“Tort reform” section of Reid health bill

by Walter Olson on December 19, 2009

A source on Capitol Hill who asks not to be identified writes:

The “tort reform” section of Senator Reid’s substitute amendment is not merely meaningless, but is actually a significant giveaway to the trial lawyers. It is essentially a 5-year, 50-million dollar grant program to encourage states to develop more plaintiff-friendly alternatives to the current medical liability system.

Section 10607 (p.344 of the Manager’s) establishes a 5-year grant program. The program is administered by the HHS Secretary (Sebelius), in consultation with a review panel. The review panel is structured to ensure that trial lawyers are amply represented, with seats specifically reserved for “patient advocates,” “attorneys with expertise in representing patients,” and “patient safety experts.”

Grantee states will merely be required to “develop an alternative to current tort litigation” that:

(A) allows for the resolution of disputes over injuries allegedly caused by health care providers or health care organizations; and

(B) promotes a reduction of health care errors by encouraging the collection and analysis of patient safety data related to disputes resolved under subparagraph (A) by organizations that engage in efforts to improve patient safety and the quality of health care.

Nothing about this language requires that the “alternative to litigation” decreases litigation costs. And many of the “patient safety” organizations who will collect data under subsection (B) will likely be trial lawyer ["consumer" or "patient-safety"] front groups…

The conditions tied to the grants ensure that the “alternative to litigation” established under the grants will, in practice, increase doctors’ liability and trial lawyers’ paydays. Most importantly, the grantee-State is required to “provide[] patients the ability to opt out of or voluntarily withdraw from participating in the alternative at any time and to pursue other options, including litigation, outside the alternative . . . .” If the plaintiff has a unilateral right, at any time, to pull out of the “alternative” and pursue litigation, then the “alternative” will only be used when the plaintiff’s lawyer believes that the “alternative” is more plaintiff-friendly than the litigation system.

The demonstration project also cannot “limit or curtail a patient’s existing legal rights, ability to file a claim in or access a State’s legal system, or otherwise abrogate a patient’s ability to file a medical malpractice claim.” This language means that damage caps and statute of limitations reforms would likely be off the table in any “alternative to litigation” established under the grants.

The closest that the bill comes to implying that these “reforms” reduce rather than increase litigation costs is by listing “encouraging the efficient resolution of disputes” and “improv[ing] access to liability insurance” among the goals that grantee-States are supposed to advance. But other goals include “increasing the availability” of dispute resolution, and “the disclosure of health care errors.”

In conclusion, Sen. Reid’s bill spends 50-million taxpayer dollars on a grant program run by trial lawyers for the benefit of trial lawyers. The money will be spent to establish “alternatives to litigation” that are even more lucrative for trial lawyers and costly for doctors than the current broken system.

More: Point of Law. And welcome Coyote, For What It’s Worth, Darleen Click/Protein Wisdom, TigerHawk, ShopFloor, Point of Law, Cultural Offering readers.

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{ 13 comments }

1 B.RAD 12.19.09 at 6:28 pm

I missed it, now who’s guarding the hen house?

2 sch 12.19.09 at 8:23 pm

In THEORY, a Patient Safety Organization (PSO) is a structure set up by the Patient Safety and Quality Improvement Act of 2005, designed to improve patient care by encouraging clinicians, hospitals and ‘other
healthcare organizations’ by conducting quality review and safety analyses. The act provides legal confidentiality and non-discoverability for activities of the PSO. The idea is to provide a legally isolated area where providers can reduce the risks and hazards associated with patient care. If the PSO act is subverted by occult
provisions in the health care reform act then PSOs are likely to die
neonatal death and continuous quality improvement will be made
harder.

3 Todd H. Rogers 12.19.09 at 8:46 pm

Section C-3, of subsection I(a-c, exception the second clause of I-b) with definitions found in “Definitions” as listed in paragraph two, shall read: “…all competent foxes shall be, upon demand, given reasonable access to protective hen dwellings to perform inspections and observe hens, and if necessary, conduct dining activities as deemed necessary by foxes.”

4 Andrew Barovick 12.19.09 at 9:43 pm

Asking not to be identified is not the mark of someone who wants to be taken seriously. Having said that, it is difficult to take the writer’s views seriously in any event, because he (or she) is apparently out of touch with the realities of our civil justice system.
How is developing “more plaintiff-friendly alternatives to the current medical liability system” meaningless? It sure isn’t very friendly to victims of medical negligence now. And the “one-size-fits-all” caps that the tort reformers love to trot out is only a small part of the difficulty for victims of medical error. In the current court system, victims of medical malpractice who don’t stand to recoup large damages at the end or their trial (assuming they are lucky enough to win, and the majority do not) will not be able to find a lawyer to take their case. This is because we “trial lawyers” must take such cases on a contingency fee basis, and have, of necessity, to invest our own money in the substantial costs of litigating such cases. Shelves of medical records, experts to review them to ascertain whether there is a provable case, depositions of often multiple witnesses, medical examinations of the client, at least one expert witness who is paid to review the records, and testify at trial–these costs often add up to tens of thousands of dollars. If the investment is more than a jury will award, or the insurance company will pay, no lawyer will take it on. Yet it is these victims who frequently contact my office, and those of my colleagues.
Somehow, you just don’t know how plaintiff-unfriendly the current system is until you have to tell the widow of the elderly man killed by clear medical error that you can’t take the case, because the system does not value the life of such a person (who is usually not working) enough to justify bringing a suit.
In fact, you can see the bias in the anonymous writer’s post by examining what he fails to rant about. The grant program he focuses on also:

(B) promotes a reduction of health care errors by encouraging the collection and analysis of patient safety data…to improve patient safety and the quality of health care.

Hmmm. That sounds like a pretty good idea. Is that part of the “significant giveaway to the trial lawyers” too? Or is the reduction in medical errors, and the improvement in patient safety, just not worth commentary by Anonymous?

The writer seems particularly perturbed that the project cannot “‘limit or curtail a patient’s existing legal rights, ability to file a claim in or access a State’s legal system, or otherwise abrogate a patient’s ability to file a medical malpractice claim.’” Why? Apparently, because the arbitrary limitation of damages, and statute of limitation “reforms” (he means “shortening,” so as to keep more malpractice victims out of the court house) would be “off the table” in any of the litigation alternatives envisioned under the grants. Not very friendly.

And Anonymous concludes with unabashed lies and propoganda. “Sen. Reid’s bill spends 50-million taxpayer dollars on a grant program run by trial lawyers for the benefit of trial lawyers.” Really? According to his own screed, it is being run by patient advocates, attorneys with expertise in representing patients, and patient safety experts. And though Anonymous has chosen to ignore it, one of the main purposes of the program is the reduction of medical error. That’s in everybody’s best interest, including Anonymous.

5 Bob 12.20.09 at 7:24 am

The problem with malpractice is malpractice itself. The Institute of Medicine says there are about 100,000 deaths a year from malpractice, but there are fewer than 20,000 malpractice payments annually for all causes, not just death. Obviously a lot of malpractice doesn’t lead to malpractice payments but still has costs to victims. An alternate system which fairly compensates all victims would undoubtedly drive way up since most victims aren’t being compensated now. To reduce malpractice costs and compensate all victims, we need to reduce malpractice itself; shifting the costs to victims — which is what the caps and “tort reform” does — isn’t the solution.

Over half of the money paid out for malpractice is attributable to 2 to 3% of physicians, who often have repeated malpractice payments and often also have no action against their licenses by state medical boards or against their clinical privileges by hospitals.

To reduce malpractice the medical profession and the state licensing boards need to take vigorous actions against the few bad doctors who cause the bulk of the problem, not make it difficult or impossible for injured patients to be compensated.

6 Eric H 12.20.09 at 8:58 am

To reduce malpractice the medical profession and the state licensing boards need to take vigorous actions against the few bad doctors who cause the bulk of the problem…”

Sure Bob. That seems pretty simple. We just get the foxes who are guarding that henhouse to forget to cover their own backsides while simultaneously forgetting about the trial lawyer foxes who are guarding this’n. Tell me, how much money do the 20,000 who do pursue claims actually see?

7 kimsch 12.20.09 at 12:23 pm

It seems to me that many of the “malpractice” claims and settlements are made for adverse outcomes rather than true malpractice. Many people in the United States seem to believe that they are entitled to compensation from somebody when anything bad happens.

You get sick and the doctor doesn’t make you well? Sue. You get sick, are prescribed a medication, suffer one of the side effects, say you weren’t told about it, sue.

Sometimes bad things happen. Sometimes medications that work perfectly well for patient A won’t work at all for patient B. That’s life.

8 B.RAD 12.20.09 at 12:59 pm

” In the current court system, victims of medical malpractice who don’t stand to recoup large damages at the end or their trial (assuming they are lucky enough to win, and the majority do not) will not be able to find a lawyer to take their case.”

“Somehow, you just don’t know how plaintiff-unfriendly the current system is until you have to tell the widow of the elderly man killed by clear medical error that you can’t take the case, because the system does not value the life of such a person (who is usually not working) enough to justify bringing a suit.”

It must be nice to be able to pick and choose which patient a lawyer will advocate for base on what’s in it for the lawyer. Hospitals sure don’t have that luxury. And there must be a lot of satisfaction in telling the family of patient who was injured or died as the result of true negligence that sorry, you can’t take the case because their loved one’s life was of low value. What a great “system” this is, a system invented by, propagated by and not soon to be abandoned by lawyers as long as this Vegas style lottery remains in place. And maybe the majority of cases don’t win in court because they were flimsy to begin with.

A more fair way to compensate harmed patients would be either bad outcome insurance or health courts. We already have other types of specialty courts. Judges or individuals specifically trained in medical issues would do a much better job in evaluating highly complex, nuanced medical malpractive cases than juries, who have to agree on issues when even experts cannot.

9 Michael Kirsch, M.D. 12.20.09 at 1:43 pm

Did you expect differently from Reid and his minions? I didn’t. These guys hate tort reform more than global warming. They are perfectly content to waste billions of dollars in defensive medicine. They shrug off the fact that the current system misses most patients who have been true victims of medical negligence. And, as far as it’s abusive effects on the medical profession? Who cares? See wwwMDWhistleblower.blogspot.com

10 Max Kennerly 12.20.09 at 3:16 pm

Silly me, I actually went and read the bill, and on those panels it also includes:

“(II) Health care providers and health care organizations” and “(III) Attorneys with expertise in representing patients and health care providers” and “(IV) Medical malpractice insurers.” Oh, the horror of including all stakeholders.

Saying that cost isn’t a factor is also flat-out wrong, since the plan’s effectiveness is measured by factors like “(C) the disposition of disputes and claims, including the length of time and estimated costs to all parties” and “(D) the medical liability environment.” Similarly, to receive a grant, states have to show how the plan “(E) improves access to liability insurance.”

But it’s not like your source on Capitol Hill could possibly be misrepresenting the bill in order to push an agenda or anything…

11 Ron Miller 12.21.09 at 1:55 pm

Lawyers can chose their clients and hospitals cannot choose their patients. Sounds like a good point for a millisecond after you hear it. Then you realize what an awful false dichotomy that is. Might as well say “doctors conduct a physical exam on arrival but lawyers don’t even bother to physically exam the patients” or “lawyers rehearse what they are going to say to a jury but don’t don’t even both to rehearse what the say to their sick patients.” Both comments are equally insightful as this “who can choose” nonsense.

Both sides – again, both sides – have a lot of cute lens to look at this issue that just ring false to common sense. They are intended to mislead.

12 Mike Bryant 12.24.09 at 10:17 pm

If your alternative is caps, you want to limit the most injured. That’s not justice. It protects the few doctors that do a majority of the bad medicine. The pilot program can look at Minnesota : Low premiums, low number of cases, and over all great care. The benefit at best is keeping things the way they are, which is a system that protects most consumer rights and stands up constitutionally. Have you written about the State’s Rights Amendment that Hutchinson offered on the constitutionality of the whole bill. Interesting how much the argument sounded familiar. This is no giveaway, except for those that will now be covered and others that will benefit from a funded Medicare system.

13 elmo 12.25.09 at 10:31 am

Bob:
re: “The Institute of Medicine says there are about 100,000 deaths a year from malpractice,…”

That is NOT what the 1999 IOM report stated. Why don’t you try actually READING the report instead of ATLA talking points. How about also actually READING the medical journals of the era to determine where the data for 44,000-98,000 (not “100,000″) deaths per year from medical error came from and how controversial it was (and is). How about actually READING other articles such as the 2001 JAMA paper “Estimating Hospital Deaths to Medical Errors: Preventability is in the Eye of the Reviewer” (JAMA. 2001;286(4):415-420),which concludes that previous interpretations of medical errors statisics are probably misleading. But that would actually involve becoming educated on the subject rather than ATLA (or the American Association for Truth, Justice, and the American Way, or whatever doubletalk name they now call themselves) talking points . A “fair” system is not the present in which dueling experts/lawyers paid by the defense/plantiff try to confuse the jury anymore than tort reform limitations that inhibt the truly injured from seeking compensation. A “fair” system would involve medical courts and require unbiased MD’s (serving the court) to review the data and determine if negligence occurred. Requirement to serve the court (for a fee) can be made as part of state licensing. A review system of reviewer MD’s can be set up to ensure fairness and impartiality. But this system would leave you out Bob with your 33%-50% cut. We both know you and your brethran will make sure it never happens.

PS: If you know ANYTHING about medicine you know that certain specialties (neurosurgery, OB) have a much higher chance of malpractice. Your statisitic is meaningless unless the 2-3% number analyzed by specialty. But then again that involves research and not ATLA talking points.

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