Malpractice Immunity & Evidence-Based Medicine
March 29, 2011
side note: Here is an article that shows the conflict of interest that is inherent in our current system of medical liability, and outlines a reform idea worth closer inspection. While sovereign immunity is doubtful, it is an academic argument worth exploring.
It's been a year since health care reform was signed into law, and since then both Republicans and Democrats have been trying to address one item it left out: medical malpractice reform. In last month’s budget proposal, the Obama administration offered a solution: a plan to encourage evidence-based medicine by limiting the malpractice liability of doctors who follow clinical practice guidelines — in effect, granting them immunity.
Doctors love this proposal, and patients should too: When doctors follow good guidelines they are less likely to order too many or too few tests or to prescribe the wrong treatment.
Unfortunately, the proposal will not achieve the noble goal of providing quality care at a reasonable cost because the current guidelines, written by nonprofit medical groups and for-profit insurance companies, are not good enough.
First, they often conflict with one another. Recommendations for when and how frequently to give women mammograms, for instance, notoriously vary depending on which group is giving them.
In addition, there are conflicts of interest. Guidelines produced by insurance companies sometimes put their interests first. Malpractice insurers, for example, may recommend yearly mammograms, even if they are not necessary, because they bear the costs of lawsuits for late diagnoses of breast cancer — and not the costs or health risks of the extra mammograms. Moreover, the nonprofit groups behind many other guidelines have traditionally depended on pharmaceutical and medical device companies to finance their work. Last year, the Council of Medical Specialty Societies issued a new code of conduct seeking to stop these industries from sponsoring the development of guidelines, but there are still too many loopholes, and thousands of guidelines produced before the reform are still in circulation.
Most troubling of all is that the groups behind the guidelines bear no liability for producing bad ones. No matter how poor the care they prescribe, it is the doctors who depend on them who are punished.
Mr. Obama’s proposal to limit the liability of doctors who follow these flawed guidelines (included in a $250-million plan for overhauling states’ malpractice systems) is clearly not the way to better care. Immunity is a good idea. It’s just that we need to create the incentives necessary for the production of optimal guidelines first.
This is no secret — last week the Institute of Medicine put out a report listing new standards for promulgating guidelines. I was a consultant on the report, which goes a long way toward improving the system, but I worry about the extent to which these standards will be followed. I have a different proposal for improving the guidelines:
Instead of nonprofit groups producing free guidelines, or insurance companies producing ones that serve their own interests, the government should require health care providers to buy or license guidelines from what I call private regulators, for-profit companies with expertise in evidence-based medicine. Doctors would have immunity from malpractice cases if they followed the guidelines. However, the private regulators themselves would be liable if their guidelines were found to deviate from optimal care.
The profit-seeking forces of the market on the one hand and legal accountability on the other would help private regulators strike the right balance between patient safety and cost of care. Private regulators would discourage the overuse of expensive medical procedures because doctors, under pressure from insurance companies to keep costs low, would be unlikely to invest in guidelines recommending unnecessary procedures. But if the guideline-makers failed to recommend an appropriate procedure, they’d be held responsible for the patient’s health.
Just as they can now, doctors could deviate from the guidelines when required. Their discretion and autonomy would be preserved. But in most cases, when guidelines apply, doctors could follow them without having to worry about being held liable, and more important, about getting bad advice.
Such a system may not be too far off: medicine is already moving toward for-profit guidelines. UpToDate, First Consult and eMedicine are just a few new databases compiled by for-profit companies in the business of making technical, evidence-based medicine more accessible to doctors. This is certainly exciting, but to provide doctors with the peace of mind they deserve, these companies need to be held accountable for the advice they give.
Wisconsin Tort Reform: Judges now have less discretion in finding frivolousness, imposing sanctions
March 16, 2011
side note: Right now, Wisconsin is ground zero in the labor rights fight, but the villain Gov. Scott Walker pushed through a tort reform measure during an emergency session he called during his first week in office. Below is a synopsis by the Wisconsin Trial Bar of the tort reform law and its implications.
Amendments to Wis. Stat. section 802.05, which sets out the procedure for challenging pleadings as frivolous and for imposing sanctions, remove judges’ discretion to impose sanctions after the safe-harbor period expires. Attorney Timothy Edwards warns those facing such a challenge to cure the offending pleading within 21 days. If this deadline is missed, the judge must impose sanctions, consisting of all actual costs resulting from the conduct – including attorney fees.
March 16, 2011 – Gov. Scott Walker signed into law his “tort reform” bill, 2011 Senate Bill 1, on Jan. 27, 2011. This bill made significant changes to Wisconsin law relevant to tort litigation. One of the laws the bill changed was Wis. Stat. section 802.05, which allows and requires a court to impose damages for frivolous claims and defenses. Designed as Wisconsin’s counterpart to Federal Rule of Civil Procedure 11, section 802.05 lays out the procedure for challenging pleadings as frivolous and allows for the imposition of sanctions against a party, and its lawyer, for filing a frivolous pleading. This article explores the changes to this statute made by recent legislation.
Section 802.05 was initially adopted as a court rule regulating pleading, practice, and procedure. In 2005, the Wisconsin Supreme Court adopted the 1993 revisions to federal rule 11 and incorporated them into Wis. Stat. section 802.05(3).1 These revisions abrogated the old requirement that upon a finding of frivolousness, a judge “shall award” costs and reasonable attorney fees. “Shall award” became “may impose an appropriate sanction,” which must be “limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated.”2 The court held open hearings on this move from mandatory to discretionary sanctions, including testimony from State Bar members expressing concerns about the chilling effect that mandatory sanctions would have on creative, zealous advocacy.
The amendments to section 802.05 made another important change: they added a “safe-harbor” notice provision. When a party challenges an opposing party’s conduct, it must first serve its motion for sanctions on the party whose pleadings are being challenged, along with a safe-harbor letter that gives the opposing party 21 days in which to withdraw the challenged pleading. If the pleading is not withdrawn, then the party challenging the pleading can file the motion and ask the court to impose sanctions. So viewed, a safe-harbor letter and accompanying motion is a statutory prerequisite to the later filing of a motion for sanctions pursuant to section 802.05.
The newly amended version of section 802.05 retains the basic steps in the procedure for challenging frivolous pleadings. A party can bring a motion to request a determination on whether another party has initiated, maintained, or continued a frivolous action. The court also may enter an order on its own initiative based on conduct that appears to violate the rule against frivolousness. The safe-harbor period remains 21 days.
The most significant change made by the 2011 legislation was to remove the discretion of judges to impose sanctions after the safe-harbor period expires. Now, if a judge finds by clear and convincing evidence that a party has filed or pursued a frivolous pleading, the judge must exercise his or her discretion to impose sanctions if a party cures the offending pleading within 21 days of receiving the safe-harbor letter. In addition, now the judge must award sanctions if the offending party does not cure the offending pleading within 21 days of receiving the safe-harbor letter. Such sanctions include all actual costs resulting from the conduct, including reasonable attorney fees.
The new version of section 802.05 also applies to appeals. If an award of costs for violating these provisions is affirmed on appeal, the appellate court must send the action to the lower court to award actual attorney fees for defending the appeal to the successful party. An appeal is frivolous “in its entirety” if “any element necessary to succeed is supported solely by an argument that is [frivolous].” This new law applies to actions filed on or after the act’s effective date of Feb. 1, 2011. However, because the rule is procedural, it may be applied retroactively.3
The new amendments to section 802.05 raise the stakes for potentially frivolous actions, and remove some of the discretion afforded to judges in applying the rule. The most significant change is the directive that circuit courts must impose sanctions following a finding of frivolousness if the 21-day safe-harbor period has expired. The added discretion to impose sanctions within the 21-day safe harbor period, and the mandatory imposition of fees and costs against a party who unsuccessfully appeals an adverse finding of frivolousness, provide additional strength to Wisconsin’s prohibition against frivolous pleadings.
Time will only tell whether these new directives will deter the pursuit of frivolous claims and defenses, as intended, or chill the pursuit of legitimate, creative claims that would otherwise vindicate important client interests.
Rand Health Study: Investment in New Healthcare Quality Measures Needed as Cost-Cutting Strategies Grow
March 7, 2011
side note: With all the cost-cutting that is proposed at both federal and state levels, this is an especially prescient report.
As the healthcare industry, employers and government officials seek to control the growth of health spending, new efforts are needed to develop and refine quality-of-care and other performance measures that can assure changes will improve medical care and do not harm patients, according to a new study by RAND Health, the nation's largest independent health policy research program.
While some current quality measurement tools may be useful to new performance-based payment models, significant work is needed to design and test methods which can be applied to measuring the quality of care provided under innovative payment reforms, according to the report.
“Insurers and purchasers of healthcare in the United States are on the verge of potentially revolutionary changes in the approaches used to pay for healthcare," said Eric Schneider, MD, the study’s lead author and a senior natural scientist at RAND. “A significant investment is needed to develop new performance measures that can assure high quality care as the United States experiments with these new payment models.”
The RAND report studied 90 payment reform programs and identified 11 general payment reform models that reward providers for delivering better-quality, cost-conscious care or pay healthcare providers a fixed amount to coordinate treatment of an illness such as diabetes.
Since at least the 1980s, the traditional fee-for-service model of healthcare payment has been challenged by reforms that alter payment methods in order to limit costs. Critics say that the persistent use of fee-for-service—where health providers are rewarded only when they provide more care—encourages unnecessary health care spending without enhancing quality or efficiency.
The Patient Protection and Affordable Care Act of 2010 has given new impetus to payment reforms that can achieve both cost containment and improvements in healthcare quality. Most of the new approaches are expected to tame costs by reversing incentives to deliver more care. Instead they create incentives to providers and patients to weigh the costs of their medical choices. But some worry that if providers are at financial risk, these payment models may have mixed consequences for quality. Quality measurement should be used to assure that the financial incentives produce high quality cost-conscious care.
The study, "Payment Reform: Analysis of Models & Performance Measurement Implications," is available at www.rand.org.
Congressional Civil Justice Caucus Formed in House of Representatives
March 3, 2011
On Feb. 10, Representatives Bob Good-latte and Dan Boren announced the creation of a bipartisan legal reform caucus, the Congressional Civil Justice Caucus. Goodlatte and Boren will serve as co-chairs of the newly formed caucus.
According to the congressmen, the Congressional Civil Justice Caucus will serve as a forum for discussing and debating the many legal reform issues affecting the civil justice system, including medical malpractice reform, venue reform, patent reform and federal pleading standards.
“Our nation’s civil justice system has a direct impact on America’s competitiveness in the global marketplace,” said Goodlatte. “Excessive and frivolous litigation and inefficient rules and procedures drain U.S. companies of desperately needed resources and hinder job growth and innovation.”
The congressmen claim that recent estimates indicate that the cost of the U.S. tort liability system, as a percentage of gross domestic product, is more than double the average cost of any other industrialized nation and that America’s businesses and citizens alike need a well-functioning civil justice system that provides for the efficient and timely redress of legitimate disputes without allowing opportunistic parties to game the system.
The goals of the Congressional Civil Justice Caucus include strengthening our civil justice system and advancing the United States’ leadership in innovation, job creation and economic growth; advancing the public’s understanding of how civil justice issues affect the free enterprise system as well as America’s global competitiveness; and providing a bipartisan forum for discussion and debate of policy issues related to our nation’s civil justice system.
“I look forward to working with my colleague, Congressman Goodlatte, to promote a civil justice system that respects the rule of law while allowing for the type of innovation, economic growth, and free enterprise that makes the United States a leader in global competitiveness,” said Boren. “By providing a bipartisan forum for the discussion, we hope to help educate Members of Congress, staff and the public on policy issues related to our nation’s civil justice system.”
The U.S. Chamber of Commerce has wholeheartedly endorsed the caucus, offering its aid in making “our nation’s overall civil legal system simpler, fairer and faster for all participants.”
“According to the respected actuarial firm of Towers Watson, the costs associated with our tort system alone were $248.1 billion in 2009, which translates into a cost of $808 per person,” said Lisa A. Rickard, president of the U.S. Chamber Institute for Legal Reform, an affiliate of the U.S. Chamber of Commerce. “The system encourages gamesmanship, is incredibly inefficient and often results in inadequate compensation to those truly injured due to the transaction costs associated with litigation.”
The Civil Justice Caucus also received the endorsement of the Law & Economics Center at George Mason University School of Law, which formed the Congressional Civil Justice Caucus Academy to provide education programs on civil justice issues.
Of course, less optimistic observers noted that reform would be a difficult political venture.
“Anything Congress passes not only has to go through the gauntlet of Senate Majority Leader Harry Reid, but must be signed by President Obama, who has shown no stomach for meaningful liability reform, and whose administration has taken several anti-jobs positions to benefit trial lawyers," said Ted Frank, founder of the Center for Class Action Fairness as well as a writer at Overlawyered.com and the Manhattan Institute's PointofLaw.com.
In addition to co-chairs Goodlatte and Boren, Representatives Lamar Smith, Trent Franks, Jim Matheson and Collin Peterson serve as founding members of the Congressional Civil Justice Caucus.
MLMIC Threatens to not Renew Eight Bronx Obstetricians
March 2, 2011
side note: If this isn't a strong argument that New York's medical liability climate threatens access to care, I do not know what would be.
A malpractice insurance company has threatened not to renew coverage for eight Bronx obstetricians who treat poor, high-risk patients.
The New York Times reports that Medical Liability Mutual Insurance Company issued the warning in a letter last month. It went out to eight of 13 obstetricians at Bronx-Lebanon Hospital Center.
The hospital delivers about 2,700 babies a year. Many of the patients are teenagers or have diabetes, high blood pressure or other medical problems.
The letter cited a “method of practice” among the doctors that made them “an unreasonable burden” to other policyholders.
It did not specify how many times each doctor had been sued. The hospital said its services compare favorably with other hospitals.
New York Governor Cuomo Working to Reform Medicaid, Medical Malpractice with Caps on Damages
March 1, 2011
side note: Here's an unusual piece of politics. The Democratic Governor of New York, Andrew Cuomo, is proposing malpractice damage caps to heal the state's economic woes.
With the intention of re-structuring New York’s Medicaid system, Governor Cuomo is urging various changes to how medical malpractice suits are resolved.
Primarily, he wishes to limit awards at $250,000 per case, explaining this change alone may save upwards of $200 million in the following year.
However, Sheldon Silver, Assembly Speaker, believes this change to be unnecessary and is working to block it from occurring.
Officials believe it will be resolved, but the methods and the duration at which it may take are yet to be known.
side note: Here is an unusual turn in politics. Democratic NY Gov. Cuomo is proposing a cap on damages to help the state's budget woe
Many advocates of the new change explain that often times, lawsuits are extremely out of control and award much more money than could be justified by the damages.
The proposed change by Cuomo looks to benefit the overall financial situation of the state, potentially resolving the severe budget issues that currently exist.