Thursday, June 10, 2004

Medical Malpractice Solution: Kill the Lawyers (and their families)

I wasn't sure if I was full awake or still dreaming this morning when I heard this story on NPR's Morning Edition about a proposal by Charleston, S.C., surgeon J. Chris Hawk III to the American Medical association to allow doctors not to treat trial attorneys or their families because they're angry about skyrocketing malpractice premiums.

Just to make sure I was actually awake I did a web search and lo and behold, it was actually true. (here, here, here) Happily, columnists are just as outraged as I am.
Among its whereases, the resolution suggests that "if trial attorneys were given the opportunity to experience the access problems caused by the professional liability crisis, then perhaps they would be willing to help change the system."

So, Hawk believes, the AMA should "notify physicians that, except in emergencies and except as otherwise required by law or other professional regulation, it is not unethical to refuse care to plaintiffs' attorneys and their spouses."

Forget about that Hippocratic oath.

Let's indulge in discrimination according to livelihood - not to mention guilt by marital association.
So how much truth is there to the accusation that frivolous lawsuits are causing high malpractice insurance premiums which are causing doctors to shut down their practices? Not much, according to independent experts as described in a recent article by Stephanie Mencimer in the Washington Monthly.
Even the respected General Accounting Office (GAO) has recently concluded that there's little evidence to back the striking doctors' main claim, which is that lawsuits are forcing many of them to abandon the practice of medicine or to avoid high-risk procedures. And while there's no doubt that malpractice insurance is getting more expensive across the board--about 30 to 40 percent, on average, during the last three years--this increase is largely due to the ailing stock market and poor business practices in a virtually unregulated industry. As a result, there's no reason to think that capping jury awards would bring premiums down, a fact the insurance industry itself acknowledges. Robert E. White Jr., president of First Professional Insurance Company, the leading medical malpractice insurer in Florida, told the Palm Beach Post in January, "No responsible insurer can cut its rates after a [medical malpractice] bill passes." The one surefire way to bring down the number of big-payout lawsuits is to reduce the number of those doctors who inspire most of them. But state medical boards--which are run by doctors--have been notoriously reluctant to aggressively police their own.
Following a particularly vicious campaign against trial lawyers in West Virginia, the Charleston Gazette conducted an investigation which came to a similar conclusion:
All in all, claims about a "lawsuit abuse crisis" proved remarkably effective in West Virginia--and resistant to contradictory evidence. In February 2001, responding to the doctors' allegations, the Charleston Gazette undertook a computer-assisted analysis of more than 2,000 medical malpractice claims reported to the West Virginia Board of Medicine. The paper determined that far from being in a state of crisis, West Virginia ranked 35th in the country for median malpractice payouts. The paper also found that both the number of malpractice claims and the dollar amounts of the settlements and verdicts had actually declined between 1993 and 2001. Nor was West Virginia suffering under an epidemic of "disappearing doctors." Last August, the Gazette's Messina attended a rally at which the West Virginia medical society set out 37 empty chairs labeled with the names of local doctors who supposedly had been forced out of practice because of insurance costs. He discovered that at least two of the doctors named were indeed not practicing--because they were dead. Another two were still actually treating Wheeling patients. A Public Citizen study of the state medical board records later found that the number of doctors in West Virginia increased by more than 350 between 1997 and 2002.
And as I reported in a posting about medical malpractice shenanigans, we find that insurance companies were forced to tell the truth when the Florida legislature put them under oath. Guess what? No frivolous lawsuits, no exodus of doctors, and no explosion of malpractice litigation. (And, oh yeah, they're making a profit.)

So what's the story? Basically, we have insurance companies who are raising their rates because they lost their shirts on bad stock market investments, combined with a well-coordinated right-wing strategy based on "an agenda that advocates an anti-government ideology that promotes privatization, deregulation, Social Darwinian competition and free markets as the solutions to all social problems." They want to weaken contraints on the conduct of corporations and limit the income of trail lawyers who (coincidentally) are, along with labor unions, one of the chief financial supporters of Democratic candidates.

And the ideologues and insurance companies have been successful in convincing doctors that the real bad guys are the greedy trial lawyers who are flooding the country with frivolous lawsuits. Mencimer tells of a bitter strike by physicians in West Virginia, calling for the legislature to cap non-economic damages in medical malpractice suits at $250,000.
The doctors' protests aren't about good policy. They're about good politics. Although the malpractice strikes look like a natural outgrowth of physician frustration, they are, in fact, the product of a sophisticated lobbying campaign coordinated by Republican operatives and underwritten by business groups with little interest in the practice of medicine. GOP leaders view malpractice lawsuits as a pivotal issue for the 2004 campaign. With health-care costs skyrocketing on its watch, the GOP is eager to shift blame onto the Democrats, who have long enjoyed greater public trust on the issue. And doctors, who enjoy great credibility among voters, are the key. By linking rising health-care costs to frivolous medical lawsuits, Republicans can use doctors as a cudgel against trial lawyers, the Democratic Party's second-largest funding base and one which could be paralyzed by lawsuit caps. Once bills to restrict malpractice lawsuits are on the table--in Congress and in the state legislatures--Republicans can slip in much broader legal relief for corporations under the guise of bringing down health-care costs, especially for senior citizens. Frank Galitski, a former Bush campaign staffer who works with the doctors as head of the Texas Alliance for Patient Access (TAPA), a coalition of insurance companies and health-care corporations, puts it bluntly: "This is a great issue for the president, particularly in the key battleground states of Pennsylvania, Michigan, Ohio, where they have an aging population." Indeed, if the experience in West Virginia is any indication, the GOP has found itself a winning formula.
The bottom line is that malpractice award limits have not slowed the rise in malpractice premiums. What will? Mencimer suggests experience rating to "reward better doctors and price those who attract the most lawsuits out of business rather than subsidizing them" and better regulation of health care to reduce the number of malpractice lawsuits simply by reducing the number of preventable medical injuries.

Why is stopping limits on medical malpractice awards and other tort "reform" so important? The regulatory process is all but broken and enforcement of workplace health & safety, environmental or consumer protections always wins the Congressional prize for "most likely to be cut." By reducing damage awards you destroy one of the last remaining incentives for companies and bad doctors to clean up their acts, and you remove the incentive for trial lawyers to take up the cause of people who have no money to hire an attorney (much less the high-priced talent that major corporations and business associations can hire.)

So without malpractice and large judgments against other forms of corporate malfeasance, what do we have left to strike fear into the hearts (and portfolios) of businesses that may not have the welfare and health of workers/consumers/patients/communities at heart?