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.

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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.

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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.

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Today’s Washington Times has a commentary post by a person who claims the title of “doctor,” Dr. Jason D. Fodeman.  I say that because the writer addresses the high costs of so-called “defensive medicine,” in a manner so robotic and lacking in humanity that it is difficult to believe such a person has devoted his life to healing people.

Whether a doctor, or just another conservative ghost writer, you know he’s a hack by the phrases he uses. In one modest post, we are charmed to see “tort mafia,” “jackpot justice” and, my favorite by far, “pesky lawyers.”  Do you suspect that this man of the healing arts might have a political agenda?

To sum up his point: doctors are forced to practice defensive medicine, distracting them from the more important things at hand, by amoral, parasitic trial lawyers who force them to cover themselves in anticipation of out-of-control medical malpractice suits.

Interestingly, the good doctor appears to have forgotten how useful we pesky trial lawyers can be to his colleagues and him.  Here’s a little reminder. When the US health insurers you relied on for much of your salary began shortchanging you, your premier professional organization, the AMA, hand-in-hand with numerous state medical societies, retained us trial lawyers to go after those insurance companies.  I guess money can be quite the motivating factor for you, huh Doc?  And, darn it, I still can’t quite get the difference in spelling between Hippocratic and hypocritical!

Anyway, Doc, I’m a little surprised that an educated professional like yourself would leave out the “other reason” for skyrocketing defensive medicine costs: you doctors–you know, the ones who decide which extra tests are necessary, and how often to order them–enjoy lining your own pockets with the extra cash generated by these extra tests.  Could that have something to do with those high costs?

But the clearest lapse in your post is the failure to mention, even once, the victims of medical errors, who are injured and sometimes killed by medical malpractice.  There is a “cost” there too, Doc, but one that was not important enough for you to write about.

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The New York State Bar Association, of which I am proud to be a member, is yet another nationally recognized and bipartisan organization that sees through the tort “reform” movement.  In a November 13, 2009 letter to U.S. Senators Charles Schumer and Kristin Gillibrand, The NYSBA’s President, Michael E. Getnick, urged that “[i]n assessing the current tort system, it is at least as important to consider the victims of malpractice in comparison to those who cause them personal injury.  We have seen…that the attack of tort reformers is a movement that favors cost savings over quality and that emphasizes the corporate bottom line over safety of the public.”  And he specifically called for a rejection of caps on damages.

“We object to legislation to cap pain and suffering compensation for victims of medical malpractice. Such caps would unjustly discriminate against classes of accident victims who suffer devastating physical and psychological losses.”

And speaking of caps, Michelle Mello, of Harvard’s School of Public Health, is not impressed with them, according to MarketWatch’s HealthMatters Blog. Professor Mello finds that any impact on medical liability has been modest, and the practice raises issues of fairness to victims.  However, she and Kristen Gerencher, the post’s author, have some interesting thoughts on health courts.

I’ll rely on Patrick Quinlan, of InjuryBoard, to close today’s post.  He points out that John Stossel, sketchy television news reporter and recent vocal advocate for tort “reform,” is a hypocrite, given Stossel’s own use of us “trial lawyers.”  But…is it news if we are not surprised? 

Somehow, it reminds me of the hypocritical ways of the RNC, and its leader, Michael Steel, who was quite vocal and self-righteous about keeping the dreaded “coverage for abortion” out of President Obama’s health care reform bill.  Of course, Republicans, especially the conservative kind, would never allow such immorality to taint them in any fashion.  But wait.  What’s that, Mike?  The RNC offered its employees insurance coverage for elective abortions? Luckily for us real Americans, Chairman Steele, now that he knows about it,  has promised that this option will no longer exist under his administration, according to the LA Times.  I don’t know about you, but I feel reassured.   And if you guessed that Steele and his cronies are proponents of tort “reform,” you’d be right.

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In my last post, I discussed the Appellate Division, Second Dept.’s approach to the mere mention of the concept of professional liability insurance during a trial.  Unfortunately, the result was a mistrial.

As if on cue, the New York State Court of Appeals addressed the issue anew about a week after the Grogan decision.  In Salm v. Moses, NY Slip Op 07479 (2009), decided October 22, 2009, defendant moved at trial to preclude plaintiff from questioning defendant’s expert dental witness about his relationship to defendant’s professional liability insuror.  Both individuals were insured by, and shareholders of, the same insurance company.

Plaintiff objected, but the trial court granted defendant’s motion, so that such cross examination of defendant’s expert  could not take place. The trial court based its decision on the prejudicial effect that knowledge of defendant’s insurance coverage would have on the jury.

The Court of Appeals affirmed the Appellate Division, First Department’s Order affirming the trial court’s decision, finding that the trial court was well within its discretion based on the perceived  ”risk of confusion or prejudice.”   And it restated some general principles in getting there.  Evidence that a defendant carries liability insurance is generally inadmissible for two reasons: (a) if a jury knows that an insurance company is footing the bill, that will encourage an adverse verdict; and (b) evidence of insurance coverage injects a collateral issue that has no bearing on whether the defendant was negligent.

Is the Court of Appeals also underestimating the sophistication of modern jurors with this decision?  Isn’t it time that the Court acknowledge that the State’s citizens, unless they’ve been hiding out in caves, are aware of the role insurance companies play in commerce and in lawsuits? Justice Pigott, in the concurring opinion regognizes that “[i]t is common knowledge that most defendants carry insurance. Indeed, most prospective jurors are cognizant of the significant role in litigation that liability insurance plays…”

As for the missed opportunity to show the relationship of defendant’s expert toward defendant, Justice Pigott believes, as I do, that the jury should have been presented with such evidence, through cross examination.  And so, you might be confused, as I was at first, to see that Justice Pigott was concurring, instead of dissenting.  But on closer examination, it becomes clear that Jusitce Pigott went along with the majority on procedural grounds.  Plaintiff’s counsel had had the opportunity at trial to voir dire defendant’s expert concerning potential bias, but failed to request it. Apparently, Justice Pigott viewed this as a failure to preserve the issue for appellate review.

But look at the big picture here.  The Court of Appeals is relying on ancient, outdated principles, and ensuring their continued survival.  And it has done so here at the expense of plaintiff’s right of cross examination.  Clearly, the trial court was overly cautious, let alone blind to the realities of the modern world, when it prevented plaintiff’s cross examination–an exercise that surely would have shown an overly comfortable relationship between defandant and the expert hired to defend him.  Might the exposure of this arrangement changed the outcome at the trial level, from defense verdict to plaintiff’s verdict?  We’ll never know, because the Court of Appeals has allowed the lower courts to continue living in the past.

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