Questions about Medical Malpractice

[Blue State Blues]

I'm trying to wrap my head around the President's speech and what it means that he singled out tort reform as a key part of solving the problem.

From talking to doctors, I have the impression that they pay a hefty portion of the fee they collect from patients to pay for Malpractice Insurance. Am I correct in understanding that this insurance is purchased in a for-profit market, perhaps from the same companies that sell Health Insurance?

Also, when it comes to court awards in malpractice suits, are the awards designed simply to punish the offense? Aren't they so high, because the people who award them are trying to predict the future health care costs of the victim of the malpractice -- often un-insurable thanks to the health condition caused by the malpractice?

If those points are right, (I'm really asking, it's not a rhetorical question), isn't the best way to control the costs of malpractice awards a system that guarantees continued care, a system where no one is un-insurable?

[no_hypocrisy]

1. Medical malpractice is a specialization of negligence.

A doctor is obligated to use reasonable medical procedures and diagnosis when treating any given patient, s/he fails to employ such measures, and the patient is injured or dies as a result of that failure. Translating the injury into dollars is where it gets complicated. You have the accountable amount of reimbursing for necessary medical treatment to remediate the injury and lost wages. Also added to the total can be "loss of consortium" which means loss of companionship to a spouse and/or a child. Future lost wages can be calculated as well, e.g., the arm of a child prodigy is disabled and that child was on his/her way to Juilliard. The pain and suffering and punitive damages are where the amount can go through the roof as both are subjective and depends upon the jury panel.

Insurance companies will not pay until there is a settlement or a judgment against the policyholder, the physician and/or the hospital.

[marybourg]

3. The Republiban position appears to be that

malpractice is rare and that most malpractice actions are "frivolous".

[no_hypocrisy]

5. If it's so rare, why is it standard operating (literally) procedure for

surgical prep to WRITE on the patient presurgery "THIS LEG" or the like to make sure the wrong leg isn't inadvertently amputated?

[marybourg]

9. Some years ago, before lung transplants were possible,

a woman in N.Y., at *the* top cancer hospital, had her good, non-cancerous lung removed, leaving her with the cancerous one. Maybe even the rebubliban would consider that one actual malpractice.

[heraldsquare]

2. Medmal insurance premiums are high due to the investing practices of the insurance

companies. that was the conclusion of a long article in the Wall Street Journal a few years ago and an academic study that came out in the last month or so. I'd find them for you but I don't have time right now. The standard for judging doctor's actions is pretty low, as someone said above, they have to have done something that no reasonable doctor would have done. So, they're not liable because they screwed up, but because they screwed up in a way that no one else would have screwed up.

[sharp_stick]

4. Medical Malpractice is hugely complex

issue and it's one that the Republicans like to use in part because it's so complicated. They can boil it down to one or two soundbytes and the morons repeat all day.

Malpractice insurance rates/premiums vary based on region and specialty before anything else is looked at. Some specialties, anasthesiology and OB/GYN come to mind right off the top of my head, have huge initial insurance premiums. In CT, many OB/GYNs who have never, yet, been sued must pay upwards of $200k/year for insurance. Doctors in these fields will be sued, it's just a matter of time. I know of one case about 15 years ago where an OB/GYN was sued because she got the sex of the baby wrong in the ultrasound. By no means are all cases this idiotic but getting rid of the ones that are is a good idea IMO.

I don't believe any health insurance companies are involved in MM insurance but it's been awhile since I've been involved in that so it may have changed.

Court awards in this country are also complicated with punitive damages often being many times the final predicted health care costs. Therefore, and ambulance chasers know this before they take their 85% of the final award, many, perhaps most insurance companies will go out of their way to pay off any claim well before facing a courtroom even frivolous ones.

Tort reform is any easy bone to throw to the pukes, it won't result in any meaningful savings in the grand scheme of things for health care like the pukes pretend it will.

[TreasonousBastard]

7. Obstetrics and pediatrics are particularly problematic because...

there isn't, or wasn't last time I looked, any limitation on the time for suit. Doctors are being sued for things that appear 10, even 20, years later, and insurance companies can't properly underwrite for a claims tail that long.

All practices have things that can go wrong, often when there are several possible actions, and if something does go wrong, a lawsuit is the likely outcome.

[johnaries]

12. Exactly. And look at the bone that he actually threw them.

So I'm proposing that we move forward on a range of ideas about how to put patient safety first and let doctors focus on practicing medicine. (Applause.) I know that the Bush administration considered authorizing demonstration projects in individual states to test these ideas. I think it's a good idea, and I'm directing my Secretary of Health and Human Services to move forward on this initiative today.

No promises on tort reform, just a promise to "test" some ideas.

Every report I've heard stated that currently malpractice costs are a little over 1%. It used to e much higher, and it's the older figures that Republicans like to throw out. So, what the "testing" Obama is doing will do is to prove that it's relatively insignificant.

[HereSince1628]

6. I believe there are "provider-owned" malpractice insurers

That is groups of medical care practicioners and entities with insurable risks, that work essentially as co-ops or mutual insurance groups.

From a geographical perspective I don't know how many of the states have these sorts of things. But I think that there are alternatives to the BIG insurers.

[Blue State Blues]

8. Thank you very much for the responses

Clearly it's an incredibly complicated issue.

So what think I'm hearing is that a large award means:

1 - gross negligence has been proved (not just an honest mistake, even an honest mistake with catastrophic consequences)
2 - consideration is being given to the victim (or survivors) for pain and suffering, grief, loss of income or potential income
3 - part of it is a punishment to the person who made the mistake, somewhat calculated by how negligent the mistake was
4 - by and large, the continued cost of care or some consideration for future medical expenses isn't a large part of the calculation of the award

If true, it doesn't really support my preconceptions, but hey, truth really is better than truthiness.

Thanks very much for the information.

[TreasonousBastard]

10. Malpractice is a specialty coverage sold by...

property/casualty companies. St. Paul used to be the big one, but things have changed in the years since I last looked. There have been attempts to run mutual libility pools, but not all were successful.

Premiums for all liability coverages are arrived at by a fairly simple formula-- take the last five years losses, add an inflation factor and something for profit and expenses, stir over low heat for a while, and you have a rate. Reinsurance costs and competition affect the rate, and the calculation of the losses can be tricky, but it's not rocket science. (I spent years underwriting other forms of liability insurance, so I do know something about this.)

From what I know about malpractice, it is expensive to defend claims, even though most of the suits are thrown out and the claims dropped. Lawyers and experts are called in, court expenses pile up, and often the company will pay a claim just to make it go away to save on ongoing costs and appeals. It's not that much different from other liability coverages, just more expensive than a typical slip and fall or auto case. Sometimes a lot more expensive.

There aren't that many huge awards, and the few that are huge are paid for by reinsurers, most of whom are based in London, so the companies themselves don't go bust writing a big check. That doesn't mean that they don't spend a bundle out of their own pockets on the trials and appeals, and reinsurers periodically get nasty about what they charge and the limits of their coverages, throwing everything out of balance for a while until the dust settles.

Awards are for medical costs, other monetary damages, and nonmonetary damages involving pain and suffering, quality of life, and other stuff that a good lawyer can convince a jury the plaintiff deserves. I don't know if punitive damges are big in malpractice suits. Really huge awards are often reduced on appeal.

After all this, there seem to be two key problems...

Some doctors are paying prohibitive premiums and it is affecting their practice.

Republicans just hate liability lawsuits on general principles. They don't want anyone or any company to be sued for anything. Preaching responsibility stops when you have to be responsible for something. Like in civil court.

What's the answer?

I don't have one for the high premiums. I suspect that the medical profession doing more policing of its own might be a good start, but insurance company claims and rating data is proprietary so no one knows what's happening there. More effort at mutual liability pools is probably the way to go.

As far as the attitude that juat about all lawsuits are trivial goes, it is just plain wrong. Access to the courts to address wrongs should not be restricted.

[TheKentuckian]

11. Republican solutions are always about nibbling around the edges

just like McCain screaming about earmarks all the time when they are a tiny part of the budget. This is the same deal, they of course have no evidence other than anecdotes that the issue is even a real one. I'm certain there may well be frivolous tests and whatnot but I'd guess those have as much and probably more with shysters gaming the system.

In any event most independent sources would say this is around a 1-3% issue rather than something could substantially reduce costs. They also fail to call for a look into the malpractice insurer's books to see what comes in and what is paid out because they want to protect those profits. What they want is to simply limit citizens ability to seek remedy within the system. They use extreme examples to justify limiting very legitimate awards.

This is totally a red herring with a small grain of stretched truth inside it.