A new blog post, over at the new blog site.

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Take a gander at my latest blawg post.  It’s over here. And it concerns tort “reform,” and the ethics of those who support it.

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This post has nothing to do with medical malpractice. Instead, today’s focus is on a broader issue. Communication.

It’s far from a perfect newspaper. But the New York Times has earned its well-deserved spot as a serious source of news, to be consulted regularly by those who care about such things.

And yet, last April Fool’s Day, the Grey Lady got punked, badly, falling head over heels for some fabricated news.  If you can’t remember, or did not see it, get onto Google and school yourself.

There were all kinds of recriminations afterwards, and some well-intended corporate self-examination. So you would have thought that the NY Times would have fool-proofed itself against any future mishaps.  But you would be wrong.  It’s one thing, and quite minor,  for it to have bought into the story of bacon-flavored air, as WINS AM radio reported this morning.  Any of us bacon lovers could have believed that, just because we want so much for it to be true.

But to have fallen for the same type of gag for the second year in a row?  That’s pretty unbelievable.  Bccause it’s still a little early for me, I’m going to let Michael Cernovich over at the Crime and Federalism Blog give you the dotty details.

Be careful out there!

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ASSEMBLY MAKES RIGHT MOVE ON REJECTING

MEDICAL MALPRACTICE CAPS

Statement by

Lois Wagh Aronstein

AARP New York State Director

March 15, 2011

AARP commends the leadership of Assembly Speaker Silver and the Assembly for putting forth a budget proposal that rejects the Governor’s proposal to severely restrict consumers’ ability to recover damages in medical malpractice cases. We are disappointed that the Senate did not similarly reject this proposal in their budget.

The Governor’s proposal would impose an unreasonable and artificial cap of $250,000 on non-economic damages, such as pain and suffering awards. This proposal will hurt many consumers, particularly seniors, by making it much harder for these individuals to obtain justice in the courts when they have been injured by the negligence of others. Older persons, who have few, if any economic damages because they may no longer be employed, will not be fully and fairly compensated if such a cap were imposed.

Preventable medical injuries that are the result of medical errors are widespread and costly. Older patients are particularly vulnerable to preventable medical injury. An AARP Public Policy Institute paper found that at least six percent of hospitalized patients age 65 and older suffer a treatment-caused injury serious enough to result in a measurable disability or to prolong their hospital stay. This is approximately twice the rate of injury in younger patients.

A $250,000 cap could allow those who caused the injury to avoid being held fully accountable for the pain and suffering they have caused. Capping non-economic damages, particularly for this vulnerable population, sends the message that these individuals can be harmed by the negligence of others without any serious financial consequences. It will simply be another cost of doing business. We cannot let this happen in our state.

AARP strongly believes that a final budget should not include this very harmful cap on a consumer’s ability to seek justice for the pain and suffering caused by medical negligence.

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Ralph Nader: Selling Out Injured Baby Rights
March 5th, 2011 · 4 Comments
Ralph Nader at Nader.org:
New York State’s Governor Andrew Cuomo will be judged harshly by history if he doesn’t reverse his position supporting limiting the legal rights of brain damaged babies. Imagine a life-time $250,000 cap on pain and suffering and families having to endure a burdensome and humiliating struggle to get medical bills paid as they arise from an insurance funded entity.
Governor Cuomo is hiding behind the recommendations of his Medicaid Redesign Team, which has more than a sprinkling of hospital and industry lobbyists, and which was the stalking horse for this heartless proposal.
Why you might ask would Andrew Cuomo, the son of Mario Cuomo, a man widely regarded as a champion of the underdog, advance such a mean-spirited and wrong-headed measure?
The short answer: political expediency. Credible observers say Governor Cuomo needs to give the health insurance industry a financial benefit in exchange for the health insurance industry not economically punishing hospitals workers. And to top it off with a touch that would make Machiavelli proud, the Governor placed this initiative in his budget proposal. This means that for the New York State Assembly and Senate to vote against this draconian measure used to seal a political deal, the legislators would have to vote down the entire state budget.
It is shameful that the Governor would use his creativity and intellect to help the health industry at the expense of helpless babies who are victims of medical malpractice.
Many in the health care and insurance industry seem to regard the civil justice system as a nuisance that threatens to destroy our economy and way of life. In reality, America’s civil justice system plays an indispensable role. When the rights of injured consumers are vindicated in court, our society benefits in countless ways: compensating victims and their families for shattering losses (with the cost borne by the wrongdoers rather than taxpayers); preventing future injuries by deterring dangerous health care and other practices, spurring safety innovation; and educating the public to risks associated with certain products and services. These legal rights provide society with its moral and ethical fiber by defining appropriate norms of conduct.
Governor Cuomo needs to review the facts on medical malpractice. First he should know that supporters of tort “deform” invoke one myth after another: a litigation explosion, juries automatically ruling in favor of plaintiffs and routinely awarding punitive damages, an economy shattered by these awards. Each of these notions is demonstrably false. Only a tiny percentage of persons injured bring lawsuits, and an even tinier percentage of those who do receive large verdicts. Limiting victims’ rights is an anti-democratic solution to a trumped-up problem.
Second, a driving force behind this dishonest campaign is the insurance industry. Whenever, over the years, insurers face low interest rates and declining stock investments, they start the drumbeat against justice for victims. They’ve made a particular cause against liabilities for medical malpractice. Instead of demanding disciplinary action against incompetent physicians, urging medical associations to police their own ranks, the insurance industry lobbies state and federal legislatures to curtail victims’ rights and remedies in courts of law. At the insurance industry’s behest, their physician policyholders have joined the call.
Why do physicians allow themselves to be tools of insurance companies that gouge them especially when they are not among the incompetent few who account for most malpractice claims (five percent of doctors are involved in roughly 50 percent of malpractice payouts)? One answer is that insurance companies frighten physicians with false data suggesting that malpractice suits run amok. A persuasive case can be made that there are far too few malpractice suits. The 1999 Institute of Medicine study estimated that gross malpractice in hospitals alone takes up to 98,000 American lives a year and causes hundreds of thousands of serious injuries. Yet various studies show that roughly 90% of people harmed by medical malpractice do not even file suit.
If you total the entire amount of premiums physicians pay in a year for their malpractice insurance and divide it evenly by all the physicians practicing in the United States, the average annual premium is less than $10,000 per doctor. Very manageable. So why are some doctors paying $50,000 or $100,000 a year to their malpractice insurers? Because the profit hungry companies have learned to over-classify their risk pools, thereby charging exorbitant amounts to specific specialists like obstetricians and orthopedic surgeons. In addition, because insurers fail to surcharge the few incompetent physicians in these specialties, the competent specialists pay for more than they should.
There is another benefit to the insurance industry from this kind of over-classification. When obstetricians are gouged, they protest loudly, threaten not to deliver babies, and sometimes actually go on strike. This makes great television — crying babies and physicians in their garb blaming lawyers – and deflects blame from the insurers, who laugh their way to the bank. In recent years, their profits have soared.
Neither organized medicine nor the insurance companies go after bad doctors. The AMA’s web site does not report any data about incompetent or crooked physicians, and the insurance companies have shown little interest in loss prevention. Instead, both physicians’ and insurers’ lobbies fund and press legislators to enact laws that politicize the courts, tie the hands of judges and juries, and make it harder for innocent people or children to receive just compensation for their tragic suffering.
Isn’t it time to focus on malpractice prevention instead of trying to hamstring hundreds of thousands of Americans harmed by their doctors’ negligence? Are malpractice awards the national crisis physicians and insurers suggest? In fact, the entire medical malpractice insurance industry payout to victims in verdicts and settlements is about $5 billion a year (substantially less than the amount our the country spends on dog food). Isn’t it time to focus on malpractice prevention instead of trying to restrict the rights of hundreds of thousands of Americans harmed by their doctors’ negligence?
We need to ask whether proposed reforms level the playing field or tilt an already un-level field even further by making it more difficult for wrongfully injured citizens to receive justice from the perpetrators of their harms.
The tort deform movement amounts to a perverse rewriting of history. Tort law produced decades of slow but steady progress in state after state respecting the physical integrity of human beings against harm by recognizing that even the weak and defenseless deserve justice. Instead of seeing this evolution as a source of national pride, a coalition of insurance companies, corporate defense lobbies, and craven politicians depict it as an accountability that must be stripped.
If this campaign succeeds, the results are sadly predictable. Tort deform means less deterrence, which means more injuries, more uncompensated victims, and tremendous overall costs transferred to society.
Send the governor a letter and remind him an important part of being a leader is defending the defenseless. His address is:
The Honorable Andrew M. Cuomo of New York State
York State Capitol Building
Albany, NY 12224

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Here’s a look back in time to 2000. It’s such a sweet memory, I just had to pass it along.

Subject: Santorum followup
Dave “Doctor” Gonzo’s
Off the Radar January 13, 2000 — NEW YORK (AmpolNS) — It’s time again to
look at a few stories that somehow slipped under the media radar.
DATELINE: Fairfax County, Pa. — Late last week, Fairfax Circuit Judge Arthur
Vieregg set aside the $350,000 in damages that Karen Santorum, wife of
Pennsylvania Senator Rick Santorum, was awarded in a chiropractic malpractice
suit last month, deeming the amount excessive and stating that he felt the
jury had shown “undo passion [and] sympathy” in awarding the Mrs. Santorum
$350,000 for her back injuries allegedly resulting from negligence by her
chiropractor, Dr. David Dolberg.
Vieregg said that he believed the jury’s award — the result of a
determination that chiropractic manipulation by Dolberg caused Mrs. Santorum
to suffer a herniated disc that required surgery — was excessively punitive
and the result of Mrs. Santorum’s attorney placing too much emphasis on what
she characterized as Dolberg’s inadequate record-keeping.
Mrs. Santorum was originally seeking $500,000 to compensate her for her
injuries; total medical costs related to her back injury totaled
approximately $18,800, and she was seeking compensation for pain, suffering,
and anticipated future medical costs.
Vieregg gave Mrs. Santorum the choice of a reduced award of $175,000 or a new
trial.
And it turns out that Vieregg wasn’t the only one questioning the damages
awarded in the case: critics of Senator Santorum questioned the $350,000
judgment in light of Santorum’s own position on tort reform, notably his
sponsorship of bills to cap noneconomic damages and attorney’s fees and to
require claimants to first seek resolution through a mediator before filing
suit.
Aides to Santorum sniffed at the criticism, saying Rick and Karen “simply
disagree.”
Hey, Rick, you’re a Republican! What kind of a GOP family man are you if you
can’t get the little lady to “walk the talk?”
‘Nuff said.

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