Democrats cool to Obama’s offer to overhaul rules on malpractice

[Donnachaidh]

http://www.boston.com/news/nation/washington/articles/2011/02/03/democrats_cool_to_obamas_offer_to_overhaul_rules_on_malpractice/?om_rid=CZthPx&om_mid=_BNSqvAB8YLpEGK

President Obama’s offer to join hands with Republicans and “rein in frivolous lawsuits’’ by overhauling medical malpractice rules was among the key bipartisan bullet points in his State of the Union speech.

But the president’s proposal has mostly fallen flat with his allies in the Senate, including Senator Patrick Leahy, the chairman of the Judiciary Committee. It also potentially puts him at odds with the nation’s trial lawyers, a powerful constituency of the Democratic Party.

Despite his willingness to reach across the aisle, the president himself remains opposed to caps on malpractice damage awards, a central element of Republican proposals to change the rules, the White House said last week in the days after his speech.

Republicans have long argued that limiting civil damages will keep down the cost of malpractice insurance doctors must buy and reduce the likelihood that doctors will practice “defensive medicine,’’ the ordering of unnecessary and costly medical tests to hedge against negligence claims.

More at the link --

[vi5]

1. Good for the dems, but I get scared...

..whenever Obama or his people state that he "remains opposed" or "remains in favor of" because that usually means he ends up doing the complete opposite of what the statement implies.

[ck4829]

2. Funny how the article goes on to talk about how trial lawyers contribute to Dems, but...

never mentions the cost of medical malpractice lawsuits (Which comes to less than 3 percent of our total costs).

http://cherryhill.injuryboard.com/medical-malpractice/how-much-do-medical-malpractice-lawsuits-contribute-to-health-care-costs.aspx

[kenny blankenship]

3. Republican.

The evidence continues to mount and crowd out the Sun from the sky.

[azurnoir]

4. what constitutes a 'frivolous' lawsuit?

example this past Monday my son went for a 'well child check' as he is a couple of weeks shy of 14 his Dad accompanied him, during this visit my son was given 5 vaccinations he did not need, he was up to date on all of them, Dad told the nurse this but she said that according to their records he was behind on all of them, note these records are from 2002 clearly dated as such and my son's prekindergarten check up, our state requires that children be up to date on vaccinations to attend school, the kid is in 8th grade, simple logic would or should have led her question if nothing else was the kid still in school, she simply insisted that state law required they be given and did so wiith out signed consent from Dad

If I chose to sue this clinic (I'm not) would that be 'frivolous'? My son did not incur any harm as a result at least none that we have seen, I did file a complaint with the clinic director however

[vi5]

5. My son had back surgery...

and as such had to wear a padded brace on his head. Several times I asked the assorted doctors in the hospital to make sure the brace wasn't too tight on his head. They assured me it was not and just sort of dismissed my concerns and said not to mess with the brace.

Cut to 3 weeks later and against the doctors wishes we pulled some of the brace away to find that it was so tight that it embedded in his skull and rotted away the skin with an infection that went so far down as to expose his skull.

The only way for us to treat this was to apply wet bandages every morning and wait for them to dry and then painfully pull away the dry bandage and dead skin with it. We had to do this for 3 months before skin grew back and had to deal with him screaming in terror and pain every time we did it. And now he'll have 2 large spots where he will never have hair there again and just have 2 big silver dollar sized scars.

We're not suing the doctor because unfortunately he's one of the few that does this type of back surgery and it's a 10 year process with him. So if we do we won't be able to continue with this process.

But I also wonder...would people consider that frivolous? My son didn't die. But he was forced to endure daily excruciating pain for several months and will be physically and emotionally scarred for life. Would that be frivolous according to those who are in favor of this?

[azurnoir]

6. In your case definitely it would not be frivolous

and I might not have restraint you are showing under any circumstances, you did not say how old is your son is but still he has lasting damage

[vi5]

8. He is 4.....

He is going on operation #22 coming up. He was born with a whole host of assorted issues. So I have seen the medical system in this country from every angle, inside and out. Insurer's, doctors, hospitals, administration, nurses, nurse practicioners, physicians assistants.....you name it we've spent the past 4 years dealing with it. We've seen it at it's best and it's worst.

And what has pained us most is seeing just how different the care we've received because of our good insurance, our ability to pay for what we need, and our luxury to have the education, resources, understanding jobs and time to be able to research, call, harass, follow up, fight, care for, stay home with, make every appointment with, and just generally do what should be a full time job while also holding down full time jobs. The fact that people with conditions my sons level or worse get less care than he does simply because of who we are destroys us. We are not the type of people who can say "We've got ours". As such we've become fierce advocates for improvin the system, with whatever precious little time and/or money we have left over after we deal with everything he needs and everything our other child, his 9 year old sister needs.

It's why I get so angry about being lectured by anyone (on our side or the other side) about health care.

[Marr]

7. Aren't "frivolous" lawsuits tossed out already?

I would think that would be one of the functions of the... y'know... judicial system.

[WCGreen]

11. Yes, they are...

They should sanction the attorneys who insist on filing law suits without merit...

[Citizen Worker]

13. Yes, in most jurisdictions there are processes in place to seek a dismissal of frivolous legal

actions based on the evidence. And in most jurisdictions attorneys are duty bound to investigate their client's claims PRIOR to filing a lawsuit. Sanctions can be sought by the defendant when this step is not taken.

What so called tort reform is really about is limiting working class people's access to the legal system and defunding trial lawyers. Another aspect of tort reform is, loser pays. Imagine if you went to an attorney for a consultation and the attorney evaluated your case and said, you have an 80-90% chance of prevailing at trial but I must tell you that in the end we never know with certainty what a jury will do and you could lose. If you lose you will be required to pay the defendant's costs and fees and they could be in the neighborhood of $250,000. How many of us know a working class person who would be willing to mortgage their home, if they're lucky enough to still own one, on a 50-50 bet? No one that I know.

Capping medical malpractice jury awards is the proverbial slippery slope. Once that is accomplished the next step will be loser pays and the courthouse doors will slam shut for all but the well heeled.

[WCGreen]

14. You got that right...

with out the threat of legal redress coupled with the deregulation frenzy, the average Joe will not have any chance to address wrongs that are inflicted upon them.

[JoePhilly]

9. Its a non issue and this takes it off the table.

[vi5]

12. The ability to sue negligent doctors is a "non issue"?

Really? The ability for people to be compensated for irreversible damages and loss of life is a "non issue"?

Because I know some parents with dead children and some people without limbs due to malpractice in it's purest forms who would have suffered under the "reform" of malpractice damage caps and whose doctors would be able to continue practicing under these "reforms" who might disagree with you.

Maybe I'm not sure what you are referring to as a "non issue".

[JoePhilly]

17. No one will be stopped from bringing a lawsuit.

The GOP uses this as a red herring, and Obama is going to force them to be specific about it ... which they can't do because of the reasons you mention.

He is daring them to propose something specific, which they never do, on any issue.

[vi5]

18. From what that article said...

Malpractice reform means caps on what can be awarded for damages. And it says he's a fan of the one model which says (I'm paraphrasing from the article) that they gave the victims "sincere apologies" and promises that it won't happen again in the future.

Any malpractice reform which puts caps on damages and limits peoples awards and punishment of doctors is bullshit and no democrat in good conscience should support it or even feign support of it.

It's a dangerous game and one that we've lost in the past.

[JoePhilly]

19. Did you miss this part??

"He (Obama)did not detail how far he is willing to go with changes, but has said in the past he does not favor caps on damages."

That quote precedes all of the hand-wringing.

The line you misquote ... is this ...

"Far better would be a system in use at the University of Michigan, he said, which requires full disclosure to patients who have been injured, along with “a sincere apology,’’ an explanation on how the mistake would not be repeated on anyone else, as well as an offer of compensation. The program dramatically reduced litigation, he said."

If you read the paragraph that precedes this, you find that Obama did not say this. Here are the two prior paragraphs which indicate who actually took that position ...

"A serious national debate about medical liability reform is way overdue, said Dr. Alan Woodward, a past president of Massachusetts Medical Society and current vice chairman of the society’s committee on professional liability.

“The current system is profoundly dysfunctional,’’ he said, adding that courts are slow and inefficient — and often inequitable — to injured patients, and the liability system creates a “culture of fear’’ among doctors that drives up cost with defensive medicine."

Notice that Obama is not the speaker, it is some one named Dr. Alan Woodward.

The article them claims that Obama supported something "similar" in 2006 (along with Hillary Clinton). But the article does not go into any detail on that, or provide a link.

[vi5]

21. You're right.....

I was admittedly reading the article too quickly.

However, as I said in my first response to the original post, this has an all too familiar ring in the same way he "favored" the public option and how he "did not favor" the extension of the Bush tax cuts. Whenever he tries to pull this calling their bluff or "taking things off the table" strategy or pre-emptive strikes or whatever you want to call it, we end up giving up far more than we get.

I'm sure you'll disagree on that point and that's fine. But whenever he starts from a position of conceding as it appears he is doing now it never ends up well.

[Poboy]

10. Yet another hostile position of the 'Democratic' president attacking the people.

[spanone]

15. the only frivolous lawsuit is somebody else's lawsuit

who gets to decide what is frivolous?

to think that will lower rates is ridiculous.....when do insurance companies lower rates????? never.

[Tierra_y_Libertad]

16. But..but..doesn't the proposal have 578% approval among Democrats??

Not to mention 802% among Liberal Democrats??

[gratuitous]

20. Obama, as an attorney himself, should know a LOT better

In addition to the mischief noted above, and based on a few decades working in civil litigation, the "loser pays" idea has another added problem dimension. Say a family consults their local attorney, poor old Dad was turned into a vegetable or killed by some doctor's negligence. Checking into it, the attorney thinks it looks like a good case, the family hires him, and a suit is filed. Dad, of course, is not in a position to assist with his own case.

Well, as discovery goes on, and medical records are produced, the defense comes across some damning bit of medical history for Dad that he should have disclosed to his doctor. The doctor wasn't negligent at all! Under the current system, the defense attorney would notify the plaintiff's attorney, there might be a token settlement or nothing offered at all, and the case would go away. But now the defense has an incentive to drag the case out, ambush the family at trial with the forgotten medical record, run up its fees and costs, and make the loser pay. With that possibility looming over a malpractice lawsuit, who's going to roll those dice?

A doctor can be an absolute butcher, but unless there's an airtight case, nobody's going to mount a court challenge. Even then, with damages capped, it may not be worth it to pursue a case. While the medical profession has been doing a better job in the past decade or so of policing its own ranks, it's done so in part because of the potential financial cost an imcompetent doctor could impose on the malpractice carrier. Remove that consideration, and who, really, is going to police the profession and get the bad doctors out?