New York Personal Injury Law Blog » Medical Malpractice

 

March 1st, 2017

Republicans Move to Grant Immunity for Medical Malpractice

Yes, a real case. Yes, the x-ray hangs in my office.

Well, this comes as no surprise. With Republicans now controlling the Senate, House and White House, they have decided that they didn’t really mean what they said about states’ rights. And they didn’t really mean what they said about personal responsibility.

Out of the House of Representatives, courtesy of Rep. Steve King of Iowa, comes a bill (H.R. 1215) to grant immunity to doctors and hospitals if they negligently injury someone.

Given that 210,000 to 440,000 are estimated to die each year from medical malpractice  — a number that dwarfs the 30,000+ killed by guns — you should care about the subject.

Cynically named as a bill to “improve patient access to health care services” by “reducing the excessive burden the liability system,” the King bill slams an artificial cap on awards for pain and suffering at $250,000 in both federal and state cases, among many other things.

Did the hospital negligently operate on the good leg instead of the bad one? 250K.

Did you lose the good leg? The same 250K.

Did you also lose your previously bad leg because they operated on the wrong  one? The same 250K.

And it comes as no surprise to anyone that lawyers won’t actively jump at the chance to spend hundreds of hours and tens of thousands of dollars on a suit that is so artificially limited. Thus, de facto immunity for most pain and suffering causes of action from medical malpractice.

How does King go all federal on this, going deep into what is most often a state cause of action? By stating that it will apply to anyone that receives health care through a “federal program, subsidy, or tax benefit.” [Copy Of Bill] That means anyone who uses Medicaid, Medicare, veterans health plans or Obamacare.

And by “tax benefit,” it may mean anyone who has a deduction for healthcare of any kind.  Essentially, the idea is to make sure that no one, anywhere in the country, can ever bring a meaningful action for medical malpractice.

The losers in this, of course, are the patients and their families who have already been injured once. And the taxpayers, who are now forced to pick up the tab for the rest of the loss.

King’s bill is based on a faulty premise, that doctors and hospitals order unnecessary tests to protect against malpractice claims. This is the “defensive medicine” theory of why medical costs go up.

But that theory was tested in Texas, and found to fail. As I noted in 2011, the $250,000 Texas cap didn’t stop medical increases. In fact, costs went up faster in Texas than in states that didn’t have a cap.

While doctors may have saved money with fewer suits, and insurance companies may have made buckets more money, it didn’t stop health care costs from rising.

The Texas Experiment also was also supposed to bring more doctors to Texas and more to rural counties. It didn’t work.  Even noted tort reformer Ted Frank wrote, in 2012, that the data from Texas “substantially undermines the empirical case for the conventional wisdom that Texas’s 2003 reforms against medical malpractice lawsuits attracted more doctors to Texas.” Ouch.

Frank went on to conclude:

I, for one, am going to stop claiming that Texas tort reform increased doctor supply without better data demonstrating that.

The real kicker to the artificial caps, of course, is that the taxpayers then get saddled with the costs of the injured person instead of the ones that negligently caused the injury. That’s right, saddling the taxpayers with the costs is a form of socialism. And it is being promoted by alleged conservatives.

The myth that tort “reform” reduces costs was debunked awhile ago. As Steven Cohen noted in Forbes two years ago regarding additional studies, there was no reduction in the expensive tests from states with caps:

That myth was dispatched by the recent publication of a major study in the New England Journal of Medicine. A team of five doctors and public health experts found that tort reform measures passed in three states – specifically designed to insulate emergency room doctors from lawsuits — did nothing to reduce the number of expensive tests and procedures those ER doctors prescribed.

Cohen went on to summarize that none of the “expected” reductions in health care costs came to fruition:

This latest study follows numerous others that deflated other tort reform myths: that making it harder for victims to file medical malpractice lawsuits would reduce the number of “frivolous” suits that “clog the courts;” that imposing caps on the damages victims could receive would reign in “out of control” juries that were awarding lottery-size sums to plaintiffs; and that malpractice insurance premiums would fall, thereby reversing a doctor shortage caused by specialists “fleeing the profession.”

Trump is now on the bandwagon also, or at least whoever wrote this portion of his speech last night:

“Fourthly, we should implement legal reforms that protect patients and doctors from unnecessary costs that drive up the price of insurance — and work to bring down the artificially high price of drugs, and bring them down immediately.”

This oblique reference — Trump never deals in details — was presumably put there by his staff, as I know of no other Trump comment on the subject of medical malpractice.

But wait, there’s more! Tort “reform,” you see, has never saved a life. But has it ever killed anyone? Answer, yes!

I addressed that subject a few year back by pointing to plunging payouts at Columbia Presbyterian Hosptial / Cornell Weill Medical Center. A study found that “instituting a comprehensive obstetric patient safety program decreased compensation payments and sentinel events resulting in immediate and significant savings.”

How much did they save by instituting new safety procedures — in pure dollars and cents leaving aside the human misery of injury? “The 2009 compensation payment total constituted a 99.1% drop from the average 2003-2006 payments (from $27,591,610 to $ 250,000).”

You read that right: 99.1% drop. Based on a safety program, not tort “reform.”

Now if Congress wants to take away the incentive for safety, and just give immunity, you can expect continued deaths. The results should have been screamed from the rooftops:

Safety improvements = fewer malpractice payments and healthier patients.

Tort reform = more patient deaths.

Now let’s return to politics, shall we? I just want to close by asking conservatives a few questions, and do so with the knowledge that medical protectionism has already been a proven failure in reducing health care costs:

1. Do you believe in limited government?

2.  Is giving immunity your idea of limited government?

3.  Do you believe in states rights? Would federal tort “reform” legislation that limits the state-run civil justice systems run contrary to that concept?

4.  Do you believe in personal responsibility?

5.  Do you want to limit the responsibility of negligent parties and shift the burden to taxpayers?

6.  If you believe in having the taxpayers pay for injuries inflicted by others, how much extra in taxes are you willing to authorize to cover those costs?

7.  Is shifting the cost of injuries away from those responsible, and on to the general public, a form of socialism?

Elsewhere:

Congress Moves To Punish Anyone Using The ACA And Medicare (Doroshow @ Huffington Post), which lists other “features” of the bill

Statement of the Honorable John Conyers, Jr. In Opposition to H.R. 1215, the So-Called “Protecting Access to Care Act of 2017”

8 thoughts on “Republicans Move to Grant Immunity for Medical Malpractice

  1. Great post.

    “King’s bill is based on a faulty premise, that doctors and hospitals order unnecessary tests to protect against malpractice claims. This is the “defensive medicine” theory of why medical costs go up.”

    Unnecessary tests = Insurance/Medicare fraud

  2. “Well, this comes as no surprise. ”
    But for those of us on the side of reason, humanity, and truth (!).
    Yes! We are surprised! More fool we!
    But, you have built your case, as above, on FACTS!
    FACTS are not REAL. REAL is what we say is REAL. How can there be “malpractice” when all of the accused doctors have earned real medical DEGREES? How?

    This can only be the fault of the OBAMA!

    By the way, we have always been at war with Eastasia. This comes as no surprise.

    • There are two types of people injured, those who are working and have lost wages and those that don’t (generally – children, retired, seniors, out-of-work but looking).

      For those that work, they will only recover, in the best of circumstances, only a portion of their wages. And that may take many years. These folks go from being taxpayers to consumers of social services as the money dries up. The taxpayer bears the burden if the tortfeasor doesn’t.

      For those that don’t work, they will recover nothing in the lost wage department, and simply suffer loss. They too will spiral down toward poverty as they try to deal with their disability. They will consume public resources such as Medicaid and other social services programs that deal with poverty.

      Essentially, a major injury sends people in the direction of poverty. There is an economic cost to this both in the failure to pay taxes due to non-work and the consumption of tax resources. Pain and suffering damages partially offset that. But if these damages are stripped away, then you the taxpayer will pay the tab instead of the person/corporation that is actually responsible.

  3. I’m with you on the federalism irony — not that there is anything new about liberals and conservatives switching places on states’ rights when it suits their interests. But the “taxpayers pick up the tab” argument is thin. Taxpayers pay when public hospitals pay inflated settlements out of well-founded concern over what a jury might do. Taxpayers pay when insurance premiums go up to cover those settlements. And it is pain and suffering, ungrounded in anything but the jury’s sense of wrongdoing and punishment, that drives those settlements up.

    • Taxpayers pay when public hospitals pay inflated settlements out of well-founded concern over what a jury might do

      If the concern is well-founded, then it’s hard to argue a settlement is inflated.

      Taxpayers pay when insurance premiums go up to cover those settlements.

      As indicated in the piece, settlements drop when safety procedures are put in place:
      I addressed that subject a few year back by pointing to plunging payouts at Columbia Presbyterian Hosptial / Cornell Weill Medical Center. A study found that “instituting a comprehensive obstetric patient safety program decreased compensation payments and sentinel events resulting in immediate and significant savings.”

      And it is pain and suffering, ungrounded in anything but the jury’s sense of wrongdoing and punishment, that drives those settlements up.

      Actually, those jury verdicts are all subject to judicial review. So you not only have to convince the jury, but the judge and an appellate court. See:
      How New York Caps Personal Injury Damages

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