Tuesday, September 22, 2009

New Ad Campaign Tells Congress to "Put Patients First"

For Immediate Release: September 22, 2009

Contact: Ray De Lorenzi, American Association for Justice
202-965-3500 x369
AAJ Press Room

New AAJ Ad Campaign Tells Congress: “Put Patients First”

Calls On Congress to Improve Health Care by Reducing 98,000 Annual Deaths from Preventable Medical Errors - Like Two 727s Crashing Every Day for an Entire Year

Washington, DC—The American Association for Justice (AAJ) today launched the first phase of a nationwide ad campaign to educate lawmakers about the epidemic of preventable medical errors and how tort law changes won’t lower costs or cover the uninsured. The ads are running in opinion-leading Washington publications and influential online news sites.

According to the Institute of Medicine, 98,000 people are killed annually by preventable medical errors. “That’s like two 737s crashing every day for a whole year,” says the ad, which will initially run in Beltway publications and web sites nationwide. The ad concludes by posing the rhetorical question, “Would we blame the passengers or the airlines?”

“Our health care system is clearly broken, and if we are serious about improving it, we need to fix preventable medical errors,” said AAJ President Anthony Tarricone. “This new ad campaign gives Congress 98,000 reasons why they should put patients’ health first – before the profits of insurance companies. If we work to improve our health care system and reduce medical errors – rather than strip people of their rights – there would be far fewer victims that need legal recourse.”

The ads are an extension of AAJ’s efforts to improve the nation’s health care system by addressing preventable medical errors instead of trying to take away long-established Constitutional rights.

The Government Accountability Office and Congressional Budget Office have both said taking away patients’ rights will not significantly lower health care costs and found no evidence of so-called “defensive medicine.” Nonetheless, the insurance industry, political opponents of reform and others members of the health care industrial complex have continued to use patients’ rights as bargaining chips during this debate.

“Americans deserve health care reform that will actually fix our broken system, not force them to give up their legal rights,” said Tarricone. “Let’s focus on preventing errors in the first place, not targeting those injured through no fault of their own.”

To learn more about AAJ’s ad campaign and the role of medical negligence in the health care debate, visit www.98000reasons.org.


As the world's largest trial bar, the American Association for Justice (formerly known as the Association of Trial Lawyers of America) works to make sure people have a fair chance to receive justice through the legal system when they are injured by the negligence or misconduct of others--even when it means taking on the most powerful corporations. Visit http://www.justice.org.

Caps undermine accountability and don’t deliver cost savings.

GTLA member and Communications Committee Chairman Andy Childers wrote the following piece appearing in the AJC today:

Caps undermine accountability and don’t deliver cost savings.

By C. Andrew Childers

We’ve been told for so long that lawsuits and large jury verdicts are the reason for our excessive health care costs that, despite the absence of any factual basis for such an allegation, some still think it’s true.

Supporters of so-called tort reform claim that the threat of lawsuits forces doctors to order unnecessary or excessive tests and procedures to protect themselves — a phenomenon they call “defensive medicine.”

In reality, both the Congressional Budget Office and the Government Accountability Office under President George W. Bush cast serious doubts as to whether defensive medicine even exists.

The town of McAllen, Texas, may illustrate this point best, as it is the home of the most expensive health care in the nation. Despite having caps on damages an injured victim may recover, doctors in McAllen still routinely order excessive testing and procedures. They don’t do so out of fear of lawsuits — Texas law already immunizes them.

They do so because the fee-for-service structure set up by the health insurance industry actually encourages doctors to order them. The more tests and procedures doctors perform, the more they get paid. After Texas capped damages, allowing negligent doctors to harm patients without the fear of lawsuits, the number of medical malpractice complaints to the Texas State Medical Board actually rose from 2,942 to 6,000 in just one year.

During the debate over reforming our health care system, tort reform — and more specifically, caps on damages a victim may recover no matter how badly he or she is injured — has been slyly added to the mix by the those out to derail health care reform at any cost. The facts prove that placing arbitrary limits on medical negligence verdicts would have little or no impact on the overall costs of health care.

The New England Journal of Medicine published a study concluding that “portraits of a malpractice system that is stricken with frivolous litigation are overblown.” The National Bureau of Economic Research found that tort reform laws do not avert physician shortages nor do they lead to better patient care.

Data from the American Medical Association shows that the number of practicing physicians has actually been increasing across the board for many years. And the number of physicians is significantly higher in states without caps on damages.

In most states, malpractice premiums have continued to go up, while the number of malpractice claims filed has remained stable or has gone down. Less than 1 percent of all civil cases are malpractice cases, and 48 states already have malpractice limits. And yet, the cost of health care continues to skyrocket.

In the U.S., preventable medical errors are the leading cause of accidental death — and the sixth leading cause of death. A study by the Institute of Medicine found that 98,000 Americans die each year as a result of this preventable negligence. Just 6 percent of doctors are responsible for nearly 60 percent of negligent care — and the courts are the only effective means of holding them accountable. But capping damages a victim may recover undermines this accountability.

Our forefathers devised a fair and just way for citizens to seek justice when someone harms them — through a trial before a jury. They didn’t believe that government should predetermine the outcome of a trial by limiting how juries assess individual cases. Taking away patient rights — by capping damages and limiting their 7th Amendment right to trial by jury — does not improve the quality of our health care system or produce cost savings. Health care reform should be about making sure that every American has access to quality, low-cost health care, not about limiting the constitutional rights of innocent patients harmed by preventable medical negligence.

C. Andrew Childers, an attorney with Childers & Schlueter, is a member of the Georgia Trial Lawyers Association.

Editorial in the Marietta Daily Journal

Joe Kirby, Editorial Page Editor of the Marietta Daily Journal pens a great column:

No Miracle Cure
by Joe Kirby
September 20, 2009 01:00 AM

Let's say you go to the doctor or surgeon for what is supposed to be a routine procedure, like a colonoscopy or facelift. But thanks to the doctor's or hospital's negligence or ineptitude, the outcome is anything but routine. For a Marietta woman whose case was heard last week by the Georgia Supreme Court, the outcome was horribly disfiguring facial scars - scars so severe her lawyers describe the photographs of them as too gruesome for public distribution.

"Too bad," say tort reform-minded lawmakers around the country about the victims in such cases.

They are pushing to put caps on damage awards in malpractice lawsuits brought in the wake of such cases. In fact, the Georgia Legislature already imposed such caps back in 2005 shortly after the Republicans took control of that body for the first time in more than a century. They capped "pain and suffering" awards (as opposed to economic damage awards) at just $350,000.

I'm sure that $350,000 is more than enough to ease the pain of a mangled face. Aren't you?

And what about the case of an unfortunate Fulton County infant, who, thanks to a botched circumcision in 2004, will go through life missing a third of his penis? I'm sure that every last one of the males reading this column feels that $350,000 would be more than adequate compensation for spending the rest of their life missing a third of his penis. Especially any tort reform-minded congressmen or state legislators, apparently.

Many tort reformers in Georgia and around the country are enamored with the notion that malpractice reform should be the cornerstone of any effort to improve the nation's health care system. They want to make it much harder to pursue meritorious medical malpractice lawsuits and want to cap awards at ridiculously low levels in order to try to dissuade people from filing them, and attorneys from taking them.

The 2005 Georgia General Assembly was on the cutting edge of med-mal reform back in '05, you might say. The law it passed, with its $350,000 cap on non-economic damages, is so severe - so hard-hearted - that if your stay-at-home spouse, or your young child (i.e., anyone who is not employed or who lacks an earnings history), is inadvertently killed or maimed for life by a doctor, the most the plaintiff can hope to ever recover via a jury trial is that $350,000.

The state Supreme Court last week heard arguments in the case brought by Betty Nestlehutt, now 75, of Marietta, whose doctor inadvertently shut off nearly all of the flow of blood to the skin of her face during plastic surgery, causing gaping wounds to later open up across the lower half of her face as the skin died.

After hearing all the evidence, the 12-person jury found her pain and suffering damages were worth $900,000. Her doctor's lawyer argues that that amount should be automatically reduced to $350,000. The Supreme Court must decide on the constitutionality of the caps - that is, whether, as Justice Carol Hunstein wondered aloud last week, the caps have turned the right to trial by jury into a "hollow right."

Tort reform advocates argue that soaring malpractice insurance fees are driving doctors out of Georgia and into retirement; hence the need for the caps. Yet in Georgia, doctors are not required to even carry malpractice insurance. All I know is that the phone book is still overflowing with listings for doctors - just as it was before the awards were capped - and that WellStar Kennestone Hospital's "footprint" atop the hill on Church Street keeps getting bigger and bigger.

Those pushing for med-mal reform like to portray it as "jackpot justice." And yes, there have been abuses, such as John Edwards' shamelessly over-the-top - and eventually extremely lucrative - summations to juries in a string of lawsuits on behalf of babies who he claimed suffered cerebral palsy because their doctors failed to perform Caesarian deliveries.

And Republicans also argue, credibly I think, that the fear of lawsuits has caused doctors to practice "defensive medicine" - ordering multitudes of expensive but often unnecessary tests, mostly for "CYA" reasons in case they are later sued.

Yes, we should be very wary of the pitfalls of Obamacare, but be ware as well of tort reformers' claims that malpractice reform is the miracle cure that will, almost by itself, cure all that ails the country's medical system.

There has to be a better way of protecting doctors from frivolous lawsuits than by the kind of arbitrary, one-size-fits-all jury-award caps passed by the Georgia General Assembly. Those caps have nothing to do with the evidence of the case and serve only to hurt catastrophically injured patients whose claims have already passed muster by a judge and jury.

If you don't believe me, just ask Ms. Nestlehutt - or wait a few years, and ask that poor kid from Fulton County.

Joe Kirby is Editorial Page Editor of the Marietta Daily Journal and author of "The Bell Bomber Plant."

Monday, September 14, 2009

Manufacturing Giant Pfizer Agrees to a $2.3 Billion Penalty in Health-Care Fraud Settlement

Pfizer, one of the largest drug manufacturers in the US, is paying $2.3 billion dollars in penalties for misbranding its popular arthritis drug, Bextra.

The company pleaded guilty to illegally promoting its products "with the intent to defraud or mislead." The Food and Drug Administration had pulled Bextra off the market shelves in 2005.

Pfizer settled at $2.3 billion because it was marketing its drug for a purpose not approved by the FDA.The FDA had asked that Pfizer remove Bextra from U.S. and European pharmaceutical markets, claiming the fear about the threat of strokes and heart attacks, as well as the grave skin reactions, and other cardiovascular issues.

Pharmacia & UpJohn, a company owned by Pfizer, will be pleading guilty to a criminal charge of fraud.

The penalty is one of the largest drug settlements to date.

Read more about this story HERE

GTLA Remembers the Life of Al Wall-- our President in 1966

Al Wall, past President of GTLA passed away on Saturday. His obituary from the AJC is below:

WALL, William Alford WILLIAM ALFORD (AL) WALL Renowned Trial Lawyer, William Alford (Al) Wall passed from this earth, Saturday September 12, 2009. He was 83. He was a no nonsense lawyer with a big heart. Al lived life to the fullest and when not occupied by a trial, he was enjoying horseback riding and fox hunting on his "gentleman's farm". Al was devoted to his family and friends.

Wall, who practiced law for 58 years in Atlanta, was recently retired in Athens, Georgia. He was past president of the Georgia Trial Lawyers Association, the Georgia delegate to the American Trial Lawyers Association.

In addition to enjoying horseback riding, he served three terms as Chairman of the Shakerag Hounds. In his own words he made a career defending the rights of widows, orphans, and the maimed.

Wall attended Georgia Military Academy. While serving in the U.S Navy V-12 program, he attended the University of North Carolina, University of Miami and the University of South Carolina. He graduated from the University Of Georgia Law School and remained an avid Bulldog fan.

He will be missed by his family, and extended family of friends. He is survived by his wife of 22 years, Marguerite Allgood Wall, his younger brother Clarence Watson Wall, Jr., wife Sally Coplan Wall and Clarence's son Clarence Watson Wall III, (Trey), daughters Victoria Maria Wall, her son William Kyle Wall, Patricia Elizabeth Wall Wells, her husband John and their son Adam John Wells. Mr. Wall was pre-deceased in 1977 by his first wife, Anita Delores Haltiwanger Wall. Extended family consists of nephews, nieces, grandnieces, and grandnephews.

Funeral service will be held Wednesday, September 16th at 11:00 a.m. at Roswell Funeral Home with interment to follow in Westview Cemetery . The family will receive friends at the funeral home Tuesday, from 5:30 to 8:00 pm. The Shakerag Hounds will host a celebration in memory of Mr. Wall Sunday September, 20th at 4:00 pm in Hull, Georgia.

"There is something about jumping a horse over a fence, something that makes you feel good. Perhaps it's the risk, the gamble. In any event, it's a thing I need." William Faulkner

Friday, September 11, 2009

Supreme Court to Hear Oral Arguments on Caps on Damages

Supreme Court to Hear Oral Arguments on Caps on Damages
Statute is challenged after a medical malpractice victim’s face
literally falls off after surgery

Atlanta, GA-- On Tuesday, September 15, 2009, the Georgia Supreme Court will hear oral arguments regarding the constitutionality of the provision that caps the amount of damages a victim of medical malpractice can secure from a jury. The plaintiffs in the case of Betty Nestlehutt and Bruce Nestlehutt v. Atlanta Oculoplastic Surgery, P.C., will argue that the Georgia Supreme Court should uphold the trial court judge’s finding that O.C.G.A. § 51-13-1, as enacted in 2005, is unconstitutional.

The case arose from a medical malpractice claim filed by Adam Malone and Frank Ilardi on behalf of their clients Betty Nestlehutt and her husband Bruce Nestlehutt in the Fulton County State Court in October of 2008. Married for over 50 years, the Nestlehutts raised two children and they shared a real estate business. Bruce handled the behind-the-scenes work, and Betty, a people-person by nature, focused on client and public interaction. Competition was tough and as Betty aged she found that more and more clients seemed to prefer younger agents. So, at seventy-one years of age, Betty Nestlehutt, after much thought and consideration, sought consultation with Dr. Harvey P. Cole of Atlanta Oculoplastic Surgery, P.C. concerning bags under her eyes and lines around her mouth. Dr. Cole recommended she undergo several surgical procedures including a simultaneous CO2 laser resurfacing and full facelift.

Having both the CO2 laser resurfacing and full facelift done together is well-known by practicing cosmetic surgeons to be risky, as the chance of damaging the facial blood supply is greatly increased on a patient of Betty’s age and complexion. However, based on her doctor’s recommendation, Betty went through the combination of procedures and the blood supply to her face was, in fact, severely damaged.

After the surgery, the skin on Betty’s face struggled to live without its usual blood supply and after a 3-week period, died completely, leaving the once fair-skinned wife and mother with huge, gaping wounds from her temple to her jaw line, covering both sides of her face and over both of her cheeks to her chin. Betty Nestlehutt’s face, quite literally, fell off.

“Betty Nestlehutt was the face of her real estate business,” said Malone. “Her face was so horrifically disfigured that she was no longer able to even leave her house. Photographs of her disfigurement are even too gruesome for public distribution. The damage is permanent. Years later she has to wear layers of special makeup to try to give the appearance of normalcy.”

After hearing the testimony and considering all of the evidence, a jury of 12 returned with a verdict in the Nestlehutts’ favor which included a recovery of money damages for her past and future medical expenses, for damage to her relationship with her husband and $900,000 in “non-economic” damages for the devastation of her quality of life. The verdict exceeded the $350,000 cap on noneconomic damages enacted as part of SB 3 in 2005. Judge Diane Bessen declared unconstitutional the statute capping a jury’s verdict and now her decision, upon the defendant’s appeal, is before the Supreme Court.

“Judge Bessen’s order appropriately concluded that a one-size fits all predetermined cap on damages violates several protections guaranteed by the Georgia Constitution,” said Malone. “Her order balances the rights of all Georgians, young and old, rich and poor, and restores the guarantees set forth by our Constitution that were stripped away in 2005.”

Judge Bessen’s order declares the caps on damages provision unconstitutional because it violates three basic constitutional tenets: the right to trial by jury, the separation of powers doctrine and equal protection of the laws.

Under SB 3, the jury’s deliberation regarding the amount of damages to be awarded is preempted by a legislatively imposed cap—no matter how severe or catastrophic the case before them. Historically, a jury had the ability to decide the fate of its peers constrained only by the particular facts of an individual’s case, as the Founding Fathers intended. Thomas Jefferson once said, “I consider trial by jury as the only anchor yet imagined by man, by which a government can be held to the principles of its Constitution.”

In her order, Judge Bessen wrote:

A limit or cap on noneconomic damages, however, invades the right to a jury trial by usurping one of the fact-finding responsibilities of the jury. If the amount of noneconomic damages awarded by the jury exceeds the statutory cap, this Code section automatically and arbitrarily reduces the verdict, without consideration of the evidence, the record, or any other fact produced at trial and found by the jury. The limitations imposed by O.C.G.A. 51-13-1 render the right of the jury to assess damages meaningless… The cap so interferes with the determination of the jury that it renders the right of a jury trial wholly unavailable.

Additionally, Judge Bessen also found that the cap on damages violates the Separation of Powers Doctrine contained in the Georgia Constitution. Three other states’ supreme courts, with similar constitutional provisions, also have struck down caps on damages on this basis. The Georgia Constitution states that: “The legislative, judicial and executive powers shall forever remain separate and distinct, and no person discharging the duties of one, shall, at the same time, exercise the functions of either of the others.” One distinct function of the judicial branch is that judges have the exclusive right to award to a party a “remittitur” – or a new trial – if a judge finds that a verdict is either excessive or inadequate. Judge Bessen’s order declares the cap on damages statute to be a “legislative remittitur” and that the legislature has unconstitutionally invaded the exclusive role of the judiciary to find facts and control judgments.

“Equally important,” the judge writes, “it does so without the option of a new trial for the injured plaintiff. As such, it unduly encroaches upon the judiciary’s constitutional right and prerogative to determine whether a jury’s assessment of damages is either too excessive or too inadequate within the meaning of the law.”

The third violation of the Constitution Judge Bessen found was that a cap on damages violates the Equal Protection provisions of the Georgia Constitution which state: “No persons shall be denied the equal protection of the laws.” To examine this violation, Judge Bessen explored whether there was a “rational relationship” between the government’s purpose and its enacted statute which treats similar parties in very different, unequal ways.

The rational relationship test basically states that a statute may be valid as long as it has a rational relationship to a governmental purpose. In the case of SB 3, the government’s stated purpose was to “promote predictability and improvement in the provision of quality health care services and the resolution of healthcare claims..., assist in promoting the provision of healthcare liability insurance by insurance providers…, [and addressed concerns about] medical providers and facilities leaving the state and the cost of malpractice awards.” For a law to be valid, a rational relationship to those goals must be proven. Judge Bessen found that the cap on damages failed the rational relationship test completely.

In holding the cap on damages provision unconstitutional, Judge Bessen wrote:

After review, this Court finds that there is no rational relationship between statute and the expressed government interest. Most obviously, it is a complete contradiction to state that the overall quality of healthcare would be improved by shielding negligent healthcare providers from liability. In fact, as recognized by other courts, a cap on noneconomic damages actually diminishes tort liability for healthcare providers and diminishes the deterrent effect of tort law… There is absolutely no evidence that these objectives are achieved by imposing a financial burden on the most victimized of plaintiffs… Based on current statistics, limiting noneconomic damage caps is not rationally related to the state purpose of reducing medical malpractice insurance rates… it appears that this statute was enacted arbitrarily, based upon speculation and conjecture rather than empirical data.

Finally, Judge Bessen found that the cap on damages violates Equal Protection because it creates different classes of victims—those injured by healthcare providers and those injured by others and those who are catastrophically injured and those who are less severely injured. Judge Bessen penned, “The cap’s greatest impact falls on those who are most severely injured, and creates classes of fully compensated victims and those only partially compensated… Similarly, the noneconomic damages cap discriminates against low-income individuals who are unable to prove large economic damages but nonetheless may sustain large noneconomic damages.”

The President of the Georgia Trial Lawyers Association, Chris Clark, has been following this case closely.

“As a trial lawyer, I represent the person, who, through no fault of their own, has been injured—sometimes severely. They miss work, accrue medical bills and—often most important to them—they suffer a loss of the quality of life that they once had,” said Clark. “Betty Nestlehutt’s severe disfigurement – which she had no part in creating – has diminished her quality of life and, in turn her husband’s and her family’s. Judge Bessen’s order was fair, upheld our Constitution, and reflected the rule of law that has stood firm since the inception of this nation.”

The argument on Tuesday was prepared by Malone and attorneys Darren Summerville of Bird Law Group, P.C. and Michael Terry of Bondurant, Mixson & Elmore, LLP. AARP, Voices for Georgia’s Children, Georgia Women for a Change and Georgia Watch all filed Amicus Briefs in support of Betty and Bruce Nestlehutt.


Tuesday, September 1, 2009

'Tort Reform' would not lower healthcare costs

The New York Times blog, "Prescriptions: Making Sense of the Health Care Debate" posted an informative interview on August 31, 2009. Author Annie Underwood interviews Tom Baker, professor of law and health sciences at the University of Pennsylvania School of Law, about so-called "tort reform" and the national health care debate.


A lot of people seem to have taken up the cause of tort reform. Why isn’t it included in the health care legislation pending on Capitol Hill?


Because it’s a red herring. It’s become a talking point for those who want to obstruct change. But [tort reform] doesn’t accomplish the goal of bringing down costs.


Why not?


As the cost of health care goes up, the medical liability component of it has stayed fairly constant. That means it’s part of the medical price inflation system, but it’s not driving it. The number of claims is small relative to actual cases of medical malpractice.


But critics of the current system say that 10 to 15 percent of medical costs are due to medical malpractice.


That’s wildly exaggerated. According to the actuarial consulting firm Towers Perrin, medical malpractice tort costs were $30.4 billion in 2007, the last year for which data are available. We have a more than a $2 trillion health care system. That puts litigation costs and malpractice insurance at 1 to 1.5 percent of total medical costs. That’s a rounding error. Liability isn’t even the tail on the cost dog. It’s the hair on the end of the tail.


You said the number of claims is relatively small. Is there a way to demonstrate that?


We have approximately the same number of claims today as in the late 1980s. Think about that. The cost of health care has doubled since then. The number of medical encounters between doctors and patients has gone up — and research shows a more or less constant rate of errors per hospitalizations. That means we have a declining rate of lawsuits relative to numbers of injuries.


Do you have numbers on injuries and claims?


The best data on medical errors come from three major epidemiological studies on medical malpractice in the 1970s, 1980s and 1990s. Each found about one serious injury per 100 hospitalizations. There hasn’t been an epidemiological study since then, because people were really persuaded by the data and it’s also very expensive to do a study of that sort. These data were the basis of the 1999 report from the Institute of Medicine, “To Err Is Human.”


And what percent of victims make claims?


Those same studies looked at the rate of claims and found that only 4 to 7 percent of those injured brought a case. That’s a small percentage. And because the actual number of injuries has gone up since those studies were done — while claims have remained steady — the rate of claims is actually going down.


So the idea that there are lots of frivolous lawsuits is . . .




In those cases that are brought, are jury awards excessive?


There are already caps on awards in many states. These tend to be on non-economic damages — not medical expenses or lost wages, but typically on pain and suffering. The first was in California in the 1970s. There is pretty good research on that, showing it reduced medical liability payments. These caps vary from state to state, but they’re generally set around $250,000 to $500,000.


Many people would think that a quarter-million to a half-million dollars is a lot of money for pain and suffering.


When California adopted its cap in the mid-1970s, it set it at $250,000. That doesn’t mean everyone got that much. It was the maximum. But that was considered a fair amount at the time. Since then, think how much inflation has eaten into that. These caps typically don’t index for inflation.


So a patient can get reimbursed for medical costs, but they’re limited for pain and suffering.

A. They get reimbursement of medical costs in principle. But in fact, they don’t, because the lawyer has to be paid. These cases can cost $100,000 to $150,000 to bring, so the patient has to deduct that amount from any award.


Why are these cases so expensive?


You need expert witnesses who must be compensated for their time, which is valuable. You need depositions, which are expensive. You have to hire investigators. You have to pay your junior staff. It’s not worth bringing a suit if the potential award is less.

Imagine you go to the emergency room with appendicitis. For whatever reason, they fail to diagnose it. Your appendix bursts, and you spend a couple weeks in the hospital. I’ve had lawyers tell me they would not take a case like that, even if it’s a slam-dunk. The damages wouldn’t be enough — medical expenses, maybe a month of lost salary, although the patient might have short-term disability insurance that would cover a large part of that. It’s not enough to justify going to court.


So you’re saying that a case has to be serious to be worth trying.


The medical malpractice system only works for serious injuries. What it doesn’t work for is more moderate ones. Lawyers discourage people from bringing suits if their injuries are not serious in monetary terms — a poor person or an older person who can’t claim a lot in lost wages. That’s why obstetrician-gynecologists pay such high premiums. If you injure a baby, you’re talking about a lifetime-care injury. Gerontologists’ premiums are exceedingly low.

That’s the reason I say if people are serious about tort reform, they should improve compensation for moderate injuries. Nobody likes that idea, by the way. They say it would make the system more expensive, not less expensive. More people would bring claims. That says to me that the critics are not serious about tort reform.


But it’s not just the cost of premiums and litigation. What about the charge that it causes doctors to practice “defensive medicine,” ordering tests that are expensive and unnecessary?


A 1996 study in Florida found defensive medicine costs could be as high as 5 to 7 percent. But when the same authors went back a few years later, they found that managed care had brought it down to 2.5 to 3.5 percent of the total. No one has a good handle on defensive medicine costs. Liability is supposed to change behavior, so some defensive medicine is good. Undoubtedly some of it may be unnecessary, but we don’t have a good way to separate the two.


Tell me more about the 1996 study.


It was published in The Quarterly Journal of Economics by Stanford economist Daniel Kessler and Dr. Mark McClellan, who was head of the Centers for Medicare & Medicaid Services under President George W. Bush. For two types of heart disease — heart attacks and ischemic heart disease — the authors found that 5 to 7 percent of the additional costs in Florida, compared to other states with lower medical malpractice liability, could be attributed to defensive medicine. This was based on 1980s data.

Using that estimate, some politicians used to say that medical malpractice cost the system $50 billion a year. But you can’t blindly say that all diseases are the same as heart disease, and if you want a nationwide estimate, you can’t say every state is the same as Florida. Furthermore, the second study, published in 2002 in The Journal of Public Economics, found that much of the difference disappeared as managed care took hold in Florida in the 1990s.


But many doctors complain about having to practice defensive medicine.


Doctors will say that. But when you dig down, you find that what’s really happening is that doctors tend to do what other doctors around them do. They go along with the prevailing standard of care in their region — which in many cases isn’t even a state, but a city or county.


If medical malpractice doesn’t explain the high costs of our health-care system, what does?


A variety of things. The American population is aging. We’ve had advances in technology that are expensive. We’re also a rich nation, and the richer you get, the more money you spend on health care. And compared to other countries, we have heavy administrative costs from the private-insurance system.


If it’s not true that medical malpractice is driving the high cost of medical care in this country, why won’t the argument go away?


It makes sense to people intuitively — in part, because they’ve been told it so often. And it’s a convenient argument for those who want to derail the process. Maybe it’s a deep political game. Maybe they’re raising it to say, we’ll back off tort reform if you back off the public option.


What about former Senator Bill Bradley’s idea that medical courts with special judges should be established?


Mr. Bradley has been backing tort reform for as long as I can remember, so this is hardly a compromise for him. I’m not saying medical courts would be a bad idea, as long as they’re not set up in a way that insulates medical providers from responsibility. That’s a big caveat.


What about Senator John Kerry’s assertion that it’s “doable” to rid the system of frivolous lawsuits?


I guess it’s doable because there aren’t very many frivolous suits.

Stella Awards and Fake "News" Reports

From Texas Lawyer Bob Kraft, this on point comment on how many items of "news" on the web are simply false:

"The e-mail about the "Stella Awards" has been circulating for years, and so have articles proving these stupid stories are lies. But the e-mail just won’t die. The latest newspaper column debunking the Stella awards was printed yesterday in the Houston Chronicle. Take a look. The article concludes:

Here’s the lesson: The next time an Internet tale makes you think things are even worse than you thought, check it out. Especially when the tale suggests that the American system is stacked against wealthy corporations.

One easy way: www.snopes.com, an excellent site that investigates urban myths. It took less than 30 seconds to ask for "Stella Awards" and receive the verdict: "False."

Well said Mr. Kraft.