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And the Debate on the Proposed Medical Malpractice “Reform” Continues

Posted by Andrew J. Barovick | Mar 08, 2011 | 0 Comments

OK, friends. This has been a hot issue on my solo practitioner list serve, which found my recent response too long to digest.  So I've put it here, along with the post from Patrick to which I was responding.

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———- Forwarded message ———-
From: Andrew Barovick <[email protected]>
To: Patrick Begos <[email protected]>
Date: Wed, 9 Mar 2011 11:46:52 -0500
Subject: Re: [SOLOSEZ] Gov. Cuomo's Medicaid Redesign Team Accused of Ethical Violations
Hey Patrick,

Thanks for your response.  I disagree with you about eliminating mistakes.
Yes, there will never by care that is 100% free from mistakes. But the
frustrating thing for me is that when hospitals focus on improving patient
safety, huge strides have been made. If you look at the link in one of my
emails in this chain to the NY Presbyterian infant-related study, you'll see
what I mean. But unfortunately, very few hospitals and MDs take the same
approach, even though the upshot of what NY Presbyterian did is that in
addition to cutting medical errors astronomically, it reduced costs just as
much–because there were fewer claims made.

I also disagree with you about why extra tests are done. Yes, some MDs and
hospitals do it to cover themselves.  But many do it to pump up profits.
You would be surprised to see how many MDs own the CT/PET/x-ray facilities
to which they refer their patients. And that's the tip of the iceberg.  And
from a patient-safety standpoint, no patient ever got sicker, or died,
because he was sent for an extra test or two.

I think you have misunderstood my point of view. I believe that the best way
to reduce mistakes is to focus on patient safety.  That has been proven
effective in reducing error, and in reducing cost.  But since that continues
to be swept aside by most of the medical community, perhaps because of the
initial expense in implementation, MDs and hospitals must be held
accountable in a court of law, and the damages available must be substantial
enough to induce better practices on the part of the tortfeasors, and enough
to provide fair compensation to their victims.

Medical malpractice cases are expensive to litigate. You are correct that
many cases are not brought because the low damages at the end of the case,
assuming it is even won, make it financially unwise.  This is particularly
heartbreaking with the elderly.  A retired 85-year-old man could die in the
hospital because his attending MD was playing video games on his iPhone when
the patient's trach tube dislodged, resulting in painful suffocation.  But
most of my colleagues could not take that case on, because there is no “lost
wages” element of damages to be sought.  I think that is a horror, and needs
to be changed, perhaps by adding a new type of damages that look to the
suffering the family or friends had to endure as a result of the senseless
and medically unnecessary death. But in this environment, that is very
unlikely.

As for cases with less culpability, but greater damages, only an
inexperienced or foolhardy practitioner would take such a case today.  As
you know, medical malpractice cases are prohibitively expensive to invest in
now.   If you don't have complete confidence in the merits of your case, in
all areas–liability, causation and damages–you don't bring it.  That's why
the tort reformers' rhetoric about “frivolous lawsuits” and “jackpot
justice” is so unfounded.  No frivolous case will withstand scrutiny by the
insurance company lawyers defending it, and no insurance company will throw
money at a weak case just to make it go away.  And that is why caps on
damages of $250,000 is so misguided. If the claimant brought the case to
trial, and convinced a jury or judge of the negligent MD's malpractice, than
by definition the case was meritorious.  And yet, those deserving victims
will fall victim to the legislature's one-size-fits-all award process, which
will usually be insufficient, instead of benefitting from his or her
constitutional right to have a jury decide.

And though I used the term “evil” half-jokingly with regard to tort reform,
I promise you that if you google the term, and read about the movement's
origins, backers, and goals, you will be repulsed.

Andy Barovick

On Wed, Mar 9, 2011 at 11:09 AM, Patrick Begos < [email protected] > wrote:

> it's tough to avoid the conclusion that
>> proponents of tort reform are evil, and obsessed with limiting access to
>> the
>> courthouse.
>>
>
> Wow. Evil.
>
> I don't have a particular dog in this race, as I do not do PI or med mal
> work on either side. I think that anyone who is honest about the facts and
> reality can agree on at least 2 things:
>
> 1. Doctors and hospitals make mistakes, sometimes really bad ones,
> sometimes preventable ones.
> 2. Doctors and hospitals order lots of tests that have little or no medical
> purpose, but are done largely to avoid malpractice claims.
>
> Eliminating mistakes is never going to happen. Neither is eliminating
> unnecessary tests. And both of these things — “mistakes” and “unnecessary”
> — are often subjective, with reasonable minds differing.
>
> The problem with your point of view is that it appears to assume that the
> best way to reduce mistakes is to allow for substantial tort liability for
> non-monetary loss — ie, pain and suffering, loss of consortium, etc. That's
> certainly one view, but it seems a pretty blunt tool for improving the
> practice of medicine.  Plus, I don't think medical malpractice litigation
> polices or reforms anything. Med-mal cases are very expensive and difficult
> to litigate. So the vast majority of cases where there's honest-to-god
> negligence don't get brought because there are no “good” damages. How is
> that helping make medical practice better? And, by the same token, a case
> with less culpability, but greater damages, is more likely to be brought
> because of the economics of it. Further, by approaching medical negligence
> on a case-by-case basis, no one can see patterns, trends, etc. or deal with
> them.
>
> If I were designing a system from the ground up, I would take a page from
> ERISA. Congress decided to impose regulations to protect pensions (which had
> historically seen lots of defaults) and welfare benefits (life, health,
> disability insurance), and to encourage employers to offer benefits by,
> among other things, making them cheaper and more uniform. As a result of
> ERISA, millions of people have access to benefits that they wouldn't
> otherwise have. As a result of ERISA, resolving disputes over benefits is
> far cheaper than full-blown litigation. To be sure, there are some
> employees/claimants who do not get benefits because of ERISA's rules who
> might convince a jury that they were entitled to benefits. (It doesn't mean
> they were any more entitled; it means that reasonable minds might have
> differed over whether they were entitled). But for each person in that
> situation, there's 1, 10, 100 who got benefits that they wouldn't otherwise
> have gotten. Net result: positive. Individual result: could be negative.
>
> Quality of healthcare could benefit from the same treatment. Would anyone
> in this country object to healthcare that was both better and cheaper? But
> to do so, you have to cut into the notion that any individual who suffers a
> bad result is entitled to recover as much money as her lawyer can get and a
> jury will award. It is a classic case of advancing the collective good v.
> the individual good.
>
> One problem is that the tort reform debate is kind of like that infamous
> question that was asked of Dukakis, about whether he'd want to impose the
> death penalty on someone who killed his wife (or something like that).
> Dukakis f**ked up the answer, of course. The answer for most of the human
> race is that if you hurt my family, I will want to visit as much hurt on you
> as I possibly can. I'll pull the switch if they'll let me. But that personal
> reaction should never be the foundation for policy. Policy has to look at
> what's the best result for the largest number of people. Policy should be
> decided by people who don't have a horse in the race (as if that would ever
> happen). When a policy decision gets made, there are always going to be
> individuals who do worse than they would have without the new rules. Always.
> But the idea is that the benefits outweigh the losses.
>
> That notion is, IMO, missing from the tort reform debate.
>
> To be sure, there are people on the other side who's vision of tort reform
> is “just keep jury awards low and don't change anything else.” I don't like
> their position either.
>
> Patrick W. Begos
> Begos Horgan & Brown LLP
> Westport, CT and Bronxville, NY
> 203.226.9990
[email protected]
http://www.begoshorgan.com
>

About the Author

Andrew J. Barovick

Mr. Barovick is a graduate of Columbia College and Cardozo School of Law. He began his legal career at the Queens District Attorney’s Office, where he tried over 20 felonies to verdict, and argued an equal number of appeals before the Appellate Division, Second Department, the New York Court of Appeals and the United States Court of Appeals for the Second Circuit.

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REPRESENTATIVE VERDICTS & SETTLEMENTS:

$7.9 million dollars for infant client who suffered severe brain injuries due to post- delivery medical malpractice.

$500,000 wrongful death/medical malpractice settlement on behalf of patient brought to hospital emergency room with serious injuries who suffered complications while unmonitored and died.

$425,000 wrongful death/medical malpractice settlement during trial on behalf of senior hospital patient whose surgeon failed to timely address her worsening symptoms, resulting in her death.

$250,000 to young man whose physician failed to diagnose an impending torsion testicle, causing the loss of the affected testicle.

$200,000 to young mother whose OB/GYN failed to timely diagnose and treat her ectopic pregnancy, resulting in excruciating, long-term pain and the need for surgery to address the ectopic pregnancy once it was diagnosed.

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