Oct 13 2010

The Medical Malpractice Insurance Industry-A Study in Stupidity

Aon Risk Solutions reports that costs stemming from medical malpractice claims will rise. But you have to wonder why it is practically alone in the wilderness performing this Chicken Little play, while most other national insurers have acknowledged that such costs are not only down, but continue to decrease. Even in New York, there was no increase in premiums for two years, followed by this year’s 5% increase (see earlier post here). Pennsylvania insurers are seeing only drops in costs. Could it be that Aon will profit from the increased premiums it will likely be charging doctors and hospitals?

Meanwhile, it’s fascinating how little coverage has been given by the medical/insurance industry press to the early resolution of medical malpractice cases facilitated by New York’s own Judge Douglas McKeon, as part of President Obama’s Pilot Program addressing healthcare costs.  This is the only example I have seen, despite the fact that, as the article acknowledges, the program saves hospitals millions of dollars.  Could it be that it is essential to Judge McKeon’s process that hospitals acknowledge their mistakes early on, placing the liability insurers’ bean counters into a long-term and uncomfortable cringe state?

And yet, when hospitals are forthright at the beginning of the adversarial process, and engage in meaningful settlement negotiations, they save their insurers the cost of months of billable hours by defense lawyers doing little more than delaying and obfuscating so that they don’t kill the goose that laid the golden egg, that is, the lawsuit brought by the plaintiff.  As long as the suit is alive, they can keep billing the insurance company to “defend” it.

The smart insurance company sees the value in early resolution based on frank discussions from the outset.  The remaining insurance companies, who are unfortunately in the majority, roar for tort “reform.”  And apparently unbeknownst to them, they do so to their own detriment.

Oct 10 2010

Lojack For Surgeons, and Happy Medical Liability Executives

Florida’s medical malpractice liability insurers have been profiting for the past 6 years. New liability companies apparently can’t wait to write medical malpractice “products” there.  Here is the News Press’s take on how robust Florida’s market for medical liability insurance has become.


And as Alan Belsky points out in in his firm’s blawg, Maryland Malpractice Lawyer, this comfort level for the insurance companies is not confined to Florida. In Pennsylvania, a physician-supported pool saw a 61% decline in claims, and there has been an exponential rise in liability insurers wanting to do business there.

Why do I point this out?  Because unfortunately, the AMA,insurance industry lobbyists,  and  politicians across this country, are continuing their urgent calls for tort “reform,” claiming that doctors are fleeing, or hanging it up altogether, due to the medical malpractice “crisis.”  But if that were true, who are the profitable medical liability companies profiting from?  And why are more of them opening up shop?  That’s right.  There are plenty of doctors around, and they all have to buy insurance.


And in medical-legal news, RF (radio frequency) tags are proving to be an excellent tool in the effort to decrease the leaving behind of surgical sponges in patients following surgery, according to OutpatientSurgery.  The RF tags embedded in the sponges  work like the anti-theft tags used in retail stores, and nurses need only pass an RF detection wand over patients to discover what the sponge count failed to account for.  Current studies claim there are also no false positives or negatives.  Lojack has arrived in the OR, and we are better off for it.

Sep 20 2010

Update and Additional Twist on Story of FL Judge’s Retained Sponge

Since posting the story about the unfortunate Florida judge, I have come to learn that contrary to what I initially reported, the hospital has reached a settlement with the judge.  The judge is now suing the surgeons and the radiologist involved.  The article with the more comprehensive information appeared in the Miami Herald. Ashby Jones, of the Wall Street Journal’s Law Blog, was wise enough to base its post on the Herald’s article, while I foolishly relied on Fox News, which failed to mention the hosptial’s action.

But the focus of my post remains the same. The individual physicians and their insurers should pony up, move on, and not drag out the litigation.  If they do drag it out, it will only add to the unnecessary costs that we would all be better off without.

The great thing about the Miami Herald article, though, is that the judge/victim had some pithy things to say about tort “reform.” Specifically, he is not a fan of caps on awards in medical malpractice cases.  According to the Herald:

Bailey would also like damage award caps placed on medical malpractice lawsuits lifted.

“I don’t know what all these caps are. That is not my area of the law,” Bailey told the paper. “But what I would like to see is when you have malpractice per se, something this egregious, the damages should be between the parties, a judge and jury without the state legislature dictating limits.”

And that, my friends, is what tends to happen, even to jurists, after you are personally touched by medical negligence.


THE PACE LAW REVIEW is looking for a few good writers.

The Editors of the Pace Law Review invite proposals from scholars and practitioners for our third annual issue on New York law that is slated for publication in Spring 2011. In the past, this book has examined a wide range of topics in New York law, including education, immigration, land use, and criminal procedure. The Review is most interested in timely pieces that comment on recently decided cases, areas of New York law that are quickly evolving, and issues that broadly impact the people of the State.

Please submit proposals of no more than 500 words to plr@law.pace.edu by October 15, 2010.  We welcome proposals for articles, essays, and book reviews.  All proposals should include the author’s name, title, institutional affiliation, contact information, and should concern issues related to the subject-matter described above.  Book review proposals should also include: (a) the title and publication date of the book proposed for review; (b) a description of the importance of the book to the general topic; and (c) any other information relevant to the book or proposed review (e.g. the reviewer’s expertise or any relationship with the author).  Authors are also welcome, but not required, to submit a CV.  We expect to make publication offers by October 31, 2010.

Completed manuscripts will be due December 1, 2010.

Best regards,

James Healy and Nicholas Tapert

Executive Articles Editors

Pace Law Review

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