Searching For New York’s Medical Malpractice Crisis
Remember the regular hand wringing about New York’s medical malpractice “crisis”? Doctors were said to be leaving the state in droves. OB/GYNs were dropping the OB. Neurosurgeons were retiring early. Hospitals and medical liability insurance companies in the state suggested they were close to bankruptcy…all because of the dreaded plaintiff’s lawyers and the “jackpot justice” they achieved for clients who were never really victims of medical negligence, but of unfortunate “complications” (such as operating on the wrong limb).
As it turns out, New York has been and remains a very physician-friendly state, and this has been reaffirmed by the latest news from Albany. After two years of medical liability insurance rates remaining frozen in place, the new rates just announced by the state’s insurance commissioner amount to a 5% increase for most physicians.
And yet, Superintendent of Insurance James Wrynn concludes his delivery of the good news with even more fear mongering. Yes, according to Mr. Wrynn, we are still in the midst of a “crisis” from which his leadership will extricate us (read to the end of the press release).
So, two years with no increases, followed by this year’s 5% increase, is indicative of a “crisis”? I’d like to suggest that the only “crisis” taking place in this subject area is the one that involves the credibility of our state’s insurance executives. It would be nice if that received some attention in the press.
Alternatives to Tort “Reform” That Don’t Hurt Med Mal Victims
The State of New Jersey has taken an innovative approach to addressing a longstanding concern of physicians in high-risk practices. According to the New Jersey Star-Ledger, a recently passed bill would require the state’s doctors and lawyers to each contribute toward a state fund that would ease the relatively higher medical malpractice insurance premiums paid by the state’s OB/GYN’s.
New York is about to implement an experiment involving NYC hospitals that aims to cut costs and time from the process of resolving medical malpractice claims. The Times-Albany Union reports that the program calls for immediate admission of errors to victims of malpractice, followed by early, and apparently real offers of settlement from the hospitals’ insurance companies, under the guidance of specially trained judges. ( Here is the Healthcare Association of NY State’s take.) The program is based on the practices of Bronx County Supreme Court Justice Douglas McKeon, who has utilized similar principles while handling all Bronx cases generated by NYC’s Health and Hospital Corporation’s hospitals. If a malpractice victim feels the offer is unfair or unrealistic, he or she can always opt out, and commence a standard medical malpractice case. The program is being funded by a $2.9 million dollar grand from the U.S. Dept. of Health and Human Services, and is part of a nationwide pilot program.
Interestingly, not all shortages of physicians in particular fields can be blamed on high premiums and greater exposure to the threat of lawsuits. There is a shortage of primary care physicians in this country, and according to the LA Times, it stems from the desire of medical school graduates to pursue more lucrative specialty areas.
Trimming the Fat on the Medical Malpractice Beast
Yesterday, I gave a presentation to a roomful of medical records adminstrators at a conference put on by Lorman. The topic was Medical Records Law in New York, and I spoke about handling requests for records, via HIPAA-compliant authorizations, subpoenas, and otherwise.
As I prepared for my talk, I thought back to the barely fathomable amounts of time and money that are wasted on the simplest of tasks: obtaining medical records in the lawsuit context. Here are the highlights of my rant on the topic:
The Costs of Not Providing a Timely Response When Records Are Requested.
Know what really created the “medical malpractice crisis” in this country?
Doctors’ failure to turn over records when asked!
Watch how this works….
A plaintff’s lawyer requests records. Many of you, and the doctors you work with, cringe. You think…”They’re suing a Dr.??? They can wait!”
And so it takes 10 “reminder” letters to your office before the records are sent. Never mind that the sooner the plaintiff’s lawyer gets the records, the sooner he becomes fully educated about the merits of his case, not least because his experts get to review them sooner. This may cause him to discontinue against the doctor. It may also bring about an early & reasonable settlement demand.
This, in turn, may mean less litigation costs for the insurance company, and less heartache for the doctor.
But the truth is, requesting records when you’re defending these cases does not improve your chances of a timely response. I know. I’ve been there.
It would take me, when I defended medical malpractice cases, up to 10 letters also. Know how much each of those “reminder” letters cost? Think of it this way.
A defense lawyer bills the doctor’s medical malpractice insurance company for every task he/she does, usually in increments of 6 minutes.
The more time they bill for a given task, the happier their managing partner becomes.
The defense lawyer managing the case on a day-to-day basis has to mark his calendar, every month: “Check on Dr. Smith’s records.”
He’ll have to go to the file room, find the file, bring it to his office, locate the medical records section, go through it carefully, making sure, for instance, that Dr. Smith’s records did not come to the file under a different name, say, that of his PC, South Shore Spinal Surgeons.
He’ll see it hasn’t come in, so now, he has to write a letter, and make a phone call to your office. And, he’ll diary it again for 4 weeks later to see if the 30 minutes worth of time he just charged the insurance company has paid off. That’s about $100 at many firms.
Now, imagine that the same defense lawyer has 15-20 other medical providers that he needs records from, on the very same case. It’s the same time-sucking, bill-generating process.
And, it just drags things out. How?
The first big event in the litigation of the case—plaintiff’s deposition—can’t go forward. Why? Under most circumstances, the plaintiff, like any other witness, is presented ONCE for deposition. No competent defense attorney is going to want to attend plaintiff’s deposition without knowing everything possible about plaintiff’s past medical history, the care at issue in the case, and the care plaintiff needs now as a result of the alleged negligence.
And of course, dragging out the litigation means more day-to-day litigation expenses for the insurance company bankrolling all of this.
And now, back to today’s post…
And so, here is what I recommend to the medical liability insurance companies. Penalize those of your insureds who fail to provide timely responses to requests for medical records. Make it a condition of coverage that the healthcare provider sends out a response the FIRST time he/she/it receives a properly formed request. If that’s too harsh, impose financial penalties on the providers for each instance of ignoring a legitimate records request. Don’t rely only on the billing records you get from the partners at the defense law firms. Actually go to the firms periodically, and leaf through the correspondence files to see how many times the same letter has been written. Actions such as these will go a long way toward cutting the costs of medical malpractice litigation.