February 17, 2011 by matray

side note: On the heels of Wisconsin, here's another new republican majority working to further the tortreform agenda. Should be an interesting process to watch. North Carolina lawmakers have begun what promises to be a long fight over medical malpractice laws as insurance and medical services companies square off against law firms. A Senate committee opened discussions Tuesday on legislation that includes limiting damages for pain and suffering to $250,000. Courts in other states have found such limits to be illegal. Georgia’s Supreme Court ruled unanimously last year that a $350,000 cap on non-economic damages was unconstitutional. A bill signed into law in 2007 capped monetary damages in negligence cases at $1 million, but only for those who agreed to go to binding arbitration. Few people have taken advantage of the option. continue reading

February 16, 2011 by matray

side note: No shocker here. None of the $250 million can be used for implementing damage caps (like the Republican HEALTH Act seeks), but the President is in favor of states implementing ideas like health courts. WASHINGTON (AP) - Putting his own stamp on a long-standing Republican priority, President Barack Obama is launching a drive to overhaul state medical malpractice laws and cut down on wasteful tests doctors perform because they fear lawsuits. Obama's budget calls for $250 million in Justice Department grants to help states rewrite their malpractice laws in line with recommendations that his bipartisan debt reduction commission issued last year. "I think the president is very serious about following up on this," Health and Human Services Secretary Kathleen Sebelius told the Senate Finance Committee on Tuesday. Her agency would advise the Justice Department on awarding the grants. Specific reforms the money could be used for exclude caps on jury awards that the American Medical Association and GOP lawmakers have pursued for years without success. But they do include measures unacceptable to trial lawyers, an interest group that contributes heavily to Democratic candidates. Topping the list of ideas in an Obama administration summary of the proposal are health courts. Specially trained judges — not juries — would decide malpractice cases, awarding compensation from a set schedule. Plaintiffs' lawyers say that would undermine the constitutional right to trial by jury. But proponents say it would bring predictability, resulting in lower malpractice insurance rates for doctors. "Health courts offer much more protection for fearful physicians than caps because you are unlikely to get a crazy verdict when you have an expert judge," said lawyer Philip Howard, founder of Common Good, a nonprofit group that advocates for changes in the legal system. The money Obama seeks could go far, he added, estimating it would cost $5 million to $7 million for a midsize state to set up health courts. Speaking for trial lawyers, Gibson Vance, president of the American Association for Justice, called the idea "bad policy and bad for patients." Obama's proposal also got a cool reception Tuesday from congressional Republicans, who feel he has a record of promising more on malpractice than he delivers. Obama first indicated an interest in the issue during the marathon debate over his health care law. But all that actually wound up in the law was $25 million in grants to study the problem and potential solutions. It's different this time, administration officials said. The new proposal calls for ten times more money, and the grants would be used to change laws, not conduct more studies. Nonetheless, House Republicans are moving ahead with legislation to impose caps on jury awards. The cost of defensive medicine is difficult to estimate, but conservative estimates start at around $50 billion a year. Obama's debt commission estimated its recommendations could save government programs $17 billion through 2020, calling for an aggressive effort to rewrite malpractice laws. Obama's budget, however, does not claim any savings from the new proposal. Other malpractice reforms that could be funded under Obama's grant proposal include: — Creating a legal defense for doctors, hospitals and other providers who follow guidelines for best clinical practices and use electronic medical records. So-called "safe harbor" laws establish the presumption that by adhering to high standards, doctors are not behaving in a negligent manner. — Programs that require hospitals and doctors to disclose mistakes early, offer an apology and compensation, and also agree to make changes to protect other patients from being harmed in the same way. If the patient's family still wants to go to court, the provider's apology could not be used as evidence of liability. Such programs have been shown to reduce litigation. continue reading

February 10, 2011 by matray

side note: Wow! Here is an interesting case where the Tea Party philosophy clashes with the Republican agenda. The HEALTH Act (proposed federal tort reform) was set to be "marked up" yesterday by the House Judicial Committee, but had to be postponed because Rep. Ted Poe (R-Texas), a member of the Tea Party Caucus, said that it did not pass Constitutional muster. From The Hill's Healthwatch blog: Tea Party divide sidetracks tort reform: Rep. Ted Poe (R-Texas), a member of the Tea Party Caucus, said a Republican member's bill that would impose a cap on medical malpractice damages violates the Constitution. The House Judiciary Committee delayed markup of the tort reform bill until next week to consider whether the legislation would clash with state constitutions that forbid medical malpractice caps. see The Hill's Healthwatch blog

February 7, 2011 by matray

side note: Here is the lead story in the February 2011 issue of Medical Liability Monitor. MLM is a must-read for those in the medical professional liability insurance industry. Wisconsin could be the best barometer of a reshaped political landscape following the Nov. 2, 2010, elections—the only state in the union where both legislative houses and the governor’s office flipped from Democratic to Republican control. Think of it as a petri dish of reclaimed conservative influence upon government. The day after his inauguration, newly minted Gov. Scott Walker convened the Wisconsin Legislature in a special session to discuss five bills intended to create a more business-friendly environment, one of which—the Health Care Quality Improvement Act (HCQI)—contains medical liability tort reforms. With a 19-14 majority in the Wisconsin Senate and a 60-38-1 edge in the Assembly, the state’s Republican legislators were able to quickly usher Gov. Walker’s agenda through with minimal difficulty. According to Walker, the liability reforms will discourage plaintiffs from filing frivolous claims, cap non-economic damages for medical malpractice, improve rules of evidence, protect best practices peer review information from being subpoenaed and raise the standards for qualifying expert testimony. “Improving our state’s legal climate is important to creating an environment that allows the private sector to create jobs,” Walker said. “The lawsuit reform package passed by the legislature will bring much needed reforms to our legal system, so we are no longer known as the ‘Alabama of the North.’” Much of the recently passed legislation is identical to reforms drafted in 2005 and ultimately vetoed by then-Gov. Jim Doyle, a Democrat. Those in Wisconsin’s Democratic Party and its usual allies contend that liability reform will not create a single job and will ultimately harm the state’s patients in the long run. Specific to their argument that the new legislation will actually harm Wisconsin patients is the section of the law that would prevent reports from state regulators that find problems at healthcare facilities as well as statements from employees of a healthcare provider from being admissable in court. “The people in our communities who make up the courtroom juries are the same people our elected officials entrust to elect them,” said Mike End, president of the Wisconsin Association for Justice, the largest voluntary statewide plaintiff bar in Wisconsin. “With this bill our elected officials are saying that they know best—not the people and the judge in the courtroom—when it comes to determining who is at fault and who can testify.” Proponents of the bill argue that the legislation will improve patient safety because one of the greatest challenges hospitals face is persuading doctors, nurses and other healthcare professionals to report errors. They assert that if these professionals know that an incident report will not be subpoenaed, they will be much more likely to report a medical error and provide information that could prevent future errors. “The Health Care Quality Improvement Act will put Wisconsin at the forefront of the patient safety and quality improvement movement, leading to better outcomes for patients and better healthcare value,” said Stephen F. Brenton, president and CEO of the Wisconsin Hospital Association. “Under the proposal, healthcare providers will be able to study and improve practices, and importantly, share what they learn with others without fear of those findings being used against them in a lawsuit. These changes will bolster the work of organizations, including the state’s regulatory agencies, that work to improve patient safety and healthcare quality.”

January 27, 2011 by matray

In his recent, Jan. 25, State of the Union address, President Barack Obama indicated that he is “willing to look at other ideas to bring down [healthcare] costs, including one that Republicans suggested last year: medical malpractice reform to rein in frivolous lawsuits.” Shortly after the State of the Union, the White House Office of the Press Secretary released further clarification on its website: “Building on the deficit reduction already passed through the Patient Protection & Affordable Care Act, the President said his budget will include further efforts to reduce the cost of healthcare,” according to the online statement. “As part of these efforts, the President pledged to work with Republicans to support state reforms of medical malpractice systems to bring down costs and improve care—building on Administration efforts already underway to assess what works in medical malpractice reform.” The Office of the Press Secretary’s indication that the President’s support of medical liability tort reform ends at “state reforms of medical malpractice systems” indicates he is unwilling to champion any measures at the federal level, placing him at odds with the HEALTH Act, tort reform legislation introduced a day prior in the House that carries a $250,000 federal cap on non-economic damages. Those in the know understand that any tort reform efforts ultimately supported by the executive branch are likely to be similar to those pilot programs funded in the Patient Protection & Affordable Care Act. As part of the Act, the Department of Health & Human Services distributed $25 million in grants to encourage states to experiment with ways to deter medical malpractice lawsuits. These demonstration projects, already underway in 21 states, have built on hospital programs in which doctors who make a mistake apologize early and try to negotiate a payment as well as screening systems in which states have formed panels of medical experts who must rule that patients’ complaints have merit before they may sue. The President has never supported caps on non-economic damages.

January 25, 2011 by matray

side note: I find this very interesting. In today's partisan political climate, can Sens. Daschle and Frist find common ground to the nation's healthcare ailments? Calling “constructive engagement on health reform vital to our nation’s future,” the Bipartisan Policy Center (BPC) launched its Health Project on Jan. 18, led by former Senate Majority Leaders Tom Daschle and Bill Frist as well as former Gov. Ted Strickland. “We know there remains a great political divide over the future of the healthcare system, but the need for substantive discussions and cooperation has never been greater,” said Sen. Daschle. “An economically sustainable health system is in our collective interest, and I look forward to working with the states to help them lead the way with health reform. If the states succeed, we as a nation will make significant progress.” The BPC will embark on a comprehensive review of the numerous challenges and opportunities confronting states as they deal with delivery, cost and coverage demands in their health systems. Through a series of private and public discussions, the BPC will engage state, federal, business and workforce leaders over the next year. “The emphasis on a strong, active state role is the most significant element of the new healthcare law, and moving forward we need to continue to create and implement solutions that work for state leaders,” said Sen. Frist, referring to the Patient Protection & Affordable Care Act. “While the law is not perfect, it is now the foundation upon which all future reform will be based. Working in close coordination with the states, our project will provide support as they make crucial and often difficult healthcare decisions. We must face our healthcare crisis, and I look forward to making real progress on these issues through this substantive and forward-leaning project.” The BPC Health Project is initially focusing on several key areas of concern: insurance exchanges; insurance reforms; and delivery system reforms, including health information technology, the health professional workforce, healthcare efficiency and medical malpractice reform. For each issue area, the BPC will identify and share best practices among the states and host roundtable discussions to facilitate a thoughtful, bipartisan dialogue among stakeholders at the state and federal level and in the industry and marketplace. “We will be collaborating together to target and highlight a range of solutions, not just one solution, to the many financing and delivery challenges facing the states,” said Gov. Strickland. “To ensure that we are responsive to and truly understand different state needs, our project will seek input and guidance from a broad group of both Republican and Democratic governors. The debate about healthcare reform is ongoing, but it is my hope that our effort will go beyond the rhetoric and deliver pragmatic, practical approaches that work.” Sens. Daschle and Frist as well as Gov. Strickland will lead the project with guidance from healthcare experts and project co-directors Sheila Burke and Chris Jennings. The BPC’s first healthcare project culminated in the release of a bipartisan blueprint for healthcare reform, Crossing Our Lines, by former Senate Majority Leaders Howard Baker, Tom Daschle and Bob Dole in June 2009. The Bipartisan Policy Center (BPC) is a non-profit organization that was established in 2007 by former Senate Majority Leaders Howard Baker, Tom Daschle, Bob Dole and George Mitchell to develop and promote solutions that can attract public support and political momentum in order to achieve real progress.

January 25, 2011 by matray

side note: While Ohio's closed medical professional liability claims experience an uptick in 2009, the total is still down 33 percent from the 5,051 claims that closed cataloged in the report's inaugural edition from 2005. The Ohio Department of Insurance recently issued its fifth annual Ohio Medical Professional Liability Closed Claim Report. Data collected from entities providing medical professional liability coverage to Ohio healthcare providers and healthcare facilities shows a total of 3,344 medical professional liability claims were closed in 2009. Claims that generated an indemnity payment averaged $322,158 per closed claim. Ohio law requires all entities that provide medical professional liability insurance in Ohio—including authorized insurers, surplus lines insurers, risk retention groups and self-insurers—to annually report closed claim data to the Department of Insurance. Claims are reported to the department and included in analysis based on the year in which they reach final outcome. The specific data filed by each reporting entity is confidential and is not subject to public record requests. The department is required to prepare an annual report summarizing the closed claims on a statewide basis. Some key findings in the report include:   • Total Closed Claims: A total of 3,344 closed claims were reported for 2009 by 99 entities. Authorized insurers reported the majority of the closed claims, 1,796. Self-insured entities reported 1,185 closed claims, surplus lines insurers reported 212 closed claims and risk retention groups reported 151 closed claims. For 2008, a total of 3,080 closed claims were reported.   • Indemnity Payments: Seventy-six percent of medical malpractice closed claims resulted in no payment to a claimant. A total of 2,542 closed claims had no indemnity payments while 802, or 24 percent, closed with an indemnity payment. The total amount paid to claimants was $258,370,436, an average of $322,158 per closed claim for those claims that generated an indemnity payment. Based on the combined data of all five years, approximately 22 percent of the closed claims generated an indemnity payment at an average of $287,931.  • Closed Claim Expenses: While most medical malpractice claims closed with no payments to claimants, almost all closed claims generated expenses for investigation and defense. These expenses totaled $107,739,769, an averageof $39,350 per closed claim. Based on the combined data for all five years, the average expenses per closed claim were $32,071.

January 24, 2011 by matray

side note: Here is an interesting wrinkle in the Kansas Supreme Court's hearing on the constitutionality of the state's cap on non-economic damages. It is quite unusual for a court to order a re-argument of a case before it. TOPEKA — In a rare move, a highly watched medical malpractice lawsuit will be re-argued before the Kansas Supreme Court. Chief Justice Lawton Nuss on Friday ordered re-arguments for 9 a.m. Feb. 18 in the case where a doctor removed the wrong ovary from a Eudora woman. The dispute is over a cap in damages to the woman and has pitted some of the state’s largest special interests against each other. The Supreme Court first heard arguments in the case in October 2009, and has not issued a decision. Since then, former Chief Justice Robert Davis died and has been replaced by Justice Nancy Moritz. It was also announced Friday that Justice Eric Rosen would recuse himself from the case, although no reason was given. He will be replaced by David Knudson, a retired judge from the Kansas Court of Appeals. Each side will be given 90 minutes before the court. Nuss has ordered that no further legal briefs will be allowed to be submitted. Already numerous interests have weighed in on the case. In 2002, Amy Miller went in for surgery to remove her right ovary. Dr. Carolyn Johnson removed her left ovary by mistake. Johnson continues to practice in Lawrence, working on the staff of the Kansas University Watkins Memorial Health Center. Miller sued for malpractice. In 2006, a Douglas County jury returned a verdict for Miller for $759,680. The award included $250,000 for noneconomic losses; $150,000 for future noneconomic losses; $84,680 for medical expenses; $100,000 for future medical expenses; and $175,000 for loss or impairment of services as a spouse. Noneconomic losses are awarded for pain, suffering, disability, mental anguish and physical disfigurement. But then-District Court Judge Steve Six reduced the award downward by striking the $150,000 for future noneconomic losses because of a law that states that noneconomic damages can’t go above $250,000. He also struck down the $100,000 for future medical expenses. Miller’s attorneys, supported by unions, claim the $250,000 cap violates a person’s constitutional right to trial by jury and infringes on the constitutional authority of the judiciary. remainder of article

January 19, 2011 by matray

side note: Here is some interesting tort refrom legislation winding its way through the New Jersey state assembly. With newly elected Gov. Chris Christie at the helm, I wouldn't be surprised to see this bill get renewed attention. A longstanding bill slowly making its way through the New Jersey legislature urges reform of tort laws that some say are forcing qualified physicians to leave the state. The legislation, Assembly Bill A-1982, aims to limit the ability of medical malpractice insurers to raise premiums on doctors unless they are actually found guilty of medical malpractice. Current law allows a physician's medical malpractice insurer to increase the cost of insurance coverage at the simple filing of a malpractice action; no finding of wrongdoing is actually required. This has many in the medical community—including representatives of the Medical Society of New Jersey, the New Jersey Chapter of the American College of Surgeons and the Monmouth-Ocean Medical Society—viewing the promise of increased insurance premiums as having a chilling effect upon the medical community throughout the state. Proponents of the law argue that giving physicians the opportunity to defend themselves against frivolous claims without suffering unwarranted consequences will raise the bar for health treatment for people across New Jersey by stopping the migration of some of New Jersey’s most highly qualified doctors to neighboring states with more doctor-friendly insurance practices. Supporters also point to the ever-increasing expenses associated with “defensive medicine” as inflating the cost of medical care for everyone, and they argue that the reforms proffered by A-1982 will help make treatment more affordable across the board.

January 17, 2011 by matray

side note: If you're looking for a silver lining to the economic downturn, a new report from Towers Watson indicates the economy has had a shrinking effect on our nation's tort costs. A decline in both real and nominal GDP, a rising unemployment rate and decreasing tort activity as a result of a lower level of economic activity helped drive tort costs down by 2.7 percent, or $6.8 billion, in the United States in 2009, according to the 2010 Update on U.S. Tort Cost Trends from global professional services company Towers Watson. In total, The U.S. tort system cost $248.1 billion in 2009, which translates to $808 per person, versus $838 per person in 2008. The 2010 report analyzes U.S. tort costs from 1950 through 2009, with projections through 2012. The drop-off in 2009 was most evident in commercial tort costs, as total tort costs from commercial lines decreased 5 percent from 2008 to 2009. At $152.7 billion, 2009 commercial tort costs were 11.9-percent lower than average commercial tort costs in the peak years 2004 and 2005. The decline in commercial tort costs offset modest gains in personal tort costs—torts alleged against individuals, excluding medical malpractice—which increased slightly from $94.2 billion in 2008 to $95.4 billion in 2009. “The lack of a robust economy contributed to a decrease in the opportunity for tort actions,” said Russ Sutter, Towers Watson consultant and author of the report. “This decline was most notable in the commercial auto line of business—perhaps the most economically sensitive coverage with a tort component—as insured commercial auto tort costs fell by 7.4 percent in 2009. “We had also anticipated a surge of directors and officers liability litigation in 2009, largely related to the credit crisis that began in 2008,” Sutter said. “However, the costs of this litigation are lower than we were expecting.” Further, overall economic growth in 2009 was minus-1.3 percent. As such, the ratio of tort costs to gross domestic product shrank in 2009, marking six consecutive years of a decline in the ratio. Since 1950, growth in tort costs has exceeded growth in GDP by an average of about two percentage points. Looking ahead to 2010, Towers Watson is forecasting a 9-percent increase in tort cost, primarily due to the BP Deepwater Horizon disaster in the Gulf of Mexico. Excluding the Gulf spill, however, Towers Watson estimates tort costs in 2010 to be fairly stable. “Automobile-related tort costs remain subdued due to the weak economy, and medical malpractice trends continue to be mild,” Sutter said. “We do, however, expect an uptick in the employee practices liability arena, with increasing disputes related to overtime compensation.” Towers Watson estimates growth in U.S. tort costs to range from 1 to 5 percent in 2011, with a midpoint of 3 percent, excluding the impact of the BP oil spill. A higher increase is seen for 2012, with a midpoint of 4 percent.