WhiteCoat

Medical Malpractice and Access to Care

Below is a point-counterpoint that was published in this month’s EP Monthly print magazine.
Many thanks to Max Kennerly for putting up a valiant fight in a losing effort ;-)
I will add links supporting facts for both arguments when I get a little more time.
Feel free to pick up in the comments section where we left off.

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Opening Argument
A 2006 American College of Surgeons report argued, “the single most  important factor shaping the [emergency] surgical workforce today is  declining reimbursement,” a euphemism for one of the most cutthroat  industries in America. Last month, Bayonne Hospital Center sued Horizon Blue  Cross Blue Shield for a parade of horribles, including Horizon calling  patients in the ED, lying to them about their coverage, and instructing them  to leave prior to screening or stabilization.
Against this backdrop, malpractice premiums are at a per-doctor  thirty-year low, representing 0.45% of national health care expenditures.   The impact of this particular cost should be ripe for economic review, but  unbiased analysis is in short supply. The American Hospital Association, for  example, conducts its studies through the Lewin Group, part of Ingenix, a  UnitedHealth subsidiary that in January agreed to a $400 million settlement  for providing phony data about physicians’ “usual and customary” fees so  that UnitedHealth could short-change reimbursements. AHA studies  unsurprisingly blame “lawyers” — but not “racketeering” — for physicians’  woes.
After a decade of declining premiums and paid patient claims in the 1990s,  the stock market collapsed, causing insurers to raise premiums rapidly and  prompting widespread reports of physicians forced to restrict services. In  response, the General Accounting Office investigated the impact of  malpractice premiums on access to care (in 2003, the height of the premium  raises) by surveying five states with “reported malpractice-related  problems” and four without. The GAO found no impact in the non-“problem”  states. In the “problem” states, the GAO found “scattered” reductions by  providers of ER on-call surgical coverage and newborn delivery services,  most of whom also faulted “long-standing factors in addition to malpractice  pressures,” like declining reimbursement.  The GAO thus concluded most of  the reports were “unsubstantiated” and that malpractice premiums “did not  widely affect access to health care.” The same report found little evidence  of “defensive medicine,” criticizing prior research, including a  widely-reported Health & Human Services report, for transparently flawed  assumptions.
> Such did little to stop a wave of malpractice “reform,” like in Texas,  Georgia, South Carolina, Oklahoma, and Idaho, all of which capped  noneconomic damages and eliminated joint and several liability, much as  California did more than twenty years ago. Now that the stock market has  stabilized and the tort reform has been in effect for several years, we have  control and experimental groups in our laboratory of democracy.
The American College of Emergency Physicians’ 2009 Report Card on the State  of Emergency Medicine is a revelation: of the ten states with an “A” or “B”  grade for their “medical liability environment” (i.e., the most hostile to  plaintiffs), six had an “F” for “access to emergency care” (the six  “reform” states mentioned above), one had a “D,” two had a “C,” and one had  a “B,” together averaging a “D-.” Conversely, the nine states with an “F”  for “medical liability environment” earned the only “A,” had only one “F,”  and averaged a “C” for “access to emergency care,” better than the national  average of “D-.”
But, tort reformers say, there are other factors. That’s my point: the  impact of malpractice premiums on access to care is so small that it appears  *positive* because it is dwarfed by other factors such as the assault made  on physicians’ income by companies like Aetna, Cigna and WellPoint, all of  whom the AMA recently sued for also using the bogus Ingenix database. Physicians  may feel premiums more directly, but they should not let loss aversion blind  them of economic reality: the big change in the past generation has not been  an increase in malpractice premiums or claims but rather an extraordinary  decrease in reimbursement.
For example, a 2003 AMA report found physicians lost $4.2 billion in annual  revenue providing unreimbursed emergency care; compare that “declining  reimbursement” in a single field to the $4.7 billion paid in 2008 to resolve  *all* malpractice claims nationwide. The same AMA study said emergency  physicians incurred an annual average of $138,300 in uncollectable fees,  double the average insurance premium for specialists and nine times the  average premium for primary care physicians. All in all, it seems an ounce  or two of reimbursement would be worth a pound of tort reform.
-Max Kennerly

Counter Argument
Doctors fear malpractice liability. And why shouldn’t they? Last month a woman was awarded $60 million dollars after a cosmetic surgeon allegedly botched her thigh lift. Medical malpractice law firms proudly display news releases about their multimillion dollar malpractice verdicts against physicians.
Does malpractice liability affect access to medical care, though? Access to medical care is limited by two factors: Available providers and willing providers. The best vascular surgery program in the world can’t help you if there’s no surgeon available or if you’re 150 miles away when your aortic aneurysm ruptures. Similarly, an abundance of nearby neurosurgeons helps no one with a brain hemorrhage if none of those neurosurgeons is willing to perform brain surgery.
What factors affect whether a provider is available or willing to provide services?
Money undoubtedly affects access to care. Even though patients with Medicaid ostensibly have a means to pay for their care, they often have difficulty finding a physician to treat them because payments do not cover the costs of providing care. In this case, physicians may be available, but they are unwilling to provide care for the proposed payment. Conversely, patients with commercial insurance don’t seem to have such problems.
Liability also affects access to care. At first glance, it is easy to discount that effect. How could something that amounts to only 1.5% of total healthcare expenditures affect a physician’s willingness to provide care? The answer is that direct liability costs are only a small piece of the puzzle. Fear of liability creates a tremendous ripple effect. No physician wants to be at the receiving end of the next $60 million verdict. Residents in high-risk fields cite malpractice costs as by far the largest reason for leaving one state in favor of another. More than half of hospitals in medical liability crisis states have difficulty recruiting physicians, resulting in less physician coverage for their EDs. A survey of some Nevada Ob/Gyns showed that 60% planned to drop obstetrical coverage due to malpractice premium increases. Similarly, many Mississippi Ob/Gyns have dropped obstetrical care due to malpractice liability, leaving some counties with no obstetrical care at all. Trauma centers in several states have temporarily closed due to malpractice issues.
Texas tort reform shows that liability reduction can increase access to healthcare. Since tort reform was passed in Texas six years ago, the number of applications for physician licenses has increased dramatically. The number of emergency physicians has increased in 76 Texas counties – many of which were considered “underserved” for emergency care before tort reform. The number of malpractice insurers in Texas increased from 4 to more than 30 and insurance premiums dropped more than 40%. One Texas health system was able to spend $100 million extra dollars helping poor patients. That money had previously been held in reserves for legal defense fees and insurance premiums.
Some might try to draw conclusions by comparing metrics on ACEP’s Report Card. Doing so does not take into account multiple other factors affecting each metric. We cannot directly compare better access to higher liability any more than we can directly compare better access to colder climate. After all, states that scored worst in “access to care” were exclusively in the South and West United States – which generally have warmer climates.
Finally, defensive medicine costs our system up to $300 billion each year. Eliminating defensive medicine could provide each one of the 46 million uninsured patients in the US with $6500 in health care. Unfortunately, there is little tolerance for errors or misdiagnosis in medicine. While no lawyer will ever admit an expectation that medical care should be perfect, I still haven’t found a lawyer who will give me an example of a heart attack, a ruptured appendix, or a leaking cerebral aneurysm that it is OK to misdiagnose. Instead, doctors perform one low-yield test after another to “prove” that every haystack really doesn’t have a needle in it.
I respect Max and I respect his opinions. It just seems ironic that some of the strongest supporters of the notion that we can “sue our way to better health care” are those who stand to benefit the most from trying to do so.
-WhiteCoat

77 Responses to “Medical Malpractice and Access to Care”

  1. Max Kennerly says:

    It was a pleasure to defeat you soundly and convert your audience of physicians to my beliefs.

    For anyone interested in my sources, I’ve added footnotes to the version appearing on my blog, linked here through my name.

  2. Fyrdoc says:

    Max,

    Thank you for that well argued article. I don’t think many ED docs would disagree with you. Unfortunately, I think that you, and others, are caught up in the “wrong side” of this problem. The trouble with med mal is NOT the premiums – while those vary wildly, in emergency medicine most of these costs are absorbed by the hospital or the practice group – often through captive companies. The issue of the costs of med mal come in the practice of “defensive medicine”. The med mal environment has physicians chasing a goal of absolute perfection in an inexact science. This results in excessive testing, increased admissions and transfers for specialty assessment to reduce liability. These are horribly expensive practices, but have become the standard of care in an attempt to reduce liability. That is the actual problem with med mal, and that MUST be changed if healthcare costs are to be brought under control.

    • Matt says:

      Assuming we can define defensive medicine (this doctors frivolous test is defined as necessary by the one who orders it) what’s stopping physicians from setting a standard of care they can live with?

      And given we have had tort reform for 30 years, are those states that have it practicing less defensive medicine? Do physicians in California, Missouri, etc perform fewer tests because damages on the unemployed are capped at $250,000 plus medical bills?

    • Max Kennerly says:

      If that is the case, it should not be hard to identify many of those “horribly expensive practices” that are not used for the benefit of patients, are not used to increase revenue for providers, but are rather used solely to avoid future liability.

      Yet, despite intensive effort by insurance companies, hospital companies, provider associations, and the entire Republican Party, the sole examples of “horribly expensive practices” used solely to defend against future litigation are two heart treatments for elderly patients, the two treatments which form the basis of the H&HS report to which WhiteCoat alludes (the same one criticized heavily by a later CBO study).

      Fact is, there are very few instances in which “defense medicine” has caused there to be any more treatment used than in “careful, patient-focus practice” or “excessive treatment for billing purposes.” As such, the effect is so minimal it’s difficult to even measure, which means it’s exceedingly unlikely to have a major impact on health care expenditures overall.

  3. Adam says:

    WC said: “After all, states that scored worst in “access to care” were exclusively in the South and West United States – which generally have warmer climates.”

    What does a warmer climate have to do with it?

    thanks.

    • Matt says:

      Given that the scoring methodology is unclear it’s hard to say. I’d bet, though, that those states are also largely rural and poor. And you can pass all the tort reform you want, but rural Mississippi isn’t going to be any more appealing to a neurosurgeon. You’re simply going to have to pay them a lot more to get them to go there. Which is Max’s point. Access to physicians, like everything else, is a function of what you can pay.

  4. Matt says:

    This debate, as always, is somewhat hindered by the lack of sources. The insurers don’t release unfiltered info and state courts don’t have the resources to provide the data in sufficient detail. Not to mention the confidential settlements. Which is why WC can pick those states with stats he thinks are favorable and ignore the full data and the other 49.

    A few things are clear though:

    1). Society has never attempted to “sue it’s way to better healthcare”. For the simple reason that a lawsuit is not designed to improve the system as a whole. It’s designed to resolve a dispute only between the two parties. For WC to suggest that as a goal and them criticize lawsuits for not achieving that goal is a strawman.

    2). Society, and even that part of society with law degrees, have never insisted on perfect healthcare. That’s another pure strawman. Every lawyer that does med mal will tell you they have rejected hundreds of cases for every one they take. Why? Because the first thing they do, absent it being a wrong limb surgery case or something like that, issend it to a physician to review to see if there is a case. There is no sense spending money on cases where the actions don’t violate the standard of care.

    3). Nothing is gained by picking and choosing stats while ignoring others. WC likes to jump up and down about all tort reform did for Texas. Yet similar reform has done nothing for California. Why pick just one state and cite it as proof? Why pick just one factor for that matter? Texas physician growth trails population growth still and the per capita numer has declined. Is that a success? Texas medical schools have graduated more people than in the past. Is that not a factor?

    Rates rise and fall in capped and noncapped states with the economic cycle, but both sides of this argument want to pick the facts suitable to them. The one broad based non-interest group sponsored study to look at it concludes our system works pretty well for the case that are brought in to it, but it’s too expensive and takes too long. Capping damages changes neither of those criticisms.

    4). At the end of the day it comes down to philosophy. Do you believe government should determine the value of cases regardless of the facts, or do we trust the same people who have the power to imprison someone for life and web impose death? How can a voter and juror be qualified to do the latter but we can’t trust them on the former? It’s ironic given how much physicians dislike govt interference in medicine and think it would be better if there was less.

    5). As single payer approaches this debate becomes Lesa and less relevant.

    • ThomasS says:

      If the point of $60 million dollar verdicts is not to encourage doctors to do better, what is the point? Whether such verdicts are officially punitive (rather than actual) damages is somewhat immaterial. Instead I ask whether they significantly higher than wrongful death liabilities in other situations.

      If somebody drives carelessly and kills somebody, is that different than a doctor not reading a label and killing somebody? In my mind both are serious mistakes which should be punished.

      But from what (admittedly little) I have seen of automobile accident liability, the cost to the careless driver is typically commensurate with the resulting medical bills, drivers are typically wiling to admit their error, and liability insurance is ubiquitous and reasonably priced. Why is it that people seem to think that medical malpractice is so different? And while you are at it, why do medical malpractice lawyers have so many annoying adds?

      • Matt says:

        is there some evidence that wrongful death auto verdicts get lower average verdicts or settlements on basic negligence than med mal ones based on basic negligence?

  5. natural selection says:

    All I really got from Max was: Physicians have remimbursement problems bigger than malpractice problems therefore malpractice costs are not a problem. brilliat and enlightening. not.

    Matt: Caps don’t decrease malpractice costs (other than maybe a slight decrease in premiums). I practice defensively so I don’t go to court, and if I do, I present a stronger case. My 250k cap in california is a completely irrelevent factor in how I decide to practice.

    Defensive medicine is nearly impossible to quantify and prove a difference in outcomes because we are trying to limit about 1% of remaining risk. Common example: Based on history, PE, EKG, lab tests I can be 99% certain you don’t have a heart attack. That is not good enough for the legal standard to “never miss” therefore probably half of the health care dollar is spent admitting and testing to decrease that 99% certainty to 99.9% certainty. Since it is such a small percentage change it is difficult to even perform a study with enough power to see if all that defensive medicine really made a difference. I don’t care. I have been through enough depositions and court trial that I don’t care. I would rather bankrupt the whole country than go to trial again. Caps are not real meaningful tort reform. It needs to be something much more radical and meaningful. It needs to compensate patients and not lawyers and needs to decrease overall medical costs.

    • Matt says:

      I agree with your last sentence wholeheartedly, although I don’t know that you can decrease costs, since the point of a trial is to determine who is responsible for paying already existing costs.

      • natural selection says:

        Needs to be an entirely different model, lass adversarial, not based on fear and not controlled by lawyers. The current system is based on fear and theatre. Until the “never miss” legal fiction is destroyed doctors everywhere will spend with oblivion with the stroke of a pen daily

      • Matt says:

        There is no “never miss” requirement. Lawyers reject the vast majority of cases brought to them by potential clients, and juries find for the doc the majority of time.

        If it’s not “controlled” by lawyers, it will be controlled by someone else. Really, though, the parties control it. If they don’t want to proceed, they can settle. And if they don’t, the jury controls. The lawyers just gather the evidence and put it on. There will always be someone in that role.

        That being said, I wish there was a less adversarial process for resolution. But I can’t think of one that adequately protects both sides. And really, physician insurers aren’t that interested in paying more claims quicker.

    • Max Kennerly says:

      I find it hard to believe there’s a “never miss” standard when >90% of potential cases are rejected by lawyers and >80% of trials result in verdicts for the defendants. To me, that sounds like the bar is set quite high to prove negligence.

      Regarding “history, PE, EKG, lab tests,” have you ever seen someone sued for doing those appropriately yet missing a heart attack because they didn’t do even more? The “missed heart attack” cases I’ve seen all involved either (a) the physician doing nothing more than a 30 second PE or (b) the physician misreading the EKG and/or lab tests.

      • natural selection says:

        YES

      • Example#2 apparently says:

        In my case the history, PE, EKG, radiology studies,labs, overnight monitoring, and stress test were all negative for evidence of heart attack. Didn’t prevent the patient from dying less than 2 months later and didn’t prevent the lawsuit.

      • elmo says:

        re:
        “The “missed heart attack” cases I’ve seen all involved either (a) the physician doing nothing more than a 30 second PE or (b) the physician misreading the EKG and/or lab tests.”

        Yes I have seen it. Multiple times in my decades of practice Max. Every doc on this site can tell you about standard R/O MI protocols when we think there is even the REMOTE POSSIBILITY that what is going on is cardiac. The problem is your “experience” is really rather limited isn’t it. Are you even 30?

      • Matt says:

        So why don’t you physicians establish a protocol you can all adopt as the standard of care. Frankly, anecdotal evidence either way means little.

      • elmo says:

        Because Matt, people aren’t widgits. Since you haven’t practiced one second of medicine I doubt you know what I am talking about.

      • Matt says:

        True, I haven’t practiced any more medicine than you’ve practiced law. But don’t you have protocols in at least some areas? Are you really having to completely reinvent the wheel with each patients course of treatment?

      • cynical says:

        Matty,

        There are protocols.

        Following a protocol doesn’t prevent bad outcomes. (the legal fiction)

        A protocol does not establish a ‘standard of care’.

        The ‘standard of care’ is established in a courtroom by a jury of twelve.

        That is why overly costly ‘defensive medicine’ has become ‘standard medicine’.

      • Max Kennerly says:

        Elmo,

        If “every doc on this site can tell you about standard R/O MI protocols when we think there is even the REMOTE POSSIBILITY that what is going on is cardiac,” wouldn’t that make it the standard of care?

        Further, like I wrote, “Regarding “history, PE, EKG, lab tests,” have you ever seen someone sued for doing those appropriately yet missing a heart attack because they didn’t do even more?” You said “yes.” What happened? What did the plaintiff’s expert contend should have been done? What was the outcome of the lawsuit?

        I’m betting part of the “history, PE, EKG, lab tests” was done wrong.

        I appreciate you taking the time to read my website and my biography. Shouldn’t be too hard to estimate my age. ;-)

      • Matt says:

        “Following a protocol doesn’t prevent bad outcomes. (the legal fiction)”

        This statement doesn’t make sense.

        “The ’standard of care’ is established in a courtroom by a jury of twelve.”

        No, actually it’s not. Never has been. It’s established by physicians.

        “That is why overly costly ‘defensive medicine’ has become ’standard medicine’.”

        Since none of you can really define what acts are and are not “defensive medicine” this doesn’t mean much. Deciding what is and is not “defensive medicine” is more elusive than determining the standard of care. The only thing even more difficult to show is that tort reform has any effect on so called “defensive medicine.”

      • Example#2 apparently says:

        I will say that again in my case there was a physical done by the urgent care PA, the ER Physician, me the intern, my supervising 3rd year resident, and the attending internist. All labs were negative for evidence of MI or CAD. The 3 EKGs and the overnight monitoring and the EKG portion of the stress test were read by numerous people(all of the above along with monitor techs, the computer reading as well of course) and were all negative for evidence of significant CAD. His history, since done by an intern, was virtually textbook and way overdone and detailed(ie standard of care if you will). However as it turned out he did have CAD and had an MI 6 weeks later and died. No test is perfect. The lawsuit came, almost 4 years total passed, and my so-called lawyer that was actually the hospital’s lawyer settled without my even knowing about it.
        So either a half dozen people misread the EKGs and labs, or, well, medicine ain’t perfect. But then you argue that it isn’t supposed to be.

      • Matt says:

        A lawyer cannot settle a case without the client’s consent. So either you were dropped from the case And the hospital settled for itself or your lawyer violated the professional rules of conduct and you should report them.

      • cynical says:

        Matty,

        Since in our adversarial system ‘standard of care’ medicine is defined in a case by case basis by a jury……why does it surprise you that it is hard to define what ‘defensive medicine’ is?

        A starting definition would be they way any practioner practices to try to ward off those letters of intent.

      • Example#2apparently says:

        Well, I was a resident and an employee of the hospital. I was not dropped. I have the letter from the court saying I and the hospital were jointly assigned $xxx and the attending physician was assigned $xxx of the settlement. I did not find this out until after it had been done. I was not consulted or informed that it was done. Heck, I wasn’t even told when it was done. I called to find out where I needed to be for the trial that was scheduled to start 3 days later and was told the case had been settled 3 days prior. SO do I dislike lawyers a little bit? Well, yes. Every single one in this case did me a diservice. The plantiff lawyer for filing a totally bogus lawsuit and mine(I use the term very loosely) for making no attempt to defend me or inform me.

      • Matt says:

        Physicians set the standard of care. Always have, always will. You repeating your incorrect belief didn’t magically make it true. Weird how it doesn’t work like that, huh?

      • cynical says:

        Matty,

        “You repeating your incorrect belief didn’t magically make it true. Weird how it doesn’t work like that, huh?”

        I think that summarizes your whole discourse about your belief.

        I shouldn’t be frustrated by your ignorance since it makes you so irrelevent. I physician can follow so called ‘standard of care’, policy, or guideline and still find themselves a defendent in court. Personally, twice for me. Following well accepted standards did not prevent the lawsuit and trial. That is because the ‘standard of care’ is defined on a case by case basis by the 12 jurors in a trial. Period.

      • Matt says:

        You must really believe that works, huh? Even though you’ve never practiced law a day in your life! I believe it, therefore it is.

        You do make one point with some presumably unintentional relevance. Yes, someone can file suit and serve you no matter what you do. Society doesn’t have a way to anticipate the merits of a claim prefiling and stop it then. The movie Minority Report is still just a movie. Maybe someday we will be better at reading minds.

      • cynical says:

        Matty, matt, matt.

        Are you really a lawyer? Have you ever tried a malpractice case in court. Ever watched one, even if on TV? The whole point of the trial is for the jury to decide if the doctor violated the ‘the standard of care’ and if so is there causation and damages.

        If what you say is true that doctors decide the standard of care, then there would never be a need to have a trial. But it is not true is it counselor? There are in fact trials. And who decides? A jury decides if the standard of care was met. I have never been to law school but I bet they do teach something along the lines that there is a trial and a jury decision.

      • Matt says:

        Why exactly do you think physicians tesitfy? You’re right though, the jury decides if the standard was MET.

        I hope you don’t charge for your legal advice.

      • cynical says:

        my legal advice is free. i am glad that you now understand that ‘the standard of care’ is a legal concept established in the courtroom.

      • Matt says:

        At least you’re not charging more than it’s worth! And tour beliefs still haven’t morphed into facts, Merlin.

      • Max Kennerly says:

        Example #2,

        What was the plaintiff’s theory of liability? What did they argue that you / the hospital / whoever should have done differently? A nuclear stress test?

        Moreover, if everything came back negative, why was he kept overnight and reviewed repeatedly by a half-dozen people?

        How much did it settle for? A “nuisance” value?

      • Example#2apparently says:

        The argument was that a nuclear stress should have been done. No reason for that assertion was ever given that I am aware of. They also stated that a cardiologist should have been consulted. Once again, why a cardiologist is the best evaluator of undifferentiated chest pain was never given as far as I am aware. I would strongly argue that a cardiologist is not the best evaluator of undifferentiated chest pain. Why did so many people look at it? Well, because that is normal. In a non-teaching hospital a person admitted for the so-called ‘CP R/O’ would be seen by ER physician, admitting physician, and whoever read the stress test. They would typically be on telemetry overnight so a monitor tech would be watching them. It wasn’t a lot of people. It was the normal amount of people that would see it at any hospital plus two more since it was a teaching hospital. It’s fairly common to get a EKG in the ER, then maybe one on the floor(+/-) and oftentimes one the next morning to compare for changes in addition to all the labs/monitoring/stress testing/etc.

        Why did he stay overnight if everything was negative? Well 1)it takes time for everything to be negative. Troponins are the typical cardiac markers and at that time we drew them at 0,3,6 and sometimes at 12 hrs. Stress testing wasn’t done until after the 6 hr troponin was negative and wasn’t done in the evening or middle of the night so it would be the very rare patient that wouldn’t wind up staying overnight for all that to work out logistically.
        Why did he stay if we weren’t suspicious of CAD you ask. Well, we were suspicious obviously. That’s why we did all this. If the ER had just diagnosed him with costochondritis or GERD or sometime else that could be easily treated as an outpatient he wouldn’t have been admitted at all.

        I see CP all the time. I see far more undifferentiated CP than any cardiologist does. The only people who get to the cardiologist are people with known CAD or people who are really suspicious for having acute active disease. Why is that? Well, if all you have is a hammer, every problem looks like a nail. But if you are a general contractor(IM/FP), you can look at the overall picture.

        Why did it settle. According to the lawyer who told me this after the fact he thought the odds were 70% we win, 30% we lose and the 30% could be expensive since it was a death. How much did it cost? Well, it costs me every single time I have to fill out a hospital credentialing form, re-apply for malpractice, sign up with payors, etc. Not money, but time and annoyance. It also costs me everytime I read about what appear to be rather lame malpractice lawsuits as I, to some degree, relive the 2+ years I had a lawsuit hanging over my head. It also probably costs my patients to some degree as I am extra cautious with CP now and for awhile I absolutely overtested. It flashes through my mind on virtually every CP patient I see. So how much did it cost? Financially it cost me nothing directly except some travel costs and time away from office. Mentally/Emotionally/Professionally, well that you can read above.

      • Matt says:

        So your insurer apparently made a financial decision to settle regardless of the merits of the case. Shouldn’t you be upset with your insurer?

      • Example#2apparently says:

        Where did you get the idea that I wasn’t?

      • Max Kennerly says:

        I’d assume the ‘reason’ is that nuclear stress tests have higher sensitivity compared to the standard test. The utility of this higher sensitivity in practice is debatable, but it is not debatable is being generally more sensitive. The question is if the standard of care dictates using it. The cardiology consult is similar: the different information known by the cardiology doesn’t relate to the examination / test per se, but to interpretation of the the whole constellation of available information. As an ED, you understandably don’t have training / experience in fully assessing the near-term risk profile of person without an acute problem.

        It’s disappointing that you were not provided a copy of the plaintiff’s expert report (had you been, you would have known said ‘reasons’) and weren’t consulted with regard to the settlement. Typically, in hospital cases, if a physician isn’t actually contributing to settlement, they’re dismissed immediately prior to the settlement of the case. I’m also curious about the amount of settlement, as it was clearly a weak case.

        Frankly, your case sounds like an example of why we should have comparative effectiveness research and “safe harbors” for physicians who follow those guidelines. The question of what to do when a middle-aged person with an unimpressive history comes in with undifferentiated chest pain is not exactly new, and there should be guidelines for treating it, i.e. when a consult is necessary and/or when nuclear testing is warranted.

      • DensityDuck says:

        Max Kennerly says:
        September 8, 2009 at 10:27 am

        “Frankly, your case sounds like an example of why we should have comparative effectiveness research and “safe harbors” for physicians who follow those guidelines. ”

        …Isn’t that an example of torm reform?

    • Example#2apparently says:

      I am not an ER/ED doc. I am a FP. I am probably better trained than any other specialty other than arguably IM(and that is arguable since FP tends to see a larger percentage of younger and middle-aged patients and therefore has a higher percentage of non-cardiac chest pain) to see the undifferentiated CP patient.

      As far as the settlement it was relatively low amount(considerably less than $500K but more than $100K) equally split between the attending and then me/hospital shared the other half. I presume that was since I was a intern at the time and probably couldn’t be seperately listed. However I am not a lawyer and do not understand the details of that.

      • Matt says:

        I’ve got to find these insurers who pay hundreds of thousands of dollars for completely “bogus” claims. I have a hard enough time getting them to pay clear liability claims!

        I had one tell me yesterday my client, who had been rearended, was at fault for stopping and attempting to turn left and having their blinker on because “you can’t make a left turn on a state highway like that.” So now I have to file suit to explain the rules of the road.

  6. paul says:

    this was a very strange discussion for me. maybe you can argue for or against tort reform leading to improved access, but the more important questions that weren’t addressed:

    does the current system adequately identify malpractice/negligence? are victims of malpractice/negligence compensated appropriately and swiftly? when medical errors are identified, does this system help prevent similar errors from occurring in the future? are physicians who did not commit malpractice adequately protected from becoming involved in the lengthly, stressful and costly litigation process?

    frankly, arguing that tort reform should not happen because it does not improve access to care is like saying tort reform shouldn’t happen because it doesn’t make the sky bluer (maybe a bad example but you get my point).

    • Matt says:

      Paul, before you even address the questions you present, you have to define the “reform” you’re talking about. The typical reform, damage caps, does nothing to address any of those.

      • paul says:

        i disagree. i think the first thing to do is ask if the current system does what it’s supposed to do, and does it well. if the answer is no, then then next question is, what needs to change?

        i agree that just capping awards is not an adequate solution, since it pretty much only addresses the last question i asked.

      • Matt says:

        I think that study has been done. It’s the study by Studdert of a couple years ago. It found, and I quote from the abstract:

        “Conclusions: Claims that lack evidence of error are not uncommon, but most are denied compensation. The vast majority of expenditures go toward litigation over errors and payment of them. The overhead costs of malpractice litigation are exorbitant.”

        If that “reform” exists, which pays those injured faster and more cheaply, then let’s do it.

        I’m not sure how capping awards even addresses your last situation. Unless you’re arguing that it’s a good thing that those without significant economic damages (elderly, poor, etc) have a harder time getting into court.

      • Max Kennerly says:

        A 2006 Harvard Med study found juries reached the same conclusions as a panel of experts (reviewing the case after the fact) about three-fourths of the time, both in finding and in not finding liability.

        It is hard to estimate what percent of victims of medical malpractice go through the liability system, because it is hard to estimate the amount of medical malpractice out there and the extent of damage caused. Nonetheless, every study I’m aware of trying to estimate this number has found that only a small fraction of patients injured by medical malpractice end up going through the court system.

        If you want to improve that, you probably need to make a lot of changes, such as a mandatory reporting requirements whenever a health care provider suspects they or another provider has committed malpractice. Keep in mind, such a system would dramatically raise the costs of medical malpractice in general.

        I have not seen any plausible system proposed that would likely result in more consistent outcomes than our current one. A number of tort reform advocates have said that liability should be determined by the judge, without making any argument whatsoever for why a judge would be more likely to make the same determination as a panel of experts then a jury would be. Most judges openly praise the ability of juries to discern facts better than judges.

        “Health courts” run by experts sound like a nice idea in theory, but are likely too expensive and impractical to actually implement — think of how hard it is to schedule a meeting with multiple physician. Now consider extrapolating that to a full trial.

      • Matt says:

        Not to mention that almost all “health courts” proposals contain caps, which benefit no one but the insurer, and have nothing to do with justice.

    • Max Kennerly says:

      Only so much you can do in 700 words.

      The primary disputed issue in the debate is whether (and the extent to which) medical malpractice impacts access to care. I say it might in a handful of discrete instances, but on the whole has a minuscule effect compared to other factors.

      The other issues are all of course important and interesting, but were not the precise subject of the debate.

  7. FWIW: There is a 2003 GAO report on a government study of this issue, available at: http://www.gao.gov/new.items/d03836.pdf
    It seems to come down between these two opinions. I include the link in case it is of interest but it won’t resolve this debate.

    They noted in part…
    “We confirmed instances in the five states where actions taken by physicians in response to malpractice pressures have reduced access to services affecting emergency surgery and newborn deliveries.”

    “the only hospital in a rural county in Pennsylvania no longer has full orthopedic on-call surgery coverage in its emergency room (ER) because three of its five orthopedic surgeons left in the spring of 2002, largely in response to the high cost of malpractice insurance.”

    “pregnant women in rural central Mississippi must now travel about 65 miles to the nearest hospital obstetrics ward to deliver because family practitioners at the local hospital, faced with rising malpractice insurance premiums, stopped providing obstetrics services.”

    “In both areas, providers also cited other reasons for difficulties recruiting physicians to their rural areas.”

    “we also determined that many of the reported provider actions taken in response to malpractice pressures were not substantiated or did not widely affect access to health care.”

    “research indicates that physicians practice defensive medicine in certain clinical situations, thereby contributing to health care costs; however, the overall prevalence and costs of such practices have not been reliably measured.”

  8. Doc99 says:

    From the U of Wisconsin

    How Do the State Medical Malpractice Laws Affect the Access to Health Care?

    Jiafeng Sun
    University of Wisconsin – Madison – Department of Actuarial Science, Risk Management and Insurance

    Joan T. Schmit
    University of Wisconsin – Madison – Department of Actuarial Science, Risk Management and Insurance

    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1007022

    Abstract:
    With 15 percent of the population in the United States lacking health insurance, significant effort is being made to identify solutions. A variety of responses have been implemented, ranging from changes to the insurance regulatory requirements to tax code revisions to legal system modifications. While a large body of literature addresses the effect of legal system modifications on medical malpractice claims and insurance as well as physician availability, we know of no prior research to investigate the effect on rates of uninsured. We test this relationship and discover that caps on non-economic damages are associated with decreasing rates of uninsured.

    • Matt says:

      Forgive my cynicism, but I have a hard time putting much merit in a study whose primary sources are a law firm that primarily represents insurers, and the American Tort Reform Association, which is funded by a consortium of the Fortune 500, those same insurers, and the tobacco industry. I’m sure you would feel the same if ATLA was the primary source?

      I am curious though – is the new line that the goal of tort reform is to increase the number of insured people? Are physicians sure they want to start screaming for everyone to have insurance?

      • paul says:

        (for some reason there was no “reply” button below your specific comment above)

        caps would protect innocent doctors from the current system. the drawback is that they would also protect negligent doctors.

      • Matt says:

        What are they protected from? Their insurer making a payout? If you are negligent and kill or permanently injure a person with even 10 years of working life left and a salary of $50K, you’re still most likely looking at millions in economic damages.

        You just don’t have to worry about as many of the poor, elderly, or children suing. But hey, at least your insurer saved a few dollars, so that’s good right?

  9. Doc99 says:

    Doc have always promoted patient access.

  10. Doc99 says:

    Commenter from Belmont Club, some background re TX …

    I’m pretty familiar with tort reform in Texas, as my dad was the founding Chairman of Texans for Lawsuit Reform. TLR started in the mid-1990s after forty years of steadily increasing tilting of the civil justice playing field in favor of plaintiffs. There were two major inflection points in this fight:

    The 1995 session (with George W. Bush was Governor)

    Limited punitive damages
    Reformed joint and several liability
    Restricted venue shopping
    Restored the Deceptive Trade Practices Act to its original purpose of protecting consumers in ordinary consumer transactions
    Enacted a half dozen other reforms to curtail specific lawsuit abuses

    The 2003 session (with George W. Bush was Governor)

    Enacted comprehensive reforms governing medical liability litigation, including a $750,000 limit on non-economic damages
    Initiated product liability reforms
    Made the burden of proving punitive damages similar to criminal law, requiring a unanimous jury verdict
    Comprehensively reformed the statutes governing joint and several liability and class action lawsuits
    Imposed limits on appeal bonds, enabling defendants to appeal their lawsuits and not be forced into settlements (this is what pushed Texaco into bankruptcy in its famous lawsuit against Pennzoil)
    Further limited the filing of lawsuits that should have been brought in other states or countries

    The changes to medical liability in 2003 were extraordinary, and had a very substantial impact, including:

    1. In August 2004, the Texas Hospital Association reported a 70% reduction in the number of lawsuits filed against the state’s hospitals.
    2. Medical liability insurance rates declined. Many doctors saw average rate reductions of over 21%, with some doctors seeing almost 50% decreases. (Recent information provided to The Perryman Group during the course of this study suggests that premiums are declining even further in 2008.)
    3. Beginning in 2003, physicians started returning to Texas. The Texas Medical Board reports licensing 10,878 new physicians since 2003, up from 8,391 in the prior four years. Perryman has determined that at least 1,887 of those physicians are specifically the result of lawsuit reform.
    4. In May 2006, the American Medical Association removed Texas from its list of states experiencing a liability crisis, marking the first time it has removed any state from the list. A recent survey by the Texas Medical Association also found a dramatic increase in physicians’ willingness to resume certain procedures they had stopped performing, including obstetrics, neurosurgical, radiation and oncological procedures.

    Last year, TLR commissioned a study by The Perryman Group to figure out the impact of these reforms (the above are excerpted from that report). Here are the economic impact findings of that study:

    $112.5 billion increase in annual spending
    $51.2 billion increase in annual output – goods and services produced in Texas
    $2.6 billion increase in annual state tax revenue
    $468.9 million in annual benefits from safer products
    $15.2 billion in annual net benefits of enhanced innovation
    499,000 permanent jobs
    430,000 additional Texans have health insurance today as a result of the medical liability reforms

    The complete Perryman Group report is here.

    As these numbers show, tort reform can have a substantial impact on economic growth and wealth creation, and a huge impact on the healthcare system in particular. Any serious national healthcare reform must include comprehensive tort reform to reduce the practice of defensive medicine and other perverse incentives.

    Which is why I do not consider the current proposals from the Obama Administration to be serious (other than being seriously flawed).

    Hope this helps. Cheers,

    L3
    http://pajamasmedia.com/richardfernandez/2009/07/25/getting-better/#comment-11

    • Matt says:

      You’d think Texas was the only state that had ever enacted tort reform, and that nothing else was responsible for any economic success it ever had. Not low tax rates, not great ports and transportation, not natural resources, not even large amounts of cheap immigrant labor.

      I wonder why the other states with damage caps aren’t this flush?

    • Max Kennerly says:

      1, 2 and 4 of your “impact” are all meaningless: yes, if you eviscerate tort law, the cost of torts go down. If we suddenly eviscerated auto accident law, the cost of auto insurance would go down, too.

      The “economic impact findings” are pure garbage — spend some time in Appendix B of that report and you’ll see that they start with various unreasonable assumptions (such as how every dollar saved in malpractice premiums is instantly converted into hundreds of dollars in spending directed at social goods like product enhancement) and then mindlessly extrapolate them to infinity.

      Moreover, there is no reason to even get into the details or methodology: fact is, Texas is not only one of the most expensive health care markets in the country, but it is also one of the least effective, consistently earning an “F” in access to care by every measure.

      The proof is in the pudding. This exchange is revealing:

      http://www.newyorker.com/reporting/2009/06/01/090601fa_fact_gawande?currentPage=all

      Some were dubious when I told them that McAllen was the country’s most expensive place for health care. I gave them the spending data from Medicare. In 1992, in the McAllen market, the average cost per Medicare enrollee was $4,891, almost exactly the national average. But since then, year after year, McAllen’s health costs have grown faster than any other market in the country, ultimately soaring by more than ten thousand dollars per person.

      “Maybe the service is better here,” the cardiologist suggested. People can be seen faster and get their tests more readily, he said.

      Others were skeptical. “I don’t think that explains the costs he’s talking about,” the general surgeon said.

      “It’s malpractice,” a family physician who had practiced here for thirty-three years said.

      “McAllen is legal hell,” the cardiologist agreed. Doctors order unnecessary tests just to protect themselves, he said. Everyone thought the lawyers here were worse than elsewhere.

      That explanation puzzled me. Several years ago, Texas passed a tough malpractice law that capped pain-and-suffering awards at two hundred and fifty thousand dollars. Didn’t lawsuits go down?

      “Practically to zero,” the cardiologist admitted.

      “Come on,” the general surgeon finally said. “We all know these arguments are bullshit. There is overutilization here, pure and simple.” Doctors, he said, were racking up charges with extra tests, services, and procedures.

  11. Don Salva says:

    OMG, that was a heavy read, I mean literally. Bad paragraphs are bad :(.

  12. Tampa Doctor says:

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  13. MikeMD says:

    Interestingly enough, when I looked through the ACEP report I noted this statement:
    “compared to the United Kingdom and Australia,
    the United States has 50 percent more medical liability claims filed per 1,000 people and a rate that is 350 percent higher than in Canada.” Hard to say it’s not a problem here given that kind of rate.

    Even if you doubt the longer life expectancy and lower infant mortality data from the UK, Canada and Austrailia, one can’t really say that their outcomes worse. You might argue that there’s less need for litigation in a country where an injured patient has no medical bills, but clearly their physicians aren’t killing people left and right despite being more protected from litigation.

    • Matt says:

      I think the difference is a deeper social safety net. There is much less need to pursue a claim if you aren’t facing mountains of medical bills and the welfare system provides a better wage if you are unable to work. And while their physicians may be more protected from litigation they undoubtedly have some sort of review process that physicians hate.

      Give the American people universal healthcare and this debate becomes moot.

  14. Matt says:

    Interesting stat on one of the causes of “defensive medicine”:

    “Well, Medicare spends almost twice as much per patient in Dallas, where there are more doctors and care facilities per resident, as it does in Salem, Oregon, where supply is tighter. Why? Because doctors (particularly specialists) in surplus areas order more tests and treatments per capita, and keep their practices busy. Many studies have shown that the patients in areas like Dallas do not benefit in any measurable way from all this extra care. All of the physicians I know are genuinely dedicated to their patients. But at the margin, all of us are at least subconsciously influenced by our own economic interests. The data are clear: in our current system, physician supply often begets patient demand.”

    http://www.theatlantic.com/doc/200909/health-care

    http://www.star-telegram.com/business/story/1457180.html

    Now why would Texas have such high rates of testing when it has had the great healthcare reform of tort reform?

    “This conclusion challenges a capitalist credo in Texas. More of anything — doctors, hospitals, imaging centers — should lead to more consumer choice and lower prices, right? Not with “supply-sensitive care,” Dartmouth says.

    Dartmouth studies found that some areas with the lowest growth in Medicare spending have produced the best outcomes. They attribute the gains to team-oriented medical practices, with primary care doctors serving as a “medical home,” with quick access to specialists.”

    . . .

    “”The differences in spending are almost entirely explained by the differences in the volume of health services received by similar patients,” Dartmouth researchers reported in February.”

    Higher volume=more profit. And I thought lawyers and plaintiffs were the only greedy ones!

  15. Matt says:

    WC, you may find this part of the above Atlantic article interesting:

    “Hospitals are indeed required to provide emergency care to any walk-in patient, and this obligation is a meaningful public service. But how do we know whether the charitable benefit from this requirement justifies the social cost of expensive hospital care and poor quality? We don’t know. Our system of health-care law and regulation has so distorted the functioning of the market that it’s impossible to measure the social costs and benefits of maintaining hospitals’ prominence. And again, the distortions caused by a reluctance to pay directly for health care—in this case, emergency medicine for the poor—are in large part to blame.

    Consider the oft-quoted “statistic” that emergency-room care is the most expensive form of treatment. Has anyone who believes this ever actually been to an emergency room? My sister is an emergency-medicine physician; unlike most other specialists, ER docs usually work on scheduled shifts and are paid fixed salaries that place them in the lower ranks of physician compensation. The doctors and other workers are hardly underemployed: typically, ERs are unbelievably crowded. They have access to the facilities and equipment of the entire hospital, but require very few dedicated resources of their own. They benefit from the group buying power of the entire institution. No expensive art decorates the walls, and the waiting rooms resemble train-station waiting areas. So what exactly makes an ER more expensive than other forms of treatment?

    Perhaps it’s the accounting. Since charity care, which is often performed in the ER, is one justification for hospitals’ protected place in law and regulation, it’s in hospitals’ interest to shift costs from overhead and other parts of the hospital to the ER, so that the costs of charity care—the public service that hospitals are providing—will appear to be high. Hospitals certainly lose money on their ERs; after all, many of their customers pay nothing. But to argue that ERs are costly compared with other treatment options, hospitals need to claim expenses well beyond the marginal (or incremental) cost of serving ER patients.

    In a recent IRS survey of almost 500 nonprofit hospitals, nearly 60 percent reported providing charity care equal to less than 5 percent of their total revenue, and about 20 percent reported providing less than 2 percent. Analyzing data from the American Hospital Directory, The Wall Street Journal found that the 50 largest nonprofit hospitals or hospital systems made a combined “net income” (that is, profit) of $4.27 billion in 2006, nearly eight times their profits five years earlier.”

    • DUH says:

      The Atlantic article forgot the most expensive part of the ER so the entire analysis of your second paragraph is meaningless. ERs, by design, are to rule out life-threatening illness/injury. Outpatient clinics(FP/IM/peds mostly) are designed to treat patients longitudinally and with regular follow-up so do not usually have to do the degree of testing that an ER does. So the visit for the cold is charge the CPT for a 99212 or 99213. That’s it. That is the entire bill. An ER will oftentimes(not always but often enough) wind up doing a CBC, CXR, strep test, flu test, mono test etc. The ER’s threshold for these tests is lower than it is in an outpatient clinic. Both approaches are OK since the goal is different. The FP in his office has known this patient for 4 years and has their entire history in the record and knows that they are a nervous Nellie and that the patient is very reliable as far as follow-up if not improving. The ER, for the most part, knows none of that.

      • DensityDuck says:

        I don’t think that Matt is going to know what any of that jargon means…

      • Matt says:

        It’s not “my” paragraph, it’s from an article in the Atlantic Magazine, and it does look at it from a consumer’s point of view.

        Density is correct that while I’ll have a passing knowledge of what some of those acronyms mean it’s rather limited as it comes just from following this debate and reviewing records and bills for personal injury cases. The general public will likely not have that much. And if you’re going to explain yourself to them in support of policy changes or against them for that matter, you’re going to have to reduce the jargon.

        And of course, quibbling with the second paragraph, while informative, doesn’t necessarily take away from the larger point, of what I quoted and the article itself.

      • DUH says:

        Ok, I’ll go down a notch.

        ERs charge more since they do more tests since they don’t know you and don’t know if you’ll follow up. Also, they are designed to test for emergencies and things that will kill or seriously harm you in the immediate future.

  16. Dear Max,
    For once I would appreciate a little honesty.
    1. Please quote a reputable source that provides evidence that malpractice premiums are at a per-physician 30 yr low. Do not include states like Tx where judges can not legislate from the bench and overturn an amendment to the state constitution voted on by citizens that malpractice caps on noneconomic damages are constitutional as the growingly toothless AMA also contends.
    2. Please explain why, if the impact of malpractice premiums does not affect Access, as you falsely assert, that you can not get a neurosurgeon in Mr Obama’s state w/in 3 hrs of a hospital in central IL to take care of a dying child with an expanding intracranial hematoma. The truth is neurosurgeons do not want to practice in a state where malpractice premiums are over $200,000, directly due to the fact that congress has a) Failed to set limits on noneconomic damages that can not be deemed “unconstitutonal” by judges whose colleagues are personal injury attorneys and b) failed to set limits on what personal injury attorneys can take home which only drives each and every settlement through the roof as you and your colleagues take over 30% of all monies.
    Sincerely,
    Concerned physician who just wants the truth.

    • Max Kennerly says:

      Hello Erik,

      I have a copy of the same article on my site (linked here via my name), with footnotes to all sources.

      (1) The premiums data comes by way of A.M. Best (see footnote 3), which rates insurance company financial health for banks and investors. I’m not able to break it down for each state; if you want more data, you’re going to have to ask the insurance companies and/or the medical societies, both of which keep a tight lid on these figures, except when they selectively release partial (and potentially inaccurate) figures for political reasons.

      (2) I don’t know anything specifically about Illinois and so can’t comment on it. All I can do is refer you to the GAO and CBO, both of which looked at this exact issue and didn’t find any of these “facts” that you describe, nor did they find any utility in altering noneconomic damages or contingent fees. (All such reports are footnoted in my post). Indeed, I don’t see how either of those would really do much to increase care, since neither would make it much easier to set premiums or to give the doctor confidence in their treatment. They’d just cheat some patients out of damages (for the caps) or out of suit entirely (lawyers won’t work for free — the typical medmal case requires the lawyer pay at least $25k-$50k out of pocket just to get to settlement discussions).

      Glad I could help you find the truth.

  17. Matt says:

    The whole “access to care” argument would have more meaning if physicians didn’t use it every time as their threat.

    Medicaid cuts payments for birthing? Access to care threatened:

    http://www.birthcenters.org/news/breaking-news/?id=85

    State cuts funding for Medicaid? Access to care threatened:

    http://www.louisianamedicalnews.com/news.php?viewStory=1295

    Medicare cuts – Seniors face an access to care crisis:

    http://seniorjournal.com/NEWS/Medicare/6-03-17-AMASaysSeniorCitizen.htm (this one even comes with this quote: “bout 29% of responding physicians said they plan to reduce the number of beneficiaries they take as new patients if the cuts take effect, and 16% said they plan to stop accepting any beneficiaries as new patients.” What certainty!

    More Medicaid cuts – cardiac care at risk now!

    http://www.stltoday.com/stltoday/news/stories.nsf/editorialcommentary/story/578419E54BEDDA3886257621001D894E?OpenDocument

    And from 2007:

    http://www.aapsonline.org/newsoftheday/003

    “In what has become an annual ritual, Medicare announces a cut in physicians’ fees, and physicians threaten that patients will lose access to care. And this time they really mean it.”

    Let’s be honest, you use this “access” threat every chance you get. And the truth is, where are you physicians going to go? Nowhere. There’s no other job most of you can do where you can immediately make the money you are making now. And like everyone else, many of you probably can’t afford to take a drastic pay cut. You couldn’t service your debt.

    And now if you don’t get damage caps you’re not going to provide care? Be serious.

  18. Matt says:

    “2. Please explain why, if the impact of malpractice premiums does not affect Access, as you falsely assert, that you can not get a neurosurgeon in Mr Obama’s state w/in 3 hrs of a hospital in central IL to take care of a dying child with an expanding intracranial hematoma.”

    So if you get caps, how many neurosurgeons will they get within 3 hours of that hospital? What’s the guarantee? You guys keep making these claims that because you have no caps, we get no care. So what are you promising in return? How many specialists, and which kind are you going to put in every rural community in America?

    “b) failed to set limits on what personal injury attorneys can take home which only drives each and every settlement through the roof as you and your colleagues take over 30% of all monies.”

    You have clearly not ever settled a case if you think that what the lawyer makes determines what the insurer will pay. Insurers study verdicts, and that’s how they set their numbers. They don’t care what the attorney makes. Although, if you can find a way for indigent people to pay me hourly, like you do your attorney, and I have no risk in the case, like your attorney, I’m all for it. You do want to cap what BOTH sides can pay their lawyer, don’t you? You aren’t advocating for hamstringing just one side are you?

    “directly due to the fact that congress has a) Failed to set limits on noneconomic damages that can not be deemed “unconstitutonal” by judges whose colleagues are personal injury attorneys ”

    The US Congress cannot set limits on state law actions. But, since you raised it, how much are neurosurgeon premiums on average in Illinois, and say, California (a state with caps)? If you believe this to be true, please explain why. Since we’re looking for the truth and all.

    Incidentally, do these judges not know any defense lawyers? None? If personal injury attorneys give to a judge and the Chamber of Commerce gives to a judge, do the respective donors dictate the outcome, or do these judges have minds of their own? Again, since you’re looking for honesty, I assume you’ve worked that out before essentially calling all judges who don’t agree with you corrupt. After all, you’re looking to save a few dollars yourself with your support of tort reform, aren’t you?

  19. Matt says:

    Interestingly, physicians claim “a threat to access” literally every year when CMS announces new payment plans. Without fail. Google “Access to care threatened” and along with it being threatened by lawsuits, you’ll find threats based on state budget cuts, CMS cuts, and on and on. This threat is made by physicians literally anything even remotely bad happens.

    But let’s be honest – what are they going to do? The vast majority of physicians do not have the skills to immediately step into another job that pays just as much. And the vast majority of them, like everyone else, likely have debt service that requires them to make that much money. So really, where are you guys and girls going?

    At worst you’ll quit serving poor people and taking govt. money, at least a few of you will, but the truth is the majority of you really don’t know how to go to another payment model, and all of you can’t stop taking govt. cash and stay afloat.

    You’re still not going to want to move to Podunk, Mississippi no matter what CMS reimbursement rates are or how much tort reform there is. For the same reason Ruth Chris’ doesn’t open steakhouses in every little town – there’s not enough people there, and a lot of you simply don’t want to live there.

  20. natural selection says:

    “But let’s be honest – what are they going to do? The vast majority of physicians do not have the skills to immediately step into another job that pays just as much. And the vast majority of them, like everyone else, likely have debt service that requires them to make that much money. So really, where are you guys and girls going?”

    Most who have went through medical school are self motivated people. The largest asset they possess is a work ethic and drive to succeed. They could have chosen many other paths and been successful. Oh, yeah they have a 4 year or other advanced degree before their MD, many in a completely unrelated field. A lot are leaving clinical practice. A few examples of where I have seen some of my colleagues go:

    -2 got their law degree in 3 years of night classes and now do consulting work

    -many move to non-clinical healthcare management

    -moves to teaching

    -moves into the pharmacy and medical device industry

    -quit to run restaurants or other businesses

    -50% of grads are now women and many decide not to use their degree at all or practice part time.

    FMG’s are filling some of the void. They are mostly good, you just might not be able to understand them.

  21. Matt says:

    Has the percentage of physicians leaving the practice early increased? How much and over what period of time.

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