What Albany’s Tort “Reform” Push Ignores: Facts
In the debate on how to control the rising cost of healthcare, and legal costs associated with it, facts have never stood in the way of many supporters of tort “reform.” But it is particularly galling when that approach is used against the most defenseless of all of us: infants-and particularly those entering the world with neurological setbacks caused by poor medical care.
One of the few medical centers that have made an honest effort to address improving OB/GYN care is NYC’s own New York Presbyterian Hospital-Weill Cornell Medical Center. Here is the result of their study. What did they achieve? Two results are stark and undeniable. The program brought about an unprecedented reduction in serious injury and/or deaths to mothers and infants during labor and delivery. And the same focus on patient safety brought about a 99% reduction in yearly compensation paid out due to claims of malpractice.
So you might think that it would be a good thing if our legislature made such programs mandatory for New York State hospitals, given the proven record of reducing litigation costs and improving outcomes for mothers and infants. But that is not what is happening at all. Instead, hospital lobbyists have proposed a plan that is helpful for their corporations at the expense of neurologically-impaired infants, as well as tax payers across our state. That’s right. You and me.
They propose establishing a Neurologically Impaired Infant Fund (NIIF) to take care of infants injured by medical malpractice. One key element of this arrangement is that wrongdoers would not be held accountable in a court of law. Another problem is where the funding for this fund would come from. There have been vague references to increased taxes of hospitals, but nothing is concrete, in a situation too important for anything less. This proposed fund, like those being discussed in other states, lacks a dedicated funding source, which will inevitably leave the fund vulnerable to insolvency, jeopardizing the ability of families affected by birth injuries to receive anything close to fair compensation. And if and when this vague fund is established, and families and their injured infants are shortchanged by such historically inadequate administrative compensation, these families will haven no choice but to turn to Medicaid for care. Guess what that does? That’s right. It shifts the burden of caring for these infants to the taxpayers. That would be you and me.
But the more insidious result of this proposal would be that the source of medical malpractice–negligent MDs and hospitals–would be insulated from their errors and their costs–physical, emotional, and financial. Why? Because there would no longer be any real incentive to focus on patient safety–the one thing that has been shown to be effective in reducing injuries and costs. Experts in the field have found time and again that the civil justice system fosters patient safety by holding negligent doctors/hospitals accountable for their mistakes. The current NIIF proposal removes almost all incentives to stop such mistakes, since wrongdoers would no longer be subject to scrutiny in depositions, and jurors and judges will be deprived of the opportunity to assess their credibility. Moreover, such programs result in lessening, or stopping outright, institutional reviews of the training of the doctors responsible. Why would hospitals take on such onerous tasks, when doing so will not affect their bottom lines?
Things might be different if more institutions started patient safety initiatives on their own. Or if medical associations, hospitals and medical liability insurance companies made real efforts to discipline wayward physicians. But they don’t. That is another unfortunate fact that is being ignored in this debate.
In the end, it all comes down to this. How do we want to care for the most vulnerable members of our state’s population? How honestly we rise to the challenge will be an important reflection on all of us.
Ralph Nader Doesn’t Think Much of Albany’s Injured Baby Proposal
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
Tort “Reform” Hypocrisy Isn’t New, Is It, Rick Santorum?
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.