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AMA Editorial Endorses the HEALTH Act of 2011

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by Courtroom Mama


An editorial in today’s American Medical News, a publication of the American Medical Association, called for an endorsement of H.R. 5, the Help Efficient, Accessible, Low-cost, Timely Health Care Act of 2011 (“HEALTH Act,” here in full PDF glory). Describing the U.S. medical liability system as “badly broken,” the editorial suggested that this bill would be a “major step forward in reducing the costs to the system and lessening the harm to patient access posed by frivolous lawsuits and the practice of defensive medicine.”

The article states:

The growing number of physicians who have seen the dark side of the liability system know that a large majority of these cases are dropped or dismissed outright. But that doesn’t mean they are without financial consequence — not by a long shot. On average, physicians can expect to incur legal costs of more than $25,000 for every claim against them.

To remedy this situation, the article suggests, among other things, caps on noneconomic damages, caps on punitive damages, limits on attorney fees, and statutes of limitations.

These remedies are interesting to me, because some of them seem unresponsive to the problem as stated. For example, there are already statutes of limitations in place in most if not all jurisdictions; in some places the period to sue for medical malpractice is less than that for any other tort.

The editorial acknowledges that a large majority of cases are dropped or dismissed outright. When this happens, plaintiffs—and their attorneys—get nothing. There is a reason for the contingency basis. Put bluntly, there is not much incentive to avoid committing malpractice on patients who can’t afford to sue, and the tort system is all about deterrence.

Considering that the $25,000-a-pop figure cited are fees that go to the defendant’s attorney while the plaintiff and her attorney walk away empty-handed, I can only assume that the limits on attorneys fees apply to the defense bar.

I’m especially intrigued by the idea of a cap on punitive damages, because these are rare in malpractice cases. Punitive damages, or damages intended to punish the tortfeasor (isn’t that an awesome word), exist because what the person has done is so offensive that the jury wants to make it hurt. Punitive damages are generally not even available in negligence as they’re reserved only egregious circumstances of wanton recklessness or intentional infliction of harm. Does it make sense to place a cap on them when an important role of the jury is to express our opprobrium for injurious conduct? Consider, for example, my favorite case: an Ob/Gyn carved his initials into a patient’s skin after performing a cesarean section. She sued for $5.5 million, they settled for $1.7 million.  

In light of our recent (amazing) discussions on defensive medicine, particularly the research from Texas, what do you think?



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Reader Comments (13)

I agree that reform needs to happen, but from everything I've read it sure seems like the reform needs to go the other way than commonly discussed. How many please are forced into procedures they don't want and/or need because doctors ignore informed (non) consent or lie to obtain it? How many people are injured but may not know about it until after the statue of limitations run out? (Especially when you are talking about the female reproductive system.) Caps on damages came up to a vote in my old state, limiting restitution to ecomonic damages and putting a very low cap (I believe it was $5000) on punitive damages. It got voted down, largely in part to a man bringing his story to the public, suffering a complete emasculation due to a doctor's negligence. The point was, since it didn't effect his ability to work the most he could be awarded under the proposed new law was $5000. A joke when his damages were so severe.
I have heard about and read about horrible malpractice by doctors against women during pregnancy and delivery, yet such damages rarely translate into economic damages, and frequently might not even be known for many years later. The tort reform acts that usually get brought up would be nothing but a get out of jail free card for doctors to treat all manner of reproductive care as their own sadistic playground (or, more 'PC': as a no consequence practice)

February 8, 2011 | Unregistered Commenterjespren

i always like the word 'tortfeasor', too. Can we get the tee-shirt? How's that for courtroom drama--everyone wears their role.
I digress.
Malpractice is rampant--not 'frivolous' lawsuits. We need reform that compensates the injured and rehabilitates or removes the incompetent practitioner. This is a bunch of ego-whiners. The industry has blocked every attempt to hold them accountable for their outcomes--not just the ones gone bad, but also tracking to see what does and doesn't work--see Codman's End Result. Having grown up with two generations of doctors, I can tell you, at the heart of this is a professional culture that does not believe ANYONE other than themselves, has the right to criticize, or even comment, on what they do--or don't do. The fox has watched the chicken house for far too long--and remember--we are the chickens.

February 8, 2011 | Unregistered CommenterD'Anne

I'm just confused as to why this is an issue. My personal experience with this was with what I would consider gross mismanagement of my friend. She delivered a healthy boy at home, but the placenta would not detach. She was driven to the hospital, bleeding profusely, while the baby stayed at home. Once at the hospital the staff berated her with questions about the baby even after she assured them he was home and safe. They wouldn't help her out of her car and on to the stretcher, didn't take her vitals for hours, even though blood was dripping from her gurney onto the floor. She was required to switch beds five times, no fluids, no painkillers until she finally gave the hospital her address, at which point they sent the police and fire department to her house. Five hours after they arrived they finally removed her placenta, but she had lost so much blood that she required two units of blood. Through it all the nursing staff made comments that her care was a result of her choosing to vbac at home.

No lawyer will touch her case saying that since she didn't have any long term damage the hospital isn't liable for the horrendous care she received.

In what sorts of cases are women actually able to sue for incompetence?

February 8, 2011 | Unregistered CommenterStemarschlaw

Stemarschlaw - that is a very good question, since the majority of cases never even make it past the attorney's intake, let alone get to the point where settlement or dismissal is possible. The one sort of case that people have a relatively good shot with are birth injury cases, which is tough because they are usually argued on a "failure to perform a timely cesarean" theory. And back to square one...

I'm very sorry that that happened to your friend, by the way. It is disgusting that anyone would ever be treated like that. Even if she had done something wrong by delivering at home, she deserves basic medical care. Withholding medical treatment until someone "confesses" amounts to torture. I'm sorry there is no remedy for this in malpractice, and I hope she complained to the state medical board.

February 8, 2011 | Registered CommenterCourtroom Mama

Stemarschlaw's friend's case brings up an excellent question -- why was this woman's only recourse a lawsuit? Courtroom Mama suggests she complain to the State Board, and I'm sure that would be good, but is that all that could happen? If State Boards are liable to investigate such complaints, that's well and good; but if (as I've heard it said of some SBs), that the health-care worker gets merely a slap on the wrist, or no investigation at all, then that's not so good. If any of you are familiar with the Kermit Gosnell case, the Philadelphia abortionist who has been in the news lately, the Grand Jury Report castigated the various regulatory agencies that were supposed to provide oversight -- including the State Board of Medicine, which had received and ignored complaints about his filthy practice. Regardless of where you stand on abortion (and I am *not* getting into a debate on it -- just bringing it up because it is a recent and national example, so everyone can read the Report for herself), there were ***multiple*** times that this guy should have been investigated and stopped before injuring and killing so many women; but many organizations, including the State Board of Medicine did nothing even when they received complaints. That does not instill a lot of confidence in me; but I will say, that I think that if people thought they had recourse other than a lawsuit to punish the offender, or to stop him from practicing, I think lawsuits would go down. I think a lot of people just want to hear, "I'm sorry; I was wrong; I'll do better," if it was truly an accident; or if it was something intentional, like the initial-carving, for the doctor to lose his license, so that he can't do that to someone else ever again.

February 8, 2011 | Unregistered CommenterKathy

Yes. Alternate recourse would be an excellent (at least partial) solution.

Stemarschlaw, I'm very sorry about what happened to your friend. That kind of behavior from "professionals" is appalling. No one deserves to be treated that way. I wonder, in fact, if she might not have grounds for criminal charges against whomever was in charge at the time. Someone else mentioned torture. I wonder if that kind of charge would stick.

February 8, 2011 | Unregistered CommenterHeather

Courtroom Mama, can you speak to what would be considered "criminal" in terms of a doctor's actions? I mean: pulling out a gun and shooting a patient--no problem there, correct? If a random person carved their initials on my skin, would that not be a criminal act? And would they not do time/pay a fine for such an act? And since there is no medical reason to do something like that, how could it even fall under anything but an act of assault?

Also: what does it take for a provider to lose their license? And does that loss prevent them from working in other states/countries? I hear so many stories where providers should lose licenses but don't, and I guess I have no idea what the real story is.

If Dr. Dorn is around, his input would be interesting here, too.

February 8, 2011 | Unregistered Commenteremjaybee

emjaybee -- sorry I wasn't clear, there's more to the story. Like I mentioned in malpractice 101, the tort is a private right of action for injurious conduct, while the crime is the state's right of action. So while he was sued by the plaintiff for I'm not sure what (battery, mental distress, disfigurement), he was charged by the state with first-degree assault, which carried a maximum penalty of 25 years. He was offered a plea bargain and got 5 years probation. His license was revoked, and the hospital was fined for not having better oversight of its employees.

To the extent that someone has to pay a fine for criminal acts, it doesn't go to the victim, but usually to the state and sometimes to a crime victim's compensation fund or some sort of crime prevention fund (you see this a lot for DUIs). If the victim wants monetary compensation, they have to sue in tort (think OJ Simpson).

February 8, 2011 | Registered CommenterCourtroom Mama

What is the law about refusing to provide care to a person who has a life threatening condition? The woman was bleeding; she would have died without care. They were witholding care in order to extract information from her, information which was really in no way their business, furthermore. She came to them for care. She did not present her child to them for care. She is not required to present her child to them for care. And they are required by law to assess and treat her with promptness proportial to the medical urgency of her need. I hope she wrote to the state board which licences and oversees hospitals!

And what do you mean "even if she had done something wrong by delivering at home."? Do you mean "even if in their opinion she had done something wrong by delivering at home"? I will assume that is what you mean.

This story makes me very angry. If this had happened to me after one of my unassisted births at home, I would have been met at the ER by my own doctor and I would have been treated promptly, and he would not have tolerated any harrassment of me for delivering at home. But I just lucked out in having a doctor like him, otherwise I could have wound up in this woman's position. I certainly know why she didn't take her baby in with her!

shaking with fury at this story
Susan Peterson

February 8, 2011 | Unregistered CommenterSusan Peterson

proportional..... sorry, I was too angry to proofread

February 8, 2011 | Unregistered CommenterSusan Peterson
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