A LAWYER WITH A BRIEFCASE CAN STEAL MORE THAN A THOUSAND MEN WITH GUNS
A LAWYER WITH A BRIEFCASE CAN STEAL MORE THAN A THOUSAND MEN WITH GUNS
Comment by Jim Campbell, Citizen Journalist, Oath Keeper and Patriot.
This is indeed an interesting article sent to me this morning by Colonel Wood.
One must consider the question, “Do we need lawyers,” when the current occupant of the Oval Office follows few if any laws and abhors the U.S. Constitution?
With the exception of the last two paragraphs, it’s true as written.
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Will Medical Malpractice Tort Reform Ever Be Resolved?
Medical malpractice reform has been a longstanding issue in the healthcare community, especially among patient safety advocates. It has gained traction in recent years, but for some, it is not enough.
Then there are trial lawyers who fight tort reform, saying all they want to do is protect people against negligent medical professionals.
So who benefits from tort reform? Why does the reform debate sometimes feel stuck and no progress is being made?
Some might argue that trial lawyers only want to see an increase in malpractice caps because they stand a chance to make more money from their clients. An example of this is Proposition 46 in California, which proposes to raise the cap on non-economic damages, and is written and backed solely by lawyers. Many statewide and community organizations have opposed Prop 46 because they feel it will cost taxpayers millions of dollars, plus raise healthcare and malpractice insurance premiums.
Tort reform is a big issue with many aspects to consider. In a perfect world a solution would be one in which everyone benefits - victims of malpractice are compensated fairly, medical professionals are given reasonable rates for malpractice insurance without any fluctuations, the cost of healthcare would remain low, and taxpayers do not have to fit the bill for malpractice lawsuits.
However, maybe our focus is on the wrong things. We're thinking about all the financial aspects. Would our energy be best used if we paid more attention to patient safety and really made a push to ensure medical professionals are conscientious in their work? What if suddenly the number of incidents of malpractice dropped? If patient safety was the priority, we wouldn't have to worry so much about medical errors and lawsuits.
Tort reform has to be a win/win situation, otherwise the debate will just keep going around in circles and continue on and on. The only real solution is to wipe out malpractice altogether. That would entail a huge commitment by the thousands upon thousands working in the medical and healthcare community. It all starts with each person. Are you willing to do what it takes?
In Florida, medical malpractice lawsuits have proven difficult. In Tampa, Florida decision makers in the health industry strongly convinced legislators that an amount of $500,000 be awarded to victims of medical malpractice. They wanted the amount reinstated. However, that was not the case as the medical malpractice cap was lifted by a state court in 2004, which ruled that it was an injustice to the plaintiffs as it limited them from seeking higher awards for the damages they incurred due to doctors' negligence.
Referring to the seventh amendment of the United States constitution, it is does not clearly justify and support medical malpractice caps. Having noted this, the state of Virginia lifted medical malpractice caps. In North Carolina and other states, however, the cap has not been changed as it still stands at $500,000. For some states like California, the cap is currently $250,000. Upon request for unconstitutional amendments to the Virginia constitution, consultants from the group of health policy stated that non-economical damage caps were required in order to keep malpractice premiums low.
It’s been said that the total amount of money spent on malpractice insurance and malpractice lawsuits is one percent of the total amount the U.S government spends on health care annually. Findings from a survey on medical malpractice reveal that very few procedures are carried out when the cause of an illness has not been found. The study also reveals that the medical insurance premiums paid by doctors has been on a steady decline since 2004. It has been noted that any economic reason to cap malpractice awards cannot be found.
Is placing a cap on medical malpractice rewards wrong and unjustified? Would there indeed be more lawsuits and would health care costs rise if caps were to go away altogether?
A decade ago, Missouri medicine was in crisis mode after the revocation of the state malpractice cap. In the mid-1980s, Missouri set laws that limited noneconomic damages in medical malpractice cases at $350,000 — a limit that was indexed based on inflation and thus would increase annually. In 2002, the Missouri Eastern District Court of Appeals issued a decision in Scott v. SSM Health Care that effectively nullified the cap. As part of the decision, the court set a precedent that each "occurrence" of negligence could accrue noneconomic damages, which at that time was more than $550,000. In practical terms, that meant for each person on the care team, for each day the diagnosis was missed and for each diagnostic study based on an erroneous diagnosis, the patient could receive noneconomic damages. Though each instance claimed couldn't exceed the cap, the total "occurrences" had no limit. In essence, there was no longer a cap.
In subsequent years, the number of lawsuits and the cost of malpractice insurance dramatically increased. According to the National Practitioner Data Bank, which records physician claims, the number of claims against physicians rose by 37 percent between 2000 and 2004. In 2003, the number of frivolous claims, those that resulted in no payment, rose by 73 percent. Though no payouts occurred, the average cost of defending each claim totaled more than $11,000. For the lawsuits ended with indemnity, the average sum increased by 50 percent between 2001 and 2004.
This resulted in a dramatic increase in malpractice premiums. According to surveys by the Missouri State Medical Association (MSMA), the average increase in malpractice premiums per physician was 61.2 percent between 2002 and 2004. In a survey of every neurosurgeon in Missouri, the average increase was 116 percent between 2001 and 2003. The insurance companies were still losing money, however, and many opted to leave the state. Between 2001 and the end of 2002, a total of 24 malpractice insurance carriers stopped serving Missouri, leaving just eight.
Physicians also began to leave the state. At the end of 2002, more than 200 physicians had left or retired early. By 2004, according to an MSMA survey, 29 percent of Missouri physicians were considering leaving the state and 17 percent were considering early retirement.
Then, in 2005, Gov. Matt Blunt signed into law a bill restoring caps on noneconomic damages. These were again set at the $350,000 limit. Between 2005 and 2012, the number of claims dropped by almost 50 percent, the indemnity of paid claims dropped by 20 percent and premium decreases amounted to $27 million across the state.
Now the crisis is happening again. On July 31, 2012, the Missouri Supreme Court overturned the 2005 law, declaring caps infringe "on the jury's constitutionally protected purpose of determining the amount of damages sustained by an injured party." The 4-3 decision was propelled forward with a vote from a specially appointed judge who filled in for Judge Zel Fischer.
The case in question is Watts v. Cox Medical Center, which alleged Naython Watts suffered brain damage attributable to negligent prenatal care. Before the Supreme Court decision, the plaintiff was awarded $3.721 million in damages. This was substantially less than the $8.5 million requested by the plaintiff and the $4.821 million that would have been awarded by the jury without the cap. Watts' attorney, whose fees were 40 percent of the award, challenged the economic cap, taking the case to the Missouri Supreme Court.
The Missouri State Medical Association, Missouri Chamber of Commerce and many state lawmakers have come out in opposition to this decision. This past legislative season, a proposal to restore caps on noneconomic damages could not pass in the Missouri legislature because of a Senate filibuster. The MSMA continues to lobby in the state legislature in anticipation that progress will be in made in 2014.
Medicine across the country is at a crossroads. In a time of tumultuous change, leaders are searching for ways to both improve care and lower costs. Trial lawyers argue caps protect bad physicians and don't incentivize safe care. Years of data from across the U.S., however, demonstrate that, when caps are removed, the number of cases filed increases but the number of successful cases decreases. This doesn't help patients; it only increases administrative costs of defending malpractice cases — costs that invariably trickle down to patients. The cost of defending frivolous lawsuits increases malpractice premiums across all medical specialties. This is analogous to prophylactically increasing an individual's car insurance expecting it will make him a better driver.
There are many other and better ways to incentivize safe care, several of which are part of the Affordable Care Act. The last repeal of a cap on noneconomic damages saw an exodus of physicians from Missouri attributable to the increases in practicing costs. With the looming shortage of primary care physicians — and health care providers in general — Missouri can't afford to have this happen again. If we don't take this opportunity to learn from the past, we will continue to repeat it, leaving doctor-less patients saddled with the consequences.
Written by Nathanial S Nolan. Originally Published in the Columbia Tribune.
