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If H.R. 5 is So Good : Why are They Making Up Their Arguments?


There is a battle going on in Washington. It is pitting the constitutional rights of the consumer against big insurance and doctor groups that don’t want those that hurt people to be liable. They want limits that do nothing but protect the wrongdoers. Unfortunately, they are filling the debate with faulty information. It is very important that every consumer understand the facts:

AMA Myth: 64% of medical liability claims in 2009 were dropped, withdrawn, or dismissed.

FACT: “Claims” are not lawsuits; and medical malpractice lawsuits are dropping dramatically.

A “claim” is defined as “A demand to the insurer by, or on behalf of, the insured person for the payment of benefits under a policy.”[i] Conversely, a lawsuit is an action before a court to recover damages for a harm suffered. Recognizing that important difference, the number of medical malpractice lawsuits dropped 15 percent between 1999 and 2008.[ii] Indeed, medical malpractice cases are only a small portion of a state’s civil caseload. According to the NCSC, “Despite their continued notoriety, rarely does a medical malpractice caseload exceed a few hundred cases in any one state in one year.”[iii]

The threat of the litigation is sometimes the only way to uncover what transpired when a medical error occurs. A Kaiser Family Foundation survey found that 70 percent of patients who experience medical errors are not told by their doctors.[iv] By filing a “claim” with the physician’s insurer, patients learn quickly what happened when an error occurs. In fact, very few patients who experience a preventable medical error ever sue.

Further, the Institute of Medicine, in its seminal study, found that 98,000 people die every from preventable medical errors.[v] Recent research shows that this may be a low estimate. A 2011 Institute for Healthcare Improvement study estimates that one in three patients who are admitted to the hospital will experience a medical error.[vi]

· Myth: 88% of tried medical liability claims in 2009 were won by the physician.

FACT: Only 3% of people harmed by a doctor’s negligence ever file a lawsuit, and most negligence claims are meritorious, with 97 percent of claims involving medical injury and 80 percent involving physical injuries resulting in major disability or death.[vii]

First, because preventable medical errors are so common, and negligence is often times clear-cut, many claims are settled by an insurance company, without having to go before a judge or jury (also referred to as “tried” by the AMA). In fact, Harvard researchers concluded that “portraits of a malpractice system that is stricken with frivolous litigation are overblown” and that the reverse—nonpayment of claims where error was involved—was a bigger problem. Other health leaders agree, “[T]he major problem out there is medical errors that are not compensated, rather than frivolous claims that are compensated.”[viii]

· Myth: Many physicians pay $150,000 every year for medical liability insurance.

FACT: Nothing on H.R. 5, including caps on damages, will lower insurance premiums.

An examination of malpractice premiums in states with caps shows there is no correlation between malpractice payouts and physician malpractice premiums. In fact, insurance premiums for doctors are lower in states without caps on damages.[ix] As well, the average malpractice premium has been dropping since 2006.[x]

· Myth: CBO estimates that the federal deficit will reduce by $54 billion over a 10-year period if medical liability reform is enacted.

FACT: Enacting H.R. 5 will only cause preventable medical errors to rise, increasing the cost of healthcare and increasing the burden on taxpayer-funded programs.

CBO noted that if medical liability reforms are enacted, the U.S. mortality may increase by 0.2%, killing an additional 48,250 Americans,[xi] and, even with CBO’s most generous estimate, medical malpractice reform will achieve only a 0.5% reduction in health costs. That’s one half of one penny of every dollar spent on healthcare.

The best way to reduce malpractice costs is to reduce medical malpractice. The IOM estimates that preventable medical errors cost the medical system an extra $290 billion over 10 years. Further, if patients cannot recover from wrongdoers, they will have to rely on taxpayer programs such, Medicare, Medicaid and Social Security Disability Insurance to cover their costs.

[i] According to the Health Insurance Association of America (HIAA)

[ii] Examining the Work of State Courts: An Analysis of 2008 State Court Caseloads, National Center for State Courts 2010.

[iii] Id.

[iv] National Survey on Consumers’ Experiences With Patient Safety and Quality Information, Kaiser Family

Foundation, November 17, 2004.

[v] Institute of Medicine released To Err Is Human (Nov. 1999)

[vi] David C. Classen, Roger Resar, Frances Griffin, Frank Federico, Terri Frankel, Nancy Kimmel, John C. Whittington, Allan Frankel, Andrew Segar and Brent C. James, ‘Global Trigger Tool’ Shows That Adverse Events in Hospitals May Be Ten Times Greater Than Previously Measured, Health Affairs, April 2011.

[vii] David M. Studdert, Michelle M. Mello, Atul A. Gawande, Tejal K. Ghandi, Allen Kachalia, Catherine

Yoon, Ann Louise Puopolo, Troyen A. Brennan, Claims, Errors and Compensation Payments in Medical

Malpractice Litigation, New England Journal of Medicine, 354;19, May 11, 2006.

[viii] Amanda Gardner, Frivolous Claims Make Up Small Share of Malpractice Suits, HealthDay, May 10,


[ix] Medical Liability Monitor (October 2010).

[x] Id. (various editions)

[xi] [xi] CBO Letter to Senator Hatch Regarding Analysis of the Effects of Proposals to Limit Costs Related to Medical Malpractice, page 5 (October 9, 2009) (citing “Lakdawalla and Seabury (2009) found that a 10 percent reduction in costs related to medical malpractice liability would increase the nation’s overall mortality rate by 0.2 percent.”).


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  1. Jim O'Hare RPLU AIC IAS says:
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    I have been in the med mal arena for 26 years handling claims. It is truly amazing to me what people do with “facts” and figures.

    Doctors do win 80% of cases tried to verdict. Why? – The insurance company only tries those cases that they view as slam dunk winners, and they still lose. Could it be that Joe and Sally juror does not get the sophisticated science involved in medical treatment? I think so. How about a bachelor degree to sit on a med mal case?

    Cases with merit settle. Carriers dont try losers so they can get their lunch handed to them.

    98k med mal deaths per year. Even though you are just reporting what somebody else said- think about it. Who is counting and who is reporting?

    Your best argument is for mandatory insurance for docs, if they want to practice and higher limits. You agree to a cap for noneconomics, I’ll let yo pick the number. Deal?

    Of course medical errors will rise. The frequency will still be the same but there will be more people in the pool, so more claims. Fatigue will increase as well. Lets get more nurses, shorter shifts and be proactive. Wont happen.

    There are many areas that have 150k + premiums in the USA. Try to find an OB around Sebring Florida or a neurosurgeon in Palm Beach county. Ob’s in NY go 250k or more.

    To conclude, lets not listen to anything a politician says for obvious reasons.

    regards Jim O’HAre RPLU AIC AIS Claims Director
    Austin Tx

  2. Mike Bryant says:
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    You and I have gone back and forth on a number of these issues a number of times. Caps aren’t fair and they do nothing to stop frivolous claims. Minnesota has low claims, low premiums and great care. So let’s go with systems that work.
    Thanks for taking the time to read and comment.

  3. Marie Saulin says:
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    How can you keep using that totally debunked ION study? Is it possible you don’t know it’s completely bogus?


    The numbers that John and his two NCPA coauthors use in the Health Affairs study are from the New York and Utah/Colorado studies that were led by Troyen Brennan. They are the basis for the IOM monograph, To Err is Human (1999 release, pre pub).

    In the NY study they decided more than 50 percent of all deaths, even deaths of terminally ill patients, were negligence deaths. That’s called outcome bias, but bias is what people do when they are on the hunt. IOM is intent on proving that the health care system is a mess and needs their tender attentions—since they are all elites and very smart. The target is docs and nurses and hospitals. The hunters are elites with clipboards and an attitude.

    The New York study group admitted that Kappa (level of agreement) for physician judgments of negligence was 0.4, which means their agreement between two reviewers on negligence was less than a coin toss. A coin toss gives you a Kappa of 0.5., Kappa of 1.0 is 100% agreement. In the Utah/Colorado study, Troyen Brennan and Thomas, his fellow and the other author, got rid of that inconvenience and just decided together what to call adverse or negligent.

    Before he read my paper, written 5 years ago (available here http://www.acsh.org/factsfears/newsID.487/news_detail.asp), John Goodman assumed he knew stuff—he doesn’t, and he was terribly misled by his coauthors if he relied on them. However, he saw my paper that was put on the ACSH website only last week. Too bad, now I have to wonder. John, the Harvard group agreed they had some problems, as I will discuss below.

    I am dismayed that this paper will give policy people and particularly readers of Health Affairs, who are professional finger pointers anyway, more reasons to distrust American medicine and hospitals, for what—so John Goodman can run the no-fault project up the flagpole again? The Utah/Colorado study was born of Brennan’s attempt to get Utah to do no-fault—ain’t gonna happen for many reasons. If it did it would be another major financial and administrative burden for the society and healthcare system. Lots of bogus claims and payouts from a generous administrative program for compensation.

    I won’t bother telling you in detail why John’s administrative law compensation program would be expensive and become monstrous. Just consider workman’s comp and disability programs.

    Here’s the pertinent section of my paper that includes Troyen Brennan’s admissions about the New York Study John and his coauthors like so much: http://www.ncpa.org/pdfs/Excerpt-from-Dunn-study.pdf

    Well, John, I warned you that you were talking carelessly about my profession and a lot of honorable people in hospitals and medical care across the country.

    So you can promote you’re goofy no-fault program that would just add another financial nightmare to the cost of healthcare. Every less than ideal outcome would get a pat on the head and some money. That’s how the administrative legal remedy schemes work—until the money runs out.

    John Dale Dunn, M.D., J.D.

  4. Mike Bryant says:
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    Seems to me that you are talking to someone else through a lot of your comment, but I think I understand the idea. But for me , I don’t think that half of the number would be acceptable or even a quarter, if it is due to preventable medical error. In fact, I think that just one of those families should have the right to recover without caps. I appreciate your taking the time to read and comment.

  5. jc says:
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    These studies that are thrown around useless. In my world as a doc, most of the med mal suits filed against us are frivolous. Med mal is a highly specialized field and few lawyers have the knowledge to properly litigate a case. For the ABA to have no specialized training for lawyers to litigate malpractice makes as much sense as allowing family docs to do neurosurgery -lots of mistakes are going to be made and lots of frivolous suits are going to be filed. A simple way to cut down on frivolous malpractice litigation is to allow the doc to countersue the plaintiff’s attorney for frivolous litigation. You can bet that Mike Bryant and the ABA will fight that change tooth and nail.

  6. Mike Bryant says:
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    Good to see you JC, whoever you are. Minnesota has loser pays and they have affidavits. Low premiums, low number of suits, and great care in our state. A system that works. Thanks for taking the time to read and comment.

  7. jc says:
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    Minnesota is a state with loser pays? I am from Ohio and I would like to know how it works. If the patient loses does he pay the docs legal expenses and vice versa?

  8. Mike Bryant says:
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    There are a couple of things that come into play. Just like anywhere there are motions that can be made during the case. After a trial there are motions for costs and those are affected by the offers and demands that have been made during the process. But, overall it’s a balanced system that allows low premiums, great care and there are a low number of claims.
    Good doctors often fix most damage done. The focus needs to be there. Get rid of the bad percentage of those that are harming people and quit with the silly ideas that punish the injured party.

  9. jc says:
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    Mike: How often in Minn. are defense costs awarded to the defense after the plaintiff loses a malpractice case? I bet it hardly ever happens. In Ohio Bill Eadie, a plaintiff’s attorney said that you could not sue a doc without an affidavit of merit. That’s not the way it works in reality as docs commonly get named before an affidavit of merit is even filed. In Florida they had a “loser pays” law and when the doc lost, he paid the plaintiff’s legal costs, but when the plaintiff lost,(80% of time) the judges would not allow the
    docs to recover legal costs.

  10. Mike Bryant says:
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    No idea, but it happens. The Judges don’t seem to have a problem with awarding them. Does that bring you Joy? As for affidavit’s a Attorney in Minnesota has to file a affidavit of compliance (that they consulted a expert) with the complaint and the expert has to have thier affidavit in by 180 days. So a lot of money is spent by the plaintiff to start the case.

  11. jc says:
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    Not that it gives me joy. I just feel that if a plaintiff’s attorney is going to start a malpractice action, he ought to do some minimal research and if he does not, he should have to pay for the defense costs for defending a frivolous suit. Personally, I feel that the plaintiff should have the affidavit at filing of the case or else the case cannot be filed.
    My colleagues and I mostly experienced cases in which the plaintiff’s attorney has filed a case and can’t back it up – -so you are sitting there for months on end waiting for him to get his “experts” lined up. Hey plaintiff’s attorneys have to take responsibility too, for their malpractice.

  12. Mike Bryant says:
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    You are making things up again there Dr Initials. No one is going to put the money into a case without doing the research. You are not describing the way a working system like Minnesota’s. We have time limits and a system that gives doctors all sorts of extra protection. Plus not caps and great healthcare.

  13. jc says:
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    Hey, Mike, myself and 9 other docs got sued without an affidavit of merit ever being produced! Another doc got sued for a transcription typo with no provable harm to pt. In the real world frivolous lawsuits happen over half the time. Considering judicial bias, these cases can take up to a decade to resolve. So the way the game is played is for the plaintiff’s attorney to settle the case for $10-$15K – -legalized extortion! Ofcourse the last thing the plaintiff’s attorney (and judge)wants to do is go to trial. So often these cases, after years of plaintiff attorney posturing, are dropped on the court house steps! If Ohio would let docs countersue plaintiff attorneys, this would stop!

  14. Mike Bryant says:
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    So what did you or any of them do wrong? Nothing? Why don’t you tell the whole story and let the readers decide? Since you’re still not using your name, how do we know?
    But the idea that we would take a med mal case to settle for 10-15,000 is ridicules. The experts would eat that out in 10 minutes.
    If there were years involved, sound like you should complain to the insurance lawyer that represented you. (if your story is real)
    I don’t agree that doctors need any more protections than anyone else. But, affidavits work in Minnesota. Great rates, low number of cases, and best of all great care. It’s a system that works without other gimmicks or caps.

  15. jc says:
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    34 year old woman came into hospital with severe headaches. CT, MRI, MRA, all tests were normal. Headaches persisted and got worse. Pt shipped to university hospital headache clinic where she had a brain biopsy and died a week later. Every doc from initial hospital admission, whose name on the chart got sued for “wrongful death” the day before statute of limitations expired. I reviewed the case along with other sued docs and no one could find a medical error. No pathology report ever produced – no affidavits of merit – just Gods will and a bad outcome and a stupid plaintiff’s attorney. Case dropped 90 days later. Costs my insurance 5K for defense-probably the same for 9 other docs -50k! Case not unique! Mike, in decades of practice, I have never seen a doc purposely harm a patient, but I have seen plaintiff attorneys pursue frivolous lawsuits long after it was apparent the doc was not at fault. The second case I mentioned was a case where the plaintiff’s attorney was trying to legally extort money, and I’ll tell you about that one if you want to hear it. So you saying frivolous suits don’t happen isn’t the world I live in. I say docs should be allowed to countersue plaintiff attorneys for frivolous suits. I don’t want to rely on some weak judge in the plaintiff attorney’s pocket to rule on a motion.

  16. jc says:
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    Second case, 56 Y/O nurse fractured spine. Had back fusion. Pain persisted. 3 radiologists read initial
    films as normal. Rad 3 had only lateral films and could not see misplaced pedicle screw. 2 years later,rad 3, read misplaced pedicle screw on CT. Pt did not follow up with neurosurgeon. Went to another neurosurgeon who did extensive additional surgery and incidentally replaced misplaced pedicle screw. Initial neurosurgeon and 3 radiologists sued. 4 yrs into case 2 rads dropped because of statute of limitations. Plaintiffs attorney asks for 200K but can’t produce expert witness against neurosurgeon, so he is dropped. Plaintiffs attorney finds out third rad correctly read initial lateral films, but a typographical error occurred when that report was put on PACS. Even plaintiff’s expert witness could not find fault with rad 3 and still plaintiff’s attorney wanted to extort money. Finally a judge threw the case out a week before trial when it was revealed that pt’s pain unrelated to pedicle screw, typo was not responsibility of radiologist, and initial neurosurgeon would not testify at trial. Case took 6 years!!! Mike – -I can go on and on and on with these real world cases! So telling me that they don’t happen is not true!

  17. Mike Bryant says:
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    Since you use initials ,I will again point out, how do we know any of this is true?
    In other posts, a person using the initials JC claimed to be on a hospital medical review board. If that is also you, I would suggest that you have seen a lot of negligent acts and they probably are all protected from disclosure. So tell us about some of those.

    You reveal your bias with the statement about fault. The standard isn’t intentional (although you probably want that ). The issues is negligence, same as with a car accident.

    Reading your examples:
    – Not cases that most would take. Although I often see far more caring from the lawyers turning them down, then the doctors that were there.
    – I would guess there is another side to each case, but let’s assume you got most of it correct:
    Neither case seems to involve you.
    Affidavit would have taken care of both.
    In the second example, I’m interested in what was done that was extortion, also looks like the system worked there.
    Let’s see how bias you really are:
    – Do people die every day from negligent care?
    – should doctors be accountable for their negligence?
    – do people ever get the wrong arm or leg cut off?
    – Should there be a case for that?

  18. jc says:
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    Need to answer in 2 posts to completely answer your questions. I have been chosen? to work on 2 hospital PEER review committees and an executive committee. All alleged incidents go thru PEER review, and are graded 1-5, with 1 being no problem to 5 being major problem causing pt injury. PEER review is protected, but I can tell you major disciplinary actions taken with all 5s and most 4s. I have also seen PEER review take on alleged issues and clear doc or remove privileges. These are major issues because privilege issues go to National Practicioner Data bank which every hospital must contact. Even resigning in the middle of a PEER review investigation gets reported. Lose staff privileges and it is difficult to get on staff anywhere!
    (Ofcourse malpractice awards and settlements are also reported.) I have seen arthroscopy done on wrong joint without complication,(grade 4) but never wrong limb amputation! High complication rates are addressed or the practicioner off staff. Even social issues like inappropriate verbage or practicioner medical issues are reviewed. Serious PEER review issues addressed within a week (not years!)

  19. jc says:
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    Mike-The standard actually is not negligence (although you probably want that) it is negligence which is the proximate cause of the injury, just as in a car accident. Just because there is a medical mistake and a bad result doesn’t always mean the medical mistake caused the bad result.
    I am glad you would not take the two cases I described. Unfortunately, most lawyers are not specialized in med mal cases because the Bar associations have no specialization standards. My colleagues told me that both cases were handled by general lawyers, who made mistakes like family docs would make if they were allowed to do neurosurgery. Apparently affidavits were obtained in second case, but no expert would back them up.
    So why do I consider this legal extortion? I consider it legalized extortion if a plaintiff’s attorney knows that there is no malpractice yet he continues the case for the next two years because he knows that the time delay and costs to the med mal insurance company are greater than what he is willing to settle for. It costs this docs med mal insurance company 30K to defend the case, and this plaintiff’s attorney would have probably settled for 10-20K before he was forced to get an expert witness. Legalized extortion!
    Do people die every day because of negligence? I have worked for decades and I don’t see that. In PEER review we got maybe 3-6 grade 4s a year and two grade 5s in 10 years and these are big and small hospitals. I hear about more plaintiff attorneys butchering med mal cases like the above two than I see grade 5, serious med mal cases.
    Yes, I feel that docs should be held accountable.
    But I do not feel the current malpractice system does the job. After years of litigation, plaintiff attorneys lose 80% of cases that go to trial and when they win, over half the verdict amount goes to the plaintiff attorneys. Only John Edwards (54.7 million net worth) and plaintiff attorneys could support a system like that, that is so harsh to the victims of malpractice. With Obamacare, there have to be reforms – -like allowing specialized medical courts that have the expertise to make a determination in months not years. Allowing docs to countersue negligent plaintiff attorneys, like the ones in the two examples above.

  20. Mike Bryant says:
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    Cases often last longer because of the insurance companies and the lawyers they hire. So spend more time complaining there.
    I know you are claiming to be a Dr, are you trying to say you are a lawyer also? I would guess what you hear is from doctors, if those stories you are telling are true. So look at you audience.
    John Edwards,(do you have something against people making money?) so how many people has he killed like the 5% of bad doctors out there?
    I don’t think doctors need any more special protection than they have already. You seem to hate lawyers (I’m including the other posts that I’ve seen by JC) I like a lot of doctors. Just don’t like when the few bad one kill people or keep ruining lives.

  21. Jim O'Hare RPLU AIC IAS says:
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    By and large, frivelous suits do not dominate, as it is too expensive for the plaintiffs bar. I have seen thousands of frivelous suits over the years. Last week, with one plaintiffs firm, 3 cases were dropped as the court house steps came into view. I am in to it $120k.

    If it has merit and all the bases are touched, I’ll pay it. loser pays is having each side put there money on the table. Remove the riverboat gambling mentality. Carriers are no longer caving on dumb cases. I had 5 last week, where 5 or 10k got me out. I had to decline knowing it would cost me more in the long run, and sends a bad message.

    A freedom fighter will never convince a terrorist of his evil ways. Let better rules pave the way.
    regards Jim O’HAre RPLU AIC AIS
    Dir Claims MIC AUstin TX

  22. Mike Bryant says:
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    Thousands and they don’t dominate, so does that mean you have paid on millions of good claims. Reading what you have written it seems that apparently you have never gone to trial and lost on a case ( having paid on all of the legit ones). I find both statements doubtful. But, thanks for chiming in Jim.

  23. Jim O'Hare RPLU AIC IAS says:
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    Mike – I have actually lost 12 in 26 years. Only tried if I thought that it was a slam dunk winner, Juries sometimes like the other guy. I have personally settled more than 1500 claims myself, more via authority provided to others.

    What % of cases do you think get tried? Why do you think that the doctors win 85% of trials? It isnt because juries dont get it, It is because carriers hand pick those cases. What incentive would I possibly have to tell what I didnt see in the past 1/4 century of med mal claims adjusting?

    In NY I settled between 6 and 30 per month, thats all that I did, spending up to 15 mil per year. Alot of money.
    Jim OH

  24. Mike Bryant says:
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    Now those numbers make a lot more sense to me, than your last post. I’m well aware that you are actually who you say you are and see the system from a some what different perspective. I do appreciate when you comment.

    as to your questions:
    – a very low percentage, most never try. I try between 5-15 trials a year and that’s a lot for a plaintiff lawyer.
    – because jurors like doctors. Because the real “slam dunks” or “tragic cases of horrible provable mistreatment” settle.
    – yes that is a lot of money. But I would bet it was a horrid amount of injury.

  25. jc says:
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    Another friend got sued because he missed a non-displaced pubic bone fracture on an osteoporotic 87 year old woman. She complained of pain for 3 months when she had sex. Then the fracture healed.
    So how many patients lives has John Edwards saved?
    Docs make decisions at all times not always in the best of circumstances. Decisions have to sometimes be made in minutes -not years as in the legal system. Fact is the harder you work the more mistakes you make. So when Obamacare hits, and 50M people added to the rolls, there will be more demand, work, fewer docs and more mistakes. The current legal system and Obamacare are incompatable.

  26. Mike Bryant says:
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    With the work he did with pool drains? Many! Plus, that post really is a great view on how biased you are. Let’s see:
    – A person with initials is coming up with “my friend stories”
    – The story seems to make fun of the woman , which is very sad and I wonder if the discussions with you and your “friend” involved HIPPA violations.
    – Then there is the complaining about how tough it is for doctors. “I’m tired and trying to make so much more” really doesn’t bring a person killed by those mistakes back to life. Although compassion and treating the family right usually stops the need to litigate.
    – Finally, a attack on Obamacare. Odd that you would need to throw that in.
    Hope I didn’t miss any.

  27. jc says:
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    So from my three examples and Jim O’Hare’s statements we know that there are frivolous malpractice lawsuits filed and that it costs money to defend them. Some of these frivolous suits are hanging around with the plaintiff’s attorney willing to settle for $5K – $10K, (even though Mike think’s that’s ridiculous.) and that it can cost more in legal defense costs than settling. I call that legalized extortion! Now, Mike, like any plaintiff’s attorney, you like to ask the questions, so I am going to ask you one: Should a plaintiff’s attorney be punished for filing a frivolous lawsuit, and what should that punishment be?

  28. Mike Bryant says:
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    Jim is real, still no idea if you and any of your stories are. As I said before, I would guess there is always another side to the story , if you aren’t making them up.
    But, to answer you question, Sure. There is Rule 11. There is a number of options , but often the insurance company plan of delay, deny, and defend works against that being done.
    As to the rest of your meaningless jump to conclusions and half truths, I disagree and would suspect anyone that has followed along to this point understands that.

  29. jc says:
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    As Jim has stated and I believe, malpractice insurance costs can become prohibitively expensive.
    In a medium sized city in Ohio, we had 5 neurosurgeons in 2000 for 2 hospitals. Because of malpractice costs (over 200K) three of them left staff in the community. One guy semiretired and only 1 neurosurgeon was left for 2 level 2 hospitals. The loan neurosurgeon said, I can’t be on call all the time, so every other day, we would ship neurosurgical trauma out to other the nearest city hospital 2-3 hours away. I guess that was O.K. for the plaintiff attorneys, but I feel real sorry for the patient injured in my community on Thursday with no local neurosurgical coverage.

  30. Mike Bryant says:
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    No idea why you would bother with that post. A made up city in Ohio, maybe. No idea where you would get that a plaintiff lawyer would be happy about it. Finally, having reviewed enough of JC’s post, I doubt you feel bad for anyone.

  31. jc says:
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    I learned a lot from this blog. Dr. John Dunn presented strong evidence that the IOM study showing 98K deaths/year from malpractice is deeply flawed. In my community in Ohio, I would expect 200 malpractice deaths in 10 years and I have seen 2. Jim O’Hara (med mal insurance exe) says thousands of frivolous suits filed, and I gave three examples. O’Hara went on to say that in 26 years he has lost 12 malpractice trials. It is a fact that nationwide plaintiff attorneys have a better chance of winning a coin flipping contest
    than a malpractice trial.

  32. Mike Bryant says:
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    OK, thanks. You have a odd way of picking cherry’s out of the sundae, but doesn’t surprise me.

  33. jc says:
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    Mike: Did you know that whenever a frivolous lawsuit is filed against a doc, that doc has to report it every time he applies for staff privileges. This is a CMS requirement. Why should a doc ever be punished if a malpractice suit is dismissed against him with no payment of money or finding of fault?

  34. Mike Bryant says:
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    I’ve looked at you most recent comment JC: 4 times now and still don’t understand it. Is the rule that they only have to report frivolous suits? That’s a dumb rule. And then to punish them for those frivolous suits, that seems even stranger.
    Odd that so many Doctors claim they can’t remember if they have had a claim before. Maybe they aren’t telling the truth.
    Sounds like you have a problem with a reporting agency. If it even exists or if it resembles the claim you are making. I doubt it.
    Now if the idea is to finally keep track of that small percentage of butchers out there that do most of the damage and to make them openly report their malpractice. I say it sounds like a great system.

  35. jc says:
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    Mike, I got sued for malpractice, without an affidavit of merit. 90 days later the case was dropped because there was no negligence and no medical expert would testify for the plaintiff. Mike, should I be punished in any way for this dismissed malpractice suit? Did you know, that whenever I apply for staff privileges at any hospital in the USA, I have to report this dismissed malpractice suit? (It also affects my malpractice rates!) This could have a negative effect on my career forever. Why is it that a criminal defendant who is acquitted gets a clean slate, but a doc with a dismissed malpractice suit has to report it forever whenever he applies for a state license or hospital staff privileges? Doctors are taxpayers and citizens too, why should we be treated worse than a defendant acquitted of a felony? By the way, the agency which requires this disclosure is the federal Center for Medicare Services (CMS). How does this required disclosure in any way improve medical care in the USA?

  36. Mike Bryant says:
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    You are barking up the wrong tree JC. So now we hear what is driving the obvious bias that you show in your posts. If they are all true.

    As I said before sounds like a problem with the reporting system. I also find it hard to believe that some of the doctors that “don’t remember past suits” have to report it all the time. Sounds like something isn’t adding up in your story.

    As to the lawsuit with no aff, wouldn’t happen in Minnesota. Great state- Low rates, low number of claims, no caps, and great care. A system that works.

  37. jc says:
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    I feel that it is inexcusable sloppy legal work for a plaintiff’s attorney to file a malpractice suit without an affidavit of merit. There need to be adequate legal remedies to address that. In Texas, Gov. Ric Perry signed a law for loser pays. If he runs for President, he gets my vote.

  38. jc says:
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    Mike: Today, I saw that John Edwards has been federally indicted for campaign contribution violations. Lets assume that John Edwards goes thru the trial and a jury finds him innocent. Should the North Carolina Bar association sanction him or the North Carolina Supreme Court disbar him after he is found innocent? I don’t think so, and I would hope that you would feel the same way. After an acquital John Edwards should walk out of the court room with a clean slate. I feel that doctors should be treated the same way after being found innocent of malpractice. Instead, docs are forced to disclose a dismissed malpractice verdict for the rest of their careers and I think that is unfair. The problem that I find with plaintiff attorneys is their attitude that docs should be held to a higher legal standard than lawyers.

  39. Mike Bryant says:
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    Aff:Wouldn’t happen here. But in the big picture not as bad as cutting off the wrong arm or leg.
    Gov. Tort Reform: What a selfish reason to vote, but doesn’t surprise me.

  40. Mike Bryant says:
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    Edwards will be judges as a lawyer the same way Clinton was. Those are separate out in the open actions outside of the criminal court.
    Let’s compare that to the closed door meetings you claim to be a part of. Or the states that want shield laws. Lawyers are held to a much higher standard for entering the bar. (going into a courtroom and should be)
    You continue to complain about a reporting system ( that I still have doubts about)and which has nothing to do with the lawyer. Your complain is with the wrong group. Plaintiff Lawyers have no say in that.

  41. jc says:
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    Plaintiff’s attorneys have an 80% failure rate at trial after years of litigation. They then soak their clients for 60% of their judgement. That is what I call selfish! No other industry in the USA has such a dismal failure rate as malpractice plaintiff attorneys. The screwups of plaintiff attorneys as they try their cases are spectacular. In one case the plaintiff’s attorney had two experts to testify against two co-defendants. Unfortunately the plaintiff’s expert witnesses disagreed with each other. That is the legal equivalent of cutting off the wrong leg. The stupid plaintiff’s attorney lost in a unanimous jury decision. The client should have sued the plaintiff’s attorney for legal malpractice!

  42. jc says:
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    In Erwin v Bryant (Ohio Supreme Ct 2009-0580) the plaintiff’s attorney demonstrated a new low in intelligence. Erwin was discharged from the hosp. without venous thrombosis prophylaxis (VTP) and died of a pulmonary embolism. The plaintiff’s attorney sued the doc, who was not responsible for VTP but did not sue the pulmonologist who was responsible until after the Statute of Limitations. (Makes sense that you would sue the pulmonologist after a pulmonary embolism!) So the OSC dismissed the case. Missing the statute of limitations in this case was the legal equivilant of amputating both legs on the wrong patient. Mike, I never see medical malpractice as egregious as this obvious legal malpractice. A lot of patients would do a lot better if they sued their plaintiff’s attorney after they butchered their cases. This is why a lot of malpractice cases are appealed, because the plaintiff’s attorney is trying to cover up his own malpractice!

  43. Mike Bryant says:
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    You are just trolling now. Plus you aren’t telling the truth about what you are seeing on the reviews or you are making it up. I would suggest you move on.
    I do find it funny how many lawsuits you suggest in many of your posts. And despite see many from “JC” I can say that there has never been one that suggests any caring about the person injured. That is sad.
    The bitterness and the possibly made up stories suggest usually a doctor that has been sued and deserved it or maybe some other abuse issues.
    I find the use of my name in the last post especially telling. Thanks for driving up my comment numbers , I wish it was with something most of substance.

  44. jc says:
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    Mike, you can look up the Erwin v Bryant case on the Ohio Supreme Court website, if you know how to use the internet. The other cases are factual. Mike, this may be hard for you to believe, but maybe, plaintiff attorneys are not God’s chosen people, and maybe, plaintiff’s attorneys make mistakes too. Just like doctors. Thru out this blog you are the first one to cast stones at docs, but when I point out some of the embarrassing screw ups plaintiff attorneys make, you can’t take it. Well, if you can’t take the heat, close the blog.

  45. Mike Bryant says:
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    So was this the : I really want to show what a troll I can be post?
    – Can “I use the internet”? MY guess is I can.
    – Interesting religious choice of words with “God’s chosen people” : You missed your mark, although I do hope that I am involved in my life work.
    – I think it’s pretty clear that everyone makes mistakes. Do your little secret meetings feel good about hiding yours?
    – Now we have the use of “cast stones” – which makes one wonder who actually has the religious identity issues in this post. I write about topics that are factually based. I use my name and have contact information. I give my position and I offer advice on many of the topics. Does that hurt the person that caused the problem? Probably. Maybe next time the problem won’t happen.

    – Thanks for the blogging advice, but it is as wrong. Late Friday night rants are sad. I hope you have better things to do.

  46. Mike Bryant says:
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    As to the case: As I said before your use of my name is telling and wrong:
    The case is Erwin v Bryan
    There is a link there for others to read.
    The issues don’t read as clearly as you suggest. But, the case does make me wonder:
    – How is Cora Erwin doing
    – Was the affidavit by Doctor Caprini well supported?
    – Was Judge Pfeifer correct?
    – How much did the insurance company save on this one?

  47. jc says:
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    According to Minn statute $145.682(2)&(3), an affidavit of merit must be submitted with the malpractice complaint&summons and 180 days after filing the complaint, details of the affidavit must be submitted. If this is not followed the complaint will be dismissed with prejudice. Mike, this statute was enacted in 2008 in Minnesota and is excellent! I will be contacting my Ohio state senator and representative and asking them to enact a similar statute.

  48. Mike Bryant says:
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    Hope you suggest that they do everything else like Minnesota. Low claims, low premiums, no caps, 4 year statute, and Great Medical Care.