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AMA Myth: 64% of medical liability claims in 2009 were dropped, withdrawn, or dismissed.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

2006.

[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.”).

48 Comments

  1. Gravatar for Jim O'Hare RPLU AIC IAS
    Jim O'Hare RPLU AIC IAS

    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

    MIC

    Austin Tx

  2. 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. Gravatar for Marie Saulin

    How can you keep using that totally debunked ION study? Is it possible you don't know it's completely bogus?

    http://healthblog.ncpa.org/how-safe-is-your-hospital/?utm_source=newsletter&utm_medium=email&utm_campaign=HA#more-18927

    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. 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. Gravatar for jc

    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. 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. Gravatar for jc

    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. 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. Gravatar for jc

    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. 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.

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