We should all be for personal accountability

Most places you look these days, someone is blaming medical malpractice claims, and the “clever trial lawyers” that bring them, for the high cost of health care in the United States. This argument is unsupported by actual research performed by the Congressional Budget Office, who says that med-mal claims account for a mere 2% of health care costs. Furthermore, the actual practices of med-mal insurance carriers shows this argument to be untrue. For instance, Texas has strict tort reform and thus far fewer medical malpractice claim filings, but doctors practicing in Texas have malpractice premium rates double that of neighboring Arkansas in many practice areas.

The argument for tort reform also ignores the real problem underlying medical malpractice cases: some hospitals, doctors, and nurses are injuring the patients they are charged to protect. Medical malpractice laws are on the books to ensure that injured patients are made as whole as possible for the health provider’s errors. However, in many medical malpractice cases, it is impossible for patients to be made completely whole for the life-changing injuries they sustain.

That’s where medical malpractice claims step in. Civil law only provides one way for injured parties to make themselves as whole as possible:  money. That’s it. For example, consider a mother whose heart stops during labor due solely to the fault of her doctor and who has brain damage such that she will need assistance and care for the rest of her life. There are but two options for her care: either the responsible doctor pays for his mistake, or the mother receives some form of public assistance through Medicaid, Medicare, or the like.

Self-described conservatives and insurance companies would have you believe that caps on malpractice awards would reduce the cost of medical care in this country. That’s simply not true, because injured patients will require assistance and care no matter who pays for it. The health insurance lobby would rather taxpayers pay for these costs. It seems to me that pushing more injured patients onto the rolls of government health care is the opposite of the conservative movement’s stated objective.

Insurance companies accuse trial lawyers of being the scourge of the health care industry. Those same companies want to have their cake and eat it too. Notice that you don’t hear insurance companies talking about their profit margins, since that would expose the fact that insurance companies profit far more from the health care industry than do trial lawyers. For what? Taking money from one side and handing it to the other, albeit in as slowly and painstaking a fashion as possible.

Instead of providing the care patients need, insurance companies balk. Instead of paying doctors promptly, insurance companies ask that doctors negotiate an insurer discount. Instead of paying malpractice claims to injured patients, insurance companies make those same patients fight to recover through years of court proceedings while trying to recover at the same time. Industry insiders and trial lawyers call this unethical strategy “delay, deny, defend,” and it has added billions of dollars to insurance companies’ bottom lines at the expense of policyholders and taxpayers.

While some sort of tort reform may be justified, insurance reform is a more pressing issue for health care reform in this country. Conceptually, insurance is a good idea. It spreads risk throughout the population so normal people can have access to care and funds in times of need. However, insurance companies today aren’t living up to the traditional insurance laws, which require the insurance companies to put their insureds’ interests ahead of their own and to give insureds the benefit of the doubt.

In fact, insurance companies are lobbying to change these traditional rules so they can be even more aggressive in denying claims and withholding funds that properly belong to their clients. So far, the federal and state governments have turned a blind eye to this activity by giving antitrust exemptions to insurers and failing to enforce regulations that prevent insurers from abusing their clients.

A good start toward reforming health care would be to make the insurance market more competitive by strictly enforcing regulations requiring insurance companies to provide fair and prompt coverage to their policyholders. Until this happens, insurance companies will continue to take the money from our wallets and withhold it when we need it most. The only ones protecting the rights of policyholders and taxpayers from insurance companies are trial lawyers. Count us among those proud to carry that title.

BP showed us how liability caps work – poorly

This morning, the Arkansas Democrat Gazette reported on the Arkansas Congressional delegation's involvement in hearings about the Deepwater Horizon oil spill. Congress passed a law in 1990 capping oil companies' liability for oil spills at $75 million. Now, current leadership is considering a repeal of that law. Congressman Boozman supports repeal because he doesn't "want the taxpayer to be stuck with the liability."

This discussion illustrates two things. First, liability caps remove an incentive for companies ensure that they place public safety first. The Deepwater Horizon spill will wind up costing far, far more than $75 million. But, with liability for the spill limited to a fraction of the profits generated by the well and by BP generally, BP had no incentive to place the safety and reliability of its well over profits.

Second, when liability caps are in place, the taxpayer winds up footing the bill for harm caused by the wrongdoer. Whether its BP avoiding liability for environmental damage or a careless motorist avoiding liability for hurting another driver, someone else winds up footing the bill. All too often it is the government, whether it's the Environmental Protection Agency cleaning up oil or Medicare paying for medical treatment that should rightfully be charged to a negligent motorist.

It's strange to me that Congressman Boozman recognizes that we don't want to shift private liability onto the taxpayers, yet he still supports tort reform. Tort reform, at its core, is about shifting financial responsibility for harm caused by a private party to someone else, which all too often is the government payroll.

Arkansas Bar Annual Meeting notes

Don Chaney completed two consecutive years' worth of service as an officer of the Arkansas Bar's Tort Section when Nathan Chaney was elected to take his place as the Chairman of the Arkansas Bar's Tort Section at today's section meeting. His first official act as Chair-Elect was to suggest using the section's reserves, built up from member dues over the course of several years, to fund a $2500 scholarship for two incoming law students, one each at the Arkansas law schools in Fayetteville and Little Rock.

If you have suggestions on student criteria for the scholarships or for persons in whose honor the scholarships should be named, please let us know.

Nathan Chaney teaches class on emerging legal and ethical issues

This morning, Nathan Chaney taught his class on the legality and ethical issues surrounding the insurance industry’s current attempts in Arkansas to represent policyholders using employee-attorneys. You can download a copy of the course materials here and a copy of Nathan’s presentation slides here.

Nathan enjoys giving back to the legal profession by educating fellow attorneys on emerging issues of law, and he appreciates the participation by the attendees of the class. Special thanks goes to Toof Brown, who was Nathan’s opponent in a recent case but was gracious enough to attend and lend his perspective.

Doctors for public health and safety, against tort reform

Doctors are generally thought to be in favor of tort reform, but for many MD's this is a knee-jerk reaction to medical malpractice lawsuits. In truth, medical errors are believed to cause up to 98,000 deaths annually, according to a 2003 article in the Journal of the American Medical Association. That puts medical errors in the top ten causes of death in the U.S.

Around 1% of all hospital patients become victims of malpractice, and 5% of physicians are responsible for half of the medmal cases filed in this country. Just 3% of malpractice victims actually file claims, and doctors and hospitals avoid paying for 80% of the harm they cause to malpractice victims. See http://www.centerjd.org/cjrg/Numbers.pdf for more statistics.The statistics prove that the notion that malpractice claims are out of control is an advertising gimmick that permits malpractice insurers to price-gouge doctors.

Some doctors see through the insurance industry propaganda. The current and former Editors of the New England Journal of Medicine ("NEJM"), which is the oldest continuously published medical journal in the world, filed a "friends of the Court" brief in a 2008 U.S. Supreme Court case. This case was against a pharmaceutical company for releasing a dangerous drug on the market, despite having knowledge that the drug had dangerous side effects. The drug company withheld information from the Food & Drug Administration about these dangerous side effects. The plaintiff was a woman who was administered the company's drug and who had her arm amputated as a result. A jury awarded the plaintiff $7.4 million dollars in damages.

The Editors of the NEJM, who are highly educated doctors, reviewed several cases in which drug companies "equated increased warnings with a loss of sales, [giving them] an incentive to delay warnings as long as possible... [C]ertain pharmaceutical companies have already proven themsleves unwilling to prioritize safety over profits, even when faced with the threat of civil liability." The Editors argued that the jury's verdict should stand because a robust tort system is required to effectively monitor drug companies and to improve the lives of injured patients and their families. The Editors also believed that elimination of tort claims would "threaten this nation's public heath."

Well-educated and highly-respected doctors who have studied tort reform believe that a strong tort system is needed to protect patients. That should speak far more loudly than propaganda designed to pad the profits of drug manufacturers and insurance companies.