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Obama's Medical Malpractice Solution

Posted by Jane Akre
Friday, September 11, 2009 7:24 PM EST
Category: Major Medical
Tags: Health Care Reform, Uninsured, Underinsured, Tort Reform, Insurance, Obama, Certificate of Merit

Asking hospitals and doctors to apologize after injury to a patient is one of the president's alternatives to medical malpractice lawsuits.

Curbing lawsuits



IMAGE SOURCE: Pop Tort Blog / pop tarts

Now that the dust is settling on Wednesday night’s speech to Congress about health reform, CNN, among others, is taking a look at what President Obama meant by tackling medical malpractice.

Here is what he said:

"I don't believe malpractice reform is a silver bullet, but I have talked to enough doctors to know that defensive medicine may be contributing to unnecessary costs."

Reducing the number of medical malpractice lawsuits is generally considered Republican territory and part of “tort reform” - curtailing lawsuits in general against corporations that harm the public, such as tobacco, asbestos, and pharmaceutical companies.

While many states have placed limits or caps on the damage awards patients can receive from medical malpractice lawsuits, Mr. Obama has suggested funding pilot projects in states to encourage patient safety instead of limiting lawsuits.

Apologize and Disclose

One plan would encourage doctors and hospitals to disclose errors they make and then apologize to patients.

CNN reports when the University of Michigan Health Care system did just that for a seven year period beginning in 1999, malpractice claims dropped by 55 percent.

Stopping errors before they happen meets with the approval of the lawyer’s lobbying group, American Association for Justice (AAJ). "If you really want to solve the health care crisis, you need to focus your efforts on saving lives," said Linda Lipsen, the AAJ's top lobbyist. "That's where the most cost savings are."

But the Center for Justice & Democracy, a nonprofit that educates the public about the civil justice system, points out the flaws in the Michigan apologize approach.

Michelle Hereford’s 44-year-old husband was killed after his bowel was perforated during surgery, and fecal material spread into the rest of his body giving him a fatal case of sepsis. While the UM hospital apologized in a letter to Michelle for her “additional stress” it didn’t go much further.

“It was a canned letter,” said Hereford. “It was not an admission, and it wasn’t a denial. They’re minimizing their risk.”

Hospital Panels

For patients who are among the 100,000 to 200,000 killed every year by avoidable injuries - hospital negligence, infections, a missed diagnosis, or prescription overdose - another provision would require a hospital panel be convened to essentially agree the lawsuit had merit before proceeding to court.

The obvious downside is the panel could be stacked against the patient or have an ingrained disincentive to pass it onto litigation.

An alliance of consumer groups, last July said the “Certificate of Merit” law is unworkable because it requires the patient to find health care providers to certify that every act or omission caused the patient’s injury.

“Requiring a patient to find a healthcare provider to certify that every act or omission alleged in a complaint is the proximate cause for the injury is virtually impossible and means legitimate cases will not go forward, especially given that claims will the dismissed “with prejudice” if the certificate is not completed and filed,” says the Center in its blog, Pop Tort.

In addition the group says the “early disclosure” provision has problems if the injured patient is pressured to accept a low-ball offer from the insurance industry.

Litigation Insurance

A 2002 Institute of Medicine study suggests reducing lawsuits by offering backup insurance to doctor groups who disclose their mistakes and compensate patients who are injured. But pain and suffering awards should be limited, it says.

The other option suggests compensated injured patients based on a formula, while offering health care providers immunity against lawsuits.

The Congressional Budget Office (CBO) says that even when medical malpractice lawsuits are curbed, they don’t have any real affect on health care spending.

In June, the president told the American Medical Association that patients already hurt by medical malpractice would be further hurt by lawsuit reform.

The Center for Justice and Democracy and its project – Americans for Insurance Reform – is a coalition of public interest groups that seeks better regulation of the insurance industry that continues to charge doctors high medical malpractice premiums, even in states where lawsuit awards have been capped or limited. #


Posted by Wayne Parsons
Friday, September 11, 2009 11:55 PM EST

There were less than 20 medical malpractice cases filed in Hawaii last year. Verey few doctors are ever sued so the false premise of all of this tort reform talk is that it has anything to do with health care. Inusrance companies want to deny justice to the 200,000 Americans who die each year from avoidable medical errors. It is not every doctor or hopsital. It is a few doctors and a few hospitals but the damage is huge. IT is the quivalent of 1 fully loaded 777 airplanes crashing each week with all aboard dying. Shame on Congress and President Obama for not telling the public that these sacrifices will not be tolerated. The administration is caving in to the politics as usual lobbying big Insurance, the AMA and The U.S. Chamber of Commerce. Major news sources know this but raely report the true facts. The recent Hirst new stories on the rampant death and injury from avaoidable medical errors was refreshing. Keep telling the truth Jane. The public is being misled and it is sad to say that Obama has sold out on this issue. He only wants to say he did something and he doesn't care about who gets hurt in his quest for a win.

Anonymous User
Posted by Helen French RN,BSN
Saturday, September 12, 2009 5:56 PM EST

FYI on "issue".....see my "patient advocacy" website........the irony of it all is that after working in the operating room for over 33 years, I myself have "risks of surgery"!!
I have learned a lot "trying" to find an attorney.....my "issues" were called "risks"....hmmm .... one of my "risks" is proturding into my throat.

Please turn on your audio, please view my short video and please read my letter to President O'Bama and my other BLOGS. I am trying to save "patients" from death and/or from injury.

Thank you,
Helen French RN,BSN

Anonymous User
Posted by Helen French RN,BSN
Saturday, September 12, 2009 8:12 PM EST

Just posted to the site.....my website address
did not show up.....trying again.
Helen French RN,BSN


Posted by Rick Shapiro
Sunday, September 13, 2009 10:15 PM EST

The truth is that "tort reform" is not costing the US consumers, its the profits of the insurers and the other large co's involved in the feeding frenzy "costing" consumers. The real collective millions (billions?) are being made by drug co's, medical devices co's etc. The recoveries by those killed or injured (and their attorneys) are a very small drop in the health care bucket.

These large drug/medical device co's secretly funnel money to market and brainwash the consumers into hindering their own civil justice rights--its so sinister its amazing.

Bottom line: doctors are not going bankrupt and neither are the big medical insurers or drug co's.

Immunizing doctors from lawsuits will not cure the problem--improving medical care requires the threat of financial penalties-end of story.

Anonymous User
Posted by Steve Lombardi
Saturday, September 19, 2009 9:40 AM EST

Jane: Nice article, but a terrible subject. There are so many aspects of this legislation that are wrong that I can't just let this one alone and quietly go on with my life. This one has gotten me mad enough to write a series on why the fake apology law is bad medicine for America. Caps are crap and fake apologies are the product of a diseased mind. More on this one later; right now it’s time to go mow the lawn. One more thing came to mind. Do doctors who give fake apologies have Astro-Turf lawns?

Comments for this article are closed.

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