Saturday, March 21, 2009
Kevin points to a post by Duncan Cross in which he opines that the trial lawyers take care of our patients interests better than we do:
Now I don’t think trial lawyers are saints, but here’s the thing: when faced with their own mistakes, doctors can no longer be trusted to act in their patients’ interests. Trial lawyers may be working from craven self-interest, but that self-interest is better aligned with patients’ interests on this problem.
I must disagree, their self-interest is better aligned with their client's interest. Before you become their client, they have to believe that they can win and get enough money to make it worth their while. How do I know? Because they themselves say so.
Allen: Even before we request records, Alice and I will sit down and evaluate the case. The first thing we need to assess is the dollar value of the damage. If there's no damage, then there's no case for us, no matter how badly the doctor may have screwed up. I could be more compassionate about it, but that's the real basis for our decision: You establish the damage first, then the liability.I also admit that physicians support tort reform out of "craven self interest". I do not enjoy paying an insurance premium higher than the average personal income in the U.S. But physicians also have concerns over access. If the only neurosurgeon within 100 miles gets sued enough and leaves, are the patients in that community better off or worse off? If liability concerns lead to closure of the maternity ward in a small-town hospital are those expectant mothers better off or worse off?
Burkin: Because of our time investment and costs, we really can't consider a case unless we can expect a payoff of at least $200,000 in damages, and even that's really not enough. If we end up taking the case to trial, we're probably going to spend $20,000 to $30,000 or more. So we have to make a business decision: Are the potential damages worth the time and expense we'll have to invest to win?
Q Isn't that a pretty cynical way to evaluate the claim of a badly injured patient?
Burkin: I'd say it's the only realistic way to do it, even though it's one of the sad things about the economics of this business. If the damage is, say, $50,000, that may be a big deal for many people, but it's not enough to make the case worthwhile for us. So we'll turn it down.
The commendable efforts that anesthesia made are also discussed in Dr. Cross' post.
I've discussed this before, and as per a commenter on my post:
I join the Journal in applauding our anesthesia colleagues in their success in increasing the safety of their profession. While reading the article yesterday, I was struck by the impression that the progress made was low hanging fruit; it describes that horrors that accompany esophageal intubation and then, voila, pulse-ox monitors and capnographs appeared, and now the problem has been virtually eliminated.
as well as Dr. Cross' post:
As it turns out, anesthesiology is well-suited to standardization. There are x number of drugs that can be administered to a person of y weight with a few variable multiplicands yielding a graph that one can pin on the wall as set standards. Much of medicine is not so simple.The results that have been achieved with anesthesia may not be transferable to other specialties. Your mileage may vary.
Labels: Physician/patient relations, Tort reform
|Friday, March 30, 2007
The Georgia General Assembly meets for 40 days each year. The 30th day is "crossover day". That is, to be considered for passage into law, a bill must clear one chamber by that day. The remainder will be shelved until next year. The so-called "super-speeder" bill SB 125 passed. The key provision is as follows:
(b) In addition to any other fines or penalties imposed by any local jurisdiction or the department, the department shall administer and collect fees for the following traffic offenses:(1) Any driver who is convicted of driving at a speed of 85 miles per hour or more on any road or highway in Georgia or 75 miles per hour or more on any two-lane road or highway in Georgia, as defined in Code Section 40-6-187, shall be classified as a 'super speeder,' and a fee of $200.00 shall be imposed;
(2) Any driver who has his or her driver´s license or driving privileges suspended pursuant to the provisions of subparagraph (c)(1)(B) of Code Section 40-5-57 or suspended for points pursuant to the provisions of Code Section 40-5-57.1 shall, upon application for reinstatement, be subject to a fee of $100.00.
(3) Any driver who has his or her driver´s license or driving privileges suspended in whole or in part for a conviction for any of the traffic violations listed in this paragraph shall, upon application for reinstatement, be subject to a fee of $200.00. For purposes of this paragraph, 'traffic violations' means a conviction for any of the following offenses:(A) Racing under Code Section 40-6-186;(B) Leaving the scene of an accident under Code Section 40-6-270; or(C) Fleeing from or attempting to elude a police officer under Code Section 40-6-395.
(4) Any driver who has his or her driver´s license or driving privileges suspended and the suspension is partially based on a conviction for any of the traffic violations listed in this paragraph shall, upon application for reinstatement, be subject to a fee of $300.00. For purposes of this paragraph, 'traffic violations' means a conviction for any of the following offenses:(A) Driving a commercial vehicle with a blood alcohol concentration of 0.04 percent or greater under Code Section 40-5-151;(B) Driving under the influence under Code Section 40-6-391;(C) Feticide by vehicle under Code Section 40-6-393.1;(D) Homicide by vehicle under Code Section 40-6-393; or(E) Serious injury by vehicle under Code Section 40-6-394.
(5) Any driver who has been declared a 'habitual violator' pursuant to Code Section 40-5-58 shall be subject to a fee of $300.00, payable upon application for a regular driver´s license. This paragraph shall not alter the fines and penalties due upon application for a probationary license as provided for in Code Section 40-5-58.
(6) Any driver who accumulates:(A) Seven to nine points under Code Section 40-5-57 shall be subject to a $100.00 fee;(B) Ten to twelve points under Code Section 40-5-57 shall be subject to a $125.00 fee; or(C) Thirteen to fourteen points under Code Section 40-5-57 shall be subject to a $200.00 fee.
To what grand cause will this go to?
(f) All fees collected under the provisions of this Code section shall be deposited in the general fund of this state with the intent that these moneys be used to fund a trauma care system in Georgia and the direct and indirect costs associated with the administration of this Code section. The Office of Treasury and Fiscal Services shall separately account for all of the moneys received under the provisions of this Code section."
The CON laws will remain as is for now.
HB 337, a bill that would have defined general surgery as a single specialty did not pass the House.
The bill discussed in this post, SB 286 did not pass the Senate, so it seems tort reform is safe for another year.
Labels: Georgia, Tort reform, Trauma System Development
|Wednesday, March 21, 2007
Be warned, an ill rant follows.
While no serious threat to tort reform is forthcoming from the Georgia General Assembly this year, some small efforts are being made. An article in today's Macon Telegraph tells the plight of one who is thought to be a "victim" of tort reform: State senators try to retool immunity to ER docs:
Families like the Fretwells seem to be forgotten in the annual turf war between doctors and lawyers in Georgia's Capitol about who should be protected from malpractice lawsuits.
Like others, Rodney and Sherry Fretwell paid scant attention to the state tort reforms approved two years ago, worrying instead about making their next house payment, keeping food on the table and making sure their two young daughters were happy and safe.
But they were soon confronted with one of the least-known provisions of the 2005 law, an obscure section that makes it nearly impossible for patients to win medical malpractice lawsuits against emergency room doctors. Now their story, and others, has prompted Georgia lawmakers to propose retooling the laws and make it easier for alleged malpractice victims to make their case in court.
It started in February of last year, when Sherry insisted that her 39-year-old husband go to the Columbus Medical Center's emergency room so doctors could treat a headache that wouldn't go away after four days and numbness on the left side of his body began to grow.
A doctor there told the burly builder that the problem was likely a pulled muscle, and sent him home with prescriptions for a muscle relaxer and blood pressure medicine.
Within a few hours, Fretwell said his left side was paralyzed. He rushed back to the hospital, but the same physician told him once more he suspected a pulled muscle and sent Fretwell home.
The next morning, he was back - this time, by ambulance. His vision had blurred and his vomiting grew worse overnight. After tests, doctors confirmed he had suffered a stroke.
A month later, the family sought out a lawyer to see if they could sue. They were told if the doctors had originally diagnosed a stroke, they could have treated him with medication to reduce its severity. But the lawyers also said the new state law gives emergency room almost complete immunity from malpractice lawsuits, making a lawsuit a long shot.
Were Mr. Fretwell's physicians negligent? I don't know.
Was Mr. Fretwell an candidate for thrombolysis? I don't know.
If he had received it, would it have made a difference? I don't know.
I also don't know the hospital or physician's side of the story. And unless a suit is filed, I never will. But becuase of privacy rules these allegations are out there and unchallenged. Did the reporter call the hospital for comment? While the hospital may have been unable to do so because of privacy regulations, the reporter could have done so in the interest of fairness. Why is that important? Because such tragic stories attract the attention of those in power:
That could soon change. A bipartisan group of lawmakers, including Republican Senate Majority Leader Tommie Williams, R-Lyons, and Democratic Senate Minority Leader Robert Brown, D-Macon, say they fear the provision goes too far. They back a measure that would scrap language requiring patients to prove emergency room doctors acted with "gross negligence" in malpractice cases, a standard that forces lawyers to prove they knowingly mistreated the patients.These same elected officials engage in some clever re-branding of the proposal:
The influential group's opposition to the changes is giving the proposal's supporters fits. Republican Sen. Seth Harp, the bill's sponsor, has taken to calling the measure "the physician's protection bill" to smooth over legislators who fear butting heads with the medical association.Now if that is the case, it's the first I've heard of it. This coming from the senator who voted for the bill because "I was beat, plain and simple. . . . There's no point in riding a dead horse." Who are these physicians who can't get coverage because of the "fuzzy" standard?
He says that the "gross negligent" standard is so fuzzy that malpractice insurers are refusing to cover some ER doctors.
"It's a misfortune," says Harp, a Republican from Midland, a few miles from where the Fretwell family lives. "They're not protecting physicians and we're trying to make sure they have that coverage." The legislation faces a series of hurdles before it reaches a vote, which is why Rodney Fretwell wants legislators to know his story.
The law not only affects EM physicians, but anyone who provides care under these circumstances. The relevant section of the law is as follows:
In an action involving a health care liability claim arising out of the provision of emergency medical care in a hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department, no physician or health care provider shall be held liable unless it is proven by clear and convincing evidence that the physician or health care provider´s actions showed gross negligence.Now what brought his article to my attention was this post at Peach Pundit in which the author states that "the legislature was intent on punishing GATL members than improving the conditions in the state."
I disgagree with that assumption. This provision was designed to soften the EMTALA trap. For those not in the medical field EMTALA stands for the Emergency Medical Treatment and Active Labor Act,or the largest unfunded mandate put forth by the federal government. The trap that requires physicians to provide emergency care to individuals without regard for the ability to pay. As my handful of readers know, EMTALA does not provide any shield of immunity for physicians. So physicians are forced to take on full liability, with no guarantee of payment.
Others have discussed the problems with EMTALA, and others have discussed the tax relief legislation that has been proposed. I myself am in favor of a system in which physicians providing care required by law under EMTALA are immunized like any other government physician.
Labels: EMTALA, Georgia, Tort reform
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