Honolulu Personal Injury Lawyer - Tort Reform

Isn't Tort Reform Only About Frivolous Cases?

Wayne Parsons — Sun, 25 Oct 2009 14:08:03 GMT

If you listen to doctors complain that they need protection from lawsuit abuse and that the real problem in health care reform is defensive medicine and lawsuits driving up the cost of health care, you get the impression that this isn't about terrible medical care and real injuries. Well, what do you think about a doctor removing the wrong ovary? A Kansas doctor did that a law in Kansas says that a woman who sued the doctor for the horrible mistake can't recover more that $250,000 for that lost ovary. Let's have a show of hands ladies: how much is your left ovary worth? Now, how about the husbands?

Scott Rothschild of the Lawrence Journal has been covering this story and reports on an upcoming battle at the Kansas Supreme Court:

Seven years ago, Amy Miller, Eudora, went in for surgery for removal of her right ovary. Lawrence physician Dr. Carolyn Johnson removed Miller’s left ovary by mistake.

Miller sued, alleging medical malpractice. The dispute will land this week before the Kansas Supreme Court with arguments scheduled for Thursday.

The case has drawn some of the state’s biggest special interests, with doctors, insurers and businesses lined up against plaintiff’s attorneys, organized labor and other groups in a battle over whether it’s constitutional to place a legal limit on damages for pain and suffering.

In 2006, a Douglas County jury returned a verdict for Miller for $759,680.

That award included $250,000 for noneconomic losses; $150,000 for future noneconomic losses; $84,680 for medical expenses; $100,000 for future medical expenses, and $175,000 for loss or impairment of services as a spouse. Noneconomic losses are awarded for pain, suffering, disability, mental anguish and physical disfigurement.

But then-District Court Judge Steve Six knocked the award down, striking the $150,000 for future noneconomic losses because of a law that states noneconomic damages can’t go above $250,000. Six also struck down the $100,000 for future medical expenses.

Miller’s attorneys say the $250,000 cap, approved by the Kansas Legislature in 1988, is unconstitutional.

The cap usurps the jury’s role in calculating malpractice damages, infringes on the separate powers of the courts and hurts those with the worst injuries, argued Lawrence attorney William Skepnek.

Dr. Johnson admits the error:

It's not disputed that Johnson accidentally removed Miller's left ovary instead of the right one on Oct. 18, 2002, when Miller came in for surgery to relieve severe pain on the right side of her pelvis.

"I thought it was the right ovary. I don't have an explanation for how that happened. : I made a mistake," Johnson testified Thursday in Douglas County District Court.

The argument made by Miller's attorneys is that “Among the broad universe of all medical malpractice victims, the cap imposes special burdens only on those in greatest need of relief through the civil justice system.”

They call this a wrong site surgery case:

Such mistakes are common nationwide but underreported, according to a September article in the medical journal Archives of Surgery. The authors estimated there are from 1,200 to 2,700 surgeries per year that involve the wrong site on the body, wrong procedure or wrong patient.

"Despite a significant number of cases, reporting of (the cases) is virtually nonexistent, with reports in the lay press far more common than reports in the medical literature," an abstract of the article states. "Wrong-side/wrong-site, wrong-procedure, and wrong-patient adverse events, although rare, are more common than health care providers and patients appreciate."

The Kansas Chamber of Commerce puts the Miller case into its one-size-fits-all cap on damages that protects the doctors overly sensitive egos and saves billions for a boated out-of-control insurance insurance industry. In a choice between health and money, the AMA and the Chamber of Commerce and the doctors put money first and an ovary second. Someone has to sacrifice and women have been doing it for years so why not an ovary to put a few more dollars into pockets of doctors and their insurers:

“In these difficult and uncertain economic times, opponents of statutory limits to noneconomic damages are challenging one of the most important pieces of the tort reforms that fueled Kansas’ economic growth,” the chamber said in a written brief to the court.

Dr. Johnson claims that the jury was wrong because although Dr. Johnson was negligent in removing the wrong ovary, it would have had to be removed anyway in the future.

Steve Lombardi of Des Moines, Iowa has written a six-part series on the legal aspects of wrong site surgery cases: Part I - Wrong Site Surgeries - The Board of Medicine - The Surgeon

What do you think? Is your ovary worth only $250,000.

Originally posted at InjuryBoard by Wayne Parsons

Most See That Legal Reforms Are The Wrong Idea

Wayne Parsons — Mon, 19 Oct 2009 15:00:05 GMT

In an op-ed in the Houston Chronicle (10/16), N. Alex Winslow, executive director of Texas Watch, wrote, "Lately we have heard a lot...about Texas-style, anti-patient laws as a solution to our nation's health care crisis. When insurance lobbyists rammed through legal changes that were designed to severely limit the legal rights of Texas patients in 2003, we heard high-falutin' rhetoric promising dramatic improvements in the cost, access, and quality of health care. If only it were as simple as that." But in fact, "Health care costs have risen dramatically in Texas; we rank near the bottom in per-capita physicians; rural and underserved areas continue to struggle to attract new physicians; and Texas has the nation's highest rate of uninsured." Rather than "shifting accountability from those who cause needless death and injury to individuals and the taxpayers," Winslow argues we should favor "creating real safety standards, forcing industries to be accountable for their decisions, and restoring our constitutional legal protections."

Goldfarb: Alternatives to damage caps exist. In the "Pundits Blog" at The Hill (10/16), Ronald Goldfarb wrote, "There is a way to deal with the escalating costs of medical malpractice insurance without interfering with patients' damage awards at trials in medical cases." Goldfarb argues that an expanded use of Mortality and Morbidity Conferences, "protected from the adversary process, which would inhibit its freewheeling nature, could prevent repeated misconduct and lead to settlements without trials." Goldfarb also favors the use of "pretrial non-binding mediation."

Commentators call for tort reform. In an op-ed in Investor's Business Daily (10/16), Joe Nixon of the Texas Public Policy Foundation wrote, "The Obama administration wants to spend $25 million to figure out best practices in tort reform. A better idea would be to save the money and just adopt what Texas did six years ago to solve its medical malpractice lawsuit overabundance," and embrace tort reform. "These common-sense reforms have led to a massive increase in the accessibility of health care in Texas, huge growth in the capital infrastructure of hospitals and clinics, hundreds of millions of dollars more each year in charity care and Texas' adding more than 16,000 new doctors in just six years. And in reducing the actual number of suits to those in which claims are meritorious - a recent Harvard study concluded that up to 85% of all lawsuits brought against medical providers were frivolous - we have created a more equitable system of justice."

In an op-ed in the National Review Online (10/19), Edwin Meese III and Hans A. von Spakovsky of the Heritage Foundation write that the health-care bill the Senate Finance Committee approved will not "bring down the high cost of health care, which is driven in large measure by abusive tort litigation." The authors argue, "Any federal action should encourage, or at least be consistent with, state medical-malpractice reform." They comment, "There is a reason for the pro–trial lawyer bias evident throughout the "reform" proposals: The top contributor to President Obama's presidential campaign was the legal industry, whose donations came to more than $43 million."

Originally posted at InjuryBoard by Wayne Parsons

Insurance Reform Because Of Insurance Abuse

Wayne Parsons — Wed, 14 Oct 2009 13:22:07 GMT

The insurance industry has more money than any other force in American politics and their right wing conservative media forces, led by Limbaugh and O'Reilly are geared up to blitz the public with screaming attacks on the public option and a veiled opposition to anything that Congress might do to loosen their grips on control of American politics. To all the Congressmen and women out there: don't cave in to these bullies. We have your back and we'll have your back in the next election. A vote for the public option is a vote for competition in business.

Big insurance is exempt from Anti-Trust laws. Why is that? Its the double standard and there is no greater perversion than the double standard, regardless of the subject. At least 65% of the American public want to stop the greed and call Big Insurance into the room for a good scolding, some quiet time and probation until, they pay for their sins. And 65% of the American public is capable of, and will, un-elect any Senator or U.S. House Representative who votes against the public option. We're taking names. We won't forget.

That's important. You see, the ONLY thing that an elected politician really thinks about when casting vote is "Could this vote get me UNELECTED?". Sixty-five percent of Americans can un-elect anyone in Congress and in the White House. elected officials: you've been given notice.

The insurance industry does nothing to address the 98,000 Americans who die each year do to avoidable medical errors. Big insurance doesn't want to talk about how their private health insurance plans routinely cut off medical care to sick people and put the money into huge executive bonuses and lavish partying on yachts. The doctors never talk about how to save some of those 98,000 lives each year. All the doctors want to talk about is money. Their money.

The public can see this and the public is getting angry. I write these Blog posts and doctors write in saying that the system is too adversarial. They complain about doing unnecessary tests. Well an unnecessary test can't accuse one of the 98,000 avoidable errors that are killing Americans each year? When I point that out to a doctor who writes a Comment, they never respond with any facts or information to say it ain't so. Of course they have nothing to say because they have no facts. Its all about their fancy houses and their European vacations. It isn't about health. That's sad.

The Salt Lake Tribune (10/13) editorialized that the recent CBO report "estimated that a package of medical malpractice reforms could save the federal budget about $41 billion in health care costs and increase federal tax revenues another $13 billion, both over a 10-year period." But "to put the numbers into perspective, the CBO estimates that the package of reforms it studied would reduce total national health care spending by about .5 percent (one-half of 1 percent). When it comes to health care, any reduction in rocketing costs is a good thing, but reforming malpractice law is hardly a panacea. The other side of the coin is that doctors and hospitals regularly kill people through their negligence." The goal "should be to reform the process without denying people who have been injured or killed their day in court and just compensation."

CBO Report On Tort Reform And Health Care Flawed

Tort Reform Has No Place In Health Care Reform

Budget Office Misquoted on MalPractice Reform - by Robert Blanchard

Or go to the Center For Justice & Democracy website for all of the true facts about insurance reform. Their site The Pop Tort is a cause that everyone should join if power to the people is something that you really care about.

Originally posted at InjuryBoard by Wayne Parsons

CBO Report On Tort Reform And Health Care Flawed

Wayne Parsons — Mon, 12 Oct 2009 16:42:37 GMT

Orin Hatch may have gotten the headline that his powerful insurance industry CFO's wanted but the headline isn't supported by the data in the latest CBO report on tort reform and health care. Supporters of both reform of of the private health insurance industry and preservation of our system of justice still maintain the high ground and are supported in their efforts by th facts. The "new math" that Orin Hatch got from this CBO report is a twisted analysis of marginal studies, confusing at best and flat wrong in many instances.

The fact remains as it was when I wrote Tort Reform Has No Place In Health Care Reform, on September 17, 2009, that we need insurance reform. This battle over single payer and a public plan is about insurance companies and their CEO's like those AIG Executives who gave themselves millions of dollars of bonuses with the bailout money from taxpayers.

It isn't about doctors or hospitals. It is about who pays for the treatment you need and who decides whether you need the treatment. Today those decisions are made by non-medical staffers at your health insurance company - if you can afford health insurance. They decide what tests you get and what treatments. If your doctor disagrees she or he is overruled by some perky adjuster at the insurance company with a degree in literature and not a clue about medicine. Inside the halls of the marble clad insurance buildings its all about money. Their motto?

"We accept your premiums and DENY your claims!"

I read the CBO Report and it doesn't support the headline about tort reform. Will major media read it critically? Will any of the journalists at the wall Street Journal actually dig into the report? Maybe. But I doubt that they will analyze it because to do so would force them to agree that the report doesn't say what it is advertised to say.

The Los Angeles Times (10/10, Hart), however, puts a different interpretation on the report, saying the analysis shows the savings would be "far lower than advocates have estimated," and would be "unlikely to cut healthcare spending significantly."

The Washington Post (10/10, Montgomery, 684K) reports Congressional Budget Office analysts said lawmakers "could save as much as $54 billion over the next decade by imposing an array of new limits on medical malpractice lawsuits -- 10 times more than previously estimated." In a letter to Sen. Orrin Hatch, CBO Director Douglas Elmendorf said new research "shows that legal reforms would not only lower malpractice insurance premiums for medical providers, but also would spur providers to save money by ordering fewer tests and procedures aimed primarily at defending their decisions in court."

Looking at the specifics of the CBO report, Joanne Doroshow of The Center For Justice & Democracy (CJ&D) exposes the strained logic and marginal supporting data:

More could die and be injured, yet the costs of newly injured are ignored. Inasmuch as these kinds of extreme “tort reform” would weaken the deterrent potential of the tort system, (which even CBO acknowledges but does not consider in its cost calculations), with accompanying increases in cost and physician utilization inherent in caring for newly maimed patients and for care which ultimately leads to more deaths, it seems responsible for CBO to make legitimate claims of potential savings until it knows those added costs.

Deaths. Shockingly, the report admits that “imposing limits on [the right to sue for damages] might be expected to have a negative impact on health outcomes,” yet brushes aside the significance of this not because it is untrue, but because it says there are too few studies on the topic. Yet of the three studies that do address the issue of mortality, CBO notes that one study finds such tort restrictions would lead to a .2 percent increase in the nation’s overall death rate. If true, that would be an additional 4,853 Americans killed every year by medical malpractice, or 48,250 Americans over the ten-year period CBO examines.

Injuries. Based on these same numbers, another 400,000 or more patients could be injured during the 10 years examined by CBO given that one in ten injured patients die as shown in a study of California hospitals cited in Tom Baker, The Medical Malpractice Myth, University of Chicago Press, 2005. The costs of errors, which the Institute of Medicine already puts at “$17 billion and $29 billion, of which health care costs represent over one-half,” would clearly increase. Consider, for example, that the average length of stay per hospitalization is around 4.4 days and the average cost per day in the hospital is around $2,000 per day per injury. Consider those costs on top of physician utilization inherent in caring for these new patients. And those costs do not consider lost contributions to the workforce and tax revenues for the most seriously injured who cannot work, or for those who have died.

Other studies not considered by CBO show the beneficial impact of lawsuits on health outcomes. For example, in one August 2009 study, researcher found that in 86 percent of obstetrical cases they examined, “improved health outcomes associated with medical malpractice pressure” led to cost-savings in the health sector and these cost-saving exceeded any marginal costs of defensive medicine, leading also to “an improvement in net social benefits rather than a decline, as should be the case for defensive medicine,” according to Praveen Dhankhar, Mahmud Khan, “Threat of Malpractice Lawsuit, Physician Behavior and Health Outcomes: A re-evaluation of practice of ‘Defensive Medicine’ in Obstetric Care,” Tulane University - Health System Management Area, August, 03 2009.

In a Blog at The Hill (10/9), Jeffrey Young wrote that the report "gave a notable boost...to backers of capping medical malpractice lawsuits." But "with a Democratic president and Democrats in control of Congress, passing any bill that would limit how much money patients can win in lawsuits against doctors is highly unlikely. Democrats contend it would be unfair to curb the rights of wronged patients to seek restitution." However "if Democrats do ignore the CBO's findings, they would also open themselves to Republican attacks that the party is beholden to its allies in the trial bar."

In the "Health Blog" at the Wall Street Journal (10/9), Jacob Goldstein noted that the CBO report said that it was unclear whether reducing liability would affect patients' health outcomes. The New York Post (10/10, Campanile) also covered the story.

Originally posted at InjuryBoard by Wayne Parsons

Do Private Health Insurance Practices Causes Decline In Health Care Quality?

Wayne Parsons — Sat, 10 Oct 2009 11:08:11 GMT

Science Daily reports on 09 October 2009 that "[t]he cost and quality of health care, as well as access to care and health outcomes, continue to vary widely among states, according to the Commonwealth Fund Commission " The Commonwealth Fund Commission is a private foundation working toward a high performance health system. This is it's second rating of the various states. In their report "Aiming Higher: Results from a State Scorecard on Health System Performance, 2009".

Leading states in the 2007 report still lead, disparities are great and the gap is widening. That means the quality of your health care depends on where you live in the United States. That's why we need national health care and a public option. I suspect that the driving factor in this is the insurance company denials of paying for quality and necessary treatment and tests. It isn't that we have too much health care in the form of rampant defensive medicine. Its that some adjuster at a big insurance company is denying a lot of patients and their doctors necessary treatment. This rationing of medical care by private health insurance companies is making America sick. The report confirms my support for a single payer public plan for health insurance, AND reform of insurance law and strict regulation of private insurance companies.

Since the beginning of the decade, insurance coverage in most states has been eroding for adults while increasing or holding steady for children. This divergence reflects the impact of federal action to expand coverage for children through the Children's Health Insurance Program (CHIP); rates of uninsured children in 2008 were the lowest since 1987. Nevertheless, high and rising rates of uninsured adults in many states underscore the need for comprehensive national reform to expand coverage in all states, and to further the gains made in Massachusetts, Vermont, and other states that have taken a lead in enacting reforms.

Private health insurance in the United States has failed. While the insurance industry is hugely profitable, the doctors are not being fairly reimbursed for treatments and the CFO's of the insurance companies are directing widespread denials of treatment to patients. Who are these insurance executives anyway? They aren't doctors so why can they make treatment decisions? It isn't defensive medicine that is a problem, its the money hungry insurance executives that are hurting people. Maybe they could use a good dose of lawsuit abuse.

While health insurance coverage for adults declined in a majority of states, the only improvements occurred when government support was implemented such as in health coverage for children. The Children's Health Insurance Program (CHIP).

A new bill signed into law by President Obama makes millions of children eligible to receive health insurance.

If your kids do not have health insurance, they are likely to be eligible, even if you are working and even if you have applied in the past and been turned down.

Your state (and every state) has its own program, with its own eligibility rules, but in many states, uninsured children 18 years old and younger, whose families earn up to $44,500 a year (for a family of four) are eligible for free or low-cost health insurance that pays for

Doctor visits, Dental care, Prescription medicines, Hospitalizations and much more.

Find out if your child qualifies.
Go to Your State's Program or make a free call to 1-877-KIDS-NOW.

Looking at overall health care in 2009, Vermont, Hawaii, Iowa, Minnesota, Maine, and New Hampshire lead the nation and these states set new standards on most indicators. Conversely, low states have declined in most areas.

"Leading states have raised the bar for better access, quality of care, and reducing disparities," said Commonwealth Fund Senior Vice President and study co-author Cathy Schoen. "Where you live in the U.S. matters in terms of your health care, and it shouldn't. These wide and persistent gaps among states highlight the need for national reforms and federal action to support states. National leadership has been critical for children– particularly for states with historically high rates of children uninsured— so we know that strong national efforts can make a real difference even in struggling states."

The sharp variation across states spans access, quality of care, costs, and lives. For example, rates of hospital readmissions (within 30 days of a previous hospital stay) among Medicare beneficiaries ranged from a high of 23 percent of hospital admissions in Nevada to a low of 13 percent in Oregon. The percent of adult diabetics getting recommended preventive care ranged from a low of 33 percent in Mississippi to a high of 67 percent in Minnesota as of 2006-07, a new high. On these and other measures, the lowest ranked states would have to improve 40 percent to 100 percent on average to achieve the performance of top ranking states.

Here's what would happen if the low states caught up:

Twenty-nine million more people would have health insurance—cutting the number of uninsured by more than half;

Nearly 78,000 fewer adults and children would die prematurely every year from conditions that could have been prevented with timely and effective health care;

Nine million more adults age 50 and older would receive recommended preventive care, and almost 800,000 more children would receive key vaccinations;

Five billion dollars could be saved annually by avoiding preventable hospital admissions and readmissions for vulnerable elderly and disabled residents.

It isn't all bad news. Most states improved in treatment for heart attack, heart failure, pneumonia, and prevention of surgical complications. And the lowest states have improved in some areas to what the average was in 2007. In addition, most states improved significantly in the quality of care in nursing homes (reductions in pressure sores, pain, and use of restraints) following a national effort to make that data publicly available. Wouldn't it be nice if the reason was that doctors and nurses made this improvement on their own? Why does it only happen when the poor quality is exposed to public view. lawsuits and news stories are the only tools that force change. That's why tort reform has no place in health care reform.

"The differences we see among the states translate to real lives and dollars," said Commonwealth Fund President Karen Davis. "If we can enact health reforms that give all states the opportunity to do as well as the best states we will save lives, improve quality, and cut costs. And, the good news is that these aren't pie in the sky goals—we know they are attainable because we see it happening in the states at the top of the pack."

Here are the declines in health insurance coverage from the private sector:

In 1999-2000 there were only two states with 23 percent or more of adults uninsured, by 2007-2008 there were nine. In 1999-2000, 22 states had less than 14 percent of adults uninsured; by 2007-2008 the number dropped to only 11 states. Children fared much better—due in large part to the CHIP program. The number of states with 16 percent or more of children uninsured dropped from nine to three between 1999-2000 and 2007-2008.

Gaps in coverage between states were particularly stark, with 32 percent of working-age adults uninsured in Texas compared to only 7 percent in Massachusetts as of 2007-2008. Several states stood out in terms of health insurance coverage expansions, as part of comprehensive reforms. Massachusetts, which had only begun to implement its universal health insurance program during the period covered by the State Scorecard, had the greatest increase in coverage for adults and gains in coverage for children. The reforms passed by Vermont in 2006 to cover the uninsured and establish a "blueprint for health" focused on preventing and controlling chronic disease are providing a new model for other states. And, Minnesota has achieved high rates of adult coverage and better preventive care through public–private collaboration.

The 2009 state scorecard includes 38 indicators grouped into five dimensions of performance—access, prevention/treatment quality, avoidable hospital use and costs, equity, and healthy lives. The analysis ranks states on each indicator and then averages the indicator ranks to determine the dimension rank. Dimension scores determine the overall rank. Equity measures the gaps in performance between vulnerable groups and the national average.

The Commonwealth Fund is a private foundation supporting independent research on health policy reform and a high performance health system.

Hawaii health care is at the top of this review and is an example of how to do things right. A separate report gives details of 7 top states and why they rank at the top: "Aiming Higher for Health System Performance: A Profile of Seven States That Perform Well on The Commonwealth Fund's 2009 State Scorecard".

Hawaii: An Early Quest for Coverage

Hawaii has one of the healthiest populations in the nation, as measured by the Commonwealth Fund’s
State Scorecard on Health System Performance, 2009 (Table 5). Compared with most states, fewer people in Hawaii smoke and are overweight or obese, and more people are engaged in regular physical activity, which is not a surprise given the state’s natural beauty and diverse geography. However, Hawaii also has its share of health-related challenges. For example, Hawaii has the highest incidence of breast cancer of all 50 states, but it also has the lowest death rates for breast cancer. How is that possible? Hawaii’s residents have excellent access to primary and preventive care, say the states health experts, and that reduces preventable mortality and enables early identification and management of chronic disease.

Hawaii also has had mandatory health insurance for all employees since 1974 and that system is singularly distinguishable across the country. If you wonder how our little states can afford this, it actually saves money because with everyone in the system the numbers make the insurance side of the system more efficient just like national health insurance reform would do in a single payer public plan.

Originally posted at InjuryBoard by Wayne Parsons

Study Links Post-Op Deaths to Hospital Response

Wayne Parsons — Fri, 09 Oct 2009 05:46:35 GMT

Would you go to a hospital if you saw that it had more surgical complications than average? Complications are bad _ right? Maybe you should re-think that decision.

A new study shows that the number of surgical complications is not as important as whether the Post-Op care is responsive to complications.

In a New York Times report, 84,730 patients who underwent surgery at 186 hospitals were analyzed:

The rate of deaths at the hospitals varied from 3.5 percent to 6.9 percent. But between hospitals with high and low death rates, there was only a slight difference in the number of complications, suggesting that the significant difference was in how the complications were handled.

The study appears in the New England Journal of Medicine.

The researchers reported that:

“A lot of current policies are focused on minimizing complications, and that’s helpful,” Dr. Ghaferi said, but added, “It really behooves us to look at what hospitals are doing once they encounter a complication with a patient in a post surgical setting.”

Look for a good hospital and look at their level of staffing. Many injuries suffered by surgical patients are not malpractice. They are unavoidable medical errors. At an understaffed hospital that does have the staffing or expertise to respond to post surgical situations is the patient's greatest risk. Read anything by Martine Ehrenclou and you will learn how to protect yourself or a loved one from injury or death.

See: America's Best Hospitals Rankings and Honor Roll 2009

Originally posted at InjuryBoard by Wayne Parsons

Defensive Medicine Health Care Case Study

Wayne Parsons — Sat, 03 Oct 2009 14:51:50 GMT

Does your doctor perform a lot of unnecessary tests when you go for a visit? Not mine. The typical situation is when I ask about getting tested for something that I saw on TV or read about and my doctor telling me that he doubts that my health insurer will pay for it. So I don't get the test despite the fact that I had information saying that people should be checked out for the condition. Sound familiar? I'll bet it does.

Let's look at a real case: Gustavo Espinal-Santos.

Gustavo died on January 1, 2004, after contracting blastomycosis, a fungal infection often transmitted through water or soil.

Gustavo went to the doctor at the Bellin Family Medical Center in Bonduel, Wisconsin in December 2003 complaining of illness and was seen by "physician assistants" (PA's) who concluded that Gustavo had pneumonia. The PA's failed to take x-rays or other basic tests that would have shown that the condition wasn't pneumonia and that Gusatvo actually had blastomycosis. It sure doesn't look like the folks at Bellin family Medical Center are wasting a lot of money and time - and driving up our health care costs - by practicing defensive medicine. Am I missing something?

And while we are looking at the poor harassed medical profession, can someone explain to me how tort reform would have saved Gustavo Espinal-Santos. I am sure that the insurance industry and the doctors who want to take away the rights of folks like Gustavo, after taking his life by not doing standard medical tests, can explain how eliminating patients' rights would have saved Gustavo. And of course if we can stop Gustavo's family from suing this health care provider I am sure that others like him will be saved in the future.

The death of Gustavo Espinal-Santos is exactly what I meant when I wrote the article last week: Tort Reform Has No Place In Health Care Reform By Wayne Parsons September 17, 2009 2:53 PM

Richard Ryman of the Green Bay Press Gazette reported on October 2, 2009 that a jury decided that the PA's at Bellin should have done more tests and found them guilty of being negligent. Should we feel sorry for the PAs or for Bellin? Is this case an outrage? Is it lawsuit abuse? Jackpot justice? What do you think? Here are the facts as reported by Richard Ryman.

Espinal-Santos wen to Bellin twice. He was admitted to St. Vincent Hospital on Dec. 23, 2003, and diagnosed with blastomycosis, but it was too late to save his life. The jury decided that
Bellin Health System and Dr. Peri Aldrich, who was responsible for overseeing the physician assistants, were negligent.

The jury verdict of $3.7 million will be reduced because of caps on damages in cases against doctors in Wisconsin. That means that Gustavo Espinal-Santos’ survivors including his wife, Maria Zavala McDaniel, and daughters Maria Espinal-Zavala, 10, and Anna Sophia Espinal, 5 will not receive what they are entitled to and the medical malpractice insurance company will have more money in their bank account. Is that what really matters: keeping the money in the bank accounts of insurance companies and going easy on sloppy medical practices that take away Maria's and Anna's father forever?

The good folks at Bellin Health issued a statement Friday on the verdict.

"Foremost, Bellin Health wishes to express our empathy to the Santos family. It is difficult any time you lose a family member. Bellin Health is obviously disappointed with the verdict and believes the care provided was appropriate and followed established medical protocols. We are now determining what, if any, other action will be taken in this matter. Out of respect for the privacy of the family, we will have no further public comment.”

The Wisconsin legislature deiced to take care of doctors who kill people with avoidable medical errors rather than the family of Gustavo Espinal-Santos.

Defensive medicine? What we need is for patients to be more defensive to protect themselves from doctors who don't do enough - or the right - tests. Because once you are dead their will not be an adequate remedy in the courts in Wisconsin. They want to do this in Hawaii. I hope our legislators know better than to fall for caps on damages in medical malpractice cases.

Take a look at this article debunking the defensive medicine myth:

Debunking the Myth on Defensive Medicine - By Cecelia Prewett June 16, 2009 12:30 PM

Does anyone out there actually think that doctors are practicing defensive medicine and ordering too many tests? Remember that the private health insurers won't even pay for necessary tests. This whole issue is another myth from the insurance industry. What we need is to remove the anti-trust exemption from insurance companies. Stay tuned because I am going to write on that subject next.

Originally posted at InjuryBoard by Wayne Parsons

Christopher Sanders Died From Medical Malpractice - His Mom Laurie Asks Doctors to Be Accountable

Wayne Parsons — Fri, 02 Oct 2009 12:17:18 GMT

In an op-ed in the Charlotte (NC) Observer (10/1), Laurie Sanders, who settled a medical negligence case arising from the death of her son, Christopher, wrote:

"Lobbyists for the medical and insurance industries tout 'malpractice reform' as an essential part of a health care bill," but "the reforms they seek would prevent injured patients and their families from discovering the truth and seeking redress in the courts."

Sanders comments:

"One of the lessons of Christopher's unnecessary death - and my necessary lawsuit - is not that health care providers need to engage in cost-inflating 'defensive medicine.' Instead, it is that doctors and nurses must pay attention, communicate with their colleagues and adhere to well-recognized standards of practice."

AAJ Report Debunks Defensive Medicine Myth - By Cecelia Prewett, September 30, 2009 3:05 PM.

Fact is however, that a 2008 report released by the Congressional Budget Office (CBO) notes that the evidence of “defensive medicine” “is not conclusive, and whether limits on malpractice torts have an impact on the practice of medicine has been subject to some debate.” And the Government Accountability Office (GAO) found that even “officials from AMA [American Medical Association] and several medical, hospital and nursing home associations…[said] that defensive medicine exists to some degree, but that it is difficult to measure.”

According to the Institute of Medicine, as many as 98,000 Americans die each year as a result of medical errors. The costs associated with these errors are thought to be as high as $29 billion annually. This does not include the number of patients, or associated costs, of those severely injured by preventable medical errors, but survive the trauma. Clouding the health care debate with myths and distortions, particularly about a malpractice system that makes up 0.3% of overall costs will do nothing to repair our nation’s ailing system.

I have written on this subject many times before: Tort Reform Has No Place In Health Care Reform, Posted by Wayne Parsons September 17, 2009 2:53 PM

Laurie Sanders speaks to all of the Senators and to the President when she concludes:

"To improve patient safety, doctors and hospitals must be accountable for their negligence. Enacting legislation that erodes patients' access to the courts will diminish the quality of care without reducing medical costs."

See the full AAJ Report with substantiated facts: “The Truth About ‘Defensive Medicine,’”

The public deserves all the Senators including ours here in Hawaii, Senator Inouye and Senator Akaka to fight for medical profession accountability for the 98,000 deaths each year from avoidable medical errors. President Obama should keep his promise to America and enact reform of the health insurance industry, not send Sen. Baucus to make back room deals that put a lie to one of the Presidents strongest campaign issues: taking on the insurance industry.

Originally posted at InjuryBoard by Wayne Parsons

Public Option Insurance Reform - Blind Medical Student Can See What Obama and Biden Can't

Wayne Parsons — Wed, 30 Sep 2009 03:05:50 GMT

Sorry but I have to say this.

The American public and the major media are showing their laziness and stupidity in the health - insurance - tort reform debate. If the subjects weren't so serious it would be funny. The public option is the only thing that will make health care honest. The health insurance industry has already destroyed the quality of our health care. They deny treatment, refuse to approve prescriptions, lower the doctor reimbursements to a level that degrade medical care and yet at these town hall meetings a bunch of screaming fanatics shout down the one thing that will restore health care in America: the public option.

I saw a Washington Post journalist say that he has no idea where the support for the town hall meetings or Obama hatred comes from. Read my Blog on this subject. There are over 100 right wing radical foundations and think tanks, working closely with Karl Rove and Grover Norquist to advance the interests of AIG insurance and the rich folks of the world, all at your expense.

The History Of Tort Reform - A Story of Corporate Greed And A Conspiracy Against Justice For The People by Wayne Parsons May 02, 2009 5:13 PM

Tort Reform Shows the Connection Between Big Insurance and the Republican Party by Wayne Parsons August 26, 2009 2:54 PM

Why? Because the insurance industry in total control and an "option" means that they will face "competition" if they try to screw you over. Simple. The American way. Why will no major media resource tell us this story? Check out my references and show me where I am wrong.

President Obama has turned his back on the real people, like his mother many years ago. He is caving in to the heavy weights in Washington, D.C. and his verbally feisty VP Biden is doing the same. The President is repeating his mistakes. He has confused lief at Punahou High School and Harvard Law School with being a true leader. I can say that. I contributed the legal maximum amount to their campaign last year.

Baucus and Reid and Polos and the President's team can't pass a Public Option for the health care bill. Why? Because insurance companies don't want it. So why are insurance companies calling the shots for this President of the people with the mandate and 75% of the people wanting a public option? Money. And money rules in the United States.

Read the following story from a blind medical student at Boston University. He speaks for all of us on this issue. Here is his voice:

It is time for our president to uphold his promises to those who elected him, not those with deeper pockets or shriller voices. If Mr. Obama wants to be "the last president to take on health care," we cannot let him compromise this opportunity away.

Editor's note: This is the campus perspective from our partners at UWire.com. Author Iyah ROM is a Boston University medical student.

Two years ago I had an accident-- I fell down a flight of stairs, landed on my head and as a result, am now legally blind. Why is this relevant? As a medical student, I had access to world-class care unlike most others.

That wasn't the case for Paul, a young man with diabetes I met shortly after my accident. He too lost his vision because-- like at least 46.3 million other Americans and 14,000 more each day-- he was uninsured and couldn't afford the insulin he so desperately needed.

And yet, as sad as this is to say, Paul may be relatively fortunate. A recent study in the American Journal of Public Health estimates that 45,000 Americans die each year simply because they lack health insurance.

We need reform. Desperately.

But in the two years since my accident, despite denying claims left and right, the insurance industry spent $16 million, drawn from premiums, on Congressional campaign contributions to fight health care reform legislation. This summer alone, they spent $1.4 million a day opposing reform through insidious and deceptive advertising and lobbying campaigns.

Insurance companies and the politicians who do their bidding, must be curtailed.

The potential loss of this monumental opportunity for meaningful health care reform poses a great threat to our generation.

But the purported goals of reform-- realizing universal access, "bending" the cost curve and improving quality-- have been obfuscated in Congress. And while these goals permeate President Barack Obama's rhetoric, his proposed plan lacks a robust public option truly open to all and the unapologetic regulatory framework necessary to eliminate malignant industry practices. Instead it contains individual mandates that will drive Americans into the arms of insurance companies-- which is just what they want!

Without real reform, premiums are projected to nearly double by 2020. I do not want to witness the 100th millionth uninsured person but I fear that the current legislation is inexorably wedded to maintaining the status quo. It would rest the future of health care on the free market that has already failed us.

As a national policy leader of the American Medical Student Association, I believe the best solution to our health care crisis is a unified, publicly financed, privately delivered system of guaranteed high quality health care for all. For this reason, I support Representative Anthony Weiner's (D-NY) single payer amendment.

At a minimum, a robust public option that is open to all and publicly financed must be incorporated into any health care reform legislation. Such a public-private hybrid is supported by 62.9 percent of physicians and 72 percent of Americans. The Commonwealth Fund estimates that this plan would save $3 trillion over 11 years. The public option currently in play in the House and the Senate will likely enroll less than five percent of Americans, and as such, will lack the power to be a major market force. "Reform" cannot perpetuate the status quo. Care must be more efficient and less costly. Outcomes must be improved and special interests made disinterested.

Every day, we see countless underinsured patients who are denied medically necessary care and who suffer preventable harm. Treatment decisions are too often driven by what's covered rather than what's necessary. The current system forces doctors to choose medications based on compensation-- not indication-- to anticipate a fight for each test or procedure, and, most disturbingly, to deny, or "ration," care based on ability to pay. As doctors we learn to game the system-- but in the process, we also feed its inefficiencies and drive the "cost curve" in the wrong direction.

We did not go to medical school to spend hours pleading with claims specialists for an ultrasound for a young mother with suspicious breast lumps, or for coverage of an essential, non-formulary drug for a hardworking father with multiple sclerosis.

We are trained in evidence-based medicine, not insurance-based medicine. We are not driven to don our white coats to tell a college student struggling with addiction that, "we're sorry, but your insurance only covers three days of in-patient substance abuse treatment; you have to go home now," knowing full well that she will likely return to substance abuse. We see patients discharged from the hospital just days after open-heart surgery, with nowhere to go, and nobody to care for them. It should not be a surprise to anyone that many such patients end up right back in the hospital.

And we certainly did not sign up to stand idly by, handcuffed by fragmentation, to watch people like Paul suffer unnecessary complications from preventable illnesses. Or to see people with costly conditions like another person I know, Jerome, 17, who have their coverage dumped for no apparent reason just when they need it most; Jerome has HIV.

Now is the time to push back. It is time for our president to uphold his promises to those who elected him, not those with deeper pockets or shriller voices. If Mr. Obama wants to be "the last president to take on health care," we cannot let him compromise this opportunity away.
The current proposals would undoubtedly have some marginal effect but would not suffice. We need a fundamental shift away from this failed structure.

All too often we hear our hopes for progress dismissed with a glib "can't happen." But as students and young professionals, we can, have, and will effect profound change. Let's ensure that the first steps to comprehensive reform, a strong public option, are not sacrificed. Our voices have the power to speak louder than the industries that have failed us, but we must act together and we must act now.

Ayah Romm is a medical student at Boston University. He sits on the Health Care for All Steering Campaign for the American Medical Student Association, and is also the Regional Director for New England (Region 1)

What do real doctors have to say to Iyah Romm?

Or tell me what you think about:

Tort Reform Has No Place In Health Care Reform by Wayne ParsonsSeptember 17, 2009 2:53 PM

Originally posted at InjuryBoard by Wayne Parsons

Is Congress Going To Get Rid Of All Of The Trial Attorneys With Tort Reform In Health Care?

Wayne Parsons — Fri, 25 Sep 2009 19:36:24 GMT

My story on the current health care and tort reform debate it became clear to me that nothing and no one in this country can stand up to the insurance industry. Not President Obama even with a majority in both the House and the Senate and a 75% public demand for the public option. You can see more detail on this in my stories:

Tort Reform Has No Place In Health Care Reform - By Wayne Parsons, September 17, 2009

Public Plan, Public Plan, Public Plan! - By Wayne Parsons, August 29, 2009

Tort Reform Shows the Connection Between Big Insurance and the Republican Party

Wayne Parsons, August 26, 2009

Now as I watch President Obama and Senator Baucus cave in to the force of insurance companies working behind the scenes, I realize that the country is held hostage and will not be free until the insurance industry is reformed. So I was particularly interested when the following message came in from Senator Patrick Leahy (D. VT) on insurance reform:

America’s health insurance companies have had a pretty sweet deal for decades.

They can pick and choose their customers and deny coverage to anyone with any sort of pre-existing condition -- evien acne. They can get away with dropping your coverage when you get sick.

And since 1945 they have been exempt from the antitrust regulations that apply to nearly every other industry, rules that protect consumers from anti-competitive business practices like price-fixing.

That’s why, as part of our broader health care reform effort, I just introduced legislation in the Senate to eliminate the outdated insurance industry antitrust exemption and force health insurance companies to compete fairly -- like virtually every other business in America.

Please e-mail your members of Congress today, urging them to support the Health Insurance Industry Antitrust Enforcement Act, S. 1681 and H.R. 3596.

Passing health care reform with an effective public option is one key way to promote competition in the health insurance marketplace, but we must also eliminate the unjustified and unnecessary antitrust exemption currently enjoyed by insurance companies.

A recent study found that one or two insurance giants dominate 94 percent of American health insurance markets, meaning every year consumers end up paying more money for less coverage.

When insurance companies know they don’t have to compete, they don’t. When they know they can get away with raising your premiums every year, they do. And when they know they can deny you coverage without consequence, they'll leave you high and dry.

The Health Insurance Industry Antitrust Enforcement Act, which I introduced in the Senate last week, is not the be all and end all of necessary reform, but it is a key way we can give consumers more choice in the health insurance marketplace.

Please e-mail your members of Congress today, urging them to support the Health Insurance Industry Antitrust Enforcement Act, S. 1681 and H.R. 3596.

It's time for the insurance industry to play by the same good-competition rules as nearly every other industry in America.

I’ve proposed similar legislation in the past, and Congress failed to pass it. So we must redouble our efforts this time around and urge Congress to support it as part of our broader health care reform efforts.

Thank you for emailing Congress today to support this important legislation.

Sincerely,

I also just read Politico, where American Association for Justice President Anthony Tarricone talks about the health care bill, tort reform and admits that this a way for Congress to “put trial lawyers out of business.”

Everyone knows that tort reform does not save money, does not provide health care for the uninsured, nor d ores tort reform improve health care. Tort reform eliminates claims by injured people. Those claims prevent medical errors, while less litigation results in more errors, injury and death. Here is what Mr. Tarricone has to say about the debate raging on out televisions across the country:

In the past few weeks, some pundits or talking heads have demanded to know, “What have the trial lawyers sacrificed to get health care passed?” But this isn’t about trial lawyers. It’s about patients, hurt through no fault of their own, left with debilitating injuries or worse. This bill is about health care, not bargaining away people’s legal rights.

....

But taking away people’s legal rights is the entirely wrong way to do it. That’s saying it is acceptable for 98,000 people to die every year, with thousands more injured, because of preventable medical errors. And that’s also saying it is OK to dictate what their lives are worth or whether they should have any recourse at all. Such a proposition is ridiculous.

The entire op-ed is certainly worth a read. Additionally, AAJ has prepared a wealth of materials related to medical negligence and the health care debate, which can be found here.

If you want to know the history of the insurance industry try to get rid of trial attorneys read my article The History Of Tort Reform - A Story of Corporate Greed And A Conspiracy Against Justice For The People - By Wayne Parsons, May 02, 2009 5:13 PM and follow the work that is cited there about The Commonweal Institute, Joanne Doroshow at Civil Justice & Democracy and The CALA Report.

The Attack on Trial Lawyers and Tort Law - The Commonweal Institute

THE CALA FILES: THE SECRET CAMPAIGN BY BIG TOBACCO AND OTHER MAJOR INDUSTRIES TO TAKE AWAY YOUR RIGHTS By Carl Deal and Joanne Doroshow

Originally posted at InjuryBoard by Wayne Parsons