July 4, 2009

NEJM: "The Role of Medical Liability Reform in Federal Health Care Reform"

Michelle Mello and Troyen Brennan in the July 2 New England Journal of Medicine:

What kinds of malpractice reforms might be candidates for bundling [with comprehensive federal health care reform]? The warhorse of federal tort reform efforts in the past has been caps on noneconomic damage awards. However, in the current political environment, the chances are nearly nil that tort reform of this sort could pass -- it is anathema to most House Democrats. The realistic contenders are more moderate measures that address physicians' complaints about the unfairness of court decisions that appear to be out of step with medical expertise. ...

July 3, 2009

Around the web, July 3

• Now that Harold Koh has been confirmed, let's have a calm debate on the merits of importing international law [Eric Posner, Volokh, parts one and two]
• New symposium on originalism in Northwestern U. Law Review has contributions from Barnett, Balkin, S. Calabresi, McGinnis, Rappaport [Prawfsblawg]
• Blogging by big-firm lawyers comes of age [Beck & Herrmann] Related: George Lenard.
• Arkansas, New Mexico AGs' responses to WSJ hints of pay-for-play in pharmaceutical price recoupment lawsuits [Arkansas Times, Santa Fe New Mexican, KRQE]
• Not good news: New York's second biggest medical malpractice insurer is insolvent [Crain's New York Business, Turkewitz, White Coat (last item)]
• duPont sued in Delaware over asbestos use in Argentina [Wilmington News-Journal]

Nicholas Kristof on med-mal reform

Missed this NYT column from him the other week:

I don't mind the A.M.A. lobbying on behalf of doctors in the many areas where physicians and patients have common interests. The association is dead right, for example, in calling for curbs on lawsuits, which raise medical costs for everyone.

An excellent study published in 2006 in The New England Journal of Medicine found that for every dollar paid in compensation as a result of lawsuits against doctors, 54 cents goes to legal and administrative costs.

That's an absurd waste of money. Moreover, aggressive law leads to defensive medicine, in the form of extra medical tests that waste everybody's money. Tort reform should be a part of health reform.

(h/t Common Good).

July 2, 2009

Trial lawyers playing defense on health care reform? Really?

Medical malpractice and liability reform DID come up yesterday at President Obama's town-hall-style-flavored event on health care. Rep. Michael Burgess (R-TX), a physician, drew attention to Texas' success in capping non-economic damages and challenged the President to push for reforms that work. (Burgess has introduced the Medical Justice Act, HR 1468, to establish national liability limits.)

The President responded by reprising his June 15th remarks in Chicago to the AMA:

I don't like the idea of just an artificial cap. I do want to work with doctors to find ways that we can reduce their liabilities where they haven't done anything wrong, where they've performed effectively. I want to see, are there ways that we can reduce the constant threat of lawsuits that doctors and hospitals experience, because I do think that that causes defensive medicine. And so I've committed to working with the AMA to see ways that we can reduce some of these litigation costs and malpractice rates.

If this were really a priority, wouldn't we be seeing a high level of activity, table pounding and persuasion coming from the trial lawyers? News releases, op-eds, floor speeches? Have you seen anything on the TV about medical liability reform?

The silence speaks for itself. Roll Call interviewed the American Association for Justice's Linda Lipsen after the President's AMA speech, and she said the expected things, but two weeks later the story's headline seems unwarranted: "Trial Lawyers Now Playing Defense."

As the Wall Street Journal editorialized post-AMA in "Obama's Malpractice Gesture," "Mr. Obama's cri de coeur might have had more credibility had he not specifically ruled out the one policy to deter frivolous suits."

In the extended entry below you'll find the transcript of yesterday's event dealing with malpractice, as well as Rep. Burgess' response to the President.

Continue reading   Trial lawyers playing defense on health care reform? Really?

Calling in consultants in the ER

It's partly a function of defensive medicine, says Throckmorton: "Indigent patients are less likely to follow up and more likely to sue. So, you consult more to make someone else responsible. As one of our ER docs put it, you are recruiting co-defendants."

June 30, 2009

Epstein: "How Other Countries Judge Malpractice"

Richard Epstein surveys the ways other systems handle litigation, and medical litigation in particular:

Even these features [jury trials, contingency fees, lack of loser-pays, extensive lawyer-driven discovery] aren't the whole story. American judges frequently let juries decide whether honest mistakes are negligent. Judges in other nations are less likely to do so. American courts commonly think it proper for juries to infer medical negligence from the mere occurrence of a serious injury. European judges usually will not.

American plaintiffs are sometimes spared the heavy burden of identifying particular acts of negligence, or of showing the precise causal connection between a negligent act and an actual injury. Lastly, damage awards for lost income and medical expenses in the U.S. tend to dwarf awards made elsewhere -- in part because governments elsewhere provide this medical care from their nationalized systems. In sum, the medical malpractice system provides incentives for plaintiffs that really do matter. Americans, for example, file claims about 3.5 times more often than Canadians.

It's not clear what we're getting from our exorbitantly expensive way of doing things:

More disturbingly, a careful 1992 study by Donald Dewees and Michael Trebilcock in the Osgoode Hall Law Journal concluded that the frequency of medical malpractice in Canada was about the same as in the U.S. -- for about 10% the total cost. In other words, our costly system doesn't seem to do much to deter malpractice. On medical malpractice at least, Canada does better than we do.

More: Some thoughts from MedRants (citing this 2003 Medical Economics piece by Robert Lowes) and from John Stossel. And Eric Turkewitz takes issue with many of Epstein's contentions, deeming "flat out false" the assertion that courts commonly allow juries to infer medical negligence from injury, and saying Epstein "misses the mark, at least in New York" in asserting that juries need not link up particular negligent acts with injury. Max Kennerly echoes these criticisms and adds others as well. And yet more criticism: Day on Torts.

June 25, 2009

Economist/YouGov poll on med-mal

From The Economist's "Democracy in America" blog:

...Barack Obama indicated a willingness to break ranks with his trial lawyer supporters and consider limits on medical malpractice awards last week. Our poll shows that the public supports limits on malpractice awards by a 42%-24% margin with 34% unsure. Hardly anyone (12%) believe malpractice damage awards are too low and a plurality believe they are too high.

Americans for Tax Reform med-mal paper

The Washington-based group headed by Grover Norquist has a new paper entitled "Medical Tort Reform: A Comprehensive Guide to Federal and State Efforts". The paper (PDF), by ATR federal affairs manager Brian M. Johnson, covers, among other topics, the state of medical liability reform in Arizona, California, Florida, Mississippi, and Texas.

June 19, 2009

Medical devices, the hearing

The House Energy and Commerce Committee, Subcommittee on Health, held a hearing on the regulatory approval process for medical devices Thursday, presumably as preparation for action on H.R. 1346, the Medical Device Safety Act -- sponsored by the committee's chairman, Rep. Frank Pallone (D-NJ). The American Association for Justice certainly regarded the hearing as serving that purpose, specifically citing the legislation in its news release, "Questions about FDA Oversight of Medical Devices Leave Patients Vulnerable."

Yet there are regulatory inefficiencies and ineptitude at the Food and Drug Administration independent of the question whether federal preemption is wise public policy. Witnesses' prepared testimony examined some of these issues, and the GAO submitted a report that described "shortcomings in both premarket and postmarket activities [that] raise serious concerns about FDA's regulation of medical devices." Even though the GAO tends to identify problems committee chairmen want identified, there's still useful detail in the report, "Medical Devices: Shortcomings in FDA's Premarket Review, Postmarket Surveillance, and Inspections of Device Manufacturing Establishments."

Other testimony...

• Chair Pallone's Opening Statement
• Testimony of Marcia Crosse
• Testimony of William H. Maisel
• Testimony of Phillip J. Phillips
• Testimony of Peter Lurie

We do not find any testimony of a White House official urging caution when considering regulatory changes that would encourage costly lawsuits. Health care reform only goes so far.

Around the web, June 19

• "Green warfare: A change-committed administration could redefine the shape of environmental litigation" [Inside Counsel]
• Arkansas high court's striking down of liability reform could be issue in 2010 elections [Under the Dome]
• Securities industry group defends arbitration against the campaign for a ban [Forbes]
• Case could undermine Maryland limits on med-mal awards [Gazette.net]
• Virginia governor and DNC chairman Tim Kaine keynotes AAJ leadership breakfast [ShopFloor]
• Funny and believable "Trial Lawyer's Prayer" by Evan Schaeffer [Day on Torts]