It was interesting to listen to President Obama’s speech yesterday about the debate going on over the health care bill. He spoke of the "deceptive and dishonest" efforts of health insurance companies.
I ran across this poster from the past today:
Many of the writers here at the IB have been covering the claims of death panels, that Republicans will be targeted, that the premiums will go up. Just small examples of the many ways the health care bill is being opposed.
It’s political and it’s a long line of opposition by companies that put profits over people. Injuryboard member Wayne Parsons, did a great job covering the history with his piece on the history of tort reform. The whole piece is well worth a read, but the point I want to take a minute with today is:
The conspiracy consists of a seemingly independent organizations. “The CALA [Citizens Against Lawsuit Abuse] Files – The Secret Campaign by Big Tobacco and Other Major Industries to Take Away your Rights,” shows that, since its inception in the 1980s, the industry-funded tort reform movement has pursued a strategy of creating and funding numerous seemingly-independent advocacy organizations that push tort-reform arguments, work to discredit opponents, and use marketing methods to change underlying public attitudes over the long term. Well-known tort reform organizations include the American Tort Reform Association (ATRA) – “a coalition of more than 300 major corporations and trade associations,” according to “The CALA Files” – and its numerous state Citizens Against Lawsuit Abuse (CALA) organizations, as well as several state Lawsuit Abuse Watch (LAW) organizations
The above poster is an example of how it is done. Sure today it looks ridicules, but at the time it was presented as a legitimate claim. The sad irony is that there are probably many health insurance companies that denied the claims of the people that believed the poster.
A founding partner with Bradshaw & Bryant, Mike Bryant has always fought to find justice for his clients—knowing that legal troubles, both personal injury and criminal, can be devastating for a family. Voted a Top 40 Personal Injury "Super Lawyer" multiple years, Mr. Bryant has also been voted one of the Top 100 Minnesota "Super Lawyers" four times.
8 Comments
Michael Kirsch, M.D.
Of course, the insurance companies are not eagle scouts. I realize, as a physician, that their fidelity to tort reform serves their financial interests. Independent of these facts, the system is still unfair to the medical profession. I have been exchanging views with some of your injury board colleagues. I'm not sure that minds were changed, but the discourse has been civil thusfar. I know the arguments in favor of the status quo. Do attorneys admit that the current system has flaws and defects that merit reform? Readers invited to www.MDWhistleblower.blogspot.com under Legal Quality category. Feel free to comment.
Mike Bryant
I believe I have commented in response to your comments before. Thanks for taking the time to read and comment here. The current system needs changing that's why we are pushing for health care reform. People are dieing in record numbers and have increased instances of infection, that needs to change. As to the tort system, I have written about Minnesota's system a number of times: low rates, low number of cases and great care. Much better than caps.
I did visit your site and found the piece about right to health care interesting. I see it more as a test of the way we treat our members of the society. Interesting, that so many on the other side will readily give away or steal the constitutional right of civil redress. Federal tort reform not only harms that right, but also harms the protections of individual state rights.
As to your piece about defensive medicine being a part of every doctors care, I so hope you are wrong about that. I believe I asked you before, but just in case: 1) who got the money for the unneeded care? 2) Can you list all the unneeded care you have done? 3) Did you ever find anything with the unneeded care? and 4) If we accept as true your statement that all doctors do this, why should we trust that you would do the right thing under any system? Would a cap system lead to actual cost benefit analysis in the care? "shoot all I can do is $250,000 worth of liability" damage?
Michael Kirsch, M.D.
Thanks for the courtesy of reading some of my posts. I don't see how my specific personal history of defensive medicine is essential. I practice it and so does every doctor that I know. I suspect this is true of all of the physicians you know who will speak with candor. I never liked caps. I endorsed them in Ohio as there was no other avenue for relief available to the medical profession. Northeast Ohio was among the most hostile regions in the country for physicians with respect to med mal litigation. I personally saw good physicians leave the state and retire. The system was injuring the wrong target. Non-economic caps helped. I would have preferred a different mechanism, but we had no other recourse. Did you read my post, 'I'm a Defendant Again'? Ironically, I'm named in another suit last wk (among many other MDs/institutions, even though my care was proper and well documented. I'll be thrown off at some point, along with others, but at a personal and financial cost to me. In a fairer system, I wouldn't be on this suit at all.
Mike Bryant
As you have written Joint and several might have been better. I don't know enough about Ohio , but isn't that area the most conservative in the state? If those juries thought there was a big problem, seems to me there was some issue there. I'll go and read the post when I get a chance today.
How did the cap become the best solution?:
For who? Isn't Ohio the state where the chief lobbyist later had his own horrible accident and is now against caps? If you have caps , why are you still practicing defensive medicine?
Seems to me there are still many questions and at best maybe a few bad doctors, who should have been out of the system and are now protected. Consumers aren't safer.
Michael Kirsch, M.D.
Thanks, Mike. We still practice defensively because the threat against us, while lessened, is still present and is potent. In my 20 years, I've probably been sued 6 or 7 times, and dropped from every suit (as I expect I will from my recent one). I think this is a typical example that demonstrates that the system shoots buckshot, not a laser beam. Northeast Ohio is highly Democratic. It's southern Ohio that is conservative. I'm not familiar with your chief lobbyist example.
Mike Bryant
I finally found it, the lobbyist was actually from Indiana http://books.simonandschuster.com/Blocking-the-Courthouse-Door/Stephanie-Mencimer/9780743277006/excerpt/1.
I do find it a little interesting that you won't answer questions, because they don't matter as being personal, but you write and keep using personal examples. I can understand as a defendant why you wouldn't want to answer, but go ahead and say that.
I went through your Time to Served piece and am puzzled, you do slant it in your favor, by not going into the merits and taking every pop shot you can at the case. Seems odd that you have been sued and dropped out that many times, I don't see that kind of thing happening here.
I did find it a interesting that you complained about the number of lawyers the person had been dealing with and at the same time there were many more doctors. All of which were paid for what they did. None of the lawyers will be paid unless successful
Michael Kirsch, M.D.
Here's a piece by Stuart Taylor, an attorney.
http://overlawyered.com/tag/defensive-medicine/
As for the personal, I'm not sure how much specificity you require. I have performed many colonoscopies and ordered many CAT scans primarily for defensive purposes, as have all of my colleagues. It's hard to tease these out as many procedures and tests may have both medical and defensive elements. I am not a medical aberration; this is medical practice today.
The case on my blog where I was sued with various others (including the coroner who was accused of 'covering up' for his medical colleagues) was dropped as the attorney could not produce an affidavit of merit from an Ohio physician.
Mike Bryant
I see those tests as making sure you don't miss something like cancer and preventing the person from dieing. That's like saying the football team has to go on defense half the time and not accepting that's part of winning the game. It isn't because I'm waiting for you not to do the test and will sue you if you don't do it.
I assume you don't do a colonoscopies on everyone that walks in or everyone you see. They have to have some sign or symptom or be part of some risk group. If not, that sounds like fraud to me.
As to the case you were dropped from were all close to the statute of limitation, the extra protection that defendants have that allows them to walk away. No affidavit, which aren't easy to get, despite your claim they are (which actually may have been the straw man for you to question the vitality of the case) made the system work.
How many times do we look at cases where the doctor admits they did something wrong, may even tell the person that they will take care of them, and later denies everything?
How many times does the Insurance companies arrogance and knowledge that juries do like doctors and really do give them a higher protection beyond the court rules, lead to cases lasting longer?
I still go back to, we don't take cases without understanding the amount of money that goes into them. We turn down 100's of cases that are real but because of damages or cost we can't pursue.
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