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.

Tort Reform is Just a Distraction

Marietta Daily Journal
Guest Column
August 13, 2009

Tort Reform is Just a Distraction
98,000 Americans die each year from medical errors; let’s focus on real healthcare solutions

By: Lance Cooper

Whenever health care reform is proposed, some people instinctively think more so-called ‘tort reform’ should be the solution to the debate (see Marietta Daily Journal, 8-10-09). This effort diverts us from the real issue at hand—affordable, attainable and safe healthcare. Insurance companies and others who are fearful of accountability for medical negligence regularly employ the “Deny and Distract” routine. First, when faced with hard numbers and legitimate research placing blame not on lawyers, but on their own industries, they ‘Deny’ any accountability. Then they employ methods of ‘Distraction’ to tear us off the course to finding real solutions. ‘Tort reform’ is such a distraction.

Supporters of ‘tort reform’ argue that the threat of lawsuits makes doctors order unnecessary tests to protect themselves—a phenomenon they call “defensive medicine”—and yet there is no evidence to support those claims. Studies conducted by the Congressional Budget Office and the Government Accountability Office have all cast doubts that such a thing called ‘defensive medicine’ even exists. Take McAllen, Texas, home of the most expensive health care in the country—despite having draconian ‘tort reform’ laws and the same caps on damages that we have in Georgia, the doctors routinely order excessive testing and procedures. They do so not for fear of lawsuits but because the fee-for-service structure actually encourages them to. In other words, the more tests they perform, the more they get paid.

Claims of ‘frivolous lawsuits’ driving up healthcare costs is another regularly deployed method of distraction. Georgia, and the rest of the nation, already has laws against filing these so-called “frivolous lawsuits.” Comprising leaders of the medical field, The New England Journal of Medicine published a study concluding that “portraits of a malpractice system that is stricken with frivolous litigation are overblown.” And the overall number of medical malpractice cases is low; less than 1% of all civil cases are medical malpractice cases.

Another frequently echoed distraction is the notion that doctors are fleeing and causing physician shortages because of liability concerns and increased malpractice insurance premiums caused by lawsuits. Once again, this distraction is false. Data from the American Medical Association (AMA) show that physician numbers have been increasing across the board for many years. And the number of physicians is significantly higher in states without caps on damages. The National Bureau of Economic Research found that ‘tort reform’ laws do not avert physician shortages, nor do they lead to greater, more efficient patient care.

Patient care is what really matters at this point. Preventable medical errors and mistakes is the leading cause of accidental death in the nation. Just 6% of doctors are responsible for nearly 60% of negligent care—and the Civil Justice System is the only effective means of holding them accountable. In Texas, after the $250,000 cap on damages was imposed, thereby freeing negligent doctors from accountability, the number of complaints against Texas doctors to the Medical Board rose from 2,942 to 6,000 in just one year. Proposed ‘tort reform’ measures do nothing but fill the coffers of malpractice insurance companies—the same companies who have raised premium rates on the doctors while civil claims have remained stable and, in most states have gone down.

Further dismantling our uniquely American system of accountability by enacting more ‘tort reform’ would be disastrous. We can’t forget what just happened with Wall Street vs. Main Street or the crash of AIG. The insurance industry and their special interest groups are utilizing a tired relic of gotcha-politics—blame the lawyers and hope Americans forget about the record bonuses being paid to insurance industry executives after the taxpayers bailed them out. Amazingly, insurance special interest groups with their call for more ‘tort reform,’ want to deprive Americans who just bailed them out of constitutionally protected access to our judicial system. Let’s ignore those distractions. Taking away patients’ Constitutional right to seek justice in a fair court of law, when they have been injured through no fault of their own, does nothing to improve our health care system nor does it increase patient safety. And it is, simply, un-American.

Lance Cooper of Powder Springs is past president of the Georgia Trial Lawyers Association and is a past president of the Cobb Trial Lawyers Association. He holds a degree in economics from Cal-Berkeley and a law degree from Emory University.

http://www.mdjonline.com/content/index/showcontentitem/area/1/section/17/item/138109.html

Lawsuit not 'frivolous' to the one injured

By: Deric Beaudoin
Attorney at Law and GTLA Member

**The following is a response to a guest column printed in the AJC on 7-30.

A grueling mistrial? Perhaps. A frivolous lawsuit? Not a chance.

While I can certainly understand the frustration Mr. Pitfield has felt as a result of his juror experience, I don’t think it is fair to consider the time spent by everyone involved in this case as being anything near frivolous. I am thankful that this jury devoted so much of their time trying to reach a unanimous decision in this case and I am thankful that we have people in our community like Mr. Pitfield that are willing to share their opinions openly. The fact that twelve people that did not know either party to the case spent two days of their lives (after three days of hearing evidence and argument) trying to reach a decision that would have been fair to both parties is a testament that there are indeed plenty of good people left in our society.

At trial, I represented the plaintiff. My client, a married Korean born 20 + year Cobb County resident and stay-at-home mother of two, had incurred over $65,000 in medical bills as a result of the negligent driving of the defendant. There was no question that the defendant caused the accident because at the scene she received a citation from law enforcement which she pled guilty to and never challenged the ticket.

My client’s Ford Taurus wagon had damage to the unibody which is made of steel and takes the place of what has been traditionally referred to as the frame of a car. The accident caused spinal injuries requiring significant medical attention and for which there is essentially no cure. Hurt through no fault of her own, my client cannot be the person that she once was.

The life changing effect of this wreck and the amount of medical bills that Ms. Kim’s family has racked up as a result of this wreck are anything but “frivolous." The pain that Ms. Kim endures on a daily basis as a result of the defendant pulling out in front of her and stopping in the middle of the road is anything but "frivolous."

With the rising costs of gas, an unsteady economy, and everyday financial worries, the idea of being saddled with tens of thousands of dollars in medical expenses for injuries caused in an accident that was undeniably the fault of another is unbearable. Making a mistake that hurts somebody is one thing, but refusing to accept responsibility for hurting somebody the way Bonnie Kim was hurt is an insult.

Our jury system is designed to offer a fair and just decision for the parties involved in a case. Sometimes, they cannot reach agreement. However, that lack of consensus does not indicate a “frivolous” case. My client is a real person—a mother, a wife, a neighbor, a PTA member. Her family has incurred medical costs that would not have been necessary but for the negligence of the defendant. We did not go into that Courtroom and ask for a million dollars, all we asked for was that Ms. Kim’s medical bills be paid and that the jury award whatever they felt fair and reasonable for her other human losses in light of the evidence presented at trial.

Obviously we affected some of the jurors enough to keep them busy for two days trying to reach a unanimous verdict. It would be interesting to see what some of the “unreasonable” jurors would have to say about the experience. I appreciate Mr. Pitfield’s time on our jury and thank him for sharing his thoughts and opinions with us both after the trial and in his comments to the editor.

I regret however, that Mr. Pitfield did not comment on the civility of the trial and the incredible emotion felt by the parties, the attorneys and the jurors at various times of the trial. I personally have never had a better trial experience between opposing counsel and the defendant and perhaps I never will. Everything about our trial was professional and civil and our judge was exceptional.

If cases like this one are "frivolous," then we need to come up with a new word for lawsuits that have absolutely no merit, because this one, I can assure you, was not one of them.

Wal-Mart's greed costs employees

By: Timothy Santelli
Atlanta Attorney

Wal-Mart sure had a lot to be thankful for this past Thanksgiving. With stores popping up all over the nation, the franchise continues to grow at an exponential rate. In 2005, The New York Times said that Wal-Mart makes $20,000 in profit every minute. That’s right. Wal-Mart makes $20,000 in every minute of every hour of every day in profit—not revenue—but profit. That profit margin, 3 times that of Target’s and nearly 11 times that of Cosco’s, apparently isn’t enough for super-giant. Now the corporation is going after its own employees.

Last week, The Wall Street Journal ran a cover story about Deborah Shank, a 52-year old woman who had worked for Wal-Mart for eight years. Mrs. Shank was in a catastrophic car accident seven years ago when a semi-trailer truck hit her, leaving her permanently brain-damaged.

Her husband and her three sons went to court and obtained a relatively small amount of money—considering her damages—to assist in paying for the healthcare costs. The settlement, after court expenses, and other costs, left the Shanks with $417,000 to be put in a special trust for the medical needs that the 52-year old woman would depend on for the rest of her life.
Wal-Mart got wind of the settlement and the mega-corporation sued the Shanks for $470,000—to recoup the expenses it had spent on her medical care. Now, the entire trust fund for Deborah Shanks’ healthcare is going back to the multi-billion dollar corporation.

Wal-Mart was able to take this money from a working employee because the mega-corporation includes a provision in their health care plan reserving the right to recoup any money recovered by an employee in a personal injury suit. The Shanks were unaware of this clause.

Making this situation even more outrageously unfair is that Mrs. Shanks paid hefty premiums for the optional health coverage provided by Wal-Mart. While an average full-time employee at Wal-Mart makes $17,114 a year—over 16% of that salary will go back to Wal-Mart for healthcare—healthcare with numerous deductibles. Over 16% is over twice the national average of employee insurance costs.

In Georgia, Wal-Mart is the #1 employer of parents with children enrolled in PeachCare. Every year Georgia’s taxpayers pay nearly $10 million dollars to cover the more than 10,000 children enrolled whose parents work full time at the corporation and still can’t afford insurance.
Yet Wal-Mart profits. At $20,000 a minute.

Six days before Wal-Mart claimed victory, the Shanks 18-year old son was killed while serving in Iraq. Now, with no settlement money, the Shanks’ family, without their son, is relying on Medicaid and Social Security payments for her 24-hour care. Mr. Shanks is working two jobs and barely has time to be with his wife. Her health is declining; she can’t remember that her son was killed in the war, only that he died. A health-care administrator told Mr. Shank that divorcing his wife would benefit the family as she may be eligible for more public aid. The Shanks lost on appeal at the Circuit Court. They hope the US Supreme Court will hear their case.

In just 23 and-a-half minutes, Wal-Mart made the money awarded to the Shanks in profit alone. But it’s not enough for the greedy corporation. They took that money from a working family—a family who lost their son in the war, a family without a mother who can care for her children through no fault of her own.

Wal-Mart sure had a lot to be thankful last Thanksgiving. If only the working families in America, like the Shanks, could say the same.