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To The Point Torts, gores and oxen Can new approaches ease the pain of medical suits? By Emanuel Levy The manifold assaults against the human condition through accident, negligence, ineptitude, carelessness and error usually find insurance an integral part of the formula to safeguard the assets of the culpable, while making as whole as possible those who are the victims. The concept has never been in doubt, but it’s simplistic when it ultimately comes to deciding the equity of whose ox has been gored. Insurance companies are the stakeholders and as such face the dilemma of determining not only the authenticity of the claim made against their doctor/medical facility insureds, but also the extent of the damages. While the system may not be cast in stone, it seems as close to that as any human endeavor can be, considering all the years that medical outcomes have faced legal challenge. Perhaps there is a less inimical way to refer to wrongful acts in the practice of medicine, but “medical malpractice” does have negative implications. How to separate medical error from undesirable outcome is often an insuperable dilemma. It is driven by life and death medical judgment calls, followed by emotional traumas and the implacable need to place blame. The trust that victims and families had invested in the system is breached, if not destroyed, when results fail to match expectations. Someone must pay for the consequences. The insurance and/or legal systems are in place to seek redress. Everyone is aware of what usually follows. The victim or the victim’s family look for legal advice and the machinery goes into drive. The medical practitioners tell their story to their own legal advisors, and both sides measure pros and cons based on the severity of the outcome, with the plaintiffs’ attorneys looking to make out the strongest possible case for errors and negligence, while the defense looks for justification and mitigation. There is anger, perhaps rage, on the victim’s side and resentment, often laced with denial of any medical error, on the other. The legal teams, more dispassionate, are examining battle plans, tactics, case law, and money. Speed is not necessarily a consideration, and ultimately there are meetings to discuss settlements. Under the best of circumstances, these discussions among the parties and their legal representatives may end in settlement, amicable or not. Trials are costly in dollars and anxiety, yet the end results may not be far apart. Errors and lawsuits abound It has been reported numerous times that mistakes of all kinds kill and maim multiple thousands of Americans every year, not only in hospitals, but also in doctors’ offices and other medical facilities. That means that legal challenges are not going to go away, no matter how the profession and the insurance industry characterize plaintiffs’ lawyers and lawsuits. So long as this condition persists, victims will pursue their legal rights and there will be lawyers to represent them. Currently some leading plaintiffs’ law firms have been saturating the TV screens in more than one language, calling public attention to the right to recover damages for any and all kinds of torts, including medical malpractice. They profess great skills in winning verdicts and settlements and sometimes insinuate that millions of dollars can be involved. How effective these ads are is not apparent, but in some respects they go too far and belie professional demeanor. Nevertheless, the marketplace is out there because life is full of mishaps, including those that result from the failure of doctors and hospitals to eradicate the multiplicity of deficiencies. It’s living in a dream world to expect that those suffering injuries, and the kin of those who die as a result of alleged medical error, will accept their fate without seeking redress. But that’s the purpose of insurance, as aptly described in the title of a long-ago history of the Chubb Group: “If There Were No Losses.” Mercola.com, which describes itself as “the world’s most visited and trusted natural health Web site,” in a recent commentary said that “if medical mistakes counted among the leading causes of death in America, they would be eighth.” The site, managed by its founder, Dr. Joseph Mercola, points to both deadly and “subtle” gaffes and refers to the recommendation by the Institute of Medicine, part of the National Academy of Sciences, for the creation of a federal Center for Patient Safety. The insurance industry has always been at the forefront of promoting safety, on the roads and highways, in the workplace, in electrical products and building construction, among many other endeavors. Perhaps it can contribute its outstanding expertise in the medical service area. Mercola.com included this suggestion in its commentary: “Since many doctors already feel beleaguered by financial constraints imposed on their care, insurers and health maintenance organizations must also bear the burden of improving safety.” The good news On the positive side, it was revealed at a recent symposium of the Professional Liability Underwriting Society (PLUS) (reported in more detail elsewhere in this issue of Rough Notes) that technological advancements in the medical field are revolutionizing the diagnosis and care of patients. The symposium was told that safety practices may ultimately lower medical malpractice and professional liability costs. Other positive advancements include methodologies to overcome the serious and sometimes fatal consequences of the misreading of prescriptions and the dispensing of pharmaceuticals. The insurance industry must also continue to resist the many meritless or overreaching malpractice and personal injury claims. According to an Associated Press wire story in May of this year, quoting from an analysis released by Harvard University, about 40% of medical malpractice cases filed in the United States are “groundless.” That’s unquestionably well below the actual number. According to the analysis, many of the lawsuits reviewed contained no evidence that a medical error was committed or that the patient suffered any injury. While the researchers found that the “vast majority” of these suits were dismissed, handling them added l5% to the cost of valid settlements and verdicts. In the view of many insurance sources, however, the future does not appear entirely bleak. I spoke with Dr. Richard E. Anderson, chairman and CEO of The Doctors Company, founded 30 years ago at the height of the medical malpractice crisis that drove some major standard insurers, the most recent being St. Paul, out of the business and created the doctor-owned insurers that now dominate the business. He said that tort reform is having a positive effect and that the country is seeing some decline in the number of lawsuits filed, even though there is an increase in severity of claims. His company has already reduced rates in Texas, which is one state that has enacted tort reform. Do recovery caps help? Tort reform includes a variety of factors, with a major one being the capping of recoveries for non-economic damages, that is, pain and suffering. The amount of legislative choice appears to be $250,000. As everyone is aware, the debate in state legislatures and in Congress is highly contentious, as is opinion on whether caps do indeed cause a reduction in rates. Dr. Anderson’s opinion has strong support from the industry at large and is buttressed by a study conducted by Professor Daniel P. Kessler, JD, Ph.D, of Stanford University. The study was funded by the Physician Insurers Association of America. One of the challenges centers on the dilemma of putting a dollar value on pain and suffering. Those in favor of caps, of course, point out that juries and courts are often unrealistic, awarding sums in the multi-millions. The result is increases in premiums for doctors, particularly in target specialties, such as obstetrics, that make coverage unaffordable, either forcing these specialists out of practice or causing them to leave their practice areas. While tort reform is not being touted as the only influence on rates, Dr. Anderson said it was instrumental in what happened in Texas. He said current rates appear adequate and that he does not see an upward trend. He also said that the attention being given to the quality of claims would have the effect of reducing the number of non-meritorious filings. He agreed that the use of “frivolous” to describe these claims was improper. But he pointed out that 80% of the claims filed against his company’s insureds were resolved without indemnity payments and with vindication for the doctor. A relatively recent program that aims at avoiding legal warfare is the imaginative brainchild of a group that calls itself “Sorry Works,” and it has succeeded in getting “I’m Sorry” laws passed in many states. The sponsor, a group of doctors, lawyers and patients, acknowledges that it is not easy to have doctors apologize, mostly for fear of dooming any defense in a suit. It’s like auto insurers that advise their policyholders never to admit fault. An editorial about a year ago in the Detroit Free Press noted that the sponsors believe that the “sorry” approach will induce more agreements to settle because most people sue out of anger, not greed, and an apology can defuse that anger. By September 2005, 18 states had passed such laws. The newspaper editorial said it hoped state legislatures would give the idea some consideration. It sounds like a great idea, albeit visionary. But there are so many good things happening on the medical risk management front, especially sincere efforts to eradicate medical and hospital errors and deficiencies, that the need to sue will be reduced to the least common denominator. Maybe that’s visionary, but why not? * The author |
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