only recourse
they have is to struggle with economic loss in addition to their
injury, or allege negligence even when it is clear there is none.
The court system is adversarial, you versus me, winner versus
loser. This sets patients and physicians in adversarial relationships
and erodes trust even in the everyday relationships of patients
and physicians. Patients and physicians need to work together
to repair damage they both experience when injury occurs. (See
An
Ethical Approach to Patient Injury and Compensation )
Urge your legislators,
state and federal, to support medical liability reform, but also
to be proactive in implementing demonstration projects for alternatives:
Urge your legislators to not
only support liability reform, but to make a commitment to push
for effective alternative methods that would be more ethical
for all patients, especially those injured, and all physicians.
Current legislation before
the 109th Congress (scheduled to come up for vote in March, 2005).
List
of articles on medical malpractice located on other sites
TAKE ACTION! JOIN US IN ISSUING THE
CALL TO ETHICAL HEALTH PARTNERSHIPS!
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