The uninsured..........

[UtahDan]

Originally Posted by creekster

Spoken like a plaintiff's counsel. WHy should a plaintiff recevie compensation for something he never paid?

We need to be careful here, or we will be fighting amongst ourselves in front of the doctors.

I was actually hoping someone would snap that bait up. :-) The truth is that arguments for and against are well enough worn that they aren't worth rehashing. Collateral source rule comes up in our legislature from time to time and the plaintiffs bar has always been successful here in tying it to comparative negligence. We don't want to give up our rule, and the defendants bar doesn't want to give up strict contrib.

This is fine with me because in practice people rarely get goose egged on a contrib. argument, though it ofetn operates with juries to make the award smaller.

[ERCougar]

Wow...I missed a lot over the weekend. I'll give an overall gestalt response and then respond to some of the individual points made.

I'm obviously over my head when it gets into legal specifics and I'm willing to admit that (unlike Cali, who seems perfectly comfortable telling me how to manage patients in the ER and waiting room, but I'll let that slide...). The malpractice situation varies by state and currently I'm in one where the situation is fine. However, the state I just left was terrible, premiums were high, and many physicians were leaving the state (including myself--certainly wasn't the sole factor in the decision but it helped). How does this affect the average patient? Well, it's getting harder and harder to find on-call coverage for orthopedics and neurosurgery in the hospital--just pray that you don't get in an accident where you need these services near one of these ER's, as then you'll need to be transferred to a hospital where they can find on-call staff who can take care of you. It was not uncommon to have 10 days out of a month where there was NO neurosurgeon or orthopedic surgeon willing to take care of a trauma patient--the malpractice exposure was simply too high. Yes, this can be a life-threatening delay. Outside of my field, there are areas where patients can't find obstetricians to care for them. To me, that's evidence that something's wrong.

There's absolutely no question in my mind that malpractice exposure increases healthcare costs. Cali likes to point to Europe/Canada as the healthcare model for the world. A portion of the difference in costs between the two countries can be attributed to utilization of expensive tests. The CT scanner is one of the main culprits in the ER--I mentioned earlier that we order about 5x as many CT (per patient encounter) as physicians in socialized systems. These are expensive, potentially dangerous, and in most cases, directly attributable to malpractice exposure.

There's also no question in my mind that the existence of the malpractice system improves care. The question for everyone is to find the appropriate system, one that doesn't inordinately increase system costs, while insuring that harms are fairly compensated. How do we do this? Obviously, attorneys have a better handle on the specifics. From my perspective, the system in IN made sense. Everything goes before a three-physician panel (I think the plaintiff chose one physician, the defendant another, and the state medical board the third, although I could be wrong on the specifics) who then renders a consensus opinion--what they can agree on about the relevant issues of the case. All three physicians were paid a set rate by the medical board for their services--no hired guns. This opinion was then admissible as evidence, and the plaintiff then made a decision as to whether to proceed. This type of system would do much to alleviate physicians' concerns about malpractice. No one (well, almost no one) wants to eliminate malpractice--I would guess physicians are probably more bothered when they see evidence of bad medical care than anyone. However, we don't feel comfortable having often complex medical decisions reviewed by hired guns and layperson juries.

[ERCougar]

Originally Posted by Cali Coug

Are you reading prior to responding? Yes, it would raise health care costs to purchase more scanners. But you seem to indicate that more scanners resolves the logjam issue, which would, presumably, then lower malpractice claims against doctors, thereby lowering malpractice insurance costs (right?). What's the problem? You don't want to perform the tests, you don't want to buy the machines, you want to send people home quicker, then you want to complain when you are sued because one of them had a brain hemmorhage that could have been caught and wasn't. We may not have a perfect balance right now, but eliminating lawsuits certainly won't provide a better balance.

As for specialty courts, I can say I haven't heard of such a thing as a "specialty jury" before (I don't litigate much). But you appear to be conflating specialty court with specialty jury. A specialty court is a court designated to hear only certain kinds of cases. It doesn't mean that juries empaneled in those courts are experts (someone can correct me if they have seen something different in another state- I haven't ever come across it).

As I already mentioned, the patent courts are set up by the Constitution. Patent cases rarely go to trial. When they do, they are heard by your average jury.

I guess I do mean specialty courts. It would help tremendously to have a judge who's familiar with the medical issues involved. Lay juries with a knowledgeable judge would seem to be an improvement over the current system.

I kind of like the idea of professional jurors, although I assume there are constitutional issues to that.

[ERCougar]

Originally Posted by Cali Coug

You keep going back to "passing it off as honest opinion." What makes you think it isn't their honest opinion? Are you suggesting most expert witnesses in medmal are committing perjury?

No. But there are some with unusual ideas on medical therapies, and it certainly looks as if their opinions may have been influenced. Perjury? I don't know. It's sort of like the doctors who claim that pharmaceutical representatives (and their attendant meals/gifts/etc) don't influence their prescribing patterns...

[ERCougar]

Originally Posted by creekster

Assuming you mean medical malpractice lawsuits, that is exactly what you are saying. When you urge the elimination of liability for instance of MM unless there is gross negligence, you are talking about eliminating the potential for recovery.

What, exactly does this expert panel do, in your physician's ;legal utopia? Are they a gatekeeper for access to court? are they a third party voice in court? what do they do?

Perhaps you are thinking of a worker's compensation type system, where the state mandates awards based upon schedules and removes the right to sue an employer for anything other than fraud or willful misconduct? Have you looked at a WC system in a place like California? Are you sure you want to mandate that type of process? Quite frankly, it is a mess. It is expensive, it fails to provide adequately to many injured workers and too well to others, and it leaves third parties subject to huge verdicts because the employers can walk away from the risk of a suit.

What system specifically are you advocating? I see you throwing up your hands at the unfairness of it all for the doctors, but I hear very little in terms of the solution. I am not convinced that any possible solution you have proposed is an improvement for anyone except the doctors who have screwed up.

Yes, I see how a mandated award schedule could be a mess. Is there some kind of compromise where certain judges handle all med mal cases, and thus could administer some sort of logic to the verdicts? I don't know--I'm just grasping here.

No, I don't have a specific solution, but I certainly think there's a problem. The ABA is denying there's a problem.

I'm also not looking to help doctors who screwed up. I just don't think that the current system is equipped to 1) determine who those doctors are and 2) fairly reimburse the patient (and not the attorney).

[ERCougar]

Originally Posted by creekster

Honestly, I do not believe your example. When and where did this happen? I cannot believe in a MM case of any value that a defense or plaitniff;s attorney would not have figured this out and used ti to impeach this witness. I think this is likely an apocryphal tale that never happened like this.

Certainly you don't believe that in any case worth anything at all that this sort of information isn't revealed until trial? I assure you, all of this is looked at very carefully before, during and after a pre-trial deposition. Moreover, the fact that he lied about how many patients he tredated doesn't mean he lied or was even wrong about the substance of his opinion, right? SO perhaps justice was served in your apocryphal case.

plus, you do realize, I suppose, that each side has a hired gun? These guys that testify for a living become huge targets if they start lying, btw. In federal court in CA, for example, an expert witness is required to reveal names of cases in which he has given depo or trial testimnoy for some period of time (this can vary by jurisdiction) prior to the present case, which allows lawyers to dig out prior testimony to find out if the guy exaggerates, lies or takes inconcsitent or unlilkey positions (which is another reason your story is unlikely). These pro exerts, if anythign, tend to be quite careful in what they say and how far they will go. The process is just not as unblanaced as you believe.

I'll work on finding the source for this. I'm not making it up--it came from a journal I read from the last few months. Shouldn't be too hard to find.

I do realize that both sides have a hired gun. So, somehow it's acceptable to come to an informed medical opinion on a complex issue by listening to two opposing hired guns? Regarding your example, is it the law in all states that prior testimony is admissible as evidence? That seems to be the exception. (By the way, CA is not one of the states that has a problem, to my knowledge.)

[ERCougar]

Originally Posted by SoCalCoug

You sound like you assume plaintiff's lawyers file malpractice lawsuits without an expert review.

I practice medical malpractice law in California. Step number 1, before we even take the case, is to have the records reviewed by an expert physician to give us a preliminary opinion on whether there was malpractice or not.

If we get a thumb's down, we tell the client there's no case. It's stupid for me to try to pursue a case without merit. I'd starve if that was a significant part of my practice.

We have pretty strict limits on medical malpractice recoveries in California. General damages (pain and suffering) are limited to $250,000. Plus, you can't recover for medical bills paid by collateral sources (i.e. health insurance).

Is it fair to assume, based on your arguments in favor of medical malpractice "reform" that malpractice premiums in California would be much lower than those in states without caps. Right?

You're speaking out of your ass as far as I'm concerned.

I can't speak to malpractice premiums in California. I do know that tort reform in Texas has lowered malpractice premiums. I do know that my malpractice premium was much higher in MI than in IN or UT. As far as I know, CA is not a "problem" state.

[ERCougar]

Originally Posted by UtahDan

Boy did you ever make me glad I don't practice there. Here we have the collateral source rule and the cap is $1,850,000.00 and goes up 50K every July first. We are strict contrib., however.

You do have to have an MD certify that standard of care was breached before you can file. The defendant can also force it before a review panel of MD's which then hold a hearing and render and opinion. That opinion is then filed with the clerk of court and is admissible as evidence at trial. The members of the panel can also be called to testified and are granted civil immunity for all their conduct in connection with the proceedings.

It is actually a pretty good system. It keeps weak cases from getting filed, gives everyone a preview of the evidence at the panel hearing, and still preserves a person's right to go to a jury. I bet when ER reads this even he will approve.

I don't want to rant too much, but the collateral source bar you guys have out there is about the most illogical thing I can think of. The idea that a tortfeasor ought to benefit from a contract I pay for is mind boggling.

Yup...seems like a good system. What state are you in?

[creekster]

Originally Posted by ERCougar

I'll work on finding the source for this. I'm not making it up--it came from a journal I read from the last few months. Shouldn't be too hard to find.

I do realize that both sides have a hired gun. So, somehow it's acceptable to come to an informed medical opinion on a complex issue by listening to two opposing hired guns? Regarding your example, is it the law in all states that prior testimony is admissible as evidence? That seems to be the exception. (By the way, CA is not one of the states that has a problem, to my knowledge.)

I am unaware of any jurisdiciton that would not allow the discovery of prior testimony by an expert that is realted to the subject matter of the case. I am also unaware of any jurisdiciton that would not allow the use of prior testimony to impeach the expert's credibility.

[Cali Coug]

Originally Posted by ERCougar

Wow...I missed a lot over the weekend. I'll give an overall gestalt response and then respond to some of the individual points made.

I'm obviously over my head when it gets into legal specifics and I'm willing to admit that (unlike Cali, who seems perfectly comfortable telling me how to manage patients in the ER and waiting room, but I'll let that slide...). The malpractice situation varies by state and currently I'm in one where the situation is fine. However, the state I just left was terrible, premiums were high, and many physicians were leaving the state (including myself--certainly wasn't the sole factor in the decision but it helped). How does this affect the average patient? Well, it's getting harder and harder to find on-call coverage for orthopedics and neurosurgery in the hospital--just pray that you don't get in an accident where you need these services near one of these ER's, as then you'll need to be transferred to a hospital where they can find on-call staff who can take care of you. It was not uncommon to have 10 days out of a month where there was NO neurosurgeon or orthopedic surgeon willing to take care of a trauma patient--the malpractice exposure was simply too high. Yes, this can be a life-threatening delay. Outside of my field, there are areas where patients can't find obstetricians to care for them. To me, that's evidence that something's wrong.

There's absolutely no question in my mind that malpractice exposure increases healthcare costs. Cali likes to point to Europe/Canada as the healthcare model for the world. A portion of the difference in costs between the two countries can be attributed to utilization of expensive tests. The CT scanner is one of the main culprits in the ER--I mentioned earlier that we order about 5x as many CT (per patient encounter) as physicians in socialized systems. These are expensive, potentially dangerous, and in most cases, directly attributable to malpractice exposure.

There's also no question in my mind that the existence of the malpractice system improves care. The question for everyone is to find the appropriate system, one that doesn't inordinately increase system costs, while insuring that harms are fairly compensated. How do we do this? Obviously, attorneys have a better handle on the specifics. From my perspective, the system in IN made sense. Everything goes before a three-physician panel (I think the plaintiff chose one physician, the defendant another, and the state medical board the third, although I could be wrong on the specifics) who then renders a consensus opinion--what they can agree on about the relevant issues of the case. All three physicians were paid a set rate by the medical board for their services--no hired guns. This opinion was then admissible as evidence, and the plaintiff then made a decision as to whether to proceed. This type of system would do much to alleviate physicians' concerns about malpractice. No one (well, almost no one) wants to eliminate malpractice--I would guess physicians are probably more bothered when they see evidence of bad medical care than anyone. However, we don't feel comfortable having often complex medical decisions reviewed by hired guns and layperson juries.

Two quick thoughts: 1) if you are upset with my comments about solving problems in the ER, why not address them instead of just acting like you are the smartest guy in the room and an explanation doesn't need to be offered? 2) Where in the world did I say that Canada and Europe are the perfect medical models? A single link would be nice.