February 9, 2010

Baltimore Sun on med-mal reform

The paper likes health courts and an apology law.

February 5, 2010

Illinois high court strikes down malpractice limits

It's for the third time, and confirms that the court simply will not be bound by the duly enacted acts of the legislature when certain issues important to its lawyer constituency are at stake. I made these comments for the Heartland Institute:

"The court's supposed separation of powers rationale simply can't be taken seriously. Legislatures pass new laws prescribing the legal consequences of civil breaches all the time, and no one imagines that the court would have struck down this legislative intervention had it expanded damages as opposed to limiting them.

"At this point, if Illinois wants to put the voters and their representatives back in charge, it will need either to alter its constitution or--perhaps a better idea--alter the composition of its supreme court."

On page 21 of its opinion, the court has to confront the fact that the Illinois legislature has often limited common law damages in other circumstances without being found unconstitutional. An Innkeeper's Protection Act, for example, limits the liability of hotel owners to a fixed sum no matter what the value of the goods lost by the guest. The court absurdly seeks to distinguish this instance by noting that the innkeeper statute "also allows the parties to contract around the statutory limit." As if it would have upheld malpractice limits had they been paired with an option of contracting around the statutory limit!

The court's decision yesterday, like its earlier two decisions striking down medical liability limits, is lawless. It is best understood as a peremptory act of will and a power play in the familiar, if ugly, tradition of Illinois politics.

P.S. From the ABA: we disagree with the Illinois statute's policy content. Must be unconstitutional! More coverage: Chicago Tribune, Chicago Daily Law Bulletin, Madison County Record, Dan Pero/American Courthouse. And a strong editorial reaction from the Chicago Tribune ("A disastrous decision"):

...The court threw out a sound law that has worked. The court threw out a sound law and essentially told the state's lawmakers: Don't even bother to try this again. ...

Justice Lloyd Karmeier, joined in a dissent by Justice Rita Garman, wrote that the court's wisdom in that previous decision "has not only been rejected by the federal courts, it has failed to carry the day in any reported decision in any other state in the United States since it was filed 12 years ago."

Nobody has recognized the wisdom of the Illinois Supreme Court on this matter ... except the Illinois Supreme Court.

February 2, 2010

Chicago Tribune on Illinois med-mal

A good editorial in anticipation of the state high court's ruling:

This time the legislature was very careful to draft a law that could pass muster with the Supreme Court. The caps are limited to non-economic damages, just in medical malpractice cases. It was a restrained response to an acute health crisis in this state.

And it has worked.

February 1, 2010

Roundtable: conflicts of interest and medicine

The teaching hospitals associated with Harvard Medical School recently issued a directive forbidding top personnel from involving themselves with private health-care companies in various ways, as by accepting seats on the boards of drug companies. The Manhattan Institute's Medical Progress Today site assembles a roundtable on this topic that draws on a glittering display of talent, including Jack Calfee (AEI), Richard Epstein (Chicago), Thomas Stossel (Brigham & Women's), Thomas Huddle (U. of Alabama), Rita Numerof (Numerof & Associates), Lance Stell (Davidson College), and Elizabeth Whelan (American Council on Science and Health).

January 31, 2010

Status report: The Administration and medical liability refrom

President Obama, speaking to House Republicans at their policy retreat in Baltimore Friday:

From the start, I sought out and supported ideas from Republicans. I even talked about an issue which has been a holy grail for a lot of you, which was tort reform, and said that I'd be willing to work together as part of a comprehensive package to deal with it. I just didn't get a lot of nibbles.

Beyond talking, the Administration's nod to medical liability reform is a Health and Human Services program of demonstration grants to states, the Patient Safety and Medical Liability Reform Demonstration announced Sept. 17, 2009. (Presidential memo, and White House fact sheet.)

HHS's Agency for Healthcare Research and Quality (AHRQ) is running the $25 million grant program. The panel called to provide input on the process, the Patient Safety and Medical Liability Reform National Advisory Council Subcommittee, held a little-reported meeting on Oct. 26, and the deadline for submitting grants was Jan. 20.

Is this a serious effort to bring exorbitant legal costs of medical care under control? Reading through the online materials, we find this, "Clarification and Update Notice for AHRQ Medical Malpractice Funding Opportunity Announcements (FOAs): RFA-HS-10-021 and RFA-HS-10-022":

The Research Objectives Section in both FOAs currently provide background information and descriptions in the areas of 1) Patient Safety and Risk Management and 2) Medical Liability. This Notice clarifies that AHRQ requires all applications for both of these FOAs to address both of these two areas in order to be responsive to the FOAs. Applications that do not address both patient safety/risk management and medical liability will not be considered responsive, and will not be reviewed by AHRQ.

So don't bother making straight-forward tort reform proposals like limiting non-economic damages.

AHRQ says peer review will take about four months, with the grants to follow four months later. That schedule puts us into the early fall, i.e., campaign season, and will give candidates an opportunity to say things like, "The Administration actually proposed health care tort reform."

(Hat tip for the President's statement, Philip Klein.)

Med-mal insurers and antitrust: the costs of payback

"House Democrats are planning a vote next week on legislation that would repeal the McCarran-Ferguson Act anti-trust laws exemption for health care and medical malpractice insurers." Insurers have warned that without a legal safe harbor for exchanging some information within the industry about past claims patterns, some insurers will be underwriting in the dark and will be more likely unknowingly to write coverage for bad risks. In the case of medical malpractice insurance, that means they'll be more likely to offer unduly cheap and abundant coverage to high-risk sorts of provider that an information-sharing model would have given them fair warning about. That will encourage there to be more of those sorts of high-risk providers.

One wonders whether the Litigation Lobby has not considered that possibility at all, or finds it well worth risking for the sake of getting its payback.

January 27, 2010

What a timely editorial

The Maui News writes, "Maui needs tort reform."

Opening in Maui on Saturday, the American Association for Justice's winter convention. AAJ's major lobbying expense in Congress this last quarter: preventing tort reform.

Medical liability reform was a big issue in Hawaii's 2009 Legislature, but legislation did not win final approval. The publisher of the Maui paper is keeping the pressure on.

Earlier Point of Law posts on the Maui convention here. As noted earlier, big speakers are Montana Gov. Brian Schweitzer and Hawaii Congressman Neil Abercrombie. Abercrombie is resigning soon to run for governor, so his comments to the trial lawyers audience should be of keen interest to Hawaii's voters. Will his speech be open to the press?

Med mal reform in Virginia

Christopher Robinette at Torts Prof has a couple of updates, including proposed legislation "authorizing a disclosure/early offer pilot program." More at VLW (also).

January 25, 2010

No surprise: Trial lawyer lobbying forms show health care focus

The American Association for Justice has filed its fourth quarter 2009 congressional lobbying disclosure form (here, reporting $1.33 million in expenditures. That's up from $1.06 million in the third quarter, an increase probably related to lobbying on the health care legislation.

The filing provides more evidence that the trial lawyers helped craft language establishing state demonstration projects, preventing serious reform. Under the HCR (health care) category, AAJ lists its activities: "Lobbying with regard to the establishment of state-based pilot projects concerning medical liability." Under TOR (torts): "H.R. 3950 (Patient Protection and Affordable Care Act); specific interest in provisions relating to state-based demonstration projects relating to medical liability; and specific interest in proposed amendments relating to medical liability tort reform, including: Ensign amendment #2927 (offered and tabled by vote), and 17 amendments that were filed but not offered."

For the first time in 2009, AAJ's disclosure form reports the association's involvement with homeland security issues (HOM), specifically House chemical facilities security legislation. Five AAJ lobbyists worked the issue, seeking to preserve "citizen suits" and prevent federal preemption of state laws and regulations. The references in AAJ's disclosure form:

• H.R. 2868(Chemical and Water Security Act of 2009); specific interest in amendments relating to citizen suits and federal preemption of security regulations at chemical facilities.
• Stearns amendment, not agreed to; to restrict states from implementing security regulations at chemical facilities that are more stringent than those outlined by the federal government.
• Upton amendment, not agreed to; to prohibit citizen civil lawsuits against the Department of Homeland Security.

The House passed the Chemical Facility Anti-Terrorism Act in early November. For more on the "citizen lawsuit" provisions, see this Point of Law post.

January 22, 2010

Compensation process itself influences claimant health outcomes

On SSRN, Genevieve Grant and David M. Studdert of the University of Melbourne take up an issue we've encountered before. Abstract:

Do injured persons whose injuries are potentially eligible for compensation under social insurance schemes experience worse health outcomes and slower recoveries in the medium-to long-term than persons with similar injuries that are not covered by compensation schemes? Epidemiologists and health services researchers have probed that question since the 1970s, but interest in it has accelerated sharply in the last decade. A substantial empirical literature now exists to support the existence of a link between compensation status and health outcomes. A strand of that literature specifically implicates the role of compensation processes, lawyers and adversarialism in producing or perpetuating ill health among claimants.

This article critically reviews research into the compensation-health relationship. Systematic methodological weaknesses are identified - in particular, an inability to come to grips with the legal contours and realities of compensation processes. We conclude that, although there are important gaps in the evidence, profound questions about the impact of compensation processes on claimants' health have been placed on the table. Legal professionals and policymakers must take these questions seriously. The involvement of legal scholars in multidisciplinary research may improve the quality of the evidence base and facilitate appropriate policy interventions.

The paper is titled "Poisoned Chalice? A Critical Analysis of the Evidence Linking Personal Injury Compensation Processes with Adverse Health Outcomes" (via TortsProf)