This morning’s Philadelphia Inquirer ran an OpEd from the head of the Pennsylvania Health Care Association (“PHCA”) seeking support for a law proposed by PHCA that would shield any health care provider from accountability and responsibility for errors that injure or kill you or a loved one. Make no mistake about it, the health care providers, including the Pennsylvania Medical Society, have been pushing for a law like this for years (this is from their website).

What’s at stake here? Their proposal would mean that whenever there is a “benevolent gesture” or apology, it would never be admissible if you or a family member file a lawsuit to seek fair redress for injury caused by a health care provider. This type of shield will certainly be claimed in the broadest context imaginable by corporate defense lawyers hired to defend the doctors, hospitals, nursing homes, and assisted living facilities – all of which are within the scope of this law.

Why do I say that the scope is so broad? Look at the language of the law: “Any and all action, conduct, statement or gesture that conveys a sense of apology, condolence, explanation, compassion or commiseration emanating from humane impulses… shall be inadmissible as evidence of liability” Think about this in the context of the types of cases we see:

• The wife whose pre-op screening chest x-ray done before a GYN procedure showed a lung mass with a recommendation from the radiologist to perform a follow up CAT scan would not have been able to admit in evidence the doctor’s admission two years later when her terminal cancer was diagnosed that he only saw the pre-op clearance and missed the follow up recommendation;
• The mere administration of pain medicine to a patient with terminal cancer – a hallmark of proper care…and an “action …of compassion” – would be inadmissible to prove the patient’s pain and suffering;
• Acts which the Centers for Medicare and Medicaid Services (“CMS”) have declared “never events” which are deemed so unacceptable that the government will no longer reimburse health care providers for treatment after these events occur:
  • Object inadvertently left in after surgery
  • Air embolism
  • Blood incompatibility
  • Catheter associated urinary tract infection
  • Pressure ulcer (decubitus ulcer)
  • Vascular catheter associated infection
  • Surgical site infection- Mediastinitis (infection in the chest) after coronary artery bypass graft surgery
  • Certain types of falls and trauma

In theory, if this law were passed, the doctor, hospital, nursing home, or assisted living facility might never be paid by the government because the care was so deficient, but those same health care providers could be shielded from your lawsuit by simply acting just a bit contrite.

Think about this in a more familiar circumstance. A car runs a red light and broadsides your car and breaks your arm. The other driver runs over says: “I’m sorry, I was on the phone.” There is no doubt that such an admission can and should be used to prove that driver’s fault. If this law is passed, similar conduct by a health care provider could be used as a shield from accepting full responsibility for their actions.

The health care community still doesn’t get it. This law is unnecessary and unfair. We don’t have a medical malpractice crisis in Pennsylvania – just ask Governor Rendell, he’s said that over and over. The filings are down nearly 41% since 2000-2002 (when the Supreme Court started collecting statistics on these cases); even the Republican Chief Justice of the Supreme Court, Ron Castille, has said that Pennsylvania has an “accessible court system where professional liability actions are impartially and promptly resolved.”

The Governor has declared for many months now that the “medical malpractice crisis” in Pennsylvania is over.  We finally have some proof that one of the most vociferous critics of the courts in Pennsylvania finally agrees.  The America Tort Reform Association (“ATRA”) has just released its 2008 “judicial hellholes” report and Pennsylvania is cited as one of the “points of light!” The report explained that in Pennsylvania “medical malpractice filings fell nearly 40% statewide…Philadelphia, in particular witnessed a drop in filings from 1085 to 586″ between 2000-2007.  ATRA also quoted a report from the Pennsylvania Medical Society, one of the largest physician insurers in Pennsylvania noting that insurance premiums have also dropped between the years 2002-2007 “as the liability climate improved.”  The report concluded that all of this happened because of changes taken by the high court to require that cases filed against health care providers must be filed in the county where the medical care was rendered and also the requirement of a certificate of merit before a claim can be filed. This conclusion was based on comments by former Pennsylvania Supreme Court Justice William Lamb, who was the chairman of the state’s medical malpractice task force.

This is extremely significant because for years doctors have continued to complain about the climate in Pennsylvania and the need for changes in our laws.  This represents a very significant recognition on the part of a mouthpiece for the tort reform movement that things have changed as a result of common sense changes on the part of the court system rather than from passing laws to limit your right to sue.

What is distinctly lacking in ATRA’s report is any recognition whatsoever that the spike in the malpractice insurance premiums was the result of insurance issues related to stock market changes (reducing the value of the insurers’ portfolios) rather than the medical malpractice climate.  Failing to recognize the true cause of the so-called “crisis” wasn’t surprising since ATRA is funded largely by big drug, tobacco, and insurance companies who spend millions of dollars every year to fund this report. Companies like Phillip Morris (cigarette manufacturer) Dow Chemical, Exxon, General Electric, AETNA, Geico, State Farm, Pfizer, Johnson & Johnson and Nationwide contribute between $50,000.00-75,000.00 per company to fund the diatribes against the court system put out by ATRA.  These reports have been flawed in the past including actual retractions by ATRA.

Past reports including the 2007 report from ATRA have been widely criticized by the independent media.  For example, the New York Times reported last year that there was “no apparent methodology” in the development of ATRA’s list and that the report often falls short in terms of whether the arguments in the report make sense.  Nothing has changed this year in the methodology.  Honestly, little has changed in the climate of Pennsylvania either.  Nonetheless, ATRA is seeing fit to change Pennsylvania’s status to a point of light from past listings on the watch list.

What this shows is that the forces that would work hard to limit the civil justice rights for injured victims of negligence and victims of dangerous products are still hard at work to close the door to the courthouse in order to improve corporate America’s bottom line.

Today’s Inquirer had dueling headlines that really send a mixed message. Check out these headlines then tell me if you know what’s really going on in Philadelphia:

• On the Front page: “Report details surgical errors In Pa., 175 mistakes in 30 months” ( I blogged on this report yesterday: What Hath Tort Reform Wrought)
• deeper in the paper: “Report cites a shortage of maternity beds“
• and on the front of the Business Section: “Pennsylvania hospitals get a mixed diagnosis – Most larger facilities are doing well financially, a report says. But some smaller ones are ailing.”

Confusing is putting it mildly. Let’s get one thing straight: the article on maternity beds places the blame on “rising malpractice rates and shrinking reimbursement rates.” In other words, they’re getting paid less (reimbursement) and one of their items of cost (insurance) is more expensive.

Let’s look at that just a little closer. The article on hospital profitability has a hint about how to make money (read: how to be able to afford your costs like insurance): “The stronger hospitals are getting stronger, and the weaker hospitals are getting weaker,” said Ralph Muller, chief executive officer of the University of Pennsylvania Health System, whose hospitals are among those getting stronger… [a]s the evidence mounts that higher patient volumes and better outcomes often go together, “employers, payers and the consumers are moving toward hospitals that do more activity,” Muller said. This isn’t rocket science. Better care = more patients = more money from health insurers.

So doesn’t it figure that the “weaker” hospitals have chosen to blame external reasons like malpractice insurance rather than engage in a bit of healthy introspection to try to improve patient care?

Remember that yesterday I quoted a former Texas insurance commissioner regarding the increase in premiums trying to replace market losses after 9/11? Keep that in mind when you look at this quote from the Insurance Information Institue website: “New research suggests that … for any turnaround to take root significant reforms in the delivery of medical care that focus on patient safety need to occur.” That’s a quote from the insurance industry’s website, not something an attorney has made up. The industry gets it even if “weaker” hospitals don’t. Patient safety must be the focus. Profitability and reduced malpractice insurance rates will follow.

John Edwards has come out with his health care plan: “Reforming Health Care To Make It Affordable, Accountable and Universal.” I am disappointed to see that buried on page 14 is the following:

“• Stop Frivolous Lawsuits: To discourage frivolous suits, Edwards will require lawyers to have an expert testify that actual malpractice has occurred before bringing a suit. There will be mandatory sanctions for lawyers who file frivolous cases, and any lawyer who files three frivolous cases will be forbidden from bringing another suit for the next 10 years.”

Why am I disappointed? Truthfully, it’s not the content as much as the language. Really. These proposals simply mimic the rules already governing the medical malpractice cases which I file. I practice in Pennsylvania and New Jersey and in both of those states we must have a written “certificate of merit” (Pennsylvania) or “affidavit of merit” (New Jersey) or else a medical malpractice case can’t proceed in court. This means that you have to file a document certifying that an appropriate medical expert has reviewed the case and believes there is a basis to proceed. Plus, if you try to proceed and you lack the adequate medical expert support for your case, you can be sanctioned. Truth be told, that’s the way responsible medical malpractice lawyers have done business since long before our state legislature imposed these procedural limitations.

So why does the Edwards proposal bother me? Because I expect more from a fellow trial lawyer. His campaign has bought into the jargon of the tort-reformers who are doing the bidding of corporate America and the big insurance lobby. The whole suggestion that there is a huge problem with “frivolus medical malpractice litigation” is a myth. What’s the proof counsellor? The proof is really simple and it is backed by unimpeachable research: “portraits of a malpractice system that is stricken with frivolous lawsuits are overblown.” This is taken from a Harvard study published in the New England Journal of Medicine on May 11, 2006. It is really that simple.

But let me make it really clear. These cases are hard fought, expensive, time consuming, and go on for years. As trial lawyers, we typically work on a contingent fee. That means that we aren’t paid unless and until there is a recovery for our client. Try asking your mechanic to service your car for a few years before he’s paid and see if he’s willing to do that. So now ask yourself who in their right mind would pursue a “frivolous” case? Right. Like I said, it really is that simple.

So I say, “come on Senator Edwards, don’t buy into their lingo.” I only hope that the other candidates don’t follow the path of using outmoded language about a crisis that doesn’t exist.

This morning’s Philadelphia Inquirer Business section ran a story about the declining number of maternity wards in the Philadelphia metropolitan area. The story was titled: “The Baby Scramble” and was written by Stacey Burling. The only thing “scrambled” in this story was Ms. Burling’s failure to report a vitally significant scientific study on the number of physicians in Pennsylvania which came out last month. Here’s the surprising truth: the decline in obstetricians in Pennsylvania began before medical malpractice insurance premiums had a Katrina-like increase a few years ago. Here’s another surprising truth: the number of births in Pennsylvania is declining. So if fewer of us are having babies, then  a quick supply and demand analysis shows us that we need fewer obstetricians and maternity wards.

Look, I’m not inventing this just because I represent families whose children have been injured for life as the result of birth trauma in some of these maternity wards. You can read all about it in my blog from last week: “Representative Josh Shapiro: I Told You So!! “ . The story in Health Affairs on April 24, 2007 was a scientific study supported by the evidence. By and large, doctors aren’t leaving Pennsylvania, and the limited reduction in obstetrics began before there was a dramatic Katrina-type gouging of malpractice premiums.

So as I said last week, it’s not about the medical malpractice. So why did Ms. Burling trot out the same tired excuse of “high expenses for malpractice insurance” and call that one of the “culprits” in causing the closure of our region’s maternity wards? Got me. Maybe she’s been covering doctors and hospitals so long that she forgot to tell the patient’s side. This wouldn’t have been hard to find out. The Health Affairs article was  written by some really credible researchers – not the least of whom was David Studdert, an adjunct associate professor of law and public health at Harvard – yea, that Harvard.

The idea that doctors are fleeing Pennsylvania isn’t new – but it does scare people and in that sense, it’s a sort of grass roots lobbying by intimidation. I really wish that a journalist like Ms. Burling would turn her focus onto the organizations like “PAPA – Politically Active Physicians Association” that are promulgating the mis-information that was so thoroughly reputiated by the Studdert piece. Here’s just one example. One of the tabs on their website claims to be a list of “disappearing docs.” It looks like a huge list. I quickly scanned the list for doctors whom I know…both personally and because I’ve sued them. In 30 seconds I found my childrens’ former pediatrician listed as someone who went to New York. Nope, he’s still a friend of ours and he left clinical practice to move into work on improving health care delivery…hardly someone who is running away from medicine.

Next I saw a doctor I sued – twice in fact – for the same negligent injury he inflicted on two of my clients during a routine laparoscopic gall bladder removal surgery. PAPA claims that when he left Pennsylvania he took out an ad that read: “It is with deepest regret that I am retiring from surgery due to the exorbitantly high cost of malpractice insurance.” First, he never expressed “the deepest regret” – or any regret for that matter – about the injuries he inflicted on my clients. Second, it looks like he didn’t retire after all.  A quick google tonight showed me that on April 25, 2006 the same physician was ordered by the Pennsylvania State Licensing Board to pay a civil fine because of disciplinary action in another state.

So if on the one hand an organization like PAPA with really questionable facts supporting its agenda is saying doctors are leaving Pennsylvania, and on the other hand a Harvard guy like David Studdert with tons of statistics says it isn’t because of medical malpractice premium hikes, how can the Inquirer run a story like that?

Now don’t get me wrong, I’m not a doctor-hater. Far from it. In fact, I’ve always said that any trial lawyer who doesn’t recognize that the price of medical malpractice insurance has become an enormous burden for our physicians is missing a huge part of this issue. But my point is, and remains, that this is an insurance issue – in more ways than one! Our health care system is being squeezed by big insurance on the reimbursement side with ridiculously low rates of reimbursement and on the medical malpractice side with ridiculously high medical malpractice premiums. How can the insurers continue to justify high premiums in the face of dramatically reduced filings, year after year, in Pennsylvania when compared with the 2000-2002 averages? We know this is true because the Pennsylvania Supreme Court tracks these statistics and they just released the numbers for 2006. It’s clear, filings remain way down. More to the point for this blog, how can insurers continue to reimburse doctors and hospitals at a rate that guarantees they’ll lose money on every delivery? We know the insurance companies have had record profits during the last couple of years (Huge Insurance Company Profits for 2006 – And You’re Paying For It! ) - we just need to reduce those profits to a “fair and balanced” level and make sure that necessary treatments are being fairly reimbursed. 

Well if the New York Times is “all the news that’s fit to print” then in Philly the Inquirer just gave us half the news that’s fit to print. Come on Inquirer, you can do better.

P.S. 05/07/07 I e-mailed a copy of this blog to the author and she pointed out that she did report the decline in births as well as the excess capacity ten years ago. Agreed. My point remains, Studdert demonstrated that medical malpractice premiums aren’t the “culprit” suggested by the article. RLS, Jr.

Here we are on the day after the State of the Union address and I’m starting to feel like a broken record. When is Mr. Bush going to stop pandering to the insurance lobby and spreading falsehoods? He really has become the AMA’s “Commando” in Chief. Don’t hold your breath for this sort of thing to end any time soon.

What did he say this time (we’ve lost count of how many times he’s used his bully pulpit to advance this agenda in his administration)? It was a short sound byte: “We will encourage price transperancy and to protect good doctors from junk lawsuits, we need to pass medical liability reform.”

I guess I do have to give his speech writers some credit. They did learn from the Harvard study published in the New England Journal of Medicine on May 11, 2006 that “portraits of a malpractice system that is stricken with frivolous lawsuits are overblown.” Wouldn’t you have liked to be a fly on the wall when they were writing this year’s speech? Here’s how it all must have gone down (what follows is a fictional, satirical account):

Commando in Chief (”CiC”): I need to talk about friv’lous lawsuits and hit those trial lawyers again…look’it, they’re the only reason I have to deal with the Democrat Party in Congress.

Writer: Sir, it’s the Democratic Party.

CiC: Too many syll…syll…what’s the word?

Writer: Syllables, sir.

CiC: Yeah, them.

Writer: Sir, a very authoritative and well respected medical journal published a Harvard study that has made it pretty clear that our old mantra attacking “frivolous lawsuits” simply isn’t supported by the evidence anymore.

CiC: Huh?

Writer: We gotta say sumpin’ diffrent.

CiC: Now you’re talking straight. Harvard…figures…liberals!

Writer: We could try a different adjective to modify lawsuits.

CiC: No, we need a new way to say bad things about those lawsuits.

Writer: Uhmmm, good idea Mr. President!

CiC: Went to Yale ya’ know?

Writer: Yessir. How about if you call them “junk” lawsuits instead?

CiC: Ah like that…”junk”…kinda easy to say isn’t it?

Writer: It is sir, four letters, one syllable. Rolls off the tongue, easy to say.

CiC: Yep, that’s why I like Karl Rove, four letters, one sylla…sylla

Writer: Syllable, sir.

CiC: Right. Go with “junk”, ah like that.

There you have it…726 days to go.

Two days ago I wrote about the proposal to phase out the Mcare Fund which insures doctors, hospitals and nursing homes when they are sued for malpractice or neglect. In that blog I noted that one possible benefit was that settlements might not be confidential in the post-Mcare Fund era.

In an article titled: “Judge Rejects Secrecy in Med-Mal Settlement Involving Public Funds” the current issue of TRIAL Magazine has reported the following:

“Following the lead of at least one other judge in his state, a Pennsylvania trial court judge recently refused to seal a settlement in a medical malpractice case, citing the public’s right to know that money from a state fund would be used to pay the widow of the patient who died. (Bryk v. Wilcox, No. 9254 (Pa., Luzerne Co. Com. Pleas settled Aug. 30, 2006).) Amanda Bryk considered filing a claim after her husband, Walter, died shortly after undergoing aortic valve replacement. The surgeon allegedly failed to properly tie off sutures in Walter’s heart, causing a fatal rupture. Before she filed suit, the case was settled, with part of the settlement to be paid from the state’s Medical Care Availability and Reduction of Error Fund (Mcare Fund). The fund provides excess medical malpractice coverage through the state’s insurance department and is financed by fees assessed on health care providers, moving-violation surcharges, and cigarette tax monies. Although Mcare typically includes a confidentiality provision in its settlement documents, Judge Mark Ciavarella said in an interview that he had good reason to make this settlement public.”

The public’s right to know about incidents of medical malpractice shouldn’t be restricted by insurers or the Commonwealth. There may be some situations where the privacy of the plaintiff will weigh heavily in favor of confidentiality (cases involving minors are one example where courts have long recognized the importance of confidentiality) but barring a compelling privacy interest for the plaintiff, shouldn’t you have the right to know about malpractice or nursing home abuse and neglect in your community?

The Pennsylvania Commission on the Medical Care and Reduction of Error Fund (”Mcare Fund”), headed by Insurance Commissioner Diane Koken, has proposed a plan to “phase out the Commonwealth’s Mcare Fund program and return all medical malpractice insurance coverage to the private market as soon as possible. This is a move that is strongly supported by physicians and hospitals.” (this quote comes directly from the Insurance Department’s November 30, 2006 press release).

This means that the 30 year era of the Mcare Fund, and its predecessor, the Medical Professional Catastrophe Loss Fund (the so-called CAT Fund), may soon end for doctors, hospitals and nursing homes that have been sued for negligence. To many of us who represent injured patients and their families there can be no stronger admission on the part of the medical community that the so-called “medical malpractice crisis” is over. Why else would health care providers “strongly” support a plan that would take them back to a system which is exclusively a private insurance market? If the insurance wasn’t available, or if it was too expensive, do you really think that they’d be asking the Insurance Commissioner to propose a change that would force them all into the private insurance market? Of course not.

This proposal may actually end up having some benefits for injured patients and their families in the long run. First, one of the main reasons that you can’t find out how much cases settled for has been a policy adopted by the CAT Fund, and continued by the Mcare Fund, to include a strict confidentiality clause in every release which ended malpractice lawsuits. Getting rid of the Fund might improve the flow of information to the public which can only lead to an improved quality of care. Second, having the ability to only negotiate with one insurance entity (a change from the current two tiered system) may streamline the process of negotiating fair settlements. Finally, the Mcare Fund was not an insurer so it never owed a legal duty of good faith to the insured doctor, hospital or nursing home. A private insurer, on the other hand, must act reasonably to protect its insured (i.e., not unreasonably expose the doctor, hospital or nursing home to the possibility of a verdict which exceeds the policy limits). This duty is a very potent tool to help get cases settled within the available insurance.

We’ll try to report further on this proposal as it works its way through Harrisburg.

Feel free to tell your experiences, ask your questions, or post your comments below.