MICRA, approved by California voters in 1974, limits noneconomic damage payouts in medical malpractice cases and has been the main reason medical liability insurance rates in the state are only in the middle of the pack nationally despite the state’s long-earned reputation as one of the most litigious in general. Focus-group research led trial lawyer advocates to tack on a provision prescribing drug testing for doctors to improve the measure’s chances [James Hay, San Diego Union-Tribune; Legal NewsLine and more; ABA Journal] Some predict that the impending lawyers-vs.-doctors battle, with various allies brought in on both sides, will be the most expensively fought ballot measure in history. Earlier coverage of MICRA here.
We refer of course to the practice of dispensing with liability insurance [Sheila Weller, Vanity Fair]:
The Diggers broached the idea of a free clinic to two doctors, and Dr. David E. Smith, who had lived in the Haight for years, volunteered. He signed a $300-a-month lease for a suite at Haight and Ashbury, rounded up volunteers who utilized all the samples of penicillin, tranquilizers, and other supplies from the hospitals at which they interned, and started a clinic to treat patients suffering from bad acid trips or venereal disease —- all with no malpractice insurance, “which was totally insane,” says Smith today. On June 7, 1967, the Haight Ashbury Free Medical Clinic opened for business with “a line around the block,” according to Smith.
More on the free clinic, one of the counterculture’s more celebrated innovations at the time, here and here; more on the practice of dispensing with liability coverage here, here, here, and here.
The “father of no-fault,” who died on Sunday at age 84, was an eminent torts professor at the University of Virginia, a public-spirited advocate of reform over many decades, and a renowned teacher. A valued friend and mentor, he was one of the most personally gracious and generous academics I’ve ever known. The New York Times has a good obituary. Just last year New Hampshire enacted an “early offers” statute encouraging prompt settlement of medical malpractice disputes partly inspired by Prof. O’Connell’s work. More: University of Virginia, Christopher Robinette/TortsProf.
“Several hospitals in New York City are eliminating or trimming malpractice insurance, and at least two of them have no further reserves to pay claims. Some hospitals in other cities, particularly jurisdictions known for large malpractice awards, are also going uninsured, the New York Times reports.” [ABA Journal]
What kind of medical liability market would emerge if courts decided to begin upholding freedom of contract? I take up that question — and explain some of my misgivings about efforts to portray today’s medical malpractice sector as somehow a free-market arrangement — at Cato at Liberty (& welcome Elie Mystal/Above the Law, GruntDoc, Ramesh Ponnuru readers).
Neurosurgeons in Cook and four other counties pay nearly $230,000 a year, obstetricians nearly $140,000, and general surgeons nearly $100,000. The legislature in Springfield had voted liability limits, but last year the Illinois Supreme Court, in a decision hailed by organized plaintiff’s lawyers but condemned as lawless by many others, struck down those limits. [Heather Perlberg, Medill]
“Let’s just charge more for auto insurance and homeowners insurance to keep the only two malpractice insurers in New York from going bankrupt.” [White Coat; Greg Davis, Crain's New York Business]
You may remember Professor Rodwin and I debating his paper on Point of Law; that debate has spilled over onto the pages of the November/December issue of Health Affairs, which published a short letter from me criticizing the Rodwin study and a muddying response from the authors:
Marc Rodwin and colleagues’ highly publicized conclusion that Massachusetts does not have a malpractice insurance crisis (May/Jun 08) is not supported by the data in their paper.
First, the sole finding supporting the conclusion, that malpractice insurance rates declined 1 percent from 1990 to 2005, is an artifact of the Simpson Paradox. Rates for low-risk doctors increased 14 percent; rates for high-risk doctors increased 45 percent. The mean decreased entirely because the mix of doctors changed, and the percentage of insured doctors with expensive high-risk policies declined substantially…
How many elective inguinal hernia repairs do you think a surgeon might have to perform to raise the money to pay his annual malpractice insurance bill? We’re not told which state he practices in or what kind of practice or community, only that he’s getting a relatively good deal on insurance because he has no outstanding suits.
Guess for yourself, and then go see whether ER Stories’ answer is higher or lower than you guessed (Dec. 7).
Coyote also points to this page, which magically promises simultaneously to reduce health premiums while requiring insurers to cover pre-existing conditions and doing lots of other generous stuff. Total discussion of medical liability issues consists of the following bullet point:
Prevent insurers from overcharging doctors for their malpractice insurance and invest in proven strategies to reduce preventable medical errors.
Yes, because suppressing current malpractice insurance rates by adopting artificially rosy premises as to future payouts worked out so well when tried in New York. Update Monday: transition yanks entire “Agenda”, this section and others.
A Health Affairs paper by Suffolk University Law Professor Marc Rodwin et al. has been generating a lot of press and blog attention for its claim that there is no medical malpractice crisis in Massachusetts. He and I have been debating the paper at Point of Law (Frank; Rodwin; Frank); as I show, that conclusion is highly suspect and seems divorced from the underlying data.
Bumrungrad International Hospital in Bangkok, Thailand, treated 58,000 American patients in 2005, and looks to treat 20 percent more this year. Why?
At Bumrungrad Hospital, [spokesman Ruben] Toral said, the lower cost of living is a major factor in the savings, but so are differences in how the medical system operates.
Doctors in Thailand pay about $5,000 a year for malpractice insurance, compared with more than $100,000 for some specialties in the United States.
Thai courts will adjudicate malpractice claims, but the largest award ever issued was about $100,000 and the law there doesn’t permit damages for pain and suffering.
(Mark Roth, “Surgery abroad an option for those with minimal health coverage,” Pittsburgh Post-Gazette, Sep. 10). Apparently the Thais haven’t heard the propaganda from the American trial bar that caps on non-economic damages don’t lower malpractice insurance premiums or medical expenses. And apparently, thousands of Americans prefer cheaper healthcare to the opportunity to recover pain-and-suffering damages: unfortunately, plaintiffs’ organizations fight very hard to ensure that American consumers don’t actually get that choice. (Via, of all places, Bizarro-Overlawyered, where one can almost see the smoke coming out of the ears of the posting blogger because of the “Does-Not-Compute” cognitive dissonance.)
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