One aspect that lends strength to the New Hampshire law (see earlier report) is that a unanimous screening panel finding can be introduced as evidence at a later trial, which may have contributed to a defense verdict recently in the trial of a neurologist in Nashua. Kevin Pho and commenters discuss.
As always, they do interesting empirical work:
Using claim-level data, we simulate the effect of Texas's 2003 cap on non-economic damages on jury verdicts, post-verdict payouts, and settlements in medical malpractice cases closed during 1988-2004. For pro-plaintiff jury verdicts, the cap affects 47% of verdicts, and reduces mean allowed non-economic damages, mean allowed verdict, and mean payout by 73%, 37%, and 26%, respectively. In total, the non-econ cap reduces adjusted verdicts by $156M, but predicted payouts by only $60M. The impact on payouts is smaller because a substantial portion of the above-cap damage awards were not being paid to begin with. In cases settled without trial, the non-econ cap affects 18% of cases; and reduces predicted mean payout for non-economic damages (predicted mean total payout) by 38% (18%). The non-econ cap has a smaller impact on settled cases than tried cases because settled cases tend to involve smaller payouts.
The impact of the non-econ cap varies across plaintiff categories. Deceased, unemployed, and elderly plaintiffs suffer a larger percentage reduction in payouts than living, employed, and non-elderly plaintiffs, these differences are statistically significant for the first two comparisons.
We also simulate the effects of different caps, and find substantial differences in cap stringency across states. Different caps reduce aggregate payouts in tried cases (all cases) by between 16% and 65% (7% and 42%). Caps on total damages have especially large effects.
Available at SSRN.
A New York Times editorial (who said we always disagree with them?) says federal regulation of human-subjects research under the Institutional Review Board system is slowing down hospitals' efforts to study the benefits of tightening safety protocols on such matters as handwashing and sterile practice. "Seeking approval is a cumbersome process that could delay studies for months. Surely, as the nation’s health care system works to reform dysfunctional practices, this makes no sense. The rules intended to protect patients could instead slow organizational reforms that would benefit the patients." More at Future Pundit and Health Care for All; earlier coverage of IRBs here and here. The problem of IRB oversight of hospital checklist development was earlier explored in a December Times piece by author/surgeon Atul Gawande.
Eric Turkewitz is the first of many plaintiffs' lawyers to jump on President Bush for complaining about "junk medical lawsuits" in last night's State of the Union (Jan. 28). Turkewitz complains that Bush didn't mention any studies (though State of the Union addresses are for policy proposals, not for discussions of the pros and cons of empirical evidence) and then says no such studies exist.
Which just isn't so, of course. As I note in my latest law review article, critiquing Thomas Geoghegan for thoughtlessly repeating the same trial-lawyer talking point,
The Harvard study in fact found that 28% of patients who suffered no medical error received compensation (as did 16% of patients who sued without any medical injury), and that only 60% of cases filed involved medical error. David M. Studdert, et al., Claims, Errors, and Compensation Payments in Medical Malpractice Litigation, 354 NEW ENGLAND J. MED. 2024 (May 11, 2006).
Now, even leaving aside the simple fact that not every "medical error" is actionable medical malpractice, so the Harvard study was measuring the wrong thing, perhaps Turkewitz sincerely thinks that it is not a problem that the plaintiffs' lawyers' decision to bring a lawsuit is little better than a coin-flip in determining whether a doctor committed medical error, or that bringing a meritless suit against a doctor gives one a 28% chance of getting paid.* Policymakers and doctors likely would have a different opinion if they thought about it.
Note the typical anti-reform debating tactic of using "frivolous" in the narrowest of technical senses to minimize the existence of a problem, though politicians who support reform use the word "frivolous" in the broader colloquial sense.
Continue reading "Junk Medical Lawsuits" and myths
But they told us the malpractice crisis was just a myth dept. (Associated Press):
Oregon Health & Science University plans to cut at least 200 jobs and raise tuition by at least 10 percent to free the money needed for higher insurance costs following an Oregon Supreme Court ruling.
The December ruling cleared the way for the family of a brain-damaged child to pursue malpractice damages from the university. It effectively eliminated a liability cap of $200,000 designed to protect state agencies from major damage awards.
The cutbacks, expected to be announced Friday, were first reported by The Oregonian newspaper. Besides trimming jobs and hiking tuition, OHSU expects to restructure or close clinical, research and education programs, and scale back construction on Portland's South Waterfront.
OHSU said the court ruling will add $30 million a year in insurance and administrative expenses. Though that's only 2 percent of OHSU's annual operating budget of about $1.5 billion, it amounts to more than 60 percent of its annual support from the state's general fund. ...
OHSU is Portland's largest private employer with about 12,000 staff.
More: Victoria Taft.
In a widely noted fiasco last May, the Boston-area pediatrician anonymously blogged his own malpractice trial and then was confronted by plaintiff's counsel about it. He's now given an interview about the experience to Eric Turkewitz (New York Personal Injury Attorney Blog). More: Althouse.
Social pressure to become a med-mal litigant.
If you go online for information about diseases, drugs and conditions, you're apt to find "lawyers posing as medical experts" (PDF), their client recruitment efforts masquerading as advice.
I wasn't the only one who thought the paper's report on California's MICRA law -- to quote Prof. Obbie -- "state[d] a point of view for which it lacks convincing proof".
The state legislature had attempted to limit damages payable by the University of Oregon, its hospital, and other public agencies, but the message from the Oregon Supreme Court is that we're the bosses around here.
Meanwhile, the Los Angeles Times is forgoing a revenue opportunity if it didn't charge the trial lawyers' association ad rates for its new attack on California's MICRA malpractice limits.